Chanakya's New Manifesto: To Resolve the Crisis Within India (15 page)

2.24  The EC must be strengthened with a special cell of the income tax department to vet the declarations of assets of electoral candidates (which, when made, must be compulsorily released to the media because the voter has the right to know). If there is anything actionable about these returns, the matter should be disposed of by fast-track courts within a period of four months. Candidates must, therefore, make these declarations at least five months prior to elections. (The need to announce candidates at least six months prior to elections is separately discussed).

2.25  Secondly, the higher ceilings would include, as has been suggested by the EC and other official commissions, ‘all the expenses by the candidate as well as his political party or his friends and well-wishers and any other expenses incurred in any political activity on behalf of the candidate by an individual or corporate entity.’
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2.26  During the elections, the EC must step up its monitoring of poll expenditure by candidates, possibly through the much wider use of electronic surveillance equipment. The allocation of enhanced funds for this purpose serves an unquestionable national interest.

2.27  All candidates must file a statement of their election expenses immediately after the elections, and in any case not later than twenty days after the last day of polling. Any candidate who does not comply with this requirement should be disqualified for a period of five years, and Section 10(A) of the RP Act must be amended to allow for this. A false declaration, established by the EC and endorsed by a fast-track court, would disqualify the winning candidate and annul the election result. The ambit of deterrence must include those who wilfully breach the law by spending on behalf of a candidate. Currently, the penalty for such offenders is ridiculously weak, and entails a paltry fine of
500. The EC’s recommendation that this punishment should be enhanced to a minimum prison sentence of six months is spot on.

2.28  With these measures in place, the need for the state funding of elections is not necessary. The Indrajit Gupta Committee had recommended state funding in 1998. It was intended to help parties and candidates of modest means fight elections. However, even the Gupta Committee did not recommend full state funding, and only advocated the giving of certain facilities to recognized political parties. Moreover, it accepted that such a provision would put a huge financial burden on the exchequer. Most importantly, it recommended state funding only on condition that political parties did not raise funds from any other source.

2.29  State funding would only add an unnecessary burden to the state exchequer and not succeed in inhibiting parties and candidates from illegally deploying funds over and above what is provided by the State. Given the proclivity of Indians, and past experience, a far more practical way to go about sorting this problem would be to stringently implement the monitoring, surveillance and deterrence measures mentioned above.

2.30  On the question of criminalization of politics, strong corrective measures are necessary. People with a proven lack of integrity must not taint the democratic process.

2.31  The collusion of the political class with known criminal elements is too well known to be questioned. The Vohra Committee, which was set up by the government, says bluntly that ‘the nexus between the criminal gangs, police, bureaucracy and politicians has come out clearly in various parts of the country. . .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’.

2.32  The EC, Law Commission, Administrative Reforms Commission and other government committees have made several recommendations of which the following proposals make eminent sense.

2.33  All candidates to political office must make a complete disclosure of all cases of criminal conviction, as well as cases pending which are in the cognizance of any enforcement authority or a court of law. Rule 4(A) of the Conduct of Election Rules, 1961, already provides for this, but it weakens itself in terms of rigour of compliance by attempting to classify the kind of cases against the politician concerned. No further qualification is required of the mandatory requirement that all cases as described above must be disclosed.

2.34  The EC has itself acknowledged that many candidates provide this information perfunctorily, leaving columns blank, and generally providing ‘grossly undervalued information’.

2.35  This practice must change, but it will do so only if the punishment for concealment or providing false information is sufficiently harsh. If a candidate knows that only a fine—as in the case of the existing law—is the consequence of a false or incomplete statement, the deterrence is grossly inadequate. Therefore, the recommendation of the EC that Section 125(A) of the RP Act 1951, be amended to substitute the tepid penalty of a fine with punishment entailing a minimum period of two years rigorous imprisonment for any candidate concealing or providing false information, must be immediately implemented.

2.36  All political parties must mandatorily make public a list of all their prospective candidates who have been convicted of a criminal offence, or have criminal cases pending against them. The list should be announced sufficiently in advance of the election (the exact period could be fixed by the EC) so that voters are fully informed and can draw their own conclusions. Concealment or false information could lead to the party being derecognized. The voters are entitled to have all relevant information about candidates in the ballot and the choice that political parties make in the selection of candidates.

2.37  The information provided by candidates and parties must be thoroughly corroborated by the EC. Once this is done the plethora of existing rules must be simplified to implement the following framework of exclusion and restriction.

2.38  Any candidate convicted of a criminal offence, who has served time because of such conviction, irrespective of the length of the term of imprisonment, will be debarred from contesting elections.

2.39  Those accused of a criminal offence, in which a court has framed charges, will not be allowed to stand for elections until they are acquitted. The EC has recommended that only candidates who are accused of an offence punishable by imprisonment of five years or more should be disqualified but this does not make sense. Any criminal offence, which is punishable by law, and of which a court has taken cognizance by framing charges, constitutes sufficient indictment of the person seeking to represent the people of India.

2.40  Any person even suspected of having a criminal record, especially when a court has found the accusation sufficient to frame charges, is compromised in the eyes of the people, and cannot claim the right to lead or represent them.

