ADR Speaks » Ajit Ranade

Not freebies, criminals in politics should be EC’s focus

Ajit Ranade — Mon, 10 Oct 2022 10:32:59 +0000

If a candidate makes an outlandish election promise, it is for the voter to decide whether to buy it or not. While the central poll panel labours over what is essentially a policy matter, an election practice that is actually problematic is not getting its attention

In 1999, the Association for Democratic Reforms filed a public interest lawsuit against the Election Commission of India (ECI), asking it to make all state and national election candidates disclose all pending criminal cases.

Remember that the Right to Information law came into force much later in 2005. The idea of this lawsuit was that in order to make an informed choice, voters must know criminal antecedents, if any, of the candidates. The Delhi high court upheld the demand of the petitioner and went further by asking disclosure about wealth, loans from public banks and education background. The case went into appeal to the Supreme Court (SC).

The government of India appealed and all political parties intervened and were determined to overturn the Delhi high court order. Their main contention was that ECI had no business to insist on disclosure beyond what was required by the election law. The law as it was just required information on name, age and party affiliation. Nothing else.

The objection to the high court order was that ECI could not insist on information beyond the law. And that it was tantamount to usurping the legislative turf, a domain strictly meant for lawmakers. But thankfully the SC in March 2003 upheld the original judgment on the principle of the voters’ right to know (they cannot exercise their right to vote without adequate information). And candidates who submit self-sworn affidavits cannot lie about their criminal background, so that information is authentic.

By now it is a widely accepted practice in all elections, including municipal and village council elections, that the detailed affidavits regarding criminal cases, wealth, liabilities and educational background are available in the public domain. No government or political party can object, and the voters at large understand and accept that such information is required at the very least.

The ECI first said no, then yes

This background is worth recalling in light of a new case before the SC to do something about the freebie culture and reckless promises made in political manifestos. The SC sought a response from the ECI to which it responded in March.

The official response in an affidavit of the ECI says that, “.. offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse effect on the economic health of the State is a question that has to be considered and decided by the voters of the state.”’

It also added that, “The ECI cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action, without enabling provisions in the law, would be an overreach of powers.”

In other words, this is beyond ECI’s mandate and truly in the domain of lawmakers. This is indeed a matter between the voters and the party which is campaigning. If the candidates make outlandish and incredible promises, the voters can decide whether to vote or not. Why should the ECI intervene? Its job is to conduct free and fair elections in an atmosphere free from fear, coercion, bribery and fraud.

But in October, the ECI changed its mind. It issued a suo motu letter to all political parties, proposing to change the model code of conduct (MCC). That change will now have new disclosure requirements about freebies promised, and “mandate [the] political parties to inform voters at large about financial ramifications of their promises in manifesto as against well-defined quantifiable parameters.” It has included a detailed proposed format, which has two parts.
In the first part, the political party will have to spell out the impact of their expenditure proposals on the Union or state finances including information about news source of revenues, expenditure commitments and fiscal sustainability. And, in the second part, the Union or state government will be required to submit the current fiscal health report card.

The rationale for this suo motu letter, the ECI says, is that it cannot overlook the impact of some poll promises on the conduct of free and fair elections. It seems quite contradictory to the affidavit the ECI submitted to the Supreme Court back in March.

What happened between March and October that made the ECI change its stance (if not its mind)? Maybe there’s a clue to this from the statement of the then Chief Justice in July. He said that unrealistic poll promises are a serious problem, and need to be controlled.

The court further observed, “God save the ECI if it’s saying that we can’t do anything when the electorates are sought to be bribed through freebies.” Did this statement spur the ECI into issuing a letter? Or was it also the speech also in July by the Prime Minister, where he decried the growing “revadi culture.”
PM Modi on revadi culture

There has been a national debate on what constitutes freebies versus what is the legitimate and essential service to be provided by the government. For instance, the free food grain scheme running now for 33 months, with expenditure of over Rs 4 lakh crore is not being called a freebie. Or the fertiliser subsidy where farmers are able to buy it for only 25% of the cost is not a freebie. It costs the exchequer Rs 2 lakh crore.

As is evident, these are policy matters and certainly beyond the mandate of ECI and conduct of elections. But it looks like the ECI is keen to modify the MCC and include some regulation of freebies promised in manifestos.

