Criminalisation of Indian Politics, Oxford India Series
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Special Series: Decriminalisation of Indian Politics
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May 22, 2013
[De]Criminalisation of Politics – The Full Monty
Shining Path
“To reason with governments, as they have existed for ages, is to argue with brutes” – Thomas Paine, Rights of Man.
Last July, the Electoral College comprising MPs from both houses of Parliament and MLAs from the various State Legislative Assemblies in India cast their votes to elect the President of India.
However, what went unreported is that out of the 4800 odd members of the aforementioned Electoral College, a not insignificant number of worthies had declared criminal cases against their names on their pre-election affidavits. A report by Association of Democratic Reforms [ADR], highlighted this aspect, and I quote:
“National Election Watch [NEW] has analyzed the affidavits submitted to the Election Commission of India [ECI] of 772 out of 776 MPs and 4063 out of 4120 MLAs [a total of 4835 out of 4896] in all the states of India which form the Electoral College. Out of the 4835 MPs/MLAs, 1448 have declared criminal cases against them in a self sworn affidavit filed with the ECI.Out of these 1448 who have declared criminal cases, 641 MPs/MLAs have declared serious criminal cases like rape, murder, attempt to murder, kidnapping, robbery, extortion etc.
There are 6 MPs/MLAs who have declared rape charges…. There are 141 MPs/MLAs who have declared murder charges, 352 have declared attempt to murder charges, 145 have declared theft charges, 90 have declared kidnapping charges and 75 have declared dacoity charges.”
Don’t wish to commit? Form a committee:
When did Indian Politics start its downward slide from the lofty to the grotesquely vile, till it finally reached a point where some even question the very sanctity of the Parliament? Various political analysts have suggested that the electoral landscape was first spotted sporting some serious gangarene-esque wounds in the early 1970’s. Things went pretty much downhill from there on – slip sliding away into a virtual cesspool.
Ironically, the political establishment has made multiple breathtakingly insincere attempts to tackle this malaise over the past 38 years. By forming committees! Here is the list below:
1975 - Tarkunde Committee Report
1990 - Goswami Committee on Electoral Reforms
1993 - Vohra Committee Report
1998 - Indrajit Gupta Committee on State Funding of Elections
1999 - Law Commission Report on Reform of the Electoral Laws
2001 - National Commission to Review the Working of the Constitution
2004 - Election Commission of India – Proposed Electoral Reforms
2008 - The Second Administrative Reforms Commission
2010 - Background Paper on Electoral Reforms [Ministry of Law]
Here are two more that are equally incisive, though not an outcome of some government- appointed committee:
2002 - Background Paper on Electoral Reforms [Dr Jayaprakash Narayan]
2011 - NEW Recommendations for Electoral Reforms [submitted to Law Ministry & Election Commission of India]
Bury all the reports:
These reports pull no punches, are devoid of euphemisms and hit home hard on several key issues pertaining to all three stages of the Electoral Process: the pre, the actual process and the post.
Other than a few cosmetic and ineffective changes to the rules of engagement [anti-defection; a form here and an affidavit there, to capture criminal antecedents of candidates, declaration of assets etc], the reports have led to very little meaningful progress or reforms. Unless of course one assigns any meaning and weight to the highfalutin, high-minded and incredibly vacuous utterances on the subject by leaders from all political parties, and mistakes the same for action.
The evidence in support of the case that politicians have been sincerely trying to clean up the Electoral System, despite the well-meaning observations and recommendations of bureaucrats, academicians, legal luminaries, simply does not stack up. In fact, what becomes amply evident is that the current electoral landscape holds too many hidden contradictions in its folds, and hence can be summarily dismissed as one that is inconsistent and unstable. The most stunning contradiction of it all being, the power to make effective changes and modifications rests with the very same people who stand to lose the most [private gains, private wealth, private power] were such changes to be effected
The unholy troika of crime, business and politics:
Much ink has flowed on this subject – hence I will limit the narrative to the most essential. Perhaps the most trenchant views that have been expressed on this matter, have found their way into the slew of reports on Electoral Reforms.
“Over time, the money power thus acquired [by organized crime/mafia] is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle power which is also used by the politicians during elections…. The nexus between the criminal gangs, police, bureaucracy and politicians” [one could add unethical business establishments to this list] “has come out clearly in various parts of the country”, noted the Vohra Committee Report.
After defining the form, construct and scale of the problem, almost all the reports then proceed to focus extensively on remedial measures and recommendations. As T.S.Krishnamurthy, Chief Election Commissioner 2004 noted, these measures “would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses”.
Space constraints prevent me from delving deeper into the issue, but suffice to say a re-look at some of the sections from the Representation of People Act, 1951 [click here and here for some insights into this] is pretty much a sine qua non, if the pachyderm in the room needs to be evicted. Alas, those who need to evict it, refuse to even acknowledge its presence, save for a few platitudes hither and a few near-anal banal mutterings thither.
It is not entirely uncommon to find people referring to the state of affairs – in hushed tones – as some mutant rotting version of democracy that is being run by a handful of feudal overlords who also happen to be elected repress-entatives. Whilst it is nobody’s case that such perceptions are not exaggerated depictions of reality, the other side to that story is that perceptions are never formed in a vacuum and the overwhelming perception in my neck of the woods is that the fence is not only eating the crop, it is also threatening to steal our goats and our fowls!
Weeding out this evil is quite easy – on paper. Legislative action, changes in the Criminal Justice System [with special focus on how the system gets gamed when it comes to the “influential” and the “politically connected”], voter awareness, leveraging mobile tele-density to disseminate vital information about contestants, incorporating None of The Above [NOTA] option on the Electronic Voting Machines, moving away from First-past-the-post and towards Proportional Representation, recalibrating the election funding process and bringing in transparency into it [State funding? Mandatory donor list?], Public Interest Litigations that highlight and challenge the loopholes and grey areas [Section 8(4) of the RPA, 1951 being one example] but the most likely next step will be this – the lawmakers, some of whom are themselves lawbreakers, will appoint another committee that studies the recommendations of all previous committees.
Kicking the can down the road.
It all boils down to four words – Lack of Political will.
Shining Path is a frequent blogger on CNN IBN’s Firspost.com and can be reached at shining.path.notperu@gmail.com.To read his other posts on criminalization of politics, politics as a means to generate obscene amounts of personal wealth [nation be damned], electoral reforms, criminal justice system, police reforms, judicial reforms, the great Indian silence factory [Mainstream Media] and other such useless, irrelevant and burning issues, click here.. http://www.firstpost.com/author/shiningpath.
May 20, 2013
Do Cleaner MPs Lead to a Cleaner Parliament?
Devesh Tiwari
The public release of candidate affidavit data has confirmed many of the suspicions that the public has had about the criminalization of Indian politics. As noted by nearly everyone who pays attention, candidates who have been charged with committing a crime, even violent and serious ones, are more likely to win elections than candidates with a clean record. The startling result that nearly one in four Members of Parliament (MPs) in the Lok Sabha have a criminal record has sparked a research agenda devoted to explaining why voters are willing to support such candidates. Another potential research agenda concerns itself with connecting the attributes of MPs to the quality of governance at large in India.
