Markets and elections are good examples of multitudes of free individuals interacting amongst themselves in order to bring out the best solutions.

Their motives might be wrong; but their instincts are sound and conclusions are right. Political parties across the ideological spectrum of all hues and colours have decided to counter the Supreme Court judgment on the revision in the election procedure with new legislation in the forthcoming monsoon session of Parliament.

The Supreme Court judgment of May 2, 2002 mandated that candidates disclose their criminal antecedents, if any, as also their financial and educational background. The Election Commission had proposed amendment of statutory rules and the format of nomination papers,to give effect to this judgment of the Supreme Court.

An all-party meeting was called originally to discuss the Election Commission’s proposals. The meeting was actually held a whole week after the expiry of the deadline set by the Supreme Court. Consequently, the agenda of the meeting shifted to an order issued by the Election Commission, on 28th June, prescribing fresh affidavits to be filed by candidates and, what is even more radical, empowering Returning Officers to reject the nominations of those candidates who do not make the required disclosures or give false or incomplete information. The reaction of the political parties was unanimous and vehement.

‘Confessional’ Nominations

The BJP spokesman Mr. V. K. Malhotra opened the salvo and the other parties joined in. All of them had serious apprehensions both about the practicalities as also the consequences of the Supreme Court directive. Most of their candidates would have had practical difficulties even in putting together the nomination form in the new format. If they do manage to do that, they would not have been proud of the outcome. Morever this kind of a ‘confessional’ nomination would be rejected if it were not wholly true. If it were anywhere close to reality it would provide a soft target for the opposing candidates and, irrespective of the outcome of the polls, the affidavits could be used against them as clues or evidence for further criminal and civil investigations and/or proceedings. The information contained in the nomination papers about the spouse or an acquaintance could also help inculpate persons who are not even distantly involved in the polls. Nomination papers could well become fecund archives for Big Brother and a major instrument for the Police State.

Under the the US Constitution’s Fifth Amendment, a citizen cannot be forced to give testimony against himself. Of course, candidates submitting nominations for elections are not ordinary citizens and cannot claim the privileges of an ordinary citizen. ‘Special privileges; special obligations’, goes the dictum. The Catholic Church has institutionalized confessions; but there is a strict assurance that its contents will not be divulged under any circumstances. The system of confessions proposed by the Election Commission provides neither for secrecy nor for reprieve.

It is understandable that our political parties have strong reservations about the procedure proposed by the Supreme Court and by the Election Commission to deal with the criminalisation of politics, the politicization of crime and corruption. It would be unfair to conclude that all political parties and all those in politics have skeletons in their cupboards. Not all of them are involved in illegal activities in equal measure. Not all of them are qualified for sainthood either.

Lame Duck MPs?

Some of the parties would be able to draw advantage from the Supreme Court order because they have had less opportunity to indulge in crime and corruption. They would have a greater chance of watching candidates of other parties squirm and suffer in agony. Some others might be happy because they already have efficient watchdog systems and batteries of lawyers in place that would permit them to file counter-affidavits and challenge nominations of opposing candidates within hours of their being filed. The Returning Officers would have difficulty disposing of all objections in good conscience within the 24 hours given to them for the purpose. Every candidate whose nomination is rejected is likely to go in appeal. This will give rise to a plethora of legal suits and a category of lame duck MPs with the sword of eventual disqualification hanging over their heads. This might also give birth to a new category of candidates who are allowed to contest polls subject to their clearance by a more competent authority at greater leisure. It cannot be ruled out that a large number of such grey candidates might find favour with the electorate and we may even end by having grey MPs, grey ministers, and who knows, even grey Prime ministers! A house containing a sizeable number of lame duck and grey members is a frightening prospect.

That is not all. A party that does not have the means required for checking on the affidavits filed by candidates of other parties and raising contentious issues in prolonged battles of appeals and counter appeals in order to get their nominations or election scratched will be at a disadvantage. Money will play an even more predominant role in the system proposed by the Election Commission.

If the political parties had the wrong reasons for arriving at the right conclusion, the Supreme Court and the Election Commission, on the other hand have come to wrong conclusions for the right reasons. There is no doubt that politics in India is getting criminalised and crime is getting politicised. The question is, can this trend be checked or reversed by demanding that the intending candidates submit a general confession of their crimes, finances and academic performance.

Let us examine the new stipulations one by one.

‘Criminal’ Record

Firstly, the statement on criminal record. According to the notification of the Election Commission, candidates will have to file an affidavit disclosing all the criminal cases in which they have been charged, discharged, convicted or acquitted. This makes little sense in a country where most influential criminals get the cases against them scuttled at the FIR (First information Report) stage or do not permit even an FIR to be filed. It is only the relatively smaller fry who get charges framed against them at all.

The opposition parties, especially those in mass movements, have members of their cadres, every now and then, charged, arrested, put into custody and sentenced in a large number of cases concerning agitations, demonstrations, Hartals, Rasta-roko, Rail-roko, Dharnas, morchas and other forms of civil disobedience. In India, those arrested for Satyagraha are charged under criminal sections that do not distinguish between political motive and motive for personal benefit.

Difficult Affidavits

I have no intention of contesting any election in the near future. But were I to decide to do so, I would need to file an affidavit with a long annexure containing a list of over 700 cases that were filed against me over the last 22 years, in the states of Maharashtra, Karnataka, Gujarat, Punjab and Haryana. In one case, I was charged under section 302 of the Indian Penal code relating to manslaughter. The case was committed to sessions but I was acquitted in the sessions court on the ground that when the incident, resulting in the death of a policeman, occurred in the course of the sugarcane agitation in Nashik district on 12th November 1980, I was already in the custody of the police and was sitting as a detenue in the office of the police Commissioner!

