The Nexus

Why is it so dif­fi­cult to find law­mak­ers with­out any crim­i­nal cases against them?

Governance Now - - FRONT PAGE - Pratap Vikram Singh

Prof Jagdeep chhokar of the As­so­ci­a­tion for demo­cratic re­forms (Adr) points out a stark irony of crime in in­dian pol­i­tics. “There are more than 3.5 lakh un­der­tri­als lan­guish­ing in in­dian pris­ons today. Many of them have al­ready spent more time in jail than they would if they had been con­victed. We are not al­low­ing them to vote. But there are politi­cians with se­ri­ous crim­i­nal cases against them who con­tinue to con­test elec­tions and make laws,” he says. if this irony per­sists, it is be­cause, de­spite much talk of clean­ing up pol­i­tics, lit­tle has been done.

The supreme court, how­ever, ini­ti­ated a small move­ment in that di­rec­tion on novem­ber 2, a swach­hata ab­hiyan of sorts for pol­i­tics. Act­ing on a pe­ti­tion from the Pub­lic in­ter­est Foun­da­tion, be­ing rep­re­sented by ad­vo­cate Ash­wani upad­hyay, a BJP spokesman him­self, the apex court di­rected the cen­tral gov­ern­ment to set up spe­cial courts to try within a year law­mak­ers fac­ing crim­i­nal cases; it gave the gov­ern­ment six weeks to sub­mit a de­tailed plan for set­ting up such courts. A bench of jus­tices ran­jan gogoi and navin sinha also said the cen­tre could not dis­claim re­spon­si­bil­ity for de­crim­i­nal­i­sa­tion of pol­i­tics, say­ing law and or­der is a state sub­ject. (on de­cem­ber 12, the gov­ern­ment re­sponded by say­ing it would set up a dozen such courts.)

Another plea from upad­hyay, how­ever, was thrown out of court. on de­cem­ber 1, the court struck a loud note for both free­dom of speech and the sep­a­ra­tion of pow­ers of the ex­ec­u­tive, the leg­is­la­ture and the ju­di­ciary, throw­ing out his plea seek­ing to debar con­victs from head­ing or float­ing po­lit­i­cal par­ties. The pe­ti­tioner prob­a­bly had in mind peo­ple like Lalu Prasad Ya­dav and om Prakash chau­tala, who have been de­barred from con­test­ing elec­tions but con­tinue to wield power through their par­ties. The bench com­pris­ing the chief jus­tice of in­dia, di­pak Misra, and jus­tices AM Khan­wilkar and dy chan­drachud asked why the court should de­cide on this and said the prob­lem was some­thing par­lia­ment and the gov­ern­ment might con­sider look­ing at.

As far as Upad­hyay’s first pe­ti­tion goes, though, the court said: “set­ting up of spe­cial courts and in­fra­struc­ture would be de­pen­dent on the avail­abil­ity of fi­nances with the states...the prob­lem can be re­solved by hav­ing a cen­tral scheme for set­ting up of courts ex­clu­sively to deal with crim­i­nal cases in­volv­ing po­lit­i­cal per­sons on the lines of the fast-track courts which were set up by the cen­tral gov­ern­ment for a pe­riod of five years and ex­tended fur­ther, which scheme has now been dis­con­tin­ued.” The pe­ti­tioner had men­tioned how gov­ern­ment of­fi­cials, right from the low­est lev­els to chief sec­re­tary level, were de­barred from tak­ing any of­fi­cial po­si­tion if they were con­victed in crim­i­nal cases. The sc clubbed this mat­ter along with a fol­low-up of its own 2014 or­der where it had di­rected the gov­ern­ment to make pro­vi­sions for such cases to be heard within one year – specif­i­cally, those men­tioned in the rep­re­sen­ta­tion of the Peo­ple Act.

