Form & Reform

Crime and Politics

Bibek Debroy is chairman of the Prime Minister’s Economic Advisory Council
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There is no solution as long as voters don’t care

MOST PEOPLE WILL have heard of the Association for Democratic Reforms (ADR). It is a good resource for the huge agenda of electoral reforms, though I can name several other good sources too. In the 2014 General Election, 8,230 candidates contested from 543 constituencies and they had to submit self-sworn affidavits. Every candidate has to submit such an affidavit in Form 26, along with the nomination papers. (We may have a legitimate problem with the quality and veracity of information given, but that is a separate issue.) The candidate has to state: ‘I am/am not accused of any offence(s) punishable with imprisonment for two years or more in a pending case(s) in which a charge(s) has/have been framed by the court(s) of competent jurisdiction.’ In case such a case is pending, the candidate has to furnish the details. Notice that this is only about a candidate being accused. The candidate also has to state: ‘I have been/ have not been convicted of an offence(s) [other than any offence(s) referred to in sub-section (1) or sub-section (2), or covered in sub-section (3), of section 8 of the Representation of the People Act (RPA), 1951 (43 of 1951)] and sentenced to imprisonment for one year or more.’ If there has been such a conviction, the details have to be given.

We should next check Chapter III (Section 8 is a part of this) of the RPA. This disqualifies people from becoming MPs or MLAs for certain offences. Section 8 has three different sub-sections. Section 8(1) talks of convictions under several IPC (Indian Penal Code) sections, Protection of Civil Rights Act, sections of Customs Act, sections of Unlawful Activities (Prevention) Act, Foreign Exchange Regulation Act, Narcotic Drugs and Psychotropic Substances Act, sections of Terrorist and Disruptive Activities (Prevention) Act, sections of Religious Institutions (Prevention of Misuse) Act, sections of RPA, sections of Places of Worship (Special Provisions) Act, sections of Prevention of Insults to National Honour Act, Commission of Sati (Prevention) Act, Prevention of Corruption Act and Prevention of Terrorism Act. Such a person ‘shall be disqualified, where the convicted person is sentenced to — (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’ Section 8(2) adds hoarding/profiteering, adulteration of food/drugs and Dowry Prohibition Act. A person convicted of contravening these ‘and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release’. Section 8(3) adds more along similar lines: ‘A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub- section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’ In other words, for some crimes regarded as serious, a person who is convicted and punished, shall be disqualified for six years more. Logically, such a person cannot stand for elections either. S/he can’t be a candidate. But think about it. I commit a crime. Once I am convicted, I have paid the penalty, imprisonment or otherwise. After that, why should I be subjected to a further penalty of disqualification for six years? That seems to be against all norms of natural justice. Do we have such provisions because penalties under the laws mentioned (or for the sections mentioned) are not severe enough? If that is the case, we should change those statutes and the relevant provisions. Punishing people twice does not seem to be the right thing to do. Be that as it may, we have such provisions.

Let’s get back to ADR and its reports. In the 2014 Lok Sabha elections, 8,230 candidates contested from 543 constituencies. Based on their affidavits, an ADR report tells us 1,398 candidates (17 per cent) had criminal cases against them. The following are regarded as serious criminal cases —offence for which maximum punishment is of five years or more; if an offence is non-bailable; if it is an electoral offence (such as IPC 171E or bribery); offence related to loss to exchequer; offences that are assault, murder, kidnap, rape related; offences under Section 8 of RPA; offences under Prevention of Corruption Act; and crimes against women. About 11 per cent of candidates had declared serious criminal cases against them. Note that these aren’t independent candidates. For the most part, they are candidates from political parties. I will skip the party-wise details the ADR report has. I will also skip the state-wise variations (percentage of criminal candidates is concentrated more in some states than in others). What’s pertinent is that criminal antecedents don’t deter political parties from nominating such candidates. It doesn’t constrain their ability to win. Voters don’t hold their criminal antecedents against them. Yet another ADR report looks at the candidates who won. Almost 35 per cent of winners had criminal cases against them and 21 per cent of winners had serious criminal cases against them. In statistics, it is always difficult to control (and net out other factors) and establish correlation, not to speak of causation. Therefore, let me quote from the ADR report and not use my own words: ‘The chances of winning for a candidate with criminal cases in the Lok Sabha 2014 elections are 13%, whereas for a candidate with a clean record it is 5%.’ There is a yet a third ADR report on re-elected MPs, which shows that re-elected MPs have an even higher percentage of criminal cases against them. Election or re-election is not adversely affected by the existence of such criminal cases. Voters don’t care.

I have cited figures from the Lok Sabha, but there are similar numbers from legislative assemblies. Why has criminalisation of politics taken place? Or, is the right word ‘politicisation’ of criminals? Why are there so many criminals in politics? But wait a minute. When we say ‘criminals’, what do we mean? Naturally, we are not talking about minor ‘crimes’. There is probably no politician who has not been accused under Section 144 of the IPC. We have in mind serious crimes. But has the politician been convicted, or has s/he only been chargesheeted? In other words, we are also talking about delays in the criminal justice system. There was an earlier report that ADR did for the 2009 General Election. In this, you find there are MPs, chargesheeted for serious crimes, whose trials have been going on for more than 10 years. There are some for whom the trials have been going on for almost 30 years. Principles of natural justice suggest a person is innocent until proved otherwise. We therefore have a problem with the criminal justice system, which we have talked about earlier. We now come to a petition filed in the Supreme Court in September 2016. This sought three directions from the Court, all for de-criminalisation of politics. First, those chargesheeted for serious crimes (defined as punishment of two years or more) should be debarred from political activities. Second, there should be special fast-track courts for trying representatives of people (not just MLAs and MPs). Third, there should be a life-time ban (from political activities) of those convicted. In fairness, directions were also sought on broader electoral reforms. I am sure you are aware of what happened thereafter. Twelve special courts have been set up to resolve 1,581 cases within one year, for MLAs/MPs. There are many reasons why I don’t like the idea, not just Article 14 (equality before the law). You will find the reasons in the 239th Report of the Law Commission on ‘Expeditious Investigation and Trial of Criminal Cases against Influential Public Personalities’. The problem isn’t only with those who have been elected. It is also with the candidates.

I think we have a naïve view of what MLAs/MPs do, and where. We tend to think this is about state legislatures and Parliament and making laws there. For an MLA or Lok Sabha member, there are two other segments s/he is answerable to: the voter in the constituency and the party. Consider a Lok Sabha member who is not catapulted from the outside, but rises through the party ranks from the panchayat/urban local body and assembly levels up to Parliament. Generating funds for the party is an integral part of his or her task. Ipso facto, there is a broader electoral funding issue. For the voter, the MLA or MP is usually busy ensuring a smooth interface between the citizen and the government (the police, municipal bodies, land conversion, building permissions, schools, hospitals, railways and so on). However, we do not live in a perfect world. Becoming a successful candidate or MP, in voter and party perception, means thriving in that perfect world. I don’t think we will ever be able to lick criminalisation of politics from the top.