Introduction

As per the existing legal framework, only conviction for certain offences will result in disqualification from membership to the legislative bodies , thereby allowing candidates with pending criminal cases, many of heinous nature, to contest elections.

As per sub-clause (e) of clause (1) of Article 102 of the Constitution, a person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament if he is so disqualified by or under any law made by Parliament. Sections 8, 8A, 9, 9A, 10A and 11A of the Representation of the People Act, 1951 (henceforth, referred to as the RP Act, 1951) deal with disqualification on the following grounds:-

• Conviction for certain offences (Section 8);
• Corrupt practices (Section 8A);
• Dismissal for corruption or disloyalty (Section 9);
• Government contracts, etc. (Section 9-A);
• Office under Government company (Section 10);
• Failure to lodge account of election expenses (Section 10A); and
• Conviction for certain electoral offences (Section 11A).

Offences

Offences mentioned under 8(1) and 8(2) of the RP Act, 1951 include:

• Offences under Section 3 of TADA

• Various offences under sections of the Indian Penal Code including rape, cruelty towards women by husband or relatives

• Offences under Section 11 of the Customs Act (offences of importing or exporting prohibited goods)

• Offences under Narcotics Drugs and Psychotropic Substances Act

• Contravention of any provisions of the Dowry Prohibition Act

Additionally, Section 8(3) of the said Act provides a catch-all provision by inviting disqualification for any offense punishable by imprisonment for a period of 2 years of more. The period of disqualification under all the 3 sections for convictions which result in imprisonment covers the term of imprisonment in addition to another 6 years starting from the date of release. For convictions that do not carry a term of imprisonment, the period of disqualification will be 6 years commencing from the date of conviction.

Section 8(4) of the RPA, 1951: A Safety Net for serving legislators

Section 8(4) of the Representative of People Act, 1951 states:

“[4] Notwithstanding anything in sub-section (1), sub-section (2), or sub section (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the Court”.

By obviating the need to relinquish membership by merely filing an appeal against a conviction, Section 8(4) extends to serving members of the legislative bodies a privilege that is not available to candidates contesting elections. Further, the appeals process invariably extends beyond the term of the legislative body thereby allowing a convicted legislator to serve for the full term of the legislative body.

Thus, Section 8(4) effectively shields serving legislators from the provisions of Sections 8(1), 8(2) and 8(3) of the RPA, 1951 and defeats the very purpose of enactment in their case.

Review

Review of Recent Initiatives to Decriminalize the Democratic Polity

Civil Society Activism: Enabling the electorate to make a more informed choice

The Supreme Court of India had in its order dated 2^nd May 2002 in Civil Appeal No. 7178 of 2001 – Union of India Vs Association for Democratic Reforms, inter alia, given the following direction:

“The Election Commission is directed to call for information on affidavit by issuing necessary order in exercise of its power under Article 324 of the Constitution of India from each candidate seeking election to Parliament or a state legislature as a necessary part of his nomination paper, furnishing therein, information on the following aspects in relation to his/her candidature :-

Whether the candidate is convicted/acquitted/ discharged of any criminal offence in the past- if any, whether he is punished with imprisonment or fine?

Prior to six months of filing of nomination, whether the candidate is accused in any pending case, of any offence punishable with imprisonment for two years or more, and in which charge is framed or cognizance is taken by the court of law. If so, the details thereof.”

In accordance with the ruling, the Election Commission issued directives requiring candidates contesting elections to the legislative bodies to disclose information regarding their criminal antecedents, financial position and educational qualifications. The ruling and subsequent rules framed by the Election Commission was a game-changer in that it has created the impetus and framework for civil society organizations to work purposefully towards enabling voters to make a more informed choice basis the candidate’s background and where relevant, the candidate’s track-record in public office. The landmark Supreme Court judgement has spawned election watch groups across the country that focus on raising voter awareness, creating an enabling environment to help voters make an informed choice, and improving the quality of electoral processes in general.

Gains, which can be partially attributed to the redoubtable efforts of the election watch groups, are listed below:

Over the last 3-4 years, newly constituted State Assemblies have returned a lesser number of MLAs with pending criminal cases

Leaders of major political parties are now mindful of the need to weed out aspirants with criminal track-records. On the occasion of the Diamond Jubilee Celebrations of the Election Commission of India, Smt. Sonia Gandhi, UPA Chairperson stated

“We need to do more in contending with the influence of money and muscle power...We also need to build a consensus on how to prevent individuals with a criminal record from contesting elections."

