In this article, Amandeep Singh discusses whether a criminal conviction in Indian Courts impacts the ability to stand for election in India or not.

Introduction

Ours is a constitutional democracy and it is axiomatic that the citizens have the right to know about the affairs of the Government. People in India vote for persons who govern them and usually the persons whom they vote for are termed as Public Servants. But there are some persons who in the disguise of Public Servants are criminals. This article elaborates on how different laws in India treat criminal politician and answers whether a criminal conviction in Indian Courts impacts the ability to stand for election or not.

Representation of People Act, 1951: How Elections are regulated in India

Elections in India are held by the Election Commission of India which has the residuary power under the Constitution to act in a suitable way under Article 324. We live in a democracy and have a parliamentary system of Government. The core of this framework is a promise to hold customary, free and reasonable decisions.

• The Representation of People Act, 1951 was enacted to fill the seats of House or Houses of Parliament and to the Houses of each State, the qualification and disqualification for the participation of those houses.
• Be that as it may, we as voters have the privilege to know who are we voting in favor of and why as it will help us in discovering the best contestant in the election.
• The qualification of contesting elections in India gets invalidated if there are any criminal allegations going on or the applicant has been sentenced before for any offense.
• ‘Election’ is defined in Section 2 (d) of Representation of People Act, 1951 as “an election to fill a seat or seats in either House of Parliament or in the House or either House of Legislature of a State other than the State of Jammu and Kashmir.”
• ‘Conviction’ is defined as “an outcome of a criminal prosecution which concludes in a judgment that the defendant is guilty of the crime charged.”

Conviction of Politicians standing for Election

Political parties and Corruption are interrelated to each other. Influence of cash affects the election procedure, the influence of cash has an evil impact on the election procedure and trading off the honesty of discretionary vote based system remains a huge test today. Candidates with criminal records don’t cover their reputation. Prior this year in January, a politician having a seat in the ruling party in Northern Uttar Pradesh State reportedly bloated to a party worker that he was the “greatest criminal”. Such affirmations by politicians and the advancement of media today help in making things straightforward.

If a person contesting election is charged with any criminal charges or has been convicted for the same earlier loses his right to stand for election according to the statute. Section 8 of Representation of People Act, 1951 provides various grounds under which a person may be disqualification on conviction for certain offenses.

Section 8(1) states that a person convicted of an offense punishable under

• Section 153A i.e. offence of promoting enmity between different groups on  ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or Section 171E i.e. offence of bribery or Section 171F i.e. offence of undue influence or any offence relating to rape given in Section 376 or offence of cruelty towards a woman by husband or any relative of husband or sub section (2) or (3) of Section 505 which states offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies; of the Indian Penal Code (45 of 1860).

Likewise, there are various other offenses which if committed by a candidate will lead him to disqualification. For instance :

1. Protection of Civil Rights Act, 1955 which provides for preaching and practice of untouchability.
2. Section 11 of the Customs Act, 1962 which states the offense of importing and exporting of prohibited goods.
3. Sections 10 to 12 of Unlawful Activities (Prevention) Act, 1967 i.e. offense of being a member of an unlawful association.
4. The Narcotics Drugs and Psychotropic Substances Act, 1985
5. The Prevention of Corruption Act, 1988

Shall be disqualified, where the convicted person is sentenced to –

(i) Only fine, for a period of six years from the date of such conviction;

(ii) Imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Supposing a politician is on bail, pending disposal of his appeal, can he contest the election?

No

Even if is a person is on bail, after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election as per the guidelines issued by the Election Commission of India.

• On 10 July 2013, the Hon’ble Supreme Court of India, in its judgment of the Lily Thomas v. Union of India case (along with Lok Prahari v. Union of India), decided that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is sentenced for a crime and granted at least two years of imprisonment, loses membership of the House with immediate effect.
• This is opposed to the earlier position, wherein sentenced members clutched their seats until the point that they exhausted all judicial solution in lower, state and Supreme court of India. Further, Section 8(4) of the Representation of the People Act, which permitted elected representatives three months to appeal their conviction, was proclaimed unconstitutional by the seat of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya.
• While trying to overturn this decision, the Representation of the People (Second Amendment and Validation) Bill, 2013, was introduced in Rajya Sabha on 30 August by Law Minister Kapil Sibal; by the proposed amendment, representatives will be disqualified promptly after conviction.
• The Indian government also filed a review petition, which the Supreme Court dismissed.
• On 24 September, a couple of days before the fodder scam verdict, the Government attempted to bring the bill into effect as an ordinance.
• However, Rahul Gandhi, Vice-President of the Indian National Congress, made his opinion of the ordinance clear in a press meeting: “It’s complete nonsense. It ought to be torn up and thrown away.”
• Members of opposition party asserted that Gandhi’s remarks indicated total confusion within the government and called for the resignation of Prime Minister Manmohan Singh.
• Within 5 days, both the ordinance and the bill were withdrawn on 2 October.
• On 1 October 2013, Rasheed Masood turned into the principal MP to lose his membership of parliament under the new guidelines, when he was sentenced to four years imprisonment for cheating, forgery, and corruption.
• If an aggrieved person wants to complain about the corrupt practices going on in any phase of election process then he can make a complaint to the Election Commission of India where there is the office of Chief Election Commissioner.

