Tuesday, September 28, 2021
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The saga of Decriminalization of Electoral Politics in India and the way forward – 244th Law Commission Report

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India is largest form of representative democracy. The citizens of India based on adult suffrage[1] elect their representatives who voice their constituencies’ concerns and opinions in the parliament and state legislatures.

By Ishan Kapoor

In pursuance of its legislative powers the parliament enacted The Representation of the People Act, 1951. The preamble of the act provides that it is an act to provide for the conduct of elections of the houses of parliament and to the house or houses of the legislatures of each state, the qualifications and disqualifications for the membership of those houses among other subject matters. The Hon’ble Supreme Court of India in the case of Election Commission of India v. Telangana RashtraSamithi[2] held that the Act is a complete code for the conduct of elections by the Election Commission of India appointed under Article 324 of the constitution which provides for superintendence, direction, control and conduct of elections.

The present article deals with the issue of criminalization of politics by analysing various judgments in particular the judgments rendered in Lily Thomas v. Union of India and Public Interest Foundation v. Union of India and suggests the way forward.

Analysis of Provisions related to disqualification on being convicted for an offence

Article 102 deals with the disqualification for membership. Article 102 provides that a Member of Parliament stands disqualified if he is so disqualified by or under any law made by parliament. Article 191 deals with the disqualification for the membership from state legislature which is in concurrence with Article 102 and provides for disqualification on same grounds. In pursuance of these Articles Second Part of the Representation of the People Act 1951 was incorporated which deals with the qualifications and disqualifications. Chapter III of the second part deals with the disqualifications for membership of parliament and state legislatures. Section 8 to Section 11B deal with various kinds of disqualification. In regard to this article the grounds of disqualification in section 8 of The Representation of the People Act, 1951 constitute the subject matter.The section provides for disqualification of a sitting member of parliament or state legislature if he is convicted for any offence provided in the section sub clause (1) and (2) or if he is convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified and would remain disqualified for a further period of six years since his release. The Sub clause (4) of Section 8 of The Representation of People Act, 1951 provided a respite to a convicted Member of Parliament or Member of Legislative Assembly/ Legislative Council if an appeal or application for revision was filed by the convicted member within the period of three months from the date of order and such appeal or application of revision was accepted by the Court, then in such case the member could continue as the member of the concerned legislature until that appeal or application for revision was disposed of by the Court. The Hon’ble Supreme Court struck down the sub clause (4) of Section 8 of The Representation of People Act 1951 in the case of Lily Thomas v. Union of India[3]as it was in violation of Article 14 and 21. In aftermath of the Judgment of Lily Thomas v. Union of India[4] the present position is that a member of parliament or member of a state legislature stands disqualified on being convicted for an offence provided in sub clause (1) and (2) of Section 8 of the Representation of People Act 1951 or if he is convicted for an offence for which he is sentenced to a period of two years or more imprisonment and that such person would remain disqualified for that period of imprisonment and a further period of six years after his release.

Analysis of judgments related to criminalization of politics

In the case of Dinesh Trivedi v. Union of India[5]the extent of criminalization of politics was discussed by the Supreme Court of India. The Court held that criminalization of politics is a danger to the sacredness of democracy, the court noted that the crime syndicates is growing in the Indian Society and that the nexus between politicians, bureaucrats and criminal elements in the society is on the rise which is adversely affecting the free and fair electioneering process in the county. Supreme Court in K. Prabhakaran v. P Jayarajan[6] held that people with criminal background pollute the process of election as they have no reservation from indulging in criminality to gain success at an election. In the case of People’s Union for Civil Liberties v. Union of India[7] Supreme Court held that the voter has a fundamental right under Article 19(1) (a) to know the antecedents of the contesting candidate. It further held that voter’s fundamental right to know the antecedents of the contesting candidate is independent of other statutory rights. The right to vote would become meaningless if the antecedents of the contesting candidate is not known. The Court held that money power and muscle power have polluted the democratic process in India. Supreme Court in the case of Ram Udgar Singh v. State of Bihar[8] held that Politics which at one point of time was considered as the choice of luminaries, noble and decent people is increasingly becoming a heaven for law- breakers.

The Supreme Court in the case of K. Prabhakaran v. P Jayarajan[9] dealt with the issue of section 8(4) of the Representation of People Act which created a separate class of members of legislature who were convicted of offences provided under section 8(1) (2) and (3) and other convicted persons who desire to contest election. The Supreme Court upheld the section 8(4) and also upheld the special treatment and protection that it provided to the sitting members of the legislature. While upholding the said section 8 (4) the court opined that section 8(4) operates as an exception, the purpose of carving out the said exception between the sitting legislator and candidate is to protect the house. It is possible that the government in power may be having razor thin majority where disqualification of even one member may have serious consequences upon the functioning of the government. Therefore, the said distinguishment as created by the section 8(4) of the Representation of People Act was upheld. The Hon’ble Apex Court did not examine the provision on the basis of Article 102(e) of the Indian Constitution which was in-fact done by the case Lily Thomas v. Union of India.

