Sunday, December 7, 2008

Criminals in elections

Sunday, November 23, 2008

http://www.tribuneindia.com/2008/20081123/edit.htm#1

Perspective

A Tribune Special

Criminals in elections

Parties should choose clean candidates, says Jagdeep S. Chhokar

Commenting editorially on October 15 on elections to the state assemblies of Rajasthan, Madhya Pradesh, Chhattisgarh, Delhi and Mizoram, The Tribune said, “The political parties have an onerous responsibility to ensure that only candidates with impeccable credentials are given tickets to contest the elections. They must shun those with criminal antecedents. The increasing problem of criminalisation of politics can be tackled at the entry level itself only if all the parties show the door to criminals, history-sheeters, hoodlums and gangsters.”

The sentiment expressed in the editorial is indeed laudable and in keeping with the larger public sentiment in the country, as expressed in an Internet poll as far back as 2000. According to this survey, 79 per cent of the respondents said that providing criminal records of aspiring MPs would check criminalisation of politics.

It is heartening to note that the Leader of Opposition in the Lok Sabha and the declared prime ministerial candidate of the BJP, Mr L.K. Advani, announced on October 18 that “his party would not field any candidate with a criminal background in the forthcoming general elections even if the prospective candidate was on a winning wicket”. One hopes that all political parties follow this announcement, at least the major parties.

There is, however, another side to the story. The same day that The Indian Express reported Mr Advani’s announcement, another newspaper, The Hindu, reported that the state government of one of the states going to the polls next month is reported to have withdrawn around 72,000 criminal cases, possibly in anticipation of or in preparation for the ongoing Assembly elections in the state.

The second of the two reports is obviously disturbing, particularly given what happened in the last elections to four of these State Assemblies, for which data is available based on the implementation of the landmark judgment by the Supreme Court on March 13, 2003, which made disclosure of pending criminal cases by candidates contesting elections to Parliament and State Assemblies mandatory, in the face of stiff opposition by the entire political establishment.

Based on available data, about 20 per cent of all the candidates who contested the State Assembly elections in Chhattisgarh, Delhi, Madhya Pradesh and Rajasthan had criminal cases pending against them, the exact figures for Madhya Pradesh and Chhattisgarh being 19.74 and 12.5 per cent respectively.

That is about the candidates who contested the elections. What about those who won the elections and actually went on to become the elected representatives of ‘We, the People’ with legitimate authority to make laws and take decisions which govern the way we can and should lead our lives?

These numbers are not heartening at all. A total of 18.48 per cent of all the MLAs in these four states (Chhattisgarh, Delhi, Madhya Pradesh, and Rajasthan) had criminal cases pending against them. Sadly, it is the national capital which had the dubious honour to have the highest proportion of MLAs with criminal cases pending against them, 34.29 per cent, followed by Madhya Pradesh with 22.61 per cent, and Rajasthan with 13.5 per cent. It was the low percentage in Chhattisgarh (6.67 per cent) that brought the combined average of the four states down to 18.48 per cent.
However, this figure of 18.48 per cent is itself a cause for concern, particularly when one notices that as many as 18.18 per cent of the MPs in the current Lok Sabha have criminal cases pending against them, as mentioned by none other than Chief Election Commissioner of India N. Gopalaswami while delivering the 23rd Sardar Vallabhai Patel memorial lecture on the theme, “Election Management: New Paradigm” at the Sardar Vallabhbhai Patel National Police Academy in Hyderabad on October 20, 2008.

The scourge of criminality has been gnawing at the roots of democracy in the country. The governments of the day have not been ignorant about it over the years. The N.N. Vohra Committee, consisting of the Union Home Secretary as Chairman, and Secretary (Research and Analysis Wing), Director (Intelligence Bureau), Director (Central Bureau of Investigation) as members, and Joint Secretary in the Home Ministry as the Member-Secretary, was appointed by the Government in July 1993.
This Committee was constituted “to take stock of all available information about the activities of crime syndicates/ mafia organisations which had developed links with and were being protected by government functionaries and political personalities.”
In the first meeting of the Committee, the Chairman Mr Vohra “perceived that some of the members appeared to have some hesitation in openly expressing their views and also seemed unconvinced that the government actually intended to pursue such matters” (emphasis added).

