India boasts of being the world’s largest democracy. With the passage of the 73rd and 74th Amendments on Panchayati Raj, it can make the further claim of being the most representative one, with over three million grassroot legislators being elected, a third of them women. The country has of course a strong democratic tradition of electoral politics and the Election Commission has won plaudits, both at home and abroad.
But democracy goes beyond periodic elections, despite their seminal importance in ensuring free and fair choice. What is more important is the participative nature and quality of democratic governance. It is here that the country needs to be vigilant to ensure that its parliamentary system is not hollowed by the criminalisation of the political and electoral political process.
Of course, electoral politics is not the sole reason for the criminalisation of politics. The lure of money and the role of vested interests are among other reasons. Nevertheless, many analysts believe that the electoral process is a major fount of corruption and criminalisation in the country. Gaining leverage on politicians has become the road to immunity, if not power.
It is now common knowledge that a number of elected representatives to local bodies, state legislatures and even Parliament are persons of unsavoury reputation and, some of them hardened criminals. Alarmed by this trend the Supreme Court intervened a couple of years ago to order a disclosure regime that requires electoral candidates to make known their criminal record, if any, their assets and those of their immediate relatives, and their educational qualifications. The Central Election Commission worked out the related procedures and details. But, not altogether to the public’s surprise, the scheme was unanimously opposed by all parties on grounds that ranged from its impracticality to the likely harassment of innocent persons that it could cause.
The story possibly goes back to the immediate post-Independence period when prohibition was introduced in the old Bombay and Madras presidencies. All it did was to drive the process of procuring liquor and imbibing it underground. Bootleggers flourished and all manner of noxious brews were peddled to the detriment of civic conduct, the law and public health. Prohibition was later scrapped, and then reintroduced. But it has never truly worked - anywhere. However, it did permanently scar the Indian polity and society.
Bootlegging flourished with the connivance of the police, bureaucracy and politicians. An underground supply chain came into being with an elaborate and accepted system of bribery. This ensured that the law-enforcement machinery was bought up to permit moonshining, with a guarantee of both immunity and impunity. The law permitted a certain class of persons to get liquor permits on medical considerations.
Such medical certificates were soon on sale, corrupting the medical profession. The fact that drink and drunken revelry continued was an open secret. And behind it all, the liquor mafia grew in wealth, power and influence. An underground network developed, lubricated by bribery, corruption, blackmail and threats of violence. The mafia began to control men and mohallas, and developed their own protection squads to wage inter-gang wars and to deal with others foolish enough to cross their path.
These liquor barons soon discovered that they did or could control vote banks through money and muscle. They were sought after by those in distress to settle scores and by politicians to deliver votes or capture booths at election time. The mafia steadily grew and spread its tentacles over all manner of illicit operations — foreign exchange, smuggling, the flesh trade, real estate and all manner of other dodgy business. And as their reach and power grew, so did the demands made on them for electoral services, such as rigging, providing unaccounted money and preventing certain classes of people from voting. But services are never rendered gratis. There is a quid pro quo and elected legislators found that they had to dance to the tune of their paymasters and underworld benefactors at the cost of the electorate, the democratic ethos and good governance.
Before long, mafia dons discovered that they had become king makers. From there it was but a short step to becoming king. Why trouble to buy a legislator to get things done in the corridors of power. Simpler to do the job oneself by entering the legislature, win respectability and acquire "leadership" status in the bargain. Some people do really believe that to be elected — by whatever means — is to be placed above the law!
Consider the fact that certain criminals — and not only in Bihar — have been elected from prison. Others have been reported holding durbars in jail, with all home comforts, as they instruct their minions by cellphone and rule their empire, issuing diktats that few dare disobey. Some take anticipatory bail to avoid arrest. Others find it easier to abscond while notices for their production in court are pasted on walls, nailed on doors and published and broadcast by the media. And when they are ready, they "surrender", engaging clever lawyers to argue their case!
This narration is no exaggeration. Indeed, it leaves out much spice. The criminalisation of politics is widespread and has inevitably resulted in the politicisation of crime. Crime is now politics. The crime or wrong committed is of no matter. The question is on whose side the man is. The politicisation of crime has its own etiquette. There is the famous story of an American public official being told by a horrified observer that the man the US was championing abroad was "a son of a bitch"! Pat came the response, "Yes; but he’s our son of a bitch"! The language used in India’s politicised crime circuit is possibly not quite so earthy. But the message is the same.
The malaise is sufficiently alarming for the Supreme Court to have intervened and the Election Commission to have laid down a protocol for the 2004 polls. The pro forma for disclosures with regard to assets and criminal background were in some ways too complex or left loopholes and the returning officers were also uncertain over procedures and definitions and otherwise overwhelmed by the mechanics of running the elections. However, that poll was a valuable learning experience both with regard to preparing better disclosure forms and securing better scrutiny and compliance for the future.
