The decades-old scourge of the criminalisation of India’s politics surged to the top of nightly news last week after the Supreme Court (SC) ruled that an MP or members of the states’ Legislative Assemblies or Councils would be unseated immediately if convicted of a crime the Constitution lists as a ground for disqualification. The judges struck down a provision in the Representation of the People Act, 1951, which allowed MPs and MLAs/ MLCs to retain their seats if they appealed their convictions within three months. Ruling on public lawsuits, the judges said the law was inconsistent with two constitutional clauses that barred convicted citizens from contesting elections. If a conviction was good to bar a hopeful, they said, it was good to unseat an incumbent.
Backing the ruling as a step in the right direction, a few jurists, in fact, suggest that MPs and MLAs should be unseated earlier than conviction. “Parliament should be freed of criminals and we know that our criminal justice system is slow,” says former Attorney General Soli Sorabjee. “The fact that they are facing criminal charges in serious offences, say, those carrying imprisonment of three years or more, should be enough to unseat them.”
Agrees former Solicitor General Gopal Subramaniam: “If a court has taken cognisance of charges against a member of the House, he should be unseated.” Adds Gurudas Dasgupta, an MP from the CPI: “The government should make decriminalisation a national priority. There is a nexus of money and power in politics and the government and judiciary have to build safeguards against these.”
But so deep are the tentacles of criminals in politics that few expect the ruling to significantly challenge the mafia might in Parliament and legislatures across the country. Last year, the Association for Democratic Rights (ADR), an NGO that campaigns for electoral reforms, found that 30 percent of about 4,800 MPs and MLAs it investigated faced criminal charges. Of the 403 MLAs who won the Uttar Pradesh Assembly polls last year, as many as 189 — or 47 percent — face criminal charges. A whopping 98 are accused of murder or rape or both. That is nearly one in four of all the UP MLAs. And they belong to the top parties in the state: the SP, the BSP, the Congress and the BJP.
Shockingly, or perhaps not, nearly four in every five of Jharkhand’s 82 MLAs face criminal cases. In Bihar, their percentage is 54, with Chief Minister Nitish Kumar’s JD(U) leading the way and his recently parted ally, the BJP, following a close second. Across the country, nearly one in three of the BJP’s MPs and MLAs have criminal cases against them. The Congress is marginally better at one in five.
How did this state of affairs come to be? Explains Jaskirat Singh, a campaigner with ADR: “For years, Indian politics survived on a code of unwritten ethics. Then, the parties started using organised criminals to capture voting booths to win polls. Later, the criminals decided to ask for the ticket themselves and politicians handed them out on a platter due to the ‘winnability factor’, which means money and power.” So, first the dog wagged the tail, then the tail the dog, and then the tail wanted to be the dog.
States such as Maharashtra, Bihar, Jharkhand and UP are prime examples of the degeneration. Mumbai-based veteran journalist Kumar Ketkar, who has watched elections since the 1960s, says the stranglehold of criminals on politics turned for the worse two decades ago. “The role of money increased in direct proportion to the decrease of huge mass rallies,” he says. Ironically, a key reform opened the floodgates. In 1990, TN Seshan, a retired IAS officer, became Chief Election Commissioner and began exercising his constitutional powers that his predecessors never asserted because they chose to be rubber stamps of the government of the day. In order to rein in runaway expenditure, Seshan began auditing costs such as of the mass rallies.
“The Seshan reforms made mass contact infrequent as every street corner meeting, padyatra and rally came under scrutiny,” says Ketkar. “Candidates began outsourcing their outreach as well as the distribution of propaganda material.” Volunteering disappeared. As candidates had neither enough money nor the network, the mafia came in bringing both for a quid pro quo if the candidate won.
And holier-than-thou pieties notwithstanding, none can avoid the criminal’s embrace. Gujarat Chief Minister Narendra Modi, the BJP’s presumptive prime ministerial candidate for next year’s Lok Sabha election, has yet not sacked his Water Resources Minister Babu Bokhiria who was last month sentenced to three years in prison for illegally mining limestone causing a loss of Rs 54 crore to the original leaseholder. (He won’t be unseated as the SC ruled that those convicted prior to its judgment would be spared.) Cutting across party lines, a co-accused also given three years is a former Congress MP. A father-son gangster duo was also sentenced. In last year’s Assembly polls, the BJP’s Jethabhai Bharwad’s nomination papers showed that he is facing charges of rape, extortion and kidnapping. He won. He was later arrested for firing a gun during the election.
