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Hello, and welcome to the Dutch podcast. I’m your host Leah, I work with Dutch a Bangalore based nonprofit working on judicial reforms and access to justice. In this episode, we have Milan Vaishnav, the host of one of my favorite podcast Grantham Asha, where he along with his guests break down the latest developments in Indian politics, economics, foreign policy, society and culture. Mila is a senior fellow and director of the South Asia program at the Carnegie Endowment for International Peace. His primary research focus is the political economy of India, and he examines issues such as corruption, governance, state capacity, distributive politics and electoral behavior. Milan is also the author of when crime pays money and muscle in Indian politics, which coincidentally is the subject of this episode. Most Indians are familiar with the phenomenon of politicians with criminal records and appear to have accepted their participation in the democratic process. In today’s episode, Miller will help us unpack this uneasy balance by exploring why political parties gift tickets to criminals, why people continue to vote for them, and whether this status quo is likely to change. I began by asking him what proportion of our electorate representatives have been charged or accused of crimes?
Sure, so the latest data we have, of course, comes from the 2019 general election, which was now a couple of years ago. What that data tells us is that 43% of members of parliament who are elected at that time faced ongoing criminal cases at the time of the election, I think it’s important to point out for your listeners that more than a quarter of them about 26% faced a so called serious case that if a conviction were obtained in that case, would mean they would be behind bars, the the last comprehensive numbers I saw at the state level show a pretty similar pattern, if you look at MLAs. So this is data from July 2021, shows about 40% of MLAs had at least one pending case and again about 26% were charged with serious violations of the law. So you could see whether the national level or the state level, the magnitude of the issue is is roughly the same across both tiers.
Is that any variation across parties? Well,
there is some variation across parties in the sense that you see quite a lot of criminality, particularly among national and state parties, slightly less among independents and so called unrecognized parties. But if you look at the parties that have consistently performed well say over the last three or four election cycles at the Lok Sabha level, across those parties, basically all of them have fielded candidates and have been fielded successful Members of Parliament who have criminal cases against them. So this is not simply a problem, say of the BJP, or the Congress or of regional parties or of the left. This is really a party that stretches across parties, irrespective of their stripes.
So can you just tell our listeners, what is the legal position when it comes to people who are convicted? Can they stand for elections.
So the representation of the people act, which was passed in 1950. And then there was another law passed in 1951, originally did allow convicted lawmakers to essentially postpone their disqualification as long as an appeal was outstanding. In 2013, the Supreme Court actually struck this clause down in a really important judgment, which has now come to be known as the Lilly Thomas judgment, basically said that once a conviction is obtained, unless there’s a stay on that specific conviction, that they would have to give up their seats.
Well, what about the right to vote? Can convicted people both
Well, so what the representation of people act says is that a lawfully imprisoned person, whether that person is in prison, whether they’re under a sentence of imprisonment in lawful custody, the police, they cannot vote, there was a 2013 amendment that says, even if they’re barred from voting, that doesn’t necessarily mean that they’re no longer an elector whose name is on the electoral rolls. And that’s important because that means that candidates who are in jail can still contest office, even though they may not be able to vote, because they’re still technically electors. And so that’s a loophole that many people have asked to be fixed.
Oh, that’s quite interesting. I didn’t know that. Yeah. So your research looks at criminalization of politics over time. So if you could just tell us how has the proportion of elected representatives who are accused of crimes increased or decreased over time? And what do you think are the contributing factors to that trend?
