Cleansing political institutions

STEVEN I. WILKINSON

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THE murder of Phoolan Devi MP, shot as she returned to her Ashoka Road residence for lunch in July 2001, symbolized for many the larger issues facing the Indian polity. The first is the growing criminalization of India’s political system. Many criminals, like Phoolan herself, decided to move into politics in the past two decades, encouraged by political parties who wanted candidates strong enough not to be intimidated by rivals.

The second problem is the politicization of the state. Immediately after the murder, for example, Samajwadi politicians alleged that Phoolan Devi’s request for a firearms permit had been turned down by the police at the behest of her political enemies. The third problem, which I will not deal with extensively here, is the issue – how shall we say – of money and politics. In the reports after Phoolan Devi’s death what was striking in the Indian press coverage was the complete lack of attention paid to the question of how someone born in poverty had accumulated assets estimated at Rs 2.5 crore (at official valuations) to Rs 10 crore (market valuations) in a short political career.

Despite the fact that there never was the golden age of incorruptibility imagined by some pundits, there is a lot of evidence to suggest that both the criminalization of politics and the politicization of the state have become much worse in the past few decades. From a trickle of complaints about a few criminals entering the legislature in each state, we now have a situation where, according to an Election Commission study in 1997, 40 sitting members of the Lok Sabha and around 700 of the 4,072 members in the various state assemblies had a criminal record.1

This makes even the early 1980s – when the head of the Bihar police complained that around half a dozen members of the state legislature had criminal records – seem by comparison a golden era of honesty.2 Interestingly, the proportion of MLAs who now have criminal records (17%) is higher than the proportion of candidates with criminal records (11%), suggesting that criminals stand a higher chance of being elected than non-criminals.3 In some states, such as U.P., the proportion of members with criminal records has exceeded 40%.4 The situation is now so dire that the President of India, K.R. Narayanan, felt compelled to plead with political parties in January 2001 not to nominate criminals for public office.5

 

 

One indicator of the growing criminalization of politics is the increase in political violence, especially political murders. Graph 1 shows the number of elected state and national-level representatives who have been murdered each year since 1960. The data are drawn from Indian press reports and the Journal of Parliamentary Information since the 1960s. There is an obvious and definite increase over this period in the number of political murders. In the most recent full year (2000) for which I have data, for example, six state legislators were murdered: Nagen Sharma (Assam) in January 2000, Madhusudan Saha (Tripura) and Vasanth Asnotikar (Karnataka) in February, Gurudas Chatterjee (Bihar) in April, Mohini Basmatary (Assam) in August and Nirbhay Pal Sharma (UP), a BJP legislator from Saharanpur in November. This chart does not of course measure the overall level of political violence, because it excludes the very large number of lower level politicians, political workers, and family members of politicians who have been killed. It also excludes the large number of attempted assassinations which were (from the point of view of the attackers, at least), unsuccessful.

Measuring attacks on legislators is a useful indicator of political violence because their deaths, unlike those of town councillors and ordinary political workers, tend to be reported. We can get some idea of the relationship between the number of MLAs killed and the overall level of political violence from some data collected between 1990-1998 in Bihar. Five MLAs were murdered in Bihar between 1990 and 1998, but the police reported that during the same period 371 other political workers were murdered in 302 separate incidents.

Linked with the criminalization of politics is the politicization of the state administration. This problem too is not as recent as we sometimes imagine. Complaints about political interference with the law and local administration go back at least as far as 1936-37, when elected state governments were first given responsibility over the police under the Government of India Act. In U.P. for exam-ple, the governor complained to Pandit Pant in 1937 that ‘...in some districts the activities of Congressmen in interfering with police work and in establishing a regular system of complaints against whatever the police do are producing some deterioration in the morale of the police force and are beginning to affect their authority and to be reflected in some weakening of control over crime.’6

Even after Independence every independent inquiry into policing that was carried out in the 1950s and early 1960s – in West Bengal (1960-61), Uttar Pradesh (1959), Kerala (1959), Punjab (1961-62) and Delhi (1961-62) – complained that, ‘The greatest obstacle to efficient police administration flows from the domination of party politics under the state administration... The result of partisan interference is often reflected in lawless enforcement of laws, inferior service, and in general decline of police prestige followed by irresponsible criticism and consequent widening of the cleavage between the police and the public affecting the confidence of the public in the integrity and objectives of the police force.’7

