Election Commission of India. I fEb ZO 3 NAME OF mE NEWS PAPER BUSINESS STANDARD .•.•. Taking criminals out of politics Fast-track courts and independent prosecutors can easily be legislated I says Baijayant Panda ", . I: C riminalisation of politics in India is today a sad reality. According to the Association for Democratic Reforms, 76 of the 543 members . elected to the Lok Sabha in 2009 had been charged with serious criminal offences such as murder, rape and dacoity. Under the present set-up, getting elected to the leg- islature becomes a convenient shield to delay and extend the legal processes and escape conviction. The Second Administrative Reforms Commission noted that the "opportunity to influence crime inves- tigations and to convert the policemen from being potential adversaries to allies.is the irresistible mag- net drawing criminals to politics". Surprisingly, the current law goes overboard in offering protection to those convicted of criminal offences. Section 8(4) of the Representation of the People Act, 1951, or ROPA, allows a member of Parliament, or a member of a state legislature, to retain his or her seat in the House even when convicted. ifhe or she files an appeal or an application for revision within three months from the date of conviction. This section defies the ideas of equality enshrined in Article 14 of the Indian Constitution (the right to equality before the law). While ROPA debars candi- dates convicted of serious offences from contesting elections for six years after their release from prison, Section 8 (4) of the same Act makes an exception for sitting legislators. This grants an unfair advantage by aliowing convicted legislators to contest elections, while denying the nght to those who are convicted but do not hold office. Under the present system, political patronage and a "culture of adjournment" collude to prevent speedy ... ,." • trials of elected representatives. Public prosecution is often ineffective and coloured by vested interests. All in all, the system is wired to push for a favourable outcome for the accused elected representative. Criminallsation of politics does more than just sub- vert ethics in governance; it hits at the root of public engagement with the system. Not only is this trend highly demoralising for the general public, it also reduces people's trust in the system and forces them into apathy and disillusionment Therefore, there is an urgent need to break the criminal-political nexus. This will go a long way towards restoring our people's confidence in the judiciary and in redeeming the commitment of the politi- cal class towards justice. I recently submitted three Private Members' Bills in the Lok Sabha These • . aim to attack the roots of the problem. My first Bill proposes to amend ROPA to remove the exception that allows MPs and MLAs/MLCs to continue in the legislature even after conviction. The second would set up fast-track courts for speedy trial (within 90 days) of criminal cases against all elected representatives. It would bring all . MPs, MLAs/MLCs and members of panchayats and municipalities established under the state panchayati raj legislation under the Bill's ambit. The third would amend the Code of Criminal Procedure to enable inde- pendent and effective prosecution. In a country that is infamous for its snail-paced judiciary and the gargantuanpendency of cases in the subordinate and higher courts, this simple tweak that fast-tracks criminal cases against elected representa- tives with a mandate that all relevant cases be adju-
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Election Commission of India.I fEb ZO 3NAME OF mE NEWS PAPER BUSINESS STANDARD
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Taking criminalsout of politicsFast-track courts and independent prosecutors can easily belegislated I says Baijayant Panda
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C riminalisation of politics in India is today a sadreality. According to the Association forDemocratic Reforms, 76 of the 543 members
. elected to the Lok Sabha in 2009 had been chargedwith serious criminal offences such as murder, rapeand dacoity.
Under the present set-up, getting elected to the leg-islature becomes a convenient shield to delay andextend the legal processes and escape conviction.The Second Administrative Reforms Commissionnoted that the "opportunity to influence crime inves-tigations and to convert the policemen from beingpotential adversaries to allies.is the irresistible mag-net drawing criminals to politics".
Surprisingly, the current law goes overboard inoffering protection to those convicted of criminaloffences. Section 8(4) of the Representation of thePeople Act, 1951, or ROPA, allows a member ofParliament, or a member of a state legislature, to retainhis or her seat in the House even when convicted. ifheor she files an appeal or an application for revisionwithin three months from the date of conviction.
This section defies the ideas of equality enshrinedin Article 14 of the Indian Constitution (the right toequality before the law). While ROPA debars candi-dates convicted of serious offences from contestingelections for six years after their release from prison,Section 8 (4) of the same Act makes an exception forsitting legislators. This grants an unfair advantageby aliowing convicted legislators to contest elections,while denying the nght to those who are convicted butdo not hold office.
