Saving India’s vibrant democracy from criminal smudges: A legislation is justified

  • Abhishek Iyer

Constitutional functionaries who pledge to uphold constitutional framework from the smudges of corruption, tend to disrupt the very ethics when criminalization strikes politics. Lack of concrete legislation, however, makes it impossible to regulate such practices which should be absolutely disallowed. Elections have grown increasingly expensive while political parties are growing weaker with lack of funds. The Constitution bench of Hon’ble Supreme Court in Public Interest Foundation vs Union Of India[1]  took cognizance of this widely debated issue and directed the State to frame a law that makes it obligatory for political parties to remove candidates charged with “heinous and grievous” crimes and refuse ticket to offenders in both parliamentary and Assembly polls. Contesting elections and winning a seat gives politicians a certain degree of protection while opening up a new illegal set of money-making opportunities. You may say it’s wrong and such people shouldn’t be allowed to contest, but how to enforce?

The court emphasized on cleaning Indian political system while mentioning “Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay and India is in desperate need of such legislation.” Over the years we’ve noted significant changes and effect on the functioning of Indian democracy because of the criminal smudges possessed by our elected representatives. Association for Democratic Reforms [2] in its report found 43% of the newly elected MPs having criminal background after 2019 Lok Sabha elections, of which 18% had serious crimes. This means, a steep 24% increase to what was after the 2014 elections. When the data speaks for itself and sets a bad precedent every election, we almost think if citizens deserve such leaders representing them?

Three ‘F’ for Citizens: Free, Fair & Faithful elections

Democracy is a continual participative operation and not something limited to a cataclysmic periodic exercise. Credibility is the life-blood of institutions in a democracy, as they say. The little man, in his multitude, marking his vote at the poll does a social audit of his Parliament plus a political choice of this proxy. [3] Every citizen holds a right to vote [4] and it is right of the voters to know about the past history including criminal records of the candidate contesting elections. Political parties form the government and man the parliament.[5] The citizens should be ensured of enough information and resources to make an “informed choice”, candidates, in turn, should foster and nurture such citizenry. It is important to ensure that crime-politics nexus is zeroed by enforcing the political parties to work with “true faith” and strive to uphold the allegiance of our constitution.

It is disheartening to see that important seat at the Parliament being treated as a paradise for criminals who look for unreasonable means of earning money, and further escape the legal scrutiny by unruly use of power. It is widely noted that “If the people who are elected are capable and men of character and integrity, then they would be able to make the best even of a defective Constitution. If they themselves are lacking in these, the Constitution cannot help the country. After all, a Constitution like a machine is a lifeless thing. [6] It acquires life because of the men who control it and operate it.Ranging from expedite trials of cases or compulsory declaration in a more efficient and transparent manner, India looks up to a lot of these alternative mechanisms to remove any criminal factors entering politics. The electorate should be made aware of the role the elected representatives play in order to ensure a vibrant democracy.

It is believed that any malignancy can be cured. Out in out, Criminalisation of politics is fatal but of course not incurable. In India particularly where there is so much scope of development and improvement, our resources are not put to optimum use because of incapable representatives. The current law limitation which bars convicted candidates from contesting, comfortably ignores the ones being charged and still under trial. Hon’ble Justice Dipak Mishra observed on this very point that, “It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law-making should be above any kind of serious criminal allegation.” Though the essence of criminal jurisprudence clearly describes a man to be innocent until proven guilty but a law barring someone from contesting based on allegations will be fair because it only clarifies the type of persons who are suitable for holding representative public office in India. All of this leads us to restore faith and dignity in the process of election and governance among citizens. In a situation where people largely have no faith and walk along with the assumption that nothing’s going to improve in India, a law disqualifying candidates having criminal background will be justified. It is only imperative for our legislation to act before the situation worsens.

The author is a 3rd Year Student of GNLU, Gandhinagar

  1. Public Interest Foundation vs Union Of India, W.P. (Civil) 536 of 2011.
  2. ADR, Lok Sabha Elections 2019 Analysis of Criminal Background, Financial, Education, Gender and other details of Winners, https://adrindia.org/content/lok-sabha-elections-2019-analysis-criminal-background-financial-education-gender-and-other (Last visited: 20th October, 2019).
  3. Mohinder Singh Gill & Anr vs The Chief Election Officer, 1978 AIR 851.
  4. Const Art. 326.
  5. Association For Democratic vs Union Of India, AIR 2001 Delhi 126.
  6. 244Th Report On Electoral Disqualifications, Law Commission of India.

Maharastra’s Bout of Political Drama and the Constitutional Crisis

  • Ashwin Bala Someshwerar

The appalling events that took place after the state assembly election in Maharastra posed a major threat to democracy as the news reports abashed the political parties of their alleged involvement of buying and selling of lawmakers, and the brazen attempt to subvert political and ethical norms. Some have even fathomed that India tote with the world’s largest democracy is losing its integrity. The homeostasis of Indian Polity was disturbed, and the constitution was fumbled with.