Despite these complaints in the 1950s and early 1960s, however, there is good evidence that things did become worse after the late 1960s. For one thing, in contrast to the immediate post-Partition period, when senior Congress politicians such as Sardar Patel often tried to rein in the tendency of local Congressmen to interfere with day-to-day administration, senior politicians in the late 1960s officially condoned and even required the political loyalty of the bureaucracy. In 1969, most famously, the President of the All Indian Congress Committee, Jagjivan Ram, made a speech in which he argued that ‘the so-called neutral administrative machinery is a hindrance, not a help’ and that the philosophy of a neutral administration was ‘hardly relevant to Indian conditions’. His remarks were swiftly echoed by other senior Congress leaders, including the Prime Minister, Indira Gandhi.8

 

 

Chief Ministers and MLAs appointed by Indira Gandhi in the early 1970s used their power over the state to build up political support through patronage and illegal interference with law enforcement. For example Kamlapathi Tripathi, the centrally appointed chief minister who ruled U.P. from 1971 to June 1973, transferred large numbers of officials at the request of local businessmen and other constituents who wanted to have a ‘troublesome’ police officer or civil servant removed and a more amenable officer transferred in. A third of Tripathi’s cabinet was reported to be corrupt, but he refused to take any action against his subordinates. The formal chain of administrative command was virtually ignored by Tripathi as he allowed his relatives to phone up district officials and give them direct orders.9

 

 

During the late 1960s and 1970s, officers who were prepared to demonstrate their commitment to Congress’s goals were given promotions and plum postings while others were sidelined. In 1971 the second Uttar Pradesh Police Commission complained that recent political interference had resulted in a ‘warped enforcement of law’ and a ‘general decline in the police in its integrity.’ The Shah Commission, set up in the aftermath of the 1975-77 Emergency, uncovered clear evidence that throughout India, many officers had obeyed orders from Congress politicians that they knew to be improper and illegal, including ‘forging of records, fabrication of ground of detention, antedating of detention orders, and callous disregard of the rights of detainees...’

The Indian Police Commission, set up at the same time, also confirmed that the problem of political interference had reached alarming proportions in most Indian states. The commission identified several cases in which corrupt or politically connected junior officers had their more honest seniors transferred, and a case in which one state’s Inspector General (the most senior police officer) was demoted to an insignificant post when he refused to make large numbers of politically motivated transfers.10 Transfer statistics collected by the commission revealed that hardly any senior police officers were able to serve out their ‘normal’ three year posting to a district.

 

 

The situation continued to deteriorate in the 1980s and 1990s. In Bihar and U.P. officers have become so demoralized that the majority of IAS officers in both states tried to ‘escape’ to the newly created states of Jharkhand and Uttaranchal or the central government. Politically motivated transfers are now so endemic that the Congress government gave up on its previous policy of privately reprimanding the states for casteist and politically motivated transfers and went public in 1995 with an appeal for the states to stop abusing their powers over transfers. The Election Commission has publicly stated that ‘...certain state government[s] appoint pliable and politically motivated persons in sensitive posts like DEOs, ROs and so on. They also transfer forthright officers, who do not work according to the dictates of the ruling political party or influential political leaders. This tendency specially manifests itself during the period when the election become imminent.’11

What can be done to cleanse the system? One school of thought claims that no specific measures need be taken because the recent increase in political competition in India will in itself have a cleansing effect on politics. The argument is that alternation in power makes politicians more honest because they fear investigation and prosecution by their political opponents after they take office. The first thing that we might say here is that the recent example of Jayalalitha in Tamil Nadu and her persecution of Karunanidhi certainly does not inspire confidence that prosecution will necessarily persuade politicians to be more cautious and observant of the legal process.

 

 

There also seem to me to be two further arguments against the idea that greater electoral competition automatically leads to clean government. First, one could equally imagine greater competition having the opposite effect: political opponents who might themselves be corrupt will be reluctant to prosecute their rivals lest the same happen to them when they are out of power. The fear of prosecution may also make them even more anxious to use the state to retain their hold on power. Second, and more importantly, there is little evidence that the fear of investigation is a disincentive when there are serious delays in investigating and trying corruption cases, in part because of the huge backlog of 30 million cases in the increasingly under-funded Indian judicial system.12

If data on prosecutions of cases by the CBI are at all typical, the deterrent effect must be small indeed. The Central Vigilance Commissioner complains that due to delays in the courts a substantial number of investigations have to be abandoned because the officials die or retire before their cases come up.13 As the table below shows, 64 CBI corruption cases pending in 1999 were more than 20 years old, while a further 581 cases had been pending for 10-20 years.

