The Nexus of Politics, Crime and Business

Four examples follow. The first is the one to remember: in certain States "these gangs enjoy the patronage of local level politicians, cutting across party lines and the protection of Government functionaries. Some political leaders become the leaders of these gangs ... and over the years get themselves elected to local bodies, State Assemblies and the national Parliament." The third contains the sentence that ties this chapter to the last: "The cost of contesting elections has thrown the politician into the lap of these elements."

Two further paragraphs are quoted in the Supreme Court's judgment of 2 March 2023 on the appointment of Election Commissioners, held at authorities/judgments/anoop-baranwal-2023.txt. Paragraph 3.2 traces the money: in the bigger cities the main source of income is real estate, forcibly occupying land and buildings, and "the money power thus acquired is used for building up contacts with bureaucrats and politicians" and to build "a network of muscle-power which is also used by the politicians during elections." Paragraph 3.3 states the conclusion: "The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. The existing criminal justice system, which was essentially designed to deal with the individual offences/crimes, is unable to deal with the activities of the mafia."

That last sentence is the reason the problem is a constitutional one and not merely a police one. An ordinary criminal law prosecutes an offender. It has nothing to say about a system in which the offender is also the legislator.

What the data shows

Every figure below is the Two Hundred and Forty-Fourth Report of the Law Commission of India, "Electoral Disqualifications", as its findings are set out in the judgment in Public Interest Foundation. The Commission's own report has not been read for this book. No figure is given here that is not in that judgment, and none should be added from memory.

Over the ten years from 2004, 18 per cent of the candidates contesting national or State elections had criminal cases pending against them, 11,063 out of 62,847. In 5,253 of those, being 8.4 per cent of all candidates analysed, the charges were of serious offences carrying five years or more on conviction. Of those 5,253, 1,187 won, which was 13.5 per cent of the 8,882 winners analysed; counting serious and non-serious charges together, 2,497 winners, 28.4 per cent of them, had 9,993 cases pending.

For sitting members: in the Lok Sabha then sitting, 30 per cent, or 162 members, had criminal cases pending, about half of them serious. The proportion had risen from 24 per cent in 2004 to 30 per cent after the 2009 election. In the State Assemblies, 1,258 of 4,032 sitting members, 31 per cent, had cases pending, and in Uttar Pradesh the figure was 47 per cent.

One number matters more than all the others. On the Commission's data, 12 per cent of candidates with a clean record win on average, and 23 per cent of candidates with a criminal record win. A criminal record is not a handicap at an Indian election. It is an advantage, and until that is untrue no rule about disclosure will fix anything.

What the Constitution actually provides

Very little, and knowing exactly how little is the point of the topic.

Article 102(1) disqualifies a person from being chosen as, or being, a member of either House of Parliament on five grounds: an office of profit under clause (a), unsoundness of mind under (b), undischarged insolvency under (c), loss of citizenship or allegiance to a foreign State under (d), and "if he is so disqualified by or under any law made by Parliament" under clause (e). Article 191(1) is in the same terms for a State Legislature. Neither mentions crime.

So a disqualification for criminality can only come from a law made by Parliament under clause (e), and Parliament has made one that bites on conviction, not on accusation. Since a trial of a sitting member can take longer than his term, the disqualification arrives, if at all, after the harm is done. The other constitutional lever is article 324, which vests the superintendence, direction and control of elections in the Election Commission; but superintendence of an election is not a power to decide who is fit to contest it.

The case

Facts. Public Interest Foundation v. Union of India, AIR 2018 SUPREME COURT 4550, 2019 (3) SCC 224, decided on 25 September 2018 by a Bench of five. A batch of petitions asked the Court to direct that a person against whom a charge had been framed for a serious offence be barred from contesting. The question referred to the Constitution Bench was "whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by the Parliament under Article 102(e)."

Held on the power to disqualify. No. "Though criminalization in politics is a bitter manifest truth, which is a termite to the citadel of democracy, be that as it may, the Court cannot make the law." Directions of the kind sought were "not constitutionally permissible", because "the judicial arm of the State ... cannot usurp the power which it does not have."

Held on what should be done instead. The Court "recommend[ed] to the Parliament to bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set up such persons in elections." It added that "a time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream."

Held on disclosure. Five directions were issued: each candidate must fill the Election Commission's form completely; the form must state "in bold letters" the criminal cases pending against him; a candidate contesting on a party ticket must inform the party of them; the party must publish that information on its website; and both candidate and party must declare the antecedents in widely circulated local newspapers and give wide publicity in the electronic media, at least three times after nomination papers are filed.

