Polity Notes 38

Criminalization of Politics

The entry of individuals with criminal backgrounds into the political arena and their subsequent election to legislative bodies is a grave concern for Indian democracy. This phenomenon undermines the sanctity of democratic institutions, erodes public trust, and distorts the principles of free and fair elections.

Scale of the Problem:
- The Association for Democratic Reforms (ADR), a prominent civil society organization working on electoral and political reforms, has consistently highlighted the alarming rise in the number of lawmakers with declared criminal cases.
- According to an ADR analysis of the 2019 Lok Sabha elections, 43% of the elected Members of Parliament (MPs) had declared criminal cases against themselves, a significant increase from 34% in 2014 and 30% in 2009. Of these, 29% had declared serious criminal cases, including charges related to murder, attempt to murder, kidnapping, and crimes against women.
- This trend is mirrored in State Legislative Assemblies, where a substantial percentage of Members of Legislative Assembly (MLAs) have criminal antecedents.
Causes for Criminalization of Politics:
- Fragmentation of Indian Polity: The decline of national-level, single-party dominance since the late 1980s and the rise of coalition politics and regional parties have intensified electoral competition. In this fragmented landscape, parties often prioritize a candidate’s ‘winnability’ over their integrity. Candidates with muscle power and financial resources are often seen as having a higher chance of winning elections, especially in closely contested constituencies.
- Decline of Ideology and Performance-Based Politics: The weakening of ideological anchors in Indian politics has led parties to rely on other factors for mobilization. When parties cannot win on the basis of a clear ideology or a strong record of governance, they may resort to candidates who can leverage local influence, often through illicit means.
- Failure of the Legal System: The adage “justice delayed is justice denied” is particularly relevant here. The protracted nature of the judicial process in India means that cases against politicians can drag on for years, even decades. This delay allows individuals to contest and win multiple elections and hold public office before a verdict is reached. The conviction rate in cases against politicians remains extremely low.
- Weak Legislative and Executive Will: Despite numerous reports and recommendations, such as those from the Vohra Committee Report (1993) which first officially documented the nexus between criminals, politicians, and bureaucrats, there has been a lack of strong legislative action. Proposed amendments to the Representation of the People Act, 1951, to bar candidates against whom heinous charges have been framed by a court have not been passed due to a lack of political consensus.
- Influence of Emotional Factors in Elections: Electoral outcomes are often swayed by primordial identities like caste, religion, region, and language rather than by rational assessments of a candidate’s competence or policy positions. This creates an environment where ‘strongmen’ who can mobilize support along these identity lines are valued by political parties.
- Lack of Voter Awareness: While information about candidates’ criminal records is now publicly available through affidavits submitted to the Election Commission of India (ECI), a significant portion of the electorate remains unaware or unconcerned. Political scientist Milan Vaishnav, in his book “When Crime Pays: Money and Muscle in Indian Politics” (2017), argues that in a state with weak institutions and poor service delivery, voters may paradoxically see a candidate with a criminal reputation as someone who can “get things done” and navigate a dysfunctional system, albeit through extra-legal means.

Solutions and Judicial Interventions

The judiciary has played a proactive role in attempting to curb the criminalization of politics.