“How many of the 1,581 cases in­volv­ing mem­bers of leg­isla­tive assem­bly (MLAS) and mem­bers of par­lia­ment (MPS) (as de­clared at the time of the fil­ing of the nom­i­na­tion pa­pers to the 2014 elec­tions) have been dis­posed of within the time-frame of one year as en­vis­aged by this court by or­der dated 10th March, 2014 passed in Writ Pe­ti­tion (civil) no. 536 of 2011? How many of these cases which have been fi­nally de­cided have ended in ac­quit­tal/con­vic­tion of MPS and MLAS, as may be?” the court asked. The bench also wanted to know if any new crim­i­nal case had been lodged against any present or for­mer MP or MLA be­tween 2014 and 2017 and its sta­tus.

Ac­cord­ing to the Adr, a group that has been cam­paign­ing for clean­ing up pol­i­tics, there are 1,581 leg­is­la­tors, at both cen­tral and state lev­els, fac­ing crim­i­nal charges at­tract­ing an im­pris­on­ment of over five years. The ADR 2014 gen­eral elec­tion re­sults anal­y­sis says the BJP has the max­i­mum num­ber and the pro­por­tion of win­ning can­di­dates with de­clared crim­i­nal cases – 98 out of 281 win­ners – comes to about 35 per­cent. There are 63 win­ners with se­ri­ous de­clared crimes, such as mur­der, at­tempt to mur­der, com­mu­nal dishar­mony, kid­nap­ping and crimes against women. That is 22 per­cent of the to­tal win­ners in the party. The pro­por­tion of can­di­dates fac­ing crim­i­nal and se­ri­ous crim­i­nal charges for the congress are 18 per­cent and 7 per­cent re­spec­tively. There are ten MPS fac­ing mur­der charges – four come from the BJP, one each from the congress, ncp, LJP, rjd and swab­hi­mani Pak­sha, and one is an in­de­pen­dent elected rep­re­sen­ta­tive. There are 17 MPS fac­ing charges of at­tempt to mur­der – 10 are with the BJP, two with All in­dia Tri­namool congress, one each from inc, ncp, rjd, shiv sena and swab­hi­mani Pak­sha.

“Tak­ing peo­ple with crim­i­nal back­ground out from pub­lic of­fice will surely have an im­pact. it’s a sword hang­ing on their (law­mak­ers) head, it will surely act as a de­ter­rent. it is a good be­gin­ning,” says Meenakshi Arora, a se­nior supreme court lawyer who rep­re­sents the elec­tion com­mis­sion of in­dia in the sc in upad­hyay’s pe­ti­tion. “We need time-bound dis­posal. it will at least solve one part of the prob­lem,” says sy Qu­raishi, for­mer chief elec­tion

“Can’t you find 543 peo­ple with a clean back­ground in a coun­try of 1.28 bil­lion per­sons?” That’s the ques­tion Prof Jagdeep Chhokar of the As­so­ci­a­tion for Demo­cratic Re­forms asks politi­cians. They have shame­lessly ducked it so long.

com­mis­sioner, re­fer­ring to long-pend­ing re­forms, in­clud­ing po­lice and ju­di­cial re­forms.

The cyn­i­cism pre­vails, how­ever.

The de­crim­i­nal­i­sa­tion of pol­i­tics is yet another key re­form that has been talked about for over two decades. The present and pre­vi­ous gov­ern­ments have voiced their com­mit­ment to de­crim­i­nal­is­ing pol­i­tics but have never matched it with ac­tion. When the apex court heard upad­hyay’s pe­ti­tion and di­rected the gov­ern­ment to un­der­take cor­rec­tive steps, it was not for the first time that it was tak­ing note of crim­i­nal­i­sa­tion in pol­i­tics, which is only in­creas­ing.

His­tor­i­cally, not just the sc but even law com­mis­sions and gov­ern­men­tor court-ap­pointed com­mit­tees have spelled out cor­rec­tive mea­sures. Ma­jor re­forms pro­posed are: tweak the rep­re­sen­ta­tion of Peo­ple Act to debar politi­cians with tainted back­ground and add pro­vi­sions for the reg­u­la­tion of po­lit­i­cal par­ties to en­sure fi­nan­cial trans­parency and in­ter­nal democ­racy. But ev­ery time, law­mak­ers from across the po­lit­i­cal spec­trum have come to­gether to stall the im­ple­men­ta­tion of any such or­der or re­port.

