Criminalisation and the Anomalies of Law
(July 30, 2004)

(The 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.

The intention 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.

But there 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 dangerous.

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 is untenable.

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
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• October 2004