Yeah, this is a really interesting question. Right. So the data that we’ve been citing so far comes from judicial affidavits that candidates to state and national office have to submit at the time of their nomination. So they’re self disclosures, and they started at the end of 2003. So that means the first general election for which we have data was the 2004 parliamentary elections. And those elections 24% of triumphant MPs declared a criminal case, and about 12% declared a serious case. With each successive national election, those numbers have steadily risen. And like I said before, the state numbers have largely moved in parallel. What’s significant about that, I think, three things. One is at a time when information about candidates backgrounds is more readily available than ever, we still see that the number or the share of accused lawmakers has grown. Number two, is that a significant chunk of all those who are named in a criminal cases, these involve serious cases so that you know, if you strip away things that could be plausibly related to a politician’s vocation, libel, slander, unlawful assembly, even put rioting in that context, who’s you know, rioting can have a very broad definition strip those away. And what you’re left with are things like murder, attempted murder, causing grievous injury, crimes against women. I mean, these are serious cases, again, they would merit jail time. And that accounts for a significant portion of the overall number. You know, one quarter, like I said, today is involved in a serious case. But I think they have to do with the fact that time and time again, candidates with criminal backgrounds have proven themselves to be extremely competitive candidates, and from the point of view of the voters, extremely responsive representatives. And I think that points to deficiencies, both in terms of the nature of the state and how it works, as well as in the nature of kind of, you know, parties and representation, the link between voters and the people who govern.
So at docs, my colleagues and I, we’ve done some analysis on cases against MPs and MLAs in certain states. And what we found in some states is there is a spike before the elections. So just wanted to know from you, how many cases do you think are politically?
I mean, I wish I had the answers that I mean, I think all I can say is I think we all can think of instances where there are politically motivated cases brought as a way to coerce or put a particular party or candidate into a corner. Right. So undoubtedly, some portion of these cases are indeed politically motivated. What I would say, though, is that I think there’s sometimes a tendency for politicians in particular, to say, well, you know, oh, these aren’t real cases, right. I mean, these are just accusations. I think what I would say in response to that is number one, in many parts of the country, the criminal reputations of the candidates themselves are very well known, right? This it’s not just sort of hearsay, people can kind of, quote chapter and verse about politicians biodata, as it were. The second is that, you know, many of these politicians who stand accused, actually, were there, criminality as a badge of honor, right, because they believe that it has some kind of salience with the voter. And the third thing is, if you look across states, when you head into election, if this were all politically motivated, you would imagine that ruling parties or members of a ruling coalition would have no cases against their lawmakers, because they would just get them dismissed. In fact, it’s it’s not the case. Right? So just to give you an example, one of the places where I did research on this isn’t the state of Bihar, which has amongst the highest levels of political criminality. And in 2010, when you had a government formed by the BJP and its ally, the Jgu. We did not see for instance, the cases from those parties lawmakers disappear in fact they had higher number of cases in percentage terms in the opposition RJD or Congress? Right. So I, it’s it’s a question that’s hard to answer with any precision. But I think we should be careful not to throw the baby out with the bathwater.
Can you tell us a little bit about the conviction rate in cases against Indian politicians?
Oh, so I have not collected this data. But ADR has collected this data on convictions and the conviction rate is very, very, very low. I mean, I think the statistic I saw was it was like, 1% or less. So most of these cases, I think, do not ever reach that that stage.
So what does that tell us about their guilt or innocence?
Yeah, but I think they don’t always go to the final conclusion, not only, you know, arguably, because he’s or maybe there’s no there there. But also, because, you know, again, drawing on the some of the politicians that I witnessed up close and personal on the campaign trail, you know, the constraints under which the police and prosecutors are working are pretty severe. Right. And so, evidence that was collected in a case has gone missing, there’s a witness who develops called V, the judge who had been framed the charges has died or retired. I mean, there’s other all of these procedural elements, essentially, that allow them to exist for very long time in this kind of legal gray zone, right? Where, yes, according to the letter of the law, they’ve not been convicted of doing anything wrong. But it’s not just that a conviction hasn’t come that a conviction will will never is will never come because it can’t come. Right. So I think that’s, that’s, that’s, that’s one of the biggest puzzles.
So let’s move to the topic of campaign finance, which is, of course, a hotly debated subject in various countries. So in the Indian context, Milan, do you think that restrictions on electoral funding have contributed to the increased dependence on criminal elements in elections?
