65. Government of India, Law Commission of India, Arrears and Backlog: Creating Additional Judicial (Wo)manpower, Report No. 245 (New Delhi: Law Commission of India, July 2014), http://lawcommissionofindia.nic.in/reports/Report245.pdf (accessed October 1, 2014).
66. Centre on Public Law and Jurisprudence, Justice without Delay: Recommendations for Legal and Institutional Reform (Sonipat: O. P. Jindal Global University, 2011). The report is available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1679350.
67. Between 2000 and 2010, the number of cases admitted to the Supreme Court doubled (24,747 to 48,677). In 2004, 7 percent of regular hearing matters had been pending for more than five years. In 2011, the corresponding figure stood at 17 percent. See Supreme Court of India, Court News 7, no. 2 (April–June 2012), http://supremecourtofindia.nic.in/courtnews/2012_issue_2.pdf (accessed January 3, 2015).
68. Rukmini S., “Two-thirds of Prison Inmates in India Are Undertrials,” Hindu, October 30, 2014.
69. National Commission to Review the Working of the Constitution, “All India Judicial Service,” Consultation Paper, January 8, 2001, http://lawmin.nic.in/ncrwc/finalreport/v2b1-15.htm (accessed March 21, 2012).
70. According to legal scholar Madhav Khosla: “The haphazard growth of tribunals has diverted attention from any serious reform of the high courts.” See Madhav Khosla, “The Problem,” Seminar 642 (February 2013), http://india-seminar.com/2013/642/642_the_problem.htm (accessed March 3, 2014).
71. Smriti Singh, “Fast-Track Courts Slow Down Justice,” Times of India, September 20, 2013.
72. The list of committees and commissions includes, inter alia, the Goswami Committee on Electoral Reforms (1990), the Vohra Committee (1993), the Indrajit Gupta Committee on State Funding of Elections (1998), the National Commission to Review the Working of the Constitution (2001), the Election Commission of India’s report on electoral reforms (2004), the Second Administrative Reforms Commission (2008), and multiple reports by the Law Commission of India.
73. Pratap Bhanu Mehta, “Citizenship and Accountability: The Case of India,” paper presented at the World Bank Conference on New Frontiers of Social Policy, Arusha, Tanzania, December 12–15, 2005, http://unpan1.un.org/intradoc/groups/public/documents/apcity/unpan034373.pdf (accessed May 6, 2014).
74. In contrast, there is much less concern over false reporting of criminal cases given that these are a matter of public record, whereas one’s financial holdings rely largely on private information sources.
75. Although the Supreme Court has clarified that incomplete affidavits provide a sufficient basis for disqualification, the ECI has appeared hesitant to enforce this regulation. Furthermore, even if it did, the penalties are quite light. Amending the Representation of the People Act to make this infraction the grounds for disqualification would raise the stakes. A report of the Law Commission has suggested exactly this remedy; see Government of India, Law Commission of India, Electoral Disqualifications, Report No. 244 (New Delhi: Law Commission of India, February 2014), http://lawcommissionofindia.nic.in/reports/report244.pdf (accessed April 22, 2016).
76. Association for Democratic Reforms, “Lok Sabha Elections 2014: Analysis of Criminal Background, Financial, Education, Gender and Other Details of Candidates,” May 9, 2014, adrindia.org/download/file/fid/3565 (accessed January 3, 2016).
77. The politician who made this remark was Jaya Jaitly, former president of the Samata Party. See PRS Legislative Research, “Summary of Proceedings from the Conference on Effective Legislators,” December 5, 2008, http://www.prsindia.org/uploads/media/conference/ConferenceSummaryFinancingElectionCampaigns.pdf (accessed January 12, 2013).
78. In 2003, the spending limit for the typical Lok Sabha constituency was raised to 2.5 million rupees (then $56,000), in February 2011 to 4 million rupees ($89,000), and in early 2014 to 7 million rupees ($115,000).
79. Association for Democratic Reforms, “Lok Sabha Elections 2014: Analysis of Election Expenditure Statements of MPs,” August 1, 2014, http://www.adrindia.org/research-and-report/election-watch/lok-sabha/2014/analysis-election-expenditure-statements-mps-2014 (accessed June 10, 2015).
80. “Dangerous for Democracy,” Hindu, March 21, 2013.
81. P. Sainath, “EC Can’t Disqualify Candidate over Poll Accounts, Paid News: Government,” Hindu, March 20, 2013.
82. “Ashok Chavan Gets EC Notice in ‘Paid News’ Case,” Press Trust of India, July 13, 2014, http://timesofindia.indiatimes.com/india/Ashok-Chavan-gets-EC-notice-in-paid-news-case/articleshow/38328274.cms (accessed July 14, 2014).
