A clean election process that bars people with criminal charges against them from contesting, is important to ensure good governance. Elections are not only about who wins and loses, but also about the quality of governance that the people get
It is the very last two per cent of Indians that entertain any tolerance for having criminals hold lok Sabha, Rajya Sabha and State legislative Assembly seats in India, according to a national survey by global online campaign network Avaaz.org. But the Congress-led UPA Government seems incapable of sensing these sentiments.
As of August 2013, out of a total of 4,807 sitting Members of Parliament and State legislative Assemblies, 30 per cent had declared criminal cases against themselves — and that includes 14 per cent with serious criminal cases — according to data with the Election Commission of India since 2004. It was made publicly available by the poll panel recently.
Ordinary citizens expect convicts to be behind bars, but convicts are governing the citizens in India. Yet, when the Supreme Court tried to remedy the situation on July 10 by striking down Section 8(4) of the Representation of the People Act as ultra vires, with the effect that conviction will put in motion disqualification of a politician from contesting elections or holding office, the UPA was up in arms.
The BJP had deemed as unconstitutional and immoral an amendment Bill which the Government had brought before Parliament. Because of the BJP’s objection, the Government had to refer the Bill to the Standing Committee for an open debate.
Subsequently, the UPA regime crafted an ordinance that allowed a convicted MP or MlA to continue to be a lawmaker but not draw a salary or vote in the process of law-making. The ordinance also allowed for the lawmaker’s disqualification to be deferred until the legal battle was fully exhausted.
What was the pressing urgency for the UPA regime to adopt the ordinance routeIJ Procedurally, it is improper to bring an ordinance in a matter which is already pending before a parliamentary Standing Committee. Ipse dixit, there cannot be a pressing urgency or need for immediate action that compelled the UPA to bring an ordinance. The answer was obvious. The ordinance was being rushed through with great haste to have it in place before the impending conviction of lalu Prasad and Rasheed Masood.
The seeds of major change are sometimes laid in historical events. One such event was the use of musclemen to fight elections. Perhaps, as the Congress’s complete dominance over elections since 1950 began to erode, the tactics that were brought into use in the late 1970s were to intimidate voters, capture booths, stuff ballot-boxes, and indulge in related activities. There was violence during elections. Money-power entered the domain of elections and politics at that point.
The Government did try to curb the misuse of money in elections and it passed a legislation to cap the amount of money a candidate could spend. However the Supreme Court’s ruling, declaring an election null and void if the winner was found to have spent more than the prescribed amount on campaigning, was overturned by a new law which provided that money spent on behalf of the candidate by a political party and by friends and well-wishers, would not count towards the expenses the candidate had incurred.
Governance has been a matter of great concern lately. The Supreme Court judgement in lily Thomas, the amendment to the Representation of the People Act and the verdict in bringing about the ‘none of the above’ option for Indian voters for the first time in the country’s political history, are at the vortex of a whirlpool of change in India’s political landscape.
Based on averages analysed from the EC’s public data, which former chief Election Commissioner of India, N Gopalaswami and IIM-Bangalore professor Trilochan Sastry, shared on September 12 in Delhi, every candidate contesting the election has more than one in five serious cases against him.
Serious charges may be defined as those for which (i) the sentence is two years or more on conviction, (ii) a court issues a non-bailable warrant, (iii) any crime against women is alleged, or (iv) any election-related criminal charge.
An analysis of 60,000 records since the UPA came to power in 2004 shows that while only 12 per cent of ‘clean’ candidates without any taint win, around 23 per cent of tainted candidates are winners. A similar 23 per cent of seriously tainted candidates also win. 1,460 of the 4,807 representatives elected to the lok Sabha in 2009 and State Assemblies since 2008 have declared criminal cases against them.
Therefore, a large percentage of candidates with serious criminal charges actually win the elections. This should cause for concern for all those who are agitating for the country’s politics to be decriminalised. We cannot just sit idle and allow the trend to continue.
So the full picture is that, on an average, there were 0.22 IPC Sections for serious crimes against a candidate, while there were 0.55 against winners. In every type of case, the percentage amongst winners is much more. The Cabinet maintains that most cases against their own are trivial, though figures available point out otherwise.
In addition, we find that several cases drag on for years. Over 3,450 candidates had contested the elections more than once. Of them, there were 849 with a criminal record the first time they contested, and 631 who had a criminal case the second time they contested. About 474 of them had the same cases pending against them for at least four years. This means that a person with serious cases against him can complete the term of an Assembly or lok Sabha before the cases are disposed of.
The need for barring such candidates becomes even stronger since they have had ample time to get their names cleared from courts. The ordinance was fated for burial since its inception. It was a last-ditch effort by the UPA Government and the Congress to save their potential allies against the mood of the country. When the BJP vehemently objected and the President seemed to appreciate the BJP’s objections and summoned three UPA Ministers for clarification, a new strategy was devised. The UPA buried the ordinance in an orchestrated high drama, claiming the U-turn was brought about by Congress scion Rahul Gandhi’s apparently scathing review of it. I do not think anybody buys this pathetic argument of the UPA — that it was the vice president of the Congress and his unparliamentary lashing and humiliation of the Prime Minister and the country’s institutions that led to the regime abandoning its ordinance. On the contrary, the UPA grabbed this opportunity to help the young Gandhi’s non-existent political fortunes.
The scams that have surfaced under the UPA regime are grossly bigger than the budget of any developed country. In the 2G Spectrum scam, in 2008, the public exchequer reportedly lost Rs 1.76 lakh crore; the 2010 Commonwealth Games scam caused a whopping Rs 70,000 crore hole in the exchequer’s pocket. Then there’s the Adarsh scam from 2010, the Rs 3,600 Italian chopper deal and the Rs 1.85 lakh crore ‘Coalgate’ itself.
Governance will suffer, no matter who wins, because everyone has ended up investing huge sums. A clean election process is important to ensure good governance, even if it has no impact on the final outcome. Elections are not only about who wins but also about the quality of governance we get.
(The writer is a senior advocate at the Supreme Court of India)