Criminalisation of politics

Topic: Electoral Reforms: Money, Criminalisation and Simultaneous Elections · NCERT: Class 8, Ch 5 "Universal Franchise and India's Electoral System"; Class 8, Ch 6 "The Parliamentary System: Legislature and Executive"; Class 10, Ch 4 "Political Parties"; Class 11, Ch 3 "Election and Representation"

Meaning

Criminalisation of politics means people who face criminal cases entering politics, contesting elections and winning seats in Parliament and state assemblies. The law makes candidates disclose their cases, and the Supreme Court makes parties publish why they chose such candidates. But only a conviction (a court finding the person guilty) disqualifies a candidate under Section 8 of the Representation of the People Act, 1951 (RPA). A pending charge (a case still in court) does not.

It matters because the share of Lok Sabha winners with declared criminal cases rose from 24% in 2004 to 46% in 2024. NCERT names criminal records as a challenge to free and fair elections.

Explanation

The legal gap: disclose, but not disqualify

• Disclosure means the candidate must tell the public facts about themselves, including criminal cases, assets (what they own), liabilities (what they owe) and education.
• Disqualification means being barred from contesting. It comes only after a conviction under Section 8, RPA.
• The result:
• A person charged with murder can still contest and win.

• Voters are told about the case, but the choice is left to them.

• NCERT Class 11 puts this as a debate: "Should a person accused of a serious crime be barred from contesting?"

Why parties pick such candidates

• The main reason is "winnability", meaning the chance of winning. Such candidates often bring:
• money to fund the campaign;
• caste networks that bring votes;

• local muscle (the power to frighten or control people).

• Root cause: the Vohra Committee (1993), led by Union Home Secretary N.N. Vohra, found a nexus (a close, secret link) between crime syndicates, politicians and bureaucrats.

How the size of the problem has grown (ADR data on Lok Sabha winners)

ADR (Association for Democratic Reforms) is a civil-society group that studies candidate affidavits.

Lok Sabha election	Winners with declared criminal cases
2004	24%
2009	30%
2014	34%
2019	43%
2024	46% (251 of 543); 170 with serious cases (such as murder, attempt to murder, rape or kidnapping)

• State level: in the 2020 Bihar Assembly election, eight parties' own reports to the ECI show 427 candidates with criminal antecedents (a record of criminal cases) [3].

Limits of the disclosure approach

• No checking: NCERT (Class 10) notes that "there is no system to check if the information given is true".
• Weak penalty: a false affidavit gets at most six months in jail under Section 125A, RPA [4].
• Formal compliance only: in the 2020 Bihar election, parties gave reasons such as "popular" or "social worker" for candidates charged with murder or attempt to murder [3].
• Numbers keep rising even after more than 20 years of disclosure. So the debate has moved from disclosure to disqualification.

In the Constitution and practice

Constitutional and legal base

• Article 19(1)(a) (freedom of speech and expression): the Supreme Court read the voter's right to know a candidate's background into it. A voter speaks through the vote, so the voter needs the facts first.
• Articles 102(1)(e) and 191(1)(e) let Parliament set grounds of disqualification by law. The RPA 1951 does this.
• Section 8, RPA 1951: disqualification on conviction.
• Section 33A, RPA: the candidate must disclose past convictions, and pending cases for offences punishable with two years or more where a court has framed charges (formally accused the person) [3].
• Form 26: a sworn statement (affidavit) that every candidate files with the nomination paper (the form a person files to become a candidate). It is filed under Section 33A, RPA 1951 read with Rule 4A, Conduct of Election Rules, 1961 [4]. It later added social-media accounts and PAN.
• Section 125A, RPA: failing to disclose, giving false information or hiding information is punishable with up to six months in jail, a fine, or both [4].

Stage 1: the right to know (disclosure)

• Vohra Committee (October 1993): set up after the Bombay blasts (March 1993). It proposed a nodal agency (one central office) under the Ministry of Home Affairs to act on the nexus.
• Only a summary was tabled in Parliament, in 1995.

• In Dinesh Trivedi v. Union of India (1997), the Supreme Court refused to order that the underlying material be made public.

• Union of India v. ADR (2 May 2002): the voter's right to know comes from Art. 19(1)(a). The Court directed the ECI to collect affidavits on criminal cases, assets, liabilities and education.

• Parliament pushed back (2002): first an ordinance (a temporary law made by the President when Parliament is not sitting), then the RP (Third Amendment) Act, 2002.

• Section 33B said the candidate need not disclose anything beyond what the Act asks, even if a court or the ECI orders it.

• PUCL v. Union of India (13 March 2003): the Court struck down Section 33B because it took away the voter's right under Art. 19(1)(a). Full disclosure was restored.

Stage 2: tightening disclosure

Case (year)	Principle
Resurgence India (2013)	Leaving columns blank in the affidavit can lead to rejection of the nomination.
Krishnamoorthy v. Sivakumar (2015)	Hiding criminal antecedents is "undue influence" on voters. This is a corrupt practice under the RPA, so the election can be set aside.
Lok Prahari (16 February 2018)	Candidates must disclose the sources of income of self, spouse and dependants. The Court called for a standing mechanism (a permanent body) to probe unusual growth in legislators' assets.