Shri Rahul Gandhi to the media on September 10, 2009 in the context of cine-stars joining the Congress had this to say – “Our system is open to anybody who wants to enter it. The only barrier we put is the barrier of criminality”

(Referenced from www.rediff.com).

Shri L. K. Advani had stated in October 2008 that the BJP would not field candidates with criminal antecedents for the 2009 General Elections.

• · There is greater sensitivity regarding awarding Ministerial berths to MLAs with criminal background – Post 2007 Bihar Assembly elections, the Nitish Kumar Government was particularly sensitive to inducting any MLA with pending criminal cases into the cabinet.

Recommendations of Prominent Commissions on Decriminalization of Polity

The criminalization of our democratic polity has greatly exercised public agencies, constitutional bodies, and prominent political leaders. Over the years, prominent Commissions constituted by GoI to advise it on electoral reforms and the Election Commission of India have recommended that the RPA, 1951 be amended to debar candidates with pending criminal cases of a serious nature from contesting elections to the legislatures. Some of these are summarized in what follows:

Law Commission of India in its 170th Report on ‘Reforms of the Electoral Laws (1999)’ considered the issue of disqualification of persons on the ground of charges framed against them by the court. After taking into account different views, for and against, the Law Commission recommended insertion of a new section 8B in the Representation of the People Act, 1951 in the following words:

“8-B Disqualification on framing of charge for certain offences-A person against whom charge has been framed under :–

(a) section 153A, section 171E, section 171F, section

171G, section 171H, section 171-I, sub-section (1) or sub-section (2) of section 376, sub-section (2) or sub-section (3) of section 505 of the Indian Penal Code (45 of 1860); or

(b) Sections 10 to 12 of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or

(c) The penal provisions of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) except section 27 thereof; or

(d) Section 125, section 135, section 135 A or sub-section (2) of section 136 of this Act; or

(e) Any other offence punishable with imprisonment for life or death under any law.

shall be disqualified for a period of five years from the date of framing the charge, provided he is not acquitted of the said charge before the date of scrutiny notified under section 36 of this Act.”

ii) The National Commission to Review the Working of the Constitution also examined this issue and recommended in its ‘Review of the Working of the Constitution’ as under:

“The Commission recommends that the Representation of the People Act be amended to provide that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as, or for being, a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence. In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered.”

“Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc. should be permanently debarred from contesting for any political office.”

“Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off (sic) speedily, if necessary, by appointing Special Courts.”

“A potential candidate against whom the police have framed charges may take the matter to the Special Court. This court should be obliged to enquire into and take a decision in a strictly time bound manner. Basically, this court may decide whether there is indeed a prima facie case justifying the framing of charges.”

“The Special Courts should be constituted at the level of High Courts and their decisions should be appealable to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). The Special Courts should decide the cases within a period of six months. For deciding the cases, these Courts should take evidence through Commissioners.”

iii) The Election Commission of India, in its 'Proposals on Electoral Reforms (July 2004)', observed as follows:

"The Commission had proposed that the law should be amended to provide that any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. The Commission reiterates that such a step would go a long way in cleansing the political establishment from the influence of criminal elements and protecting the sanctity of the Legislative Houses".

Summary Table

Summary Table

Amending Legislation to Decriminalize Polity – View of Parliament

Lobbying and advocacy related to amending the law necessarily has to be in consonance with the views of the Indian Parliament. The 18th Report of the Department Related Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice (downloadable from http://164.100.47.5/newsite/committeereports/reports.aspx) tabled in the Indian Parliament on March 2007 can be taken to represent the official view of the Indian Parliament, at least as of March 2007. The Committee’s report rejects proposed amendments the RP Act, 1951 to disqualify candidates against whom cases punishable by imprisonment are pending.

The Committee’s reasons for arriving at the said conclusions can be summarized as:

• As per amended Criminal Procedure Code (1973), at the stage of framing charges under Section 228 of CrPC, the Court is not required to appreciate evidence to conclude whether the materials produced are sufficient for convicting the accused

• Consequently, if the law is amended as proposed, there is a likelihood of the party in power framing false and malafide charges against political opponents, which will deprive the candidate her statutory right to contest election

The Committee report recommends that “one situation in which disqualification can be sustained is that if an (sic) case is pending against a person but the accused has absconded and is making the completion of the trial or even the framing of charges impossible. A person, facing a charge by the State and without utilizing the opportunity under Section 227 for discharge absconds from the proceedings of the court and the court is also satisfied under section 82 of Cr PC and subsequently publishes a proclamation that such person is absconding, can be considered for the purpose of disqualification from contesting an election.”

