Author: Grahit Mudgal, Parsandi Devi College of Law, Greater Noida, Uttar Pradesh
To the point
Criminalization in the politics in India means more politicians with criminal background entering in the politics. This is driven by nexus with criminals for muscle and money. With high cost of election and weak laws leading to corruption and eroding democracy. This article will briefly discuss the challenges and the legal framework to deal with it.
Use of Legal Jargon:
Article 14 – Equality before the law
Article 19 – Freedom of expression
Article 324 – Power of ECI
RPA 1951
Abstract
The criminalization of politics where individuals with pending criminal cases or criminal backgrounds contest and hold public office poses a serious challenge to the democratic framework of India. Despite constitutional guarantees and legislative efforts, the persistence of this problem highlights systemic gaps in legal norms, judicial interpretation, and political practice. This paper analyzes the evolution, causes, constitutional issues, legal framework, and reforms with a focus on key judicial pronouncements and institutional responses.
Introduction
Criminalization of politics refers to the entry and dominance of individuals accused of serious crimes in political processes and institutions. In India, data collected by civil society groups show that a significant proportion of elected legislators have pending criminal cases, including against members of the Lok Sabha and state assemblies. This phenomenon affects public trust, the rule of law, and democratic legitimacy, prompting both academic debate and judicial scrutiny.
Historical and Political Prospect:
Studies show that the presence of criminalized politicians has increased over successive election cycles. The growing trend stems from money, muscle power, weak party norms, and voter. behavior favoring strongmen
Milan Vaishnav’s seminal work When Crime Pays documents how political parties strategically field candidates with criminal charges because they are often perceived to have higher chances of winning.
The Vohra Committee Report (1993)
The Vohra Report documented the nexus between criminals, politicians, and bureaucrats, warning that criminals were increasingly integrated into political power structures.
Legal and Constitutional Framework:
Constitutional Provisions
India’s Constitution embodies democratic and rule-of-law values, including:
Article 14 – Equality before law
Article 19 – Freedom of expression and political participation
Article 324 – Powers of the Election Commission
However, the Constitution does not outright bar candidates with pending criminal charges from contesting elections; rather, disqualification is tied to conviction and sentencing.
Representation of the People Act, 1951
1. Disqualifies convicted persons for specified periods under Articles 102/191 read with Sections 8–8A.
2. Does not preclude individuals with pending cases unless convicted
This creates a constitutional tension between the democratic right to contest elections and the public interest in clean politics.
Judicial Interventions and Doctrines:
Supreme Court Directions
In Association for Democratic Reforms (ADR) cases, the Supreme Court has issued guidelines requiring:
Political parties to publicly disclose the criminal records of candidates.
Publication in newspapers and on social media.
Yet in Rakesh Kumar v. BJP (2018) and related judgments, constitutional benches have held that courts cannot bar a candidate with pending charges from contesting, stressing the presumption of innocence under criminal jurisprudence.
Doctrine of Constitutional Morality
Courts have invoked constitutional morality to balance individual rights with public welfare, urging the legislature to consider clearer standards on eligibility and political party responsibilities.
Legal Challenges
Presumption of Innocence vs. Electoral Integrity
The Constitution guarantees the right to contest and the presumption that an accused is innocent until convicted. This creates a legal barrier to pre-conviction disqualification, even for serious crimes.
Legislative Competence and Gaps
There is disagreement between the executive/ECI and the legislature on the extent of reforms permitted without amending the RPA. Government positions often emphasize parliamentary supremacy over judicial directives.
Enforcement Deficit
Even where courts direct compliance, enforcement is inconsistent. Contempt petitions against parties for non-compliance have at times been dismissed, pointing to a weak enforcement regime.
Constitutional Dilemmas
Free Speech and Political Participation
A strict ban on candidates with charges could raise Article 19(1)(a) and 19(1)(b) issues — freedom of expression and political participation.
Federal Balance
The Election Commission’s role and the Union-State divide in criminal justice enforcement (police/prosecution) further complicate synchronized reforms.
Policy Recommendations and Reforms:
Researchers and reform advocates propose:
Fast-track courts for political criminal cases to reduce pendency.
Stronger disclosure and information accessibility for voters.
Clear statutory qualifications tied to specific categories of crimes prior to conviction, subject to constitutional safeguards.
Political party code of conduct and internal democracy reforms.
Case Laws
1. Union of India Vs Association for Democratic Reforms
In this the Supreme Court held that the voters’ right to know is an aspect of the fundamental right to freedom of speech and expression (Article 19(1)(a)). Hence, the candidates must disclose criminal cases, assets, liabilities, and educational qualifications in affidavits. This will help in transparency and electoral accountability.
2. Lily Thomas Vs Union of India
In this the Supreme Court held that a person convicted and sentenced to two years imprisonment or more is to be disqualified immediately, without waiting for appeals.
3. Brajesh Singh Vs Sunil Arora and Ors.
Political parties were held in contempt for failing to publish criminal antecedents of their candidates as previously directed by the Supreme Court. The Court reiterated the importance of transparency to mitigate criminalization.
4. Dinesh Trivedi Vs Union of India
In this case the Supreme Court recognized the growing nexus between crime and politics as a threat to the electoral process, emphasizing the need for judicial and legislative solutions.
Conclusion
The criminalization of politics in India represents a complex challenge at the intersection of constitutional rights, legal norms, and democratic practice. While the judiciary has attempted to curb this trend through transparency and directive frameworks, core legal and constitutional constraints— notably the presumption of innocence and legislative competence—limit the extent of judicially imposed reform. Sustainable change will require legislative action, stronger enforcement, and a political culture that prizes clean governance.
FAQS
1. What does “criminalization of politics” mean?
It means individuals with criminal backgrounds (past or present) contesting elections and entering legislatures, often leveraging crime for power and criminals for votes, creating a dangerous link.
2. What are the consequences?
Erosion of public trust in democracy.
Distorted policy-making influenced by criminal interests.
Increased corruption and lack of accountability.
3. Why does it happen?
Politician-Criminal Nexus: Politicians use criminals for muscle power/funding; criminals seek political patronage and immunity.
Money Power: High election costs favor candidates with illicit funds.
Winnability: Parties sometimes field “winnable” candidates with criminal records, despite higher success rates for non-criminal candidates.
Systemic Weaknesses: Weak laws, slow judicial processes, and corrupt bureaucracy enable this.
4. What are the proposed solutions?
Banning convicted candidates from contesting (Public Interest Foundation v Union of India ruling).
Faster trials for politicians.
Strengthening laws against political corruption.
