When Criminals Rule: India’s Uphill Battle Against Political Criminalisation
I. When the Ballot Meets the Chargesheet
The Indian Republic inherited from its founders the boldest of gambles: that a deeply unequal society, with many different social groups, can rule itself by the ballot and not the bullet. That bet lives on, 70 years ago, but it is not unscathed. A total of 251 out of the 543 members elected to the 18th Lok Sabha in 2024 had themselves stated that they were pending in criminal cases in their nomination forms, 46 per cent of whom had charges of ‘serious nature’ such as murder, attempted murder, kidnapping and offences against women. These are not charges brought against the candidates by any opposition party or a hostile media but statements by the candidates themselves, made under statutory requirement, in documents filed with the Election Commission of India.[1] Since this disclosure was made mandatory in 2003, the percentage of “bad apples” in the House has increased almost steadily at every general election, from about 25% to almost half of the House in just 20 years.
This essay is an examination of the phenomenon of “criminalisation of politics” which is interpreted in this paper as the infiltration, entrenchment and repeated electoral victories of people with serious criminal convictions and the inverse, the penetration of the political sphere by criminal networks or “criminal finance.”[2] It is made up of 6 parts. Part II explains how and why it should be seen differently from the problem of political corruption, which is a related but analytically distinct one. Part III offers a statistical snapshot of the problem based on recent affidavit information. Part IV discusses the structural conditions that help perpetuate the phenomenon in spite of many years of reform effort. Part V charts the statutory and judicial history of the provisions surrounding Sections 8, 8A, 9, 9A, 10 and 10A of the Representation of the People Act 1951, leading to the disqualification jurisprudence of Lily Thomas, and disclosure jurisprudence of Public Interest Foundation. As outlined in Part VI, these institutional obstacles – the primary one being the delay in trials, and the complete lack of a dedicated adjudicatory mechanism – limit the impact of this jurisprudence. Part VII proposes a reform agenda of accelerated trials, a constitutionally protectable framing-of-charges standard and structural changes in political finance, while also comparing Indian experience with that of other common law jurisdictions. The core thesis is that it isn’t just a problem of moral failings on the part of the individual, but a structural balance between criminalisation and lax campaign-finance laws, long criminal investigation timelines, and an electorate sometimes willing to rationalize the success of candidates who are adept at turning coercive capacity into service to their constituency. Judicial efforts have increased disclosure and reduced the room for legislative inaction, but disclosure alone has not stopped either parties or voters from standing up and therefore remedial efforts have to go beyond disclosure to the very structure of the criminal trial.
II. Two Sins, One Word: Separating Criminality from Corruption
The term criminalisation of politics is used in a broad sense to denote any misdeeds by public officers, but in the Indian public law literature it has a more specific meaning.[3] Political scientist Milan Vaishnav differentiates between the “criminalisation of politics”—whereby candidates who have criminal charges pending run for public office and are elected—as opposed to a “normal” political corruption whereby those who have already been elected to office abuse their position for private gain. These two events are interwoven and reinforce each other, as incumbency can be a means to delay prosecution and public money can fund additional criminal activity, but they remain conceptually and doctrinally different. The prevention of corruption is dealt with mainly by the Prevention of Corruption Act 1988 and the anti-graft investigative agencies; the criminalisation is dealt with mainly by disqualification and disclosure provisions of the Representation of the People Act 1951 and Article 102 and Article 191 of the Constitution, with respect to disqualification from membership of Parliament and the State Legislatures respectively.[4]
There is also a difference between disqualifying persons for conviction under Section 8 of the Representation of the People Act 1951 and disqualifying persons for mere framing of charges or filing of a chargesheet, which is a matter of legislative competence and not judicial competence. Much of the constitutional issue discussed in Part V stems from the fact that a chargesheet is merely the police’s side of the story and does not carry a burden of guilt as would a conviction after a full trial; but a conviction is the only basis for disqualification, leaving the accused legislator in office and even Cabinet for years or decades while a criminal case is pending in India.
III. Counting the Damage: What the Numbers Reveal
The most organised data on legislative criminality in India is available from Section 33A of the Representation of the People Act 1951, which requires every candidate to file with the Returning Officer an affidavit disclosing pending criminal cases and compilations of these affidavits by Association for Democratic Reforms (ADR), a civil society organisation whose right to seek such disclosure was protected by the Supreme Court in the case of Union of India v Association for Democratic Reforms.[5] The pattern shown in the data from the 20 years of affidavits is clear, and is summarized in Figure 1 below.
