The announcement of the schedule for elections for five state assemblies was a much anticipated event. What attracted attention of some observers was the inclusion of requirements for disclosure of criminal antecedents by candidate and political parties who sponsor them. A tweet by someone with over 8,500 followers is representative:

“Candidates with criminal antecedents will have to publish their crime records in newspapers etc. 3 times before the poll: CEC

Also, political parties will have to give a list of candidates with criminal antecedents in home page of their websites. Also, reasons of their selection.”

This appears at pages 21 to 24 of the 92-page press note issued by the Election Commission of India (ECI) and is numbered as items 21 and 22. As the press note correctly mentions, this is in compliance of three judgements/orders of the Supreme Court on February 16, 2018, September 25, 2018 and August 10, 2021. These cases were filed in 2011, 2015 and 2018.

The origins

This long and continuing saga started with the filing of a PIL by the Association for Democratic Reforms (ADR) in the Delhi high court in 1999, requesting that candidates contesting elections to parliament and state assemblies who have criminal cases pending against them be required to disclose these while filing their nomination papers. The high court, in a judgement given on November 2, 2000, accepted the request and ordered that all candidates contesting MP and MLA elections will be required to file a sworn affidavit as a necessary part of their nomination papers, declaring criminal cases pending against them.

The high court’s decision seemed unacceptable to the government of the day, so the Union of India filed a Special Leave Petition (SLP) against the high court’s judgment in the Supreme Court. Several political parties became interveners to the case in support the government, claiming that it was a legislative matter and the judiciary has no jurisdiction to interfere in the matter. The Supreme Court in its judgment delivered on May 2, 2002 upheld the high court judgment, saying:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to subserve public interest.”

Even this was not acceptable to the political establishment. An all-party meeting was held in which it was decided that the high court and Supreme Court judgments will not be allowed to be implemented and the Representation of the People Act (RP Act) will be amended, in that very session of parliament, for this purpose. A draft Bill for this was prepared but could not be introduced in the parliament because of disruptions and then an adjournment due to what came to be known as the petrol pump scam. The cabinet then decided to promulgate an ordinance to achieve the same purpose. The ordinance was sent to the president for signature, but the president returned the ordinance without signing it. The cabinet then sent it to the president again, exactly in the same form, and following the established convention, the president had to sign it. The RP Act, thus, stood amended and the Supreme Court judgment was rendered ineffective.

Three PILs were filed in the Supreme Court challenging the constitutional validity of the amendment of the RP Act. The Supreme Court, in a landmark judgment delivered on March 13, 2003, declared that the amendment of the RP Act “does not pass the test of constitutionality” and “has resulted in the violation of guarantee under Article 19(1)(a)”. Article 19(1)(a) is the Fundamental Right “to freedom of speech and expression”.

This is how criminal antecedents of candidates contesting elections to parliament and state assemblies came to be known to voters.

How it evolved further

The next stage in this saga began in 2011, when a civil society organisation called Public Interest Foundation filed another PIL in the Supreme Court seeking decriminalisation of politics and requesting the Supreme Court to “(a) lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections; and (b) lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;” among some other requests.

The Supreme Court issued an order on March 10, 2014, directing that cases against MPs and MLAs be tried “as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s)”.

In the meanwhile, a PIL filed in 2005 came to be decided on August 27, 2014. The case was Manoj Narula vs Union Of India. It was filed “assailing the appointment of some of the original respondents as Ministers to the Council of Ministers of Union of India despite their involvement in serious and heinous crimes”. Originally, the PIL was heard by a three-judge bench headed by the then chief justice, and on March 24, 2006, it was decided that “Having regard to the magnitude of the problem and its vital importance, it is but proper that the petition is heard by a Bench of five Judges.”

Thus, it is the five-judge bench that gave the judgment in August 2014. The majority judgment of three judges left it “to the wisdom of the Prime Minister”, while saying that the prime minister “can always be legitimately expected (to) consider not choosing a person with criminal antecedents against whom charges have been framed for heinous or serious criminal offences or charges of corruption to become a Minister of the Council of Ministers”, and also adding that it “is the constitutional expectation from the Prime Minister”.

