The Citizens’ Commission on Elections (CCE) released its second report titled “Are Elections in India Free and Fair?” on March 15, 2021. As concerns were raised over fairness of elections in India post 2019 parliamentary elections, the CCE came into being for examining the critical aspects of conduct of elections in India. The first report of the Commission was released in January 2021 and addressed the issue of merits of Electronic Voting Machines (EVMs) and Voter Verifiable Paper Audit Trail (VVPAT) in the light of requirement of verifiability and transparency.
The following is an extract from the chapter “Criminalisation, Money Power and Elections in India” of the second report. This report deals with various themes relating to the fairness of elections such as Integrity and inclusiveness of the Electoral Rolls; Criminalisation, money power and Electoral bonds; Scheduling and processes of elections and compliance of Model Code of Conduct; Role of media including social media, fake news, etc. and the Autonomy of ECI and its functioning before, during and after Elections.
Criminalisation of Electoral Politics
Criminalisation of politics is one of prominent infirmities of the Indian election system. In his book titled, When Crime Pays: Money and Muscle in Indian Politics, Milan Vaishnav notes that the Indian political scenario drastically changed when offenders, who earlier provided backdoor support to politicians, started entering the electoral fray in a process he terms ‘vertical integration’.
Enormity of the Malaise :
The extent of criminalisation of electoral politics in India is illustrated by the number of legislators with criminal cases pending against them.
Based on data collected for the period 2014 to 2017, the central government informed the Supreme Court in 2018 that 3,045 criminal cases involving 1,765 MPs and MLAs were pending in various states across the country.
An analysis by the Association for Democratic Reforms (ADR), of the profile of candidates who have contested and won elections since 2009, shows that those with criminal cases pending against them constituted 15 per cent of the total candidates in 2009. This increased to 17% in 2014 and to 19% in 2019. During the same period, candidates with serious criminal cases increased from 8% of the total candidates in 2009 to 11% in 2014 and to 13% in 2019.
The proportion of candidates with criminal background who won elections presents an even grimmer picture. While 30% of the winning candidates in 2009 were those who had declared criminal cases against them, such candidates accounted for 34% of the winning candidates in 2014 and 43% in 2019. Of these, MPs with serious criminal cases against them constituted 14% in 2009, 21% in 2014 and 29% in 2019. The proportion of candidates with criminal background among the winning candidates presents a grimmer picture. While 30 per cent of the winning candidates in 2009 were those who had declared criminal cases against them, such candidates accounted for 34 per cent of the winning candidates in 2014 and 43 per cent in 2019. Of these, MPs with serious criminal cases against them constituted 14 per cent in 2009, 21 per cent in 2014 and 29 per cent in 2019.
In 2019, 30 MPs had cases of attempt to murder against them and 19 had cases of crime against women. MPs with criminal records also make it to the Union Council of Ministers. The ADR report noted that in 2019, 22 MPs facing criminal charges, including 16 with serious cases, were inducted in the Council of Ministers.
The proclivity of voters to choose candidates with criminal backgrounds is often attributed to the lack of information about candidates. In India, however, providing information to voters about the criminal background of candidates does not seem to have resulted in reducing the number of candidates with criminal past in the fray or reducing the number of such candidates getting elected. In a landmark judgment in 2002, the Supreme Court of India made it mandatory for candidates contesting elections to Parliament and State Assemblies to file self-sworn affidavits declaring full information regarding their criminal, financial and educational background. The publishing of affidavits have helped voters know the background of the candidates they are going to vote for.
Several studies show that such candidates are elected because it is perceived that they can offer more protection than the state apparatus. Often even well-informed voters opt for a candidate with a criminal background and provide rational reasons for doing so. This voting behavior needs to perhaps be seen in the context of the economic, social and political changes that have taken place in recent times. Voting for people with criminal antecedents could be an indication of citizens looking for alternate options in strongmen with a criminal reputation.
Do Voters Have a Choice?
‘Although the response to the question “Where does the government come from?” is almost unfailingly, “We elect the government.”, the fact remains that people vote for a candidate out of a slate of candidates chosen by a set of political parties. Very often voters do not have an option of selecting a candidate with a clean background, since political parties give ticket to people with criminal background based on their winnability and ability to spend. The choice of a voter is pre-constrained by the choices made by political parties.
“Red Alert”, a study conducted by ADR, defines a constituency as a ‘Red Alert constituency’ if it has three or more candidates who have declared pending criminal cases against themselves in their self-sworn affidavits. Data for the last several elections shows that on average at least half the constituencies in every election qualify as Red Alert constituencies. More often than not, the three candidates with chances of getting elected are representatives of the major political parties that are strong in the constituency. This effectively leaves voters with no real choice but to vote for a candidate with criminal antecedents. As pointed out by Prof. Lawrence Lessig of Harvard Law School, peoples’ choice of representatives is hijacked by those, like political parties and their anonymous donors, who choose and restrict the candidates they can vote for.
Section 8 of the Representation of People’s Act, 1951, bans convicted politicians. But those facing trial, no matter how serious the charges, are free to contest elections. The fielding of candidates is a function of their “winnability”, and far from denying ticket to criminals, all parties seem to compete in the number of criminals they field. Political parties have been united in their opposition to any law which debars those accused of being perpetrators of heinous offences during the pendency of cases from contesting elections. One way to get around this issue is to speed up the judicial process in the country so that convictions can happen which would in turn prevent candidates with criminal background from contesting. But getting there needs significant institutional reforms.
Several studies show that these candidates are elected because they can offer more protection that what the state apparatus can do. Scholars have pointed out that even well-informed voters opt for a candidate with criminal reputation and provide rational reasons for doing so. This voting behavior needs to be seen in the context of the democratic, social and political changes that have taken place in India in recent times. Scholars like Milan Vaishnav indicate that Indian state has not been able to keep pace with growing aspirations of citizens brought about by the changes in political economy in the country. He indicates that this could be a case of citizens looking for alternate options in strongmen with criminal reputation.
Tackling Criminalisation of Electoral Politics
The issue of ushering in electoral reforms – including barring candidates with criminal antecedents from contesting in elections – was referred to the Law Commission of India in 2013. The commission headed by Justice A P Shah observed that disqualification upon conviction in a criminal case has “proved to be incapable of curbing the growing criminalisation of politics”. Although the committee did not recommend electoral disqualification at the stage of police filing a report under Section 173 of the Code of Criminal Procedure, it did recommend disqualification to be triggered at the stage of framing of charges by a court. Owing to the potential misuse of this provision, the commission also recommended several safeguards:
- Disqualification only for offences which have a maximum punishment of five years or above.
- Charges filed up to one year before the date of scrutiny of nominations for an election to not lead to disqualification.
- The disqualification should operate till an acquittal by the trial court, or for a period of six years, whichever is earlier.
- For charges framed against sitting MPs/ MLAs, the trials to be expedited so that they are conducted on a day-to-day basis and concluded within a one-year period. If trial isn’t concluded within one year then either the MP/ MLA to be disqualified at the expiry of the one-year period or the MP/ MLA’s right to vote in the House as a member, remuneration and other perquisites attaching to their office be suspended at the expiry of the one-year period.
Read the full report here.