Role of Cash Flow in Electoral Process

“When power is married to money, it gives birth to corruption.”

• Where there is money there is corruption.
• Dr. SY Quraishi and Shri Satya Narain Sahu opined that the main source of Corruption is Election expenses. Huge amount of money is spent in elections and that is why people who are rich enter into politics
• But such huge amount that is spent in contesting elections is out of the prescribed legal limits.
• It has likewise been powerfully contended that the reason and reasons for corruption can be followed by the huge measure of cash spent in election process i.e. election by the political parties.
• If the measure can be taken to effectively manage it, at that point the very root of corruption can be hit with a conclusive blow and a perfect country and an ideal society can be built up.

A committee was set up in 1964 by the then Home Minister of India, Shri Lal Bahadur Shastri named as The Santhanam Committee on  Prevention of Corruption which in its report stated :

“ The public belief in the prevalence of corruption at higher political levels has been strengthened by the manner in which funds or private funds are invested in contesting elections.”

• This report also stated that this conduct of political parties should be regulated by making strict principles in relation to the collection of funds and electioneering.
• A candidate is not free to spend as much as he likes on his election. The law prescribes that the total election expenditure shall not exceed the maximum limit prescribed under Rule 90 of the Conduct of Election Rules, 1961. It would also amount to a corrupt practice under sec 123 (6) of R. P. Act, 1951 and will result in candidate’s disqualification.
• The limit for election expenditure is revised according to the needs of the growing society. Presently the upper limit of expenditure for a parliamentary constituency in states like Uttar Pradesh, Bihar, Andhra Pradesh, Madhya Pradesh is Rs. 40 lakhs.
• It is true that the elections cannot be held without a huge amount of money but it should be made transparent as to from where these funds are coming into the election process whether they are coming from the supporters and sympathizers or from private funds of the person contesting the election.

Interesting Statistics an Electorate must know about corruption in election process.

Indian Politicians who have been charged with serious offenses or have been convicted for such offenses are more likely to win elections than those who have never committed a wrong. Below is the data are taken from the association of democratic reforms :

According to this data,

• 34% of the Members of Parliament (MPs) in the Lower House i.e. Lok Sabha have criminal charges filed against them and the percentage is rising with time.
• Some are charged with less serious crimes like unlawful assembly or theft. But around one-fifth of the politicians are facing or have faced serious criminal charges like rape, murder, criminal intimidation and worse.
• The percentage given in the chart is of those MPs, cases of whom are still pending before the Court.
• As the Judicial System in India has a backlog of 31 million cases, cases with serious crimes take a long period of time to try, but slowly and steadily the cases are being disposed of.

How can criminalization in politics be reduced?

For this, the most important approach would be to bring the political parties under the purview of Right to Information Act, 2005.

Section 2(h) of RTI, 2005 defines “Public Authority” as any authority or body or institution of self-government established or constituted,—

(a) By or under the Constitution;

(b) By any other law made by Parliament;

(c) By any other law made by State Legislature;

(d) By notification issued or order made by the appropriate Government, and includes any

(i) Body owned, controlled or substantially financed;

(ii) Non‑Government Organisation substantially financed, directly or indirectly by funds provided by the appropriate Government;

• If the political parties are put under section 2(h) of RTI Act, 2005 they will be obliged to be transparent in every process of election from funding till the election symbol but unfortunately, the Government is busy with some more important work like the Ayodhya Dispute.
• Every voter has the right to information as to whom he is voting for and from where that contestant is acquiring funds but as political parties do not come under RTI Act, they are not liable to provide the voters with any such information. This is because there is a lot of interference of Executive in Judiciary.

