Current Public Administration Magazine (March - 2014) - Polity, Constitution and Governance

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Polity, Constitution and Governance

Criminality in the Indian political system

Criminality in politics, or more pointedly, criminals sitting in our Parliament and legislatures, is an issue that has for long been debated in many forums and has also been at the forefront of reform proposals sent by the Election Commission of India (ECI) to the government. With elections to five States under way, and the 16th General Election due to be completed before May 31, 2014, India is now gripped by that special fever that besets us every five years. Unexpectedly, part of the backdrop already stands influenced by a few recent decisions of the Supreme Court.

The Supreme Court has importantly passed three orders that relate directly to the conduct of elections. The first relates to the distribution of “freebies”, wherein the ECI has been asked to frame guidelines in consultation with political parties. The second is directing the installation of the None-of-The-Above (NOTA) button in the Electronic Voting Machines, which has already been implemented in the current round of Assembly elections. The third is the court’s order of July 10, 2013 in the Lily Thomas vs Union of India matter, wherein the Supreme Court has declared unconstitutional Section 8 (4) of the Representation of the People Act, 1951. The importance of this order cannot be overemphasised. The position that prevailed before this order was enacted was that all convicted MPs and MLAs enjoyed a three-month period in which to appeal against their conviction, and during this period they crucially retained their memberships in Parliament or legislatures respectively. What has changed is that while they still have the right to appeal, now they immediately cease to be members the House. While previously they were able to file appeals within the stipulated three months without giving up their membership, they managed, in effect, to remain MPs or MLAs often for long years after their terms had expired. Not only have these orders already impacted the elections under way but they will continue to have a profound impact on cleansing our political system.

The Lily Thomas matter was applied by the court prospectively and not retrospectively. The court would have had many reasons not to apply its order retrospectively, not the least of which is that it would possibly have thrown our current polity into disarray. Be that as it may, in the present and future, every parliamentarian or legislator who stands convicted for an offence that leads to a sentence of imprisonment for two years and more, will also be debarred from contesting an election for six years after his or her prison term ends. Moreover and equally importantly, there are offences which are already on the statute book and where conviction (even without sentence of imprisonment) leads to disqualification. These include conviction for rape, for promoting enmity and hatred between and among different classes or groups, conviction relating to bribery, and conviction under the Prevention of Corruption Act, the Foreign Exchange Regulation Act (FERA) and The Prevention of Terrorism Act, 2002 (POTA). Once again, since the grace period for remaining an MP or MLA has ended, this in effect means that the six year axe of debarment comes immediately into operation in these categories of cases as well.

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Criminals among MPs, MLAs

Close on the heels of this order, the nation witnessed the jailing of Lalu Prasad, the president of a once nationally recognised political party, the RJD, as well as Rasheed Masood, a former Minister and sitting MP of the Rajya Sabha. While both stand debarred from contesting elections for six years after their jail terms are completed, in effect such a long banishment might well put an end to their political careers. For, as is well known, politics abhors a vacuum.

The abhorrence of criminality in politics is a common thread running through practically every student audience I have addressed across India in the last seven years. They are well aware of the figures compiled by non-governmental organisations such as NEW and ADR from the affidavits submitted to the ECI by contestants. Two vital orders of the Supreme Court in 2002 and 2003 made it compulsory for all candidates to file information regarding any and all criminal cases pending against them, as well as figures of the combined wealth or assets of the candidates and their spouses, and indeed their educational qualifications. With this information, the court hoped that voters could make informed choices about whom to vote for or not. Most of my student audiences knew the statistics; that in the present Parliament as many as 30 per cent of sitting Lok Sabha MPs and 31 per cent of Rajya Sabha MPs have criminal cases pending against them, that the Bihar Assembly (2010) has a high of 58 per cent criminals among its MLAs, while the Uttar Pradesh Assembly (2012) has 41 per cent. The Congress has 21 per cent declared criminals; the Bharatiya Janata Party has 31 per cent. At the other extreme, the Jharkhand Mukti Morcha has 82 per cent criminals among its MPs and MLAs.

Is it any surprise then that student audiences inevitably ask what is the point of clean election processes if the end result is to elect tainted men and women?

When the government decided to rush headlong into enacting an Ordinance to counter the July 10, 2013 Order of the Supreme Court, this resulted in a surge of public sentiment bordering on revulsion, against what would arguably have been a very regressive step in the development of our democratic institutions. The dramatic demise of the proposed Ordinance ironically became a critically important milestone in the strengthening of our democratic edifice, which I think many of us realise is still a work in progress.

by Navin B. Chawla (Navin B. Chawla is a former Chief Election Commissioner of India) Published in ‘The Hindu’.