2.41  Given the proclivity of some politicians to pursue power by any means, frivolous cases could be filed against competitors to exclude them from public life. To deal with this, the EC has recommended that only cases filed prior to six months before an election would lead to the disqualification of a candidate. If implemented this recommendation would only be partially effective because unscrupulous competitors could file a case a day before the six-month period begins and, banking on the dilatory pace of judicial proceedings, defeat the intent of the provision. The solution to motivated cases—and there is no foolproof solution—must be two-fold. First, accusations of criminal offence against candidates must compulsorily be referred to fast-track courts which would need to decide within a maximum period of sixty days—and if possible faster—whether there is a prima facie case against the accused. Secondly, if the complaint is deemed to be frivolous or motivated, the person who has made the accusation will be punished with a fine equivalent to the entire cost of the case and a period of imprisonment for six months.

2.42  If, in spite of these measures, a criminal case remains undecided against a prospective candidate, and charges have not been framed by a court of law by the time of the elections, s/he could stand for elections but will not be allowed to hold any political office, unless on a prima facie basis the fast-track court decides that no actionable case has been made against him or her. If the pending case leads to the court taking cognizance by framing charges, the person shall be disqualified and fresh elections will be ordered. The indicted candidate will be disqualified from standing for elections until his or her acquittal.

2.43  Such an unyielding and clear approach will prevent unfortunate situations such as the one where Raja Bhayya, a known criminal who had spent time in jail and had dozens of criminal cases pending against him for crimes including murder, not only qualified to fight elections, but also assumed office—ironically enough—as the minister of prisons in Uttar Pradesh.

2.44  Politicians take advantage of the tardy pace of judicial proceedings, where it is not uncommon for cases to drag on for years, to perpetuate the brazen nexus between criminality and politics. This must be short-circuited.

2.45  The judiciary must, through fast-track courts, whose delivery and impartiality is supervised by the higher judiciary, work to ensure that our political environment becomes free of criminal elements. The Supreme Court needs, in this context, to seriously review the practice of appeals to progressively higher forums of the judiciary and decide that in the larger interests of democratic integrity, the decisions by competent courts at lower levels would be final for the purposes of qualification of candidates for elections and holding political office.

2.46  During elections, candidates who resort to muscle power, or bribery through cash or supply of liquor, or other unethical practices described under the Code of Conduct, must be dealt with firmly, and the EC must be strengthened to do so. Electronic surveillance and intelligence gathering must be upgraded. Any candidate suspected of indulging in such activities, must be immediately issued a show cause notice following which s/he would be required to immediately suspend all campaigning until exonerated by the EC. If found guilty, the candidate would, under Sections 171(B) and 171(C) of the Indian Penal Code, be jailed for up to a year.

2.47  In the months leading up to the elections, district authorities must step up their surveillance of known goondas, and keep an eye out for illegal (and legal) arms supplies in constituencies. Local authorities will be held responsible if a known offender remains unchecked and vitiates the established code of conduct during elections. The use of public watchdog committees and NGOs to help monitor malpractice should be encouraged.

2.48  Even losing candidates should be liable for prosecution for corrupt practices during the elections as recommended by the EC.

2.49  These measures may appear to be harsh, but they are congruent with democratic tenets. Their need should be judged against the degree to which our democracy has been criminalized. It is essential to bear in mind that given the current brazen nature of the malaise, only effective deterrent action stemming from clear-cut laws will be efficacious. Amartya Sen has rightly argued that the cause of justice is advanced not by always looking for ‘perfectly just institutions’, but by taking the ‘actual behaviours of people’ into account. In this context, he distinguishes between niti and nyaya, although both stand for justice in classical Sanskrit. If niti stands for ‘organizational propriety’, in an exclusively rule book sense, nyaya stands for ‘a comprehensive concept of realized justice’ where institutions, rules and organizations have to be seen in the broader context of the world that actually is.
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There is a line in Tulsidas’s
Ramayana
which is relevant in this context:
Bin kadawi bheshaj piye mitai na tan ki taap
: without the intake of a bitter medicine the body will not be cured of fever.

2.50  One counter to discourage undesirable candidates is to give voters the Right to Reject a particular candidate. This means that instead of voting for someone, voters could cast a negative vote of confidence against a candidate they disapprove of. If such a negative vote is backed by a pre-decided number of voters, the impugned candidate would lose his or her eligibility to contest. However, this provision could be misused by competitors to orchestrate a campaign to disqualify a deserving rival. The size of our average constituency is so numerically and geographically large, and the candidates so many, that combining a negative vote with the current system may overload the system and confuse voters. Besides, the system of voting for one candidate already explicitly implies a rejection of the others. This suggestion may therefore be unnecessary.

2.51  The EC and the Law Commission have both recommended the creation of a negative or neutral voting option. This entails giving to voters the right to reject all the candidates on the ballot by selecting a ‘none of the above’ option. If a certain percentage of the vote is negative/neutral the election would be deemed to be nullified and a new election conducted. This too is a well-intentioned suggestion, but it is discriminatory. Why should an entire electoral slate be rejected if voters have a problem with one or two or even more candidates? In fact, the danger is that manipulative politicians may deliberately put undesirable candidates on the ballot, so that voters retaliate by voting ‘none of the above’, with the result that the good, with a possible chance of winning, will also be eliminated.