There were two other separate but concurring judgments in which one of the judges considered it “…the prophetic duty of this Court to remind the key duty holders about their role in working the Constitution,” and the advice given was that “the Prime Minister and the Chief Minister of the State, …will be well advised to consider avoiding any person in the Council of Ministers, against whom charges have been framed by a criminal court in respect of offences involving moral turpitude and also offences specifically referred to in Chapter III of The Representation of the People Act, 1951”.

Now, to the current situation

Then came an important judgment on September 25, 2018, again in a Public Interest Foundation case. There are two important features of this judgment. One, despite overwhelming evidence, the court shied away from saying that candidates who had criminal cases pending against them for some specified heinous offences be barred from contesting elections, subject to some safeguards, and two, this was the judgment that put the system on the path of candidates and political parties advertising pending criminal cases. Both these issues have been commented on in detail in The Wire on September 25, 2018, and on October 12, 2018.

To reiterate, it was pointed out, especially in the piece on October 12, 2018, that (a) the directions requiring candidates and parties putting out advertisements in newspaper disclosing pending criminal case were not likely to be of much help, and (b) the only way to reduce, if not eliminate, criminals getting into legislatures was to bar such people from contesting elections, which the Court declined to do citing jurisdictional issues. In the process it ignored its own ruling of 2002 wherein it said:

“Cumulative reading of plethora of decisions of this Court as referred to, it is clear that if the field meant for legislature and executive is left unoccupied detrimental to the public interest, this Court would have ample jurisdiction under Article 32 read with Articles 141 and 142 of the Constitution to issue necessary directions to the Executive to sub-serve public interest.”

While stopping short of doing what actually requires to be done, the judgment seems to have a lot faith in its own wishes and desires. Following are just two samples of its expectations:

“117. These directions ought to be implemented in true spirit and right earnestness in a bid to strengthen the democratic set-up. There may be certain gaps or lacunae in a law or legislative enactment which can definitely be addressed by the legislature if it is backed by the proper intent, strong resolve and determined will of right-thinking minds to ameliorate the situation. It must also be borne in mind that the law cannot always be found fault with for the lack of its stringent implementation by the concerned authorities. Therefore, it is the solemn responsibility of all concerned to enforce the law as well as the directions laid down by this Court from time to time in order to infuse the culture of purity in politics and in democracy and foster and nurture an informed citizenry, for ultimately it is the citizenry which decides the fate and course of politics in a nation and thereby ensures that ―”we shall be governed no better than we deserve”, and thus, complete information about the criminal antecedents of the candidates forms the bedrock of wise decision-making and informed choice by the citizenry. Be it clearly stated that informed choice is the cornerstone to have a pure and strong democracy” (Emphases added).

“118. We have issued the aforesaid directions with immense anguish, for the Election Commission cannot deny a candidate to contest on the symbol of a party. A time has come that the Parliament must make law to ensure that persons facing serious criminal cases do not enter into the political stream. It is one thing to take cover under the presumption of innocence of the accused but it is equally imperative that persons who enter public life and participate in law making should be above any kind of serious criminal allegation. It is true that false cases are foisted on prospective candidates, but the same can be addressed by the Parliament through appropriate legislation. The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power. Substantial efforts have to be undertaken to cleanse the polluted stream of politics by prohibiting people with criminal antecedents so that they do not even conceive of the idea of entering into politics. They should be kept at bay” (Emphases added).

After expressing all its hopes and aspirations, the judgement ends on a pious note:

“We are sure, the law-making wing of the democracy of this country will take it upon itself to cure the malignancy. We say so as such a malignancy is not incurable. It only depends upon the time and stage when one starts treating it; the sooner the better, before it becomes fatal to democracy. Thus, we part.”

Reality unfolds

The denouement of all the pious hopes started on November 27, 2018, when a contempt petition was filed by one Rambabu Singh Thakur against the then chief election commissioner and several others raising “grave issues regarding the criminalisation of politics in India” and bringing to the attention of the court “a disregard of the directions of a Constitution Bench of this Court in” the judgment on September 25, 2018.