Under the present system, political patronage anda "culture of adjournment" collude to prevent speedy
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trials of elected representatives. Public prosecution isoften ineffective and coloured by vested interests.All in all, the system is wired to push for a favourableoutcome for the accused elected representative.
Criminallsation of politics does more than just sub-vert ethics in governance; it hits at the root of publicengagement with the system. Not only is this trendhighly demoralising for the general public, it alsoreduces people's trust in the system and forces theminto apathy and disillusionment Therefore, there is anurgent need to break the criminal-political nexus. Thiswill go a long way towards restoring ourpeople's confidence in the judiciary and inredeeming the commitment of the politi-cal class towards justice.
I recently submitted three PrivateMembers' Bills in the Lok Sabha These • .aim to attack the roots of the problem. Myfirst Bill proposes to amend ROPA toremove the exception that allows MPs andMLAs/MLCs to continue in the legislature even afterconviction. The second would set up fast-track courtsfor speedy trial (within 90 days) of criminal casesagainst all elected representatives. It would bring all .MPs, MLAs/MLCs and members of panchayats andmunicipalities established under the state panchayatiraj legislation under the Bill's ambit. The third wouldamend the Code of Criminal Procedure to enable inde-pendent and effective prosecution.
In a country that is infamous for its snail-pacedjudiciary and the gargantuanpendency of cases in thesubordinate and higher courts, this simple tweak thatfast-tracks criminal cases against elected representa-tives with a mandate that all relevant cases be adju-
Election Commission of India ..NAME OF 1HE NEWS PAPER' BUSINESS STANDAIID DATE, 7 FEB 2013
Political patronageand a 'cillture ofadjournment'collude to preventspeedy trials ofelectedrepresentatives
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dicated within 90 days will go a long way towardsresolving the problem. Unlike some other proposalsthat bar candidates from contesting elections ifcharged with criminal cases, this solution will notvitiate the presumption of innocence, and should beseen as a "privilege" given to elected representatives,an opportunity to quickly clear their names of mali-cious or frivolous allegations.
To ensure that these fast-track courts do not sufferfrom the same impediments as regular courts, my Billprovides that the number of judges to be appointed toeach court must be decided on the basis of an objectivecriterion that takes into account caseload, pendencyand, most importantly, the percentage of cases thatremain unresolved after the stipulated deadline of90days. This provision will act as a check on the power ofthe executive to undermine the object of the Bill bychanging the judicial strength of these courts.
Furthermore, to ensure that proceedings don'tsuffer owing to ineffective or biased prosecution, mythird Bill proposes to increase accountability andtransparency in the appointment of prosecutors so asto shield them from political interference. Thoughthe Code of Criminal Procedure, as it exists, calls for"consultation" with the judiciary for all appoint-ments to the post of public prosecutor, the require-ment has been diluted through amendments inmany states. Special public prosecutors are oftenappointed at the whims and fancies of the govern-ment and without adequate reasoning. This is doneto suit special interests.
While commenting on the independence of pub-lic prosecutors in India, the Law Commission held inits 197th report that any legislation that permits arbi-trary appointment of public prosecutors, withoutproper checks, would violate Article 14 of theConstitution (the right to equality before the law) .
. Therefore, to ensure free and fair trials in courts, it isvital that the existing provisions of the Code ofCriminal Procedure be amended.
My Bill mandates the establishment of a separateDirectorate of Prosecution in each state with admin-istrative control over all prosecutors in the state andanswerable to the home department. It prescribes"concurrence" with the judiciary for the appointmentof prosecutors at all levels. It also sets down an objec-tive criterion to gauge the requirement of prosecutors.The Bill will also require a detailed and written expla-nation from the government about the reasons foreach appointment to ensure transparency in theappointment of special public prosecutors.
I believe that even though reformingthe entire judicial and political system mayrequire significant investment and politicalwill in the long term, lasting changes can beaffected if we attack the roots of the prob-
, • lem in the short term. The PrivateMembers' Bills that I have submitted are astep in that direction. Although I recognisethat Private Members' Bills haven't been
passed by our Parliament in decades, they do serve asa useful tool to pressure the government.