83. The Supreme Court of India has previously ruled that a failure to maintain accurate accounts is not tantamount to engaging in corruption. See Abhinav Garg, “HC Dismisses Ashok Chavan ‘Paid News’ Case,” Times of India, September 13, 2014.
84. One reform worth pursuing is to amend the Representation of the People Act to designate “paid news” an electoral offense and, therefore, make the practice grounds for electoral disqualification.
85. E. Sridharan and Milan Vaishnav, “India,” in Pippa Norris and Andrea Abel van Es, eds., Checkbook Elections? Political Finance in Comparative Perspective (Oxford: Oxford University Press, 2016).
86. Association for Democratic Reforms, “Submission of the Association for Democratic Reforms to the Special Investigation Team on Black Money,” December 12, 2014, http://adrindia.org/content/circulation-unaccounted-money-activities-related-electoral-process-adr-submits-memorandum (accessed June 1, 2015).
87. Some commentators have also questioned the notion that the remit for scrutinizing parties belongs to the CIC rather than to the ECI. See, for instance, Pratap Bhanu Mehta, “Party Fixing,” Indian Express, June 6, 2013.
88. “CIC Summons Six Parties for Non-Compliance of Directives,” Outlook, December 1, 2014.
89. Ruling of the Central Information Commission in the complaint filed by Subhash Chandra Agrawal, Jagdeep Chhokar, Anil Verma, and Shivani Kapoor, March 16, 2015, http://www.rti.india.gov.in/cic_decisions/CIC_CC_C_2015_000182_M_149924.pdf (accessed April 5, 2016).
90. “Parties under RTI: SC Sends Notice to Election Commission, Centre” Indian Express, July 8, 2015.
91. Election Commission of India, “Guidelines on Transparency and Accountability in Party Funds and Election Expenditure Matter,” August 29, 2014, http://eci.nic.in/eci_main1/PolPar/Transparency/Guidelines_29082014.pdf (accessed August 1, 2015).
92. The remaining sources pertain to income from known donors or from other known sources. See T. Ramachandran, “Most Funds of National Parties from ‘Unknown’ Sources,” Hindu, September 29, 2013.
93. An alternative proposal is to mandate disclosure of donors if their total contribution, even if broken up into many discrete donations, surpasses 20,000 rupees.
94. An analysis by the Association for Democratic Reforms of income tax returns submitted by India’s national parties between 2004–5 and 2012–13 found that the BSP declared receiving more than 3 billion rupees in voluntary contributions during this period. However, it allegedly did not collect any donations above 20,000 rupees during this eight-year period, eliminating the need to disclose the identities of individual contributors. See Association for Democratic Reforms, “Submission to the Special Investigation Team on Black Money.”
95. “I-T Exemptions on Donations Lead to Birth of New Parties: CEC,” Indian Express, January 16, 2011.
96. Association for Democratic Reforms, “Analysis of Pending Criminal Cases of Lok Sabha MPs from 2009,” March 11, 2014, http://adrindia.org/content/analysis-pending-criminal-cases-lok-sabha-mps-2009 (accessed May 5, 2014).
97. Ibid.
98. Association for Democratic Reforms, “Comparison of Pending Cases and Convictions Declared by Elected Representatives,” September 27, 2013, http://adrindia.org/content/comparison-pending-cases-and-convictions-declared-elected-representatives (accessed March 11, 2014).
99. Ibid.
100. The stipulation that charges must be framed by a judge i
s an important one because it suggests that a judicial agent has determined there is sufficient prima facie evidence for a trial. This is a more stringent threshold than the mere existence of charges. As the Law Commission of India notes: “When filing a charge-sheet, the Police is simply forwarding the material collected during investigation to a competence Court of law.” It implies no application of a judicial mind. See Law Commission of India, Electoral Disqualifications, 30.
101. Following the Supreme Court opinion, union law and justice minister Ravi Shankar Prasad requested that high courts monitor ongoing cases against any sitting MPs and MLAs of a serious nature and where charges have been framed. See “Monitor Cases against MPs, MLAs: Law Minister to CJs,” Hindu, September 6, 2014. The Supreme Court did not take a firm position on the issue of whether candidates could be restricted from contesting elections in the first place if they face serious charges, although it did say the proposal merits further consideration. See Public Interest Foundation and Others vs. Union of India and Others (2011) Writ Petition (Civil) No. 536.
102. In addition, any person who is convicted for a term of two years or more, irrespective of the law he or she was found guilty of violating, stands disqualified. See M.R. Madhavan, “Legislature: Composition, Qualifications, and Disqualifications,” in Sujit Choudhry, Madhav Khosla, and Pratap Bhanu Mehta, eds., Oxford Handbook of the Indian Constitution (New Delhi: Oxford University Press, 2016).