The judgment in this case was announced on February 13, 2020, wherein the court noted that “the political parties offer no explanation as to why candidates with pending criminal cases are selected as candidates in the first place” and issued detailed directions on the way (a) political parties, giving tickets to candidates with criminal cases pending against them, should give reasons for giving tickets to such persons; (b) how parties should publish these explanations in the mass media, including social media; and most importantly, (c) ) “the reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.”

Where are we now?

It fell to a public-spirited advocate practising in Delhi but originally hailing from Nalanda district of Bihar to take this activity forward. Brajesh Singh filed a contempt petition on November 6, 2020, also against the then chief election commissioner and several others, bringing “to the notice of this Court the flouting of its directions given vide Order dated 13.02.2020”. The contempt petition was based on state assembly elections held in October/November 2020. The judgement of this petition came on August 10, 2021. It is quite amazing to see that the court took another significant step forward but refrained from dealing with the issue properly, for which there is only one way, as we shall see a little later.

First the step forward. The court held eight political parties guilty of contempt of court and fined six of those parties Rs 1 lakh each, and the remaining two Rs 5 lakh each. The cause of the contempt was that the parties had given (a) tickets to persons who had criminal cases pending against them, and (b) flimsy and non-convincing reasons for giving tickets to such persons. Parties fined Rs 1 lakh each were Janata Dal United, Rashtriya Janta Dal, Lok Janshakti Party, Indian National Congress, Bharatiya Janata Party, and the Communist Party of India. Parties fined Rs 5 lakh each were the Communist Party of India (Marxist) and the Nationalist Congress Party.

While fining political parties must be commended, it is worth reflecting on whether the amounts of money levied as fine would (a) have any adverse financial impact on the parties, and (b) the amounts will work as deterrents enough to encourage parties not to indulge in such blatant defiance of the orders of the highest court in the land.

Practicability

While we do commend the court for the act of levying fines on political parties, the practicability of the implementation of the directions of the court, and more importantly, monitoring the implementation, must be given very serious thought. The judgment itself refers to it, almost in passing, when it says that “Arguments have been advanced before us with regard to the practicability of implementation of the direction contained in paragraph 4.4” (Para 30).

Some of the factors that make satisfactory monitoring, even on the part of the Election Commission, extremely difficult, if not impossible, are also described in the piece published in The Wire on October 12, 2018 which has been referred to earlier.

Avoiding the obvious

The following excerpts from the judgment deserve careful reading:

“The nation continues to wait, and is losing patience. Cleansing the polluted stream of politics is obviously not one of the immediate pressing concerns of the legislative branch of government” (Para 17).

“The Constitution Bench therefore observes that though criminalisation in politics is a bitter manifest truth, which is a termite in the citadel of democracy, the Court cannot make law.” (Para 50).

“In paragraph 107, the Constitution Bench recommends that Parliament bring out a strong law whereby it is mandatory for the political parties to revoke membership of persons against whom charges are framed in heinous and grievous offences and not to set-up such persons in elections.” (Para 51).

“No one can deny that the menace of criminalisation in the Indian political system is growing day by day. Also, no one can deny that for maintaining purity of political system, persons with criminal antecedents and who are involved in criminalisation of political system should not be permitted to be the law-makers” (Para 71).

“This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber” (Para 72).

The reader would recall that very similar sentiments were expressed by the court in its judgment of September 25, 2018, mentioned above, including some pious hopes.

The above statements need to be read with or contrasted with the following:

“… The Constitution Bench after elaborately considering the said issue, held that issuing such a direction would amount to entering into the legislative arena and as such, such a direction could not be issued. In our view, in the teeth of the observations made by the Constitution Bench in paragraph 96, though some suggestions made by Shri Viswanathan are laudable, it will not be possible for us to accede to them” (Para 53).

“The only question is, whether this Court can do so by issuing directions which do not have foundation in the statutory provisions” (Para 71).

“However, in view of the constitutional scheme of separation of powers, though we desire that something urgently requires to be done in the matter, our hands are tied and we cannot transgress into the area reserved for the legislative arm of the State. We can only appeal to the conscience of the law-makers and hope that they will wake up soon and carry out a major surgery for weeding out the malignancy of criminalisation in politics” (Para 72).