Indeed the quality of governance is a problem. Since the national elections in 2009, the incumbent United Progressive Alliance (UPA) has been besieged by a seemingly endless stream of corruption scandals, calling into question the quality of their governing ability by many of their critics. The sheer magnitude of these scandals (such as the 2G spectrum allocation scam which resulted in hundreds of billions INR of lost revenue for the government) leads one to marvel at the fact that the UPA will be able to serve out its full term in office by the time elections will be held in 2014. The UPA is not alone in being tied to corrupt behavior however: India is replete with examples of grand corruption at all levels of government, regardless of which party is in power. The natural conjecture is that the proliferation of criminal politicians, along with the presence of a criminal political nexus, are somehow related to these corruption scandals occurring on a regular basis.
Political reforms aimed at increasing the quality of politicians in India, whether it’s the candidate disclosure requirements mandated in 2003 by India’s Supreme Court, or Mr. Panda’s proposed reforms aimed at screening out criminal politicians, carry with them the implicit assumption that increasing the quality of representatives will lead to better governance. In other words, cleaner MPs will lead to a cleaner Parliament. This assumption cannot be taken for granted as it is entirely possible to have a Parliament free of individuals with checkered pasts, yet still have a government that is consistently engaged in corrupt behavior. The larger issue is whether or not these reforms aimed at removing criminals from the political arena will lead to better governance.
One way to answer this is to compare the behaviors and actions of MPs with criminal records, with those without. If there is a difference, and if non criminal MPs are normatively better, then it is possible that these reforms will make for a cleaner, and more effective, Parliament. On the other hand, if there is no observable difference between the two types of MPs, then this would either mean that the concerns about the criminalization of Indian politics is overblown, or that we should be concerned about the quality of representatives, and representation, in India at large, and not solely focus on those with criminal records.
Comparing Parliamentarians
At a minimum, MPs are asked to represent the interests of their constituents by attending Parliament, participate in debates and question hour, and engage in executive over sight by participating in Department Related Standing Committees. Additionally, MPs are given a yearly allotment of funding meant for development related projects within their constituency (MPLADS), a program that began in 1993. As is the case in many parliamentary democracies, policies are formulated within the cabinet meaning the MPs have little direct influence on the content of legislation.
PRS Legislative Research tracks the attendance rate, and participation of MPs in debates and question hour for all MPs beginning in 2004. They have generously posted these data on their website. An analysis of these data for MPs who were in office between 2004 and 2011 has revealed that the only difference between criminal MPs and non criminal MPs is that the former attend Parliament less, with an attendance rate 6 to 9 percentage points less. With respect to debates and questioning, there is no statistically significant difference between the two types of MPs. With regards to the use of MPLADS funds, an analysis of expenditure data for MPs elected in 1999 (data provided by Phil Keefer of the World Bank) reveals again that there is no statistically significant difference in MPLAD spending between the criminal and non criminal MPs. Taken together, the only difference between criminal and non criminal MPs seems to be that criminal MPs attend Parliament less.
What does it all mean?
Does the lower attendance rate of criminal MPs imply that they are bad representatives? Not necessarily. Keen observers of Indian politics have remarked that Members of Parliament (and their state level counterparts) have little incentive to attend Parliament since their actions within Parliament contributes very little to their ability to get re-elected. Indeed, a civically minded MP (especially if he is in the opposition) has every reason to devote his time and energy at home performing constituency service, instead of being in Parliament exerting energy on tasks for which there is little political reward. This logic is backed up by the fact that there is no relationship between the level of MPLAD spending by MPs and their chances of being re-elected.
Does the lack of a difference on other dimensions mean that non criminal MPs are bad representatives? Again, not necessarily. It may be the case, and even likely, that civically minded MPs are not given the resources and responsibilities to differentiate themselves from criminal MPs, and thus be rewarded for their good performance by party leaders and their constituents. Indeed, the underlying problem in India might be that MPs lack the incentives to vigorously pursue their duties in New Delhi, giving opportunistic politicians the chance to engage in bad behavior without any real fear of being caught. The paradoxical solution may be to empower Parliament and MPs, despite the fact that many in India hold justifiably cynical views about their government.
In conclusion, the reforms aimed at cleaning the pool of candidates for Parliament is an excellent start to reforming government, but it may not be enough. Reforms that empower MPs and allow clean MPs to differentiate themselves from criminal (or corrupt) MPs are also needed to strengthen the electoral connection between good behavior and political ambition.
Devesh Tiwari is a PhD candidate in Political Science at the University of California, San Diego. His website is http://polisci2.ucsd.edu/dtiwari/
Posted in Special Series: Decriminalisation of Indian Politics | 1 Comment
May 9, 2013
“Criminal Politics”: A Byproduct of Ethnic Voting?
Simon Chauchard
The frequency with which alleged or convicted criminals manage to gain public office threatens the ideals and the functioning of the Indian democracy.
While I see no need to repeat the alarming sets of statistics presented in previous posts, let me simply add one additional concern to this enumeration: the problem might be getting bigger. During the 2007 election in UP, 140 of these candidates won assembly seats. During the 2012 election, 189 of these candidates won assembly seats. While some have attributed this increase to the change in winning party, this explanation appears to be inaccurate. All major parties – throughout the country – have fielded criminals and it is not impossible that we might be faced with a spiraling upward trend and an increasing reliance on criminals on the behalf of parties, especially given the exponential costs of elections in India.
Jay Panda’s propositions represent a step in the right direction. If they can be voted as such, these propositions will effectively change the composition of assemblies. As such, they should restore some confidence in the democratic process among voters. Obviously, one would have to ensure that these ambitious reforms are implemented on the ground, which may necessitate further reforms and/or the channeling of additional resources, especially in the judicial field.
Yet, even if these reforms were impeccably implemented, they would unfortunately remain insufficient if the objective is to tackle the influence of the criminal world on politics. It is difficult to imagine that criminals would be incapable of adapting to more stringent laws. Criminals wanting to play a role in politics could easily manage to get proxies elected to their former positions. Politicians associated with the underworld might also get better at delegating criminal acts to lieutenants in order to shield themselves from potential prosecutions (I for one have always wondered why powerful men take the risk of hurting people themselves, as is reportedly the case with a sizable number of Indian MLAs, instead of delegating this task).
All this isn’t to detract from the merits of Jay Panda’s suggestions, but to point out that campaign financing (and its control) would need to be drastically reformed if we are serious about curbing the influence of criminality on politics. Discussion on this issue has been concentrated on the number of criminals in assemblies. But we should keep in mind that the crux of the matter is to limit the scope and influence of criminal interests, and not simply to limit the presence of criminal figures in assemblies.
More generally speaking, removing criminals from assemblies would only yield marginal benefits if the larger issues that caused criminals to be elected in the first place were not simultaneously treated.
What are these causes? To build on Milan Vaishnav’s framework, why do parties give criminals tickets, and why do voters prefer them to other candidates in competitive elections?
On the subject of parties’ penchant for criminals, I agree with Vaishnav’s point that the exponential cost of campaigns and the absence of effective controls on party finances are to blame. Concerning voters’ preferences for criminals – the aspect on which my work has so far focused — I would however like to devote the rest of this post to entertain another possible explanation.