Figure 1: Percentage of winning Lok Sabha candidates with declared criminal cases, 2004–2024. Source: author’s original chart, plotted from data reported in Association for Democratic Reforms, ‘Record 46% of Newly-Elected Lok Sabha MPs Facing Criminal Cases: Study’ (ADR, 6 June 2024).
As can be seen in Figure 1, the percentage of winning candidates who have any type of criminal case more than doubled between 2004 and 2024, rising from about 23 per cent to 46 per cent, and the percentage of those with a serious criminal case (various serious offences such as murder, attempted murder, kidnapping and crimes against women) more than doubled from about 14 per cent in 2009 to 31 per cent in 2024[6]. The Association for Democratic Reforms also adds that out of the 15 candidates who had won in 2024 with cases against them with respect to crimes against women, two candidates were charged under Section 376 Indian Penal Code for rape, while 43 had declared cases of hate speech. State assembly data is also reflective of this trend: An affidavit affidavit by sitting MPs and MLAs in 2024 revealed that 151 legislators from across the country had stated that they had charges against them for crimes related to women, with West Bengal, Congress-ruled states and Andhra Pradesh’s Telugu Desam Party in the top five.[7]
A second and more troubling result relates to the link between electoral success and criminal antecedents, and relates to the design of the policy. In the 2024 general election, the Association for Democratic Reforms (ADC) has found that a candidate on whom a pending criminal case is pending has a 15.3 per cent chance of winning the seat he/she contested as compared to a candidate with a clean record who has a 4.4 per cent chance of winning, which translates to an “assistance premium” of about three and a half times.[8] This correlation is shown in Fig. 2.
Figure 2: Probability of winning the seat contested, by criminal antecedent status, 2024 Lok Sabha election. Source: author’s original chart, plotted from data reported in Association for Democratic Reforms, ‘Shocking! ADR Report Shows Candidates with Criminal Cases in Lok Sabha 2024 Had Far Better Chances of Winning’ (ADR, 2024).
The data in figure 2 is not in itself evidence of voters’ positive endorsement of criminality. The more competitive a candidate is in the capacity to offer extra-legal solutions to problems, such as violence, intimidation or informal means of settling disputes, the more of an electoral edge they gain, owing to their ability to pay for expensive campaigns, in a constituency where weak rule of law and social fragmentation along caste and religious lines and low state capacity to provide basic services or enforce contracts creates an environment in which candidates who can credibly claim to “get things done” through illegal methods have an advantage. On this view, criminality does not denote a “dirty deal” but rather costs enough to be taken seriously, as a signal of the ability and eagerness of a candidate to be a responsible defender of community interests in the face of institutional shortcomings.
IV. Why the Rot Persists: Four Structural Drivers
Disclosure-based reform, of which part V is a discussion, has not by itself halted the trend described above, for four mutually reinforcing reasons.[9]
Firstly, increase in the cost of Indian elections has far exceeded the limits on expenditure as prescribed by the law and the candidates’ ability to raise funds both formally and informally has been encouraging the political parties to select candidates who are able to raise funds from within the party ranks or through informal sources, which are often untraceable. In terms of the percentage of the economy, unofficial spending in the Indian elections is very high, with candidates and parties quite often overshooting the limits on official expenditure and making payments in cash without any record. Those who have been involved in extortion, land grabbing or contracting fraud often are able to raise such funds more quickly than those who are not, and thus they are more desirable to party high command in terms of “winnability” than integrity.[10]
Secondly, the criminal trial process is extremely slow in India. The figures published by the National Judicial Data Grid show that a huge number of criminal cases are pending in various subordinate courts, including those related to sitting or former members of the Parliament. The Law Commission of India has also stated in its recent report that it takes a decade or more to present a chargesheet and obtain a conviction or acquittal in a case even then, a sitting or former legislator may have served for two or three terms. It is not a conviction-based disqualification standard that is of much deterrent value if the conviction is postponed to the end of a legislator’s tenure.