At the risk of crossing a Lakshman Rekha, it must be said that it is beyond comprehension that a court which can be so sagacious and perceptive as to write that “The political parties refuse to wake up from deep slumber”, is not able to discern that it, itself, seems to be in deep slumber by repeatedly ignoring a settled principle in law “filling in the gap or vacuum in legislation” which has been very well elaborated in a judgment of this very court, of May 2, 2002.

The last word

Finally, to come back to the announcement of the Election Commission of India that we started with. All that the announcement does is to follow exactly what several judgments of the Supreme Court have ordered. It must, however, be noted that all the judgments referred to (a) do not seem to be on a firm footing as far as implementation is concerned; (b) will be very difficult, if not impossible, to implement; and (c) in the light of (a) and (b), do not, and cannot, achieve the objective of at least reducing, if not completely eliminating the adverse impact of criminality on the political and electoral systems in the country.

ताकतवर ही सबसे भ्रष्ट …!

हमारे यहां सबसे शक्तिशाली समूह राजनीतिज्ञों का है। भ्रष्टाचार जैसी बीमारी को दूर करने का काम केवल राजनैतिक इच्छाशक्ति से ही हो सकता है। लेकिन सवाल यह है कि आखिर हमारा राजनीतिक सिस्टम इसमें पहल क्यों नहीं करता? इसका जवाब इन आंकड़ों में है : हमारे यहां दागी सांसदों की संख्या जहां 2004 में 43 प्रतिशत थी, वहीं यह 2019 में बढ़कर 43 फीसदी हो गई। इनमें भी सबसे ज्यादा संख्या सत्ताधारी पार्टी में है। हाल ही में बिहार में हुए चुनाव में दागी विधायकों की संख्या में 10 फीसदी की बढ़ोतरी हुई है। 2015 में जहां चुने हुए विधायकों में से 58 फीसदी पर आपराधिक मामले दर्ज थे, वहीं 2020 में यह संख्या बढ़कर 68 फीसदी हो गई। हमारे जनप्रतिनिधियों के दागी होने का मतलब यही है कि जब उनका दामन साफ नहीं होगा तो वे भ्रष्टाचार को दूर करने का प्रयास क्यों करेंगे, क्योंकि व्यवस्था में भ्रष्टाचार ही इन्हें अपने कारनामों को ढंकने मंे मदद करता है।

तो नागरिक क्या कर सकते हैं?

“ग्लोबल करप्शन बैरोमीटर’ रिपोर्ट कहती हैं कि हमारे यहां 46 फीसदी लोगों ने अपने संपर्कों के जरिए अपने काम करवाए। इनमें से अधिकांश काम छोटे-बड़े नेताओं के जरिए ही करवाए जाते हैं। अगर ये नेता मदद नहीं करते तो उस काम के लिए उन्हें रिश्वत देनी पड़ती। यानी यहां लोगों को यह समझने की जरूरत है कि राजनीतिज्ञ इतने शक्तिशाली हैं कि अगर वे चाहें तो वे पूरे सिस्टम को बदल सकते हैं। अब यह आम नागरिकों की जिम्मेदारी है कि वे नेता ही ऐसे चुनेें जिनकी ईमानदारी और निष्ठा तमाम सवालों से परे हो। अगर राजनीति ईमानदार होगी तो नौकरशाही को अपने आप ईमानदार होना होगा। शीर्ष नौकरशाह जब ईमानदार होंगे तो निचले स्तर पर कार्य करने वाले कर्मचारी भ्रष्टाचार करने का साहस नहीं कर पाएंगे। जब नेता ईमानदार होगा, अफसर ईमानदार होंगे, कर्मचारी ईमानदार होंगे तो आम लोगों में भी वे लोग जो अपने गलत काम भी पैसे देकर या जुगाड़ से करवा लेते हैं, उनके लिए यह सबकुछ इतना आसान नहीं रह जाएगा।

लेकिन यह होगा कैसे?

