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Last Updated : Mar 25, 2020 04:54 PM IST | Source: Moneycontrol.com

Legal Matters | Democracy in the dock

Our plight is that we have made a mockery of our democracy that such a large number of candidates with criminal backgrounds can compete for our votes effectively.

Moneycontrol Contributor @moneycontrolcom

Abraham C Mathews

India’s election trends have long showed an unmasked preference for goons. Forty-three percent (up from 24 percent in 2004) of the members of the current Lok Sabha had criminal cases pending against them, according to data compiled by the Association for Democratic Reforms. Twenty-nine percent of parliamentarians faced serious criminal charges, such as murder and rape. As The Economist put it a few years ago, “One can just about walk the whole way from Mumbai to Kolkata without stepping foot outside a constituency whose MP isn’t facing a charge”.

It wasn’t just that criminals were entering politics. They were also more likely to win, showed data compiled by Milan Vaishnav, a senior associate at the Carnegie Endowment for International Peace in Washington, for his 2017 book When Crime Pays. The average criminal accused of a heinous crime had an 18 percent likelihood of winning, while the untainted was successful just 6 percent of the time. Moreover, these shares have been rapidly increasing with every successive election.

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In 2018, in response to a writ petition, the Supreme Court refused to disqualify chargesheeted or accused candidates from standing for office, or even impose a narrower restriction on political parties from fielding such candidates (convicted felons, like Lalu Prasad, for instance, are already barred for a period). The court merely directed parties to make public details of criminal cases pending against their candidates. The decision was correct, legally. After all, the definition of ‘disqualified’ in the Representation of People Act, 1951, makes it abundantly clear that only the restrictions in the Act can act as a disability ‘and (on) no other ground’. For the court to then legislate a fresh disqualification would be an unwelcome enlargement of its own powers.

However, even the mere direction to publish details was not heeded, leading to the Supreme Court now threatening contempt proceedings. It has even gone a step further and asked parties to explain why they selected tainted candidates, as well as why other individuals without such criminal antecedents could not be selected.

Many have found faults with the latest directions. Legally speaking, the critics are right. The Supreme Court is encroaching on the legislature’s territory, but, all the same, that misses a fundamental aspect. Criminalisation of politics is so pervasive in our democracy, and if one doesn’t begin to address it, it will only continue to fester. The 2018 judgment expressed the confidence that Parliament would ‘take it upon itself to cure the malignancy’. However, Parliament is run by the very same people we wish it to be purged of. Their perverse incentives for keeping the status quo would make it unreasonable for us to even expect change through the legislature.

Vaishnav, in his book, traces four reasons why political parties gravitate towards criminals. First, he says candidates with criminal records may be involved in illegal activity which provides them with ample liquid resources. Second, candidates with criminal reputations also tend to carry their own vote-banks, by virtue of being ‘native-sons’. This also helps them accumulate resources through local networks that leverage their power. Third, this local-network provides them with a volunteer base that is essential to a short and intense campaign. Finally, it is plausible to assume that such a person would be willing to cut corners with the law, allowing them to raise significant funds through illicit means.

What follows is that for political parties, such candidates offer economic rents (apart from a higher probability of electoral success), in the form of being self-sufficient, financially and electorally, and often being able to carry neighbouring constituencies in their wake.

What about the voter? Rather than shun criminals, voters have responded by extracting their price upfront — through election-time freebies, which are no longer viewed as bribery. Since almost every serious candidate hands out doles, voters see it as an entitlement, and for the candidate, it becomes essential for simply staying in the game. Former Election Commissioner Navin Chawla, in an article, once wrote, “it is no longer a one-way process. Voters have become accustomed to demanding their price”.

Therein lies the rub. The malice is, perhaps, not just that some criminals end up in Parliament. Our plight is that we have made a mockery of our democracy that such a large number of criminals can compete for our votes effectively.

Abraham C Mathews is a Delhi-based advocate. Twitter: @ebbruz. Views are personal.

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First Published on Mar 25, 2020 04:54 pm
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