Recent incidents such as beating up of a policeman by legislators in Maharashtra and CBI probe into alleged involvement of a former UP minister in the murder of a circle officer have once again put the spotlight on the dangers of criminalisation of politics. Over a dozen prominent non-governmental organisations have filed public interest litigations before the Supreme Court seeking its intervention to shut the entry of politicians with criminal background. Their common contention is that criminalisation affects the basic structure of democracy and the court should declare sections 8, 9 and 11A of the Representation of People Act (RPA), 1951 unconstitutional. They also want the apex court to direct the legislature to consider making appropriate laws on the basis of recommendations by various expert commissions, including the law commission.
As per the existing provision in the RPA, anyone found guilty of a criminal offence and has been convicted for a prison term of two years or more is disqualified to contest elections for a period of six years. The disqualification remains valid unless the operation of the conviction has been stayed or suspended. A sitting member, however, cannot be automatically disqualified if he challenges his conviction in an appeal or revision within three months. Thus, the disqualification is suspended till the outcome of the appeal/revision by a competent court.
In a recent affidavit filed by the Ministry of Law and Justice, it has been stated that the convicted MPs/MLAs get disqualified only after exhausting all legal remedies, and it is based on a legislative policy to “ensure existence and continuity” of an elected legislature. The same affidavit also asserts that “the plea about criminalisation of politics based on the factual statement that a large number of sitting MPs are convicts is unsubstantiated”.
It is unfortunate that the criminalisation in politics has been dealt in such a manner. One expected that the government would have recognised the menace of criminalisation and assured the Supreme Court regarding measures to check the rot. In 2007, deposing before the Committee on Law and Justice, the secretary, Legislative Department, had proposed a new section 8(b) to keep away from elections persons having criminal background. As per the suggestion, persons charged with heinous crimes at least six months prior to the date of nomination for election shall be disqualified unless acquitted. It was also clarified that heinous offences have been identified for this purpose. The Ethics Committee of the Parliament has also suggested that electoral reforms should also be expedited. Both the Law Commission in its 170th Report and the National Commission to Review the Working of the Constitution (2002) had proposed a bar for entry of persons charged with any offence punishable with imprisonment of five years or more.
The first step should be a law which would ban the parties giving tickets to candidates having criminal antecedents. The Election Commission (EC) should be empowered to frame rules to disqualify such candidates. The minimalistic agenda should be that after the election results, the EC is asked to finalise a list of winning candidates who have serious criminal cases pending against them where charges have been framed by the court of law and these should be forwarded to a fast-track court. Any appeal filed by such candidates against the framing of charges, or against later conviction by trial courts, should also be referred to a fast-track court. All such matters could be decided within six months.
This would ensure that the stability of the government is not disturbed. The constitution of a fast-track court could be immediately implemented without waiting for an exhaustive electoral reform. This would create a level-playing field for all parties and would discourage the political parties from giving ticket to criminals. The criminals would also feel discouraged as they may be subjected to a fast-track decision which does not serve their self-interest.