Time to Bell the Cat

    30-Mar-2020   
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 The person, against whom charges have been framed in serious offences, should be barred from contesting the election and becoming political office bearer. A convicted person should also be debarred from contesting election and or becoming political office bearer for life
 
“It needs little argument to hold that the heart of the Parliamentary system is free and fair elections periodically held, based on adult franchise, although social and economic democracy may demand much more.” (Supreme Court of India in 1978)
 
This one quote, although more than four decades old, speaks volume on the importance of democracy, and hence, purity in the election process. It is trite to say but important to note that a fair and unbiased electoral process, with greater citizen participation, is fundamental to safeguarding the values of democracy.
 
Maintaining the quality of the electoral process, however, requires a multi-pronged approach, which includes removing the influence of money and criminal elements in politics, expediting the disposal of election petitions, introducing internal democracy and financial transparency in the functioning of the political parties, strengthening the Election Commission of India, and regulating opinion polls and curbing paid news. Unfortunately, these are some of the issues, which have plagued the Indian electoral system over the decades and have eroded the trust of many people in the country. Consequently, over the years, a number of committees have examined some of the major challenges and issues affecting India’s electoral system and have made suggestions accordingly. Both the Law Commission in its 170th Report on “Reform of the Electoral Laws” in 1999 and the Election Commission in its seminal 2004 “Proposed Electoral Reforms” report have addressed some of these challenges. Other Committees and Commissions, which have examined these issues, are: The Goswami Committee on Electoral Reforms (1990); The Vohra Committee Report (1993); The Indrajit Gupta Committee on State Funding of Elections (1998); The Law Commission Report on Reform of the Electoral Laws (1999); The National Commission to Review the Working of the Constitution (2001); The ECI Proposed Electoral Reforms (2004) and The Second Administrative Reforms Commission (2008). Unfortunately, their recommendations were not followed by legislative action, required for the enhancement of the quality of democracy, by reducing the influence of money and media in politics and ensuring free and fair elections. 
 
Especially in the context of ethnic divisions such as caste and religion, criminals are able to get votes based on their caste or religious affiliation, their money power, their perceived willingness to ‘bend’, if not break, the law to favour their constituently and also because of coercion and intimidation including their rivals. Criminals, in turn, have no interest in standing as independents but stand as candidates of political parties. Criminals want to stand as candidates of political parties because parties are still connected to powerful leaders, families, ethnic groups and social bases. Aspiring candidates can tap into these networks to expand their appeal beyond their own narrow support bases. Second, in a country with high rates of poverty and illiteracy, party symbols hold great weight; they serve as an important visual cue through which millions of voters connect to politics. As such, the historical legacy of parties matter a great deal in Indian democracy. 
 
The consequences of permitting criminals to contest and become legislators are extremely determental to for our democracy and secularism: (i) during the electoral process itself, not only do they deploy “enormous amounts of illegal money” to influence the outcome but also intimidate voters and rival candidates. (ii) Thereafter, in our weak rule-of-law context, once they gain entry to the governance as legislators, they interfere with, and influence the functioning of government machinery in favour of themselves and members of their organisation by corrupting government officers and, where if does not work, by using their contacts with Ministers to make threats of transfer and initiation of disciplinary proceedings. Some even become Ministers, which makes the situation worse. (iii) Legislators with criminal antecedents also attempt to subvert the administration of justice and attempt by hook or crook to prevent cases against themselves from being concluded and, where possible, to obtain acquittals. Long delays in disposal of cases against sitting MP’s and MLA’s and low conviction rates are testimony to their influence. 
 
The empirical evidence supports the view that the current legislative framework permits criminals to become a legislator. It (a) interferes with the purity and integrity of the electoral process; (b) violates the right to choose freely the candidate of the voter’s choice and, therefore, the freedom of expression of the voter under Article 19(1)(a); (c) amounts to a subversion of democracy, which is part of the basic structure; and, finally, (d) is antithetical to the rule of law which is at core of Article 14 of the Constitution of India. 
 
Criminalisation of politics in India has only grown. National Election Watch and Association for Democratic Reforms (ADR) have analyzed the self-sworn affidavits of 539 out of 542 MPs of the present Lok Sabha. Elections in Vellore constituency had been cancelled and 3 MPs were not analyzed due to unavailability of their clear and complete affidavits on the ECI website at the time of making the report. Out of 539 MPs, 233 (43%) MPs have declared criminal cases against themselves. Out of 542 winners analyzed after 2014 General Election, 185 (34%) had declared criminal cases against themselves and out of 543 winners analyzed after 2009 Lok Sabha election, 162 (30%) had declared criminal cases against themselves. There is an increase of 44% in the number of MPs with declared criminal cases since 2009. 
 