Why it matters. It is the case that marks the boundary. The Court accepted the whole of the factual case for reform, set out the Law Commission's data at length, called criminalisation "a termite to the citadel of democracy", and then held that it could not add a single disqualification, because articles 102 and 191 reserve that to Parliament. What is left is publicity. A student who writes that the Supreme Court has barred charged persons from contesting has the case exactly backwards.

The remedies proposed, and what is wrong with each

Disqualification on the framing of a charge. The main proposal, and the one the Court declined to impose. In its favour: conviction comes too late. Against it: a charge is not proof, and in a system where false cases are filed, a rule triggered by a charge hands a weapon to whoever controls the police. The Court noticed the objection in terms, saying that false cases "can be addressed by the Parliament through appropriate legislation".

Making parties refuse tickets to charged persons. The recommendation actually made in Public Interest Foundation. It puts the duty on the party rather than the candidate, which is where the incentive sits, since the Commission's data show that parties field such candidates because they win.

Disclosure. In force, and the only remedy a court could deliver. Its limit is stated by the Commission's own figures: voters who know still elect.

Fast-track courts for cases against legislators. Attacks the delay rather than the eligibility, and needs no constitutional change.

Cleaning up funding. Dealt with in [The Funding of Elections]. If the Vohra Committee is right that the cost of contesting elections throws the politician into the lap of criminal elements, then election finance is not a separate topic from this one.

A worked example

Sunil has been charged with a serious offence and the charge has been framed. He files his nomination for a Lok Sabha seat, disclosing the case in the form. His party gives him a ticket and puts the case on its website. A rival petitions the High Court to reject his nomination.

Step one, is he disqualified? Look at article 102(1). Not under (a) to (d). Under (e), only if a law made by Parliament disqualifies him, and the law bites on conviction. He is not disqualified.

Step two, can the court supply the disqualification? No, on Public Interest Foundation: the Court cannot lay down a disqualification beyond article 102(a) to (d) and the law made under (e).

Step three, has anyone broken any rule? No. The disclosure directions have been complied with, by both candidate and party.

Step four, so what is the remedy? Publicity and the vote. That is a genuine answer and it is also the point of the topic: on these facts the constitutional system has worked exactly as designed, and the outcome is still that a person facing a serious charge may sit in Parliament.

Step five, what would change it? A law made by Parliament under article 102(1)(e). Nothing else will, and no court will make one.

What it does NOT mean

It does not mean a charged person is barred from contesting. He is not. Only conviction disqualifies, under the law Parliament has made.

It does not mean the Election Commission can refuse him. Article 324 gives superintendence over the conduct of elections, not a power to add qualifications for candidates.

It does not mean the courts have done nothing. They have made disclosure a fundamental right of the voter under article 19(1)(a) and enforced it against Parliament's attempt to cut it back, treated in [The Voter's Right to Know].

Quick revision

• "The nexus of politics, crime and business" is MU's own phrase, set twice on the eleven printed papers this book was built from.
• Vohra Committee: constituted 9 July 1993, report submitted 5 October 1993, chaired by Union Home Secretary N.N. Vohra. Known here only through the passages quoted in Supreme Court judgments.
• Its findings: criminal gangs with an extensive network among bureaucrats and politicians; leaders of gangs elected to local bodies, Assemblies and Parliament; "the cost of contesting elections has thrown the politician into the lap of these elements"; the ordinary criminal justice system cannot deal with the mafia.
• Law Commission's 244th Report, as set out in Public Interest Foundation: 18 per cent of candidates from 2004 to 2013 had cases pending, 11,063 of 62,847; 2,497 winners, 28.4 per cent, had 9,993 pending cases; 162 sitting Lok Sabha members, 30 per cent; 1,258 of 4,032 sitting MLAs; 12 per cent of clean candidates win against 23 per cent of those with a record.
• Articles 102(1) and 191(1) name five disqualifications and none is criminality; clause (e) leaves it to Parliament, whose law bites on conviction.
• Public Interest Foundation (2018): the Court cannot lay down a disqualification beyond article 102(a) to (d) and the law under (e); "the Court cannot make the law"; five disclosure directions issued; Parliament recommended to legislate on tickets for charged persons.
• Remedies: disqualification on framing of charge, party-level bans, disclosure, fast-track trials, funding reform. Each has a stated objection.

Test yourself

1. Describe the three corners of the nexus and say which constitutional provision addresses each.

2. What did the Vohra Committee find about the cost of elections, and what follows for the law on election funding?

3. Why could the Supreme Court not disqualify candidates against whom charges have been framed? Give the article and the reasoning.

4. Set out the five directions issued in Public Interest Foundation.

5. "The data shows that disclosure has failed." State the figures you would use, and say what they do and do not prove.

6. Draft the case for and against disqualification on the framing of a charge.