The dirty game

Why more and more can­di­dates with crim­i­nal back­ground con­test elec­tions?

Governance Now - - PEOPLE POLITICS POLICY PERFORMANCE - Chak­shu Roy Roy is the head of leg­isla­tive and civic en­gage­ment, PRS Leg­isla­tive Re­search.

Crim­i­nal­i­sa­tion of pol­i­tics is the fo­cus of pub­lic de­bate when dis­cus­sion on elec­toral re­forms takes place. This is­sue gets am­pli­fied when data high­lights an in­creas­ing num­ber of can­di­dates with crim­i­nal cases con­test­ing elec­tions. can­di­dates who win from jail bring out the stark re­al­ity of our elec­toral pol­i­tics. The supreme court and the elec­tion com­mis­sion have called out for a change in our elec­toral laws to pre­vent can­di­dates fac­ing crim­i­nal cases from con­test­ing elec­tions. The par­lia­ment has made some amend­ments to elec­toral laws to in­cor­po­rate the or­ders of the apex court and rec­om­men­da­tions of the elec­tion com­mis­sion. How­ever, the pol­icy re­sponse to ad­dress the chal­lenge of crim­i­nal­i­sa­tion of pol­i­tics has been one di­men­sional. only changes to the law have been made with the hope that it will solve this is­sue per­ma­nently. How­ever, the changes made in the law haven’t worked so far. The rea­son is that there is a gap in their in­tent and their im­ple­men­ta­tion. This gap then en­sures that the pur­pose of the law is de­feated.

The is­sue of the qual­ity of can­di­dates con­test­ing elec­tions be­comes im­por­tant be­cause it is at the root of our gov­er­nance chal­lenges. in­di­vid­u­als we elect rep­re­sent us in our leg­isla­tive in­sti­tu­tions and make laws that gov­ern our so­ci­ety. What kind of in­di­vid­u­als should they be? dr ra­jen­dra Prasad, pres­i­dent of the con­stituent assem­bly, re­flected on this is­sue while mov­ing the mo­tion for the pass­ing of our con­sti­tu­tion. He said, “if the peo­ple who are elected are ca­pa­ble and men of char­ac­ter and in­tegrity, then they would be able to make the best of even of a de­fec­tive con­sti­tu­tion. if they are lack­ing in these, the con­sti­tu­tion can­not help the coun­try. Af­ter all, a con­sti­tu­tion like a ma­chine is a life­less thing. it ac­quires life be­cause of the men who con­trol it and op­er­ate it, and in­dia needs today noth­ing more than a set of hon­est men who will have the in­ter­est of the coun­try be­fore them…it re­quires men of strong char­ac­ter, men of vi­sion, men who will not sac­ri­fice the in­ter­ests of the coun­try at large for the sake of smaller groups and ar­eas…we can only hope that the coun­try will throw up such men in abun­dance.”

The con­sti­tu­tion does not spec­ify what dis­qual­i­fies an in­di­vid­ual from con­test­ing in an elec­tion to a leg­is­la­ture. it is the rep­re­sen­ta­tion of Peo­ple Act which spec­i­fies what can dis­qual­ify an in­di­vid­ual from con­test­ing an elec­tion. The law does not bar in­di­vid­u­als who have crim­i­nal cases pend­ing against them from con­test­ing elec­tions. An in­di­vid­ual pun­ished with a jail term of more than two years can­not stand in an elec­tion for six years af­ter the jail term has ended. if a lower court has con­victed an in­di­vid­ual, he can­not con­test an elec­tion un­less a higher court has over­turned his con­vic­tion. Sim­ply fil­ing an ap­peal against the judg­ment of the lower court is not enough. in 2013, the apex court ruled that a sit­ting MP and MLA con­victed of a jail term of two years or more would lose their seat in the leg­is­la­ture im­me­di­ately. This judg­ment led to Lalu Prasad Ya­dav los­ing his mem­ber­ship to the Lok sabha in the same year.

crit­ics point out, that the dis­qual­i­fi­ca­tion of can­di­dates with crim­i­nal cases de­pends on their con­vic­tion in these cases. With cases drag­ging in courts for years, a dis­qual­i­fi­ca­tion based on con­vic­tion be­comes in­ef­fec­tive. Low con­vic­tion rates in such cases com­pounds the prob­lem. The As­so­ci­a­tion for demo­cratic re­forms (Adr) in their re­port from 2014 gave con­crete num­bers to this ef­fect. Ac­cord­ing to their re­port, 30% of sit­ting MPS and MLAS were fac­ing some form of crim­i­nal pro­ceed­ings, and only 0.5% were con­victed of crim­i­nal charges in a court of law. The law com­mis­sion in its re­port on elec­toral dis­qual­i­fi­ca­tion in 2014 ex­am­ined this is­sue. it de­lib­er­ated on whether dis­qual­i­fi­ca­tion from con­test­ing elec­tion should be trig­gered upon con­vic­tion as it ex­ists today, or at the time of fram­ing of charges by the court? it was of the opin­ion that, “dis­qual­i­fi­ca­tion at the stage of charg­ing, if ac­com­pa­nied by sub­stan­tial at­ten­dant le­gal safe­guards to pre­vent mis­use, has sig­nif­i­cant po­ten­tial in curb­ing the spread of crim­i­nal­i­sa­tion of pol­i­tics.”