103. There are some interesting nuances buried within the Supreme Court ruling on convicted politicians that have yet to be fully understood. For instance, if an MP or MLA obtained a stay on his/her sentence, he/she would still face immediate disqualification. If, however, he/she obtained a stay on the conviction itself, disqualification would not pertain unless and until a higher court upheld that conviction. See Prianka Rao, “The Representation of the People (Second Amendment and Validation) Bill, 2013,” PRS Legislative Research Brief, December 9, 2013, http://www.prsindia.org/uploads/media/Representation/Brief-%20RoPA%202nd%20%28A%29%20Bill%202013.pdf (accessed April 1, 2016).
104. Association for Democratic Reforms, “Analysis of Criminal Cases Declared by the Newly-Elected Lok Sabha MPs in View of the Supreme Court Order Dated 10th of March, 2014,” June 20, 2014 (on file with author).
105. “Election Commission Lifts Ban on Amit Shah; No Relief for Azam Khan,” Economic Times, April 18, 2014.
106. Abhijit V. Banerjee, Donald Green, Jennifer Green, and Rohini Pande, “Can Voters be Primed to Choose Better Legislators? Experimental Evidence from Rural India,” unpublished paper, Department of Economics, Massachusetts Institute of Technology, October 2010, https://casi.sas.upenn.edu/sites/casi.sas.upenn.edu/files/iit/Can%20Voters%20be%20Primed.pdf (accessed April 20, 2016).
107. Raghuram Rajan, “Is There a Threat of Oligarchy in India?” speech to the Bombay Chamber of Commerce, September 10, 2008, http://faculty.chicagobooth.edu/raghuram.rajan/research/papers/is%20there%20a%20threat%20of%20oligarchy%20in%20india.pdf (accessed December 1, 2013).
CHAPTER 8. AN ENTRENCHED MARKETPLACE
1. “Modi Vows to Send Politicians with Criminal Background to Jail,” Times of India, April 15, 2014.
2. Ibid.
3. “Modi Pledges to Rid Parliament of Criminals,” Hindustan Times, April 21, 2014 (accessed April 22, 2014).
4. Ibid.
5. “Criminal-Free Parliament Top Priority, Says Modi,” Indian Express, April 22, 2014; “Narendra Modi Vows to Send Criminal Politicians behind Bars,” Economic Times, April 22, 2014.
6. Association for Democratic Reforms, “Lok Sabha Elections 2014: Analysis of Criminal Background, Financial, Education, Gender and Other Details of Candidates,” May 9, 2014, adrindia.org/download/file/fid/3565 (accessed January 3, 2016).
7. In 2009, the last time India held a national election, there was just one politician with a Twitter account (with roughly 6,000 followers). When Narendra Modi went on social media to declare victory in the 2014 general election, he tweeted his announcement to 4.3 million followers. See Raheel Khursheed, “India’s 2014 #TwitterElection,” Twitter India (blog), May 15, 2014, https://blog.twitter.com/2014/indias-2014-twitterelection (accessed July 15, 2015).
8. Association for Democratic Reforms, “Lok Sabha Elections 2014.”
9. “Will Ask SC to Expedite Cases on MPs with Criminal Charges: Modi,” Outlook, June 11, 2014.
10. Association for Democratic Reforms, “Lok Sabha 2014: Analysis of Criminal, Financial, and Other Background Details of Union Council of Ministers,” May 27, 2014, http://adrindia.org/research-and-report/election-watch/lok-sabha/2014/lok-sabha-2014-union-council-ministers-analysis-cr (accessed September 30, 2014).
11. P. R. Ramesh, “His Master’s Mind,” Open, April 11, 2014.
12. Aditi Phadnis, “Amit Shah, BJP’s Master Strategist,” Business Standard, August 2, 2013.
13. At the time of his 2012 reelection to the Gujarat assembly, Shah was named in two ongoing criminal cases according to the affidavit he filed with the Election Commission at the time of nomination. Following a Supreme Court order, these two cases—the encounter killing of extortionist Sohrabuddin Sheikh and his wife, Kauser Bi, and the alleged murder of the witness to the killing, Tulsiram Prajapati—were clubbed together. Although rumors swirled, Shah was never formally charged in a third case, known as the Ishrat Jahan case, which involved the encounter killing of four suspected terrorists. See Uday Mahrurkar, “CBI Chargesheet against Amit Shah a Blow to Narendra Modi,” India Today, September 5, 2012.
14. See, inter alia, Human Rights Watch, Broken System: Dysfunction, Abuse, and Impunity in the Indian Police (New York: Human Rights Watch, 2009), 7.
15. The court’s qualms were clearly not without some merit. In the run-up to the campaign, Shah became embroiled in a scandal that came to be known as “Snoopgate.” The scandal involved leaked audio recordings of top Gujarat officials allegedly discussing Shah’s authorization of the secret surveillance of a young woman connected to Modi. The identity of the woman and her connection to Modi were shady, to say the least, but the BJP government, far from denying the allegations, openly acknowledged using the state machinery to surreptitiously track the woman “at her father’s request.” The operation was said to have been directed and overseen by Shah himself. See Shantanu Bhattacharji, “All You Need to Know about Snoopgate,” Business Standard, November 27, 2013.
