India is often hailed for its democracy, for empowering its poor and ordinary citizens to participate in the electoral process and play a role in shaping the country. This narrative has increasingly come under strain since the Supreme Court, through its March 2003 judgment in Union of India vs Association for Democratic Reforms, made it mandatory for candidates contesting elections to disclose their wealth, educational qualification, and criminal cases pending against them at the time they file their nominations. The Supreme Court judgment came after the Association for Democratic Reforms, or ADR, a non-governmental organisation working on electoral reforms, moved the Delhi high court in 1999 for an order asking candidates to disclose information that would help voters make an informed choice. The high court ruled in the ADR’s favour. The union government went in appeal to the Supreme Court, which upheld the high court judgment.
The candidates’ disclosures, including those made for the 2019 Lok Sabha elections, show that our democracy has gradually become the preserve of the wealthy and criminals. According to a report by the ADR, in the ongoing elections, nearly 19 percent of candidates have pending criminal cases against them, while 13 percent of candidates have cases of a serious nature such as murder, attempt to murder, rape or crimes against women. Meanwhile, 29 percent of the candidates have assets worth Rs 1 crore or more, an increase from 16 percent in the 2009 elections.
Amid the 2019 Lok Sabha elections, the independent journalist Ajaz Ashraf spoke to Jagdeep S Chhokar, one of the founders and trustees of the ADR, about political funding, the notion of voters having a choice and the subversion of Indian democracy. “The choice of a voter is pre-constrained by the choices made by a set of political parties,” Chhokar said. “We have a charade of elections. Every five years we convince ourselves that we are a democracy.”
Ajaz Ashraf: What are your parameters for judging the quality of any democracy?
Jagdeep S Chhokar: A defining characteristic of a good democracy is representativeness—whether every citizen has a sense that he or she has a say in how the society is being governed. If a candidate is elected from a Lok Sabha constituency on the basis of 15 percent votes, can he or she be truly regarded as the people’s representative? That is why the Law Commission of India recommended in its 170th report that a candidate should not be declared elected unless he or she gets 50 percent plus one of the votes cast. But in a really good democracy the person should get 50 percent plus one of the registered votes. To use a cliché, democracy is a continuous journey without a destination to reach. That is why we should look at the degree of democratisation. Some countries have a higher degree of democratisation than others.
AA: A 2014 analysis by your ADR colleague, Trilochan Sastry, showed that for just about every party, a greater percentage of candidates with a serious criminal record win compared to those without any such record. Why is this?
JSC: Why do people vote for criminal candidates? One reason is that they are Robin Hoods, who rob the rich and give to the poor. They also compensate for the state’s failure. If I have a grievance against you, I can go to court, but it will take years to resolve the issue in my favour. But if I go to a local strongman, he will solve my problem in two days. The strongman is seen to render a service which the state should have.
The ADR did a survey of the perception of voters between October and December last year. We had a sample size of 2.75 lakh people, with 500 respondents in each constituency. About 30 percent of them said they vote for a candidate with a criminal record because he or she belongs to their caste or religion.
Politicians also project that they have been falsely implicated in cases. Or that cases pending against them are frivolous in nature. For instance, politicians often claim that a violation of Section 144 [of the Indian Penal Code, which, when imposed, disallows an assembly of more than four people] is not a serious offence.
AA: But isn’t it true that there are instances of politicians being falsely implicated in criminal cases? For instance, the Aam Aadmi Party claims that several of its members of legislative assembly have been implicated in false or frivolous cases by the central government, which controls the Delhi Police?
JSC: The Supreme Court in its [Union of India v Association for Democratic Reforms] judgment made it very clear that candidates need to disclose only those cases which were filed six months before the notification of any election. They are required to disclose only those cases in which punishment can be for two years or more of imprisonment, and in which charges have been framed by a court of law. Cases in which a judicial mind has been applied to frame charges cannot be called frivolous. AAP MLAs, therefore, do not have to disclose cases which the court dismissed or in which charges have not been framed.
AA: I suppose the very idea of democracy is negated when criminals become lawmakers.
JSC: It may sound heretical, but people have no choice but to vote for candidates with criminal cases pending against them. Assume there is a constituency in which ten candidates are contesting. How many do you think have a real chance of winning?
AA: Only those candidates who belong to the three big parties.
JSC: The ADR’s reports have a category called Red Alert Constituencies. These are constituencies in which three or more candidates have criminal cases pending against them. Nearly half of our 543 Lok Sabha constituencies are in the red alert category. If the top three candidates most likely to win belong to three major parties, what choice do voters have? Either I go and vote for a candidate who does not stand a chance of winning or—if I want to have a say in governance—for one of the three candidates with criminal cases pending against them.
AA: Money in politics is also a factor undermining democracy. What sense do you have about the sources of funding of political parties?
