ADR Speaks » criminal candidates

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.

Bihar Elections: Can Bihar Overturn Dismal History Of Women Representation?

Nandini Raj — Thu, 13 Aug 2020 11:53:39 +0000

A report by Association for Democratic Reforms (ADR), a citizen-led, non-political NGO which works on electoral and political reforms in India, reveals that out of 8163 candidates who contested elections in Bihar (Parliamentary, State Assembly and/or Legislative Council Elections) between 2006 to 2016, only 610 or 7% were women. The same report discloses that 20% women candidates declared criminal cases & 18% declared serious criminal cases against themselves. With this as the background, this article aims to fragment and understand the status of women representatives in the 2019 Lok Sabha Elections, 2015 Assembly Elections & 2019 Bye-Elections in Bihar.

In the 2019 Lok Sabha Elections in Bihar, women voter turnout was nearly 59.92% against 55.26% male turnout. During the same elections, only 9% (56) women candidates contested in the elections and out of 40 overall winners, only three were women. Such a drastic gap between the large percentage of women voters and the meagre representation of women legislators, forces us to ponder over the possible reasons for such poor women representation in Bihar. Moreover, all these three women MPs were crorepatis, and had declared criminal and serious criminal cases against themselves. While one MP was 10th Pass, the other two were graduate and post-graduate respectively, at the time of analysis conducted by ADR.

As per a research paper titled – Women Representation in Parliament: A continuing predicament – by Ms Vaishali Rawat (previously a researcher at ADR) – about 75% of the 16th Lok Sabha women MPs had political connections, and only 20.63% women MPs had zilch political-influential connections. It is interesting to note that the three women MPs elected in the 2019 Lok Sabha Elections in Bihar are/were wives of Indian politicians. This raises the issue of dynasty politics which is deeply rooted not only in Bihar but also in other parts of India.

During the Bihar Assembly Elections 2015, 8% (273) women contested in the elections, out of which 15% had criminal and 10% had serious criminal cases against themselves. Out of 28 women MLAs analysed by ADR in the same elections, nine had criminal and five had serious criminal cases against themselves. The only woman who was given a ministerial berth, had an untainted background at the time of analysis and was 12th Pass. Moreover, 2015 Bihar Assembly Elections saw a decline in the number of women MLAs (28) against 2010 Bihar Assembly Elections (34 women MLAs). This decline raises questions regarding the changed mindset of the Bihar electorate.

Talking about the candidates contested in the Bihar Assembly Elections 2015, 24% women candidates were literate which made the majority, followed by 12th Pass & 10th Pass with 18% and 17%, respectively. Out of the 28 women MLAs analysed by ADR in the same elections, around 29% of the women MLAs were 12th Pass which made the majority, followed by 18% 10th Pass women MLAs.

ADR’s analysis revealed that, out of 273 women candidates, around 88 (32%) were crorepati candidates and out of 28 women MLAs, about 64% were crorepati candidates. Also, it doesn’t come across as a surprise that the only woman who was given the ministerial berth was a crorepati minister, at the time of analysis.

Bihar recently saw bye-elections in 2019 in five constituencies wherein out of 43 candidates, only four (9%) women candidates contested in the elections and no one managed to secure a seat which again reflects the poor women representation in the Bihar Elections.

In an analysis by Economic & Political Weekly released in January 2011, patriarchal structure of Indian politics, no women reservation in Parliament and State Assembly elections, lack of family support, and reluctance in giving tickets to women by the political parties were some of the reasons for poor representation of women in the legislature.

Political parties claim that “winnability factor” is one of the major reasons for not giving tickets to women. An article in Business Standard puts this myth to rest by revealing that in 2010 Bihar Assembly Elections, 91% of JD (U) and 84% of BJP female contestants had won. The same article also revealed how political realignment in 2015 Bihar Assembly Elections hurt the women’s representation.

In a research paper, Women Legislators and Economic Performance (paper focussing on India’s state legislative assemblies), researchers reveal that:

legislators with a criminal record are more likely to practise corruption, to have priorities other than economic development, and, possibly, are less likely to provide a stable business environment
male legislators (in the close election sample) are about three times as likely as female legislators to have criminal charges pending against them
women legislators in India raise luminosity growth in their constituencies by about 15 percentage points per annum more than male legislators

2020 Bihar Assembly elections will be the first election wherein the Election Commission of India will implement the Supreme Court’s order on listing the reasons for giving tickets to tainted candidates by political parties. With this and the findings mentioned in the paper -Women Legislators and Economic Performance – as the basis, it can be said that there is a huge scope of increasing the representation of women representation. This development could reduce criminality and corruption, and advance the socio-economic condition of Bihar.

It is explicit that women voter turnout is increasing while women representation still remains insignificant in Bihar elections. To ensure better women representation in the upcoming Bihar elections, it is paramount that political parties in Bihar reserve 33% tickets for women, corresponding to West Bengal’s Trinamool Congress and Odisha’s Biju Janata Dal who had fielded 41% and 33% women candidates, respectively, in 2019 Lok Sabha Elections. The responsibility to empower women leaders doesn’t end with reserving seats, it is critical that the reserved tickets should be given to women candidates with no criminal and political-influential background. More importantly, the political parties should assure financial assistance by supporting the political campaigns of the women candidates.