The Lily Thomas Case (2013):
- In the landmark judgment of Lily Thomas v. Union of India (2013), the Supreme Court struck down Section 8(4) of the Representation of the People Act, 1951.
- Historical Context: Before this judgment, Section 8(4) acted as a protective shield for sitting MPs and MLAs. It stated that a disqualification under Section 8 (for conviction in certain offenses) would not take effect for three months, and if an appeal was filed within that period, the disqualification would be stayed until the appeal was disposed of. This allowed convicted legislators to continue holding office, often for the entire duration of the appeal process.
- The Judgment: The Supreme Court held that Section 8(4) was unconstitutional as it created an arbitrary distinction between sitting legislators and other candidates, thereby violating Article 14 (Right to Equality). The Court ruled that disqualification upon conviction for a crime carrying a sentence of two years or more would be immediate for all individuals, including sitting legislators. The only recourse is to obtain a stay on the conviction (not just the sentence) from a higher court.
- Impact: While a significant step, the judgment did not fully stem the tide, as parties began fielding relatives of disqualified politicians or continued to give tickets to those under trial, as the ADR data post-2013 shows.
Way Forward and Proposed Reforms:
- Barring at the Stage of Framing of Charges: A key proposal, recommended by the Law Commission and the ECI, is to disqualify candidates against whom charges have been framed by a court for heinous crimes punishable with imprisonment of five years or more. This is a step before conviction. A safeguard, such as requiring charges to be framed at least one year before elections, could prevent misuse.
- Fast-Track Courts: The Supreme Court has repeatedly ordered the establishment of special fast-track courts to exclusively try cases against legislators. The idea is to conclude these trials within a stipulated time frame (e.g., one year). While some progress has been made, the implementation remains a challenge.
- Lifetime Ban on Convicted Politicians: The suggestion to impose a lifetime ban on convicted politicians from contesting elections and participating in political activities is a more stringent measure. Proponents argue it would act as a strong deterrent. Opponents raise concerns about the principles of proportionality of punishment and rehabilitation.
- Role of Political Parties: In Public Interest Foundation v. Union of India (2019), the Supreme Court directed political parties to publish the criminal antecedents of their candidates on their websites and in widely circulated newspapers and social media platforms, along with the reasons for selecting such candidates over others with a clean record. This aims to increase public awareness and put moral pressure on parties.

Role of Money Power and Electoral Funding

The escalating cost of elections is intrinsically linked to political corruption and the criminalization of politics.

Exorbitant Election Expenditure:
- Estimates by organizations like the Centre for Media Studies (CMS) suggest that the 2019 Lok Sabha election was the most expensive in the world, with an estimated expenditure of around ₹60,000 crores. This figure far exceeds the official spending by parties and candidates.
- Official Limits vs. Reality: The ECI sets legal limits on expenditure by a candidate (currently up to ₹95 lakhs for Lok Sabha and ₹40 lakhs for Assembly elections in larger states). However, anecdotal evidence and reports suggest actual spending is many times higher.
- Legal Loophole: A significant loophole exists in Section 77 of the RPA, 1951. An amendment in 1974 clarified that expenditure incurred by a political party or any other association/individual (other than the candidate or their agent) would not be included in the candidate’s election expenses. This allows parties to spend vast sums on general propaganda, rallies, and advertisements, which directly benefit the candidate but are not counted towards their individual limit.
Black Money and the Electoral Bonds Scheme:
- A large portion of election funding comes from unaccounted or “black” money.
- Pre-2017 System: Under Section 29C of the RPA, 1951, parties were not required to disclose the details of donors for contributions below ₹20,000. This provision was widely misused to break down large cash donations into smaller sums to avoid disclosure.
- Introduction of Electoral Bonds (2017-2024): The Finance Act, 2017 introduced the Electoral Bond scheme.
  - Mechanism: These were interest-free bearer instruments that could be purchased from specified branches of the State Bank of India (SBI) by any Indian citizen or company. The bonds could be donated to a registered political party, which could then encash them. The donor’s name was kept anonymous from the public and the ECI.
  - Amendments Made: The scheme involved amendments to the RPA, the Companies Act, 2013 (removing the cap that a company could donate only 7.5% of its average net profits of the preceding three years), and the Income Tax Act.
- Criticism of the Scheme:
  - Opacity: Critics, including the ECI and the Reserve Bank of India, argued that the scheme’s anonymity made political funding more opaque, not less. It was impossible for citizens to know which corporate entity was funding which party, undermining transparency.
  - Information Asymmetry: The anonymity was only for the public. Since the bonds were sold through a government-owned bank (SBI), the ruling party could potentially access donor information, creating a chilling effect on donations to opposition parties. ADR data showed that the vast majority of bonds went to the ruling party at the Centre.
  - Foreign and Shell Company Funding: Amendments to the Foreign Contribution (Regulation) Act (FCRA) and the Companies Act opened the doors for foreign companies and shell corporations to anonymously donate to political parties, raising national security concerns.
- Supreme Court Verdict (February 2024): In Association for Democratic Reforms v. Union of India (2024), a Constitution Bench of the Supreme Court struck down the Electoral Bond scheme as unconstitutional. The Court held that the scheme violated the citizen’s Right to Information under Article 19(1)(a) and that the non-disclosure of corporate funding was not a proportionate measure to curb black money. The Court ordered SBI to disclose all details of bond purchasers and recipient parties to the ECI.