Presently 159 (29%) MPs have declared serious criminal cases including cases related to rape, murder, attempt to murder, kidnapping, crimes against women etc. Out of 542 winners analyzed after 2014 Lok Sabha elections, 112 (21%) had declared serious criminal cases against themselves. Out of 543 winners analyzed after 2009 Lok Sabha election, 76 (14%) had declared serious criminal cases against themselves. So, there is an increase of 109 % in the number of winners with declared serious criminal cases since 2009. 
 
Kuriakose from Idukki Constituency has declared 204 criminal cases including cases related to culpable homicide, house trespass, robbery, criminal intimidation etc. Total 30 MPs of the present Lok Sabha, have declared cases of attempt to murder (Section 307), 19 MPs have declared cases related to crimes against women and out of these 19 MPs, 3 MPs have declared cases related to rape (IPC Section-376). Total 29 MPs have declared cases related to hate speech. 
 
ADR Report indicates that the chances of winning for a candidate with declared criminal cases in the Lok Sabha 2019 are 15.5 % whereas, for a candidate with a clean background, it is 4.7 %. Total 116 (39%) out of 301 winners from BJP, 29 (57%) out of 51 winners from INC, 10 (43%) out of 23 winners from DMK, 9 (41%) out of 22 winners fielded by AITC and 13 (81%) out of 16 winners from JD(U) have declared criminal cases against themselves in their affidavits. Total 87 (29%) out of 301 winners from BJP, 19 (37%) out of 51 winners from INC, 6 (26%) out of 23 winners from DMK, 4 (18%) out of 22 winners fielded by AITC and 8 (50%) out of 16 winners from JD(U) have declared serious criminal cases against themselves in their affidavits. 
 
Out of the 539 MPs analyzed, 475 (88%) are crorepathis. Out of 542 winners analyzed during Lok Sabha 2014 election, 443 (82%) winners were crorepathis. Out of 543 winners analyzed during Lok Sabha 2009 election, 315 (58%) winners were crorepathis. Total 265 (88%) out of 301 MPs of BJP, 43 (84%) out of 51 MPs of INC, 22 (96%) out of 23 MPs of DMK, 20 (91%) out of 22 MPs of AITC, 19 (86%) out of 22 MPs of YSRCP and 18 (100%) MPs of SS have declared assets worth more than Rs. 1 crore. The chance of winning for a crorepathi candidate in the Lok Sabha 2019 is 21%, whereas chance of winning for a candidate with assets less than Rs. 1 crore is 1%. A total of 4 out of the 539 winners analyzed have not declared their PAN details. The average assets of 225 re-elected MPs fielded by various parties including independents in 2014 was Rs 17.07 crore. The average asset of these 225 re-elected MPs in 2019 is Rs 21.94 crore. The average asset growth for these 225 re-elected MPs, between the Lok Sabha elections of 2014 and 2019 is Rs 4.87 crore. Average percentage growth in assets for the 225 re-elected MPs is 29%. 
 
Presently, 128 (24%) MPs have declared their educational qualification to be between 5th pass and 12th pass, while 392 (73%) MPs have declared having an educational qualification of graduate and above. One MP has declared himself to be just literate and One MP is illiterate. 194 (36%) MPs have declared their age to be between 25 and 50 years while 343 (64%) MPs have declared their age to be between 51 and 80 years. Two MPs have declared they are more than 80 years old. Presently, there are 77 (14%) women MPs. Out of 542 winners analyzed in the Lok Sabha elections 2014, 62 (11%) winners were women. Out of 543 winners analyzed in the Lok Sabha elections 2009, 59 (11%) winners were women. 
 
What is alarming is that the percentage of candidates with criminal past and their chances of winning have actually increased steadily over the years. In fact, the empirical analysis shows that, where the charges against a candidate are serious, it slightly increases the statistical probability of his winning the election. Criminals who earlier used to help politicians win elections in the hope of getting favours appear to have cut out the “middle man” in favour of entering politics themselves. Political parties, in turn, have become steadily more reliant on criminals as candidates not only because they “self-finance” their own elections in an era where election contests have become phenomenally expensive but also because candidates with criminal antecedents are more likely to win than “clean” candidates. Political parties are competing with each other in a race to the bottom because they cannot afford to leave their competitors free to recruit criminals. Despite the above data, the Government has not taken apposite steps to tackle the menace of criminalisation. 
 
