[op-ed snap] The Supreme Court can’t stop criminal politicians

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Mains Paper 2: Polity | Salient features of the Representation of People’s Act

From UPSC perspective, the following things are important:

Prelims level: Section 124A, 499 & 500 of IPC

Mains level: Public Interest Foundation & Ors. versus Union of India judgment and its ramifications on decriminalisation of politics in India


Context

SC verdict on decriminalisation of politics

  1. There is a tangled relationship between political effectiveness and criminal strength in Indian politics
  2. The Supreme Court (SC) was never going to be able to untangle this knot
  3. In its Public Interest Foundation & Ors. versus Union of India & Anr. judgement SC has wisely recognized this
  4. Any judicial attempt to broaden the criteria for membership of Parliament beyond the constitutional provisions laid out from Article 102(1)(a) to 102(1)(d) would have been disastrous on multiple fronts

Reasoning behind the judgment

  1. There are numerous Indian laws that have no place in a modern republic
  2. These range from Section 124A of the Indian Penal Code (IPC) criminalizing sedition to Sections 499 and 500 recognizing criminal defamation
  3. The Indian state—no matter the party in power—has used and abused these laws with abandon
  4. It should not be handed the tools to lock inconvenient individuals out of the political process
  5. This is what disqualifying citizens from contesting elections at any stage of a criminal process prior to conviction would amount to

Directives by SC

  1. The SC has limited itself to mandating that all candidates contesting an election publicise any criminal cases pending against them to the party and to the public at large
  2. The court assumes that the problem is one of an information gap for voters

Is the SC mandate enough?

  1. The SC had mandated disclosure of criminals’ antecedents in 2003
  2. Despite this increase in public awareness, the proportion of members of Parliament facing criminal charges and criminal charges of a serious nature, respectively, grew from 24% and 12% in 2004 to 30% and 15% in 2009 and 34% and 21% in 2014
  3. Indeed, a candidate facing a criminal case was thrice as likely to win in these elections as one without

Reasons for the criminalisation of politics

  1. At the heart of politics is the rational principal-agent relationship
  2. The public agent—the political candidate is not a perfect agent, immune to his own interests and those of the lobbies of several private agents who can put pressure on him
  3. The principal— the voting public has its own rational interests
  4. The trick is building institutions that hold out the promise of the right payoffs within the law
  5.  In India, the wrong rules and institutions, along with historical happenstance, have ensured that the rational quest for payoffs leads politicians and voters outside the law

Changes that led to illegal money in politics

  1. When Indira Gandhi banned corporate campaign financing in 1969, she simultaneously destroyed her party’s local power centres in an attempt to centralize authority
  2. This ensured that the Congress lacked the ability to raise sufficient funds and had to rely more heavily on illegal money
  3. . The subsequent warping of Lohiaite politics, paired with state institutions that lacked the capacity to deliver public goods and services, meant that it was in voters’ interests to vote along caste lines for in-group strongmen who could deliver public goods and services to them—and resources to political parties

Way Forward

  1. Political parties will rarely introduce governance reforms when the payoffs are bigger for not doing so
  2. But sustaining economic growth is difficult without improving state capabilities and capacities
  3. Developed economies with lower levels of corruption have undergone the process of cleansing at various historical junctures
  4. This was not a result of a change in people, but mainly because the rules which were implemented that created a specific pay-off system
Electoral Reforms In India
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