When Crime Pays

by Milan Vaishnav

  India is a young nation, in terms of both its population (it boasts a median age of 27 years old) and its status as an independent nation (less than seven decades old), but it is subject to exceptionally old laws. The most important piece of legislation governing India’s police force, for instance, is the Police Act of 1861, written by a British administrator nearly a century before independence.

  On paper, India’s commitment to the rule of law distinguishes it from many of its peers and neighbors, which have had a decidedly mixed record in this regard. According to 2015 data collected by the World Justice Project, India scores well on open government and democratic controls (table 7.1). In the category “constraints on government powers,” which evaluates checks on government power, India ranks thirty-eighth of the 102 countries surveyed around the world, is second among 6 in its region, and fifth out of 25 middle-income countries. On “open government,” India ranks thirty-seventh of 102 worldwide and does well compared to its peers.46 Yet the rule of law that exists on paper does not always exist in practice. As a nation, India has not fully come to grips with the vast gulf between the laws on its books and their often dysfunctional, partial, and corrupt application. On metrics related to procedural effectiveness, India fares poorly. In the categories of “absence of corruption” and “order and security,” India ranks sixty-eighth and ninetieth globally.47

  Table 7.1. India’s Ranking on Select Rule of Law Indicators

  “Rule of law” is a rather abstract concept; it is not a single entity but rather a spectrum of activities or a supply chain. The first link in the chain is the structure of the laws and statutes (not to mention the lawmakers who write them), since nearly everything else flows from what is codified in law. The next links involve the investigative arms of the state, followed by the prosecutorial agencies; the judiciary and penal system constitute the final components. Nearly every element of India’s rule of law supply chain is problematic—threatening not only the rule of law but a belief in the value of law itself.

  Laws

  For India the trouble begins with the first step of the chain: the archaic laws on the books, such as the colonial-era Police Act, many of which were written by India’s former imperial rulers. India, unlike many other democracies, does not employ sunset clauses that require the expiration of certain laws after a fixed period of time. To make matters worse, rather than pursuing a coherent and focused process of cleaning up the statutes on the books, politicians—urged on by a zealous civil society—have typically rushed to enact new laws without repealing existing ones.

  Because many laws at the central level have been poorly drafted—and are now riddled with ambiguities, amendments, clarifications, and exemptions—they have inevitably led to conflicting interpretations, spawning endless litigation. In 1998, a government commission reviewed existing laws and sought the repeal of more than 1,300 central laws out of the 2,500 it reviewed.48 There is an entire agency of the government—the Law Commission—whose mandate is to identify laws worthy of repeal. Still, the country has made very little progress in clearing out the cobwebs.49 The resulting legal thicket has created considerable confusion about what the law actually says, hampering effective enforcement and encouraging noncompliance.

  The only solution to this morass is to revise, repeal, and update old laws and to insist on greater precision in the drafting of replacement language. Despite the apparent enormity of the task, legislative consolidation and simplification is not as hard as it seems at first blush. A recent civil society collective dubbed the “100 Laws Project” identified 100 laws the government could scrap tomorrow if it could muster the effort. The laws targeted for outright repeal range from obsolete Partition-era legislation like the Imperial Library (Change of Name) Act of 1948 to vestiges of misplaced nationalism like the Swadeshi Cotton Mills Company Limited Act of 1986 to the downright oppressive Newspaper (Price and Page) Act of 1956.50 If civil society, working with the commission, can succeed in getting these 100 laws repealed, they could easily come up with another 100, and then some. In its first year in office, the Narendra Modi government did make some headway on this issue. Although Prime Minister Modi did not quite live up to his statement “if I end one law a day, I will be the happiest,” Parliament did pass two bills repealing 126 redundant laws. The elimination of hundreds of other obsolete laws awaits Parliamentary action.51

  Police and Prosecutors

  The next link in the chain—not counting India’s lawmakers, of course—is the police. In keeping with their anachronistic legal underpinnings, the primary objective of the police in India is maintaining law and order, not preventing crime, a holdover from the days before Independence when ensuring crowd control was vital for British authorities. Colonial-era laws, deep politicization, and an overcentralized hierarchy have severely burdened the police.52 With the passage of time, policing became a deeply political enterprise. One scholar writes that policing has been “transformed from the professional imposition of a coherent moral consensus to an intensely political activity.”53

  Over the years, several attempts have been made to reform India’s police; nearly all have failed.54 Caught in a vicious cycle of demoralization, low popular support, and scarce resources, the police remain understaffed and undertrained.55 This understaffing, of course, is further compounded by widespread vacancies. Although the government has occasionally raised the idea of enabling lateral entry into the police, both to enhance quality as well as quantity, entrenched interests have revolted, calling such an effort a move to “dilute the quality of the elite police.”56 In addition, India’s police lack many of the technological capabilities necessary to perform quality investigations. For instance, Delhi’s sole government-run forensics lab reported a backlog of nearly 10,000 cases in late 2013, resulting in three-year delays for forensics reports.57

