Why the SC will examine law allowing convicted lawmakers to make a comeback

As many as 251 MPs (46%) of the present LS face criminal charges; 170 have serious criminal charges including rape, murder, kidnapping and crimes against women

The Supreme Court is preparing to examine a legislative provision, which allows convicted legislators to rejoin the political arena, six years after they have served their sentence. The court has questioned the logic behind having a separate law for politicians to re-enter public service after six years when government servants convicted in a criminal offence are barred for life.

The issue before the Supreme Court was raised in a public interest litigation (PIL) filed by advocate Ashwini Kumar Upadhyay, raising a constitutional challenge to the validity of sections 8 and 9 of the Representation of Peoples Act, 1951 (ANI)

The issue before the court was raised in a public interest litigation (PIL) filed by advocate Ashwini Kumar Upadhyay, raising a constitutional challenge to the validity of sections 8 and 9 of the Representation of Peoples Act, 1951. Section 8 provides that a legislator of a state assembly or Parliament gets disqualified to contest election for a period of six years beginning from the date he serves out the sentence for his crime. Under this provision, a host of offences are listed, which can incur disqualification under the Act. Additionally, Section 8 prescribes that any conviction in an offence punishable with two or more years of sentence will also attract disqualification.

At the same time, section 9 states that a person having held office under the state or Central government, who has been dismissed for corruption or for disloyalty to the state, shall be disqualified for a period of five years from the date of such dismissal.

The court’s concern also stemmed from the fact that criminalisation of politics is on the rise and despite best efforts taken by the courts in the past to curb this trend, the number of legislators with criminal antecedents has only increased.

A look at the composition of the present Lok Sabha reveals that in the past two decades, in five general elections conducted between 2004 to 2024, the present session – 18th Lok Sabha – has the highest number of members of Parliament with criminal antecedents. A report compiled by senior advocate Vijay Hansaria, assisting the court as amicus curiae, along with advocate Sneha Kalita pointed out that 251 MPs (46%) of the present Lok Sabha face criminal charges and 170 have serious criminal charges involving rape, murder, attempt to murder, kidnapping, and crimes against women.

In 2004, the percentage of legislators with criminal taint in Lok Sabha was 24%, with 12% having serious charges. This further increased to 30% (14% facing serious crimes) in 2009, 34% (21% facing serious crimes) in 2014, and 43% (29% facing serious crimes) in 2019.

The report chronicles various orders passed by the top court, from time to time, to ensure criminal trials against sitting and former MPs and MLAs are fast-tracked. Despite the judicial intervention, nothing seems to have moved on the ground. According to the report the total pending cases against MPs/MLAs was 4,075 in 2018 and as on January 1, 2025, this number has increased to 4,732 with 559 cases pending for over a decade.

Slow progress of trial ensures that the accused MP/MLA completes the five-year tenure in office. Will this trend continue? Is fast-tracking cases against MPs/MLAs the only solution? How far can the court go in scrutinising the validity of section 8 and 9 of RP Act? in examining these issues, the following discussion is essential.

No Dedicated Courts

In a landmark decision in Public Interest Foundation case of 2015, the top court held that sitting MPs and MLAs who have charges framed against them for offences specified under section 8 of the RP Act, “the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge.” As far as possible, the court directed the trial to be conducted on a day-to-day basis. If the trial was unable to conclude for some “extraordinary” circumstance, the concerned trial court was required to submit a report to the chief justice of the respective high court citing the reason in writing.

In 2016, Upadhyay filed the petition citing non-compliance of the 2015 decision. This led to a slew of orders being passed from 2017 to 2023, requiring setting up of dedicated special courts to exclusively hear cases against MPs/MLAs.

Initially, the court directed setting up of 12 special Fast Track Courts (FTC) to deal with trials of cases against MPs/ MLAs in 10 states/UTs having the highest pendency of such cases. In 2018, the top court further directed that in addition to 12 special courts, there should be a designated sessions court and a designated magisterial court in each district to try cases against legislators on priority basis.

