Crime and Punishment Parliament
This post is the first installment in a series on electoral reforms.
Last week was a blockbuster one for election law, bringing us not one, but two Supreme Court decisions with implications for convicted criminals, political candidates, legislators, and combinations thereof. On Thursday, the Supreme Court ruled that individuals lodged in jails or in police custody cannot contest elections. Earlier in the week, the same bench struck down a provision in the Representation of the People Act that protects legislators convicted of crimes from disqualification for three months from the date of conviction.
These decisions are timely. Upon taking office this past January, Law Commission Chairman Justice DK Jain stated that electoral reforms were going to be a top priority. Last month, the Commission appeared to make good on that promise releasing a [very brief] Consultation Paper on Electoral Reforms, and a notice soliciting feedback.
While any collective soul-searching into the deficiencies of election statutes is a positive development, it’s worth noting that this process has repeated itself many times in the recent past. Here’s a (possibly non-exhaustive) list of efforts since 1990: [i]
- Goswami Committee on Electoral Reforms (1990)
- Vohra Committee Report (1993)
- Indrajit Gupta Committee on State Funding of Elections (1998)
- Law Commission Report on Reform of the Electoral Laws (1999)
- National Commission to Review the Working of the Constitution (2001)
- Election Commission of India – Proposed Electoral Reforms (2004)
- The Second Administrative Reforms Commission (2008)
- Core Committee on Electoral Reforms (2010)
Taking note of issues from election financing to media regulations, the newest Law Commission paper declares the “criminalization of politics” to be its primary concern. Indeed, there is nothing new about the pervasive feeling that Indian Parliamentarians are a particularly compromised lot. In its 1993 report – part of which was deemed so explosive that it was never published – the Vohra Committee observed that “The nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country” and that “some political leaders become the leaders of these gangs/armed senas and over the years get themselves elected to local bodies, State assemblies, and national parliament.”[ii]
As this week’s Supreme Court decisions have highlighted, it is this last phenomenon – membership in Parliament – that many consider the most vexing manifestation of the mixing of criminal and political activity. Importantly, this week’s Supreme Court rulings do not resolve the issue. That’s because, while the Representation of People Act and this week’s decisions bar certain convicted criminals from holding office, the more intractable problem is what to do about the many MPs with criminal charges pending, who have not yet been convicted of any crime and are free on bail. According to a 2009 report of the Association for Democratic Reforms, 1158, or 15%, of all candidates contesting in the general election, had criminal charges pending against them. This included almost a third of all candidates in Bihar, as well as 27% of Congress candidates, 27% of BJP candidates, and 43% of ADMK candidates nationwide. During the election 162 MPs with criminal charges pending were elected (up from 128 in 2004), including 76 involved in “heinous offences such as rape, dacoity, and murder” (up from 58 in 2004).[iii]
The BJP and Congress each sent 42 MPs with criminal charges pending to the Lok Sabha. Of those MPs with serious (defined more broadly than heinous) IPC counts against them, there were 52 BJP, 31 Congress, 31 SP, 18 BSP, and 23 JD(U) MPs, as well as 9 MPs each from the ADMK, NCP and RJD.[iv]
The Law Commission’s recent Consultation Paper highlights two ways in which this could be addressed. Under the status quo contained in section 8 of the Representation of the People Act, MPs convicted of certain crimes will be disqualified for a period of time, based on the severity of the offence. The first alternative presented by the paper is that an MP or candidate could be disqualified much before conviction, when charges are framed by a court. The second alternative is the creation of a quasi-judicial tribunal that would “travel beyond the domain of criminality” and “evaluate the fitness of a candidate on the touchstone of certain enumerated standards.” In other words, not only criminal charges, but also complaints alleging a much broader spectrum of misconduct could lead to disqualification. Such a tribunal would issue orders disqualifying candidates based on the “preponderance of probability” rather than proof beyond a reasonable doubt.
Similar proposals have been made in the past as well.[v] The Election Commission and the Second Administrative Reforms Commission proposed a similar solution to the first alternative offered by the Law Commission. That proposal also contained provisions to prevent abuse. Only candidates/MPs accused of crimes punishable by 5 years or more of imprisonment could be disqualified upon having charges framed against them. Further, charges filed within six months of an election would not lead to disqualification.
There are a few striking features shared by these proposals. The first is the significant confidence they place in the capabilities of both judges and quasi-judicial tribunals to fairly adjudicate highly politicized questions quickly and without the format of a trial. The second is the tension between holding accused politicians accountable and the enormous potential for abuse. While it may be a popular idea, barring candidates only accused (and not chargesheeted or convicted) of crimes seems to be recognised as a bridge too far. Yet even the Law Commission proposals would go much further than Thursday’s ruling, which itself leaves plenty of room for abuse. In an editorial on Friday, The Hindu called that decision “a remedy worse than the disease,” noting that, “All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest.”[vi]
One proposal that might avoid such pitfalls was proposed by The National Commission to Review the Working of the Constitution, in 2001. The Commission proposed the establishment of Special Courts to decide cases against candidates within six months. Candidates against whom charges are pending would be entitled to have their cases heard in the special courts, which would determine if a plausible prima facie case had been made against them or if the case was frivolous. BJD MP Jay Panda recently introduced a Private Members’ Bill in the Lok Sabha that would set up a fast track court within 90 days of charges being registered against an elected official.
The third striking feature of these proposals (and the whole discussion) is that within them lies a certain distrust of the electorate. Any such rule, by its very nature, assumes that, by choosing to elect MPs in criminal trouble, the electorate is either (1) unwise or (2) powerless to prevent those results. One problem with this (aside from its paternalism) is that it is empirically shaky. The ADR report states that in 2009, “Of the 608 candidates with the most serious criminal cases against them, only 76 won. The remaining 532 were rejected by the voters.”[vii] That is a win rate of only 12.5%. In ADR’s list of the top 20 candidates with criminal cases pending against them, all but two lost.[viii]
Finally, it is hard not to come away from the discussion wondering why there is such little acknowledgment of the much larger and more urgent problem at work here. That is, of course, the backlog of cases in the courts and the routine denial of speedy justice that plagues the entire judicial system. After all, if criminal cases were adjudicated more quickly, the existing provisions of the Representation of the People Act might well be enough. In 2009, Chief Justice A.P. Shah of the Delhi High Court said in a report that “it would take the court approximately 466 years” to clear the 2,300 criminal appeals cases pending in that Court alone.[ix] In 2011, there were over 72 lakh cases pending in the entire country.[x] The tainted state of the Lok Sabha is the most visible and most embarrassing consequence of this state of affairs, one that arguably affects each individual citizen far more profoundly than the election of criminal MPs.
[i] Background Paper on Electoral Reforms. Legislative Department, Union Ministry of Law & Justice. December 2010.
[iii] Final Report, Lok Sabha 2009. Association for Democratic Reforms. http://adrindia.org/research-and-reports/lok-sabha/2009/pdf-full-book-lok-sabha-2009-election-watch-compedium-state-election-watch-reports.
[v] See supra note .1
[vii] Supra note 3.