When Crime Pays

by Milan Vaishnav

  It bears repeating that the role of status concerns cannot necessarily be reduced to patronage, although the two may be linked. In social settings where there is a great deal of churning taking place and in which it is an open question which group is “on top,” respect and dignity can often represent key objectives for voters. These benefits have material manifestations, to be sure, but they also have psychic or expressive ones.

  Context Matters

  A final implication is that the marketplace for criminality in politics is context-specific, often driven by factors that are highly variable across constituencies. Even in India, no one can legitimately argue that every politician at every level is potentially a criminal. There can be a temptation to paint a monolithic picture of politics in India and the role criminality plays in it. Without writing off the substantial proportion of those who do face cases, it is useful to recall that two-thirds of MPs face no cases of any kind. Within India, as is the case in all democracies, the electoral market often responds to highly contextualized supply and demand factors, which can vary substantially within a single country—especially one as vast and diverse as India.

  Therefore, the criminalization of politics clearly does not apply equally to India’s political class as a whole. For instance, as discussed in Chapter 6, electoral design can influence the selection of politicians in often unintended ways. Ethnic quotas and indirect elections are two examples of how electoral rules can dampen the incentives for ethnic mobilization, inadvertently shifting the political calculus for criminal politicians—even though the imposition of these legislative rules was driven by altogether unrelated considerations. In this regard, the book’s findings build on, and add to, the notion that the salience of ethnic divisions in society is not static but can vary over time and space. When all is said and done, ethnic identities are socially constructed.

  PARTING THOUGHTS

  The scholar Francis Fukuyama has argued that a political system that is able to effectively balance an effective state apparatus, adherence to the rule of law, and a foundation of democratic accountability “is both a practical and moral necessity for all societies.”101 These three components are the building blocks of modern liberal democracy, yet they are often in tension with one another and do not always advance at the same pace.

  On the plus side, India has sustained a nearly uninterrupted commitment to democratic governance for nearly seven decades. Given the odds the fledgling democracy faced at the time of independence, its survival is no minor accomplishment. In terms of longevity, it is one no other developing country can boast, a distinction made even more admirable when India’s low level of per capita income is taken into account.

  India’s constitution, a document “powerful in its vision and intricate in its formulation,” provides a modern framework that empowers a sovereign government to carry out its responsibilities but also places constraints on its authority.102 It enumerates both a detailed set of fundamental rights belonging to the citizens of India and a set of constitutional goals, known as the Directive Principles, which must guide the state’s enforcement of its writ.

  Alas, Indian’s central weakness has been the quality of its state. The mixed capacity of the state to fulfill its most basic functions has meant that the rule of law which exists in practice is at odds with what its constitution aspires to establish. Democratic accountability has survived largely intact but its form has been disfigured by a high degree of administrative ineffectiveness.

  India is not alone in experiencing this mismatch; it is a quandary for an increasing number of states. Notwithstanding recent setbacks in many difficult regions of the world, democracy has flourished around the globe over the last quarter century. However, as the ranks of the world’s democracies have swelled, their ability to deliver what is expected of them has faltered. Institutional erosion, or in some cases the absence of institutions altogether, has become all too common an affliction. The dalliance between crime and politics is a symptom of this larger malaise. To address it, we first have to ask why it persists. This book, it is hoped, represents a modest effort to provide some initial answers.

  Appendix A: Details of the Affidavit Dataset

  ELECTIONS IN THE DATABASE

  ONE OF THE primary underlying sources of data for this book is a database of affidavits for nearly all candidates who stood for state and national election in India between 2003 and 2009 (a full list of state elections can be found in table A-1). This database includes details on 46,739 candidates who contested 35 state assembly elections and 13,492 candidates who contested two national elections in 2004 and 2009.1 I also collected limited information on 8,205 candidates who contested the 2014 national election.

  CONSTRUCTING THE AFFIDAVIT DATABASE

  A ruling of the Supreme Court of India made the public disclosure of candidate affidavits mandatory beginning in 2003. Unfortunately, “publicly available” is not the same thing as “suitable for research.” At the time they present their nomination papers, candidates submit sworn judicial affidavits to the ECI in written form, and the ECI in turn posts scanned copies (or images) of these affidavits on its website (figure A-1). Anyone who has tried to jot down information from just a handful of PDFs or images, let alone thousands, can attest that compiling this information is an onerous task.