 

The Slow Wheels of Justice: Pending CBI Anti Corruption Cases as of

December 1999

Time Case has been Pending

Cases

Less than 2 years

785

2-5 years

1209

5-10 years

900

10-15 years

442

15-20 years

139

20-25 years

45

25-30 years

18

Over 30 years

1

Total

3529

Source: N. Vittal, ‘Tackling Corruption in Public Service’, March 2000, http://cvc.nic.in/vscvc/cvcspeeches/march2k9.html

 

 

A second approach is for Indians to put their faith in incremental reforms that will restrict criminal behaviour by politicians while leaving the basic structure of the electoral system intact. The Lok Sabha for example, introduced a successful amendment to the Representation of the People Act in 1989 that allowed re-polling the constituency in the event of booth capturing. The Election Commission has, over the past decade, also taken action against politicians for using state resources to win elections, whether by announcing new development programmes in the run up to an election (as in the Kalka bye-election in Haryana in 1993) or using state vehicles or planes to help in electioneering. The CEC has issued voters with identity cards and, since 1997, required candidates to sign affidavits listing their criminal convictions (including those under appeal) when registering to contest a constituency.

 

 

Several other institutional reforms have a good chance of being passed in the next decade. Both the Election Commission and the Committee to Review the Working of the Constitution have recommended that candidates convicted of offences with a sentence of six months or more be barred from contesting elections for six years plus the length of their sentence, which would mark a change from the existing system where a six year ban might expire before a seven or eight year sentence. The Commission has also recommended that those accused of criminal offences carrying a sentence of five years or more be automatically disqualified from fighting elections.

Other promising measures to adjust the existing system include involving giving election officers some control over local electoral officers and police at election time, establishing the right of the CEC to charge state election officers who do not do their duty, and plans to address the influence of money in elections by establishing state funding of candidates and/or counting party expenditure in a district towards the expenditure of a local candidate.

Many people argue that these reforms will prove ineffective, because under the Constitution most of the responsibility for enforcing these new regulations and for prosecuting offenders will lie with the same state politicians who, if not criminal themselves, rely on the support of those who are. There is no point in having cases lodged against errant politicians if, as in the case of Mohammad Shahabuddin in Bihar (1996) the police are prevented from arresting anyone due to ‘political pressure’. Many argue that only a complete revamping of the electoral system will do. One suggestion is to allow the Centre, and agencies such as the CBI, more discretion in launching cases without the permission of the states, though in the current political environment it seems unlikely that the BJP’s coalition partners in the South and elsewhere would allow a constitutional amendment that infringes on the states’ control over law and order.

 

 

The major institutional reform proposal that has been made most frequently over the years – for example by L.K. Advani in the 1970s, and more recently by the CPI – is to institute list-system proportional representation. Under this system voters, instead of voting for an individual candidate, vote for a party list. Providing the total percentage of voters for a party surpasses a minimum threshold (the 5% threshold used in Germany is generally regarded as ideal) candidates are then elected from a party’s list until the proportion of a party’s representatives matches their percentage of the vote. One benefit of this system is to reduce the disproportionality between seats and votes that is so characteristic of first past the post systems. This is obviously why the Jana Sangh was in favour of PR in the 1960s and 1970s, when it was on the losing side, and the BJP is against reform now, when it benefits from the system (Congress, for exactly the same reasons, may now be coming round to electoral reform).14

The second feature of PR, and this is more directly relevant to the question of criminalisation, is that, as L.K. Advani put it in 1974, ‘It would effectively check floor-crossing, which has been the bane of Indian political life.’15 List PR sharply increases the power of the party over individual members, because the party leaders decide who comes where on the list. Advocates of the system therefore see it as restoring a party’s capacity to discipline errant members. We may have lost titans such as Sardar Patel and Nehru, who by force of personality could discipline the corrupt, but the threat of losing a party ticket may still have a substantial disciplining effect.