Simultaneous Conduct of Elections

The idea of “One Nation, One Election” proposes restructuring the Indian election cycle so that elections to the Lok Sabha and all State Assemblies are held simultaneously.

Historical Context: India followed a system of simultaneous elections for the first four general elections until 1967. This cycle was broken due to the premature dissolution of some State Assemblies in the late 1960s (under Article 356) and later, the Lok Sabha itself in 1970.
Arguments in Favor:
- Cost Reduction: Proponents, including NITI Aayog and the Law Commission, argue that it would significantly reduce the enormous expenditure incurred on conducting separate elections every few months.
- Policy and Governance Continuity: Frequent elections lead to the imposition of the Model Code of Conduct, which stalls the announcement of new projects and policies, leading to “policy paralysis.” Simultaneous polls would provide governments with a stable five-year term to focus on governance.
- Reduced Political Populism: Parties would not be in constant campaign mode, which might reduce the tendency to announce populist (and often fiscally irresponsible) schemes just to win elections.
Arguments Against:
- Constitutional and Logistical Hurdles: The Law Commission of India, in its 21st report, pointed out that this would require amendments to at least five constitutional articles, including Article 83 (Duration of Houses of Parliament), Article 85 (Dissolution of Lok Sabha), Article 172 (Duration of State Legislatures), Article 174 (Dissolution of State Legislatures), and Article 356 (President’s Rule). It would also require a massive increase in the deployment of security forces and polling personnel.
- Undermining Federalism: A key concern is that national issues would dominate the electoral narrative, marginalizing regional and local concerns. This could benefit national parties at the expense of regional ones, thus weakening India’s federal structure. As observed by psephologists, Indian voters often vote differently in national and state elections.
- Accountability vs. Stability: Democracy involves continuous accountability. Frequent elections, while disruptive, force governments to be constantly responsive to the public mood. A single election every five years might reduce this accountability.
- Problem of Premature Dissolution: The proposal does not have a clear answer to what happens if a government loses its majority mid-term. Holding a state under President’s Rule until the next five-year cycle would be undemocratic. Alternatives like a ‘constructive vote of no-confidence’ are complex to implement.

Model Code of Conduct (MCC)

Nature and Origin: The MCC is a set of norms and guidelines, evolved with the consensus of political parties, which are to be followed during elections. It originated in Kerala in 1960 and was gradually adopted and refined by the ECI. It is not a statutory law.
Objective: Its primary purpose is to ensure a level playing field for all contestants, prevent the ruling party from misusing official machinery for electoral advantage, and maintain decorum and peace during the campaign.
Key Provisions: It prohibits hate speech, appealing to caste or communal feelings, using official resources for campaigning, and announcing new financial grants or promises once elections are declared.
Debate on Legal Status:
- A Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (2013) recommended giving the MCC legal backing by making it a part of the RPA, 1951, to make its provisions more enforceable.
- The Election Commission, however, has consistently opposed this. The ECI argues that the MCC’s strength lies in its swift application. The entire election process is completed in a short period (around 45-60 days). Making violations a legal offence would mean they would have to be tried in courts, a process that would take years, rendering the MCC ineffective for the duration of that specific election.
Impartiality of the ECI: The effectiveness of the MCC depends heavily on the impartiality and independence of the ECI. The appointment process for Election Commissioners has been a subject of debate.
- In Anoop Baranwal v. Union of India (2023), the Supreme Court ruled that the appointment of the Chief Election Commissioner (CEC) and Election Commissioners (ECs) should be done by the President on the advice of a committee comprising the Prime Minister, the Leader of Opposition in the Lok Sabha, and the Chief Justice of India.
- However, the Parliament subsequently passed the Chief Election Commissioner and other Election Commissioners (Appointment, Conditions of Service and Term of Office) Act, 2023, which replaced the CJI in the selection committee with a Union Cabinet Minister nominated by the Prime Minister, a move criticized for potentially compromising the ECI’s independence.