All Detenues are not Criminals

I’ve been acquitted in every case that was filed against me. The Nagpur Bench of the Bombay High Court, ordered in 1986, that I be released from detention under NSA (National Security Act) – equivalent to today’s POTA - because it refused to believe that I could be a threat to the Nation’s security. However, on record, I have been arrested by the police on 27 separate occasions. As of today, I would require a whole team to compile the data on each of these cases. Several speakers at the Delhi meeting pointed out the anomalies arising out of the fact that political detenues are treated on par with common criminals in India.

A way out will be for the Election Commission to treat the case of criminal charges filed in social-political agitation as not constituting criminal cases. But that could open up a gaping hole through which could pass even history-sheeters and ‘Bhais’ of the mafia who, with their political contacts, could make each case against them look like a political one. The criminals have got so mixed up with some of the political parties that it would be impossible to distinguish between charges filed for cases involving civil disobedience and other cases of sheer crime.

Property Declaration

Next comes the requirement to declare one’s movable and immovable property. Such declarations have been filed by all government servants since decades. Thanks to the enormous parallel economy and the large proportion of benami transactions, these returns have not been instrumental in unearthing any cases of corruption. Is it really necessary for each and every candidate to submit a detailed statement of his property even before the election takes place? Will it not suffice if the winning candidate is required to submit a statement of his movable and immovable property to the presiding officer of the House to which he is elected? The returning officer, in any case, will be in no position to scrutinize, even cursorily, these statements from the candidates within a period of just 24 hours that is given to him for the purpose. As a consequence, there will arise new categories of ‘lame duck’ and ‘grey’ MPs and ministers.

Educational Background

Candidates can give details of their academic background with relative ease, along with the originals or photocopies of Degree and Diploma certificates. But, that does not make the Returning Officers’ job of scrutiny any easier. There exist fake universities, fake certificates, fake mark lists and false Degrees galore. The poor Returning Officer has no alternative but to accept them at face value. The list of MPs published by the Parliamentary Secretariat contains quite a few questionable claims of academic accomplishments.

The spokesmen of the political parties who opposed the proposals of the Election Commission at the Delhi meeting had motives that were probably suspect. But with the uncanny sense of shrewd politicians they came, nevertheless, to the right conclusion that the remedy was worse than the malady.

By contrast, the Election Commission and the Supreme Court were guilty of the inverse. They certainly had good motives but came to typically bureaucratic conclusions that are impractical and potentially harmful. The proposals intend to attempt against the criminal-political axis, what Jayaprakash Narayan attempted with the dacoits of Chambal valley minus the promise of amnesty and minus the assurance of secrecy of a catholic confession. The combination of naiveness and wooden-headed bureaucracy is so bad that it might actually further the criminalization of politics and the politicisation of crime and put in jeopardy the hitherto impeccable reputation of the electoral system in India.

Bureaucratisation

Whenever a bureaucrat faces a problem he decides to appoint a committee, to introduce some reforms, or to appoint a commissar to look after the problem. Your bureaucrat is per se an interventionist. He is implicitly convinced of his superior wisdom and is, therefore, convinced that his intervention is necessary and useful for setting the things right. That is typically what happens in a monarchy or an autocracy.

This kind of intervention has no place in an open democratic system. In a democracy, people are the final arbiters because it is founded on healthy skepticism of all authority and not presumption of superior wisdom in any person or institution. The democratic systems leave it to the people with all their shortcomings, faults and foibles, to interact, monitoring each other and bring about a system based on checks and counter-checks that works without the need for any outside intervention. Markets and elections are good examples of multitudes of free individuals interacting amongst themselves in order to bring out the best solutions.

Why Criminals Want Power

If politics gets invaded by criminals, there must be some reason why it is happening. ‘Power corrupts and absolute corrupts absolutely’, as Lord Acton’s immortal truism goes. There is no way corruption and criminalization of politics can be contained in a License-Permit-Inspector Raj. The license-permit system allows smugglers, black-marketers and criminals to flourish. The mafia tries to manipulate the reigns of power for sometime and then ultimately, tries to take over the reins of power itself. That is why they fight elections making full use of their ill-gotten wealth in the hope that power will open doors to further wealth The power-wealth-power vicious cycle rolls on till the whole polity is corrupted and democratic structures start crumbling. An economic State is incompatible with openness and democracy and genuine democracy is incompatible with the license-permit-inspector Raj.

Some Simple Solutions

The long-term solution would of course lie in making the political State keep itself strictly away from all economic functions so that politicians have no possibility of offering free lunches and patronage to the people who wield the ballot. But, that is for tomorrow. In the meanwhile, the electoral system can certainly be reformed by neutralizing money power. This cannot be achieved by State subventions to election expenditure. That will make the problem even more acute.

Here are some very elegant and simple solutions that I would like to suggest to deal with the problem:

1) Polling should take place within a week of the last date of withdrawal;
2) No propaganda should be allowed except by word of mouth on the analogy of what happens under the present system in the last 36 hours before the polling.

Simple and effective. No red tape, no arrogation of power. That is why it would not be accepted either by the bureaucrats or by the political parties.

Mr. SHARAD JOSHI, is the founder, Shetkari Sanghatana. His email address: sharad@mah.nic.in