  Table A-1. State Elections in Affidavit Database

  State

  Election years

  Andhra Pradesh

  2004, 2009

  Arunachal Pradesh

  2004

  Bihar

  2005 (November)

  Chhattisgarh

  2003, 2008

  Delhi

  2003, 2008

  Goa

  2007

  Gujarat

  2007

  Haryana

  2005

  Himachal Pradesh

  2007

  Jharkhand

  2005

  Karnataka

  2004, 2008

  Kerala

  2006

  Madhya Pradesh

  2003, 2008

  Maharashtra

  2004

  Manipur

  2007

  Meghalaya

  2008

  Mizoram

  2003, 2008

  Nagaland

  2008

  Odisha

  2004, 2009

  Puducherry

  2006

  Punjab

  2007

  Rajasthan

  2008

  Sikkim

  2004

  Tamil Nadu

  2006

  Tripura

  2008

  Uttar Pradesh

  2007

  Uttarakhand

  2007

  West Bengal

  2006

  Note: A few state elections held between 2003 and 2009 are excluded from this dataset due to information that is missing either from the ECI or the Empowering India database. The missing state elections are: Assam, 2006; Bihar, February 2005; Jammu and Kashmir, 2008; and Rajasthan, 2003.

  Figure A-1. Example of original candidate affidavit. (Image from Election Commission of India website)

  Unfortunately, the ECI does not compile these data in a format that is suitable for systematic analysis, but several India-based civil society organizations have undertaken the task of collecting these affidavits, digitizing and translating them, and placing them online in a standardized format. But because these repositories (such as http://myneta.info or http://empoweringindia.org) hold information about each candidate on a separate webpage, by 2009, information for more than 60,000 candidates was kept on more than 60,000 discrete web pages. Working with a computer scientist, I automated this data collection so that each candidate became a row in a large spreadsheet, with columns of detailed information about his or her personal background. The underlying raw data used were sourced from the Liberty Institute’s “Empowering India” initiative (see figure A-2 for a digitized affidavit). The too
l succeeded in created a tabular dataset for analysis, but it produced a fair amount of missing or unreadable data. For instance, information on the specific criminal charges candidates faced was missing from the Empowering India database for several elections. Wherever possible, I filled in missing data by consulting the candidate’s original affidavit on the ECI website.

  Figure A-2. Example of digitized affidavit. (Image from Liberty Institute “Empowering India” initiative, www.empoweringindia.org)

  This solved a major challenge—I now had (nearly) comprehensive data on candidates’ criminal and financial behavior—but led to a second impediment: the data on how these candidates actually fared in the elections resided elsewhere in cyberspace, quite apart from the affidavit information. To complicate matters, candidates’ names were often spelled differently in the two places: I could be “Milan Vaishnav” on my affidavit but “Milan V.” or “Vaishnav Milan” on the official election return. This required an algorithm to match names, but each supposed “match” eventually had to be validated by hand.2 Many months of work went into compiling, cleaning, and troubleshooting the affidavit data and then carefully matching these data with official returns from the Election Commission. In some cases, I discovered data entry errors in the affidavit dataset. In these instances, I relied on the ECI data as the correct data—updating the affidavit data accordingly.

  Using a similar automated data collection technique, I supplemented this core dataset with affidavit data on Rajya Sabha MPs and candidates contesting the 2014 national election. For data on Rajya Sabha MPs, I relied on the online database organized by ADR and made available at http://www.myneta.info. The data on Rajya Sabha MPs include information only on 226 candidates who won election (as of 2010) rather than for the broader pool of candidates and winners. Finally, I collected limited information from ADR on candidates contesting the 2014 national election.

  CONCERNS ABOUT THE AFFIDAVIT DATABASE

  The candidate affidavit disclosures are not without their shortcomings. Crucially, the information is self-reported, which means that the accuracy of financial affidavits may be questionable. In addition, the data on criminality refer to ongoing cases rather than convictions; due to the vagaries of India’s justice system, it can take decades for an ongoing case to produce a conviction, if at all.

  Criminal Records

  There are potentially two concerns with candidates’ self-reported criminal records: false reporting and frivolous or politically motivated charges. Given the fact that criminal proceedings are a matter of public record (not to mention the fact that interested third parties might have an incentive to serve as whistleblowers), the former is not a serious concern.3

  The issue of frivolous or politically motivated charges is more challenging. Under law, a candidate is precluded from standing for election only if convicted of a crime, not if merely charged with one. Before a 2014 Supreme Court ruling, convictions were not necessarily disqualifying as long as sitting politicians had not exhausted all possibilities of appeal. That loophole closed with the court’s 2014 ruling.

  However, very few legislators are actually convicted or are likely to be convicted due to the inadequacies of India’s justice system. Irrespective of a defendant’s guilt or innocence, the wheels of justice move slowly in India. Elected representatives can further delay the already slow crawl of criminal investigations and prosecution by using the power of political office to transfer pesky officials for reasons unrelated to their professional performance.