Well, I don’t know if I’d use the word restrictions. I think what I would say is that the framework for electoral funding have undoubtedly contributed to the criminalization of politics. You know, if you go back to the early days of the Republic in the 1950s, for instance, at that point in time, parties were largely relying on their membership to fund their organizational needs. Of course, there was some limited amount of corporate giving, but it was relatively small, and it was largely dominated by by the Congress Party. Over time, the costs began to rise. And that led to a diversification and strategies for political parties to try to raise more money from corporates, more money from individuals, more money from candidates themselves. I think a big inflection point was in 1969, when then Prime Minister Indira Gandhi decided to ban corporate funding for political parties. And what that did was effectively send all political funding underground. So she did not ban it, and then replace it with a workable system of public funding, which is what a lot of, say Western European countries have done. So instead, the money essentially became transmitted and transacted in the black. And so that then placed a premium on those who could accumulate black money, and who could move it with relative ease, right. And so people who then had associations are ties with the world of crime, and corruption, all of a sudden became incredibly powerful people, and could translate that clout into political clout. Now, I don’t mean to suggest that that was the only thing going on that led to the rise of criminality, you saw a weakening of governance, you saw, obviously, the rise of identity politics, you have the weakening of the Congress, or many things going on. But I think this is a crucial part of the story that often gets overlooked.
Do you think the introduction of electoral bonds will improve the situation?
To be honest, I do not. I mean, let’s remember what an electoral bond is, right? Electoral bond is essentially a political funding instrument that allows an individual corporate entity or association to donate an unlimited sum of money to a political party, with neither the donor nor the recipient having to disclose details of that transaction. Right. So what does that mean? It means that essentially, the opacity that’s inherent in India’s electoral financing system has now been given legitimation by the state. Okay, and so whatever modicum of transparency we once had, which wasn’t very much, essentially, there’s no incentive to even engage in that space anymore. This has a couple of knock on effects. Number one is it does give a lot of power to political parties because this is funding that’s going directly to political parties. We’ve seen that one political party above all, the ruling BJP has benefited much more than all the others. But it also I think, takes the pressure of government to actually make significant steps on a campaign finance reform, because in the eyes of many people in the broader public, the Modi government’s already done that they’ve ticked that box, I would argue that it’s not a reform towards transparency, actually, it’s quite regressive. But I think it sets this fight back several decades, because we’re now in a place, arguably where yes, it’s true, as the government says money is going through the official banking system. But that’s never been our definition of aboveboard money. And furthermore, the fact that neither you nor I nor the media, nor any vote or civil society group would be able to connect the dots between a donor and recipient I think is a big shortcoming.
Yeah, that’s true. The obesity really sets back that reform. So coming to the actual election process. Now, you know, why do political parties select candidates who have criminal pasts?
Yeah, so I think money has a big part to do with it, right? I mean, we’ve seen over the decades, the cost of elections skyrocket, and they’ve skyrocketed for numerous reasons. One is just population growth, right? If you look at the number of constituents that an average member of parliament has to represent has to service right, that number has exploded over time. At number two, we know that elections have become much more competitive, right? I mean, in the first general elections, after independence, we had about 50 political parties, most of whom were pretty minor contests, national elections, now we have, you know, upwards of 600, right. And so the competitive space has grown. And number three, I think, many voters who are on the receiving end of all of this money have gotten quite used to parties throwing around, you know, money on the campaign trail, and that has become kind of baked into their expectations. At the same time, political parties have not dedicated themselves to the hard work of building sturdy, lasting robust party organizations in between elections. And that kind of institutionalization is really important to fund what political parties do. And so at the end of the day, these two things come together. And the upshot is that, you know, parties are really looking for rents, they’re looking for ways to accumulate money without having to actually put very much into it. And so they are sort of thrust into the embrace of self financing candidates. And self-financing candidates do the obvious, they pay for their own campaigns, but they might also pay the party for the privilege of running to getting a party ticket, they may subsidize candidates on the party label, who don’t have resources, they may have be willing to contribute or look the other way when the party is engaging in various rent seeking activities. So if you think about the pool of candidates who are self financing, and my argument has been one important component of that is criminal candidates who have access to liquid forms of finance and organizational platforms that help them leverage that money into organized politics.