  All of these factors, in turn, contribute to the low conviction rate that discredits both the police and the courts. Unfortunately, things do not get much better the higher up the food chain one goes. India’s premier investigative agency, the Central Bureau of Investigation (CBI), is widely perceived to be the handmaiden of the sitting government, to be unleashed or reined in on its whims (AAP leader Arvind Kejriwal was not off the mark in his assessment of the problem).58 In the words of former bureaucrat S. K. Das, the CBI has become an “instrument of control” used to protect public functionaries from embarrassing investigations or “to settle political scores.”59 Indeed, many CBI corruption investigations of leading politicians seem to ebb and flow in accordance with that individual’s relationship with the party in power in Delhi.60 The CBI’s lack of independence from the executive and its reliance on approvals from state governments to open investigations into their affairs seriously constrains its autonomy. Even when government interference is minimal, public prosecutors are still stymied by a lack of human and financial capital.61

  Those urging reforms of India’s police have not failed for lack of trying; numerous police commissions over the past several decades have articulated both the need for and underlying content of sweeping changes in the way India conducts policing. Nearly all experts agree that police reforms must include more autonomy as well as greater accountability, personnel, and material resources. Yet India’s political class has repeatedly balked at moving this agenda; the political impasse is fueled not only by politicians’ preferences for maintaining the status quo (which provides them with obvious benefits) but also the fact that law and order is under the purview of India’s states under the constitution, making the reform process infinitely more complex.

  But when leaders have mustered the political will to initiate reform, the payoffs can be significant, even from relatively low-cost tweaks. For instance, one police reform experiment in Rajasthan found that simple fixes such as freezing the transfers of officers and professional training had positive effects both on public satisfaction of police forces and the quality of actual police work. Though some experiments by the Rajasthan government di
d not succeed, the ones that worked could be instituted from the top down and would not require much local implementation.62 The judiciary has tried to circumvent politics by directing all states to set up technocratic bodies such as “police establishment boards” to determine transfers and promotions and “police complaint authorities” to resolve citizen disputes, but the court has failed to ensure adequate compliance.63

  Courts

  The courts in India suffer from a peculiar paradox. On one hand, in the face of a weakened executive and gridlocked legislature, the courts (particularly the Supreme Court) have attempted to fill a vacuum of authority and policymaking. Yet on the other hand, the institutional underpinnings of the judiciary are growing weaker over time.64

  Perhaps the single biggest affliction of the justice system is the snail’s pace at which it proceeds. As a recent government inquiry put it, “Denial of ‘timely justice’ amounts to denial of ‘justice’ itself.”65 Each year, the courts take on more cases than they are able to process—a function of personnel shortfalls as well as interminable judicial formalities. Underlying these weaknesses is a lack of financing. The courts are, unfortunately, caught in a chicken-and-egg scenario. The judiciary regularly appeals to politicians to provide them with more resources while politicians point to the inefficiencies in the justice system and demand that judges first get their own house in order. Yet without additional resources, reducing inefficiencies in the justice sector is a monumental task.

  But a shortage of qualified personnel is not the only constraint; timely justice is also stymied by the inordinate delays in the justice system.66 The ease with which parties to a legal dispute can receive a seemingly infinite number of adjournments means that those seeking to avoid justice have plentiful opportunities to throw sand into the gears of the justice system. There are few penalties, for instance, for a party’s failure to comply with judges’ timelines and directives. Furthermore, without a functioning electronic case-monitoring system, judges themselves face difficulties in tracking the status of ongoing cases.

  The shortfalls facing law enforcement and the judicial logjam ultimately mean those who have matters pending before the judiciary or are in prison awaiting trial are kept in limbo for longer periods of time. As of 2011, approximately 24 percent of court cases had been pending for at least five years; 9 percent had been pending for more than ten years.67 Data from 2013 show that while the number of convicts only grew by 1.4 percent over the previous year, the number of those “under trial” increased by more than 9 percent. All told, in 2013 there were 280,000 individuals awaiting the resolution of a trial before the courts—two-thirds of all those residing in Indian jails—and 3,000 of those had been languishing behind bars for at least five years or more.68

  Fortunately, the government has begun to articulate solutions to this blot on India’s democracy. For starters, the Supreme Court established a National Court Management System to assist in the tracking and monitoring of cases. This is a good first step, but it must proceed hand in hand with stiffer penalties for parties who defy predetermined deadlines. To staff the courts with judges who both are competent and have integrity, one solution worth pursuing, recommended by the Law Commission and endorsed by several advisory bodies, is to create an all-India judicial service (along the lines of the Indian Administrative Service or the Indian Police Service).69

  A common measure successive governments have pursued is setting up fast-track courts or special tribunals in order to alleviate the burden of the mainline judiciary. These courts are promising in theory but regularly struggle in practice—often because, sooner or later, they too succumb to the pathologies of the broader justice system.70 A case in point is the network of fast-track courts established in the wake of the 2012 Delhi gang rape. In response to widespread public outcry over the number of sexual assault cases languishing in the courts, the chief justice of India ordered the creation of fast-track courts to consider these cases on an expedited basis. Sadly, within one year, the disposal rate of some of these courts was even worse than the regular courts.71 Unless the broader impediments to obtaining speedy justice are directly addressed, workarounds are not likely to work all that well.