Use of Identity Politics and Populism

Religion and Caste in Elections:
- Section 123(3) of the RPA, 1951, defines an appeal by a candidate to vote or refrain from voting on the grounds of his religion, race, caste, community, or language as a “corrupt practice.”
- In the Abhiram Singh v. C.D. Commachen (2017) judgment, a seven-judge bench of the Supreme Court gave a wider interpretation to this provision, ruling that any appeal for votes on the basis of religion, caste, etc., of either the candidate or the voter, is a corrupt practice.
- Despite these legal provisions, implementation remains a challenge due to the deep-seated nature of identity in Indian society and the subtle ways in which such appeals are made.
Freebies and Competitive Populism:
- The trend of political parties promising “freebies” (free electricity, loan waivers, gadgets, etc.) to lure voters has raised concerns about its impact on state finances and the fairness of the electoral process.
- In the S. Subramaniam Balaji v. Govt. of Tamil Nadu (2013) case, the Supreme Court held that while promises in an election manifesto cannot be termed a “corrupt practice,” the ECI should frame guidelines for the same in consultation with political parties.
- The ECI has since proposed a format requiring parties to provide authentic information to voters on the financial viability of their manifesto promises, including how they will be funded.

Comptroller and Auditor General of India (CAG)

Constitutional Mandate: Article 148 of the Constitution establishes the office of the CAG of India, describing him as the “Guardian of the Public Purse.” He is appointed by the President and enjoys a security of tenure similar to a Supreme Court judge.
Role and Functions:
- The primary role of the CAG is to audit all expenditure from the Consolidated Fund of India and the states.
- The CAG audits the accounts of government companies and corporations (PSUs).
- He submits his audit reports to the President (or Governor), who then causes them to be laid before the Parliament (or State Legislature). These reports form the basis for the scrutiny of government spending by the Public Accounts Committee (PAC) of the Parliament.
Limitations and Criticisms:
- Post-Mortem Nature: The CAG conducts an audit after the expenditure has already been incurred. He can point out irregularities and wastage, but cannot prevent it. This has led to the criticism that his work is largely a “post-mortem.”
- Limited Scope in Line-Item Budgeting: Traditionally, Indian budgeting has been ‘line-item’ based, where funds are allocated for specific items. The CAG’s audit would primarily check if the money was spent on the allocated item (legality and regularity audit). While the CAG has increasingly moved towards performance and efficiency audits (to see if the money was spent well and achieved its objectives), the scope can still be limited.

Prelims Pointers

ADR Report (2019 Lok Sabha): 43% of elected MPs had declared criminal cases against them.
Vohra Committee Report (1993): Studied the nexus between criminals, politicians, and bureaucrats.
Lily Thomas v. Union of India (2013): Struck down Section 8(4) of the Representation of the People Act, 1951.
Section 8, RPA 1951: Deals with disqualification on conviction for certain offences.
Milan Vaishnav: Author of “When Crime Pays: Money and Muscle in Indian Politics”.
Election Expenditure Limits: Currently up to ₹95 lakhs for Lok Sabha and ₹40 lakhs for Assembly elections in larger states.
Section 77, RPA 1951: Deals with a candidate’s account of election expenses. A loophole excludes party expenditure from a candidate’s limit.
Electoral Bonds: Introduced by Finance Act, 2017. Issued by SBI. Struck down as unconstitutional by the Supreme Court in February 2024.
Simultaneous Elections: Held in India until 1967.
Constitutional Articles for Simultaneous Elections: Requires amendment to Articles 83, 85, 172, 174, and 356.
Model Code of Conduct (MCC): A non-statutory code of conduct evolved by the ECI.
Anoop Baranwal v. Union of India (2023): SC judgment mandating a selection committee (PM, LoP, CJI) for appointing CEC and ECs.
Section 123(3), RPA 1951: Defines appealing to religion, caste, etc., as a “corrupt practice.”
Abhiram Singh v. C.D. Commachen (2017): SC judgment providing a wider interpretation of Section 123(3) of RPA, 1951.
S. Subramaniam Balaji v. Govt. of Tamil Nadu (2013): SC case on election freebies.
Comptroller and Auditor General (CAG): Established under Article 148 of the Constitution.
Public Accounts Committee (PAC): Parliamentary committee that examines the audit reports of the CAG.

