This article is written by Bheeni Goyal from Symbiosis Law School. It analyses the judgment which has been passed by Supreme Court from barring the convicted MPs and MLAs from contesting the elections.
During the rule of the Colonial Government, a Southborough Committee was set up for the purpose of designing a system of electoral representation for the Dominion of India. The committee called upon Dr. Ambedkar for his advice on electoral representation. While making the submission, Dr. Ambedkar has listed the significant criteria one being that “the right of representation and the right to hold office under the States are the two most important rights that makeup citizenship.”
But the views as stated by the father of our Constitution do not hold relevance in the current times as many politicians have time and again have abused the above-mentioned facet as stated by Dr. B.R Ambedkar. In current times many MPs and MLAs who have been elected in the houses of the Parliament have criminal records and therefore Lily Thomas, the petitioner approached the court to stop the criminals with the conviction history from contesting the election and winning them.
Facts of the Case
In 2005, Lily Thomas, along with the advocate Satya Narain Shukla from Lucknow, filed a writ petition in the Supreme Court for the purpose of challenging Section 8(4) of the Representation of the People Act which protects the convicted politicians against any sort of disqualification from contesting the elections, on the ground of pending appeals against their conviction in the appellate courts. Although the petition filed by the petitioners was rejected at the first attempt eventually after nine years, after constantly making attempts, later in July 2013, the Supreme Court bench which comprised Justices AK Patnaik and SJ Mukhopadhaya, passed a verdict.
This has affected nearly 5000 elected representatives. The judgment has provided that all the elected or non-elected MPs and MLAs would be disqualified with the immediate effect if they were convicted in a criminal case by a trial court and the saving clause under section 8(4) will not be applicable.
Analysis with the arguments
The main arguments which have been offered from the side of the petitioner are that if the Constitution of India does not allow Parliament to enact laws on a particular subject matter, Parliament does not have any right to go further with enacting such laws. This case raises the same argument. It was argued that Article 102(1)(e) and Article 191(1)(e) of the Constitution which talks about the conditions for the disqualification of the membership from the House of the Parliament and legislative assembly respectively does not give power to the Parliament as well as the State Legislature to enact any such laws which they please to make. And therefore the Parliament does not have the legislative competence to enact section 8(4) after considering the provisions of Article 102 and 191 of the Constitution.
These provisions say that the Parliament has the power to make a law that can provide for all the circumstances whereby a Member of the Parliament shall stand disqualified from the membership of either house of the Parliament. Article 191(1)(e) provides the same thing but about MLAs. After closely studying it can be concluded that neither of these two articles gives the Parliament the ‘competence’ to pass a law that in effect protects the members of the current MP or MLA even after the same has been convicted of a criminal offense by the lower or trial court. Section 8(4) does exactly that. Thus, section 8(4) is beyond what the Parliament is constitutionally ‘competent’ to do which makes it unconstitutional.
The arguments from the side of the respondent is that constitution has given the Parliament power to declare that under what circumstances an MP or MLA can be disqualified from his or her membership under Articles 191(1)(e) and 102(1)(e) and therefore the Parliament has the competence to make such rules. Such competence essentially comprises within itself the required competence to pass a law that may momentarily delay the effect of such disqualification.
Another argument that has been stated from the side of the respondent is that the Parliament has the competence to legislate on section 8(4) of the Representation of People’s Act comes from Article 246 which is read with Entry 97, list 1 of schedule seven of the constitution. It was contended by the respondent that if the subject matter is not mentioned in any of the three lists then for the purpose of determining the legislative competence, it will go in list 1 that is the Union List. Thus, if the text of the Constitution is not clear, as to whether the Parliament has the power to make laws on a subject or the State Legislatures has the required power, entry 97 comes into force which basically provides that in such a condition the parliament will be capable to pass a law on that subject.
However, both the contentions which were raised by the respondent were rejected by the court on the ground that entry 97 will come into force when the Constitution is silent on who has the competency to enact such a law on the given subject matter. However, article 102 and 191 of the constitution has clearly stated that the Parliament has the power to make laws on the subject matter of the disqualifications of all the MPs and MLAs.
Therefore the Supreme Court has ruled out in this case that as soon as there will be the conviction of the politician ordered by the court, they will be disqualified immediately from contesting the elections or continue as a member of the Parliament. This judgment passed by the court means that the endless time which was given for filing the appeals and to end the appeals were thrown away.