The perverse trend of criminalisation of politicsand the inability of the criminal justice system toconduct timely and effective prosecution of offendersare the initiating causes in the causal chain ofunfavourable outcomes. Therefore, any attack on theproblems that plague our political system must beginwith such legislation. The hope is that if enough pub-lic support can be drummed up, the governmentwould be compelled to pass legislation to that effect.
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The writer represents Kendrapara, Odisha, in the LokSabha. On Twitter, he is@Pandajay
Election Commission of India"NAME OF THE NEWSPAPER THEINDIANEXPRE~SS~ __ D_A_T_E:~.l__7~F~EB~"·~20~13~
rofoundlyThe language of electoral olitics has changedin the past two decades. But parties andpolitical analysts are using the 1980s syllabus to
understand contemporary politics.~ ablished fake
olitical facts··caste, and region. The leaders of theprotest are often lower level politi-cal actors and party leaders bendthemselves too far in entertainingthese voices, and find silence a virtue."\ Why is the political leadershipsilent in the face oflower levelpolitical-actors initiating such protests? Theobvious explanation is that politicalparties find no purchase in taking astand for fear that if they speak, theywill.lose political support from the
IN DEMOCRACIES, freedom of constituencies these groups aim toprotect. The reasons for this are well
speech isnot only the right to protest, known. Political parties (along withbut also the ability to listen, debate political analysts) assume that elec-and reconcile. The argumentative In- toral contests in India are no moredian, however, only wants to be than a competition between socialheard. It often takes only a few indi- • "identities based on caste, religion andviduals to hold the state and its consti- '.
region. This assumption is so deep-tutional guarantees to ransom. In rooted that parties announce theirsome cases, the "protesters" not only candidate nomination list based onlimit a citizen's fundamental rights caste and religion.More, a candidate'sbut worse, threaten physical harm to. electoral strategy is often limited tothe person or property. The premise some caste combination, u uallycom-behind these protests is that an idea prising of his own caste plus the socialthat is expressed may hurt the senti- groups aligned with the party.ments of their "community". MUGh Politicians and analysts overplayof this "hurt sentiment" activitytakes.
the effect of caste, religion and re-lace on issues related to religion, gional arithmetic to explain electoral
/ / outcomes. Politicians are in the busi-ness ofwinning elections, whichbring •withit the spoilsofoffice.Ifa party's re-
PRADEEP CHHIBBER ANDRAHULVERMA
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liance on this caste arithmetic weresufficient to win an election, candi-
, dates and parties would not lose.Afterall, politicians and parties would, allelseconsidered, stitch together awin-ning"socialarithmetic" that favouredthem, nurtured the groups that sup-port them, and then continuouslywinelections.This iswhat happens inpartsof theworldwhere candidatesandpar-ties rely on established ties with par-ticular socialgroups.
Elections in India, however, arech;;'acterised byhighelectoralvolatil-ity. The index of volatility, the netchange in the vote-share of a partyfrom one election to the next,for Indiaismuch higherthan most countries inWestern Europe for which we haveconsistent long-term data. The aver-age electoral volatility score in Indiais 26 per cent, whereas in WesternEurope it is around 14 per cent. There-election rate of candidates in Indiaisalsolow.Estimates rangefrom abouta quarter to just under a half (incum-bent candidates in state assembly
-. , elections have lower chances of re-election in comparison to parliamen-tary elections).
In the US, Canada and Britain,candidates and parties have estab-lishedlinksto socialgroupsthat persistovertime. With sucha solidandknownsupport base, electoralvolatilityislow,as are incumbency rates. In the US,the re-election rate isover90per cent.
The only explanation for whyIn-dian politicians lose so often is thattheir calculations of the caste arith-metic are wrong. Why would politi-cians lose elections if their victory istied to a particular caste or religiousarithmetic in a constituency, and theyand the analysts were sure of thatarithmetic before the election? De-spite this, it isrepeatedly asserted thatan appropriate caste and religionarithmetic are all that isneeded towinan election. This faulty assumption isrepeatedly asserted asknowledgeandisbynow accepted asfact.
There are two reasons for whythese fake factshavebecome receivedwisdom. The first is that there is norespect for serious empirical socialscience research in large swathes ofIndian academia or in the politicalclass. We have spoken with aspiringpoliticalconsultants whowouldliketouse real voter preferences based ondetailed surveys to devise strategies.
