Me Lord, can’t you use your precious time and energy for something better?
That was my first response to the Supreme Court’s latest directions on how to deal with criminalisation of politics. A two-judge bench has directed the Election Commission to ensure that all political parties must widely publicise if some of their candidates have criminal cases. It has also ordered that all political parties must explain why they chose candidates with criminal records over those without any such taint.
That looks like a good idea to tighten the screws on criminals in politics. And that is how the media reported it. In this instance, no one can say that the court is wasting its time on a trivial subject. The petitioners are not frivolous. No one would turn up one’s nose at a bench comprising Justice R.F. Nariman and Justice Ravindra Bhat. And in any case, this was not a fresh judgment. The judges were responding to a contempt petition against non-enforcement of an earlier decision to this effect by the same court.
The trouble is that this order follows a classical fallacy of reasoning: “Here is a big problem, right? Something needs to be done about it, right? So, here’s something. We must do it, right?” The trouble with this reasoning is that we forget to ask if the “something” that is being offered matches the “something” that needed to be done in the first place.
This is how it plays out in judicial interventions on political reforms. Everyone agrees that criminals must not be allowed to play any role in democratic politics. So, it is not difficult to agree that some effective steps need to be taken in this direction. The real question we need to ask, but we don’t, is what exactly needs to be done?
In the absence of any level-headed thinking, we allow our sense of scandal to overwhelm us into supporting the first thing that comes to someone’s mind. This leads to many a leap of logic. One, we equate the role of criminals in politics with their role during elections. Two, we limit our attention to just the candidates and not all political workers. Three, we substitute the word ‘criminal’ for ‘candidates with criminal record’. Four, we assume that voters don’t know about the criminal records of the candidates and will vote against them if they get to know.
The last 17 years have shown how naive this reasoning is. Ever since the new disclosure norms came into being, thanks to a series of judgments by the Supreme Court, we know what their effects and limits are. Disclosure about educational records was pointless, rooted in the snobbish assumption that people would or should vote for candidates with higher degrees. Thank god, it did not happen. Disclosures about property proved very useful, not so much during election campaigns, but in tracking the fortunes of India’s political leaders. Disclosures about criminal records were also useful. But the idea that such disclosures would scandalise the voters proved the naivete of those seeking these reforms.
Disclosures and barring won’t help
The problem was that the registration of criminal cases did not mean much. More often than not, it simply meant that your political opponents were powerful enough to implicate you in cases. Political activists use these cases as badges of honour. No wonder the public was not scandalised. Even when the cases were true and the leader was seen to be involved with criminality, it was seen to be an extension of his or her fearlessness. Often such leaders provided informal security to their voters or assured some welfare provisions. Once it became apparent that affidavits did not deter the public from voting for criminal candidates, the focus of the reformers shifted to disqualification of the candidates. Now the reformers wanted debarring of all those candidates against whom charges have been framed. Thankfully, saner sense prevailed both among the government and the courts, and they rejected this idea, or else this could have been a perfect ploy in the hands of the ruling parties.
Now that these attempts have failed, we are back to stronger and yet stronger disclosures. I can tell you how the latest Supreme Court order will play out, since we did follow these rules in the Haryana assembly election in 2019. Three of the 27 candidates put up by Swaraj India had pending criminal cases. Two of them were charged under section 147, 149 and 253 of the IPC for organising protests and another faced charges under a business dispute. We had to display these on our website, which was easy. But we also had to advertise it in local and state-level newspapers. Of course, the newspapers saw a business opportunity here and enhanced their ad rates! Some offered a ‘combo deal’ of the legally mandated notice with favourable paid news. The end result was a big expenditure on a small organisation struggling for funds. I doubt if the Lordships intended this outcome.
Misuse of time and energy
Now, they want parties to offer reasons why they did not select a non-charged candidate, just as the selection committee for jobs is asked to write down explanations. I can already visualise creative explanations. All parties are going to claim that cases against their candidates are frivolous or motivated acts of political vendetta. Since the court has outlawed “winnability” as a valid ground, the candidate in question is going to be “popular’, “hard-working”, “sincere social worker” long-associated with “public service” and “enjoying great reputation”. I doubt if the Lordships wanted these contributions to English prose. But it is hard to imagine what else such an order can achieve.
Wouldn’t it be better if the Lordships focussed their energies on tackling the root causes – the inordinate delays and miscarriage of justice in our legal system? The best way to tackle criminalisation in politics is to improve our police and courts to ensure that criminals are caught, tried and punished swiftly. The existing law is enough to keep them out of politics. The other route is to make it embarrassing and costly for political parties to give a ticket to candidates with criminal taint. In the absence of either of these, there is pretty little any Supreme Court order can do about it. In a democracy, you cannot save the people from themselves.
The author is the national president of Swaraj India. Views are personal.