Cleaning the House

Must tainted legislators be debarred from polls? For how long? Answers are about to come in

Written by S Y Quraishi | Updated: July 24, 2017 5:43 am
Election Commission, EC, Criminal candidates, elections, ban on candidates convicted in criminal cases, supreme court, latest news, express opinion, indian express The issue has two dimensions: One, how to deal with the politicians after conviction and, two, before conviction, while they are still under trial.

Criminalisation of politics has been a matter of great concern, particularly in the last two decades. The Supreme Court’s latest order asks the Election Commission to clarify its position on the PIL seeking a lifelong ban on candidates convicted in criminal cases. Just a couple of months ago, the EC had supported the petitioner. In the hearing on July 18, however, the EC’s advocate took a different stand.

“[The] Commission has not taken any decision and doubts whether it falls in the legislature’s domain,” he told the court. Since this stand was inconsistent with the one taken earlier, the Supreme Court came down heavily on the EC. “Can you afford to remain silent when it is within the domain of the commission? If you don’t want to be independent, if you want to be constrained by the legislature, constrained even to express your views, say so freely,” it said.

Such a rebuke to the commission is unprecedented. The Supreme Court, in fact, has been extremely supportive of the EC, so much so that I have always described it as the commission’s guardian angel. When the matter comes up before the court next, it is expected that the EC will unequivocally reiterate the plea to debar convicted MPs and MLAs for life from contesting elections. “The Commission has not taken any U-turn and is unambiguously in sync with the petitioner’s prayer to debar the convicted legislators (MPs and MLAs) for life,” the commission’s officials have clarified.

My personal opinion is that the lifelong ban is too harsh. Under the present law, the minimum bar of a politician from election is eight years (two years of minimum imprisonment followed by six years of ban). That is enough to kill his political career.

The positive aspect of the unpleasant situation is that the need for cleansing politics of criminal influence has been flagged once again. The issue has two dimensions: One, how to deal with the politicians after conviction and, two, before conviction, while they are still under trial.

Protecting the parliamentary system from criminalisation has been the intention of the law from the beginning. Section 8 of the Representation of the People (RP) Act, 1951 disqualifies a person convicted with a sentence of two years or more from contesting elections. But those under trial continued to be eligible to contest elections. The Lily Thomas case (2013), however, ended this unfair advantage.

The SC has repeatedly expressed concern about the purity of legislatures. In 2002, it made it obligatory for all candidates to file an affidavit before the returning officer, disclosing criminal cases pending against them. Civil society organisations like the Association for Democratic Reforms (ADR) analyse and publish this information. The concern of the apex court has been increasingly clear from a series of judgments. The famous order to introduce NOTA was intended to make political parties think before giving tickets to the tainted. According to the ADR’s analysis of EC data, 187 MPs in the current Lok Sabha face criminal charges (that is, 34.4 per cent). Of them, 113 face serious criminal charges. The number has gone up from 162 (76 serious) charges in 2009 and 128 (58 serious) in 2004. This obviously shows the political class and legislature in a poor light. What is the way out? There are three possible options. One, political parties should themselves refuse tickets to the tainted. Two, the RP Act should be amended to debar persons against whom cases of a heinous nature are pending from contesting elections. Three, fast-track courts should decide the cases of tainted legislators quickly.

Far from denying tickets to criminals, all political parties seem to have been in competition to give them more and more tickets. They have been unitedly opposing the proposal to debar perpetrators of even heinous offences during pendency of trial on the grounds that false criminal cases may be filed by opponents. This concern is partly valid. However, the EC’s proposal itself has three safeguards. First, all criminal cases would not invite the ban — only heinous offences like murder, dacoity, rape, kidnapping or moral turpitude. Second, the case should have been registered at least a year before the elections. Third, the court must have framed the charges.

The opponents of the proposal also argue that the jurisprudence followed in the country holds that a person is innocent until proven guilty. Then what about the over 2.7 lakh persons today who are undertrials (and are therefore “innocent”) and locked up in jails? Their fundamental rights of liberty, freedom of movement, freedom of occupation and dignity are denied. Does this not violate the fundamental right of equality? If the rights of an undertrial can be suspended within the ambit of the law, what is the problem about temporarily suspending the right to contest an election, which, incidentally, is only a statutory right?

Another pertinent question is will fast-track courts be illegal as they will treat the cases against politicians differently from the lakhs of other cases awaiting a decision for years? No. Fast tracking has been the accepted norm. Special CBI courts, consumer courts, special courts for economic offences and, more recently, fast-track courts for rape cases do create special categories for adjudication, and nobody has dubbed them discriminatory.

The RP Act also recognises the principle of fast-tracking, requiring the high court to decide on election petitions within six months. The fact that courts have been taking years to decide on election petitions makes it an issue of dereliction by the judiciary of its statutory obligation, not a deficiency of the law.

This has been addressed by the landmark judgment of March 2014, in which the SC accepted the urgent need for cleansing politics of criminalisation and directed all subordinate courts to decide on cases involving legislators within a year, or give reasons for not doing so to the chief justice of the high court. The government of India promptly offered full support for the implementation of this order. It is important to see how the SC judgement has been implemented on the ground.

With the SC positively inclined and the PM’s concern for a corruption-free India through electoral reforms, the problem may finally be nearing resolution. The writer is former chief election commissioner of India, and author of ‘An Undocumented Wonder — The Making of the Great Indian Election’

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