India’s democratic setup is a paradigm for many countries in the world due to its remarkable success over the past seven decades. The heart of India’s democratic system witnesses regular elections with the participation of the largest electorate in the world. In order to safeguard the core values of fair and free elections in this dynamic scenario, it is important to have a just and unbiased electoral process with greater citizen participation. Thus, in accordance to the responsibility bestowed upon by the Constitution of India, the Election Commission of India has always remained actively involved in finding out ways through which the purity and integrity of the election process are preserved. However, there are certain challenges and issues that the electoral system has faced over the years. Trust and confidence of citizens in the electoral system can be affected if these challenges remain unattended. Thus, keeping in view these difficulties the Election Commission of India after conducting extensive study and research recommends certain changes that need to be taken up expeditiously to amend certain provisions of law. Taking forward a step in this direction, the Commission have made several electoral proposals to remove the glaring lacunae in the law. Many of these proposals have been already put forth by the Commission have remained unresolved. Some of the proposals pertain to areas which have not been taken up previously by the Commission but arose due to the implementation of certain laws or on the directions issued by the Supreme Court and the High Courts. Commission considers it necessary to put all proposals on electoral reforms in the public domain for the benefit of people. The Election Commission sincerely believes that these suggested reforms will prove to be extremely useful in addressing the existing issues and challenges and would go a long way in enhancing the quality of democracy.
 
One of the notable features for which India is known to the world is its electoral Democracy. However, in order to call a system truly Democratic, it is necessary that it must reflect the political and socioeconomic aspirations of its people. The issue of electoral reforms has been taken up by Parliament, the Government, the Judiciary, the Media and the Election Commission on numerous occasions. The Election Commission during all these times has striven to bring positive changes in the electoral system for better implementation. There has been various correspondence exchanged between the government and the Election Commission to ensure that the required electoral reforms are brought in place. However, for strengthening the existing system and removing the difficulties arising in ensuring free and fair elections the Election Commission stresses that various steps are required to be taken for the better practice in election-related matters. Maintaining the purity and transparency of the election process is a very challenging job and involves a lot of inherent complexities. However, the Commission in its endeavour has always tried to ensure the fairness in elections by putting in tremendous efforts in line with all stakeholders. Therefore, these proposals besides giving a perspective on the challenges faced during the elections, seek to provide a comprehensive framework about the ways in which these challenges can be effectively dealt.
 
Government should take appropriate steps to set minimum qualification and maximum age limit for contesting the election. A Legislators Eligibility Test (LET) on the lines of Teachers Eligibility Test (TET) can be started to make it more effective. It is also essential to ban the Legislators from practising other professions till they demit the office. Political Donation in cash should be restricted to 2,000 rupees per person per year. Political parties should be brought under the RTI and Tax Relief should be given to only those who contest the election and win the seat.
 
pecial Courts should be set up for MLAs and MPs in each district Court and every High Court to decide the cases of legislators within one year. The person, against whom charges have been framed in serious offences, should be barred from contesting the election and becoming political office bearer and a convicted person should be debarred from contesting the election and becoming political office bearer for life.
 
Election Commission should take steps to rename political parties having names related to caste, religion, language, and region and a Law should be enacted to curtail misuse of caste, religion, language and region for electoral gain. It’s high time to enact a Law to promote inner-party democracy and financial transparency and define the roles and responsibilities of legislators. Past experience confirms that the FPTP system is not very effective hence Hybrid System (FPTP and Proportional Representation System) should be adopted.
 
There must be a complete ban on govt-sponsored advertisement, paid news, political advertisement and Opinion Poll in the last six months. Cooling period should be five days and there must be a complete ban on advertisement and campaigning. Common Electoral Rolls should be used in all elections and Totalizer should be used for counting votes. Election Commission should ascertain the feasibility of Aadhaar based voting system and there must be re-poll if NOTA gets maximum votes. Post Offices should be used as nodal agency for voter registration and there must be a ban on contesting for the same office from more than one constituency.
 
Appointment of Chief Election Commissioner and Election Commissioners should be through Collegium of Prime Minister, Chief Justice of India and Leader of Opposition. Election Commission should have the Rule Making power like Supreme Court and power of de-registration of political parties. An independent secretariat of Election Commission is also essential for complete independence. Budget of Election Commission should be charged from the consolidated fund.
 
(The writer is an advocate, Supreme Court of India)