Voter’s Right to Know– disclosure of candidate’s criminal antecedents
Sai Krishna Muthyanolla
March 21, 2020
The Supreme Court recently directed political parties to disclose reasons for selection of candidates with pending criminal cases. However, like the previous directions of the Supreme court, these are not really making any difference. Here is why.
In a recent judgement passed by the Supreme Court (SC) on13 February 2020 in Public Interest Foundation vs Union
Of India, politicalparties have been directed to publish criminal antecedents of contestingcandidates along with reasons for fielding each one of these candidates,notwithstanding their ‘winnability’. The Election Commission of India (ECI) hasalso issued a directive to implement the apexcourt’s orders concerning criminal antecedents of candidates.
While the judgement is a step towards ensuring accountability andtransparency in politics, the SC has issued similar directions over the pastfew years. In this article, we take a stock of the major judgements deliveredby courts, important reports on electoral reforms and persistent challengesagainst the growing criminalisation of politics in India.
Data on Criminalisation of Politics
The Association for Democratic Reforms (ADR), established in 1999, hasbeen conducting detailed analysis of the backgrounds of candidates contestingelections. ADR has conducted Election Watches for almost all state andparliament elections in collaboration with the National
Election Watch.In ADR’s report for Lok Sabha 2019 elections titled ‘Analysis of Criminal Background,
Financial, Education, Gender and other details of Winners’, the trend in winners with declaredcriminal cases has been recorded for 3 consecutive Lok Sabha elections.
Lok Sabha 2019: Out of the 539 winners analysed for Lok Sabha2019, 233 (43%) Winners have declared criminal cases against themselves. 159(29%) winners have declared serious criminal cases including cases related torape, murder, attempt to murder, kidnapping, crimes against women etc.
The chancesof winning for a candidate with criminal cases in the Lok Sabha 2019 elections were 15.5% whereas for acandidate with a clean record it is 4.7%.
Lok Sabha 2014: Out of the542 winners analysed during Lok Sabha 2014 elections, 185 (34%) winners have declared criminal cases againstthemselves. 112 (21%) winners have declared serious criminal cases includingcases related to murder, attempt to murder, communal disharmony, kidnapping,crimes against women etc.
The chancesof winning for a candidate with criminal cases in the Lok Sabha 2014 elections were 13% whereas for acandidate with a clean record it is 5%.
Lok Sabha 2009: Out of 521 winners analysed during Lok Sabha 2009elections, 158 (30%) winners had declared criminal cases against themselves. 77(15%) winners had declared serious criminal cases against themselves.
During thelast few decades, several committee reports have also pointed out the growingcriminalisation of Indian politics and its implications. Starting with Goswami Committee on Electoral
Reforms (1990) that addressed the need to curb the growing criminal forces in politics, thereport of Vohra Committee Report (1993) reveals several alarming and deeplydisturbing trends. It referred to several observations made by officialagencies, including the CBI, IB, R&AW, who unanimously expressed theiropinion on the criminal network which was virtually running a parallelgovernment. The Committee also took note of the criminal gangs who carried outtheir activities under the aegis of various political parties and governmentfunctionaries. The Committee further expressed great concern regarding the factthat over the past few years, several criminals had been elected to localbodies, State Assemblies and the Parliament.
On various occasions, the courts have also recognised that the nexusbetween politicians, bureaucrats and criminal elements in our society has beenon the rise, the adverse effects of which are increasingly being felt onvarious aspects of social life in India. In the 18th Report presented to the Rajya Sabha on 15March 2007, by the Parliamentary Standing Committee on Personnel, PublicGrievances, Law and Justice on Electoral Reforms acknowledged the existence ofcriminal elements in the Indian polity which hit the roots .
Major Judgements on Voter’s Right to Know
What determines Electoral Disqualifications?
Section 8 of The Representation of People
Act, 1951(RPA) outlines criteria for disqualification of contesting candidatesfrom membership to Parliament and State Legislature. The sectionelaborates on the criteria for disqualification if the candidate is convictedfor certain offences such as corruption, rape, terrorism, etc.
In 1999, the 170th Law Commission Report on Electoral Reforms was the firstto suggest that a new Section 4A be added to the Representation of the People Act,
1951 mandating that a person shall be ineligible to contest elections unless theyfile an affidavit declaring their assets along with a declaration whethercharges had been framed against them by a criminal court.
In 2002, the Association of Democratic Reforms petitioned the Court tohave the above recommendation implemented, among others. In pursuance of the historicjudgment, the Election Commission issued directives to the effect that failureto file an affidavit containing the above details would result in thenomination paper being deemed incomplete within the meaning of Section 33(1) of the RPA and, therefore, lead tothe rejection of candidate’s nomination papers.