“A key rea­son is that the po­lit­i­cal par­ties con­sider them­selves above law. They have force­fully sub­verted at­tempts to come un­der laws, even those passed by the sovereign par­lia­ment,” says chhokar, a founder mem­ber of Adr. And for­mer cec Qu­raishi says, “i don’t know if the gov­ern­ment will raise the re­sources re­quired to bear the cost of set­ting up spe­cial courts or sim­ply find rea­sons for not do­ing it.”

Ground for scep­ti­cism

There is rea­son for scep­ti­cism, even pes­simism. says chhokar, “i’m scep­ti­cal for a cou­ple of rea­sons. one, even if the gov­ern­ment timely sub­mits a scheme as di­rected by the court, it is doubt­ful to what ex­tent it will be im­ple­mented in spirit. There have been sim­i­lar or­ders by the sc in past. The Pub­lic in­ter­est Foun­da­tion (PIF) case, which led to the 2014 sc rul­ing, is an ex­am­ple. A more poignant ex­am­ple is the Prakash singh judg­ment – per­tain­ing to po­lice re­forms: it’s been over 10 years. A mere sc or­der will not mean any­thing un­less it is im­ple­mented.” He says the po­lit­i­cal es­tab­lish­ment will never make it hap­pen. “Two,” he con­tin­ues, “through the set­ting up of spe­cial courts for 1,581 law­mak­ers, you are only deal­ing with the ex­ist­ing lot. Let’s as­sume you deal with these cases in two years. You will have another 1,581 two years later.”

The Adr was the pe­ti­tioner in the land­mark 2003 sc judg­ment di­rect­ing pub­lic rep­re­sen­ta­tives to de­clare their in­come, as­sets and crim­i­nal back­ground in their af­fi­davits while fill­ing nom­i­na­tions be­fore elec­tions. Be­fore

“Isn’t it sim­ple? Why would politi­cians make a law that would hurt them the most?” asks a se­nior of­fi­cial of the Elec­tion Com­mis­sion of In­dia. “Apne hi pa­iron pey kul­hadi kyon marenge? Why will they act against their own in­ter­ests?”

the judg­ment, there was no way to as­cer­tain de­tails about a can­di­date. “in eco­nom­ics, there is an ar­gu­ment of ‘flow and stock’. In deal­ing with black money, they did the same thing. de­mon­eti­sa­tion dealt with the ex­ist­ing stock of black money, but you didn’t deal with the cre­ation and flow of black money. sim­i­larly, when you deal with these 1,581 cases, you deal with ex­ist­ing stock but you are not stop­ping the flow. The spe­cial courts will con­tinue till eter­nity. Whereas if you pass a law, you are stop­ping the flow. The so­lu­tion is there; the ques­tion is of will­ing­ness,” says chhokar.

Prof sanjay Ku­mar, direc­tor, cen­tre for study of de­vel­op­ing so­ci­eties (csds), says, “There is no other way. change the law. if the lower court con­victs a law­maker in a se­ri­ous crime, then he should be barred from hold­ing the po­si­tion un­til a higher ju­di­cial court ab­solves him. The na­ture of crime has to be spec­i­fied.” Also, when can­di­dates do not share full de­tails about their crim­i­nal cases in their elec­tion af­fi­davits to the ECI they must be pun­ished, says Ku­mar. As of now, the law doesn’t pro­vide for a way to re­in­force it.

Ku­mar is reit­er­at­ing the two key rec­om­men­da­tions re­lated to elec­toral re­forms of the jus­tice AP shah-headed law com­mis­sion, which sub­mit­ted its re­port in 2014. The ex­ist­ing pro­vi­sions un­der the law (the rep­re­sen­ta­tion of Peo­ple Act) pro­vide for de­bar­ring of law­mak­ers only af­ter they have been con­victed. How­ever, this pro­vi­sion has been grossly in­ad­e­quate as tri­als go on for years and the con­vic­tion chances are min­i­mal.

