At least a dozen prominent NGOs have filed Public Interest Litigation (PIL) before the Hon’ble Supreme Court seeking intervention to shut the entry of politicians with criminal background. These PILs are at various stages of hearing in the assigned Benches of Hon’ble Supreme Court. The gist of the prayer before the Hon’ble Supreme Court is as follows:-
(a) That article 326 vis-à-vis article 84/173 contains a bar both express and implicit against crime tainted persons becoming candidates or members. Consequentially, sections 8, 9 and 11A of the Representation of People Act, 1951 (RPA) be declared unconstitutional.
(b) Criminalisation affects the basic structure of democracy and there is a constitutional obligation to uphold free and fair elections envisaged under article 326 of the Constitution and thus ensure that the opportunity of one man one vote is neither breached directly or indirectly.
(c) That direction be issued to the Union Government for bringing legislation to disqualify persons with criminal background who have been charged with serious offences punishable for not less than five years provided the appropriate court has taken cognizance of the offences. Provided further that the offence was registered not within one year of the election notification.
(d) Further, the direction should require the Legislature to consider making appropriate law on the basis of recommendations by various expert commissions including the Law Commission on this subject.
(e) To fast track the cases of criminals who have entered the legislature with time bound disposal preferably in six months.
As mentioned, Hon’ble Supreme Court is seized of this very important matter in different Benches. It would be better to consolidate all such PILs for hearing by a common Bench so that important constitutional and legal issues raised as well as the relief sought are adjudicated and a stamp of finality is given.
As per the existing provision in the RPA, 1951, anyone found guilty of a criminal offence and has been convicted for a prison term of two years or more is disqualified to contest election for a period of six years. The disqualification remains valid unless the operation of the conviction has been stayed or suspended. However, the RPA, 1951 provides a relief under section 8(4) to a sitting Member of Parliament or the Legislature of a State, who if convicted will not be automatically disqualified if within three months of the conviction, the elected representative prefers an appeal or revision against conviction. Thus, the disqualification is suspended till the outcome of the appeal/revision by a competent court.
In a recent affidavit filed by the Ministry of Law & Justice, it has been stated that the convicted MPs/MLAs get disqualified only after exhausting all legal remedies and it is based on a legislative policy to “ensure existence and continuity” of an elected House. The same affidavit also asserts “thus the plea about criminalization of politics based on the factual statement that a large number of sitting MPs are convicts is unsubstantiated”.
It is unfortunate that the criminalization in politics has been dealt in such a manner. Is it not a fact that 1158 candidates contested Lok Sabha election in 2009 who have criminal antecedents in terms of charge sheet framed? Is it not a fact that 150 MPs have criminal record and 72 MPs are facing serious criminal charges.
Significant number of elected representatives retain their position by maneuvering the system in such a way that the hearing on their cases get deliberately delayed at the trial court itself. It is evident that such privileges are not available to any other category of citizens enjoying public office or otherwise.
One expected that the Union Ministry of Law & Justice should have recognized the menace of criminalization in Indian polity and assured the Hon’ble Supreme Court regarding measures to check the rot. Deposing before the Committee on Law & Justice, Secretary, Legislative Department, on 25th January, 2007, had proposed a new section 8(b) to keep away from elections those persons alleged to have been having criminal background. As per the suggestion, persons charged with heinous crimes at least six months prior to the date of nomination for election shall be disqualified unless acquitted. It was also clarified by the Secretary, Legislative Department that heinous offences have been identified for this purpose. The Ethics Committee of the Parliament also in 1999 had suggested to the Government that electoral reforms should be expedited to keep criminals out of the political arena. Both the Law Commission in its 170th Report and the National Commission to Review the Working of the Constitution (2002), had proposed a bar for entry of persons charged with any offence punishable with imprisonment of five years or more. The Law Ministry, perhaps, avoided any commitment to Hon’ble Supreme Court in order to escape any likely embarrassment in future.
The first step could have been to enact a law for the political parties which could ban the parties from giving ticket to contest elections to candidates having serious criminal antecedents. Such heinous crimes could be listed for the purpose. The Election Commission could be empowered to frame rules which would disqualify the candidates charged for serious offences to contest elections. The minimalistic agenda could be that after the election results are announced, the Election Commission may be asked to finalise a list of winning candidates who have serious criminal cases pending against them where charges have been framed by the court of law and these should be forwarded to a fast track court. Any appeal filed by such candidates against the framing of charges or against later conviction by trial courts, should also be referred to a fast track court set up by the High Court/Supreme Court. All such matters could be decided within six months. The membership of the Lok Sabha or State Assembly of such candidates should remain suspended till the pendency of the case.
The above arrangement would not disturb the stability of the Government. The suggested constitution of fast track court could be immediately implemented without waiting for an exhaustive electoral reform, which has been evading political consensus. This would create a level playing field for all parties and would discourage the political parties from giving ticket to criminals. The criminals would also feel discouraged as they may be subjected to a fast track decision which does not serve their self-interest.
By Nripendra Misra, Director, PIF