JSC: There are two ways of finding out how much and from whom political parties get their funds. In case a political party wants to avail of 100 percent tax exemptions, which it is entitled to under Section 13 (A) of the Income Tax Act, it has to maintain a factual account of its income and expenditure and file income-tax returns. Political parties have to also submit to the Election Commission a statement on every donation of Rs 20,000 and above that they receive. The ADR collected statements from both these sources.
When we first compared the statement of donations to that of political parties’ incomes, we found that, on average, donations above Rs 20,000 constituted about 20–25 percent of their total income. This means that anywhere between 75 percent and 80 percent of their income was from unknown sources. Over the last few years, the figure of 75–85 percent is now down to 60–65 percent.
One of these unknown sources was titled as “proceeds from sale of coupons.” But nothing is known about who bought the coupons, for how much and for what purpose. It is widely believed that this 60–65 percent is just a small fraction of the money that political parties receive.
AA: Did the ADR try to find out what these unknown sources were?
JSC: We had the Central Information Commissioner declare the six national parties as public authorities. Our idea was to file applications under the Right to Information Act and have the national parties disclose the identity of these unknown sources of income. All the six parties refused to accept the CIC’s verdict. The case regarding this is in the Supreme Court. The government has submitted an affidavit that political parties should not be public authorities under the RTI Act.
AA: Can we get a sense of the donor’s identity from the rule that makes it mandatory for parties to disclose every donation of Rs 20,000 and above?
JSC: The problem is that the rule does not say whether donations above Rs 20,000 should be in cash or cheque. There is thus no limit laid down for cash donations. Assume I am a political party and you give me Rs 20,001 in cash and want a receipt, I will then have to declare it. But if someone gives me Rs 200 crore in cash and does not want to take a receipt, I can show it if I want to, but I don’t need to. The Rs 20,000-rule sets out the limit for disclosure. It does not limit the amount of cash donations a party can receive.
AA: But the government imposed a limit of Rs 2,000 on cash donations in 2017. Has that made the funding of political parties more transparent?
JSC: The problem is that this limit applies only when a party declares what it receives in cash. It can still receive Rs 200 crores in cash, without documentation, and therefore, need not declare it. The impression created that a political party cannot receive above Rs 2,000 in cash is patently wrong. It is, in fact, a lie. If a party wishes to declare whatever it receives in cash, why would it not take it in cheque? I don’t wish to take names, but there was a party which disclosed an income of Rs 800 crores, but also said that none of its donations was above Rs 20,000. A political party can say today that it received Rs 39,99,80,00,000 from two million people who donated Rs 1,999 each. It can show the amount as part of its income, but it will not be required to disclose their names.
AA: Do you see the influence of political funding on government decisions?
JSC: When one doesn’t know who has paid how much to a ruling party, every government decision becomes suspect, whether taken in national or public interest or to favour XYZ. Both the Bofors and the Rafale deals seem to be in this category. [Both refer to defence-purchase deals, under the Rajiv Gandhi and Narendra Modi governments, respectively, which faced allegations of corruption.]
AA: Can the electoral-bond scheme improve the quality of our democracy?
JSC: The electoral-bond scheme was introduced in the 2017 budget speech of the finance minister [Arun Jaitley]. It was mentioned under the section titled ‘Transparency in Electoral Funding.” [Electoral Bonds are bank notes that donors can purchase at the State Bank of India and donate to political parties. The parties must encash the note within 15 days.] A few hours after the finance minister presented the budget, he told the media that “these bonds will be bearer in character to keep the donor anonymous.” It set alarm bells ringing. The contradiction was obvious—transparency is not possible without disclosing the donor’s identity.
AA: But a donor’s identity will be known as soon as he or she buys an electoral bond from a bank.
JSC: The scheme says that the designated branches of the State Bank of India authorised to sell electoral bonds will collect the complete KYC [Know Your Customer] particulars of the person buying the electoral bond. It also says that the SBI will not reveal the buyer’s identity unless there is a court order in a criminal case asking for the information. It is next to impossible to get such a court order.
The SBI, however, knows the buyer’s identity. The buyer can give the electoral bond to a party’s treasurer in person or drop it in, say, the donor’s box. But how does a citizen know who donated the money through the electoral bond? Assume the same party is in power and gives a contract to XYZ. It could well be that XYZ is the donor who gave an electoral bond to the party. How am I to know that?
AA: Let me flip the question. I am a political party and I receive an electoral bond of Rs 200 crore. Given the way the system works, the government will know who gave me Rs 200 crore and…
JSC: There is no doubt that the electoral bond scheme has the potential of choking the flow of funds to all political parties. You buy an electoral bond worth Rs 100 crore and you start driving to the office of a particular party, you will likely get a call from the ruling party’s functionary. You are very likely to end up at the ruling party’s office. The data of 2017–2018 shows that out of Rs 220 crore of electoral bonds, Rs 210 crore went to the BJP, Rs 5 crore went to the Congress and the remaining Rs 5 crore were not cashed. There is a rule which says that if electoral bonds are not encashed within 15 days of the purchase, the amount goes to the Prime Minister’s Relief Fund.