Pradeep Mahto, a goon who became an MLA in Bihar in 2005 as an independent candidate, joined Chief Minister Kumar’s JD(U) before the 2010 election. Among other crimes, Mahto was accused of organising a jailbreak in 2001 to facilitate the escape of an uncle of his. Mahto appeared with Kumar at rallies. Few remembered that a warrant for his arrest was pending. He won. Pawan Jaiswal, an independent MLA who voted in the Assembly for Kumar’s minority government last month after it split from the BJP, stands charged for armed robbery, extortion and beating up officials. Kumar is under pressure now to make him a minister to sustain his government until 2015.
Four months ago, Kshitij Thakur, an MLA from Mumbai, beat up a traffic policeman and then hauled him up at the state Assembly. To the horror of the elected representatives, Thakur and four other MLAs thrashed the policeman for daring to report them. As CCTV footage of their violence made national headlines, the House was forced to suspend the MLAs. In turn, they forced the government to suspend the cop. Thakur’s father, Hitendra is a former Congress MLA who founded his own party. Hitendra and his brother Jayendra aka Bhai Thakur have cases of extortion, criminal intimidation, attempt to murder, murder and land grab against them. Bhai Thakur has been convicted.

“Although the SC ruling is welcome, not much will change unless real electoral reforms to check the influence of money is brought,” says Prashant Bhushan, SC lawyer and transparency activist. He says cash donations, which are allowed up to Rs 20,000 per donor, should be banned. “Currently, parties collect crores of rupees and then claim that hundreds of donors each gave under Rs 20,000.”
To rescue politics from the grip of black money, Atal Bihari Vajpayee set up a multiparty parliamentary committee in 1998, shortly after he became prime minister, to explore State funding of candidates. Headed by the late CPI leader Indrajit Gupta, who was India’s home minister until Vajpayee took power, the committee lamented that its limited remit would only bring “cosmetic” changes. “An immediate overhauling of the electoral process whereby elections are freed from (the) evil influence of all vitiating factors, particularly, criminalisation of politics” was needed, it said, adding that money and muscle power were “sullying the purity” of electoral contests and affecting free and fair elections. Interestingly, the panel included Manmohan Singh.
A year later, the Law Commission, an advisory body of legal experts under the law ministry, recommended that an MP or an MLA charged with an offence punishable with imprisonment for five years or more should be unseated. It said anyone convicted for heinous crimes such as murder, rape, smuggling and dacoity be permanently debarred from contesting for political office. Nothing happened. On 31 May, the 20th Law Commission released a consultation paper on electoral reforms seeking to start a debate on whether a disqualification should trigger upon conviction, as it exists today, or upon framing of charges by the court well before the conviction.
Of course, the political will to bring such reforms has always been missing. As a result, some of India’s political heavyweights have successfully battled career- threatening situations in spite of being enmeshed in criminal and corruption cases. The list includes Tamil Nadu CM J Jayalalithaa, who had to quit in a previous term in 2001 after the SC ruled her appointment as CM illegal as she had been convicted. When the high court acquitted her, she promptly took back the job.
The top leadership of UP, including CM Akhilesh Yadav, his wife, Dimple, and his father, Mulayam Singh Yadav, face the biggest threat from the SC’s 10 July ruling. Cases against them for owning assets disproportionate to their known income are pending in the apex court. A similar case against former CM, BSP president Mayawati, is also underway in the court. Not surprisingly then, SP leader Ramgopal Yadav slammed the judgment for “discrepancies” and announced that he would push the Centre to amend the Constitution to overrule the court. Predictably, Mayawati joined the chorus. The new Jharkhand CM Hemant Soren need look no further than his father, Shibu, a former CM who faces five criminal cases.
