Decode Politics: Disqualification of convicts from contesting polls — what the rules say

What is the EC’s role in disqualifying convicted candidates?

Section 8 of the RP Act mandates disqualification of convicts for six years in certain cases, including convictions for any offence and in case of a prison sentence of two or more years.

While the disqualification for these offences is automatic, under Section 10A, the EC has the power to disqualify anyone who fails to lodge an account of election expenses for three years. Under the RP Act, all contesting candidates have to submit an account of election expenses to the EC in a prescribed manner.

The EC is empowered to give relief to those disqualified, except those disqualified for corrupt practices as per Section 8A of the RP Act. Section 11 of the Act gives the EC the power to remove or reduce the period of disqualification.

“The Election Commission may, for reasons to be recorded, remove any disqualification under this Chapter 1 [(except under section 8A)] or reduce the period of any such disqualification,” Section 11 states.

The disqualified candidates can appeal to the EC. The electoral body then holds hearings and passes an order giving the reasoning for its decision.

Does the EC maintain a record of disqualification reductions?

The EC does not publicly maintain a list of such reductions or removals that it has ordered. However, it does publish a state-wise annual list of disqualified persons. The EC’s website also includes orders issued by it in the recent past regarding disqualifications.

The most recent order available on the EC website is from October 2022, when the Commission reduced the disqualification of Sampangi Raaj, a candidate from Chamrajpet constituency in the 2018 Karnataka Assembly elections, by around two years. Raaj had been disqualified by the EC in August 2021 for three years for failing to lodge an account of election expenses. He appealed the three-year disqualification and it was reduced till the time of the EC order in October 2022.

In March 2021, the EC shortened the three-year disqualification for S Baskaran, a candidate from the Puducherry Lok Sabha seat in 2019, for not lodging his account of election expenses in the manner required by law.

Sikkim Chief Minister Prem Singh Tamang’s disqualification period was also reduced after his conviction in a case under the Prevention of Corruption Act in 2016. The case pertained to the misappropriation of funds meant for procurement of cows during his tenure as Sikkim Animal Husbandry Minister. In his appeal to the EC, Tamang said he had served his full imprisonment from 2017 to 2018.

“In the instant case, the disqualification entails for 6 years without any distinction, however, the legislative intent under Section 11 of the RP Act, 1951 is to enable this Commission to weigh the facts and circumstances in such cases and take a reasoned decision. The legislature has, in its wisdom, deemed it necessary to vest this Commission with this power with the understanding that socio-economic-political factors may, in certain peculiar circumstances, warrant that the general disqualification prescribed by statutory rule should be removed/reduced by exercising this extraordinary power,” read the EC order on September 29, 2019, on Tamang.

Tamang’s six-year disqualification was reduced to one year and one month. He was unable to contest the 2019 Sikkim Assembly election as he was disqualified at the time. But after the EC’s order, he contested a bypoll and was elected to the Assembly later that year.

What is the government’s stand on lifetime ban on convicts?

Amid growing criminalisation of politics, there is a debate on whether the six-year disqualification is enough.

The Union government opposed the current petitions in the Supreme Court that seek lifetime bans on convicted politicians from contesting elections. The government told the court there was “nothing inherently unconstitutional” in limiting the disqualification to six years. The government submitted in a counteraffidavit filed last month that “deterrence is ensured while undue harshness is avoided” in the current scheme of things.