The Supreme Court in Union of India v. Association for Democratic Reforms[10] while discussing about the purity of elections held that voters have elementary right to know full particulars of a candidate who is contesting an election to the legislature, the court further held that a voter has a right to know the antecedents including the criminal records of the contesting candidates before making the choice for whom to vote for. The court further directed the Election Commission to ensure that the contesting candidates furnish information pertaining to whether the candidate has been convicted/ acquitted or discharged of any criminal offence in past and if he was convicted what was the sentence awarded. It is thereby clear that attempt at cleaning the politics by bringing to the knowledge of voter the criminal antecedents of the contesting candidates was attempted by the apex court through its judgment rendered in Union of India v. Association for democratic reforms.

It was in the aftermath of the Union of India v. Association for Democratic reforms judgment that a contesting candidate is mandated to submit an affidavit in Form 26 which is to sworn before an oath commissioner or magistrate of First class or before Notary Public. This affidavit includes details of pending criminal cases, movable & immovable properties, sources of income and educational qualifications. It can therefore be concluded that Union of India v. Association for democratic reforms was an important step in the direction of decriminalizing politics as it mandated the necessary disclosure of criminal cases pending against a contesting candidate.

The issue before the Supreme Court in the case of Chief Election commissioner v. Jan Chaukidar[11] was pertaining to the conflict between section 4 of the Representation of people Act 1951 and section 62 of Representation of People Act 1951. Section 4 of the act provides the preconditions that the contesting candidate needs to fulfill in order to contest the election to the parliament which states that the contesting candidate needs to be an elector for any parliamentary constituency in the county. While section 62 (5) states that a person who is confined in prison would not be entitled to vote in a general election for Lok Sabha or State assembly. The contention of the petitioner was that as a person who is confined in Jail is not entitled to vote by virtue of section 62(5) of the Representation of people Act, 1951 therefore he is not an elector and is therefore disqualified from contesting the election to the Lok Sabha or to the state assembly as precondition set forth in section 4 and 5 of the Representation of People Act is not met. The Supreme Court held that right to vote is a statutory right which can be taken away by the procedure established by law. People in lawful custody of police in prisons will not be voters thereby they will not be electors temporarily though their name is present on the electoral rolls. In other words, the qualification to be an elector and right to vote is taken away from the person when such person is in lawful custody of police. The Supreme Court on this basis held that a person who has no right to vote by virtue of Section 62(5) is not an elector for such time period and is therefore not qualified to contest general elections to Lok Sabha or to State assemblies. In order to over-ride the effect of judgment delivered in the case of Chief Election Commissioner v. Jan Chaukidar the then central government got the bill passed by the parliament which amended the section 62 of the representation of the people act, 1951. The amendment added a new provisio which provided that by reason of prohibition to vote under section 62 of the Representation of People Act, 1951 whose name has been entered in the electoral roll shall not cease to be an elector. Thus, the amendment nullified the judgment rendered by the Supreme Court in the aforementioned case and expressly provided that an inmate though does not have a right to vote but he continues to be an elector thereby fulfilling the necessary condition set by section 4 and section 5 to contest general election to Lok Sabha and state assembly. Thus, the said amendment allowed the inmates to contest general elections to Lok Sabha and state assembly by nullifying the judgment rendered in the case of Chief Election Commissioner v. Jan Chaukidar.

Analysis of Lily Thomas V. Union of India – Case that barred criminals in politics

The Supreme Court bench led by Justice A.K Patnaik delivered an important judgment in Lily Thomas v. Union of India[12]  which has contributed significantly in decriminalizing the political system of the world’s largest democracy. This 2013 judgment had serious aftermath for those politicians who had criminal antecedents. The Judgment delivered by Justice A.K Patnaik led to severe backlash and in order to undo the effect of the judgment then central government came out with an ordinance to override the judgment pronounced by the Apex Court in the matter of Lily Thomas v. Union of India. This ordinance was severely opposed which led to withdrawal of the ordinance.

The Petitioner in the case Lily Thomas was an advocate herself and fought a long litigation battle to ensure that members who have been convicted of criminal offences don’t remain members of legislature. The efforts of Lily Thomas led to striking down of controversial section 8 (4) of the Representation of People Act,1951 which provided relief to convicted criminals to continue as members of legislature when their appeal was accepted by the higher adjudicating court. One of the first politicians who lost his membership of parliament was Lalu Prasad Yadav after he was convicted in the fodder scam in early 2013. 