The Chairman decided to write the report himself, justifying his action in one of the concluding paragraphs of the report thus: “In the normal course, this Report would have been drafted by the Member Secretary and finalised by the Committee. Considering the nature of the issues involved, I did not consider it desirable to burden the Members of the Committee with any further involvement beyond the views expressed by them. Accordingly, I decided to personally dictate this Report.”
Mr Vohra went on to write, “I have prepared only three copies of this Report. One copy each is being submitted to Minster of State (Internal Security) and Home Minister, the third copy being retained by me. After HM has perused this Report, I request him to consider discussing further action with Finance Minister, MOS (IS) and myself. The emerging approach could thereafter be got approved from the Prime Minister before being implemented.”

The report was submitted in October 1993. The initial attempts by the government seemed to be to keep the report under wraps but somehow, given the infirmities of our governance systems, it got leaked and is now widely available even on the Internet. There seems to be no hint of any action taken on the report.

Six years later, in May 1999, the Law Commission of India submitted its 170th Report on Electoral Reforms to the government. This is by far the most comprehensive review and set of recommendations on the subject.

Among the many recommendations is one to disqualify a person from contesting elections for five years if charges have been framed against him/her in a criminal case in which the possible punishment is two years or more of imprisonment. This, of course, has not been done so far.

Even an attempt to get candidates contesting elections to disclose criminal cases pending against them required four years of public interest litigation, including fending off an attempt to amend the Representation of the People Act by getting the President to issue an Ordinance, but finally resulting in the judgment by the Supreme Court on March 13, 2003 in favour of the public interest litigation.

The Law Commission had also made several other far-reaching recommendations which, if implemented in the right spirit, would significantly improve the electoral system and make it much more representative of public opinion.

Several of the recommendations have been repeatedly supported by the Election Commission publicly and in its communications to the government. In his lecture in Hyderabad, the current Chief Election Commissioner reiterated some of these proposals such as requiring a minimum of 50 per cent plus one vote for the winning candidate, barring persons facing charges of committing heinous crimes from contesting elections.

A letter written in July 2004 by the then Chief Election Commissioner, Mr Krishnamurthy, to Prime Minister Manmohan Singh detailed a list of 22 proposals made by the Election Commission to improve the electoral system. There has been no known response from the government. The sad but inescapable conclusion seems to be that successive governments have done little on electoral reforms. They did not have even the slightest inclination to effect any significant change in the electoral system.
It is against this background that the announcement “No tickets to those with criminal background” and also the news that criminal cases are being withdrawn, possibly in anticipation of or in preparation for the forthcoming Assembly elections in the States, acquire importance.

The hope is that good sense and national interest will prevail, and political parties will show sagacity by choosing clean candidates so that the rapid decline in the confidence of the people in the political and electoral processes can be reversed.

The writer, a retired Professor of Indian Institute of Management, Ahmedabad, is a founding member of the Association for Democratic Reforms

The polls and the polis

The polls and the polis
Posted online: Nov 25, 2008 at 0055 hrs

http://www.indianexpress.com/news/the-polls-and-the-polis/390166/

Trilochan Sastry & Jagdeep S. Chhokar

In the current state assembly elections in Delhi, 28 per cent of the candidates fielded by each of the two major parties, the BJP and the Congress, have criminal cases pending against them, followed by the BSP with 25 per cent. Candidates from these three major parties face a total of 37 cases for crimes like murder and attempt to murder, kidnapping, cheating and forgery. This is after the BJP’s prime ministerial candidate announced in the “Vijay Sankalp” rally on October 18 that his party would henceforth not field any candidate with a criminal background even if he was likely to win (IE, October 19, 2008). Similar statements were made by leaders of other parties. Considering the 45 sitting MLAs of Delhi who are re-contesting the elections, the average increase in assets from 2003 to 2008, is 211 per cent or almost Rs. 1.8 crores per MLA. It is not known whether this increase is in keeping with their “known sources of earning” or not.

