The data on the election petitions filed across the general elections does not show any uniform trend. However, 2019 elections saw 130 election petitions filed, the highest ever among all general elections. This is followed by 110 election petitions in 2009 elections. On average, more than 60 election petitions were filed in each of the general elections to the Lok Sabha.
In this series of stories on Indian Elections, our focus is to bring out some important, yet less covered aspects of the elections, and their trends over the last 17 Lok Sabha elections. The first part focused on independent candidates, while the second part focused on overall contestants, deposits forfeited
In this third part, we look at another crucial aspect of electoral process- disqualifications of candidates, both by way of electoral petitions and conviction in criminal cases.
Disqualifications as a tool to ensure competence among all candidates.
One of the most important and essential features of democracy is the power of its members to choose people in whom the sovereign power rests. This is facilitated through an electoral process that is fair and transparent, by right to vote. Despite all the regulations, no election process can be perfect. From technical issues to the candidate profiles, majority of elections are marred by some or the other issues.
Among all of them, the fairness of the candidate is a crucial marker as elections are about electing the most competent candidate among the contenders. Certain competence standards are prescribed in terms of qualifications and disqualifications in all election laws. For instance, if the person had indulged in corruption and gets convicted, if the person holds office of profit and so on, they would not be eligible for membership to legislature.
Disqualifications usually happen in two scenarios- first being through election petitions and the second one being through conviction in criminal cases. While both processes face inordinate delays, disqualification through election petition is immediate, whereas disqualification through conviction is dependent on the quantum of punishment.
Election petitions to maintain integrity of electoral process.
Elections represent the quest for political influence, where the stakes are remarkably high. Even a slight shift can dramatically alter the prospects of those involved. Given these high stakes, candidates themselves serve as safeguards, preventing the occurrence of fraud, thereby ensuring the integrity of the electoral process.
Article 329(b) of the Constitution outlines the procedure for presenting an election petition to the designated authority as prescribed by law. Initially, Article 324(1) of the Constitution stated that the Election Commission of India (ECI) would appoint election tribunals to resolve election-related disputes. Consequently, section 80A of the Representation of the People Act (RPA), 1951 mandated that all election petitions to be tried by High Courts. The intention behind this shift was to expedite the resolution of election petitions, as reflected in section 86(7), which aims to conclude trials within six months. Additionally, section 81(1) of the RPA sets a 45-day time limit for the submission of an election petition.
In recent times, the election petitions have tended to become weaponized as losing candidates do not hesitate to file election petitions, thereby increasing the judicialization of electoral processes. This also seems to be happening because the benefits of filing election petition outweigh the costs.
2019 saw highest number of election petitions filed among all Lok Sabha Elections
In the previous stories, we have seen how there is proliferation of political parties and contestants. As a result of this, chances for election frauds are high. The data on the election petitions filed across the general elections does not show any uniform trend. However, 2019 elections saw 130 election petitions filed, the highest ever among all general elections. This is followed by 110 election petitions in 2009 elections.
Despite the stipulated six months for the completion of trial, there is a significant delay in the adjudication of election petitions. As per a response given by the Government in the Parliament in August 2023, sometimes the adjudication happens near to or after the completion of the term of the elected member, example being the disqualification of BRS MLS Vanama Venkateswara Rao’s 2018 membership in 2023, less than six months before the completion of the term. The Law Commission of India in its 255th report on Electoral Reforms also highlighted the inordinate delays and called for constitution of a separate election bench in each High Court.
Criminalization of Politics poses a challenge to the integrity of electoral processes.
Despite the noble intentions of the Constitution’s framers during the early days of the Indian Republic, concerns about the connection between crime and politics were frequently voiced. Interestingly, analysts have observed a shift in the nature of this relationship during the 1970s. Rather than politicians being suspected of ties to criminal organizations, as was previously the case, individuals with significant criminal histories started to enter the political arena.
Post the apex court judgement in 2002 in Union of India vs. Association for Democratic Reforms, the candidates were required to disclose criminal antecedents during the nomination process. As a result, it could be seen that around 24% of the contestants had pending criminal cases pending against them in 2004, which further rose to 30% during the 2009 elections. This gradually declined, reaching 16% till the Phase-I of the 2024 elections. This trend of criminalization of politics and its effect on the integrity of elections is persistently highlighted by multiple bodies of the Government.
Backlog of criminal cases act as a barrier for disqualifications.
Disqualification of any elected representative to the assembly or parliament requires a conviction in criminal cases. For certain offences as emulated in section 8(1) of the Representation of Peoples Act, 1951 such as electoral offenses, offenses related to terror laws, and narcotics, the disqualification is irrespective of the quantum of punishment. Whereas for certain offences under section 8(3) of the same act, disqualification is dependent on the quantum of punishment, even after conviction.
As per the data provided in the Supreme Court, the number of pending criminal cases against MPs and MLAs was 4122 in December 2018, which grew to 4974 in December 2021. As of November 2022, a total of 5175 cases are registered out of which 2116 cases are pending for more than 5 years. That is, 40% of the cases are pending for more than five years.
A total of 2018 cases were decided in 2023 out of the total 4697 pending cases as of January 2023. Further, 1746 fresh cases were filed, taking the total tally to 4472 as of January 2024. Such high pendency of criminal cases severely affects the integrity of electoral processes.