While it tries to make elections free and fair, it should consider barring candidates with serious criminal cases from contesting. The ECI has repeatedly asked the government and Parliament to pass suitable laws to bar such criminally tainted candidates. But lawmakers have not acted for over two decades.
As noted by the Supreme Court in 2003, in absence of law, the court can step into the vacuum and pass orders in public interest, and removing criminals from the ballot is surely in public interest. The proportion of elected candidates with criminal charges, even serious ones like rape, assault and murder has been rising steadily since the past 15 years, in both central and state legislatures. It would be good to see the ECI exert its energies also on this issue, which has been pending for too long.

This article originally belongs to the Times of India.

Ballot choices crying for clean sweep of criminal taint

Ajit Ranade — Mon, 26 Oct 2020 13:38:38 +0000

The apex court has asked parties and candidates to widely publicise criminal histories in local and national newspapers, as well as on social media, including Twitter and Facebook. The published material must list details of the offence, charges framed, etc. The party has to explain why the candidate was chosen despite the criminal taint. Merely saying the candidate is winnable is not enough.

In September 2018, a five-judge Constitution bench that included the Chief Justice of India, pronounced an important verdict on criminals in politics. The Supreme Court was hearing a batch of petitions seeking disqualification of candidates who had pending criminal cases. One of these petitions was a PIL filed by the Public Interest Foundation of India (PIF) in 2011. The director of the PIF had written these words even before the results of the 2014 elections were announced. “The next government will face the challenge of curbing corruption… It must be remembered that the government will be on probation as its performance would be critically tracked by a very vibrant civil society and media.”

That Director was later handpicked to become the principal secretary to the new Prime Minister, Narendra Modi, in 2014. The PIF petition had asked for the removal of criminals from the ballot. This was the petition that was disposed of by the Supreme Court in 2018. But its verdict unfortunately stopped short of disqualifying criminally tainted candidates.

The Central government, which was a defendant in the suit, firmly opposed the petition, saying that legislating a new disqualification was not in the domain of the court. It was for Parliament to pass such a law. Besides, the Centre used the old argument, that a person is innocent until proven guilty and cannot be deprived of the right to vote, or the right to contest elections merely based on criminal charges. The court expressed helplessness, and not for the first time. But the court did ask political parties and candidates to widely publicise their criminal records, “at least three times in newspapers and TV channels” after filing nomination papers.

Two years later, the Supreme Court was again hearing a contempt petition, that its 2018 order was being completely ignored by political parties. This time, even the Election Commission joined the PIL and asked the court to make political parties strictly liable for the disclosure of criminal cases of their candidates. The EC is, of course, itself toothless in disqualifying tainted candidates.

This time too, the apex court passed a harsh order, asking parties and candidates to widely publicise criminal histories in local, as well as national newspapers and on social media, including Twitter and Facebook. The published material needs to list details of the offence, charges framed, etc. And most importantly, the political party has to explain why the candidate was chosen despite the criminal taint. Merely saying that the candidate is winnable is not enough. And all this has to be done within 48 hours after the last date for withdrawal of nominations.
The Bihar assembly election is the first time this 2020 order of the Supreme Court is being tested. In the first phase, where 71 of 243 MLAs will be selected, 1,066 are in the fray. Of these, 31 have criminal cases. If you look at the data party-wise, 73 per cent of the candidates from the RJD, 72 per cent from the BJP, 59 per cent from the the LJP, 57 per cent from the Congress, 43 per cent from the JDU and 31 per cent from the BSP have criminal cases, among the major parties. It looks like the percentages of tainted candidates keeps going up in every successive election, just like the cut-off marks for admissions to Delhi University colleges.