The situation in the Chhattisgarh assembly elections is similar. BJP, BSP, and Congress lead the field in terms of candidates with criminal cases pending against them. While 14 per cent each of the BJP and Congress candidates have criminal cases pending against them, the BSP leads the way with 16 per cent. The average increase in assets of the re-contesting Chhattisgarh MLAs is close to Rs.65 lakhs per MLA. In percentage terms it is 213 per cent, and very similar to Delhi.

The Supreme Court judgments of May 2, 2002 (Case No. SCC 399) and March 13, 2003 make it mandatory for candidates contesting elections to Parliament and state assemblies to disclose pending criminal cases, past convictions, and financial and educational backgrounds. This information can now be obtained from returning officers and from the election commission websites. The judgment was in response to a PIL filed by the Association for Democratic Reforms (www.adrindia.org) and was vigourously contested by the political parties. Since then citizen election watches have emerged all over the country. Over 25,000 candidate records have been scrutinised and analysed. Information about how many candidates have declared assets of more than Rs. 1 crore but have not declared their permanent account numbers (PANs); how many candidates claim to have zero cash but their assets run into several lakhs and crores, and how many claim they have zero cash, zero deposits, and zero assets; and how many have declared assets of more than Rs.60-70 lakhs and say that they do not possess any motor vehicle, has now become available to citizens/voters.

At present over 1200 citizen groups have come together under the banner of National Election Watch (NEW). It is a citizen-led, non-political, non-partisan effort to cleanse the electoral and political systems. Several eminent citizens including retired justices of the high courts and Supreme Court, retired IAS and IPS officers, leaders of NGOs and people’s movements, media persons, academics and businessmen have joined this movement. Disseminating the above information to voters well before the day of polling, so that they can make an informed choice is part of the strategy. Starting this year, an SMS campaign is underway in which people can receive free alerts on a candidate’s financial and criminal background, and information on political parties. A toll-free helpline on which people can ask any questions related to their candidates or the parties is also working. Details are also available on the Internet. The strategy of these groups is to work closely with the local language media, and to also disseminate information through posters, pamphlets, meetings, meet-your-candidate platforms, help lines and SMS campaigns. The focus is non-English speaking grassroots voters.

At the same time, there is spiralling growth in election spending. Unless we tackle this, corruption in public life will get worse, and vitiate elections, democracy and governance. The campaign will also monitor election spending and educate voters about the consequences of electing someone who spends too much. The campaign will also disseminate information on income tax returns of political parties.
Almost ten years of effort has resulted in fewer candidates with criminal records. There is however, a long way to go. Information obtained under the Right to Information Act shows that a large number of parties have got significant income tax exemptions which should not be allowed under law as they have not submitted statements of donations. Action needs to be taken by the income tax department and the election commission. There are laws governing companies, cooperatives, charities, societies, educational institutions, hospitals and religious institutions, but not a single law governing political parties. There is an urgent need for this in line with best democratic practices in other countries. Greater citizen participation will make political parties more accountable to us, the people.

The writers are former IIM faculty

Election set aside as a result of ADR’s Supreme Court judgement of March 13, 2003

From The Times of India

BJP councillor loses seat over asset declaration
3 Dec 2008, 2254 hrs IST, Smriti Singh, TNN

NEW DELHI: A BJP councillor, who had won the MCD elections last year from Daryaganj ward number 153, has incurred the wrath of the court, which declared his election "null and void'' for not disclosing his assets totally.

Stating that it's the fundamental right of people to know the full details about the candidate, additional district judge cancelled the election of BJP candidate Chaudhary Sunder Kumar and directed the State Election Commission to take steps to initiate criminal proceedings against him.

BJP's loss turned out to be Congress' gain as the court ordered that Congress candidate Ramesh Dutta, who had secured the second highest number of votes, be declared as winner. Dutta had filed the election petition challenging Sunder's election.