Another example of a politician beating the system is that of former Karnataka Forest Minister CP Yogeshwar, who has won Assembly polls for 15 years. In 2010, the Serious Fraud Investigation Office of the Union corporate affairs ministry charged Yogeshwar with corporate fraud and criminal conspiracy for siphoning off funds, forgery and cheating in a 71 crore scam. An inveterate party hopper, Yogeshwar quit the BJP and fought the May election as an SP candidate. He won.
Just what makes the mafia dons acceptable to the voters? “Criminals with community influence cultivate their environment by acquiring a Robin Hood persona,” says I&B Minister Tewari. “In other cases, their sheer ability to terrorise and intimidate while the State remains a helpless onlooker gives them their USP.” Maharashtra’s Industry Minister Narayan Rane is the best poster boy for the influence of muscle and money. Beginning as a gang leader, he quickly caught the eye of Shiv Sena supremo, the late Bal Thackeray. Quite like the gangster politicians of Bihar, Rane is revered among his constituents for distributing free medicines and paying hospital bills. It is said that he would round up bus chassis from scrapyards and send them to his village to build temporary bridges on gorges. He later joined the Congress, and wowed the real estate lobby as the revenue minister.
In Bihar, gangster politicians buy dozens of new motorcycles to gift to bridegrooms during the wedding season. Anant Singh, an MLA of his self-styled Bihar People’s Party, lives in Mokama district but provides for lunch and dinner for about 200 people daily at his official residence in the state capital Patna, 90 km to the west, for his constituents travelling to that city for various errands. Many politicians are quick to lean on hospitals and government offices to speedily meet up the requirements of the needy.
To be fair to the political parties though, the SC judgment runs the risk of throwing the baby out with the bathwater. Shiv Sena MP Sanjay Raut says the judgment can result in a misuse by the government. “The Shiv Sena is a party of agitations,” he says. “Often we take to the streets and storm government offices. At such times, our workers are booked under the sections for dacoity, theft, etc.” Agrees NCP leader and Maharashtra’s PWD Minister Chhagan Bhujbal: “I agree that people with serious criminal charges against them should be kept out of politics. But if someone is convicted in a political case, they should not be disqualified.”
A common grouse against the SC ruling is that it doesn’t address the question of what happens if an unseated legislator is eventually found not guilty. “No thought is given to restoration (to the seat in the House) in case a conviction is reversed by way of acquittal,” says Abhishek Manu Singhvi, Congress leader and senior lawyer. Former Chief Justice of India VN Khare says the SC judges who gave the ruling should have instead referred the case to a five-judge constitutional bench. “Finally, it is Parliament that has to take a role in framing the laws with the guidance of the SC to decriminalise politics in the country,” says Khare.
Union Law Minister Kapil Sibal says the ruling leaves grey areas. “If you were to take a position that nobody charged with an offence should enter politics, the systems in place on the ground are such that you can charge people or have them charged through unfair means,” he says. “On the other hand, if you don’t do that then allegations are made that criminals have entered politics.” Sibal says ultimately, the political class needs to come together to evolve a framework so that a person formally charged by a court for a very serious offence is not be allowed to contest. “Now this requires a consensus.”
Some political parties claim they have already begun the process. “As a party from Assam, we have never given tickets to surrendered rebels as they have criminal cases against them,” says Animul Islam, a leader of the fringe party, AIUDF. “We took a policy decision not to give them tickets because that would legitimise a trend of picking up arms and later turning into politicians.”
For the moment, the final word, if there can be one on this subject, goes to the irrepressible former SC judge Markandey Katju. “We are passing through a very difficult, transitional period, from a feudal agricultural system to a modern industrial society,” he says. “The old society is uprooted and we are stuck in the middle. This difficult stage will remain for the next 15-20 years. History shows that only a long-drawn people’s struggle starts the process for reforms.”
With inputs from Ushinor Majumdar, Ashhar Khan, Shonali Ghosal, Nupur Sonar and G Vishnu in New Delhi, Imran Khan in Bengaluru, Nirala in Patna, Virendra Nath Bhatt in Lucknow and Ratnadip Choudhury in Guwahati