Third, party organisational incentives are more geared to “winnability” than to probity. Under the ‘first past the post’ system, political parties in India have considerable freedom to choose candidates and, with little party democracy, central parties frequently decide that a candidate with a strong local base, even if they’re having legal trouble, is more likely to be elected than a candidate who lacks a local base. The Supreme Court has itself found that both political and opposition parties have continued to nominate candidates who have serious pending cases to run for elections despite the mandate that they publish, and explain, such nominations, even in the case of the Public Interest Foundation, during the contempt in 2020 and 2023.
Fourth, an inadequate enforcement of the existing disclosure and campaign finance law exacerbates the three conditions listed above.[11] The Election Commission of India has only a limited power to reject a nomination on the basis of pending criminal charges and its power to reject the registration of a political party on the grounds of failure to comply with the disclosure norms is, at present, more of a theory than a reality.
V. Law’s Answer: Statutes, Judges and Their Limits
A. The Original Rulebook: The 1951 Act
The main legislation relating to disqualification is the third part of the Representation of the People Act 1951 (Chapter III). A person convicted of certain specified offences under the Indian Penal Code that involve offences related to promotion of enmity, bribery and corrupt practices cannot be elected to and cannot serve as a member of a Parliament or a State Legislature for a period of six years from the date of his conviction or at the time of release, if imprisoned[12] Section 8A imposes additional grounds of disqualification for corrupt practice, Section 9 disqualifies for corrupt government contracts and government contract dismissal, Section 9A excludes corrupt dismissal and Section 10A disqualifies for non-filing of election expenditure accounts. Importantly, since the inception of Section 8, and as amended, it only bans a person from contesting or sitting as a legislator after a conviction, but only in the context of the specific saving provision which was struck down in 2013.
B. The Right to Know: ADR and PUCL
The modern period of judicial intervention starts with Union of India v Association for Democratic Reforms where Supreme Court held that the citizen’s fundamental right to freedom of speech and expression under Article 19(1)(a) of the Constitution includes the right to know the antecedents of a candidate seeking public office, which includes his criminal police record, financial record, educational record, etc., and in that case directed the Election Commission to ensure disclosure of such information even though there was no specific statutory requirement at the time. Parliament’s answer to this was Section 33A of the 1951 Act that was inserted by the Representation of the People (Third Amendment) Act 2002 which was itself challenged as a way of reducing the directions of the Court by restricting disclosure to only those charges previously framed by a court and not all pending charges.[13] In People’s Union for Civil Liberties v Union of India, the Supreme Court declared that the right to information that had been affirmed in Association for Democratic Reforms could not be restricted by general legislation and hence struck down the accompanying Section 33B, which was intended to bar disclosure of any information outside the range of what was specified in the amended Act.
C. No More Waiting: Lily Thomas Ends the Appeal Loophole
A second doctrinal development was in the case of Lily Thomas v Union of India, where the Supreme Court held that the period of three months allowed for the sitting members of Parliament to file an appeal after their disqualification could not be suspended and disqualification should take effect immediately after their conviction (Section 8(4) of the 1951 Act had been protecting these members from disqualification for three months till an appeal could be filed). The Court, therefore, determined that Parliament had no legislative competence under Article 102(1)(e) and Article 191(1)(e) to create a special class of those who are “sitting members” of Parliament, who are not covered by disqualification, as all other citizens are, and that Section 8(4) was therefore unconstitutional, and a disqualified sitting member would now be disqualified with effect from the date of his conviction, unless he was granted a stay by an appellate court.[14] The judgment filled a major loophole that had been allowing convicted legislators to keep their job while waiting for an appeal to be resolved, but left unaddressed the much larger number of legislators who were charged with crimes but not convicted.