The com­mis­sion went on to spec­ify some of these safe­guards. one of them be­ing that only crim­i­nal of­fences which have a max­i­mum pun­ish­ment of five years or more are to be in­cluded in this pro­vi­sion. The com­mis­sion sug­gested that charges filed up to one year be­fore the date of scrutiny of nom­i­na­tions would not lead to a dis­qual­i­fi­ca­tion. This safe­guard would then min­imise po­lit­i­cally mo­ti­vated cases from be­ing filed against an in­di­vid­ual be­fore an up­com­ing elec­tion. it also sug­gested that in the case charges framed against sit­ting MPS/MLAS the trial should be con­ducted on a day-to-day ba­sis and com­pleted within a year. The elec­tion com­mis­sion in its 2016 note on pro­posed elec­toral re­forms agrees with the rec­om­men­da­tion of the law com­mis­sion. Last month, the supreme court in an or­der favoured the cre­ation of spe­cial courts for ex­pe­dit­ing crim­i­nal cases in­volv­ing politi­cians. The gov­ern­ment has sub­mit­ted that it will set up a dozen such courts.

How­ever, nei­ther the ap­proach of the law com­mis­sion nor the cre­ation of spe­cial courts can work in iso­la­tion. These sin­gle-pronged ap­proaches do not tar­get the root of the prob­lem. data sug­gests that vot­ers don’t mind elect­ing can­di­dates fac­ing crim­i­nal cases. Voter be­hav­iour then em­bold­ens po­lit­i­cal par­ties to give tick­ets to such can­di­dates who can win an elec­tion on their ticket. sim­ply cre­at­ing a harsher law and en­sur­ing a spe­cialised court would not help. The harsher law will only re­sult in un­due po­lit­i­cal pres­sure on the ju­di­ciary to de­lay, de­rail or com­pro­mise the ju­di­cial process. sim­i­larly, we have spe­cialised tri­bunals and courts which have been formed to de­con­gest the reg­u­lar ju­di­cial sys­tem and ex­pe­dite cer­tain types of cases. But they have them­selves be­come clogged. Any spe­cial court made to ex­pe­dite crim­i­nal cases against sit­ting MPS and MLAS will face sim­i­lar chal­lenges. These spe­cial courts will also have to deal with the del­uge of new cases com­ing be­fore them as a new crop of can­di­dates starts win­ning elec­tions. in essence, a sin­gle-pronged leg­isla­tive and ju­di­cial so­lu­tion will not help re­form the elec­toral sys­tem in this coun­try. it will re­quire at­tack­ing the prob­lem on dif­fer­ent fronts. Ad­dress­ing the en­tire value chain of the elec­toral sys­tem will be the key to solv­ing the puz­zle of min­imis­ing crim­i­nal el­e­ments from get­ting elected to our leg­is­la­tures.

This process would in­volve sen­si­tis­ing the elec­torate about the role and re­spon­si­bil­ity of the elected rep­re­sen­ta­tives. cur­rently, a large part of the vot­ing pop­u­la­tion views their rep­re­sen­ta­tives as their prob­lem solvers. so they are will­ing to vote for a can­di­date who can get things done ig­nor­ing his in­volve­ment in a crime. View­ing their MP and MLA as law­mak­ers will slowly change their per­cep­tion of what they want from their rep­re­sen­ta­tive. This then re­quires a fresh pool of can­di­dates who can ap­peal to the vot­ers by their abil­i­ties as good law­mak­ers with in­no­va­tive ideas.

Po­lit­i­cal par­ties would then be pres­sured to give tick­ets to in­di­vid­u­als who can win elec­tions with­out hav­ing mus­cle power or crim­i­nal cases against them. But this would not be enough. Po­lit­i­cal par­ties will have to be en­cour­aged to have stronger in­ner party democ­racy to at­tract this new set of lead­ers to join the party. And fi­nally, our ju­di­cial sys­tem will have to be over­hauled dras­ti­cally to en­sure that jus­tice is dis­pensed swiftly in all cases. An ef­fi­cient ju­di­cial sys­tem will then en­sure the swift re­moval of in­di­vid­u­als who trans­gress the law from the po­lit­i­cal sys­tem.

All these steps will have to work in par­al­lel to re­move the scourge of crim­i­nal­i­sa­tion of pol­i­tics. if this is­sue re­mains un­ad­dressed, then it will hol­low out the foun­da­tions of our democ­racy.

Ashish asthana

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