India's Electoral Laws, Political Corruption and the Supreme Court

ISAS Working Paper No. 150 – 14 June 2012 469A Bukit Timah Road #07-01 Tower Block National University of Singapore Singapore 259770 Tel: 6516 4239 / 6516 6179 Fax: 6776 7505 / 6314 5447 Email: [email protected] Website: www.isas.nus.edu.sg India’s Electoral Laws, Political Corruption and the Supreme Court Ronojoy Sen1 There are two facts about Indian politics that merit urgent attention. First, the number of Members of Parliament (MPs) in the Lok Sabha or Lower House (which is directly elected by the people in a first-past-the-post system) with criminal records is striking. In the current Lok Sabha – which came into existence in 2009 – the number of MPs with criminal charges against them is 162, which work out to nearly 30 per cent of MPs having either criminal cases registered against them or pending in court. The more crucial figure is that 76 MPs, or 14 per cent of the total number of MPs, were charged with criminal cases that could attract imprisonment of five years or more. In the earlier (2004) Lok Sabha, the picture was not much better. There were 128 MPs with pending criminal cases against them, out of whom 58 had serious criminal cases registered against them.2 This has led to the perception, as the Supreme Court puts it, that the ‘law breakers have become the law makers’. Another significant feature of Indian politics is the number of extremely wealthy – or crorepati (multi-millionaire) to use common parlance – MPs in Parliament. Figures for the current Parliament reveal that as many as 315 of the 543 Lok Sabha MPs have wealth of over Rs 1 crore (roughly US$217,000) or more, which represents a 102 per cent rise from the 2004 Lok Sabha. While wealthy MPs are by themselves not a problem, it reflects the real barriers 1 Dr Ronojoy Sen is Visiting Research Fellow at the Institute of South Asian Studies (ISAS), an autonomous research institute at the National University of Singapore. He can be contacted at [email protected]. The views expressed in this paper are those of the author and do not necessarily reflect those of ISAS. 2 Analysis of Criminal and Financial Details of MPs of 15th Lok Sabha (2009): A Report by National Election Watch and Association for Democratic Reforms, p. 3. to running for elections and getting elected. There is evidence to suggest that higher the financial worth of candidates the more their chances of winning. In the 2009 elections, 33 per cent of the candidates who declared assets worth more than Rs 5 crore won as compared to less than 0.5 per cent for candidates with assets less than Rs 10 lakh (US$21,700). Besides, there are many who believe that elected representatives misuse their office to make money. Indeed the average growth of assets of MPs who re-contested elections in 2009 was 289 per cent.3 While this is not in any way clinching evidence of misuse of office it has certainly fed into popular perceptions of corruption among politicians. A prominent political analyst Pratap Bhanu Mehta observes: ‘The corruption, mediocrity, indiscipline, venality and lack of moral imagination of the political class, those essential agents of representation in any democracy, makes them incapable of attending to the well-being of citizens.’4 The criminal records of MPs and their financial worth are easily available in the public domain, thanks to two landmark Supreme Court judgments in 2002 and 2003. In this essay, I examine these two judgments and the reasoning behind the Court’s efforts to impose transparency on the political system. But before doing so, I briefly look at the parts of Representation of the People Act, 1951 – the legislation which governs the conduct of India’s elections – related to electoral corruption and disqualification for corruption. I also look at reports by government-sponsored bodies – what they say about electoral corruption and their recommendations to curb it. These provide not only the context for the court’s views but are also extensively quoted by the Supreme Court judges themselves. In conclusion, I argue that while the courts and commissions have had a positive impact in regulating the political environment in India, it is nowhere enough to stem electoral corruption. The political class and elected representatives have to be a part of the process and only sustained pressure, not just from courts and institutions like the Election Commission (EC), but also from voters can effect real change. The Representation of the People Act The Representation of the People Act (RPA) is the legislation, originally passed in 1951 but amended on several occasions, which along with Conduct of Election Rules, 1961 govern the organisation of elections in India. It runs into several pages and some 170-odd sections. Section 8, sub-sections 1 and 2, of the Act lists a whole set of offences, ranging from promoting enmity between different groups to committing rape, for which a person if convicted can be disqualified for contesting elections. If the person is sentenced with a fine, he shall be disqualified for six years from the date of conviction. If a person is jailed, he shall be disqualified from the date of conviction and for a further six years after release. Under 3 Analysis of Criminal and Financial Details of MPs of 15th Lok Sabha, p. 9. 4 Pratap Bhanu Mehta, The Burden of Democracy (New Delhi: Penguin, 2003), p. 18. 2 Section 8(3) a person convicted of any offence and sentenced to imprisonment for an offence – other than the ones listed under Sections 8(1) and 8(2) – for more than two years shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years after release. However, for sitting Members of Parliament or state legislatures, Section 8(4) states that disqualification under sub-sections 2, 3, and 4 shall not take effect until three months have elapsed from the date of conviction or if within that period, an appeal has been made before a court. Section 8A provides for disqualification on ground of corrupt practices. Section 123 of the RPA lists the various offences that are deemed ‘corrupt practices’ under the Act. The ‘corrupt practices’ under Section 123 of the Act are broadly classified under eight heads, many of which were added as amendments to the original Act. First, bribery which covers inducement offered by a candidate or his agent to a person to either contest or to withdraw from contesting elections. The same applies to a candidate receiving inducements to either contest or withdraw from elections. Inducements to a voter to either vote or to refrain from voting for a candidate also fall under bribery. Second, undue influence or interference with the free exercise of an electoral right of a person by a candidate or his agent. This would include physical threats as well as threats of social ostracism, excommunication or spiritual censure. Third, appeal by a candidate or his agent to any person to vote or to refrain from voting on the grounds of religion, caste, community or language. Appeal to religious symbols as well as national symbols to further the prospects of a candidate or to hurt the chances of a rival are prohibited under this sub-section. This includes attempts to promote enmity between different groups of citizens and the propagation or glorification of the practice of ‘sati’ (self- immolation by a bride on her husband’s death). Fourth, publication of untrue allegations about a rival candidate, which is likely to affect his electoral prospects. Fifth, restriction on the hiring by a candidate or his agent of any vehicle belonging to an elector. Sixth, spending money in contravention of Section 77 of the RPA which deals with expenses incurred and proper accounting during an election campaign. Seventh, any candidate or his agent taking the help of a government servant to further his electoral prospects. Finally, booth capturing, or taking control by force of a voting centre, by a candidate or his agent. However, despite such an elaborate classification of electoral corruption that could potentially nullify the election of a candidate, electoral malpractice continues to flourish. Many of the provisions are extremely difficult to enforce despite an EC that has been very assertive since the 1990s and wields considerable power. However, the nature of electoral corruption has changed over the years. While electoral fraud such as booth capturing and casting of false votes have been drastically reduced by the electronic voting machines, an alert EC and a strong presence of the media, particularly the numerous television news channels, vote buying and unaccounted campaign expenditure continues unabated. A study by the Centre for Media Studies found that over the last decade, at least one-fifth of India’s 3 electorate was paid cash for their votes.5 Again private conversations leaked by WikiLeaks have revealed several instances of Indian politicians discussing voter-bribery. Besides, it is commonly accepted that the cap on campaign expenditure was being regularly breached by candidates.6 One of the reasons is that the various forms of electoral corruption are extremely difficult to detect and prove, given the size and scale of Indian elections. A second reason is election-related petitions are filed before the High Courts, which are inundated with pending cases. Though the RPA mandates that petitions be disposed of within a period of six months, in reality they can drag on for years, given the huge backlog of cases in courts. A former Chief Justice of India, K.G.

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