Prima facie, the observance of the Supreme Court order is more in the breach. The EC has specified a format (Form 7) for declaring a candidate’s criminal record: the form must list details why the party chose a criminal candidate. Most parties and candidates have written that chances of winning are higher. On this, the parties might actually be totally truthful. But this shows the impunity with which the Supreme Court and the
EC’s orders are being flouted. There does not seem to be even an iota of effort to give tickets to candidates with a “clean” resume.
Can voters punish the tainted candidates? Unfortunately, this is not so easy. In the first phase of Bihar polls, 61 of 71 constituencies are “red alert” ones, meaning each of these has at least three or more candidates who have criminal records. So, the choice for voters is criminal versus criminal. It has been seen by researchers that criminally tainted candidates win, despite their image, perhaps partly because of their ability to raise resources to fund their own elections. No wonder the parties are quoting “winnability” as the reason in Form 7, to justify their choice of candidate. In this current first phase, more than one-third of all candidates are millionaires. Among the major parties, nearly 80 per cent are crorepatis. Since moneyed “bahubalis” have a higher chance of winning, the ratio of tainted legislators is almost double that among the candidates.
This trend of criminality among lawmakers is relentlessly going up. The share of members of Parliament who have criminal cases against them, has gone up from 24 per cent in 2004, to 30 per cent in 2009, 34 per cent in 2014 and is now at a whopping 43 per cent, as of 2019. These cases are not only about offences like loitering, breaking a curfew or defamation, but even serious cases like rape, murder, theft, kidnapping, assault and extortion. If you consider only serious criminal charges such as these, then 29 per cent of the current members of Parliament carry them, and this proportion is the highest in the past 16 years. Among the elected representatives, the proportion of crorepatis has gone up from 30 per cent in 2004 to 88 per cent in 2019.
The Supreme Court, through its 2020 order, thought that perhaps by shaming the parties, it could put some restraint on the rising trend of criminality among candidates. But this is clearly not visible so far in the Bihar assembly elections. And going by the trend of the past 16 years, it is unlikely to change. The only hope, apart from fast-tracking cases, is to disqualify tainted candidates from contesting. This can be done by amending the Representation of the People Act, 1951. Those who are tainted and desirous of being in public service can surely clear their name in a court of law, before contesting elections. Will the lawmakers take up this challenge to cleanse the political system?

The article was originally published on Free Press Journal.

Reining in platforms like Facebook

Ajit Ranade — Tue, 25 Aug 2020 13:34:10 +0000

In December 2015 the founder and Chief Executive of Facebook, Mark Zuckerberg, wrote passionately in The Times of India why it was important to give free access to internet. He was promoting the idea of ‘Free Basics’ launched by Facebook. It would give free access to basic internet services to all Indians. No charge would be applied for data use by the telecom company to access Facebook and a few other sites. Facebook would pay directly to the telecom company for the data. It was what he called a bridge to full internet access. It would close the digital divide. It would lead to digital equality. He claimed that full internet access would lift millions out of poverty. He compared this free service to provision of free basic health or education. It was a persuasive pitch.

Unfortunately for him, the Telecom Regulatory Authority of India (TRAI) turned it down. Why would TRAI turn down a free service being offered by the social media giant? The answer is subtle but very important. While some free access to internet is better than no access, the Facebook free offer was giving access to only certain websites. Thus the poor who opted for Free Basics would be able to roam only where Facebook allowed them to roam. This curtails a more basic kind of freedom, i.e. freedom to roam the internet. And all other smaller websites would have to pay Facebook to enter this “walled garden”. This is opposite to the principle of net neutrality. A profitmaking organisation like Facebook was offering “free services” because it hoped to make those free customers become sticky and paying customers, in the future. It was like a “foot in the door” policy, giving freebies in the beginning, that any monopoly uses to oust competitors. Once it has hundreds of millions of users inside the “walled garden”, it would charge monopoly pricing to those who wanted to access those customers. It would become a gatekeeper to a privately owned corner of the internet. Thanks to a nationwide people’s campaign for net neutrality, the Facebook plan for Free Basics failed.

That was five years ago. The power of platform economics is much better understood now. Their monopoly power is massive and has caused concern across the world. The US Congress recently summoned the CEOs of four large American tech companies (Google, Facebook, Amazon and Apple) to question them about their monopolistic practices. Apart from monopoly issues, social media companies like Facebook also have to contend with issues that impinge on freedom of speech. India is its biggest market. It owns WhatsApp and Instagram, and the combined user base is easily more than 700 million. FB says it does not censor free speech, but even President Trump has accused it of creating a negative bias. FB has faced severe criticism for allowing advertisement with fake information that influenced American voters. Its revenues from political ads are not easily disclosed. In fact since 2011 it has been asking the US Federal Election Commission to exempt it from disclosing revenue from political advertisements. Its employees do assist political campaigns who buy services from FB. But this sometimes makes the company too close to governments and ruling parties. This, combined with its enormous reach, power and data, make it a formidable force in electoral democracies. Add to this hate speech. The dividing line between hate speech and free speech is thin, but this gets decided by the company itself. What if it ends up helping one political constituency?