Here is a brief summary of the discussion on this topic. There are several possible reasons why Indian voters elect so many “criminal types” to local and national assemblies. Some authors have suggested that criminals might be able to intimidate voters prior to the vote. A second explanation has focused on the availability of information about candidates: voters may simply not know of the criminal past or the criminal affiliations of candidates. A third range of arguments has finally suggested that well-informed voters prefer or are indifferent to “criminal” candidates. A version of this “taste-based” argument suggests that well-informed voters may actually prefer “criminal” candidates over “clean” candidates in certain contexts. Proponents of this view base their reasoning on ethnographic intuitions about the appeal of “strongmen” among certain groups and in certain areas of India: in ethnically-tense contexts, voters may prefer alleged criminals to other types of co-ethnic candidates insofar as criminality can be seen as a mark of the credibility or the effectiveness of the politician (this is, I believe, the argument Vaishnav made in the previous post).
While there is some value to each of these explanations, I believe there is a much simpler and much more general explanation for why Indian voters end up selecting criminals with such regularity. This explanation has to do with the disproportionate role that ethnicity (mainly caste and religion) plays in voters’ preferences.
Voters may vote for criminals even though they do not value criminality. The intuition behind this apparent paradox is simple: if voters perceive that they would be significantly better-off with a coethnic than with a non-coethnic, but only marginally better-off with a non-criminal than with a “criminal” representative, they might prefer a criminal candidate who is a co-ethnic to a non-criminal one who is not.
According to this argument, the criminalization of assemblies does not stem from voters’ lack of information, their indifference to or preference for criminals, but rather due to the fact that Indian voters are trapped in ethnicity-based decisions. Even if they dislike criminals, voters may be tempted to vote for them because of their ethnicity. In other words, ethnicity may trump candidate quality.
If this hypothesis is correct, then part of the blame lies in the disproportionate influence of ethnicity on voting decisions, and in what causes ethnicity to be the defining feature of Indian politics.
This differs from Vaishnav’s argument insofar as it suggests that voters do not even need to view criminality as an asset in order to select criminals. Aside from this nuance, in broader terms, I agree with Vaishnav about the major changes that need to be implemented in order to make sure that voters make more enlightened choices. As long as the state is unable to “impartially deliver benefits, physical safety and timely justice,” politics will be continue to be based on some form of patronage. As long as politics is based on patronage, it will likely be based on ethnicity. And as long as politics is based on ethnicity, voters’ primary incentives will not be to pick virtuous candidates.
Simon Chauchard is an Assistant Professor of Government at Dartmouth College
This article is being run as a part of our special series ’Decriminalization of Indian politics’. To know more/comment/contribute mail us at policyblog@oxfordindiasociety.org.uk
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May 1, 2013
The Demand for Criminal Politicians
Milan Vaishnav
The criminalization of politics is fast becoming one of the defining features of contemporary Indian democracy, with one in four Members of Parliament facing criminal charges. The situation at the state and local level, though lacking comparable scrutiny, is of a similar order: of more than 4,000 state assembly constituencies, roughly one in five is home to a sitting politician with at least one criminal case. Based on data collected by the Association for Democratic Reforms, 17% and 21% of corporators in Mumbai and Delhi, respectively, have declared criminal cases.
These facts should banish any doubt that criminality is an embedded feature of India’s post-independence democracy. In order to address this nexus, Member of Parliament Baijayant “Jay” Panda, writing in these pages, has recently introduced three Private Members’ Bills in the Lok Sabha.
To summarize, Panda’s bills would accomplish the following:
Remove the exception that MPs, MLAs and MLCs can serve in the legislature after conviction
Establish fast-track courts for trials under 90 days for any elected representative facing a criminal case
Amend existing statute to empower independent and effective prosecutions.
Panda is to be commended for snapping a long tradition of parliamentary silence following commission upon commission recommending action. In my view, it is helpful to think of criminal politicians in India operating in a marketplace of sorts. As with any functioning market, there are underlying supply and demand factors at work. Panda’s bills would largely address the supply-side of the equation. Yet without commensurate action on the demand side, I fear that Panda’s solutions—if enacted—will be partial. That does not mean we should not pursue his bills with alacrity; rather, it means we should be aware of the gaps and address them systematically.
In my view, we need to ask two fundamental questions about the “demand” for criminal politicians: why do parties select politicians with criminal records? And, given that parties give tickets to such candidates, why do voters vote for them?
Why do political parties nominate criminal candidates?
In one sense, the answer to why parties nominate criminal candidates is obvious: because they win. If one were to pick at random a candidate contesting national polls, he/she would—on average—have a one in fifteen chance of winning. On the other hand, nearly one in five candidates facing criminal charges is successful. Of course, to say that parties pick “winnable” candidates is uninteresting; we want to know what makes them winnable. Let’s begin by stipulating to two facts about Indian elections.
First, political parties in India—virtually across the spectrum—lack credible intra-party democracy. As a result, party elites play an outsized role in choosing candidates and their personal preferences play a large role in selection. Furthermore, ideology is largely an afterthought. Second, the costs of running a viable campaign have skyrocketed and so parties place a premium on candidates who will not drain party coffers and can “self-finance.”
When it comes to campaign cash, candidates linked to criminality have a distinct advantage: they have access to liquid forms of finance to deploy in the service of politics. Consider a simple statistic drawn from candidates competing in the 2004 and 2009 parliamentary elections: roughly 6% of candidates in the lowest quintile of candidate wealth are under indictment, compared to nearly 20% of candidates in the top quintile. Money and “muscle” are inexorably linked.
Why do voters vote for criminal candidates?
Money is an important part of the story but, on its own, is insufficient as an explanation. After all, political parties can (and often do) fulfill their resource maximization objective by recruiting wealthy but non-criminal candidates. Yet politicians with criminal reputations possess a second advantage. Research from sites as wide-ranging as urban Gujarat to rural Bihar and southern Andhra Pradesh finds that candidates often use their criminality as a sign of their credibility to protect the interests of their parochial community.
With a demonstrated willingness (and ability) to flaunt the rules, candidates with criminal reputations prove their potential to accomplish two things effectively in a system that often struggles to deliver results. First, they show that they will do what it takes—by hook or crook—to bring home the spoils of power. Second, their reputation helps them keep power by acting as a coercive deterrent against rival groups and supplanting inefficient official channels of conflict resolution.
This argument has far-reaching implications because it suggests that information about a candidate’s criminality is not only available, but is integral to understanding the candidacy’s viability.
What is to be done?
Unfortunately, addressing the demand side of criminality in politics is not quite as easy as devising solutions like Panda’s to curb supply. If the constraint on the demand side were about the lack of information about candidates’ biographies, one could imagine constructing a large-scale awareness campaign.
Alas, the situation is far more complex; but it is not hopeless. As far as parties are concerned, parliament should consider providing the Election Commission of India (ECI) with greater authority to regulate political parties and their activities in ways that make criminal candidates less attractive to party bosses (primarily by making intra-party democracy and transparency in the nomination process a requirement of registering as a political party) and to expose and to curtail illicit finance.
Recent developments in this latter regard do not bode well. For many months, the ECI has been pursuing a case against the former Chief Minister of Maharashtra, Ashok Chavan, for paying off journalists during his 2009 campaign. The government, rather than backing the ECI, has openly challenged the Commission’s power to disqualify a candidate for falsifying election finance reports. As one former Chief Election Commissioner recently wrote: “If the ECI’s powers are curbed, the whole activity of regulating election expenditure will come to a standstill with none having the authority to question and discipline the wrong-doers.”