जनता ईमानदार नेता चुनें, यह कहना आसान है, लेकिन करना मुश्किल। इसके लिए हमें कुछ बुनियादी बदलाव करने होंगे। इलेक्टोरल बॉड्स को बंद करके राजनीतिक दलों को होने वाली फंडिंग में पारदर्शिता लानी होगी। आपराधिक रिकॉर्ड वाले लागों को चुनाव का टिकट देने पर रोक लगानी होगी और किसी दागी को टिकट देने पर संबंधित राजनीतिक दल के मुखिया को जिम्मेदार ठहराना होगा। इसके लिए सिविल सोसाइटी का दबाव बनाना होगा और जब भी जरूरत हो, कोर्ट का दरवाजा खटखटाने से भी नहीं पीछे नहीं रहना होगा। इसके लिए मीडिया को भी अहम भूमिका निभानी होगी।

कहां है समस्या?

- कुछ साल पहले एक जाने-माने राजनेता ने कहा था कि चुनावी फंडिंग ही भ्रष्टाचार की सबसे बड़ी गंगोत्री है। इससे निबटने के लिए सरकार इलेक्टोरल बॉन्ड्स लेकर आई, लेकिन इसने तो चुनावी फंडिंग को और भी अस्पष्ट और अपारदर्शी बना दिया है। दरअसल, हमारे राजनीतिज्ञ राजनीतिक फंडिंग में पारदर्शिता बिल्कुल नहीं चाहते। यह बात कुछ कारपोरेट्स हाउसेस को भी रास आती है, क्योंकि इससे वे बड़ी आसानी से राजनीतिक दलों को पैसा दे देते हैं और चुनावों के बाद सरकार से बेजा फायदा उठाते हैं।

- भ्रष्टाचार से निबटने के लिए हमें प्रभावी सीबीआई, सीवीसी और एंटी करप्शन ब्यूरो चाहिए। लेकिन इन सभी विभागों का मूल संगठन यानी पुलिस के बारे में आम धारणा यही है कि यह सबसे भ्रष्ट विभाग है। इसलिए हम पुलिस से और प्रकारांतर में इन तमाम संगठनों से यह उम्मीद नहीं कर सकते कि ये भ्रष्टाचार को मिटाने में कारगर रहेंगे, जब तक कि इनके पीछे राजनीतिक इच्छाशक्ति नहीं होगी।

- सरकारी सेवकों को भी जवाबदेह नहीं बनाया गया है। सरकारी शिक्षक स्कूल नहीं जाते हैं या जाते हैं तो पढ़ाते नहीं। डॉक्टर सरकारी हास्पिटल या प्राथमिक स्वास्थ्य केंद्र नहीं जाते। अस्पतालों में दवाइयां नहीं मिलती। सड़के, जलापूर्ति, बिजली और अन्य बुनियादी सुविधाओं की स्थिति अक्सर खराब मिलती है। और दुर्भाग्य से किसी को भी खराब काम करने या जिम्मेदारी न निभाने पर नौकरी से नहीं निकाला जाता। समस्या यह है कि अच्छा काम करने वाले को पुरस्कार भी नहीं मिलता। तो अच्छा काम करने की प्रेरणा भी नहीं मिलती।

केरल और बिहार के सबक …

एक रिपोर्ट के अनुसर केरल में केवल 10 फीसदी नागरिकों को अपने काम करवाने के लिए रिश्वत देनी पड़ी, जबकि बिहार में 75 फीसदी लोगों को। आखिर ऐसा क्यों है, इसको लेकर तो व्यापक अध्ययन की जरूरत है, लेकिन इसमें कहीं न कहीं शिक्षा और साक्षरता का योगदान तो नजर आता ही है। केरल भारत का सबसे साक्षर प्रदेश है, जबकि बिहार का नाम साक्षरता के मामले में नीचे से शीर्ष के राज्यों में शुमार होता है।

Originally published in Dainik Bhaskar.