D. Sunlight, Not a Ban: The Public Interest Foundation Compromise
A court’s power to add disqualification without the corresponding legislative amendment was considered in Public Interest Foundation v Union of India. The Court refused to read a new disqualification into Article 102 and Article 191, which it stated: “to legislate is not the job of the court” and “Parliament should, in unmistakable terms, legislate a strong law, to cure the malignancy of criminalisation, before the petitioners are deprived of the opportunity of enjoyment. Instead of the actual disqualification, the Court directed that every candidate must mention all pending criminal cases in bold letters in the nomination form, a candidate contesting on a party’s ticket must disclose the case to the party, the party must publish the same on its website and through wide publicity in the print and electronic media and publish reasons for having chosen the candidate when the pending case is taken into account.[15]
E. Forcing Compliance: Contempt as the Court’s Last Whip
The Court, however, has since overseen compliance with the 2019 directions, in the manner of contempt. In the case of Rambabu Singh Thakur v Sunil Arora (February 2020) the Court explained the earlier directions which mandated that parties publish selected candidates’ criminal antecedents along with the reasons for their selection within 48 hours of their selection and submit compliance reports to the Election Commission, for the latter to take non-compliance to the Court’s attention as contempt. In the contempt proceedings in the same case in August 2023, the Court added that the rationale for electing a candidate with pending criminal cases must be based on his/her qualifications and achievements, and not on the basis of mere “winnability” and directed the Election Commission to develop a standalone mobile app to access this information by the voters. In these proceedings, the Court had remarked that the number of MPs with criminal cases had increased from 24 per cent in 2004 to 43 per cent in 2019, and noted that it had earlier issued directions that have led to disclosure without deterrence.[16]
F. How Far the Courts Have Gone, and Where They Stop
When taken together, the body of case law illustrates a judiciary that has been assertive and self-restrained. It has been strong in interpreting Article 19(1)(a) to mean a broad right to information and in enforcing an obligation to take the disclosure obligations seriously on parties who may otherwise consider them to be a formality. It has not, correctly, been self-restrained in preventing it from violating the separation of powers by interpreting a pre-conviction disqualification standard into the Constitution. As further explored in Part VII, the consequence of this is that the judiciary has used up its available remedies in the disclosure paradigm and that further movement in that direction is now reliant upon legislative and institutional reform, which the Court has repeatedly exhorted Parliament to make.[17]
VI. The Machinery That Fails: Three Bottlenecks
The jurisprudence set out above has limited practical impact because of three institutional problems
The first, which has already been mentioned in Part IV, is the delay in trials, which was directly addressed by the Law Commission of India in its 244th Report, Electoral Disqualifications, recommending that disqualification should only happen at the pleading of charges stage – but not conviction – of the trial process and that it should only be applied for the most serious offences, as evidenced by a minimum sentence threshold, and only where the charges were framed within one year of the election, and only subject to a fast track trial to be followed within a defined time frame before the disqualification is rescinded automatically on acquittal.[18] This calibrated proposal was created to meet the principal criticism of the pre-conviction disqualification – namely that it would allow a political adversary to create motivated prosecutions for the purpose of disqualifying the opposition – as it would require a further degree of judicial scrutiny of the proposal – the framing of charges – and it would restrict the type of offence to those with a high minimum sentence. As yet it has not, as of this writing been enacted.[19]
The other restriction is that Special Courts, which have been directed by the Supreme Court in repeated orders since 2017 to set up Special Courts for sitting and former legislators, are not in existence. The number of the courts that have been set up under the compliance affidavits submitted by States before the Supreme Court has varied widely; the Association for Democratic Reforms has reported pending cases of thousands of legislators, where the direction for setting up a court was issued years ago, undermining the underpinning of the conviction-based standard that it can be an effective deterrent in the political lifetime of a legislator.[20]
The third bottleneck is regulatory as the Election Commission of India does not have a specific statutory power to reject a nomination on the basis of the pending serious criminal charges against the candidate or to deregister a political party for its persistent failure to comply with the disclosure directions issued by it in Public Interest Foundation and Rambabu Singh Thakur, which keeps the Commission to depend on the Supreme Court’s contempt jurisdiction instead of having any independent enforcement mechanism.
VII. Fixing the System: A Four-Point Reform Agenda
This Part outlines a four-part program for reform, consonant with the above diagnosis, which appears in the author’s opinion constitutionally sound and practically achievable.[21]
The disqualification of a candidate should be based upon the new pre-conviction disqualification standard recommended in the Law Commission’s 244th Report, which is that a candidate should be disqualified when the competent court frames charges against him for offences punishable by at least five years’ imprisonment, subject to a corresponding fast-track trial which should be guaranteed to be completed within one year, and where the candidate is disqualified, compensation and reinstatement remedies, with disqualification to be lifted upon charges being framed at least six months, but not one year, before the relevant election and the court proceeding to trial.[22] This threshold is thus directly linked to the Supreme Court’s institutional objection in Public Interest Foundation as there is no suggestion on the part of the court that it is seeking to create a new constitutional disqualification, but rather asking Parliament, which alone has the competence under Article 102(1)(e) and Article 191(1)(e), to exercise it.