Improving intra-party democracy and cleaning up campaign finance addresses the incentives of parties, but not of voters. To address voters, we need an honest conversation about the state of civil administration in the country. Here, there are truly no short-cuts to get behind: given the state’s inability to impartially deliver benefits, physical safety and timely justice—in a context of polarized identity politics—voters often view a criminal reputation as an asset, rather than a liability. There is no escaping the reality that the weak Indian state has been a part of the problem, but it is high time parliament makes strengthening it part of the solution.
Milan Vaishnav is an associate with the South Asia program at the Carnegie Endowment for International Peace in Washington, D.C. You can follow him on Twitter @MilanV
http://policyblog.oxfordindiasociety.org.uk/2013/05/01/the-demand-for-criminal-politicians/#more-201
April 29, 2013 by oxfordindiasociety
Proposals for Decriminalising politics in India
Baijayant ‘Jay’ Panda, Member of Parliament, Lok Sabha
The expert comments as well as gossip about the next general elections is growing louder by the day. Political parties are re-positioning themselves to increase their likelihood of forming the government in 2014. Amidst this hullaballoo, the political class has conveniently turned a deaf ear to the calls by civil society groups to undertake critical electoral reforms such as decriminalising politics.
Several government-appointed Commissions have already made clear recommendations for reforms, but the political will to implement these recommendations in letter and spirit is lacking. At a recent conference on decriminalisation of politics, the Law Minister acknowledged the problem but chose to refer it to yet another Law Commission specially constituted for the purpose. Instead of dilly-dallying, a government that genuinely intends to bring about reform should instead be using its energies to build political consensus to tackle these issues at the earliest. The opposition, too, shares the responsibility for making this happen.
We have allowed criminalisation in politics to go completely unchecked. The numbers are appalling. In the Lok Sabha (the Lower House of the Indian Parliament), 76 of the 543 members elected in 2009 had been charged with serious criminal offences such as murder, rape and dacoity.
Under the present setup, getting elected to the legislature becomes a convenient shield to delay and extend the legal processes and escape being convicted. The Second Administrative Commission noted that the “opportunity to influence crime investigations and to convert the policemen from being potential adversaries to allies is the irresistible magnet drawing criminals to politics.”
Surprisingly, the current law goes overboard in offering protection to those convicted of criminal offences. Section 8(4) of the Representation of People Act, 1951 allows a Member of Parliament (MP) or a Member of a State Legislature (MLA or MLC) to retain his or her seat in the House even when convicted, if he or she appeals against the conviction.
The Supreme Court is currently in the process of hearing two Public Interest Litigations (PILs) that challenge this section on the ground of violating the right to equality under the Constitution of India. While the Representation of People Act, 1951 debars candidates convicted of serious offences from contesting elections for six years after their release from prison, Section 8 (4) of the same Act makes an exception for sitting legislators. This grants an unfair advantage by allowing convicted legislators to contest elections, while at the same time denying the right to those who are convicted but do not hold office.
In addition, political patronage and a ‘culture of adjournment’ collude to prevent speedy trials against elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for an accused elected representative.
I have recently submitted three Private Members’ Bills in the Lok Sabha that aim to attack the roots of this problem. My first Bill proposes to amend the Representation of People Act, 1951 to remove the exception that allows MPs & MLAs/ MLCs to continue in the Legislature even after conviction. The second would set up Fast Track Courts for speedy trials (within 90 days) of criminal cases against all elected representatives. This would expedite criminal cases against all MPs, MLAs/ MLCs and elected members of Panchayats and Municipalities established under the State Panchayati Raj Legislations. The third would amend the Code of Criminal Procedure to empower independent and effective prosecutors.
In a country that is infamous for its snail-paced judiciary and the gargantuan pendency of cases, the simple tweak that fast-tracks criminal cases against elected representatives will go a long way towards resolving the problem. Unlike some other proposals that bar candidates from contesting elections if charged with criminal cases, this solution would not vitiate the presumption of innocence, and should be seen as a ‘privilege’ given to elected representatives, an opportunity to quickly clear their names of malicious or frivolous allegations.
To ensure that proceedings don’t suffer due to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the current Code of Criminal Procedure calls for ‘consultation’ with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Often, special public prosecutors are appointed at the whims and fancies of the government, without adequate reasoning, to suit special interests.
My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state. It requires that each public prosecutor must be appointed with the ‘concurrence’ of the presiding judge of the court, and also sets down objective criteria for the total number of prosecutors (the shortage of whom is another current problem). The Bill also brings in transparency in the appointment of special public prosecutors, by requiring a detailed and written explanation from the government about the reasons for each appointment.
There is an urgent need to break the criminal-political nexus. Unless some decisive action is taken soon, the public will lose all faith in politics, politicians and democracy itself. This will do irreparable damage to our republic. I recognise that Private Members’ Bills haven’t been passed by our Parliament in decades. Nevertheless, they serve as useful tools to build awareness, gather public support and pressurise the government. The next general elections are around the corner. There is no time to lose.
–
Mr. Panda’s Private Members’ Bills may be accessed at:
The Representation of People (Amendment) Bill, 2013: http://bit.ly/151hspo
Fast Track Courts for Elected Representatives Bill, 2013: http://bit.ly/XfP6FE
The Code of Criminal Procedure (Amendment) Bill, 2013: http://bit.ly/15pemga
Twitter: @Panda_Jay; Facebook: https://www.facebook.com/Baijayant.Jay.Panda?fref=ts
This article is being run as a part of our special series ’Decriminalization of Indian politics’. To know more/comment/contribute mail us at policyblog@oxfordindiasociety.org.uk
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2 thoughts on “Proposals for Decriminalising politics in India”
Satyaki Dasgupta | April 29, 2013 at 11:58 am
great initiative by Jay Panda. To stop criminals entering into politics we need both Judicial and election reform. My blog on them. Judicial reform – http://sonarbharat.blogspot.in/p/judiciary-reform.html, Election reform – http://sonarbharat.blogspot.in/p/democracy.html
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Pratap Ch Bhanja | April 30, 2013 at 4:25 pm
The ideas & thoughts expressed by Mr. Panda are great. His effort is sincerely laudable. However, self have some points mentioned here.
Make some mandatory rules for cleaning up political system:
1) A candidate contesting for assembly (for MLA/MLC) election must be a high school (10th Std.) pass-out and, anybody wishing to contest in parliament (for MP) election must be a graduate.
2) Anybody with less than 40% marks in two languages papers (English & MIL) in matriculation (10th Std.) examination, would not qualify for contesting election of any house and, also any management body (e.g. corporation bodies).
3) Anybody with more than 3 criminal cases against him cannot contest, in both assembly & parliament election, till the time he/she is cleared at least two of them.
4) Anybody with any serious criminal cases (like rape, murder, docaity, acting against national interest, conspiracy against head of state, etc.) against him cannot contest, in both assembly & parliament election, for life-long once convicted.
5) CBI should be made independent & free from government (that is definitely political) and made a body like Election Comission directly answerable to President of India.
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http://policyblog.oxfordindiasociety.org.uk/2013/04/29/proposals-for-decriminalising-politics-in-india/
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Special Series: Decriminalisation of Indian Politics
May 22, 2013
[De]Criminalisation of Politics – The Full Monty
Shining Path
“To reason with governments, as they have existed for ages, is to argue with brutes” – Thomas Paine, Rights of Man.
