At least four commissions have opined that framing of charges is enough to bar individuals from contesting elections to Parliament and State Assemblies. But lawmakers could not care less
The National Commission to Review the Working of the Constitution, which was headed by the eminent jurist and former Chief Justice of India MN Venkatachalaiah, recommended that the election law be amended to bar any person charged with an offence punishable with imprisonment up to five years, from contesting elections to Parliament and State Assemblies. Further, he said any person convicted for heinous offences like murder, rape, dacoity and smuggling must be permanently barred from contesting elections.
The Second Administrative Reforms Commission headed by Mr Veerappa Moily, a member of the Union Cabinet, recommended that Section 8 of the Representation of the People Act, 1951, be amended “to disqualify all persons facing charges related to grave and heinous offences and corruption”, with the modification suggested by the Election Commission. The law Commission suggested 14 years ago that mere framing of charges by a court in regard to election-related offences should by itself be a ground for disqualifying a person from contesting an election. In other words, all the three august Commissions held the view that mere framing of charges was enough to bar individuals from contesting elections to Parliament and State Assemblies.
The Election Commission decided 16 years ago that candidates in Parliament and State Assembly elections should file affidavits about their convictions in cases covered by Section 8 of the RP Act, 1951. The Commission was of the view that conviction by a trial court was sufficient to attract disqualification “and even those released on bail during the pendency of their appeals against their convictions are disqualified from contesting elections”.
Thereafter, in September 1997, the Chief Election Commissioner wrote to the Prime Minister and pressed for immediate amendment of the law to deal effectively with the malaise. He said there were “grave incongruities” in the existing provisions in Section 8 and wanted the same amended. He held the view that “a person facing trial in a serious offence, if kept out of the electoral fray till he is exonerated of the charge, should not have a legitimate grievance, as such restriction on his right to contest elections would be a reasonable restriction in the greater public interest and for bringing sanctity to the august Houses which are the supreme law making bodies of the country”. The Election Commission’s efforts to keep criminals out of electoral politics was stonewalled by successive Union Governments for 16 years.
It is in this context that the Supreme Court recently decided to strike down Section 8(4) of the RP Act, 1951, which enabled criminals to continue their tenures in Parliament and State Assemblies if they filed appeals against their conviction in a higher court. Any judge in any democracy who sees steady deterioration in democratic values is bound to correct the aberration. And that is exactly what the Supreme Court did last July. Though the Court did not bar politicians who are charge-sheeted from contesting polls, it declared that a person convicted and sentenced to two years imprisonment, should be kept out of the electoral fray, even if his appeal is pending in a higher court. The court also barred persons in jail from contesting elections because such persons lose the right to vote.
Rejecting the opinions of some of the best legal minds in the country, the political class has almost unanimously decided to challenge the Supreme Court’s verdict and to take legislative measures to undo parts of the apex court’s order. Sailing along with this view, which was expressed forcefully by politicians from across the political spectrum at an all-party meeting convened prior to the Monsoon Session of Parliament, the Government announced its resolve to seek a review of the apex court’s judgement and simultaneously introduced a Bill to amend the Representation of the People Act, 1951.
The purpose of this amendment is to protect the so-called rights of criminal-politicians rather than that of the people. They are also meant to overturn the verdict of the Supreme Court relating the prohibition imposed by the court on persons in jail losing their right to file nominations in elections. The Rajya Sabha cleared this amendment last week. Union law Minister Kapil Sibal, who piloted this Bill, decided to utilise the opportunity to lecture the judiciary and all and sundry. He advised the judiciary to be “extremely careful” in giving rulings which have an impact on the polity. He claimed that there was a negative perception in the country that all politicians are criminals and that the courts were enthusiastic to prove this to be right.
Really, Mr SibalIJ let us test the law Minister’s defence of the politician on the basis of available facts and the analysis of the background of our representatives done by the Association of Democratic Rights. This organisation has found that 1,460 of the 4,807 (constituting 30 per cent) sitting MPs and MlAs in the country have declared criminal cases against themselves in their self-sworn affidavits submitted to the Election Commission of India prior to contesting elections. Fourteen per cent or 688 out of the total number of sitting MPs and MlAs have declared serious criminal cases against themselves. Further, ADR has found that 162 (that is 30 per cent) of the 543 lok Sabha MPs have declared criminal cases against themselves of which 14 per cent of the MPs have declared serious criminal cases against themselves. Of the 4,032 MlAs in the country, as many as 1,258 (31 per cent) from all State Assemblies have declared criminal cases against themselves. Here too, 15 per cent of the MlAs from all State Assemblies have declared serious criminal cases against themselves, according to this analysis by ADR.
Mr Sibal also made the extraordinary claim that the political class was the most accountable in the country and that the politicians were accountable to Parliament, to the Election Commission, to the country and to the people. It was strange to hear this from the law Minister of a Government that wants the Supreme Court to review the latter’s decision to bar convicted persons from continuing in Parliament and State Assemblies and which has introduced amendments to the RP Act to undo another aspect of that verdict. It is equally strange to hear this from a law Minister whose actions betray utter contempt for the opinions of the law Commission, the Commission headed by Justice Venkatachalaiah, the Second Administrative Reforms Commission, the Election Commission and the Supreme Court. This is yet another example of what political power does to individuals. They seriously believe that they have the power to fool all the people all the time.