In wake of the 18th report on Electoral Reforms of the Parliamentary Standing Committee on Personnel, Public Grievances, Law and Justice, lobbying Parliament to amend the 1951 Act to debar candidates with pending criminal charges is unlikely to yield positive results in medium term scenario.

Criminal Presence in the Legislative Bodies - Current Levels and Trends

Criminalization of our democratic polity, as indicated by the number of legislators with serious pending criminal charges, remains at disturbingly high levels. (Serious pending criminal cases can be defined as those which are related to offences mentioned under Sections 8(1), 8(2) and 8(3) of the RP Act, 1951 and would therefore invite disqualification from membership to the legislative bodies if they result in conviction). Information in this regard is presented for the Lok Sabha, Rajya Sabha, and some of the recently constituted State Legislative Assemblies.

Lok Sabha

The House of People - Lok Sabha

As per the affidavits filed with the Election Commission of India in the context of General Elections 2009, 162 MPs elected to the XVth Lok Sabha had 522 pending criminal cases relating to offences covered under section 8 (1), section 8 (2) or section 8 (3) of the Representation of People Act, 1951. This number is substantially higher than in the XIVth Lok Sabha as the following table shows:

Source: Compiled from affidavits filed by candidates with Election Commission in connection with the General Elections of 2009 and 2004)

These 522 cases comprise 1767 offences of which 38( 2.15%) fall under Section 8(1), 2 (0.11%) fall under Section 8(2) and 1727 (97.74%) , which are punishable by imprisonment for two years or more, fall under Section 8(3) of the Representation of People Act, 1951.

State Legislative Assemblies

State Legislative Assemblies

The state legislatures also harbour a large number of members with pending criminal cases. Information in this regard for some of the recently constituted State Legislative Assemblies is presented in the following table:

Source: www.adrindia.org (Compiled from affidavits filed by candidates with the Election Commission before the respective State Legislative Assembly elections)

Rajya Sabha

The House of Elders – Rajya Sabha

On the basis of affidavits filed by 219 Raja Sabha (RS) MPs in 2008-09 with the Rajya Sabha secretariat, it can be inferred that 37 MPs (17% of the strength of the house) had pending criminal cases. The State- wise break up is given in the table below:

Source: www.adrindia.org (Compiled from affidavits filed by members with the Rajya Sabha secretariat)

Temporal Analysis

Criminal Cases pending against Serving Legislators – Temporal Analysis

The Indian Justice Delivery System is characterized by a high degree of case pendency and the situation is no different with regard to cases pending against legislators. More pertinently, cases against legislators rarely achieve judicial resolution during their term of membership. With non judicial resolution, a large number of MPs and MLAs with pending criminal cases, many of a heinous nature, serve their terms and even get re-elected with the cases still pending and a question mark hanging over their moral authority to legislate laws in the national interest.

This leads to the indubitable conclusion that provisions under Sections 8(1), 8(2) and 8(3) of the RP ACT, 1951 enacted for shielding the Legislature from criminal elements have been rendered virtually nugatory.

Evidence to support this premise

We have collated information in this regard for MPs of the XVth Lok Sabha on the basis of affidavits filed by them with the Election Commission before the 2009 General Elections. Of the 522 cases pending criminal cases in total, information regarding the date of framing charges/ or date of court taking cognizance by the court were available only for 111 cases in the affidavits filed by the winning candidates with the Election Commission. The following picture emerges from a vintage analysis of the pending cases.

Source: Compiled from affidavits filed by candidates with the Election Commission before the 2009 General Elections

As many as 41% of the cases have been pending in courts for more than four years.

A related and more pertinent point is that these cases rarely achieve judicial closure during the term of the legislative bodies. We present empirical evidence in support of this premise:

As mentioned previously, 128 MPs of the XIVth Lok Sabha had pending criminal cases relating to offences covered under section 8 (1) or section 8 (2) of the Representation of People Act, 1951, or those punishable by imprisonment for two or more years as of April 2004. Out of these, 11 MPs with 28 cases pending as of April 2004 were re-elected to the XVth Lok Sabha. It can be seen that out of the 28 cases tracked between 2004 and 2009, 23 are still pending, 2 were disposed of, and nothing definite can be inferred about the remaining 3 cases since they are not mentioned in the affidavits filed before the 2009 General Elections. Removing these 3 cases from the consideration set and assuming that the remaining 25 cases constitute a representative sample, it can be inferred that 92% of pending cases against legislators do not achieve judicial resolution during the 5 year term of a legislative body.