Later that same year, the RPA was amended to add Sections 33A and 33B. Togetherboth the section implied that the no candidate shall be liable to disclose anyinformation other than their criminal antecedents. In other words, directionsof the Supreme Court regarding further disclosure of assets and educationalqualifications stood reversed by this amendment. In 2003, Section 33B was struck down as
unconstitutional in PUCL v. Union of India as it imposed a blanket ban on the dissemination of information. Thecandidates now had to furnish information relating to all pending cases inwhich cognizance has been taken by a Court, his assets and liabilities, andeducational qualifications.
After the 2002 judgement made it mandatory to disclose all criminalantecedents, the practice of leaving blank spaces or filling incorrectinformation in affidavits and nomination papers became commonplace. In order toavoid perjury, candidates would not furnish any information on crucialquestions relating to criminal history or assets. This practice was challengedlater. As stated in the EC’s Report no. 244 on Electoral
Disqualifications, while the 2003 PUCL judgment clarified the obligations of a candidatewith respect to the furnishing of information, it was less clear on theconsequences if the information provided happened to be false. It held that aReturning Officer could not reject nomination papers on the ground thatcandidate information was false. As a result of this finding, the ElectionCommission ordered its earlier directive on the rejection of nomination papersnon-enforceable.
It instead directed that if a complaint is submitted regardingfurnishing of false information, the Returning Officer should initiate actionto prosecute the candidate under Section 125A of the RPA which provides penaltyfor filing false affidavits. However, Section 125A of the RPA has not beenincluded in the list of offences under Section 8 of the RPA – which outlinescriteria for disqualification of election candidates. There is no readilyavailable data on the count of candidates prosecuted for filing falseinformation, though there seem to be no reported conviction on this crime, thereport highlights.
Therefore, filing of false information, even if proved under Section125A, is not a ground for setting aside the election, or for furtherdisqualification. This matter was in question in several cases, such as Nand Ram Bagri v. Jai Kishan (7 May 2013, Delhi High Court), Arun Dattaray Sawant v. Kishan Shankar Rathore (9 May 2014, Bombay High Court), Krishnamoorthy v. Siva Kumar (5 February 2015, Supreme Court),among others. From these judgements, the report argues that one can concludethe following:
This undermines the value of candidate disclosures – due to the lack ofconsequences, candidates have little incentive to provide accurate information.It has been noted by the EC that candidates have repeatedlyfailed to furnish information, or grossly undervalued information such as thequantum of their assets.
Does the 2018 judgement propose any major
changes?
The 2018 judgment issued  the following five ‘directions’ to theElection Commission:
It is important to note that, in the 2018 judgement, the Court did notentertain the petitioner’s second request, which called for Section 125A to fall under the ambit of Section 8 of The Representation of
People Act.In other words, to automatically disqualify candidates who file falseaffidavits. The Court did not entertain the plea citing separation of powersand recommend the parliament to make a law that prevents candidates accused ofserious crimes from entering politics.
While candidates have been required to submit details of their criminalcases to the poll panel through an affidavit from the 2002 judgement onwards,the 2018 judgement expands the scope by making it necessary to publish thisinformation on party website, newspaper and television channel.
In the current 2020 judgement, the only new addition is that nowpolitical parties have to state reasons for fielding candidates with criminalbackground, other than ‘winnability’.
However, the judgement or the EC did not outline how the publication ofinformation will be monitored or ensured that it is followed rigorously. Theenforceability of such orders by the apex court has remained a complex matter dueto the lack of well-defined parameters to ensure compliance. Whether politicalparties will publish the criminal antecedents of their candidates on theirwebsites, local and national newspaper, and social media accounts is a mootpoint.
Generalistic explanations are the order of the
day
While the idea is to push for accountability from political parties, the2020 judgement adds little value to the existing pool of available informationand provides avenue for vague and generalistic explanations.  For instance, let’s take a look at recentpublication of mandated C-7 forms by different political parties. There is acommon thread in all the published forms – BJP’s publication of Amit Popatlal Shah’s form for Rajya Sabha elections,INC Rajasthan’s publication of K.C. Venugopal’s form for Rajya Sabha elections,INC Madhya Pradesh’s publication of Digvijaya Singh’s form for Rajya Sabha elections,and INC Jharkhand’s publication of Shahzada Anwar’s form for Rajya Sabha elections.All the publications have stated that the concerned candidate is experienced,suitable, and worthy of the given candidature owing to their experience andstature. On the question of why these candidates with criminal background were chosenover other candidates without criminal background, all the answers havehighlighted that the criminal charges are politically motivated.
The new information adds little value
These answers add little value to the existing pool of information availableon the criminal antecedents of contesting candidates. The most important issuesof submission of inaccurate and incomplete information by contesting candidatesis likely to improve with wider publication of candidate information on variousplatforms. While the recent judgement is the right step towards increasingaccountability and transparency, reduction in criminalisation of politics and thecontinued challenge of monitoring and compliance have not been addressed.