Stage 3: from disclosure to publicity

• Public Interest Foundation v. Union of India (Constitution Bench, 25 September 2018):
• Candidates declare their cases in bold letters and inform their party.
• Parties put the information on their websites.

• Candidates and parties publicise the cases three times in widely read newspapers and on TV channels.

• Rambabu Singh Thakur v. Sunil Arora (13 February 2020): the 2018 directions were not working, so the Court laid down binding steps for parties [2][3]. 1. What: the candidate's criminal record and the reasons for choosing that person over aspirants with no criminal cases [3]. 2. Reasons test: reasons must be about qualifications, achievements and merit. "Winnability" alone is not valid [3]. 3. Where: the party website, one local vernacular newspaper and one national newspaper, and the party's official social media [3]. 4. When: within 48 hours of choosing the candidate. In 2021 the Court added that it must be not earlier than two weeks before the first date of nominations [3]. 5. Compliance report: to the ECI within 72 hours of choosing the candidate [3]. 6. Penalty: the ECI reports a party that fails to the Supreme Court for contempt of court (disobeying a court's order) [3].

• How the ECI applied it [3]:

• Form C-7: the party publishes the record and the reasons.
• Form C-8: the party reports compliance to the ECI.
• Breaking these rules counts as failing to follow ECI directions under Paragraph 16A of the Election Symbols (Reservation and Allotment) Order, 1968, so the ECI can suspend or withdraw a party's recognition.

• ECI letter of 16 September 2020: candidates publicise their cases in three blocks of the campaign: the first four days after the last date for withdrawing nominations, the 5th to 8th days, and the 9th day until the campaign ends.

• Brajesh Singh v. Sunil Arora (10 August 2021): contempt over the 2020 Bihar polls [3].

• CPI(M) and NCP paid ₹5 lakh each because they filed no C-7 or C-8 at all.
• JD(U), RJD, LJP, INC, BJP and CPI paid ₹1 lakh each for partial compliance.
• New directions: a homepage caption "candidates with criminal antecedents"; an ECI mobile app with candidates' records; a voter-awareness campaign and fund (contempt fines go into it); and a separate ECI cell to monitor compliance.

Don't confuse with

• Disclosure vs disqualification: a pending charge only has to be disclosed (Section 33A). Only a conviction disqualifies (Section 8, RPA). A false affidavit under Section 125A also does not bring automatic disqualification.
• Section 33A vs Section 33B: PUCL (2003) struck down Section 33B (the "nothing more to disclose" clause). Section 33A (the list of what must be disclosed) still stands.
• Form 26 vs Forms C-7/C-8: Form 26 is the candidate's affidavit filed with the nomination. Forms C-7 (publication) and C-8 (compliance report) are filed by parties.
• Vohra Committee vs Goswami (1990) / Indrajit Gupta (1998): Vohra (1993) studied the crime–politics–bureaucracy nexus. The other two were about electoral reform and election funding.

Prelims Hooks

• The voter's right to know a candidate's background flows from Art. 19(1)(a), as held in Union of India v. ADR (2002).
• PUCL (2003) struck down Section 33B, not Section 33A.
• Section 125A, RPA: a false or hidden affidavit is punishable with up to 6 months in jail, a fine, or both [4]. It does not disqualify automatically.
• Krishnamoorthy (2015): hiding criminal antecedents is undue influence, a corrupt practice. Lok Prahari (2018): disclose sources of income of self, spouse and dependants.
• Rambabu Singh Thakur (2020): parties publish within 48 hours and report to the ECI within 72 hours. "Winnability" is not a valid reason [3].
• Trap: "A candidate against whom charges are framed is disqualified." False. Only conviction under Section 8, RPA disqualifies.

Mains Points

• Disclosure or disqualification?
• Disclosure respects the presumption of innocence (a person is innocent until proved guilty) and leaves the choice to voters.
• But ADR data (24% in 2004 to 46% in 2024) show that parties and voters still reward "winnability".

• This supports the Law Commission's 2014 proposal (chair Justice A.P. Shah) to disqualify a candidate once charges are framed, with safeguards [5].

• The courts acted where Parliament did not:

• The Court moved from ADR (2002) and PUCL (2003) to Rambabu Singh Thakur (2020) and Brajesh Singh (2021).
• Parliament's only response was to limit disclosure through Section 33B in 2002.

• This raises a separation-of-powers question and shows Parliament's reluctance to clean up politics.

• Giving disclosure teeth and tackling the root cause:

• For a false affidavit: a minimum of two years in jail, disqualification on conviction, and treating it as a corrupt practice (Law Commission, 2014; also demanded by the ECI) [5].
• Lok Prahari's standing mechanism to probe asset growth, and using Paragraph 16A of the Symbols Order against parties that do not comply [3].
• The money–muscle–politics nexus named by the Vohra Committee needs inner-party democracy, cleaner political funding and fast-track courts for cases against MPs and MLAs.

Related concepts

• Vohra Committee (1993)
• ADR case
• PUCL disclosure case
• Candidate affidavit
• Section 125A of the RPA 1951
• Lok Prahari case
• Rambabu Singh Thakur case

Read more

• Criminalisation of politics I: disclosure and the voter's right to know