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Published in the 1-15 July 2004 print edition of MG; send me the print edition

Need for National Consensus
The Problem of the Tainted
By Syed Shahabuddin

The inaugural session of the newly elected Lok Sabha has come to an end without debating the President's Address to the Joint Session of the Parliament and with adopting a formal motion of thanks. One may argue that this is a loss for the opposition and not for the government. No doubt, in the course of the debate on the President's Address, the opposition would have had the opportunity to point out what it saw as flaws and inadequacies, contradictions and impracticabilities in the work programme of the government as well as in its conceptual vision and in the framework of the Common Minimum Programme (CMP) of the United Progressive Alliance (UPA) which has been adopted by the INC-led coalition government. It has also lost the opportunity of raising questions of urgent public importance relating to day-to-day developments in the zero hour.

But parliamentary politics is not a zero sum game. So it should not be a matter of satisfaction for Prime Minister Manmohan Singh and his government or for the parties which share the responsibility of power. It is equally a loss for the government because it lost an opportunity to educate the people on the CMP, to explain its rationale, to remove the doubts spread by motivated critics but also those ventilated by well-meaning, even sympathetic, scholars and academicians about its funding and its priorities. Parliamentary discussion would have helped remove the lassitude and languor which follow a period of intense activity and pushed the government to drive faster in high gear before popular enthusiasm is replaced by mass cynicism. So this is a national loss.

This loss has occurred because the Bharatiya Janata Party (BJP), the leading opposition, stunned by the results, unable to raise any constructive question took up the question of the inclusion of 3 or 4 ministers with a criminal background in the Council of Ministers and made it a make or break issue. These Ministers came to be dubbed as 'Tainted Ministers', almost all from the Rashtriya Janata Dal (RJD), the second biggest partner of the UPA, and from Bihar. In fact, the BJP, with 19% of its MP's (26 out of 138) charged with criminal offences, has no moral right to raise its finger against the RJD, even though 10 out of its 25 i.e. 40% stand charged.

In a coalition each party has its 'quota' of ministers and has the right to nominate them in derogation of the normal prerogative of the PM to choose his ministers. In this case, the RJD chose its supremo Laloo Prasad Yadav, indeed he chose himself, alongwith Mohd. Taslimuddin (Kishanganj), Jay Prakash Yadav (Munger) and P.C. Gupta (Rajya Sabha). Mohd. Taslimuddin had been dropped in 1998 from the Deve Gowda Government after a brief spell in office; Laloo Prasad Yadav had voluntarily given up the Chief Ministership of Bihar when he was charge-sheeted in the Fodder Scam. In fact he is now out on bail which was granted eventually by the Supreme Court. J.P. Yadav had been dropped by the State Government on criminal charges. The BJP also mentions M.A. Fatimi but while he was named in an internal report of the Bihar Police of direct or indirect liaison with the ASI, no FIR was filed against him and, therefore, he was never charge-sheeted.

It is recalled that former Prime Minister Vajpayee also had tainted Ministers in his Government , most importantly, L.K. Advani, Murli Manohar Joshi and Uma Bharti. But the BJP and the entire Sangh Parivar makes a distinction between political agitation, on one hand, and rape, murder or dacoity or any other heinous offence. The IPC makes no such distinction. Also freedom of political activity does not cover freedom to demolish or destroy public or private property or to incite people to communal fury and violence. Moreover, Advani, despite his being an accused, chose to be the Home Minister. He influenced the CBI and blocked the course of justice. He became his own investigator and prosecutor and used every legal artifice to escape framing of charge, even after the court had found a prima facie case against him and had proceeded to frame charges. This brings out another aspect why a person under criminal trial should not form part of the power structure. Thus the BJP has no moral justification to demand exclusion of Laloo Prasad and his nominees. But the latter also have no justification to stay put.

Presumption of Innocence
In politics, a situation often arises when, with the change of political status, parties in confrontation with each other, reverse their position on a controversial public question and adopt the position of the adversary. During the Vajpayee regime, the Congress in consonance with its traditions had taken the position that if a Minister faces a criminal charge, he should step down. The BJP had always resisted this stand on the ground that an FIR means nothing but an allegation and unless the accused is found guilty by a Commission of Inquiry or by a court of law, he should be presumed to be innocent. Now the two parties which have exchanged sides in the Parliament have also exchanged their position on this question! Prime Minister Manmohan Singh, thus, repeated well-known principle of jurisprudence that a person is innocent until he is proved guilty.

One hopes that in the interregnum before the Budget Session begins on 5 July, 2004, the government and the opposition shall find a practical way out to allow the Parliament to function normally. It would indeed be a pity of the budget was also passed without discussion!

Long-term Implications
The issue of criminalization of politics has been on the agenda of the nation for years and with nearly 1/3 of the MP's having a criminal record it shall continue to be there. Indeed it has become too visible to be ignored, because criminalization of public life reduces it to commerce in influence and power, simply to make money. Political morality which has reached abysmal depths cannot find an answer. So only law can.

To explore the legal possibilities, it should be borne in mind that the root of the problem lies in the freedom of the criminals to contest elections and in the fact that the candidates with a criminal background have more money and muscle at their disposal than the average candidate of even national political parties and, therefore, a better chance of winning a contest against the ordinary mortals . So, the existing disqualification clause in the Representation of the People Act, must be drastically amended.