Women in Bihar protested against the increased liquor consumption and it is noteworthy how to garner votes from them ahead of 2015 Bihar Assembly Elections, Mr Nistish Kumar (current Chief Minister of Bihar) promised liquor prohibition. It was the same demand which Mr Kumar had once refused but after winning the 2015 Assembly Elections, he declared Bihar as a dry state and fulfilled his promise which he made to the women of Bihar. With this, it is evident how women can influence policies positively. It is fair to say that women voters in Bihar will be playing a major role in deciding the new government in Bihar.

With the 2020 Bihar Assembly Elections around the corner, it raises some pertinent questions like – will the political parties give tickets to more women candidates and if they do so, will women dynasts be favoured?, will Bihar see a rise in women Ministers and MLAs?, will the current women MLAs retain their respective seat?, and more importantly, will the Bihar electorate vote for women candidates with no criminal background?

The article was originally published on The Logical Indian.

Image Credit: TV9 Gujarati

Owning up to criminalisation in politics

Prof. Trilochan Sastry — Fri, 10 Jul 2020 10:32:17 +0000

The February 2020 order pushes the envelope further on restricting criminal candidates from contesting elections

A February 2020 Supreme Court judgment on criminalisation in politics may have far-reaching consequences for Indian democracy. It will first be implemented in the coming Bihar elections in October 2020. The Court has asked the political parties to state “the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.” If a political party fails to comply, it would be “… in contempt of this Court’s orders/directions.” In other words, the political party and its leadership would for the first time have to publicly own up to criminalisation of politics. They had been denying it all these years. Earlier orders state that (a) each candidate shall submit a sworn affidavit giving financial details and criminal cases; (b) each candidate shall inform the political party in writing of criminal cases against him or her; and (c) the party shall put up on its website and on social media as well as publish in newspapers the names and details of such candidates.

Why did the Court pass such an order? The judgment notes that “In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them.” India is the only democratic country with a free press where we find a problem of this dimension.

An ever-present crisis

We are in the midst of more immediate crises — the COVID-19 outbreak, the economic recession due to the lockdown, the migrant workers crisis, small businesses shutting down in many sectors, massive unemployment, a highly stressed banking and financial sector, and now the conflict with China. Added to this is an ever-present silent crisis: the steady deterioration in politics over decades, with the decline accelerating in the past 16 years. As politics dominates the bureaucracy, and reins in business, civil society and the media, we need governance that is free of the “criminal” virus. Capability is not sufficient. The intent to do public service is also required. The British were capable, but we still did not want them. Today, it is not about any party, it is about the political system.

The result has been that we get bad governance, and survey after survey show that people around the country are unhappy with the quality of governance. Given limited choices, they vote as best as they can. But no matter how many parties are changed, governance does not really improve, a few exceptions apart. Using money power to buy MLAs and MPs sometimes makes a mockery of election outcomes. Meanwhile, electoral bonds bring secrecy back into political funding.

Several laws and court judgments have not helped much, as the data show. One reason is lack of enforcement of laws and judgments. It is also not clear what penalty would be imposed if the recent orders are not followed. Would the law enforcement agencies act vigorously to ensure that the guilty are prosecuted? Would any top political leader responsible for not complying be found guilty? Would an election be set aside? Without such action, will there be change?

Being vigilant

Therefore in the coming Bihar elections we need to be far more vigilant. This includes monitoring the affidavits of candidates, working with the Election Commission to ensure that information is promptly available on their websites, and widely circulating this information to voters using all the social media tools available. It also includes monitoring compliance with the Supreme Court judgment to see if details of tainted candidates are promptly put up on their websites, and on their social media handles, along with proper reasons for giving them ticket. The Court has said that “winnability” cannot be cited as a reason. Voters also need to be vigilant about misuse of money, gifts and other inducements during elections. Till we realise that people who bribe us for votes cannot be trusted, change will be very slow. Fortunately, an ever-growing number of voters and organisations are joining in this work of cleansing politics.

Meanwhile, the waters will be muddied with fake news, trolling, and fanciful claims. This may drown out the little that citizens can do. Yet there is hope. Ensuring prosecution with public pressure may help. If one political leader is hauled up for giving ticket to large numbers of tainted candidates, something positive may happen. A root cause diagnosis shows that political party leaders are squarely responsible for this state of affairs as they field such candidates. Mahatma Gandhi taught us that to solve a problem, we have to confront the real issue.

The Court order is to be welcomed. But we are still unable to ban people with serious criminal charges from contesting elections. While there are various arguments for and against such a move, the Court has dismissed several petitions calling for a ban due to legal and technical constraints. Meanwhile, the political system is unwilling to change the law or the system. Politics for now has been captured by those who want power for its own sake.

In conclusion, we may not see dramatic changes in the quality of candidates. Campaigns may continue to be more and more personal and even abusive. We may not see a big change in money power, or in buying of MLAs post-elections in the case of a hung Assembly. But all these steps are required, however insignificant they may seem. All the dozen and more Supreme Court judgments on electoral reforms since 2002 are in fact responses to citizen initiatives. Not one initiative has come from the political system. The strategy so far has been to methodically try and break down the solid wall of corruption. When the dam will be breached and the pure waters of a new India flow over the land cannot be predicted.

The article was originally published on The Hindu.