2019 के लोक सभा में एक तिहाई सीटों पर आठ लाख से अधिक वोट मिले। सबसे अधिक जहानाबाद में 27 हज़ार 683 बार नोटा बटन दबा जहानाबाद में। ‘नोटा’ ने जहानाबाद के चुनावी नतीजों को प्रभावित किया। इस सीट पर हार जीत का अंतर महज 1751 वोटों का है, जबकि यहाँ नोटा को 27 हज़ार 683 मत मिले। देश भर में लोक सभा की कई सीटें ऐसी रही जहां पर जीत का अंतर नोटा को मिले वोटों से भी कम रहा। करीब दो दर्जन से ज्यादा सीटों पर प्रत्याशियों को नोटा की वजह से हार झेलनी पड़ी। भारत 2014 से भारत में नोटा को अपनाया गया। पहली बार 15 लाख से ज्यादा वोट नोटा को आया था। 16 वीं बिहार विधानसभा के लिए चुनाव में नोटा का जबरदस्त प्रभाव देखा गया। इसने 23 सीटों पर सीधे तौर पर परिणाम को प्रभावित किया। इन 23 सीटों पर जितने मतों के अंतर से जीत हासिल हुई। उससे कही अधिक नोटा के पक्ष में बटन दबे। यह चुनाव इस मायनों में भी रहा क्योंकि मतदाताओं  ने कई पार्टियों की तुलना में नोटा को ज्यादा वोट दिया।

नोटा के तहत होना यह चाहिए कि नोटा को यदि चुनाव में खड़े उम्मीदवारों में यदि सबसे अधिक मत नोटा को मिले तो वह चुनाव रद्द हो जाना चाहिए। उसके बाद पुनः चुनाव करवाए जाने चाहिए जिसमें पूर्व में खड़े उम्मीदवारों को चुनाव लड़ने की अनुमति नहीं मिलनी चाहिए। यानि पुनः नये उम्मीदवारों के साथ पुनर्मतदान कराये जाने चाहिए। नोटा भारत में नकारात्मक फीडबैक देने का काम करने लगा है, अब कुछ राजनैतिक दलों के प्रतिनिधि भी नोटा को लेकर नकारात्मक माहौल बनाने में लगे हुए है या इसकी प्रासंगिकता पर सवाल खड़े कर रहे है जो बिलकुल ही लोकतंत्र की अवधारणाओं की विरुद्ध है। हाल में महाराष्ट्र और हरियाणा स्टेट इलेक्शन कमीशन की पहलकदमी से नोटा के प्रति भरोसा जगा है। 6 नवंबर – 2018 को महाराष्ट्र में स्टेट इलेक्शन कमीशन ने एक ऑर्डर पास किया है कि नोटा को यदि बहुमत मिल जाता है तो पुनर्मतदान कराया जाएगा। 22 नवंबर – 18 को हरियाणा स्टेट इलेक्शन कमीशन ने भी यही निर्णय लिया। इसकी एक वजह थी कि महाराष्ट्र के स्थानीय निकाय चुनाव में कई ऐसी सीटें थी जिसमें नोटा को बहुमत मिला था। पुणे के एक पंचायत में नोटा को 85 प्रतिशत वोट मिल गया। यही ऑर्डर यदि देश व्यापी हो जाए तो उम्मीद है देश में नोटा की प्रासंगिकता बढ़ जाएगी और वोट बहिष्कार की धारा को भी मुकाम मिल जाएगा।

मूल रूप से प्रभात खबर में प्रकाशित

I sometimes wonder whether we can ever hope to realise the aspirations of our freedom fighters, who sacrificed so much to gain independence from colonial rule. Sadly, foreign domination has been replaced in some measure by our home grown oligarchy that possesses both “money power” and “muscle power”.
– Navin B Chawla, 16th Chief Election Commissioner (2017)

The 17th Lok Sabha elections were not only a resounding victory for the BJP but a victory for money and muscle power, with 43% (233) of elected MPs having declared criminal cases against them (an increase of 44% since 2009), 88% (475) MPs having assets worth Rs. 1 crore and more, and the average assets per winner being Rs 20.93 crore. Crime and money are seen ever so strongly linked with electoral success. According to ADR analysis, a candidate facing criminal charges had 15.5% chances of winning Lok Sabha 2019 elections against a 4.7% chance for a clean candidate. Speaking of winning based on assets, there were 21% chances of winning for crorepati candidates contesting elections against a 1% chance of candidates with assets below Rs 1 crore. This is the grim reality of world’s largest elections, popularly referred as the dance of democracy. One may then ask, ‘dance to whose tune?’