The Supreme Court in this particular case specifically dealt with Article 102 (1) (e), Article 191 (1) (e) of the Indian Constitution 1950 along with the chapter III of the Representation of People Act ,1951 specifically section 7 and section 8 of the Act. The specific challenge in the writ petition pertained to section 8(4) of the Representation of people Act, 1951 which provided that notwithstanding anything mentioned in sub clauses (1) (2) and (3) of section 8, a sitting member of legislature would be provided a 3 months period to file an appeal against his conviction and if such appeal is admitted by the higher adjudicating court then until the appeal or application for revision is disposed of the said member of legislature would not stand disqualified due to being convicted for the offences mentioned in sub clause (1) (2) and (3). It was this protection provided by the section 8(4) for members of legislature which was pleaded by the petitioners to be declared ultra vires and unconstitutional. Senior Counsel Fali Nariman who appeared on behalf of the petitioner argued that filing of an appeal will not prevent the disqualification under sub clause (1) (2) and (3) from taking effect until a stay on order of conviction is obtained from the appellate court which is adjudicating the appealreliance upon Navjot Singh Sidhu v. State of Punjab[13]. Mr. Nariman, Senior Advocate further argued that section 8(4) does not provides any rationale for providing special protection to sitting members of legislature and therefore said provision is arbitrary, discriminatory in nature and violative of Article 14 of the Indian Constitution, 1950.

Additional Solicitor General of India argued on behalf of the Union of India and stated that as the chances of acquittals in the levels of appellate court such as High Court is very high therefore section 8(4) provides the said protection to the sitting members of legislature from being disqualified pending adjudication by the appellate court.

The Apex Court in the present case in the 28th Para held that parliament does not have power under Article 102 (1) (e) and 191 (1) (e) of the Indian Constitution 1950 to make different laws for a person to be disqualified for being chosen as member of the legislature and for a person to be disqualified for continuing as a member of legislature in other words the apex court ruled that only one set of disqualifications would govern both those who aspire to be members of legislature and those who are members of the legislature. The apex court further held that section 8(4) which craves out special protection for sitting members of legislature from being disqualified due to section 8(1) (2) and (3) is beyond the powers conferred by the constitution on the parliament, the bench held that parliament has exceeded its powers in enacting the section 8(4) and therefore the said section is ultra vires.

The apex court thereby through its judgment rendered the section 8 (4) as ultra vires and declared it unconstitutional. The judgment thereby removed the special protection that was enjoyed by the sitting members of legislature. The law on disqualification on being convicted of offences as prescribed in section 8 (1), (2) and (3) now stands as follow-

The member of legislature would be immediately disqualified from the membership of the concerned legislature on being convicted for offences as mentioned in section 8 (1) (2) and (3) and that he would stand disqualified even if his appeal is pending adjudication, the sole respite for the contesting candidate is that if the operation of the said conviction is stayed by the appellate court under the powers conferred upon it by section 389(1) of the code of criminal procedure, 1973 or if operation of such conviction is stayed by the High Court under its inherent powers as conferred by section 482 of Code of Criminal Procedure, 1973 then the candidate can contest the election.  

Analysis of Public Interest Foundation v. Union of India – Can filing of charge-sheet lead to disqualification?

The chief Justice delivered the judgment of the constitutional bench. The bench opined that it is the responsibility of the constitutional functionaries to ensure that the political framework of the country does not gets tainted with the evil of corruption but despite this mandate the Indian democracy has seen a steady increase in the level of criminalization in Indian polity. Criminalization of politics strikes at the root of the democratic form of government by making the citizenry suffer at the hands of those who are nothing but a liability to the country.

The issue before the apex court for consideration was whether new grounds of disqualification can be laid down by the court beyond the Article 102 (a) to (d) and the laws made by the parliament under Article 102(e) to hold a member of legislature as disqualified.  The apex court highlighted that the disqualification as per section 7 of the Representation of People Act,1951 can only take place on the grounds mentioned under the chapter III of the act and not on any other ground.

The counsel for petitioner argued that there cannot be a paradise for people with criminal antecedents in the legislatures. The counsel for petitioner further contended that framing of charges in criminal cases has been recognized as a disqualification for several constitutional posts such as members of Public Service Commission, Chief Vigilance Commissioner and therefore same should be extended to the post of member of parliament and state assembly. It was contended that such disqualification should be extended as members of legislature hold such posts in constitutional trust.  The counsel for petitioner contended that debarring a person charged of serious and heinous offences from contesting election is merely a restriction which is distinctively civil in nature.

