For representative purposes.
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The story so far: The Supreme Court is hearing petitions filed by Ashwin Upadhyay and others, seeking a life time ban on convicted persons from contesting elections.
What are the legal provisions?
Section 8(3) of the Representation of the People Act, 1951 (RP Act, 1951), provides for the disqualification of a person convicted of a criminal offence and sentenced to imprisonment for not less than two years. Such a person is disqualified from contesting elections for a further period of six years from the date of release. Section 8(1) further stipulates that a person convicted under criminal laws for heinous crimes like rape; the Protection of Civil Rights (PCR) act for preaching or practice of untouchability; UAPA for unlawful association; Prevention of Corruption Act etc., will be disqualified irrespective of the period of their sentence and six years after release.
What were past decisions?
The Supreme Court has delivered notable judgments in favour of the decriminalisation of politics. In the Association for Democratic Reforms (ADR) case (2002), it mandated the disclosure of criminal records of all candidates contesting elections. In the CEC vs Jan Chaukidar case (2013), it upheld the creative interpretation of the provisions of the RP Act, 1951 by the Patna High Court. One of the qualifications as per the act to contest elections is that a person should be an ‘elector.’ Section 62(5) stipulates that a person in jail is not eligible to vote in elections. The court interpreted that persons who are under trial prisoners, therefore cease to be ‘electors’ and hence not qualified to contest elections. However, the Parliament amended the act in 2013 to overturn this judgment allowing under trial prisoners to contest elections. In Lily Thomas (2013), the court struck down section 8(4) of the RP Act, 1951, that allowed a sitting legislator to continue as a member even after being convicted if they filed an appeal, as unconstitutional and against political justice. After this judgment, a sitting legislator is disqualified immediately after the sentencing for a conviction.
It is pertinent to note that Section 11 of the RP Act, 1951 provides that the Election Commission (EC) may remove any disqualification or reduce the period of disqualification of a convicted person. It utilised this power in September 2019, to reduce the disqualification period of Prem Singh Tamang, incumbent Chief Minister of Sikkim, from six years to 13 months which allowed him to contest and win a byelection.
It was a questionable decision of the EC to have reduced the disqualification period of a person convicted under the Prevention of Corruption Act, considering its various recommendations to curb criminalisation of politics.
What is the current petition?
The current petition seeks a life time ban on convicted persons from contesting elections. The petitioners argue that if a convicted person is not eligible for even a junior-grade government job, how could they become law makers six years after serving their sentence. However, the Central government in an affidavit filed before the court in 2020 had mentioned that MPs and MLAs are not bound by any ‘service conditions’ unlike government servants, and hence the present disqualification period of six years after serving the sentence is adequate.
The Supreme Court has again sought the response of the Central government and the EC on the current petition.
What can be the way forward?
A report by ADR states that 251 (46%) of the 543 elected MPs in 2024, have criminal cases against them, and 171 (31%) face serious criminal charges including rape, murder, attempt to murder and kidnapping. It added that chances of winning for a candidate with a criminal background was 15.4% as against just 4.4% for a candidate with a clean background. The Law Commission in 1999 and 2014, and the EC on various occasions have highlighted the need to curb the criminalisation of politics. They have recommended that even persons against whom charges are framed by a competent court for an offence that entails punishment of more than five years should not be allowed to contest elections.
However, there has been no consensus on this recommendation amongst political parties considering the risk of its misuse. As regards the current petition, there may be convictions that do not involve moral turpitude for which permanent disqualification would be inappropriate and disproportionate. With respect to convictions for heinous crimes and under statutes like the Prevention of Corruption Act, there may be a case for life time disqualification as it is directly linked with probity in public life.
Meanwhile, the powers vested with the EC for reducing or removing the period of disqualification of a convicted person should be reviewed by the court for its constitutional validity.
Rangarajan. R is a former IAS officer and author of ‘Polity Simplified’. Views expressed are personal.
Published – February 13, 2025 08:30 am IST