According to a Centre for Media Studies (CMS) study, a whopping Rs 55,000-60,000 crore is estimated to have been spent during the 2019 Parliamentary elections, making them the costliest elections ever. 40% or Rs 24,000 crore have been spent by candidates while parties spent an estimated Rs 20,000 crore (35%). On further analysis, we see that nearly Rs 100 crore were spent per Lok Sabha constituency which, on an average, comes down to Rs 700 per voter (India has approximately 900 million eligible voters).

Throughout the election campaign, media frequently reported about instances of money being spent and distributed to bribe voters. The Election Commission of India (ECI), beginning March 26, 2019, published seizure reports highlighting the amount of cash, liquor, drug/narcotics, precious metals, freebies etc. seized during the campaigning period each day. The total seizure reported by the ECI at the end of elections was a monstrous Rs 3475.76 crore (in contrast to Rs 299.943 crore seized in 2014 elections) with drugs/narcotics topping the list at Rs 1279.90 crore followed by precious metals (gold etc.) at Rs 987.11 crore. 10%-12% voters admitted receiving cash for votes, another two-third acknowledged that voters around them were also bribed. A considerable amount of the total poll expenditure is unaccounted cash which remains outside the purview of the formal system.

Moreover, as political strategizing and campaigning continues to become more sophisticated and competitive, we see crores being spent on political advertising, especially on social media, making it difficult to monitor the indirect expenditure with precision. These elections also witnessed the highest ever anonymous funding (through Electoral Bonds) in the months preceding the general elections; March and April 2019 accounted for purchase of bonds worth Rs 3622 crore – 62% of the total bonds purchased till date and 2.5 times the amount purchased in earlier phases.

While money has definitely grown in prominence, crime is not far behind. As elections grow costlier, so does the demand for wealthy candidates, and accompanying these candidates, are often their dubious reputations blurring the lines between the politician and the criminal. Despite the Supreme Court judgment of 2018 that mandated political parties and candidates to declare the criminal antecedents of every contesting candidate in print and electronic media, at least three times after filing the nomination, 159 MPs with declared serious criminal charges (an increase of 109% since 2009) have been elected to the 17th Lok Sabha.

The reality of tainted candidates fighting for political power is expansive across party lines. This was also true for elections this year. BJP and INC fielded 175 (40%) and 164 (39%) candidates with declared criminal cases respectively, while the proportion of such candidates fielded by CPI (M) and NCP was at 58% and 50% respectively. ADR reports define constituencies which have 3 or more candidates with criminal cases contesting elections as ‘Red Alert constituencies’. Interestingly, there were 265 (49%) such constituencies during Parliamentary elections 2019.

Evidently, crime and money remain the indomitable winners that continue to enjoy stranglehold on India’s electoral politics and solicit immediate attention. In the light of the above, it is very critical for an Indian voter to reflect upon the factors behind the continuing victory of the two ‘Ms’ and how their ever increasing role damages the democratic integrity of our elections. It is important to examine how sturdily these factors will continue to dominate in future.

Our country’s systems will not be rid of their vulnerabilities until the Political system’s shortcomings are fixed first. There are institutions to enforce the law, but they are controlled politically as well – whether direct or indirect, nevertheless, Law and Order and the Criminal Justice System cannot function unless the Political system is brought under the purview of the law.
-Prof. Jagdeep Chhokar

Lok Manch – Corruption in Politics

This statement is significant in light of the supreme court judgment last year on a writ petition filed by advocate Lily Thomas and SN Shukla of Lok Prahari which stated that if a sitting MP/MLA is convicted of charges listed under Sections 8(1), 8(2) and 8(3) of the Representation of the People (RP) Act, then he/she would be disqualified and the seat would be declared vacant.