The law com­mis­sion says that although the ju­di­cial mind is not ap­plied while fil­ing an FIR or a chargesheet, it is ap­plied when the court frames charges. An ad­e­quate level of ju­di­cial scrutiny goes into the fram­ing of charges and hence through dis­qual­i­fi­ca­tion at this stage, with some safe­guards, in­dian pol­i­tics can be de­crim­i­nalised.

in April, when the sc, while hear­ing upad­hyay’s pe­ti­tion, sought answer from the gov­ern­ment about what it is do­ing with the law com­mis­sion re­port, the gov­ern­ment said it has formed a com­mit­tee of se­nior of­fi­cers to look into the mat­ter. “The re­spon­dent is con­scious of the need for elec­toral re­forms in our coun­try. How­ever, elec­toral re­form is a com­plex, con­tin­u­ous, long drawn and com­pre­hen­sive process and the union of in­dia through leg­isla­tive depart­ment is tak­ing all pos­si­ble ac­tion to de­lib­er­ate upon mea­sures of elec­toral re­forms re­quired in our coun­try through var­i­ous fo­rums like con­sul­ta­tion, meet­ing, etc. with all stake­hold­ers,” the law min­istry re­sponded. it termed the idea of set­ting up spe­cial courts to try MPS and MLAS as ‘un­war­ranted’ as long as the cases are heard within a year, as pre­scribed by the sc ear­lier.

Ac­cord­ing to a se­nior of­fi­cial at the elec­tion com­mis­sion, the law min­istry is sim­ply sit­ting over the rec­om­men­da­tions. “A few months ago we sought in­for­ma­tion on what the min­istry is do­ing with the law com­mis­sion re­port, but it didn’t re­spond. We are aware that no ac­tion has been taken fur­ther by the min­istry,” says the of­fi­cial, re­quest­ing not to be named. “isn’t it sim­ple? Why would politi­cians make a law that would hurt them the most? Apne hi pa­iron pey kul­hadi kyon marengey?”

A help­less EC

The elec­tion com­mis­sion, it might be noted, only has the power to reg­is­ter po­lit­i­cal par­ties; it can­not dereg­is­ter them. At present, there are roughly 2,000 par­ties reg­is­tered, yet un­recog­nised, with the eci. “sev­eral small par­ties are cre­ated only for money laun­der­ing. They reg­is­ter as a party and au­to­mat­i­cally get in­come tax ex­emp­tion,” the of­fi­cial says. Po­lit­i­cal fi­nanc­ing has be­come more opaque with the re­cent in­tro­duc­tion of elec­toral bonds: any pri­vate per­son or or­gan­i­sa­tion can go to a des­ig­nated bank, buy an

“There is no other way. Change the law. If the lower court con­victs a law­maker in a se­ri­ous crime, he should be barred from hold­ing of­fice till a higher court ab­solves him,” says Prof Sanjay Ku­mar of CSDS.

elec­toral bond, and de­posit money in a given ac­count with­out dis­clos­ing his iden­tity. The bond can be re­deemed by po­lit­i­cal par­ties within four weeks. Jait­ley, in his 2017 bud­get speech, had said, “ev­ery recog­nised po­lit­i­cal party will have to no­tify one bank ac­count in ad­vance to the elec­tion com­mis­sion and these [bonds] can be re­deemed in only that ac­count in a very short time. These bonds will be bearer in char­ac­ter to keep the donor anony­mous.”

The elec­tion com­mis­sion has been get­ting an­nual in­come state­ment from par­ties, wherein they would dis­close de­tails of funds – of over ₹20,000 – they re­ceived from any pri­vate per­son or or­gan­i­sa­tion. “How­ever, un­der the pro­posed elec­toral bonds ini­tia­tive, the par­ties won’t dis­close in­for­ma­tion about the bonds in their an­nual re­turns,” the elec­tion com­mis­sion of­fi­cial says. The ADR filed a pe­ti­tion in the SC in the first week of Novem­ber chal­leng­ing the pro­posal of elec­toral bonds.