  These caveats notwithstanding, one should also recognize that candidates are required to disclose only cases that a judge has deemed credible and worthy of judicial proceedings and that were pending as of six months prior to the election (to avoid the most blatant electorally motivated cases). This threshold is important as it is the difference between an allegation and what I refer to as an “indictment,” to borrow a phrase from the American justice system (“indictment” is not a term commonly used in the Indian system). Typically, the first step in the criminal justice process in India is the filing of a First Information Report (FIR) by the police. Next, police conduct a preliminary investigation to determine if there is sufficient prima facie evidence of wrongdoing. If such evidence exists, they file a “charge sheet.” If prosecutors concur with the police, they file charges with the relevant court. Finally, a judge determines whether to “take cognizance” of the case and “frame charges” against the defendant. According to regulations issued by the ECI, and affirmed by the Supreme Court, it is only after a judge takes cognizance that a candidate must disclose on his affidavit that there is a pending case against him. Where appropriate, candidates must also disclose whether a judge has “framed charges” in a given case. The act of “framing charges” requires a judge to apply his or her mind to determine whether there are grounds to pursue the enumerated charges.4 Unfortunately, the format in which the data are collected makes it impossible to distinguish this subset of cases from the overall pool. However, for all cases included in the database, at the very least a judge has taken cognizance of the matter.

  These disclosure rules help to reduce (though not eliminate) the presence of frivolous charges. However, one can go even further. On their affidavits, candidates list each pending criminal case, including, for each case, the section(s) of the Indian Penal Code (IPC) under which they are charged. In order to create a classification of criminal charges, I first obtained an electronic copy of the IPC. The IPC is a document that originates in the British colonial era and first came into force in 1862, though it has been amended repeatedly since its inception.

  I then matched each charge with the relevant section of the IPC, in addition to supplementary information provided under the 1973 Code of Criminal Procedure. Using this matching process, one can distinguish between “serious” and “minor” charges. Following a coding strategy pursued by other scholars, I classify minor charges as those that might, arguably, be related to assembly, campaigning, or speech, that is, those that lend themselves most easily to political retribution. Although many of these charges may in fact be legitimate, I classify them as “minor” because they are linked most easily to political retribution. The remainder I consider to be “serious” charges.5

  There are two advantages to this approach. First, in India, politicians often court arrest and even imprisonment for political purposes. This likely has something to do with the Gandhian roots of India’s independence movement and the subsequent value its political class places on civil disobedience. Analyses that do not distinguish between the severity of charges risk conflating different types of cases.6 Second, while pending cases present a higher hurdle than mere charges, they are not immune from abuse. However, I assume that it is more difficult to engineer a false case involving serious charges than one involving minor ones.7

  Coding criminal charges is an inherently subjective undertaking. For instance, I deem “criminal intimidation” to be a “minor” charge, as it is often related to verbal rather than physical threats, leaving open the possibility that statements made in a political setting could be taken out of context. The Indian Code of Criminal Procedure offers the following illustration of an act that could be classified as “criminal intimidation,” involving persons A and B: If A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn B’s house, A is guilty of criminal intimidation. The same principle can be applied for the charge “voluntarily causing hurt,” which is also classified as a “minor” charge. Indian law makes a distinction between “voluntarily causing hurt” and “voluntarily causing grievous hurt.” I code the latter as a “serious” charge.

  There are some sections of the IPC that contain multiple subsections, each for a distinct offense and occasionally a unique sentencing guideline. In those instances where the subsection is not clear on the affidavit, I revert to the least stringent sentencing requirement listed in the overall section, so as to give candidates the benefit of the doubt. This produces a more co
nservative estimate of “serious” criminality.

  In addition, some candidates are charged with violating laws other than the IPC. Aside from violations of the Arms Act, I did not code non-IPC charges. Fortunately, non-IPC charges are usually filed in conjunction with IPC charges; ignoring them does not result in a considerable loss of information.

  It is important to note that my subjective coding of what constitutes a “serious” charge is different from the standard developed by ADR, arguably India’s leading election watchdog, which is commonly used. ADR’s revised guidelines stipulate that a charge is considered serious if it meets any of the following criteria:

  • Maximum punishment for the offence committed is of five years or more

  • Offence is non-bailable

  • Offences pertaining to an electoral violation (IPC 171E or bribery)

  • Offence related to a loss to the exchequer

  • Offences related to assault, murder, kidnap, rape

  • Offences that are mentioned in Representation of the People Act (Section 8)

  • Offences under Prevention of Corruption Act

  • Offences related to crimes against women

  There are some differences between my minimalist definition and that used by ADR. For starters, I tend to minimize electoral offenses insofar as they might be linked to electioneering, which is a primary part of a politician’s vocation and vulnerable to political machinations. It is for this reason that I also do not consider most charges associated with “public tranquility,” “public order,” or “elections” to be serious in nature.