Can Modi pass the first governance test?

Sanjeev Ahluwalia
19 May 2014, 12:09 PM IST

The Modi led "near national" government has been voted in for its perceived capacity for good governance. Good governance is an amorphous concept. But one essential component is access to timely justice. Punishing people for the crimes they commit, at the earliest, through due process becomes a key measure which makes commitment to the rule of law credible.

India is a terrible laggard in this regard. Criminal cases drag on for years with the perpetrators, if they are rich, either out on bail or ensconced in jail with all comforts and privileges.

The Association of Democratic Reforms (ADR) has done stellar work in informing citizens about the criminality of Lok Sabha candidates, using the information submitted by the candidates themselves at the time of filing their nominations. It is tragic that whilst the Election Commission does not highlight such information for the public, it is left to NGOs to cull and present it to citizens.

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(Photo credit: wahsarkar.com)

ADR has reported on 8163 out of the 8236 candidates who contested the 2014 elections. Of these 889 declared that they had serious criminal cases pending against them, including murder, attempt to murder, assault on women and hate crimes. Sadly the proportion of such candidates increased from 8% in 2009 to 11% in 2014.

21% of the candidates the Bharatiya Janta Party (BJP) put up, belong to this category. Nine parties fielded a lower proportion of "tainted" candidates: Amma's AIDMK (8%), Didi's Trinamool Congress (10%), Aam Admi Party (10%), Biju Janta Dal (10%), CPI (12%), Congress (13%), DMK (14%), Bhenji's BSP (15%) and the CPI (M) (16%).

ADR has yet to report on how many "tainted" candidates have won from each party. But 21% of the 521 studied by ADR had serious criminal cases against them as compared to 15% in 2009. Unless candidates are convicted of serious criminal crimes, they remain eligible for becoming MPs. There is little Modi can do about that till the law is changed.

But there is one major way in which Modi can herald the era of good governance in India to which he and his party are committed. He can declare that no BJP MP shall be made a minister if there is a serious criminal case pending against her. The data is a bit fuzzy here. What is a criminal case? Is it the filing of a First Information Report; completion of investigation report by the police; presentation of charge sheet by the prosecution in court or the framing of charges by the court? But this is a technicality and can be used to massage the data.

Good governance is as much about changing the reality as it about shaping perception. Modi is the proclaimed master of perception and should rightly be concerned that his government starts off on the right foot.

The World Justice Project which tracks the health of the Rule of Law worldwide, in its Index 2014, ranks the criminal justice system in India at 48 out of 99 countries; better than China (rank 51) or Malaysia (rank 53) but lower than Brazil (rank 37) or Sri Lanka (rank 38). More importantly on the factor of "timeliness and effectiveness" India does worse that all these countries, except Brazil.

Improving the criminal justice system, to developed country standards, is a time consuming effort involving change in practices; incentives for judges to conclude cases; better investigation practices and capacity and more motivated prosecution. These are deep procedural and bureaucratic reforms which should be started, but are unlikely to kick in with results by 2019.

In the meantime, the problem of sitting MPs with unresolved criminal cases needs to be deal with pronto if Modi's promise of good governance is to be implemented. Modi and his team are not one to let the grass grow under their feet. So here are three initiatives to deal with the problem:

1. An all-party committee of the Lok Sabha should review the cases of all MPs with pending criminal cases to identify those with serious charges against them.

2. Modi to request the new Chief Justice of India to constitute a fast track court specially mandated to decide all such cases by June 2015.

3. In the meantime, all MPs with serious criminal cases against them to be embargoed from getting ministerial berths in his government.

The electorate dealt harshly, in 2014, with parties which claim to align with good governance norms but fail to take effective action, when mandated to rule. Across India, the electorate has rewarded parties with strong leaders and a record of effective governance (BJP, BJD, AIDMK, TMC) and punished those which are ideological without being pragmatic (AAP, CPM) or enabled but self-serving (Congress and Alkali Dal). This is not the moment to disappoint them with false integrity.

Making public commitments on the manner in which ministers are going to be appointed is unprecedented. It takes away some discretion from the PM. But good governance is also about tying your hands publicly to do the right thing and burning your bridges, lest one is tempted to retreat into half-truths. Best to start now.