“it’s a very bleak pic­ture,” says sanjay Ku­mar of csds, adding that the crim­i­nal­i­sa­tion of pol­i­tics may con­tinue in the com­ing decades. Ac­cord­ing to Ku­mar, a rea­son be­hind this cyn­i­cism is vot­ing pref­er­ence of the elec­torate. “Peo­ple vote mostly on iden­tity. They don’t care for can­di­dates. When they do they would pre­fer a can­di­date who would get things done for them, ir­re­spec­tive of his back­ground,” says Ku­mar.

it has now be­come a vi­cious cy­cle. Mi­lan Vaish­nav, direc­tor and a se­nior fel­low at south Asia pro­gramme at the carnegie en­dow­ment for in­ter­na­tional Peace, in his book When Crime Pays, talks about the fail­ure of the in­dian state to pro­vide ba­sic ser­vice to its peo­ple and hence the emer­gence of the bahubalis – the Robin­hood fig­ures. For Ku­mar, change or re­form should come from po­lit­i­cal par­ties; and that would hap­pen only when peo­ple de­mand it. But chhokar thinks oth­er­wise. “Just make a law,” he says. “Can’t you find 543 peo­ple with a clean back­ground in a coun­try of 1.28 bil­lion peo­ple?”

Find­ing right can­di­dates

Po­lit­i­cal par­ties will keep giv­ing tick­ets to tainted politi­cians, say­ing that peo­ple could choose not to elect them. But chhokar says, “They get elected be­cause peo­ple don’t have a choice.” Ac­cord­ing to the Adr, on av­er­age more than half the con­stituen­cies are such where at least three can­di­dates have crim­i­nal cases against them. roughly ev­ery con­stituency, says chhokar, may have 25 con­tes­tants. But how many of them will re­ally have chances of win­ning? Two or three, on an av­er­age. so why would peo­ple vote for a can­di­date whose chances of win­ning are any­way less? Peo­ple don’t have a choice.” An Adr anal­y­sis shows that in con­stituen­cies where the num­ber of tainted can­di­dates is less, there are chances of can­di­dates with a clean back­ground get­ting elected.

“Be­fore ev­ery na­tional or state elec­tion in the last 15 years, the Adr has writ­ten to po­lit­i­cal par­ties, ap­peal­ing them to not al­low can­di­dates fac­ing crim­i­nal charges from con­test­ing elec­tions. Post elec­tions the Adr writes back, re­quest­ing the win­ning party (or par­ties) to not make the tainted elected rep­re­sen­ta­tives min­is­ters, yet the par­ties crown them too,” chhokar says.

in 1999, the law com­mis­sion strongly pro­posed reg­u­la­tions for gov­er­nance of po­lit­i­cal par­ties. Later, a com­mit­tee headed by for­mer chief jus­tice Mn Venkat­achaliah pre­pared a draft leg­is­la­tion on the func­tion­ing of po­lit­i­cal par­ties. The draft bill, which was put out in 2011, has been there since.

The com­mit­tee bor­rowed heav­ily from the ger­man con­sti­tu­tion. Af­ter the World War ii, ger­many was com­pletely shat­tered. “The ger­man so­ci­ety re­alised that the rise of Hitler hap­pened through a le­git­i­mate route and later he ac­quired so much power again through a le­git­i­mate route,” says chhokar. so ger­many rewrote its con­sti­tu­tion and added a chap­ter on the func­tion­ing of po­lit­i­cal par­ties. Will the peo­ple and the po­lit­i­cal par­ties of in­dia take a les­son?

Be­cause Hitler had risen through a le­git­i­mate route, af­ter World War II, Ger­many went to the ex­tent of rewrit­ing its con­sti­tu­tion, adding a chap­ter on the func­tion­ing of po­lit­i­cal par­ties. Per­haps In­dia might take a les­son from there.

Il­lus­tra­tions: ashish asthana

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