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Is Criminality Too Ingrained in India’s Public Life for Judicial Action to Make a Difference?

The Supreme Court’s interim order asking the Centre to respond with a scheme to set up special courts to try politicians involved in criminal cases may not offer a lasting solution to the problem.

New Delhi: An illuminated Parliament ahead of midnight launch of 'Goods and Services Tax (GST)' in New Delhi. Credit: PTI

An illuminated Parliament ahead of midnight launch of ‘Goods and Services Tax (GST)’ in New Delhi. Credit: PTI

The Supreme Court of India gave an interim order on November 1, 2017 asking the Centre to set up special courts to try politicians involved in criminal cases. This was in response to the Election Commission’s demand for speedy trials and a life ban for politicians with criminal records. The court also sought a report on 1,581 cases filed till the 2014 elections.

The court’s directions are likely to have a far-reaching impact on India’s public and political lives. We should recall the Supreme Court directive to the Election Commission of India in 2002 to frame rules to make candidates seeking election to parliament or a state legislature file affidavits on any criminal activity – so that ‘the little man may think over before making his choice of electing law breakers as law makers’. This directive gave us both an indicator of the difficult and abhorrent phenomenon of criminalisation in politics as well as measures to be taken against it. However, in 15 years between these two directives, the phenomenon is gargantuan and well-entrenched.

The reports and data emanating from Association for Democratic Reforms (ADR) indicate that no political party in the country today is immune from criminally tainted legislators. The ADR report analysing pre-election affidavits of the members of parliament of the 16th Lok Sabha said that a survey of 541 out of 543 MPs indicated that 186 (one-third) had a criminal background, including murder and rape.

The victorious Bharatiya Janata Party (BJP), riding on a crest of the wave of popularity of Narendra Modi, led the list with over a third of the new MPs facing criminal charges and over a fifth facing serious criminal charges. Indeed, Rashtriya Janata Dal – of which a 100% of the legislators had criminal charges against them – followed by the Nationalist Congress Party and Shiv Sena, lead in terms of percentages. Significantly, all parties have MPs, MLAs and leaders with serious Indian Penal Code charges against them.

However, welcome though the Supreme Court directive is, it raises innumerable questions about the nature and extent of criminalisation of Indian public life, and how far the directive can go in cleansing India’s political sphere from criminals – with its long history extending from the pre-independence days to the trends that began developing since the early days of governing independent India.

Historically speaking

Chanakya’s famous assay – that since it is natural for a fish in water to drink some of it, even if invisible, a public servant likewise tastes ‘at least a little bit, of the King’s wealth’ – points to inevitability of corruption in administration. He describes forty ways of embezzlement by the state functionaries and detailed description of commission of various offences like forgery, counterfeiting, adulteration, smuggling, hoarding and profiteering in Arthashastra.

Similarly, Montesquieu’s succinct analysis that corruption begins from violation of principles of governance by a state refers to the obligation of a state for probity in public life. He thus theorises that the road to a corruption free polity and society goes through compliance with principles. That Mahatma Gandhi expressed his disappointment at corruption prevalent in the Congress ministries formed under the Government of India Act, 1935, shows that a tendency to violate basic ethical principles of governance has had an early beginning in India.

Nehru and Krishna Menon

Jawaharlal Nehru with V.K. Krishna Menon (left) at the United Nations in New York.

Following independence, the national leadership at the apogee may have been free of the malice of corruption, but paradoxes soon emerged. Nehru took the lead in announcing his intention of a clean public life and said that the corrupt must be hanged from the nearest lamp post. He, however, displayed contradictions despite personal probity of a high order; he was obviously against what Gunnar Myrdal describes as the ‘folklore of corruption’. If he stood by V.K. Krishna Menon as a friend and a comrade despite the shadows cast by the Jeep scandal when he was the Indian high commissioner in London, and in the debacle in the Chinese war as the defence minister, he also defended then Punjab chief minister Partap Singh Kairon (1956-64) when corruption charges against him flew thick and fast. In 1962, then home minister, Lal Bahadur Shastri, appointed a committee under K. Santhanam and five more MPs that confirmed the deep roots corruption had taken in India’s body politic with tentacles extending into the society.