So just to give some background on this process, you know, how do political parties actually select candidates in India? I mean, we don’t have a system of primaries like we have in the US. So how does the process actually work?
I mean, I think, almost, without exception, this is a very top down a lead driven affair, where you have a party leader, or a coterie of leaders often joined together by the bonds of family, right, who are running political parties as sort of their personal fiefdom. Right, very few political parties have really invested in second and third tier sort of leadership. You know, in no political party is sort of the the the compelling nature of your ideas, the sort of path to upward mobility, right. And so what that means is that party leaders have a relatively free hand. And obviously, their relevance is premised on contesting and winning elections. Right. And so after you account for dynastic candidates, business people, industrialists, celebrities and criminals, there’s very little room left for the proverbial Ahmad me right or common man. And so I think that kind of oligarchic nature of political parties is really important to understanding why this persists, right? There is very little internal party democracy, you know, across political parties, and even some political parties like the BJP, or to the left parties, which had prided themselves or the Aam Aadmi Party for that matter, have very little left have that kind of reputation.
Yeah. So we now understand why political parties are choosing these kinds of candidates, but looking at it from the citizens perspective, why do voters vote for these people, you know, not just vote for them, but like, come out on the streets to protest when they are arrested? You know, what is the reason for this kind of support for criminal candidates?
Yeah, I mean, I think this in some ways is the most vexing question, right? Because I think there is a prevailing assumption in many societies that voters elect criminal or corrupt lawmakers, because they don’t know any better, that they simply don’t have access to the kinds of information that allow them to determine who was a quote, unquote, good candidate versus a quote unquote, bad candidate, right. And so because of that information asymmetry, you get a lot of bad people. And I don’t find that to be the case in India. Going back to what I said earlier, I think the reputations of most politicians dwell on even among people who, who may not be fully literate, who may not have access to regular internet, or newspapers or media or what have you. And so I think there are two kinds of factors going on here. They’re at play right? In societies where the rule of law is weak. And the state is not seen as a an effective or impartial provider of basic sovereign sort of goods and services, the things we associate states with doing, when that exists. And you also have sort of the heavy salience of social divisions, like caste or religion that allow groups to essentially be identified, targeted and mobilized. And separated. Candidates who have criminal reputations can use their criminality, as a kind of sign of credibility to get things done, right. Because, again, the state is not working as it should. And so voters are looking for someone who essentially is willing to do whatever it takes by hook or crook to get them benefits to get the state to be responsive to them to help them in their time of need. And the reason that I think ethnic or identity differences are so important is that it’s very hard in a fragmented society like India, to do this for the constituency at large, right? So you’re really emphasizing the fact that you are the person who can deliver for your core group, and maybe some allied groups, right. And so I think the social divisions and weak rule of law are really the two things that come together. And you know, what that means is that this is not just a story about informing voters about who their candidates and representatives are right? If that were the case, we could think of a media campaign or some kind of civic action to kind of update their views, right. But this at the at the root of it, I think, is a governance issue. And criminal politicians are able to kind of position themselves as Robin Hood’s right, not necessarily who are taking from the rich to give to the poor, but who are using their own position and connection to the state to deliver for their particular community at the expense of others.
Yeah, I take or double click on one particular aspect of your answer, which is the weak rule of law institutions. So at dark, we are particularly interested in how the weak rule of law increases the power and influence of such criminal elements. We also did a video series called Jana on non formal dispute resolution institutions, you know, so we found that judiciary delay is not just a problem of the judiciary, it has now become a social problem. And, you know, the market for dispute resolution has moved on, people are now relying on Godman on cops on slum lords, for dispute resolution. So can you talk a little bit more about this aspect? You know, how these criminal politicians also provide dispute resolution services and how that increases their clout in the community?