The facts leading to the unbecoming events in nutshell are there was a pre-poll alliance between BJP and Shiv Sena. The former couldn’t form the government immediately after the declaration of results as its alliance with the latter broke down. No party was able to maneuvre the majority in the house, thus the Governor recommended President’s Rule, and a presidential proclamation was made on 12.11.19. News spread about the grand alliance of the Maha Vikas Aghadi. On 23.11.19 the President’s Rule was revoked and BJP was invited to form the government by the Governor. Keeping aside the political power play, it would be more relevant to reflect upon the constitutional implications.

This constitutional crisis raised questions on the unscrupulous powers exercised by the Governor under the constitution. Like a big brother stepped in the Supreme Court of India – after a writ petition[1] which was filed by the Maha Vikas Aghadi[2] – to awaken the constitutional morality from the nightmares of political drama. True that the boundaries between the jurisdiction of courts and Parliamentary independence are a contentious one, this situation is not new to the Indian judiciary and was handled with utmost regard to the rule of law.

The petition before the Supreme Court seeking for a declaration that the Governor’s action was unconstitutional, arbitrary, void ab initio. The crucial prayers were with regard to the interim measures seeking the court’s direction to summon a special session with the only agenda administering the oath to the MLAs, immediately followed by the holding of a floor test. Further, this was also sought to be video recorded following various decisions of the SC.[3]

The case for the Petitioners was argued by renowned Senior advocates[4] who vehemently submitted that the Governor’s acceptance of BJP’s proposal to form the government with a post-poll alliance with a faction of NCP reeked of mala fide, and the Governor turned a blind eye to the legality of the alliance. Amidst these fiery arguments, the learned Solicitor General prima facie raised an objection as to the interference of the House proceedings by the Court as per Article 212 of the Constitution. Further, the Governor was satisfied with the material placed before him and wasn’t obligated to conduct a roving enquiry. Various other submissions were made with regard to the Governor’s independence, and the Court’s lack of authority under Article 32 of the Constitution.

The Court felt that this political drama raised “questions concerning important constitutional issues touching upon the bulwark of our nation”[5], and also the need to “uphold democratic values and foster constitutional morality.”[6] Albeit, aware of the institutional boundaries, the court placed reliance on its own previous decision which held that the Supreme Court being “the sentinel on the qui vive of the Constitution is under the obligation to see that democracy prevails…”[7], the Court felt the exigency to prevent the delay of the floor test to protect democratic values, failure of which would pave way for horse-trading. It is also pertinent to note that not a year has elapsed since the Karnataka Political power play, wherein the SC jumped in and emphasized the requirement of imbibing constitutional morality by the constitutional functionaries.

This situation is not new to the Indian Democracy or its Constitution. The imperativeness of a floor test was challenged  in various cases before the courts, and there is a galore of judgments following a Supreme Court holding that “it is the Legislative Assembly that represents the will of the people and not the Governor.”[8] The Supreme Court nonetheless in the present case was equipped with a catena of precedents ordering an emergent floor test notwithstanding its interference with the House proceedings.[9] Most importantly, the application of Article 212 to the present case was shied away from the ground that neither any proceedings of the Legislature nor an act of any officer or member of the legislature has been made the subject matter of the petition.

The Court requested the Governor to conduct a floor test and laid down a procedure for the same. The Governor is ought to follow such order not because he is bound by the SC[10] but it is the constitutional mandate that he cannot refuse the formation of the government by a majority claim. Being a constitutional functionary having utmost regard to constitutional morality, it is incumbent upon the Governor that this action should be taken without any undue delay which would pave way for horse-trading. The constitution does not envisage unscrupulous discretion to the Governor.

The author is a 4th-year B.Com LL.B student from TNNLU, Tiruchirapalli


[1] Shiv Sena & Ors. v. Union of India, WP No. 1393 of 2019, available at: https://www.sci.gov.in/pdf/ORD_2.pdf.

[2] The post poll alliance formed by Shiv Sena, NCP and INC.

[3] Jagadambika Pal v. Union of India, (1999) 9 SCC 95; Union of India v. Harish Chandra Singh Rawat,

[4] Mr. Kapil Sibal and Dr. A.M Singhvi.

[5] Shiv Sena & Ors. v. Union of India, WP No. 1393 of 2019,  para 17.

[6] Ibid.

[7] Union of India v. Shri Harish Chandra Singh Rawat, (2016) 16 SCC 744, para 8.

[8] S.R. Bommai v. Union of India, (1994) 3 SCC 1.

[9] Jagadambika Pal v. Union of India, (1999) 9 SCC 95; Anil Kumar Jha v. Union of India, (2005) 3 SCC 150; Union of India v. Harish Chandra Singh Rawat, (2016) 16 SCC 744; Chandrakant Kavlekar v. Union of India, (2017) 3 SCC 758; G. Parameshwar v. Union of India, (2018) 16 SCC 46.

[10] S.R. Bommai v. Union of India, (1994) 3 SCC 1. (the foundation for limitng the governor’s discretionary power was laid down); See also Dhananjay Mahapatra, “Karnataka governor bound by Supreme Court order to call Congress-JD(S)?” Economic Times, May 16, 2018, https://economictimes.indiatimes.com/news/politics-and-nation/karnataka-governor-bound-by-supreme-court-order-to-call-congress-jds/articleshow/64185216.cms