However, in India, the rate of conviction depends on the process of the court for providing the punishment, which takes a really long time. In 2019, an Association for Democratic Reforms has found that in the 2019 Lok Sabha Elections there were about 45% of the winners who have criminal cases or pending criminal cases against them. This figure surprisingly has not decreased but the number of politicians winning the elections with past criminal records has comparatively increased in the Parliament.
According to the statistics given out by the Association is that in the 2009 elections, there was about thirty percent of the Politicians with past criminal records were appointed to Parliament and in 2014 there were about 34% of the MPs with past criminal records have been appointed in the Parliament.
Therefore the requirement that the convicted criminals should not be allowed to contest the election or sit in the Parliament will not make such a difference. As suggested by the Law Commission, that is any person accused of the crime or any charges which have been framed against him, should be debarred from contesting the elections. However, the question which arises is what about those complaints which are frivolous and are filed against the politicians for the purpose of defaming them.
The court can take out the middle way for dealing with all the frivolous and vexatious complaints filed against them. Before framing the charges, it is essential for the court to take considerable thought into the said issue. Only after due consideration, the charges should be framed against the candidate. It should be made sure by the court that the accusations against the candidate should hold a legal basis and the charges or accusations against them cannot be used as a political tool.
Most of the political parties might challenge the amendment and put up an argument that criminal charges can be imposed upon them because of the political motivation and by the opposition rivals. However, this argument does not hold in the light that only those candidates against whom the court has framed charge sheet for the crime which punishes with the conviction of more than five years. This argument cannot be considered as true as the magistrate applies their judicial mind to the case and they have taken full consideration of the political motives and the gravity of the suspected crime.
Clearly, our political-electoral structure needs to be cleaned up. The Election Commission of India (ECI) lately decided enough was enough. After years of avoidance, it has been finally given the sign to the government to “immediately debar from contesting elections convicted persons as well as those against whom charges of heinous crimes have been framed by a court of law.”
However, in the year 2018, the Supreme Court came out with the judgment that the candidates who are contesting the elections should not be barred on the basis of the charge sheet file against them. The Supreme Court has ordered the political parties to share their entire criminal history on the websites whenever they are contesting for the Lok Sabha elections. The Supreme Court further directed that the information about their criminal records should be shared in the local and the national newspapers as well. The Supreme Court does not realize the consequence of such actions. This will give more authority to the various politicians to do scams in the name of false charge sheets and will contest the elections and can even win them.
Although the Supreme Court has made an effort to make sure that all the information about the political parties should be made available to the voters of the country. But in India where the literacy rate is low and the individuals cast their votes mostly on the basis of the election campaign undertaken by the political parties. Therefore it is not necessary that votes which have been cast by the average voter in our country would be on the basis of the due study of the criminal records of the candidates on the websites.
Rather than inquiring about the political parties about the selection of their candidates, the Supreme Court should emphasize more on filling the break in the legislature, which the Parliament is certainly not going to do. At this time, what is desirable is an amendment which is required to be brought into Representation of the People Act, 1951 so that the candidates can be barred from contesting elections in cases where:
(a) serious/heinous crimes have been committed by them or such cases have been pending against them in the court of law, where the specified sentence is imprisonment for two or four years;
(b) the cases should have been listed at least six months before the declaration of the election dates; and
(c) charges have been framed by a court of law, from contesting elections till the charges have been further cleared by the court.
It is really significant to curb the problem of electing criminals in Parliament. Our country cannot be run by a handful of criminals. For curbing such a problem it is really significant to give powers to ECI so that they could effectively carry out their function of policing the parties. They should be given additional statutory powers for better implementation of the amendment.
The Election Commission of our Country has been provided with the power to stop recognizing the political party however the ECI should be given more power to de-register the political parties. If the commission gets the power of the automatic deregistration then it will create a deterrent effect on the political parties and they will not give the tickets to the candidates who have faced the criminal charges or any charge sheet for the criminal charges that have been filed against them.
Although, the Supreme Court has approved of the new requirements through its judgment in the year 2018, it is really important to understand that the majority of the voters in our country belongs to rural areas are not literate enough to understand and analyze the criminal records of any candidates who are contesting the elections. Therefore the Election Commission should be given the hold from debarring the candidates from holding elections who have committed the heinous crimes or against whom the charge sheet is framed for committing heinous crimes, as the judiciary must have applied their judicial mind before forming such charges against the candidates.
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