16. Poornima Joshi, “The Organiser,” Caravan, April 1, 2014.
17. Dean Nelson, “Fear and Loathing in India’s Muslim Heartland Could Decide General Election,” Telegraph (United Kingdom), April 5, 2014.
18. Gyan Varma, “Amit Shah Chargesheeted over Muzaffarnagar Election Speech,” Mint, September 11, 2014.
19. At a press conference announcing Shah’s appointment as BJP president, his predecessor Rajnath Singh declared: “There is no need to introduce Amit Shah. He has enormous imaginative abilities, is rich in organizational skills and has tremendous management abilities to ensure victories.” Andrew Macaskill and Kartikay Mehrotra, “Modi Aide Accused of Murders to Lead India Ruling Party,” Bloomberg Business, July 9, 2014.
20. “Ishrat Jahan Fake Encounter: CBI Gives Clean Chit to Amit Shah,” Press Trust of India, May 7, 2014, http://www.thehindu.com/news/national/other-states/ishrat-jahan-fake-encounter-cbi-gives-clean-chit-to-amit-shah/article5985667.ece (accessed November 16, 2015).
21. Rashmi Rajput, “Amit Shah Discharged, Court Finds No Evidence,” Hindu, December 30, 2014.
22. “Sohrabuddin Case: Why Didn’t CBI Approach Higher Court against Amit Shah, Asks Congress,” Press Trust of India, March 30, 2015, http://www.firstpost.com/politics/sohrabuddin-case-didnt-cbi-approach-higher-court-amit-shah-asks-congress-2180335.html (accessed July 30, 2015). A petition by the brother of one of the victims is still pending in the Mumbai High Court. “Rethink on Removing Plea against Amit Shah: HC to Rubabuddin,” Press Trust of India, October 20, 2015, http://www.business-standard.com/article/pti-stories/rethink-on-removing-plea-agains
t-amit-shah-hc-to-rubabuddin-115102001463_1.html (accessed November 16, 2015).
23. At the time of his election to the Lok Sabha, Baliyan faced one pending criminal case linked to the Muzaffarnagar riots. According to the affidavit he submitted to the Election Commission, Baliyan was accused of violating prohibitory orders, using criminal force against a public servant, and wrongful restraint.
24. Ellen Barry and Suhasini Raj, “Amid Modi’s Centrist Shift, an Aide with a Turbulent Past Rises,” New York Times, July 5, 2014; and Sreenivasan Jain, “Muzaffarnagar: The ‘Riot’ Men for the Job,” NDTV, April 3, 2014, http://www.ndtv.com/elections-news/muzaffarnagar-the-riot-men-for-the-job-556040 (accessed November 14, 2015).
25. “Muzaffarnagar Riots Accused Sanjeev Baliyan in Modi’s Cabinet,” Firstpost, May 27, 2014, http://www.firstpost.com/politics/muzaffarnagar-riots-accused-sanjeev-baliyan-in-modis-cabinet-1543867.html (accessed November 15, 2015); and “Sanjeev Baliyan: From Riot Accused to Central Minister,” Times of India, May 27, 2014.
26. Imran Ahmed Siddiqui, “Ex-Vet at Service of Farmers: How Riot-Tainted Baliyan Rose to Be Minister,” Telegraph (Calcutta), May 29, 2014.
27. Ashish Tripathi, “‘Stains’ Good for BJP, Blot for Rivals,” Times of India, November 9, 2013.
28. Reflecting on the political capital he accumulated as a Thakur strongman, Sharan Singh once told a reporter: “I used to touch the feet of Brahmins. Today, young Brahmin boys touch my feet calling me guru ji [teacher].” Supriya Sharma, “In Uttar Pradesh, Big Dons Aren’t Afraid to Cry in Public,” Scroll.in, April 14, 2014, http://scroll.in/article/661744/in-uttar-pradesh-big-dons-arent-afraid-to-cry-in-public (accessed July 8, 2014).
29. “Muscling His Way to Power,” Tehelka, October 2, 2004; S. Hussain Zaidi, “Power Shift in Gangster Land,” Open, April 18, 2014. When the journalist Supriya Sharma asked Sharan Singh directly if he was a strongman, the politician had this to say: Kissi gareeb ko kissi shareef ko maine tang nahi kiya. Aur jo atatai hai maine kabhi sangarsh se apna kadam peeche nahi hataya. (I have never troubled the poor and the decent. And I have never shied away from taking on those who oppress others.) See Sharma, “In Uttar Pradesh, Big Dons Aren’t Afraid.”
When Crime Pays Page 48