Ever since the Vasudevan case in the mid-'90s, when the Supreme Court reluctantly sent a highly respected secretary of the Karnataka government to jail for contempt of court because his department failed to carry out its orders, the judiciary has been on a collision course with the executive and, more recently, with Parliament. On July 8, the clash finally came out into the open. An all-party meeting attended by 21 political parties unanimously 'rejected' the Election Commission's order that all candidates for future elections supervised by it must disclose their past criminal records, if any, in an affidavit presented along with the nomination papers. Failure to do so could result in disqualification. What made this a direct challenge to the SC's authority was that the Election Commission's order (on June 28) was in pursuance of a directive from the former.
The all-party meet went to some lengths to avoid giving the impression that it was challenging the SC's authority. Instead, it tried to justify its rejection by pointing to a number of shortcomings in the EC order. These ranged from home minister L.K. Advani's objection that a 40-page affidavit was too cumbersome, to a commonly voiced observation that the EC's order left room for 'politically motivated returning officers' to disqualify candidates. In the end, the all-party meet made no bones that in issuing the directive to the EC, the SC had sought to arrogate to itself legislative powers that belonged solely to Parliament. In Advani's words, "It is for Parliament to add or delete to (sic) the candidates' qualifications, not the courts."
To show they are every bit as determined to end the criminalisation of politics as the SC, members of the government took pains to point out that an electoral reforms bill had already been prepared and would be circulated within the next few days. New law minister Jana Krishnamurthy asserted there was complete unanimity on this account among parliamentarians. Advani even called the consensus 'rare'. But all this cannot hide the fact that India's entire parliamentary class has joined together to reject the simplest, most effective way of drastically limiting the perfusion of crime into the Indian democratic and administrative system.
The sheer genius of the EC's order lies in the fact that, contrary to assertions at the all-party meet, it doesn't give a returning officer the right to reject a nomination because the candidate has a criminal record. By insisting on full disclosure, it gives the voters the chance to reject him. Candidates with criminal records will have to choose between disclosing their past and having rival political parties exploit it to the full, or hiding their past and risking disqualification. By the same token, parties will have to choose between fielding persons with criminal connections and having rivals put up a candidate of known integrity and highlighting the difference to the voters, or putting up an honest candidate of their own. Political competition will force them to break the nexus between crime and politics over a few elections because it will be in everyone's interest to do so.
The SC's directive and the EC's order will thus solve the one problem that has so far defeated every attempt to sequester crime from politics through legislation. A provision barring convicted criminals from contesting elections for varying periods of time depending upon their crime already exists in the Representation of People's (RoP) Act. But political parties have, by tacit consent, circumvented this provision by defining a convicted criminal out on bail (pending the disposal of his appeal) as innocent. The delays of the legal system then ensured that such appeals go on through the rest of the felon's natural life.
It requires only a moment's introspection to conclude that it would be exceedingly difficult to close this loophole through legislation alone. The previous chief election commissioner, M.S. Gill, sought to do so by interpreting the provision in the RoP Act as disbarring all those who had been convicted in any court, regardless of whether an appeal by them had been admitted or not. But his efforts came to naught, in part because the affected candidates took the issue to the courts.
The EC's order on full disclosure thus offers not just the best but perhaps the only hope of keeping criminals out of politics. Even if the pending legislation were to include a full, compulsory disclosure of criminal antecedents, it would only be duplicating what the EC has already done through its order. Why then has the entire political class rejected the EC's order and challenged the authority of the SC?
The answer is that under the laws that govern political, and particularly electoral funding, politicians have no option but to climb into bed with black marketeers, smugglers and criminals of all kinds to find the money and muscle they need to fight an election. Over time, the criminals recognised their indispensability and graduated from supporting politicians in exchange for protection to entering politics themselves. As G.V. Krishnamurthy, a former election commissioner, took great pains to tabulate, one in ten MPs and up to one in three MLAs have criminal records. Nineteen out of the 31 Congress and BSP MLAs who defected to Kalyan Singh's camp in Uttar Pradesh in 1996 had serious criminal charges against them, including kidnapping and murder. But all of them, without exception, became ministers in the government.
So long as its dependence on criminals does not end, the political class will fight and frustrate every attempt to break the nexus between crime and politics. The only way forward therefore is to incorporate the EC's order in the legislation that the government claims it will introduce, and add to it full and generous provisions for the state funding of all recognised political parties at the central and state level. The two could together transform Indian politics in a decade, and give the country some hope for the future.