Second, the system of Special Courts to speed up the disposal of legislators’ cases since 2017 must be given a statutory shape, with a specific budgetary allocation, a fixed pendency period for cases to be disposed of, which can be enforced through a writ petition, and reporting on pendency in real time to the public, disaggregated by State and by constituency, to be monitored by the Election Commission and civil society groups independent of periodic Supreme Court actions.[23]
Third, it is clear that structural reform of political finance is needed to complement the disqualification reform, because it is as Part IV has concluded, criminalisation and illegal finance are mutually reinforcing. Legislative measures worth considering include a much tougher, more digitised real-time reporting system of expenditure for candidates and parties, a lower and strictly enforced cap on cash donations, and a greater role for state funding and/or a matching mechanism for candidates who accept a condition to spend their funds transparently (which would diminish the comparative fundraising advantage enjoyed by those who can obtain finance informally or by force). The Supreme Court’s judgment of 2024 declaring the Electoral Bond Scheme as unconstitutional for infringing upon the right to information under Article 19(1)(a) of the Constitution is another sign of the judiciary’s ongoing efforts to regulate the relationship between political finance and electoral transparency, and any future financing system will be subject to a similar test.
Fourth, the Election Commission of India should be empowered with express statutory powers, subject to judicial review, to cancel or reject a political party’s registration if it has repeatedly failed to comply with the disclosure requirement in Public Interest Foundation and Rambabu Singh Thakur, which, as it stands, is only enforced through sporadic contempt proceedings.[24]
VIII. Lessons from Abroad: What Britain Gets Right
The problem of criminalisation is very challenging in India, as it is in other jurisdictions that attempt to solve the problem not despite but actually through conviction-based thresholds. [25]Though narrower than the Law Commission’s proposed Indian standard, the disqualification for conviction is not in practice rendered ‘useless’ by the long delays of criminal trials in India as it is in the United Kingdom, where it rests on section 173 of the Representation of the People Act 1983 and disqualifies anyone sentenced for a corrupt or illegal practice in connection with an election, to more than one year’s imprisonment. In short, the Indian debate over the standards for both of disqualification—framing charges and conviction—is secondary to the more fundamental institutional requirement that the criminal justice system is able to resolve cases within the term of the legislator; a system which processes trials swiftly can simply rely on the convicting power, while a system which cannot has to either accept the electoral participation of the indicted or construct a carefully delimited pre-conviction standard, as the Law Commission has suggested.
IX. An Unfinished Verdict
The criminalisation of Indian politics isn’t a recent phenomenon and the disclosure is not an answer to the issue. It is a result of a self-strengthening interplay between expensive elections, an overworked criminal justice sector, party incentives that are more attuned to the local capacity to coerce than to promote probity, and in many constituencies, rational citizens’ reactions to the perceived absence of the State. Over the decades, the Supreme Court has done what a court can: It has championed the citizen’s right to know; closed the loophole that allowed convicted legislators to remain in office until they were convicted again; and enforced disclosure rules with its contempt power by compelling parties to actually comply with the rules rather than simply making the gesture.[26] It has consistently refused to impose a standard for pre-conviction disqualification, rightly, as it were, under the doctrine of separation of powers.[27] The next step now has to be taken by Parliament, informed by the Law Commission’s cool steps, and will need to go hand in hand with the institutional changes, which include a fast-track court system and a more robust political-finance regime, if the new disqualification threshold is to replace the delay, so far a criminalisation ally. But the answer is not a single spectacular judicial decision, it is a slow, hard, painstaking process of establishing institutions, fast-track courts, transparent campaign finance, an independent Election Commission and making the promise of accountable representation in the constitution a reality.
[1] Association for Democratic Reforms, ‘Lok Sabha 2024: Analysis of Criminal Background, Financial, Educational and other details of Winners’ (ADR, June 2024) <https://adrindia.org/content/lok-sabha-2024-winner-analysis> accessed 20 July 2026.