In the petition filed by Dutta, BJP candidate Sunder was accused of concealing information related to his assets in his nomination affidavit. Dutta claimed that the BJP candidate was running a kerosene oil depot (KOD) at Sarai Kale Khan, which was not declared by him in the affidavit. The petition also claimed that Sunder's brother, who is an additional sub-inspector of the area, was canvassing in the election.

In his defence, Sunder blamed the officers of the food and civil supply department for not cancelling his KOD licence even though he had applied for discontinuation.

This, however, did not help prove his innocence. The court stated that such a department for cancellation was created much after his election and "in no way he could have applied for the cancellation of his licence.'' The court, however, rejected the petitioner's contention that his brother was also involved.

The court, in its order, relied upon a Supreme Court verdict making it mandatory for candidates to declare their assets while filing nomination papers. "As per the SC directive, any disinformation, misinformation or non-information all equally creates an uninformed citizenry which would finally make democracy a monocracy and farce.... admittedly, public scrutiny is one of the best-known means of getting clean and less polluted persons to govern the country and therefore the right of a citizen to information with regard to the antecedents of a candidate in respect of criminal cases and their assets,'' the court said.

The State Election Commission had also issued an order in this regard on July 22, 2003, it noted. The elections for the 272-member municipal body was held on April 5, 2007.

When contacted, Chaudhary Sunder Kumar was unavailable to comment on the cancellation of his election.
http://timesofindia.indiatimes.com/Delhi/BJP_councillor_loses_seat_over_asset_declaration/articleshow/3789530.cms

Right to recall

Sunita Aron, Hindustan Times

Email Author

Mumbai, December 04, 2008

First Published: 00:30 IST(4/12/2008)

Last Updated: 01:52 IST(4/12/2008)

Should we have right to recall legislators?

Is the time ripe for giving the people the constitutional right to reject candidates standing for elections and recall those already elected? After the unprecedented public outrage against the politicians following the terrorist attacks in Mumbai, the proponents of this move at least have a strong case.

“This is the right time to convert public anger into a movement. People want the right to reject candidates or political parties,” said IIT alumnus and Magsaysay Award winner Arvind Kejriwal, who was one of the spearheads of the Right to Information movement, which finally led to a law on the subject.

The EC did try twice — in 2001 and, again, in 2004. But, expectedly, perhaps, the government slept over the proposal. The government needs to make a simple amendment in the Representation of the People Act, 1951 to include a “none of the above” column at the end of the ballot paper.

“People have been petitioning us. But we cannot do anything more than send the proposal and, thereafter, reminders to the government,” an Election Commission official said.

The Association for Democratic Reforms (ADR), a network of 1,200 partner organisations all over the country, plans to channel the public anger against politicians into a popular movement to press for the right to reject or recall candidates. It plans to write to Lok Sabha and Rajya Sabha members soliciting their support.

ADR was founded by a group of professors from the Indian Institute of Management, Ahmedabad, and National Institute of Design and some IIM alumni in 1999. At present, it is running its twin programmes — electoral reforms and political processes reforms — and monitors the election process in the country with the help of its network partners.

The founder member of ADR, Trilochan Shastry, Professor & Dean of Academics, IIM Bangalore, said: “Lok Sabha Speaker Somnath Chatterjee has publicly supported the demand.”

For full report and to vote, log on to www.hindustantimes.com

http://www.hindustantimes.com/StoryPage/Print.aspx?Id=4c30a330-d636-436b-97d5-74a02047a9d2

© Copyright 2007 Hindustan Times

Accountability by recall

Live Mint

  • Posted: Tue, Jul 22 2008. 10:12 PM IST

Accountability by recall

Should we let incompetent and dishonest legislators, elected by hook or by crook, continue their full term?

Jagdeep S. Chhokar

A very important event in the evolution of democracy in India took place on 15 June, which holds special significance in view of the behaviour of several of our “honourable” MPs in the run-up to the vote of trust in the Lok Sabha on Tuesday.

The event was the recall of presidents of three nagar palikas, or municipal corporations, in Chhattisgarh through voting under the Chhattisgarh Nagar Palika Act.

