Road Ahead: CSOs critical in implementing Supreme Court order

The order of the Supreme Court dated 10 March 2014 on the PIL filed by the Public Interest Foundation is reckoned as a milepost in the efforts toward decriminalizing Indian politics. The order directed by Hon’ble Mr. Justice RM Lodha and Hon’ble Mr. Justice Kurian Joseph states that

“in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Section 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). In such cases, as far as possible, the trial shall be conducted on a day-to-day basis. If for some extraordinary circumstances the concerned court is being not able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial. In such situation, the Chief Justice may issue appropriate directions to the concerned court extending the time for conclusion of the trial”.

Although, the order does not mark finality to the prayer of the Foundation which is toward disqualifying candidates charge sheeted with serious and heinous offences from contesting elections, it certainly comes at a time when the bane of adjournments granted by the courts in criminal cases have impacted on criminalization of our polity. The order certainly casts spell on the potential intent of politicians with an aspiration for Legislative Assembly or Parliament appreciating that their charge sheets never see the light of the day with respect to conviction or acquittal, however grisly and lurid the crime is. Following the principle of demand and supply, the criminals would not like to subject themselves for speedy trials and thus proving the order to be an effective deterrent. The political parties who have overwhelming concerns over the quantitative order of India’s parliamentary system would certainly exercise caution over this order. Even so, there looms a murky cloud over the procedural implementation of this order with respect to monitoring of the criminal charges faced by MPs/MLAs and its subsequent completion by the concerned court within a year. It is extremely important for the civil society organization to coordinate and device potential initiatives to be undertaken to ensure proactive vigilance on compliance of this order.

The Court’s order comes as an upshot to the two issues the Bench had sought expeditious consideration from the Law Commission of India. First, whether disqualification to contest election should be triggered upon conviction as it exists today or upon framing of charges or filing of chargesheet and second, whether filing of false affidavit under Section 125A of the Representation of the People Act should be a ground for disqualification and if yes, what mode and mechanism are to be followed for such disqualification. The Law Commission, subsequently, prepared recommendations in its 244th report titled Electoral Disqualifications after organizing a national consultation for consolidating views and opinions from the stakeholders on 1 February 2014.

The order of the Supreme Court reproduces the significant points from the report of the Law Commission before concluding on the abovementioned direction. On the first issue, the Law Commission observes that:

“The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics. Having regard to all this, the Law Commission has suggested that the following safeguards must be incorporated into the disqualification:

(i) Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision.

(ii) Charges filed up to one year before the date of scrutiny of nominations for an election will not lead to disqualification.

(iii) The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier.

(iv) For charges framed against sitting MPs/MLAs, the trials must be expedited so that they are conducted on a day-to-day basis andconcluded within a 1 year period. If trial not concluded within a one year period then one of the following consequences ought to ensure:

– The MP/MLA may be disqualified at the expiry of the one year period, or

– The MP/MLA’s right to vote in the House as a member, remuneration and other perquisites attaching to their office shall be suspended at the expiry of the one year period”.

The Law Commission suggested that such a disqualification should be made applicable retroactively.

With respect to the second issue, the Law Commission has observed that there is large scale violation of the laws on candidate affidavits owing to lack of sufficient legal consequences. The Law Commission has suggested that the following changes should be made in The Representation of the People Act, 1951 (for short, ‘RP Act’):-

(i) Introduce enhanced sentence of a minimum of two years under Section 125A of the RP Act on offence of filing false affidavits.

(ii) Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RP Act, and

(iii) Include the offence of filing false affidavits as a corrupt practice under Section 123 of the RP Act.

The Commission has also recommended “that since conviction under Section 125A is necessary for disqualification under Section 8 to be triggered, the Supreme Court may order that in all trials under Section 125A, the relevant court conducts the trial on a day-to-day basis. It is further recommended that a gap of one week should be introduced between the last date of filing nomination papers and the date of scrutiny, to give adequate time for the filing of objections to nomination papers”.

By (Authored by Mr. Nripendra Misra, ex-Chairman, Telecom Regulatory Authority of India and Director, Public Interest Foundation and Ms. Anna Karthika, Research Associate working on electoral reforms with PIF; e-mail:

(This article was published in The Citizen on 2014 )