AA: Any idea why Rs 5 crore remained unclaimed?
JSC: One explanation could be that the recipient [party] thought that the ruling party will know the donor’s identity and the former did not want to be seen taking money from him or her.
AA: Is funding the reason why the number of political parties in India has continued to grow?
JSC: Some years ago, the number of political parties in India was 1,500. The then Chief Election Commissioner wrote a letter to the prime minister saying that out of 1500 parties, only about 200 contest elections and the remaining are not even traceable. He suspected that these parties have been floated to avail of tax exemptions and turn black money into white. Today, the number of political parties has grown to around 2,600.
AA: What is the modus operandi for using political parties to turn black money into white?
JSC: Assume you have Rs 2 crore in cash. You give Rs 2 crore to a political party, X, which claims to have received the amount from its supporters in parcels of Rs 1,999. X parks the money in the bank and issues a cheque to you, declaring that it is the fees for the services you rendered.
AA: What was the idea behind asking candidates to submit affidavits declaring their wealth?
JSC: The idea was to ensure that unaccountable money is not used for winning an election. For instance, you should not use money earned from supplying narcotics to fight elections, although there are candidates who may be making their money through this channel. The other idea was to ensure that the wealth of victorious candidates do not increase disproportionately by the next election.
These expectations have been belied. We have data to show that candidates who lose one election and then fight the next one, their wealth increases by x times. However, during the same period, the wealth of candidates who become MLAs or MPs increases by 2x, and that of candidates who win and become ministers by 3x, even 5x.
AA: Wouldn’t the value of assets of candidates witness a natural increase because of the market factor?
JSC: The value of assets of every citizen should increase by the same proportion. But this is not the case with those who successfully contest elections. As a politician climbs up the democratic ladder, his or her wealth seems to keep increasing.
AA: When candidates submit affidavits before elections, the media puts out headlines saying that there are so many crorepati candidates. Isn’t Rs 1 crore as a measure for determining who is a wealthy candidate rather low?
JSC: The absolute number is not important. The question is: can a person who has Rs 100 crore understand the trials and tribulations of a daily-wage earner? I don’t think so.
AA: Are we a rich man’s democracy?
JSC: Forget being a rich man’s democracy, we are not even a democracy. We have a charade of elections. Every five years we convince ourselves that we are a democracy.
Let me narrate a story. After the Government of India Act, 1935, [which introduced direct elections,] was enacted, provincial elections were called. In Bombay, Vaikunthbhai Mehta, who was very popular because of his role in cooperative societies, came under popular pressure to contest in the elections, even though he was not interested in doing so. He wrote a postcard to Mahatma Gandhi explaining his dilemma. Gandhi replied that he must contest in the election subject to two conditions—he should not ask people for their votes and he should not spend a paisa on his election. As Gandhi’s loyal follower, Mehta filed his nomination paper and sat at home. He won with an overwhelming majority.
Let me ask you a question: Where does the government come from?
AA: MPs elect it.
JSC: When I ask this question to people, they say they elect the government. I ask them how? They say they go to the polling booth and vote for a candidate. But tell me, where do candidates [who have the potential to win] come from?
AA: They come from a political party.
JSC: You are right. The choice of a voter is pre-constrained by the choices made by a set of political parties. If the voter doesn’t have a choice, can you then call ours a democracy? Suppose you become a candidate, win an election, become an MP, and a bill comes to the Lok Sabha. Do you have a choice to support or oppose the bill?
AA: No, unless I want to lose my seat for defying the party’s whip.
JSC: So the voter’s choice is pre-constrained by the choice of a set of parties. The choice of MPs is completely controlled by their parties. Where does the government come from? It comes from political parties. Are political parties democratic?
AA: No, they are not.
JSC: If the government is made by entities that are completely undemocratic, can you call ours a democracy? Our democracy is hollow. We are not a democracy because our parties are undemocratic. This impacts everything, including the representativeness of our democracy.
AA: Yet, 84 years ago, we had the phenomenon of Vaikunthbhai Mehta winning the election without campaigning and without spending a paisa.
JSC: It is not possible now because political parties are no longer democratic. There is a complete disconnect between the voter and the people’s representative. The voter is of no use to a person unless he or she is a candidate. But he or she cannot become a candidate unless he or she gets a political party’s blessings. When a person gets a ticket, he or she is more beholden to the ticket-giver than to the voter. The disconnect between the voter and the representative is the root problem of our democracy. A party’s candidate should be chosen by its primary members. Will such a candidate need to spend the kind of money as is done today? No.
This interview has been edited and condensed.