The problem with List PR, however, leaving aside the issue of whether politicians elected under FPTP would vote to introduce it, is that by addressing the problem of extremely weak party discipline it threatens to create an even greater problem: increasing communal and caste tensions. List PR lowers the threshold of representation from a minimum of around 35% in each constituency under the present system to a statewide percentage of 5% (if India adopts the German threshold). In a society as diverse as India’s the likely result is that members of large caste blocs such as the Yadavs, the Dalits and the Brahmins, will no longer need to form alliances with other ethnic or religious groups prior to an election in order to be guaranteed a large bloc of seats in the assembly. By removing the incentive to compromise with other groups before elections, List PR encourages ethnic extremism.16

 

 

There is however another simpler measure that might be attractive to existing governments and also help the broader goal of cleaning up politics: stronger anti-defection laws. Established political parties have generally, for obvious reasons, wanted tighter restrictions on defections: the CPI for example argued in the 1960s and 1970s that ‘defection must terminate membership’ in the Lok Sabha or Vidhan Sabhas. An amendment to current electoral laws could be passed to insist that defection would instantaneously end membership in the Lok Sabha or Vidhan Sabhas.

 

 

The obvious objection to this is that party leaders are as much a problem as their party members, and that any plan that is premised on authoritarian, unrepresentative and often corrupt party leaderships taking action against their wayward party members is doomed to failure. This criticism carries a lot of weight, and would be compelling if party leaders were given the tool of anti-defection laws without having to sacrifice anything in return. But what if we insisted that the only parties that could invoke anti defection measures were those that were certified as being themselves internally democratic?

The CEC could, for example, monitor internal party elections (rather as the National Labour Relations Board does for union elections in the USA) for fairness, and insist that the provision on defection would apply only to parties that meet minimum standards on internal democracy, including open enrollment of members and regular elections. The same broad principle –parties receive reforms they want only in return for improving their own democratic practices and record on criminalization – might be extended to other issues such as state funding of elections. These measures, though admittedly small in scale, would at least give parties an incentive to cleanse their own institutions, something that has patently not been done in the existing system.

 

 

 

 

Footnotes:

1. ‘Discussion Document’, National Commission to Review the Working of the Constitution, September 2000, p. 17.

2. India Today, 31 October 1981.

3. The possibilities also exists that FIRs are lodged disproportionately against candidates likely to be successful, or against incumbents.

4. N.K.Singh, The Politics of Crime and Corruption: A Former CBI Officer Speaks, Harper Collins, 1999, pp. 56-57.

5. Speech on the 50th Anniversary of the Election Commission of India, Times of India, 18 January 2001.

6. Sir Harry Haig, confidential letter to Premier Pant, 3 November 1937. United Provinces Governors Reports 1937, India Office Records L/PJ/5/264.

7. Kerala Police Commission, cited in Report of the Punjab Police Commission 1961-62, p. 20.

8. David Potter, India’s Political Administrators: From ICS to IAS, Oxford University Press, Delhi, 1996, p. 155.

9. Times of India, 26 June 1973. For a general description, see Atul Kohli, Democracy and Discontent, Cambridge, 1990.

10. Second Report of the National Police Commission, Government of India, August 1979, pp. 20-35. The state in question was Madhya Pradesh.

11. Election Commission’s Letter No. 434/1/96, Dated 8 February 1996, addressed to the Chief Secretaries of all states and union territories. http: //www.eci.gov.in/Srch/ index_1999.htm

12. For data on the under funding and backlogs, see G.P. Joshi, ‘Cost of Criminal Justice System in India’, Police Research and Development, July-September 1990, pp. 1-15.

13. N. Vittal, Central Vigilance Commissioner, ‘Towards Effective Governance,’ Talk delivered on 16.6.2000 at IIC, New Delhi. http://cvc.nic.in/vscvc/cvcspeeches/jun2k2.html.

14. For the Jana Sangh’s views during this period, see L.K. Advani, Scheme for Electoral Reform: A Brief Outline, Bharatiya Jana Sangh Central Office, New Delhi, 1974.

15. Advani, op cit., p. 10.

16. For the best exploration of these problems, see Donald L. Horowitz, A Democratic South Africa? University of California Press, Berkeley, 1991, Chapter 5.

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