Last week The Wall Street Journal ran a full page story alleging that Facebook in India ignored their internal guidelines, and did not remove hate speech posts, because these were posted by politicians from the ruling party. Removing those posts, despite complaints from users, would have soured their business prospects in India, as per the article. Most remarkably, the company abides by much stricter guidelines on what can be posted in most other countries such as Germany, Singapore or most of Europe. So these posts would not have passed muster elsewhere. As a result of the WSJ’s explosive allegation, there has been an internal dissent within the company questioning the top management of such dilution of their own internal standards. India’s Parliamentary Standing Committee on IT has summoned the company to appear before it, to clarify the charges. FB says it employs sophisticated artificial intelligence tools to detect fake news or hate speech. But that may not be good enough. There are provisions in India’s laws (InfoTechnology Act 2000 and Cable TV Act 1995) that are applicable. In the era of omniscience and almost monopoly power of social media companies, and proliferation of fake news coupled with hate speech, some regulation is definitely needed. It will need to carefully balance free speech versus hate speech curbs, and innovation.

The article was originally published on Mirror Now.

Image Credit: Reuters (Used for representation purpose only)

Time to regulate Facebook now

Ajit Ranade — Wed, 19 Aug 2020 12:17:11 +0000

In the run-up to the 2012 presidential elections in the United States, the Guardian newspaper published a story on how the Obama re-election communities. This style of micro-targeting was borrowed from the methods of marketing and advertising campaigns of successful consumer goods companies. This strategy was a phenomenal success. As the Guardian article said, if the 2008 Obama campaign was about pioneering the use of social media, the 2012 campaign was all about data.

The exponential rise of Facebook itself, which grew from 40 million to 160 million users in the US in those four years, was crucial to the success of the 2012 election. Of course, television was more important, but the use of Facebook data in electoral campaigns was fast catching up. That was eight years ago. Today, social media-based campaigns are on par, if not surging ahead, in terms of efficacy in comparison to television. Today, Facebook also owns WhatsApp and Instagram, making it the single largest repository of user data owned in the private sector.

After the 2016 elections, the role of Facebook came under increasing scrutiny. Was it biasing electoral outcomes? President Trump has accused it of creating prejudice, which the company has denied. Its co-founder Mark Zuckerberg has said that his company offers a platform to all people to voice their ideas. It does not censor free speech.

It is a platform for civic engagement between voters and candidates. It remains non-partisan. It claims to remain a politically agnostic tool. But Facebook faced severe criticism that it allowed Russian-funded advertisements, with fake information, to influence voters.

In fact, increasingly, its role in catering to politically well-funded campaigns has been in the spotlight. Does this information get transparently disclosed? Does the company take care of removing fake information or misinformation? Actually, as per Bloomberg reports, since 2011 Facebook has been asking the US Federal Election Commission to exempt it from disclosing revenue from political ads. This would put it in a more exclusive situation as compared to television and broadcast media.

In general, the company will push back any government request about user data, to maintain users’ privacy, unless it is legally warranted. But then, its close work with political party campaigns means its employees get close to what can be called electioneering. Facebook helps elected officials connect to citizens, through live streaming, participative interactions and, in that process, helps governance. But its proximity to governments, combined with its enormous reach, power and data make it a formidable force in electoral democracies.

Added to all this, the phenomenon of hate speech, organised harassment and trolling. There are enough instances when bigotry and hate speech have been spread through social media. There have been cases of lynching and violence which arose out of messages circulating on social media. It is a company like Facebook (which also owns WhatsApp) which decides what is trolling or harassment and what is protected free speech. It has to draw the thin line between hate speech and free speech. But the company is not the judiciary, nor is it subject to broadcast licensing. So, what if it tilts, even unwittingly, to one side? Aer all, the incumbent candidates and governments can be lucrative ad buyers, and could potentially influence Facebook’s internal policing decisions. It does employ sophisticated Artificial Intelligence tools to detect fake news or hate speech, but that still may not be good enough.

India has the world’s largest number of Facebook and WhatsApp, and possibly Instagram, users as well. In China, these are banned. The reach, influence and potential power of social media can only be imagined. Prime Minister Modi has the largest number of followers on a variety of social media platforms, including Facebook. He has leveraged the medium to a great extent, and established direct connections with citizens in a way which is a break from the olden days or radio or television. The implication for electoral politics is obvious.

A few years ago, the Chief Election Commissioner of India said that in earlier days, the EC had to worry about the influence of two “M”s. These were money and muscle power. But increasingly there is a third “M” which is “media”. By which he meant the menace of paid news, fake news, misinformation and disinformation. He was mostly referring to print and electronic media, which are all licensed businesses. The EC’s job is to ensure free and fair election without the undue influence of money, muscle and media power. But to this third M, we have to include social media. The recent revelation in a Wall Street Journal article on the role of Facebook in India’s electoral politics, and in being uneven in its treatment of curbing hate speech or trolling, to help a particular political party, raises many questions. How should we regulate this immense power?

