Last week, the Union government opposed a public interest litigation (PIL) in the Supreme Court asking for a lifetime ban on convicted lawmakers from contesting elections.
The PIL was filed by Delhi-based advocate and Bharatiya Janata Party (BJP) member Ashwani Kumar Upadhyay. It said that since convicted bureaucrats are banned for life, the same rule should apply to elected people's representatives. The Election Commission had also supported the move in 2017.
But the Union ministry of law and justice argued that legislators can’t be bound by the same “service conditions” as bureaucrats are, and that they are “bound by propriety, good conscience and interest of the nation”.
Out of the 539 candidates who won the Lok Sabha elections last year, 233 had criminal records, according to the Association for Democratic Reforms (ADR), an NGO that works in the area of electoral and political reforms. 116 of these members of Parliament (MPs) belong to the BJP and 29 to the Congress. Around 29% of the total MPs have serious charges against them, such as rape, murder, attempt to murder and crimes against women, as per the ADR analysis.
For those serving jail terms of two years or more, the Representation of the People Act (RPA) bans them from contesting elections for six years from the date of release. In 2018, the Supreme Court too had asked Parliament to enact a law to ensure that people with criminal cases do not enter politics. “The sooner the better, before it becomes fatal to democracy,” a bench led by Dipak Misra, the former chief justice of India, had said.
On Monday, Mint spoke to Milan Vaishnav, director and senior fellow at the US-based Carnegie Endowment for International Peace and author of When Crime Pays: Money and Muscle in Indian Politics, an acclaimed book that delves into the rise and endurance of criminals in Indian politics, on the Union government’s opposition to a life-ban on convicted MPs and India’s struggle to weed out criminal elements in politics.
Were you surprised at the Centre’s opposition to a life-ban on convicted lawmakers from contesting elections?
I wasn’t, actually. Part of it is self-interest, given the high share of legislators facing serious criminal cases that are part of the BJP and NDA (National Democratic Alliance). The second reason is, I think serving a lifetime ban is a pretty draconian step. There’s a feeling in a lot of democracies that such things are better left to the wisdom of the voters. Now, you could say that having law-makers who are also law-breakers is a stain on the rule of law. But at the same time, if you restrict the functioning of democracy to deal with that, you’re violating the rule of law in a different way. Even experts feel nervous about this proposal because of the possibility of excluding people wrongfully.
Are you then in favour of convicted criminals contesting elections?
If you’ve been convicted and sentenced to jail time, the disqualification is for six years. I think that’s adequate. If anything, you could think of disqualification for a longer time. But at the end of the day, you’re not addressing the core demand-side problem: why is it that the voters are motivated to select these lawmakers in the first place.
What are your thoughts on the Supreme Court PIL's argument on differing treatments for bureaucrats and politicians, both whom are essentially public servants?
The method of selection for each of them is different. Bureaucrats are unelected. There’s little way individual voters can hold them accountable. Elected politicians fall in a different category. In that sense, there’s a built-in check to democracy that bureaucrats don’t face... But there are reasons to treat bureaucrats and politicians similarly, too. We’ve had instances where lawmakers with private interest in defence companies sit on Parliamentary committees on defence issues, on telecom as well. I’d focus on how to reduce conflict of interest in politics. But disbarment for life for me is a bridge too far.
Are convicted lawmakers not barred for life in other democracies as well?
I can only answer for US, which I know best. There’s no bar for that here.
In your book, you’ve spoken of the role of Congress government in the rise of the criminal elements, especially during the Indira Gandhi era. Has the BJP fared any better?
It certainly hasn’t. The rise of criminal politicians took place under a system of Congress dominance. Where we are today, the BJP is just as guilty as the Congress or any other party. I’d argue that it is even more so. The prime minister has taken upon himself to set a very high standard in his public statements in decriminalising politics and bringing in a change of governance and mindset. By his own high standards, the party has failed miserably. It’s one thing to say these are people coming in from the Rashtriya Swayamsevak Sangh (RSS) cadre. Then why is it that the BJP has inducted known criminals from the Samajwadi Party (SP) or Bahujan Samaj Party (BSP) in their fold, even those who have had no connections to the Sangh parivar?
You’ve said in your book that one of the main reasons strongmen were allowed to enter politics was the financial muscle they brought in to contest elections. How much difference have electoral bonds made?
Electoral bonds have helped transform the way top parties are funded. There’s now a legitimate mechanism through which corporates and individuals can give undisclosed, unlimited amounts to a party. If anything, electoral bonds have given an even stronger hand to the people at the top. But, at the end of day, given the kinds of expensive campaigns people are running, there is still an over-reliance on self-financing candidates. The propagation of the party’s programme of the top leadership, of Prime Minister Modi through social media and public ads, those costs have also risen. My sense is that the premium on candidates who come from their own wealth remains unchanged.
Given how compromised our investigation and judicial institutions have been in the recent years, do you think conviction should be a metric of disqualification, as the PIL has proposed?
I do think there has to be some test of whether someone is to be disqualified or not. The question is, where you place the bar. If the charge is filed and case is pending, there’s a greater case to be made that those could be frivolous. These can also be appealed... But, in some sense, that’s the price you pay. If you’re a lawmaker, this gives you extra incentive to improve the function of law enforcement, something which has never been a top priority for any government.