[2] Association for Democratic Reforms, ‘Record 46% of Newly-Elected Lok Sabha MPs Facing Criminal Cases: Study’ (ADR, 6 June 2024) <https://adrindia.org/content/record-46-of-newly-elected-lok-sabha-mps-facing-criminal-cases> accessed 20 July 2026.
[3] Milan Vaishnav, When Crime Pays: Money and Muscle in Indian Politics (Yale University Press 2017) ch 1, 4-8.
[4] Constitution of India 1950, arts 102, 191.
[5] Union of India v Association for Democratic Reforms (2002) 5 SCC 294 (SC) <https://indiankanoon.org/doc/1030575/> accessed 20 July 2026.
[6] Association for Democratic Reforms (n 1); Public Interest Foundation v Union of India (2019) 3 SCC 224 (SC) [4].
[7] Association for Democratic Reforms (n 1).
[8] Association for Democratic Reforms, ‘Shocking! ADR Report Shows Candidates with Criminal Cases in Lok Sabha 2024 Had Far Better Chances of Winning’ (ADR, 2024) <https://adrindia.org/content/shocking-adr-report-shows-candidates-with-criminal-cases-in-lok-sabha-2024-had-far-better-chances-of-winning> accessed 20 July 2026.
[9] ibid.
[10] Vaishnav (n 3) ch 3, 89-112.
[11] Vaishnav (n 3) ch 5, 156-71; Devesh Kapur and Milan Vaishnav (eds), Costs of Democracy: Political Finance in India (Oxford University Press 2018) 3-27.
[12] Law Commission of India, Electoral Disqualifications (Law Com No 244, 2014) paras 3.1-3.9 <https://cdnbbsr.s3waas.gov.in/s3ca0daec69b5adc880fb464895726dbb9/uploads/2022/08/2022080593.pdf> accessed 20 July 2026.
[13] Brajesh Singh v Sunil Arora, Contempt Petition (Civil) No 2192 of 2018 in Writ Petition (Civil) No 536 of 2011, order of the Supreme Court of India dated 10 August 2021.
[14] Representation of the People Act 1951, s 8.
[15] Representation of the People Act 1951, ss 8A, 9, 9A, 10, 10A.
[16] Union of India v Association for Democratic Reforms (n 5) [42]-[46].
[17] People’s Union for Civil Liberties v Union of India (2003) 4 SCC 399 (SC) [123]-[125] <https://indiankanoon.org/doc/1146553/> accessed 20 July 2026.
[18] Lily Thomas v Union of India (2013) 7 SCC 653 (SC) [30]-[32] <https://indiankanoon.org/doc/2320521/> accessed 20 July 2026.
[19] Public Interest Foundation v Union of India (2019) 3 SCC 224 (SC) [32], [51] <https://indiankanoon.org/doc/146283621/> accessed 20 July 2026.
[20] ibid [104].
[21] Rambabu Singh Thakur v Sunil Arora (2020) 3 SCC 733 (SC) [11]-[16] <https://indiankanoon.org/doc/193466750/> accessed 20 July 2026.
[22] Brajesh Singh v Sunil Arora (n 13); Live Law, ‘Supreme Court’s Six Mandatory Directions To Political Parties To End Criminalisation Of Politics’ (LiveLaw, 13 February 2020) <https://www.livelaw.in/top-stories/directions-to-political-parties-to-end-criminalisation-of-politics-sc-152694> accessed 20 July 2026.
[23] Lawtext, ‘Supreme Court Issues Directions on Criminalisation of Politics in Contempt Proceedings’ (Lawtext, 2023) <https://www.lawtext.in/judgement.php?bid=7527> accessed 20 July 2026.
[24] Law Commission of India (n 12) paras 4.1-4.15, Recommendation 1.
[25] Association for Democratic Reforms, ‘Analysis of Pending Criminal Cases Against Sitting MPs and MLAs’ (ADR, 2023) <https://adrindia.org> accessed 20 July 2026.
[26] Association for Democratic Reforms v Union of India (2024) 3 SCC 481 (SC) (Electoral Bonds case) [200]-[214] <https://indiankanoon.org/doc/1949181/> accessed 20 July 2026.
[27] Representation of the People Act 1983 (UK), s 173.