Last July, the Electoral College comprising MPs from both houses of Parliament and MLAs from the various State Legislative Assemblies in India cast their votes to elect the President of India.
However, what went unreported is that out of the 4800 odd members of the aforementioned Electoral College, a not insignificant number of worthies had declared criminal cases against their names on their pre-election affidavits. A report by Association of Democratic Reforms [ADR], highlighted this aspect, and I quote:
“National Election Watch [NEW] has analyzed the affidavits submitted to the Election Commission of India [ECI] of 772 out of 776 MPs and 4063 out of 4120 MLAs [a total of 4835 out of 4896] in all the states of India which form the Electoral College. Out of the 4835 MPs/MLAs, 1448 have declared criminal cases against them in a self sworn affidavit filed with the ECI.Out of these 1448 who have declared criminal cases, 641 MPs/MLAs have declared serious criminal cases like rape, murder, attempt to murder, kidnapping, robbery, extortion etc.
There are 6 MPs/MLAs who have declared rape charges…. There are 141 MPs/MLAs who have declared murder charges, 352 have declared attempt to murder charges, 145 have declared theft charges, 90 have declared kidnapping charges and 75 have declared dacoity charges.”
Don’t wish to commit? Form a committee:
When did Indian Politics start its downward slide from the lofty to the grotesquely vile, till it finally reached a point where some even question the very sanctity of the Parliament? Various political analysts have suggested that the electoral landscape was first spotted sporting some serious gangarene-esque wounds in the early 1970’s. Things went pretty much downhill from there on – slip sliding away into a virtual cesspool.
Ironically, the political establishment has made multiple breathtakingly insincere attempts to tackle this malaise over the past 38 years. By forming committees! Here is the list below:
1975 - Tarkunde Committee Report
1990 - Goswami Committee on Electoral Reforms
1993 - Vohra Committee Report
1998 - Indrajit Gupta Committee on State Funding of Elections
1999 - Law Commission Report on Reform of the Electoral Laws
2001 - National Commission to Review the Working of the Constitution
2004 - Election Commission of India – Proposed Electoral Reforms
2008 - The Second Administrative Reforms Commission
2010 - Background Paper on Electoral Reforms [Ministry of Law]
Here are two more that are equally incisive, though not an outcome of some government- appointed committee:
2002 - Background Paper on Electoral Reforms [Dr Jayaprakash Narayan]
2011 - NEW Recommendations for Electoral Reforms [submitted to Law Ministry & Election Commission of India]
Bury all the reports:
These reports pull no punches, are devoid of euphemisms and hit home hard on several key issues pertaining to all three stages of the Electoral Process: the pre, the actual process and the post.
Other than a few cosmetic and ineffective changes to the rules of engagement [anti-defection; a form here and an affidavit there, to capture criminal antecedents of candidates, declaration of assets etc], the reports have led to very little meaningful progress or reforms. Unless of course one assigns any meaning and weight to the highfalutin, high-minded and incredibly vacuous utterances on the subject by leaders from all political parties, and mistakes the same for action.
The evidence in support of the case that politicians have been sincerely trying to clean up the Electoral System, despite the well-meaning observations and recommendations of bureaucrats, academicians, legal luminaries, simply does not stack up. In fact, what becomes amply evident is that the current electoral landscape holds too many hidden contradictions in its folds, and hence can be summarily dismissed as one that is inconsistent and unstable. The most stunning contradiction of it all being, the power to make effective changes and modifications rests with the very same people who stand to lose the most [private gains, private wealth, private power] were such changes to be effected
The unholy troika of crime, business and politics:
Much ink has flowed on this subject – hence I will limit the narrative to the most essential. Perhaps the most trenchant views that have been expressed on this matter, have found their way into the slew of reports on Electoral Reforms.
“Over time, the money power thus acquired [by organized crime/mafia] is used for building up contacts with bureaucrats and politicians and expansion of activities with impunity. The money power is used to develop a network of muscle power which is also used by the politicians during elections…. The nexus between the criminal gangs, police, bureaucracy and politicians” [one could add unethical business establishments to this list] “has come out clearly in various parts of the country”, noted the Vohra Committee Report.
After defining the form, construct and scale of the problem, almost all the reports then proceed to focus extensively on remedial measures and recommendations. As T.S.Krishnamurthy, Chief Election Commissioner 2004 noted, these measures “would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses”.
Space constraints prevent me from delving deeper into the issue, but suffice to say a re-look at some of the sections from the Representation of People Act, 1951 [click here and here for some insights into this] is pretty much a sine qua non, if the pachyderm in the room needs to be evicted. Alas, those who need to evict it, refuse to even acknowledge its presence, save for a few platitudes hither and a few near-anal banal mutterings thither.
It is not entirely uncommon to find people referring to the state of affairs – in hushed tones – as some mutant rotting version of democracy that is being run by a handful of feudal overlords who also happen to be elected repress-entatives. Whilst it is nobody’s case that such perceptions are not exaggerated depictions of reality, the other side to that story is that perceptions are never formed in a vacuum and the overwhelming perception in my neck of the woods is that the fence is not only eating the crop, it is also threatening to steal our goats and our fowls!
Weeding out this evil is quite easy – on paper. Legislative action, changes in the Criminal Justice System [with special focus on how the system gets gamed when it comes to the “influential” and the “politically connected”], voter awareness, leveraging mobile tele-density to disseminate vital information about contestants, incorporating None of The Above [NOTA] option on the Electronic Voting Machines, moving away from First-past-the-post and towards Proportional Representation, recalibrating the election funding process and bringing in transparency into it [State funding? Mandatory donor list?], Public Interest Litigations that highlight and challenge the loopholes and grey areas [Section 8(4) of the RPA, 1951 being one example] but the most likely next step will be this – the lawmakers, some of whom are themselves lawbreakers, will appoint another committee that studies the recommendations of all previous committees.
Kicking the can down the road.
It all boils down to four words – Lack of Political will.
Shining Path is a frequent blogger on CNN IBN’s Firspost.com and can be reached at shining.path.notperu@gmail.com.To read his other posts on criminalization of politics, politics as a means to generate obscene amounts of personal wealth [nation be damned], electoral reforms, criminal justice system, police reforms, judicial reforms, the great Indian silence factory [Mainstream Media] and other such useless, irrelevant and burning issues, click here.. http://www.firstpost.com/author/shiningpath.
May 20, 2013
Do Cleaner MPs Lead to a Cleaner Parliament?
Devesh Tiwari
The public release of candidate affidavit data has confirmed many of the suspicions that the public has had about the criminalization of Indian politics. As noted by nearly everyone who pays attention, candidates who have been charged with committing a crime, even violent and serious ones, are more likely to win elections than candidates with a clean record. The startling result that nearly one in four Members of Parliament (MPs) in the Lok Sabha have a criminal record has sparked a research agenda devoted to explaining why voters are willing to support such candidates. Another potential research agenda concerns itself with connecting the attributes of MPs to the quality of governance at large in India.
