in The Financial Express
by Dr.Jayaprakash Narayan
Criminalisation and the
Anomalies of Law
(July 30, 2004)
author is the
National Coordinator of Lok Satta movement and National Campaign
for Electoral Reforms)
The sorry episode of Shibu
Soren has once again focused the nation's attention on criminalization
of politics. The problem of criminalization goes well beyond
the political fates of a few individuals. We need to understand
the law and its limitations.
Section 8 of the RP Act, 1951
provides for disqualification of individuals convicted of
certain offences for periods ranging up to 6 years; in some
cases disqualification period starts with the date of conviction,
and in some others, it covers the period of sentence and extends
for a further specified period. This leads to an anomalous
situation. In 1997, the Election Commission (EC) under Dr
MS Gill pointed out that there are offences which entail disqualification
from the date of conviction, but the sentence period exceeds
six years. For instance, the minimum sentence for rape, an
offence mention in clause(1), is seven years; but the disqualification
applies only for six years from the date of conviction. In
effect, a person may still be in jail for rape, but can contest
elections during the seventh year! Obviously such distortions
need to be corrected.
An even more glaring anomaly
is in respect of Section 8(4) which gives incumbent legislators
limited immunity from disqualification. If an incumbent is
convicted for an offence, disqualification does not come into
effect for three months. If during that period, he appeals
against the conviction, then disqualification will not come
into effect until the appeal is disposed of.
of lawmakers is evidently to prevent a needless vacancy and
byelection if the legislator is eventually acquitted. Such
immunity, however, cannot be given to the incumbent for the
next general election, when he is a candidate. The law should
be amended to make it clear that a convicted legislator will
stand on the same footing as any other convicted person in
respect of the election after the expiry of his term.
But all this
is legal nitpicking. The real problem is that criminal cases
are taking interminably long time for disposal; once an accused
is elected during the trial period, he has the advantage of
twisting the arms of police and prosecution to dilute the
case. Or he pressurizes the government to withdraw charges
against him. This is the chief reason why political office
is very attractive to persons with criminal antecedents. Obviously,
the solution lies in disqualifying persons facing criminal
charges from contesting elections.
But such blanket disqualification
is opposed on two grounds. First, the person is presumed innocent
until proven guilty. Disqualification of a person against
whom charges are framed would be unfair denial of his rights.
But there are two arguments to counter this line of thinking.
First, disqualification is not conviction or pronouncement
of guilt. Right to contest for elective office is only a legal
right of a citizen, and not a fundamental right. The citizen
can always contest after charges are cleared against him.
And if he does not contest during trial, there is no irreversible
damage to him in the form of violation of fundamental rights.
Public office is nobody's birthright. Second, in matters of
election and representation, the people's rights are fundamental.
If there is a clash between the people's right to have good
representation, and an individual's right to represent the
people, then the society's right should have precedence. Rights
argument clearly fails.
is a second, more serious objection to blanket disqualification
of all candidates facing charges. Our criminal justice system
is far from perfect. Often trumped-up charges are leveled
against innocent rivals. Crime investigation is not always
professional or impartial. If we start disqualifying candidates
on the basis of malicious charges or political vendetta, we
will have reduced our democracy to the level of Pakistan or
Iran. Given the state of our politics, policing and justice
delivery, such blanket disqualification is both unwise and
Does that mean murderers and
mafia dons can continue to be elected, browbeat witnesses,
pressurize police and governments, escape scot-free, and hijack
our democracy? Obviously, we must find a realistic solution
between the two extremes of disqualification for all pending
charges, and even a murderer enjoying the right to contest
until he is convicted. The law now is so absurd that the murderers
of Rajiv Gandhi had the right to contest elections between
1991 and 1998, when they were convicted. Clearly, such a position
Happily, a fair resolution
is possible. In the wake of the May, 2002 Supreme Court judgment
mandating disclosure of candidate antecedents, the Union government
drafted a Bill providing for disqualification of persons against
whom charges concerning heinous offences have been framed
by competent courts in two separate criminal proceedings.
Obviously, it is laughable that a person is eligible to contest
if he committed one murder, but is not eligible if there were
two murder charges pending! That absurdity apart, a sincere
(though it failed for want of consensus) effort was made to
disqualify persons facing extremely grave charges. These heinous
offences listed were: waging war against India (section 121
IPC); murder (section 302); abduction with an intention to
commit murder or for ransom (sections 364 and 364A); rape
(section 376); dacoity with or without murder (sections 395
& 396); offence under section 18 and 20 of Narcotics Act,
1985; and section 3 of POTA. The last one is irrelevant now.
But the other offences listed are extremely grave, and honourable
citizens are unlikely ever to face such charges. Remember,
disqualification applies only when a court frames charges
after preliminary evidence, not when an FIR is lodged, or
when police file charge sheet.
The Parliament needs to act
now to disqualify persons facing such grave charges. No minor
or political offence comes in this category. The EC recently
recommended a far stricter norm of disqualifying all those
facing charges. But at the current juncture, if people facing
these grave charges are disqualified, we can purge our politics
of some of the most undesirable elements.
Of course, such disqualification
does not address the core issues - poor justice delivery,
highly politicized policing and prosecution, and a perverted
electoral system which makes hardened criminals with money
and caste power "winnable" candidates. But this
could be the first step in our quest to decriminalize politics.
- July 2004
- August 2004
- September 2004
- October 2004