The experiment evoked a very good public response and civil society groups set up a National Election Watch with regional/state units, to build local awareness about the new disclosure regime, interact with the Election Commission with regard to drawing up the forms, collating the information as disclosed by the candidates and then analysing them for the benefit of the media, local communities, political partiers and others.
Analysis of the disclosures showed that many candidates were less than straightforward in recording their assets. With regard to criminality per se, there has been much debate on whether a person should be labelled a "criminal" just on the basis of charges or when an appeal is pending and until final conviction. "Due process", as often subverted in practice, can continue for ever However, there now appears to be a growing consensus that even if an appeal is pending against an adverse verdict in the trial court, candidates should be persuaded or required not to contest until their name is finally cleared. Whether such moral sanction will work remains to be seen.
It would be more to the point and, in any event, absolutely essential that the credibility of the criminal justice system be restored. The chain extends from police reforms to the removal of the wide discretionary powers that reside with the political establishment and the bureaucracy to persecute some and either block or delay proceedings against others.
The so-called executive single directive that requires the prime minister/chief minister or a minister to sanction the prosecution of a minister/official has inhibited prosecutions. The lack of any automatic machinery to prosecute those against whom a prima facie case may have been made out by a commission of inquiry has also meant that such inquiries are of little more than archival interest. The investigative agencies, including the CBI, have been used quite brazenly for political purposes on more than one occasion. This has resulted in eroding the credibility of these agencies. The public has become cynical about any fixer or operator getting his just deserts. They are all escape artists and simply get away — even with murder. Colluding with them are elements in the law enforcement machinery. FIRs are not recorded, evidence not collected, investigations are pursued in a lackadaisical fashion, there is little expedition, and the prosecution, when that stage is reached, is not pressed with vigour.
There would appear to be a clear case for independent public prosecutors empowered to initiate criminal proceedings against any person, including ministers and civil servants, against whom a commission of inquiry or other investigatory body has made out a prima facie case. The idea that this could lead to misuse and abuse is far fetched. Anyone found guilty of manipulating the law in this fashion should also be liable to prosecution. Once the message goes abroad that none can act with impunity, howsoever high or well connected or moneyed, criminal elements will come to heel. Influential people should not be entitled to special treatment in prisons or lock-ups and the law (and punishment) must be equal for all. Nor is there any reason to treat such people as privileged. A lawbreaker is a lawbreaker and should not expect preferential treatment on grounds of birth, status or wealth.
The law’s delays are exploited by criminals to postpone the day of reckoning. Adjournments are too easily granted, with the result that proceedings drag over months and years and the cost of litigation itself becomes increasingly burdensome, if not prohibitive. There is a good case for putting matters on a fast track with a warning that should either party seek avoidable postponements, the trial will proceed ex parte.
Electoral reform is another imperative and is something that could help clean public life. The cost of elections has risen sharply but also exponentially, in Parkinsonian fashion, in keeping with the money available for spending! Constituencies are spread over large areas and the electorates are huge, in fact, country-size in the case of parliamentary seats. Reaching out to the voter is, therefore, not easy. Partial state funding has been advocated; though cynics believe that this will only add to the quantum of money candidates spend. The alternative is to limit the span of elections, something that has been partly achieved with the introduction of electronic voting machines. But this process has been vitiated by security considerations that have led increasingly to staggered polling, even within single states, let alone nationally, in order to be able to give the administration time to move around essential electoral and security personnel.
It would be desirable to review this practice through consultations and reduce the election process to a span of a few days, even if old-time single-day polling is no longer possible.
The other method would be to expand electronic canvassing and insist on a minimum number of election meetings when major contenders are brought on a single platform and can present their views before the people — or be grilled by the media.
This would be cost effective, both politically as well as in terms of outlays. It would be simple to make video recordings of these meetings and to replay them through some appropriate mechanism in different parts of the constituency. A far stricter accounting of electoral expenditure should also be required, with heavy penalties — not excluding disqualification — on defaulters and those found to have falsified their accounts. A reduction in election expenses will certainly reduce the dependence on slush funds and mafia support.
The permit-licence raj has been partially dismantled. But there is scope for further de-regulation. This will reduce the premium on buying the discretionary power of decision-makers in favour of undeserving applicants. The newly legislated Right to Information Act will also promote a greater degree of transparency and accountability.
A new phenomenon, absent 30 years ago, is terror. Real or imagined grievances and causes combined with the easy availability of small arms and other explosive material has engendered insurgency and terror. This too has spawned a certain kind of criminalisation of politics as witnessed in Punjab, the Northeast and Jammu & Kashmir. Fear buys compliance and silence. Insurgency and terrorism are, of course, far more complex phenomenon but do undoubtedly have a bearing on the criminalisation of politics.
Caste and communal factors and feudal mindsets are also instrumental in subverting democratic norms and restraints.
The sordid story of Dalit oppression and tribal exploitation bears the markings of a subtle criminalisation of politics. These too must be countered. Democracy is too precious a gift to be squandered or subverted by criminals. This is a battle that has to be collectively fought and won.
— The writer is a columnist and
Visiting Professor at the Centre for Policy Research, New Delhi.