Indeed the quality of governance is a problem. Since the national elections in 2009, the incumbent United Progressive Alliance (UPA) has been besieged by a seemingly endless stream of corruption scandals, calling into question the quality of their governing ability by many of their critics. The sheer magnitude of these scandals (such as the 2G spectrum allocation scam which resulted in hundreds of billions INR of lost revenue for the government) leads one to marvel at the fact that the UPA will be able to serve out its full term in office by the time elections will be held in 2014. The UPA is not alone in being tied to corrupt behavior however: India is replete with examples of grand corruption at all levels of government, regardless of which party is in power. The natural conjecture is that the proliferation of criminal politicians, along with the presence of a criminal political nexus, are somehow related to these corruption scandals occurring on a regular basis.
Political reforms aimed at increasing the quality of politicians in India, whether it’s the candidate disclosure requirements mandated in 2003 by India’s Supreme Court, or Mr. Panda’s proposed reforms aimed at screening out criminal politicians, carry with them the implicit assumption that increasing the quality of representatives will lead to better governance. In other words, cleaner MPs will lead to a cleaner Parliament. This assumption cannot be taken for granted as it is entirely possible to have a Parliament free of individuals with checkered pasts, yet still have a government that is consistently engaged in corrupt behavior. The larger issue is whether or not these reforms aimed at removing criminals from the political arena will lead to better governance.
One way to answer this is to compare the behaviors and actions of MPs with criminal records, with those without. If there is a difference, and if non criminal MPs are normatively better, then it is possible that these reforms will make for a cleaner, and more effective, Parliament. On the other hand, if there is no observable difference between the two types of MPs, then this would either mean that the concerns about the criminalization of Indian politics is overblown, or that we should be concerned about the quality of representatives, and representation, in India at large, and not solely focus on those with criminal records.
Comparing Parliamentarians
At a minimum, MPs are asked to represent the interests of their constituents by attending Parliament, participate in debates and question hour, and engage in executive over sight by participating in Department Related Standing Committees. Additionally, MPs are given a yearly allotment of funding meant for development related projects within their constituency (MPLADS), a program that began in 1993. As is the case in many parliamentary democracies, policies are formulated within the cabinet meaning the MPs have little direct influence on the content of legislation.
PRS Legislative Research tracks the attendance rate, and participation of MPs in debates and question hour for all MPs beginning in 2004. They have generously posted these data on their website. An analysis of these data for MPs who were in office between 2004 and 2011 has revealed that the only difference between criminal MPs and non criminal MPs is that the former attend Parliament less, with an attendance rate 6 to 9 percentage points less. With respect to debates and questioning, there is no statistically significant difference between the two types of MPs. With regards to the use of MPLADS funds, an analysis of expenditure data for MPs elected in 1999 (data provided by Phil Keefer of the World Bank) reveals again that there is no statistically significant difference in MPLAD spending between the criminal and non criminal MPs. Taken together, the only difference between criminal and non criminal MPs seems to be that criminal MPs attend Parliament less.
What does it all mean?
Does the lower attendance rate of criminal MPs imply that they are bad representatives? Not necessarily. Keen observers of Indian politics have remarked that Members of Parliament (and their state level counterparts) have little incentive to attend Parliament since their actions within Parliament contributes very little to their ability to get re-elected. Indeed, a civically minded MP (especially if he is in the opposition) has every reason to devote his time and energy at home performing constituency service, instead of being in Parliament exerting energy on tasks for which there is little political reward. This logic is backed up by the fact that there is no relationship between the level of MPLAD spending by MPs and their chances of being re-elected.
Does the lack of a difference on other dimensions mean that non criminal MPs are bad representatives? Again, not necessarily. It may be the case, and even likely, that civically minded MPs are not given the resources and responsibilities to differentiate themselves from criminal MPs, and thus be rewarded for their good performance by party leaders and their constituents. Indeed, the underlying problem in India might be that MPs lack the incentives to vigorously pursue their duties in New Delhi, giving opportunistic politicians the chance to engage in bad behavior without any real fear of being caught. The paradoxical solution may be to empower Parliament and MPs, despite the fact that many in India hold justifiably cynical views about their government.
In conclusion, the reforms aimed at cleaning the pool of candidates for Parliament is an excellent start to reforming government, but it may not be enough. Reforms that empower MPs and allow clean MPs to differentiate themselves from criminal (or corrupt) MPs are also needed to strengthen the electoral connection between good behavior and political ambition.
Devesh Tiwari is a PhD candidate in Political Science at the University of California, San Diego. His website is http://polisci2.ucsd.edu/dtiwari/
Posted in Special Series: Decriminalisation of Indian Politics | 1 Comment
May 9, 2013
“Criminal Politics”: A Byproduct of Ethnic Voting?
Simon Chauchard
The frequency with which alleged or convicted criminals manage to gain public office threatens the ideals and the functioning of the Indian democracy.
While I see no need to repeat the alarming sets of statistics presented in previous posts, let me simply add one additional concern to this enumeration: the problem might be getting bigger. During the 2007 election in UP, 140 of these candidates won assembly seats. During the 2012 election, 189 of these candidates won assembly seats. While some have attributed this increase to the change in winning party, this explanation appears to be inaccurate. All major parties – throughout the country – have fielded criminals and it is not impossible that we might be faced with a spiraling upward trend and an increasing reliance on criminals on the behalf of parties, especially given the exponential costs of elections in India.
Jay Panda’s propositions represent a step in the right direction. If they can be voted as such, these propositions will effectively change the composition of assemblies. As such, they should restore some confidence in the democratic process among voters. Obviously, one would have to ensure that these ambitious reforms are implemented on the ground, which may necessitate further reforms and/or the channeling of additional resources, especially in the judicial field.
Yet, even if these reforms were impeccably implemented, they would unfortunately remain insufficient if the objective is to tackle the influence of the criminal world on politics. It is difficult to imagine that criminals would be incapable of adapting to more stringent laws. Criminals wanting to play a role in politics could easily manage to get proxies elected to their former positions. Politicians associated with the underworld might also get better at delegating criminal acts to lieutenants in order to shield themselves from potential prosecutions (I for one have always wondered why powerful men take the risk of hurting people themselves, as is reportedly the case with a sizable number of Indian MLAs, instead of delegating this task).
All this isn’t to detract from the merits of Jay Panda’s suggestions, but to point out that campaign financing (and its control) would need to be drastically reformed if we are serious about curbing the influence of criminality on politics. Discussion on this issue has been concentrated on the number of criminals in assemblies. But we should keep in mind that the crux of the matter is to limit the scope and influence of criminal interests, and not simply to limit the presence of criminal figures in assemblies.
More generally speaking, removing criminals from assemblies would only yield marginal benefits if the larger issues that caused criminals to be elected in the first place were not simultaneously treated.
What are these causes? To build on Milan Vaishnav’s framework, why do parties give criminals tickets, and why do voters prefer them to other candidates in competitive elections?
On the subject of parties’ penchant for criminals, I agree with Vaishnav’s point that the exponential cost of campaigns and the absence of effective controls on party finances are to blame. Concerning voters’ preferences for criminals – the aspect on which my work has so far focused — I would however like to devote the rest of this post to entertain another possible explanation.