  Resizing the Indian state and reforming its rule of law apparatus is undoubtedly a long-term enterprise. There are several steps the government can adopt now to begin the process of reimagining India’s governance institutions, but the process of building up capacity and streamlining regulation requires a sustained investment over the course of many years, if not decades. While political leaders move forward on this front—and even if their progress is stymied along the way—there is a complementary agenda for the short run, which can ameliorate some of the proximate drivers of criminality in politics. Fortunately, there is no need to reinvent the wheel; over the years, there have been multiple electoral reform commissions that have helped generate a consensus around certain commonsense reform steps.72 These measures fall into four categories: political finance, political party reform, restrictions on candidate entry, and the management of ethnic tensions.

  POLITICAL FINANCE

  The political thinker Pratap Bhanu Mehta once wrote that the “reform and regulation of the ways in which elections are financed remains the single most difficult challenge for Indian democracy.”73 Any serious discussion of reducing the role criminals play in politics must, therefore, grapple with India’s political finance morass. If India can clean up its system of funding elections, it can possibly contain—if not totally eliminate—the allure of criminal politicians.

  Candidate Assets

  During the 2000s, reformers made considerable headway in improving the level of transparency about the backgrounds of candidates running for elected office. The affidavit disclosures candidates must now make regarding their criminal records and financial assets have, to some degree, made public details about the roles money and criminality—and the interaction between them—are playing in politics.

  Yet as enlightening as these affidavits are, the new disclosure regime does not go nearly far enough. For starters, there are serious concerns about the veracity of candidates’ financial declarations.74 Independent investigations conducted by the media have typically found that candidates routinely understate their true wealth. The data provide a useful ballpark estimate, but there is no independent check of any information that appears on candidate affidavits. Furthermore, the disclosures do not pick up “black money” or benami assets that are owned by the candidate but placed under the name of a family member or friend in order to evade detection. Instituting a system of random audits on even a small sample of candidates would bolster incentives for more truthful reporting. Without an audit capacity, it is nearly impossible to discern what constitutes “false” or “misleading” information (which is the standard that must be met for prosecution).

  Strictly speaking, candidates who file false information or conceal information can be subject to prosecution, resulting in imprisonment of up to six months if convicted. Unfortunately, this provision is rarely enforced in practice. To strengthen the ECI’s hand, Parliament should amend the Representation of the People Act to explicitly make false or misleading disclosures the basis for electoral disqualification.75 When it comes to disclosing the most basic information about their personal backgrounds, candidates found trying to game the system should face harsh penalties. As it is now, they receive merely a slap on the wrist.

  In addition, the ECI requires candidates to disclose their income tax details, yet more than 50 percent of parliamentary candidates in the 2014 elections failed to do so; this group includes 293 “high asset” candidates (accounting for 3.5 percent of the total candidate pool).76 The requirement that candidates disclose tax information allows for a natural collaboration between India’s election and tax authorities, both of which have a vested interest in cross checking the authenticity of candidate disclosures. At present, no system of corroboration exists between the two branches.

  Candidate Expenditurer />
  Just as candidates are required to file disclosures in advance of elections, they are similarly required to submit detailed statements of expenditure within thirty days of an election’s completion. Ostensibly the purpose of these statements is to assess whether candidates have remained within the strict election expenditure guidelines set out by the ECI. Politicians and political parties have regularly lambasted these requirements for being grotesquely low, a charge not without merit considering the elevated costs of campaigning. As one politician jokingly remarked, a candidate contesting state elections could easily surpass his or her spending limit simply by sending a one-rupee postcard to every voter in the constituency.77 In response to this recurring complaint, the ECI has thrice revised candidate expenditure ceilings since 2003 to bring these limits into greater alignment with reality.78 That candidates routinely report spending just over half what they are legally entitled to confirms the suspicion that candidates are vastly underreporting their election expenditures.79

  On campaign spending, the ECI has made strides in cracking down on illegal expenditures by introducing real-time expenditure tracking, which includes random audits by commission officials during the course of campaigning. Armed with shadow ledgers and videographers, expenditure observers working for election authorities have tried to ensure that what candidates report is actually what was spent on the ground. All of this activity will change reporting incentives only if there are strict penalties attached to filing false or misleading disclosures. By law, candidates who file false expenditure statements or who conceal information can face punishment of imprisonment for a term up to six months, a fine, or both. In practice, however, there is a great deal of legal ambiguity around the exercise of this punishment.