Even in the domain outside electoral politics, the CEOs of the big four, i.e. Facebook, Google, Amazon and Apple were recently summoned to Washington to appear before a Congressional hearing. This was to grill them about their growing clout in stifling competition in the marketplace. There is a demand that some anti-trust, i.e. anti-monopoly, measures be introduced to curb their power.

Similarly, in the domain of elections, too, messaging, networking and microblogging social media platforms have to be regulated to curb misuse and also partisanship. This is a huge challenge for the Election Commission. Luckily, there is evidence that voters themselves, are becoming sceptical of fake news and paid news. Ultimately, an enlightened citizenry, or voters who invest time and effort in educating themselves, and don’t remain passive consumers of social media content, are the best protection and guarantee of a free and fair election.

The article was originally published on Deccan Herald.

Image Credit: Reuters

A stain on our democracy

Ajit Ranade — Sat, 15 Feb 2020 10:47:55 +0000

Unless we disqualify criminal candidates from standing for elections, our legislatures will keep getting more and more tainted

The Supreme Court this week came down heavily on criminalisation of politics. It asked political parties to explain why they need to give tickets to people with criminal backgrounds. The court also asked them to publicise widely, through websites and social media, the impressive “résumé” of these criminal elements. Let the voters know. The judges also asked whether winnability alone counts in ticket giving, and should parties not be doing something to clean the polity. The latest order is actually a reiteration of a similar one passed in 2018, asking parties to give wide publicity to criminally tainted candidates through newspapers. Alas, the top court stopped short of disqualifying tainted candidates. There is no law in the land that prevents criminally charged persons from standing for elections. In the absence of such a law, which seems unlikely to be passed by Parliament, the court could step in, and put a disqualification criteria.

The right to stand for elections is not a fundamental right. So if we put some restriction on who can and cannot stand, it is not like we are suppressing their freedom of speech or right to livelihood. All we have is a 1951law on who is qualified to stand for elections to Parliament and assemblies. That law states a minimum age requirement, and that you must not be convicted of certain crimes (typically those that attract minimum two years of jail). But since our judicial system works slowly, and a conviction in a lower court can be appealed in a higher court, and the process can continue ad infinitum, technically you are innocent until proven guilty by the highest authority. So this law is not able to prevent any criminally tainted person from standing for elections. The unfortunate trend is that in the past two decades the number of criminally tainted elected lawmakers has increased. In 2004, 24 per cent of MPs had pending criminal cases. This went up to 30 per cent in 2009, to 34 in 2014 and is now a whopping 43 per cent in the current Lok Sabha. The upward trend is seen in many assemblies as well. The stats are dismal and depressing.

But there is a predictable howl from politicians. They say most of these cases are frivolous or false charges. And that the ruling party often resorts to filing cases against leaders of the opposition. And the cycle continues with tit for tat. It is as if we have widespread practice of the politics of vendetta. If that is so, then it is the parties themselves that can put a stop to it. Moreover, if indeed a person is innocent and reeling under false charges, then he or she can clear their name in the court of law, get acquitted and then stand for election. Just wait till your name gets cleared. Maybe institute a fast track court for such cases. Surely a nation of more than a billion people should be able to find a few thousand clean, untainted candidates? But there seems to be no progress on this front, as criminalisation just keeps getting worse. In fact in nearly 40 per cent of the constituencies, there are three or more tainted candidates. So voters have no choice but to vote for a criminal candidate. That’s why we need an activist Supreme Court that can introduce a disqualification clause. At least those charged with heinous crimes such as murder, rape, kidnap and dacoity should be prohibited. Some states like Rajasthan tried to disqualify candidates who did not have some minimum education. This was for municipal and panchayat elections. Some states already disqualify you for a sarpanch post if you have more than two kids. These conditions are much more anti-democratic than disqualifying on the basis of criminal record.

While we wait for voters to reject criminally tainted candidates (i.e. the demand side pressure), let us also pass laws to disqualify at least those who have very serious charges against them (i.e. supply side pressure). Only then can we make progress on cleansing politics. Otherwise, our record will keep getting murky (the latest Delhi state election outcome is no exception), and our standing as a robust and vibrant democracy will keep getting embarrassing.

The article was originally published on Mumbai Mirror.