Here is a brief summary of the discussion on this topic. There are several possible reasons why Indian voters elect so many “criminal types” to local and national assemblies. Some authors have suggested that criminals might be able to intimidate voters prior to the vote. A second explanation has focused on the availability of information about candidates: voters may simply not know of the criminal past or the criminal affiliations of candidates. A third range of arguments has finally suggested that well-informed voters prefer or are indifferent to “criminal” candidates. A version of this “taste-based” argument suggests that well-informed voters may actually prefer “criminal” candidates over “clean” candidates in certain contexts. Proponents of this view base their reasoning on ethnographic intuitions about the appeal of “strongmen” among certain groups and in certain areas of India: in ethnically-tense contexts, voters may prefer alleged criminals to other types of co-ethnic candidates insofar as criminality can be seen as a mark of the credibility or the effectiveness of the politician (this is, I believe, the argument Vaishnav made in the previous post).
While there is some value to each of these explanations, I believe there is a much simpler and much more general explanation for why Indian voters end up selecting criminals with such regularity. This explanation has to do with the disproportionate role that ethnicity (mainly caste and religion) plays in voters’ preferences.
Voters may vote for criminals even though they do not value criminality. The intuition behind this apparent paradox is simple: if voters perceive that they would be significantly better-off with a coethnic than with a non-coethnic, but only marginally better-off with a non-criminal than with a “criminal” representative, they might prefer a criminal candidate who is a co-ethnic to a non-criminal one who is not.
According to this argument, the criminalization of assemblies does not stem from voters’ lack of information, their indifference to or preference for criminals, but rather due to the fact that Indian voters are trapped in ethnicity-based decisions. Even if they dislike criminals, voters may be tempted to vote for them because of their ethnicity. In other words, ethnicity may trump candidate quality.
If this hypothesis is correct, then part of the blame lies in the disproportionate influence of ethnicity on voting decisions, and in what causes ethnicity to be the defining feature of Indian politics.
This differs from Vaishnav’s argument insofar as it suggests that voters do not even need to view criminality as an asset in order to select criminals. Aside from this nuance, in broader terms, I agree with Vaishnav about the major changes that need to be implemented in order to make sure that voters make more enlightened choices. As long as the state is unable to “impartially deliver benefits, physical safety and timely justice,” politics will be continue to be based on some form of patronage. As long as politics is based on patronage, it will likely be based on ethnicity. And as long as politics is based on ethnicity, voters’ primary incentives will not be to pick virtuous candidates.
Simon Chauchard is an Assistant Professor of Government at Dartmouth College
This article is being run as a part of our special series ’Decriminalization of Indian politics’. To know more/comment/contribute mail us at policyblog@oxfordindiasociety.org.uk
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May 1, 2013
The Demand for Criminal Politicians
Milan Vaishnav
The criminalization of politics is fast becoming one of the defining features of contemporary Indian democracy, with one in four Members of Parliament facing criminal charges. The situation at the state and local level, though lacking comparable scrutiny, is of a similar order: of more than 4,000 state assembly constituencies, roughly one in five is home to a sitting politician with at least one criminal case. Based on data collected by the Association for Democratic Reforms, 17% and 21% of corporators in Mumbai and Delhi, respectively, have declared criminal cases.
These facts should banish any doubt that criminality is an embedded feature of India’s post-independence democracy. In order to address this nexus, Member of Parliament Baijayant “Jay” Panda, writing in these pages, has recently introduced three Private Members’ Bills in the Lok Sabha.
To summarize, Panda’s bills would accomplish the following:
Remove the exception that MPs, MLAs and MLCs can serve in the legislature after conviction
Establish fast-track courts for trials under 90 days for any elected representative facing a criminal case
Amend existing statute to empower independent and effective prosecutions.
Panda is to be commended for snapping a long tradition of parliamentary silence following commission upon commission recommending action. In my view, it is helpful to think of criminal politicians in India operating in a marketplace of sorts. As with any functioning market, there are underlying supply and demand factors at work. Panda’s bills would largely address the supply-side of the equation. Yet without commensurate action on the demand side, I fear that Panda’s solutions—if enacted—will be partial. That does not mean we should not pursue his bills with alacrity; rather, it means we should be aware of the gaps and address them systematically.
In my view, we need to ask two fundamental questions about the “demand” for criminal politicians: why do parties select politicians with criminal records? And, given that parties give tickets to such candidates, why do voters vote for them?
Why do political parties nominate criminal candidates?
In one sense, the answer to why parties nominate criminal candidates is obvious: because they win. If one were to pick at random a candidate contesting national polls, he/she would—on average—have a one in fifteen chance of winning. On the other hand, nearly one in five candidates facing criminal charges is successful. Of course, to say that parties pick “winnable” candidates is uninteresting; we want to know what makes them winnable. Let’s begin by stipulating to two facts about Indian elections.
First, political parties in India—virtually across the spectrum—lack credible intra-party democracy. As a result, party elites play an outsized role in choosing candidates and their personal preferences play a large role in selection. Furthermore, ideology is largely an afterthought. Second, the costs of running a viable campaign have skyrocketed and so parties place a premium on candidates who will not drain party coffers and can “self-finance.”
When it comes to campaign cash, candidates linked to criminality have a distinct advantage: they have access to liquid forms of finance to deploy in the service of politics. Consider a simple statistic drawn from candidates competing in the 2004 and 2009 parliamentary elections: roughly 6% of candidates in the lowest quintile of candidate wealth are under indictment, compared to nearly 20% of candidates in the top quintile. Money and “muscle” are inexorably linked.
Why do voters vote for criminal candidates?
Money is an important part of the story but, on its own, is insufficient as an explanation. After all, political parties can (and often do) fulfill their resource maximization objective by recruiting wealthy but non-criminal candidates. Yet politicians with criminal reputations possess a second advantage. Research from sites as wide-ranging as urban Gujarat to rural Bihar and southern Andhra Pradesh finds that candidates often use their criminality as a sign of their credibility to protect the interests of their parochial community.
With a demonstrated willingness (and ability) to flaunt the rules, candidates with criminal reputations prove their potential to accomplish two things effectively in a system that often struggles to deliver results. First, they show that they will do what it takes—by hook or crook—to bring home the spoils of power. Second, their reputation helps them keep power by acting as a coercive deterrent against rival groups and supplanting inefficient official channels of conflict resolution.
This argument has far-reaching implications because it suggests that information about a candidate’s criminality is not only available, but is integral to understanding the candidacy’s viability.
What is to be done?
Unfortunately, addressing the demand side of criminality in politics is not quite as easy as devising solutions like Panda’s to curb supply. If the constraint on the demand side were about the lack of information about candidates’ biographies, one could imagine constructing a large-scale awareness campaign.
Alas, the situation is far more complex; but it is not hopeless. As far as parties are concerned, parliament should consider providing the Election Commission of India (ECI) with greater authority to regulate political parties and their activities in ways that make criminal candidates less attractive to party bosses (primarily by making intra-party democracy and transparency in the nomination process a requirement of registering as a political party) and to expose and to curtail illicit finance.
Recent developments in this latter regard do not bode well. For many months, the ECI has been pursuing a case against the former Chief Minister of Maharashtra, Ashok Chavan, for paying off journalists during his 2009 campaign. The government, rather than backing the ECI, has openly challenged the Commission’s power to disqualify a candidate for falsifying election finance reports. As one former Chief Election Commissioner recently wrote: “If the ECI’s powers are curbed, the whole activity of regulating election expenditure will come to a standstill with none having the authority to question and discipline the wrong-doers.”