This Act, adopted by Chhattisgarh from Madhya Pradesh, provides that “Every Mayor of a Corporation shall forthwith be deemed to have vacated his office if he is recalled through a secret ballot by a majority of more than half of the total number of voters of the corporation area casting the vote…” The proposal for recall has to be moved by “not less than three-fourth of the total number of the elected Councillors.” It cannot be initiated “within a period of two years from the date on which such Mayor is elected and enters office,” and “if half of the period of tenure of the Mayor elected in a by-election has not expired.” The Act further provides that the process for recall of a mayor can be initiated “once in his whole term”.

Starting with the Soviet Union under Lenin in 1917, the right to recall has been adopted by several countries but its actual use has been rather infrequent. The last well-known instance was when then governor of California Gray Davis was recalled in 2003, to be replaced by Arnold Schwarzenegger.

Most commentators have rejected the right to recall based on three arguments. The first is that while recall may be relevant and possibly useful at what are called the lower levels of democracy such as municipalities and panchayats, it wouldn’t work at the so-called higher levels of democracy, such as state assemblies and the Lok Sabha. Its basis is that “lower” level elections are fought on “local” issues which are more easily understandable by the voters whereas the “higher” level elections are fought on larger issues to which voters are not able to relate. This logic is utterly misplaced.

Since the same people vote to elect MLAs and MPs, presumably on the basis of their understanding of the so-called larger issues, they can vote equally knowledgeably for the recall of MLAs and MPs.

The second argument is based on experience of other countries—that only 18 states of the US permit recall of state-level officials whereas 36 states permit recall of local-level officials; recall is applicable only to mayors in Germany and not to any state-level officials; and criteria for recall of state-level officials are very difficult to fulfil so that attempts to recall state governors in the US have succeeded very infrequently. These facts do not prove, in any way, that the provision of recall is useless.

If only 18 states of the US have found it fit to provide for recall of state-level officials, it is the collective judgement of the citizens of those particular states. Similarly, the German example does not prove either that the provision for recall is inherently useless or that it will not work in India. And, if efforts at recalling governors in the US have not been successful more often, it highlights the importance of designing the provision properly, and may well be proof that appropriate design can prevent the provision being misused or used frivolously.

The third argument is that such a provision will make elections more frequent, making the process much more complicated, thus increasing the cost of democracy. This is an outrageous argument.

The argument that a recall provision would increase the cost of democracy is an outrageous one

Should India, or any country for that matter, be looking for the least expensive form of governance? And will more frequent elections improve or reduce the efficacy of our democracy? Is it better to have incompetent, inefficient and dishonest legislators, once elected by hook or by crook, continue to bleed the state exchequer for the fixed term, thus throwing good money after bad, or is it better to remove them and that, too, by a commonly agreed and transparently implemented process and elect new, hopefully better ones, in their place? And, should India, with its size and complexity, be looking for simple ways to run its democracy, or is the ambitious exercise of running a democracy in a country of India’s size and diversity inherently an expensive one that we have consciously chosen to adopt?

A provision for recall is necessary because, as of now, our elected representative at all levels seem to be under the impression that they have immunity from all laws of the country and the main objective of a large majority of them seems to be to recover the expenses of the previous election and to collect funds for the next election, in the process saving some for their families and the party to which they at present be long — even if that involves “auctioning” their votes for a motion of confidence in the highest forum of democracy in the country.

An almost clinching argument in favour of the right to recall is the unflinching and consistent advocacy by Somnath Chatterjee, who has drawn fire for sticking to a constitutional stance as Speaker. In a lecture on 13 June in Thiruvananthapuram, Chatterjee said: “I have been emphasizing the need for introducing the system of ‘Recall’ to deal with those members of the legislative bodies in our country who function in a manner unbecoming of an elected representative of the people.” Having been a member of Parliament for 33 years and distinguished himself as Speaker of the Lok Sabha at a critical juncture, we should trust his view, and if he says that a system of recall is needed, it seems reasonable that the nation discuss this proposal seriously, at the very least.

Jagdeep S. Chhokar is a former director of IIM Ahmedabad, and one of the founding members of the Association for Democratic Reforms (www.adrindia.org).

Comment at theirview@livemint.com