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Eiectiofl Commissioll of IndiaTHE INDIAN EXPRESS DATE. 7 FEB ZO~
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When they approach politicians, theyare often told that the politician has agood idea of who voted for them. Thepolitician then turns to an "aide" whopresents data that has not been gath-ered systematically but is often a re-flection from other similarly placedindividuals: Contrast this with theObama campaign in 2012. Sasha Is-senberg, analysing the work done by
. Obama's campaign team, writes that"pundits talked in the abstract aboutreassembling Obama's 2008 coalition.But within the campaign, the goal wasliteral. Obama's campaign began theelection year confident it knew thename of every one of the 69,456,897Americans whose votes had put himin the White House. They may havecast those votes by secret ballot, but
MANYPOLITICIANSrely on aset of middlemen toapproach their constituents.It is not in the interest ofthese middlemen to letpoliticians have direct accessto vo ers and voters'
. opinion. Asa result, Indianpolitics still relies on thepolitics of stitching togethercoalitions based on caste,religion and region withoutany evidential basis of thevalue of such arithmetic.
CRSASIKUMAR
Obama's analysts could look at the De-mocrats' vote totals in each precinctand identify the people most likely tohave backed him." When was the lasttime any political party in India col-lected data systematically using the lat-est behavioural science methods?
Politicians do not question theseestablished fake facts because of whothey are surrounded by. Many politi-cians, instead of reaching voters di-rectly, rely on a set of middlemen orbrokers to approach their constituents.These concentric circles of middle menare the source oflocal knowledge for apolitician and party. It is not in the in-terest of these middlemen to let politi-cians and parties have direct access tovoters and voters' opinion as that di-rect knowledge will undermine theirposition. As a result, Indian politicsstill relies on the politics of stitchingtogether coalitions based on caste, re-ligion and region without any evidentialbasis of the value of such arithmetic.
This has allowed the small voices oflocal level political fixers and political.leaders to become very loud. Politicalparties rarely take a stand on issues reolated to caste and religion for fear ofthis unknown yet false arithmetic. Theorganisers of these protest groups areaware of this fear and exploit it. Why?This noise offers small-time politicalactors an easy route to be noticed byleaders. Most political parties here donot have clearly laid out rules for up-ward mobility in their party organisa-tion. Shakti pradarshan (show of
strength) by making noise on issues ofcaste, religion, and region is thus themost effective option. This isabetted bythe politicians' very real fear that, giventhe intense nature of electoral co-mpetition in India, even a few votescould have a decisive effect on electionresults. The frequency of such protestsand the silence of political leaders ere-ates a vicious circle - as protests oncaste, religion and region are enter-tained, the protests become louder andincrease in number. They also help cre-ate the illusion that all politics in India isabout caste, religion, and region.
Political parties remain silent oncaste and religion, not because issuesrelated to them determine final out-
. comes during election, but becausethese factors are assumed to be trumpcards. The organisers of these protestsbelieve they know what is in the bestinterest of "their community". Partiesthink that by maintaining silence onsuch issues they are keeping their vote-bank intact. Political commentatorstoo conceive elections here as equa-tions of caste, religion, and region.
Meanwhile, what is happening tocaste, religion, and region? AmitAhuja and Susan Ostermann find thatmore people are ready to cross theDalit and upper caste boundaries inpicking a potential marriage partner.Their findings suggest that endogamy,or the practice of marrying within jatis,is on the decline. Similarly, in politics,rhetoric around these issues no longersway the Indian electorate. In a recentpaper, Rahul Verma shows that citi-zens in India base their vote focusing onthe performance of elected repres-entatives at multiple levels. The lan-guage of electoral politics has changedprofoundly in the past two decades;however, parties and political analystsseem to be caught in a time warp andare using the 1980s syllabus to under-stand contemporary politics. It is nosurprise there is a growing disconnectbetween real issues on the ground andthose that get framed during elections.It is likely that the general elections in2014 willfavour those who manage toupdate their syllabus of contemporaryIndia. But, given the wide acceptanceof facts without evidence, we are notholding our breath.
The writers are at the TraversDepartment of Political Science
UniversityofCalifomia, Berkel ,
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