What does Sir William Garrow (1760-1840) have to do with the elections now under way in India? The well-known and much-invoked phrase “innocent until proven guilty” was coined by that British barrister in the course of a 1791 trial at the Old Bailey. He turned the tables on legal practice at that trial by saying that the accusers, not those accused, must be tested, made to establish and prove their accusation in court. The English Court of Appeal in 1935 described Sir William’s concept as the “golden thread” connecting the burden of proof and the presumption of innocence “within the web of English criminal law”.
The report card
And that connects Sir William with the Indian polls directly. The National Election Watch is a grouping of NGOs and others working for transparency and accountability in elections. The Association for Democratic Reforms (ADR) is a non-partisan NGO working for electoral and political reforms. They have given us telling statistics for four out of the seven phases of elections that have taken place so far. In the first phase of the elections, 17% of the candidates had criminal cases pending against them. In the second phase, the figure went down marginally to 16%. In the third phase, with the largest number of seats in any phase, the percentage of candidates figuring in criminal cases climbed to 21%. In two-thirds of these, the accused have been charged for serious offences like rape, attempt to murder, and murder. In the fourth phase, the last one held so far, according to ADR, a total of 210 candidates faced criminal charges, with 158 being “serious”. Five candidates had declared cases related to murder, 24 related to attempt to murder, 4 to kidnapping, 21 to crimes against women, and 16 candidates to hate speech. The phenomenon is not peculiar to any one party. The BJP, Congress, BSP, and the Shiv Sena have fielded criminally charged candidates, the BJP being on top of the scale numerically. Even some independent candidates are criminally charged.
The numbers in the three phases remaining are not likely to be very different. Around 20% of all the candidates in the seven phases, it may be, will be candidates with one criminal charge or another pending against them.
Sir William would have exclaimed, ‘That does not matter; they may all be found to be innocent!’ They well may. Also, they may be the ones who get defeated. On the other hand, studies have shown that those with criminal records (muscle power) plus a seemingly unlimited power of spending (money power) have a distinctly higher chance of succeeding over those with just one of those ‘powers’ and over those who have neither. So, some of these this time round may well get elected, their dates in court rubbing shoulders with their dates in and with Parliament. And business will be as usual for them, with Garrowian logic and ethics and the notion that many, if not most, of these cases are ‘politically foisted’ winning the day. The Election Commission has asked for an amendment to the Representation of the People Act to bar, with some caveats, those charged with criminal offences from contesting. But after hearing the matter, the Supreme Court declined, in 2018, to enter this area, ‘leaving the decision on criminal netas on Parliament’.
Illiberal intent
It is precisely this ‘liberal’ arrangement that the most illiberal take advantage of. It is exactly this democratic legerdemain that the most undemocratic occupy. It is this very legal latitude that the most law-disdaining use, abuse.
Mitesh Patel is perfectly entitled under the law to contest from the Anand seat in Gujarat. And we should grant him the presumption of innocence. Whatever else he may be accused of, he cannot be accused of hiding anything. He has declared in his poll affidavit that he was an accused in the 2002 post-Godhra riots, that an FIR was registered against him in Anand district in 2002 for engaging in arson, rioting, stone-pelting and theft, among other charges. And, he has declared, he was booked under Indian Penal Code Sections 147 (rioting) 148 (rioting, armed with deadly weapon), 436 (arson), 332 (causing hurt to deter public servant), 143 (unlawful assembly) and 380 (theft). He may well be found to be innocent of all these crimes.
The point, however, is not that. The point is that the Anand Sessions Court acquitted him in 2010. Sir William, there you go! But the matter does not end there. The Government of Gujarat, yes, the BJP Government of Gujarat, acting with amazing rectitude and objectivity, filed an appeal in 2011 against his acquittal. (We shall not go into how it could not have but done so.) So, the charge has not gone away. On the one hand, the BJP government appeals against his acquittal, on the other the BJP gives him a ticket to contest from Anand. Perfectly legal, of course. Consistent with liberal, democratic nostrums. But what about the ethics of it? Eth… what? What in ‘Elections 2019’ is that?
The case of Pragya Thakur
As I am sure with millions of others, when I heard of Pragya Singh Thakur’s candidature from Bhopal, I had but one thought: Malegaon, 2008. We know she is an accused in the 2008 Malegaon bombings, was granted bail following the dropping of charges by the National Investigation Agency and is currently under trial for multiple charges in terms of the Unlawful Activities (Prevention) Act. Technically, she can contest. Technically, she is as yet ‘innocent’. Technically, no one can fault her or the BJP for making her its chosen candidate from Bhopal.
But what does her candidature, of Mitesh Patel, and of others, say of the party that has selected them? Why, from so many hopeful applicants for tickets, have they been favoured? Because they can deliver a very particular electoral product. They can deliver polarised victories. Pragya Singh Thakur’s comments on Hemant Karkare, the valiant police officer who was martyred in the Mumbai terror attack known as ‘26/11’, do not bear repetition. They belong to the world of curses, hoodoo, jinxes, ‘the evil eye’, not to the world of rational humanity. And though the BJP ‘has distanced’ itself from those comments, it has remained as near as near can be to her candidacy.
Narendra Modi is a candidate from the temple-town of Varanasi, Amit Shah from the heart-core of the Gujarat riots, Ahmedabad. One is the BJP’s leader, the other its president. Yet, it is not these two leaders but the two candidates “presumed innocent till proven guilty” who represent the face, mind and heart of the party that seeks India’s mandate to govern its one billion people. Face, mind and heart are incomplete without a soul.
Where is that to come from? From our deepest feelings as a people. We are not at war. But 20 years ago, in 1999, we were: the Kargil War. Our soldiers became the soul of the country. In any war, they become that. It so happened, by the inexorable calendar of parliamentary democracies, that elections had to be, and were, announced, right in the middle of that war. Then-Prime Minister Atal Bihari Vajpayee kept the war and his election campaign distinct. BJP registers will show anyone interested in history that at a political meeting in Haryana when he noticed photographs of our defence chiefs displayed in the backdrop, he said, ‘No, this is not proper.’ And the arrangement was rectified.
Not proper, not done. That is what ethics are about. Not presumptions of innocence till proven guilty, but presumptions of intention that need no proving.
Gopalkrishna Gandhi is a former administrator, diplomat and governor