The Association for Democratic Reforms (ADR) analysed affidavits of the newly elected MPs with self-declared criminal cases where the charges have been framed. Of 57 MPs who have declared criminal cases where the charges have been framed, 53 have declared criminal cases under Sections 8(1) and 8(3). These criminal cases have been pending for an average of 10 years and include charges of murder, attempt to murder, electoral violations, kidnapping, dacoity, promoting enmity between different groups on grounds of religion, race, place of birth, residence, language, etc.

These MPs face disqualification if convicted of these charges and their seats would be declared vacant. The Bharatiya Janata Party (BJP) itself has 24 MPs who have declared such criminal cases and the party may lose majority if all these MPs are convicted of charges listed under Section 8(1) and 8(3). What’s more, this is not a possibility in the far future. According to an interim order in March this year, on a PIL by the Public Interest Foundation, a supreme court bench taking note of the fact that the cases pending against MPs and MLAs often drag on for years, directed that “in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Sections 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s).” The 16th Lok Sabha might face many vacant seats in the coming year if these MPs are convicted.

What is the implication of a possible disqualification of the MPs for the future? The greatest political exercise in the country was concluded about a month ago. The amount of time, money and energy invested into the election campaign by the parties are a testimony to the importance of the vote of each citizen.

The increase in the polling percentage in almost every constituency of the country shows that the efforts of the election commission and various other organisations, to increase voter participation have paid off.

However, this gargantuan exercise can only be complemented with cleaner candidates in the fray. The quality of governance is directly proportional to the quality of legislators we have. The disqualification of an MP while in office leads to instability in parliament and it is the taxpayer who is burdened with the extra cost of conducting by-elections for the seats that are left vacant.

While campaigning for the 2014 elections, Modi stated that “the next parliament would be cleaned by punishing the guilty” and his recent statement in the Rajya Sabha as the newly elected PM is consistent with his commitment towards weeding out criminals from politics. However, according to data collected by ADR from the affidavits of the contesting candidates, the BJP gave the ticket to 140 candidates with criminal cases – or 33% of the 428 BJP candidates had self-declared criminal cases. Further, 185 new MPs have declared pending criminal cases against themselves and 111 of them have serious criminal cases. These self-declared criminal cases have been pending against the 185 MPs for an average of seven years. Currently, there are 1,353 (33%) sitting MLAs who have declared pending criminal cases against themselves.

Clearly, the implications of this judgment have not been fathomed by the political parties fielding such candidates in the parliamentary and assembly elections. In fact, through the analysis of the data collected since the inception of National Election Watch (NEW) in 2002, it is noted that the trend of criminalisation of politics has only increased. In 2004, 25% of the elected MPs had declared criminal cases against themselves. This number increased to 30% after the 2009 Lok Sabha elections and now it is at an alarming 34%.

The landmark judgment of the Supreme Court in the Lily Thomas case is a giant leap forward to combat the malaise of crime in politics. One of the major reasons why candidates with criminal cases go on to win the elections is because political parties continue to field such candidates. During the Lok Sabha 2014 elections, 179 constituencies had three or more candidates with criminal cases. What choice does the citizen have then while casting his/her vote? This judgment ensures that the MPs and MLAs convicted of cases under Section 8 of the RP Act are not allowed to continue office. This is paramount in view of the sanctity of the position a legislative representative holds.

The PM stated in the Rajya Sabha that any MP with even an FIR registered against him/her should have his criminal cases disposed of in a year. While that seems like a task that might burden the lower and upper courts far too much to be practical, it is prudent to fast-track at least the cases against MPs where the charges that have been framed fall under Sections 8(1), 8(2) and 8(3) of the RP Act. The Supreme Court directed just that for MPs and MLAs, on March 10 in the interim order on the PIL. According to the data analysed by ADR, the cases against 53 PMs, whose charges fall under Sections 8(1) and 8(3), are liable to be disposed of in a year.

While the task at hand is monumental, let us hope that the criminal cases against these MPs are tried fairly and the state machinery is not used to withdraw cases. In the coming months we may see disqualification of some MPs, and let that be a deterrent against candidates with serious criminal cases to contest elections in the future.