Yeah, I mean, I think it’s a great question. And I’m glad that Dakota is doing this work, because I do think it’s important. And as you say, we tend to pigeonhole these things as judicial issues, but really, they’re not just social issues, also economic issues in many ways. Right. So going back to what I said before, in weak rule of law settings, ordinary citizens don’t have faith that the official mechanisms for resolving social disputes are going to operate in the way that they should and the inability of the year, you could say sometimes the unwillingness of the state to adjudicate disputes in a way that is transparent, that is objective that is timely, essentially creates the space for a strong man who can use his position and again, his reputation to essentially substitute for the state right now, I think you would find very little disagreement with the idea that those methods of informal justice are likely to be very poor substitutes for a criminal justice or a justice system that performs as it should, right. However, for the ordinary person, even an imperfect settlement regime that offers some kind of certainty, and predictability may be preferable to a system where a formal resolution simply will never come. Right. And even if it does come, the state won’t be able to enforce it. Right. So. So I think the failure of the state to provide adequate justice and channels for adjudicating disputes has been one of the most important factors driving the proliferation of criminal organizations, and you don’t have to take my word for it. But if you look at the comparative research on countries like Italy, on Japan, Russia, you will see a very similar kind of scenario at play in those countries.
Yeah, very true. And I feel like in the Indian context, we don’t see a lot of research or awareness about this aspect, you know, of judicial delays, that judicial delays not just affect the, like the the judiciary, but you know, it reduces the credibility of the institution, and people just move on, people find other ways to solve their problems. So I’m the current mix of cases against politicians, you’re also includes some genuine cases and some politically motivated cases, how do you think the justice system can actually filter these two categories and filter out the politically motivated cases and provide quick and effective justice in the genuine cases?
I wish I had a satisfactory answer to this, you know, but I think there has been a sort of template laid down by the Law Commission, the Election Commission has also endorsed it, many civil society leaders have also come behind it, which is basically to say that candidates against whom charges have been framed by a court of law should be disqualified from contesting elections. So not merely candidates who have some kind of FLIR or police report, but have advanced their cases have advanced to a stage where a judge has applied his or her mind and decided, prima facie there’s enough evidence of wrongdoing that a trial should commence. The pushback that this proposal has always gotten is are you essentially enacting kind of collective punishment? Right. And after all, you know, these are still accusations, they are not convictions. And so the commission had suggested a number of safeguards, right, you only move to disqualify when, again, these are serious cases at stake, that would merit a jail sentence of, say, five years, right? And should only apply in cases where the charges were framed at least a year before elections. Right. And that would help to deal with your research finding, I’m seeing the spike, you know, right before elections. And obviously, one of the things that commission has suggested, and this is I think, where the rubber meets the road is that, you know, the trials that involve sitting MPs and MLAs should be expedited, so that they conclude within a one year period. Right. And I think we’ve seen that the Fast Track courts on this issue, and other issues have had a very checkered history. Right. And I think there’s also a question of, you know, if you fast track something, does that mean you’re slow tracking other things, right? Because you have the same amount of resources, right? So I don’t pretend to have a perfect solution. I think this proposal is worth debating, I would just raise one vexing question about it, which is, you know, India is a country, like most democracies, where there is the presumption of being innocent until proven guilty. And there is a danger perhaps, in trying if you believe that lawmakers who are Law Breakers is a blight or blemish on the rule of law. I understand why you might want to prioritize taking action against them. But undermining someone’s presumption of innocence in a way is also a potentially undermining the rule of law. Right. So these are these are very weighty and difficult trade offs, but I think that’s probably the best sort of solution that I’ve that I’ve come to, you know, with, unless and until there are fundamental changes to the criminal justice system.
Yeah. I mean, we’ve painted a pretty gloomy picture of, you know, the scenario of criminalization of politics. I mean, do you be any reason for hope?