Mains Insights

Criminalization, Money Power, and Governance (GS Paper II):
- Vicious Cycle: The high cost of elections compels candidates to seek funds from dubious sources, including criminals. Once elected, these politicians may use their power to grant favors, bend rules, and protect their benefactors, creating a vicious cycle of corruption and criminalization. This nexus directly impacts governance by distorting policy-making in favor of vested interests and weakening the rule of law.
- Debate - Voter’s Choice or Systemic Flaw?: Is the election of criminal candidates a rational choice by voters in a weak state (as argued by Milan Vaishnav), or is it a failure of the political and legal system to provide clean candidates and swift justice? An effective answer should analyze both perspectives, concluding that it is a combination of both demand-side (voter behavior) and supply-side (political party behavior and institutional failure) factors.
Electoral Reforms: Incremental vs. Radical Change (GS Paper II):
- Incremental Reforms: Judicial pronouncements like the Lily Thomas case and ECI directives on asset and criminal record disclosure are examples of incremental reforms. They plug specific loopholes but may not address the root cause.
- Radical Reforms: Proposals like a lifetime ban on convicted politicians, state funding of elections, and simultaneous elections represent more radical, systemic changes.
- Analysis: It is crucial to analyze the feasibility and potential unintended consequences of radical reforms. For instance, while state funding of elections may curb the influence of black money, it may not eliminate it and could be a huge drain on the exchequer. A balanced approach combining incremental changes with a well-thought-out roadmap for systemic reforms is needed.
Simultaneous Elections: Federalism vs. Efficiency (GS Paper II):
- This is a classic debate between efficiency/stability and democratic principles/federalism.
- Arguments for Efficiency: Reduced cost, improved governance focus, and policy stability.
- Arguments for Federalism: The core argument against is the potential for national issues to overshadow regional ones, thereby undermining the federal spirit and the distinct political identity of states. It could lead to a ‘presidentialization’ of the political system.
- Way Forward: Instead of a ‘one-size-fits-all’ approach, a more practical solution could be to synchronize election cycles in phases or clubbing elections of certain states with the Lok Sabha polls, without forcing a rigid, nationwide simultaneity.
The Freebies Debate: Welfare vs. Populism (GS Paper II & III):
- Dichotomy: It’s essential to distinguish between genuine welfare measures that are part of a state’s directive principles (e.g., subsidies on food, health, education) and irrational populist promises made without fiscal consideration.
- Impact on Economy (GS-III): Unchecked competitive populism can lead to severe fiscal stress on state governments, diverting funds from essential capital expenditure and long-term development projects, and potentially leading to a debt trap.
- Role of Institutions: The role of the ECI, Finance Commission, and the judiciary is critical in creating a framework that promotes fiscal responsibility while allowing parties the democratic space to present their welfare agenda to the electorate. Making fiscal transparency of promises mandatory is a key step.
Independence of Institutions (GS Paper II):
- The effectiveness of all electoral and anti-corruption measures hinges on the independence and impartiality of key institutions like the Election Commission and the CAG.
- Recent controversies surrounding the appointment process of Election Commissioners highlight the potential for executive overreach. The judiciary’s intervention in the Anoop Baranwal case and the subsequent legislative action by the Parliament is a critical topic for analysis regarding the separation of powers and the health of India’s democratic institutions.

GS Notes