In November 2023, the top court took a decisive step by ordering each high court to set up a special bench to monitor trials against legislators, pending in the respective states/UTs. This bench was entrusted the task to monitor early disposal of pending trials against MPs/MLAs and even ensure that the dedicated courts give priority to cases involving legislators punishable with death or life imprisonment, followed by cases punishable with imprisonment for five years or more, and followed by any other case.

Hansaria’s report revealed that there were only a few states/UTs with a dedicated special court exclusively dealing with cases against MPs/MLAs. They include courts falling under the jurisdiction of high courts of Delhi, Calcutta, Karnataka, and Madhya Pradesh. The report classified another category of states where dedicated courts handle other regular work too. They include Orissa, Patna, Kerala, Jharkhand, Gauhati, Goa and Bombay.

The high courts of Jammu & Kashmir, Punjab & Haryana, Rajasthan, Arunachal Pradesh, Sikkim, Nagaland, Mizoram, Meghalaya, Himachal Pradesh, and Uttarakhand do not have any dedicated special courts. Two high courts – Madras and Telangana reported having a mix of dedicated courts that exclusively deal with MP/MLA cases as also other cases. The details about Uttar Pradesh, Andhra Pradesh, Chhattisgarh, Gujarat, Manipur and Tripura are still awaited from the respective high courts.

Delayed trial

On an analysis by the amicus, several factors were found to delay speedy disposal of cases against MPs/MLAs. A primary reason was related to the additional work handled by the judges heading these courts. It was also seen that the accused legislators took adjournments and would not appear in court on the assigned date. A third factor was seen in serving the summons on the witnesses for deposing during trial. This would often delay recording of their evidence, crucial for the prosecution to effectively establish the allegations. In this regard, the amicus notes that the prosecution has not taken effective steps to ensure the presence of witnesses on the specified dates. At the same time, Hansaria observed, even the trial courts have been generous in giving dates despite the top court directing against grant of adjournment “except for rare and compelling reasons”.

The report said that as on January 1, 2025, the total pendency of cases against MPs and MLAs to be 4,732. This figure has almost remained stable at 4472 (2024), 4697(2023), 5140 (2022), and 4931 (2021). The amicus further gave figures to show that on an average, the number of new cases admitted is at par with the number of cases decided. For instance, last year a total of 892 cases were freshly instituted despite 936 cases being decided across the country.

Of the total pendency of 4,732 cases, the amicus gave a break-up of pendency year-wise with a staggering 559 cases pending for over a decade, 651 between 5 to 10 years, 572 between 3 to 5 years and 971 pending under three years. The highest pendency of criminal cases against MP/MLAs was witnessed in Uttar Pradesh (1171), followed by Odisha (457), Bihar (448), Maharashtra (442) and Madhya Pradesh (326).

Lack of Monitoring

The amicus pointed out that right to information being a part of freedom of speech and expression under Article 19(1)(a) guarantees the right of each citizen to know the progress of the trial of cases against lawmakers. Such information can be gathered only if there is a prominent tab on the website of the high court furnishing this information.

In its order passed on November 9, 2023, the top court directed each high court to create a tab on its website providing updated status of cases pending against legislators. The amicus pointed out that though most high courts have provided for such a tab on the website, there is no uniformity in the manner of uploading data and maintaining the tab on the website. Such data needs to be updated on a monthly basis, he urged.

At present, cases pending against sitting legislators are 1552. These include the 251 in the current Lok Sabha. The parliamentarians with criminal records exceed 50% in 13 states and UTs, with 95% (19 of 20) of MPs from Kerala, 82% (14 of 17) from Telangana, and 76% (16 of 21) from Odisha proving to be most notorious in this regard.

Political parties have to ensure that individuals with criminal records do not enter the political arena. So long as that does not happen, it is left to the courts to ensure that the law catches up with criminal legislators; if not early, not too late either.