The court recognized that it is settled law that court cannot legislate. It can merely issue guidelines and directions. It was held that it cannot legislate new grounds for disqualification, the legislature has enumerated the grounds for disqualification and the said provision leaves no room for any new ground to be introduced.  Further the court opined that the law commission’s 244th report which has studied the question of disqualification on filing of charge-sheet has held that disqualification at the stage of framing of charges is justified given the concerns of criminalization of politics in India. It was also highlighted by the court that the recommendations of law commission’s 244th report never saw the light of the day but the report has exhibited the concern of the society in regards to increasing criminalization of politics. 

The amicus curiae Mr. Sidharth Luthra Senior counsel opined that if the court is not inclined to insert a new disqualification ground, it can direct the election commission  to include a condition in the Election Symbols (Reservation and Allotment) Order 1968 that a candidate against whom criminal charges for commission of serious and heinous offences are framed should not be allowed to contest the election under the symbol of the party he belongs to this would not amount to insertion of a new disqualification and at same time would lead the political parties not to give tickets to persons having criminal antecedents. The Supreme Court rejected this alternative proposal as it held that this would tantamount to adding a new ground for disqualification which is beyond the powers of the judiciary. The court held that criminalization of politics is a termite to the citadel of democracy but the courts can’t make the law which is constitutionally not permittable and can only advise the legislature to make law to tackle the menace.

The Apex Court recommended the parliament to draft a strong law which makes it mandatory for the political parties to revoke the membership of persons against whom charges of serious and heinous offences are framed, this in view of the court will go a long way in decriminalizing the political system of the country.  The Apex Court held that though it can’t stop the candidates from contesting elections if charges are framed against them for heinous and serious offences but laid down certain directions which included mentioning of the criminal cases pending against him in bold. He further needs to inform the political party about the criminal cases pending against him, such political party is obligated to put up on its website the criminal antecedents of the contesting candidates. The Court further directed that the candidate needs to issue a declaration in a widely circulated newspaper regarding the criminal antecedents same needs to be given publicity in electronic media as-well. It was held that complete information in regards to the criminal antecedents of the contesting candidate forms the bedrock of the decision making and informed choice by the citizenry which is the cornerstone to have a pure and strong democracy. It further opined that the time has come when the parliament must make law to ensure that persons charged with serious and heinous offences do not enter the political stream.

Way forward:

The Law Commission in its 244th report dealt with the issue of disqualifying candidates from contesting elections when final investigation report is filed under the section 173 of the Code of Criminal Procedure, 1973 and charges are framed against such person.

The Commission held that the disqualification after conviction has been proved to be incapable of controlling the growth of criminalization of politics due to the fact that there is presence of inordinate delays in conducting the trial. The Commission report provided that framing of charges stage provides much required judicial scrutiny and disqualification after charges are framed if backed by legal safeguards to prevent its misuse would be sufficient to curb the growth of criminalization of politics.

The commission concluded that once the final investigation report is submitted to the court, the court examines the evidence on record and based upon the judicial scrutiny of the available evidence either discharges the accused of the charges levelled against him by the investigative authority or frames charges therefore if such person is disqualified on the basis of the framing of charges then such disqualification would be able to curb the growth of criminalization of politics.

The commission opined that all charges framed within one year prior to the date of scrutiny of nominations would not lead to disqualification.The cut off period of one year before the scrutiny of nominations would ensure that no person is prohibited from contesting elections on the basis of a false case lodged against him, further the commission recommends disqualification of a person against whom charges are framed only if the said offence provides for a minimum punishment of 5 years. The commission recommended the amendment of Representation of People Act, 1951 and insertion of new section 8B in the enactment which should read as Disqualification on framing of charge for certain offences.

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It is the opinion of the author that implementation of the said report will ensure that habitual criminals are prevented from entering the political system of the country.It is clear that the commission has provided sufficient safeguards to ensure that the said amendment is not misused. Implementation of the Law Commission’s 244th report would be of great use in reducing the criminalization in the electoral system of India and is the way forward to decriminalize electoral politics.

The Author is an Advocate, Supreme Court of India.

[1] Article 326 of Indian Constitution.

[2] (2011) 1 SCC 370

[3] (2013) 7 SCC 653.

[4] (2013) 7 SCC 653.

[5] (1997) 4 SCC 306.

[6] (2005) 1 SCC 754.

[7] (2003) 4 SCC 399.

[8] (2004) 10 SCC 443.

[9] (2005) 1 SCC 754.

[10] (2002) 5 SCC 294.

[11] (2013) 7 SCC 507

[12] (2013) 7 SCC 653.

[13] (2007) 2 SCC 574.

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