Kairon also allegedly gave support to a notorious smuggler and ringleader Makhan Dausa, whose arrest by the Punjab Police in mid-1963 was criticised by six MLAs close to Kairon. He was assassinated six months after he was compelled to quit in December 1964 by then Prime Minister Lal Bahadur Shastri on being indicted by the S.R. Das Commission; a grim reminder that corruption and criminalisation could create Frankensteinian monsters.

From then on, violation of principles by the state, and the politicians running it, transformed corruption into criminalisation of politics in the following stages:

  1. The suitcase politics of the Congress between 1967 and 1972.
  2. The politics of booth capturing that became rampant since 1960s till the introduction of Electronic Voting Machines in 1999.
  3. Indira Gandhi’s highly centralising politics and bringing in her younger son Sanjay Gandhi to manage the party affairs since 1975 that gave entry to lumpens in the Congress with no regard for any principles.
  4. The politics since the 1980s also witnessed atomisation of the Janata Party that was quickly put together to defeat Indira Gandhi in 1977. It created several smaller political parties with leaders, who used every possible strategy except principles, for winning elections and perpetuate themselves, even depending on offenders of the law, many of whom themselves entered politics by the 1990s.
  5. The politics of Hindutva pushed by the BJP since 1986 that not only caused violation of the law in pursuance of the construction of the Ram temple, but also eventually led to the emergence of the Hindu zealots involved in 2002 Gujarat riots and recent lynchings.
Supreme Court. Credit: PTI

Supreme Court. Credit: PTI

Nature and extent

The nature and extent of criminalisation of Indian politics first came to the public’s notice in 1993, when a committee headed by then home secretary N. N. Vohra, appointed ‘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’, submitted its report.

The report of the Director of Intelligence Bureau to the Vohra Committee painted an alarming picture of public life, to say the least. It detailed patronage of local politicians to criminals in certain states, the line separating political leaders (even MPs and MLAs) and leaders of the armed gangs blurred, penetration of the big smuggling syndicate with international linkages to the government with their black money, corrupting governmental processes; certain elements of the mafia indulging in narcotics, drug and weapon smuggling in Jammu and Kashmir, Punjab, Gujarat and Maharashtra; extensive linkages of the underworld in the various governmental agencies, political circles, business sector, the film world, and so on.

The committee suggested the creation of a nodal agency at the Ministry of Home Affairs as well as a Parliamentary Committee on Ethics, the adoption of a code of conduct by political parties and made it mandatory for political parties to annually audit their accounts. The onus largely fell on political parties, who were also expected not to nominate tainted politicians for elections. Needless to say, over the years, each of these has been violated.

Thus, on the one hand, criminals supporting parties asked for and got to contest and win elections, and on the other, several leaders in the process of their political agitations, treated the law with contempt. The first level of activity propped up characters like Shahabuddin – who remains a close associate of Lalu Yadav – in Bihar. On March 16, 2001, he even engaged a combined strength of the Bihar police and Uttar Pradesh’s provincial armed constabulary in an armed confrontation. There are several other similar bizarre cases from Bihar. On the second level, political activities have led to IPC criminal cases against several prominent leaders; the list includes Lal Krishna Advani and Murali Manohar Joshi, indicating a need for a finer analysis of the phenomenon.

In lieu of a conclusion

The affidavits filed by candidates contesting elections is a rough, though important, indicator of the phenomenon.  The available data deserves a deeper analysis for a variety of reasons. First, a look at the names against whom very serious IPC charges exist indicates that even in cases of breach of peace of during political agitations, some of those charges are pressed, inflating the data. Second, as suggested to me during a discussion on this issue in Hyderabad in 2007, false criminal cases are at times filed against Dalit and Adivasi leaders by their higher caste rivals, who are in league with the police. This phenomenon has not been put to social science scrutiny. If true, it could unravel some complex dimensions of the debate on the criminalisation of politics.

Even though the fast track courts are a welcome initiative to convey the impression that the judicial process will not tolerate criminal activities from political platforms and organisations even if they are just encouraged by political leaders, it may not offer a lasting solution to the problem. Initiatives lie with the political parties and, indeed, the society.

Ajay K. Mehra is honorary director, Centre for Public Affairs, Noida.