In regard to the same, Hon’ble Supreme Court in the case of Namit Sharma V. Union of India (2013) 1 SCC 745

Held: “Besides Separation of Powers, the independence of Judiciary is of fundamental constitutional value in the structure of our Constitution. Impartiality, Independence, Fairness, and Reasonableness in judicial decision making are the hallmarks of the judiciary.”

Common offenses committed by politicians

Disproportionate Assets

• A Public Servant is said to carry out the offence of Criminal Misconduct (of ownership of disproportionate assets), “on the off chance that he or any individual for his sake, is under lock and key or has, whenever amid the time of his office, been under lock and key for which general society hireling can’t attractively account, of monetary assets or property lopsided to his known wellsprings of salary”, as set down under statement (e) of sub-sec.(1) of sec.13 of the Prevention of Corruption Act, 1988.
• The assets are disproportionate if, on a given date decided for the reason, they are found to surpass the actual savings meeting the total expenditure incurred by him. It is an offense just if the assets are disproportionate to his known sources of salary.

Scams

• Scams basically mean Fraud or a dishonest scheme.
• There are various scams which have taken place in India.
• Indian Coal Allocation Scam took place in 2012 amounting to Rs. 1,86,000 Crores. This Scam shook India.
• 2G Spectrum Scam took place in 2008 amounting to Rs. 1,76,000 crores in which Mr. A Raja and Kanimozhi and other accused were acquitted.
• The Fodder Scam of the 1990s in which Mr. Lalu Prasad Yadav was convicted. The scam amounted to Rs 1,000 Crores.
• Commonwealth Games Scam of 2010 amounted to a handsome amount of 70,000 Crores.

Such enormous amount of money of the people of India is being laundered by these corrupt politicians but having hold of the sovereign authority, they enjoy freedom from Jail but the Judiciary is working on these issues and justice is being preserved.

List of elected representatives disqualified after conviction by the court of law

• Rasheed Masood, a Rajya Sabha MP from Uttar Pradesh belonging to the Congress Party, was convicted for 4 years in MBBS seat scam and was disqualified from Rajya Sabha.
• Lalu Prasad Yadav, Lok Sabha MP from Saran, Bihar belonging to Rashtriya Janta Dal (RJD), was convicted for 5 years in fodder scam and was disqualified from Lok Sabha.
• Jagdish Sharma, Lok Sabha MP from Jahanabad, Bihar belonging to Rashtriya Janta Dal (RJD), was convicted for 4 years in fodder scam and also was disqualified from Lok Sabha.
• Babanrao Gholap, MLA from Deolali, Maharashtra belonging to Shiv Sena was convicted for 3 years in disproportionate assets case and was disqualified from the Legislative Assembly.
• T.M Selvaganapathy, Rajya Sabha MP from Tamil Nadu belonging to DMK was convicted for 2 years in cremation shed case and was disqualified from Rajya Sabha.
• Suresh Halvankar, MLA from Ichalkaranji, Maharashtra belonging to Bhartiya Janta Party (BJP) was convicted for 3 years in power theft case and was disqualified from the Legislative Assembly.
• J. Jayalalitha, Chief Minister of Tamil Nadu, MLA from R.K Nagar, Tamil Nadu was convicted for 4 years and fined of Rs 100 Crores in disproportionate asset case and was disqualified.
• Asha Rani, MLA from Bijawar, Madhya Pradesh belonging to Bhartiya Janta Party (BJP) was convicted of abetting suicide maid and was disqualified from the Legislative Assembly.
• Kamal Kishore Bhagat, MLA from Lohardaga (Vidhan Sabha Constituency) Jharkhand was convicted for attempt to murder case and was disqualified from the Legislative Assembly.

There are various recent cases where one can see politicians facing criminal charges like Mr. A Raja, Kanimozhi, and 17 others were acquitted by a CBI Court in 2G Spectrum Case. Then Comes the Fodder Scam where Mr. Lalu Prasad Yadav and 15 others were convicted of corruption charges.

As stated by me earlier, where there is a huge amount of money there will be corruption so there is a need to allocate funds in the starting only that means at the time of nomination in the election process. This will help in minimising the amount of money which at a later stage will not lead to corruption. So, a person having been convicted is not at all reliable and is also not trustworthy as to he will not cause corruption after coming into power. For further information on Disclosures to be made by a candidate when contesting an election in India.