Improving intra-party democracy and cleaning up campaign finance addresses the incentives of parties, but not of voters. To address voters, we need an honest conversation about the state of civil administration in the country. Here, there are truly no short-cuts to get behind: given the state’s inability to impartially deliver benefits, physical safety and timely justice—in a context of polarized identity politics—voters often view a criminal reputation as an asset, rather than a liability. There is no escaping the reality that the weak Indian state has been a part of the problem, but it is high time parliament makes strengthening it part of the solution.
Milan Vaishnav is an associate with the South Asia program at the Carnegie Endowment for International Peace in Washington, D.C. You can follow him on Twitter @MilanV
http://policyblog.oxfordindiasociety.org.uk/2013/05/01/the-demand-for-criminal-politicians/#more-201
April 29, 2013 by oxfordindiasociety
Proposals for Decriminalising politics in India
Baijayant ‘Jay’ Panda, Member of Parliament, Lok Sabha
The expert comments as well as gossip about the next general elections is growing louder by the day. Political parties are re-positioning themselves to increase their likelihood of forming the government in 2014. Amidst this hullaballoo, the political class has conveniently turned a deaf ear to the calls by civil society groups to undertake critical electoral reforms such as decriminalising politics.
Several government-appointed Commissions have already made clear recommendations for reforms, but the political will to implement these recommendations in letter and spirit is lacking. At a recent conference on decriminalisation of politics, the Law Minister acknowledged the problem but chose to refer it to yet another Law Commission specially constituted for the purpose. Instead of dilly-dallying, a government that genuinely intends to bring about reform should instead be using its energies to build political consensus to tackle these issues at the earliest. The opposition, too, shares the responsibility for making this happen.
We have allowed criminalisation in politics to go completely unchecked. The numbers are appalling. In the Lok Sabha (the Lower House of the Indian Parliament), 76 of the 543 members elected in 2009 had been charged with serious criminal offences such as murder, rape and dacoity.
Under the present setup, getting elected to the legislature becomes a convenient shield to delay and extend the legal processes and escape being convicted. The Second Administrative Commission noted that the “opportunity to influence crime investigations and to convert the policemen from being potential adversaries to allies is the irresistible magnet drawing criminals to politics.”
Surprisingly, the current law goes overboard in offering protection to those convicted of criminal offences. Section 8(4) of the Representation of People Act, 1951 allows a Member of Parliament (MP) or a Member of a State Legislature (MLA or MLC) to retain his or her seat in the House even when convicted, if he or she appeals against the conviction.
The Supreme Court is currently in the process of hearing two Public Interest Litigations (PILs) that challenge this section on the ground of violating the right to equality under the Constitution of India. While the Representation of People Act, 1951 debars candidates convicted of serious offences from contesting elections for six years after their release from prison, Section 8 (4) of the same Act makes an exception for sitting legislators. This grants an unfair advantage by allowing convicted legislators to contest elections, while at the same time denying the right to those who are convicted but do not hold office.
In addition, political patronage and a ‘culture of adjournment’ collude to prevent speedy trials against elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for an accused elected representative.
I have recently submitted three Private Members’ Bills in the Lok Sabha that aim to attack the roots of this problem. My first Bill proposes to amend the Representation of People Act, 1951 to remove the exception that allows MPs & MLAs/ MLCs to continue in the Legislature even after conviction. The second would set up Fast Track Courts for speedy trials (within 90 days) of criminal cases against all elected representatives. This would expedite criminal cases against all MPs, MLAs/ MLCs and elected members of Panchayats and Municipalities established under the State Panchayati Raj Legislations. The third would amend the Code of Criminal Procedure to empower independent and effective prosecutors.
In a country that is infamous for its snail-paced judiciary and the gargantuan pendency of cases, the simple tweak that fast-tracks criminal cases against elected representatives will go a long way towards resolving the problem. Unlike some other proposals that bar candidates from contesting elections if charged with criminal cases, this solution would not vitiate the presumption of innocence, and should be seen as a ‘privilege’ given to elected representatives, an opportunity to quickly clear their names of malicious or frivolous allegations.
To ensure that proceedings don’t suffer due to ineffective or biased prosecution, my third Bill proposes to increase accountability and transparency in the appointment of prosecutors so as to shield them from political interference. Though the current Code of Criminal Procedure calls for ‘consultation’ with the judiciary for all appointments to the post of public prosecutor, the requirement has been diluted through amendments in many states. Often, special public prosecutors are appointed at the whims and fancies of the government, without adequate reasoning, to suit special interests.
My Bill mandates the establishment of a separate Directorate of Prosecution in each state with administrative control over all prosecutors in the state. It requires that each public prosecutor must be appointed with the ‘concurrence’ of the presiding judge of the court, and also sets down objective criteria for the total number of prosecutors (the shortage of whom is another current problem). The Bill also brings in transparency in the appointment of special public prosecutors, by requiring a detailed and written explanation from the government about the reasons for each appointment.
There is an urgent need to break the criminal-political nexus. Unless some decisive action is taken soon, the public will lose all faith in politics, politicians and democracy itself. This will do irreparable damage to our republic. I recognise that Private Members’ Bills haven’t been passed by our Parliament in decades. Nevertheless, they serve as useful tools to build awareness, gather public support and pressurise the government. The next general elections are around the corner. There is no time to lose.
–
Mr. Panda’s Private Members’ Bills may be accessed at:
The Representation of People (Amendment) Bill, 2013: http://bit.ly/151hspo
Fast Track Courts for Elected Representatives Bill, 2013: http://bit.ly/XfP6FE
The Code of Criminal Procedure (Amendment) Bill, 2013: http://bit.ly/15pemga
Twitter: @Panda_Jay; Facebook: https://www.facebook.com/Baijayant.Jay.Panda?fref=ts
This article is being run as a part of our special series ’Decriminalization of Indian politics’. To know more/comment/contribute mail us at policyblog@oxfordindiasociety.org.uk
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2 thoughts on “Proposals for Decriminalising politics in India”
Satyaki Dasgupta | April 29, 2013 at 11:58 am
great initiative by Jay Panda. To stop criminals entering into politics we need both Judicial and election reform. My blog on them. Judicial reform – http://sonarbharat.blogspot.in/p/judiciary-reform.html, Election reform – http://sonarbharat.blogspot.in/p/democracy.html
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Pratap Ch Bhanja | April 30, 2013 at 4:25 pm
The ideas & thoughts expressed by Mr. Panda are great. His effort is sincerely laudable. However, self have some points mentioned here.
Make some mandatory rules for cleaning up political system:
1) A candidate contesting for assembly (for MLA/MLC) election must be a high school (10th Std.) pass-out and, anybody wishing to contest in parliament (for MP) election must be a graduate.
2) Anybody with less than 40% marks in two languages papers (English & MIL) in matriculation (10th Std.) examination, would not qualify for contesting election of any house and, also any management body (e.g. corporation bodies).
3) Anybody with more than 3 criminal cases against him cannot contest, in both assembly & parliament election, till the time he/she is cleared at least two of them.
4) Anybody with any serious criminal cases (like rape, murder, docaity, acting against national interest, conspiracy against head of state, etc.) against him cannot contest, in both assembly & parliament election, for life-long once convicted.
5) CBI should be made independent & free from government (that is definitely political) and made a body like Election Comission directly answerable to President of India.
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