This proposal raises two questions: the first is that if every citizen has the right to vote in and contest an election, why should a citizen with a criminal background or record be denied. To this there is a simple answer. When one enters public life, he surrenders his privacy as an individual in order to deserve and command the support of the people; a candidate for public office should be like Ceaser's wife, above all suspicion, free of all blemish and transparently clean. Secondly, a discrimination against a person known to be a criminal is in public interest to safeguard the sanctity of the legislature, which is the fountainhead of power in our system. Thirdly, those are barred from contest shall continue to enjoy all other human, fundamental and legal rights. The Supreme Court has already put in place a system for voluntary disclosure of criminal record, if any by candidates. One is reasonably certain that by applying the same yardstick, the Supreme Court will not object to the curtailment of the right to contest.

But the law must also make the parties responsible to verify the criminal antecedents of an applicant before giving him the party ticket. The fact is that some parties knowingly give tickets to a mobster or a known criminal because he offers money and he has a better chance of getting elected and also because he is otherwise useful to the party, even outside the constituency which he is to contest.
The second aspect relates to the judicial process which is admittedly very slow and costly. So if the nation is to wait till an accused is found guilty and sentenced, the damage would have been done to the system. The legislator would have completed his term and even been re-elected several times! Even if was found guilty by the lowest court, the sentence has no finality except after the appeal is rejected by the highest court. It goes without saying that if the accused is found to be innocent, he can always resume political activity.
The problem is that today the credibility of the criminal justice system is very low in the eyes of the public. People think that if one has the money, he can get away with murder. The conviction rate is extremely low. Finally, many criminals escape the judicial net, even though in the public eye they are criminals. A suggestion has been made that special courts be set up to try cases against persons in public life. But this may be considered as discriminatory by legal purists. 

Existing Disclosure Regime
On 2 May, 2002, the Supreme Court introduced what has been called 'disclosure regime', requiring the candidate to file an affidavit on his past criminal record, if any, at the time of filing his nomination. The Vajpayee Government diluted it, first by an Ordinance and then by amending the Representation of the People Act, merely to supply of information on cases in which the charges have been framed and the trial is pending. This was obviously to save the guilty men of Ayodhya. On 13 March, 2003 the Supreme Court reiterated its stand requiring the candidate to file an affidavit covering both the past cases and pending cases going back to six months prior to the election. But in existing law, a false or incomplete affidavit is not a ground for rejection of nomination paper by the Returning Officer. Nor is there any direction to the Election Commission to publicize the contents of the affidavits. Of course a copy is to be supplied if someone asks for it. This is the law of the land. This is obviously inadequate. Even after the election, a legislator should be subject to prosecution, if he files a false or incomplete affidavit and if found to have done so, to forfeit his seat.

The Onlooker, New Delhi, culled out the relevant information from the affidavits of all the recently elected MP's and has published a list of 100 MP's. Some stand charged with serious offences like murder, attempt to murder, culpable homicide, cheating, criminal conspiracy, causing hurt with dangerous weapons, theft, dacoity, kidnapping and abduction, forgery, rape. However, we should take into consideration the propensity of the police to inflate offences by including as many sections of the IPC and other laws as possible, even minor and technical offences. This practice is widespread and well-known. But the NDA Government, in July 2002, sought to restrict heinous offences only to terrorism, waging war against the state, murder, dacoity and kidnapping, completing ignoring anti-social offences. This was also a self-serving move and, therefore, it was rightly rejected by the Supreme Court.

Electoral Reform
The ultimate solution is to introduce the proportional electoral system which basically means that the electorate votes for the parties rather the candidates and the parties are free to nominate legislators of their choice in proportion to the votes they receive. But even in the existing system, the parties are not obliged to nominate anyone as their candidates. But they do nominate some candidates with known criminal antecedents out of what they call 'political compulsions'. Perhaps so they would even under the PR System.

Quality of Democracy
The quality of democracy is at stake. The situation demands that parties should reach a consensus not only on resolving the current crisis but to find a permanent solution which would at least curb criminalization of politics and of government, if not eliminate it altogether. A reasonable consensus would have the following elements:

  1. The Representation of the People Act should be amended to exclude a person who is alleged to have committed a heinous offences and has been charge-sheeted. The NDA proposal of July 2002 of waiting for the commission of a second heinous offence was and is indeed ludicrous. Also the list of heinous offences should be expanded to cover social and economic offences. Presumption of innocence should not apply in the case of elections to public office once the police has submitted the charge sheet, the court has taken cognizance of the case, applied its mind on the charge-sheet, found a prima facie case and placed the accused on trial and ordered the charges to be framed. It would be in accordance with the Law Commission's 70th Report (1999) as well as the Report of the National Commission for the Review of the Functioning of the Constitution (2001) to exclude 'judicially charged' persons.
  2. There should be a bar on nomination by a registered party of persons with criminal background as candidates and if it does, it should forfeit its registration and recognition.
  3. The candidate should be held legally responsible for the completeness and accuracy of his affidavit which should be publicized in the constituency as well as all over the state, in the case of the State legislatures, and all over the country, in the case of the Union legislature.
  4. Administrative and judicial reform to ensure the independence of the police and the integrity of the judiciary and to accelerate the judicial process must also be seriously taken up.

But will the Parliament, stuffed on both sides with members with criminal background, even agree to cleanse the system? One hopes that at least the major political parties will sit together to draw the cut-off line and define the heinous offences. If they fail, our political system shall continue to suffer from the malady of criminalization, no matter which party or alliance is in power. 


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