In September 2018, a five-judge Constitution bench that included the Chief Justice of India, pronounced an important verdict on criminals in politics. The Supreme Court was hearing a batch of petitions seeking disqualification of candidates who had pending criminal cases. One of these petitions was a PIL filed by the Public Interest Foundation of India (PIF) in 2011. The director of the PIF had written these words even before the results of the 2014 elections were announced. “The next government will face the challenge of curbing corruption... It must be remembered that the government will be on probation as its performance would be critically tracked by a very vibrant civil society and media.”
That Director was later handpicked to become the principal secretary to the new Prime Minister, Narendra Modi, in 2014. The PIF petition had asked for the removal of criminals from the ballot. This was the petition that was disposed of by the Supreme Court in 2018. But its verdict unfortunately stopped short of disqualifying criminally tainted candidates.
The Central government, which was a defendant in the suit, firmly opposed the petition, saying that legislating a new disqualification was not in the domain of the court. It was for Parliament to pass such a law. Besides, the Centre used the old argument, that a person is innocent until proven guilty and cannot be deprived of the right to vote, or the right to contest elections merely based on criminal charges. The court expressed helplessness, and not for the first time. But the court did ask political parties and candidates to widely publicise their criminal records, “at least three times in newspapers and TV channels” after filing nomination papers.
Two years later, the Supreme Court was again hearing a contempt petition, that its 2018 order was being completely ignored by political parties. This time, even the Election Commission joined the PIL and asked the court to make political parties strictly liable for the disclosure of criminal cases of their candidates. The EC is, of course, itself toothless in disqualifying tainted candidates.
This time too, the apex court passed a harsh order, asking parties and candidates to widely publicise criminal histories in local, as well as national newspapers and on social media, including Twitter and Facebook. The published material needs to list details of the offence, charges framed, etc. And most importantly, the political party has to explain why the candidate was chosen despite the criminal taint. Merely saying that the candidate is winnable is not enough. And all this has to be done within 48 hours after the last date for withdrawal of nominations.
The Bihar assembly election is the first time this 2020 order of the Supreme Court is being tested. In the first phase, where 71 of 243 MLAs will be selected, 1,066 are in the fray. Of these, 31 have criminal cases. If you look at the data party-wise, 73 per cent of the candidates from the RJD, 72 per cent from the BJP, 59 per cent from the the LJP, 57 per cent from the Congress, 43 per cent from the JDU and 31 per cent from the BSP have criminal cases, among the major parties. It looks like the percentages of tainted candidates keeps going up in every successive election, just like the cut-off marks for admissions to Delhi University colleges.
Prima facie, the observance of the Supreme Court order is more in the breach. The EC has specified a format (Form 7) for declaring a candidate's criminal record: the form must list details why the party chose a criminal candidate. Most parties and candidates have written that chances of winning are higher. On this, the parties might actually be totally truthful. But this shows the impunity with which the Supreme Court and the
EC’s orders are being flouted. There does not seem to be even an iota of effort to give tickets to candidates with a “clean” resume.
Can voters punish the tainted candidates? Unfortunately, this is not so easy. In the first phase of Bihar polls, 61 of 71 constituencies are “red alert” ones, meaning each of these has at least three or more candidates who have criminal records. So, the choice for voters is criminal versus criminal. It has been seen by researchers that criminally tainted candidates win, despite their image, perhaps partly because of their ability to raise resources to fund their own elections. No wonder the parties are quoting “winnability” as the reason in Form 7, to justify their choice of candidate. In this current first phase, more than one-third of all candidates are millionaires. Among the major parties, nearly 80 per cent are crorepatis. Since moneyed “bahubalis” have a higher chance of winning, the ratio of tainted legislators is almost double that among the candidates.
This trend of criminality among lawmakers is relentlessly going up. The share of members of Parliament who have criminal cases against them, has gone up from 24 per cent in 2004, to 30 per cent in 2009, 34 per cent in 2014 and is now at a whopping 43 per cent, as of 2019. These cases are not only about offences like loitering, breaking a curfew or defamation, but even serious cases like rape, murder, theft, kidnapping, assault and extortion. If you consider only serious criminal charges such as these, then 29 per cent of the current members of Parliament carry them, and this proportion is the highest in the past 16 years. Among the elected representatives, the proportion of crorepatis has gone up from 30 per cent in 2004 to 88 per cent in 2019.
The Supreme Court, through its 2020 order, thought that perhaps by shaming the parties, it could put some restraint on the rising trend of criminality among candidates. But this is clearly not visible so far in the Bihar assembly elections. And going by the trend of the past 16 years, it is unlikely to change. The only hope, apart from fast-tracking cases, is to disqualify tainted candidates from contesting. This can be done by amending the Representation of the People Act, 1951. Those who are tainted and desirous of being in public service can surely clear their name in a court of law, before contesting elections. Will the lawmakers take up this challenge to cleanse the political system?
The writer is an economist and Senior Fellow, Takshashila Institution
The Billion Press