Present Status :

1. Sections 8, 8A and 9 of RP Act, 1951 provide for disqualification of persons convicted of specified offences. The list is comprehensive and reasonable.
2. The provisions obviously failed to achieve the desired result. The Election Commission pointed out that more than 700 of the 4092 legislators at state level have criminal record against them.
3. Lok Satta released a list of 45 candidates, most of them nominated by major parties in Andhra Pradesh in the general election for Lok Sabha and Vidhan Sabha in 1999. The names of about 20 more persons with suspected criminal record could not be revealed for want of verifiable evidence. With the backing of major political parties, several of them were elected. Several citizens' initiatives made similar efforts elsewhere.
4. Section 8(4) of RP Act, 1951 gives a grace period of three months to incumbent legislators before disqualification comes into effect in case they are convicted of an offence, or if an appeal is filed within three months, until the appeal is disposed of by the court. Unfortunately this provision was misinterpreted by election officials consistently until 1997, and any candidate, who had been convicted but filed an appeal, was exempted from disqualification until the appeal was disposed of. The Election Commission gave guidelines in 1997 effectively closing this loophole.

Problems :

1. Many known criminals are still in the electoral fray and often get elected. The problem is getting worse with successive elections.
2. The conviction rate in criminal cases is a pitiful 5-6%
3. Disposal of criminal cases is excruciatingly slow, and most cases take years to dispose of. Technically, the murderers of Rajiv Gandhi were perfectly free to contest elections in India for 7 years after the dastardly crime until 1998 when they were convicted, provided they are Indian citizens and are otherwise eligible. This obviously is an unacceptable situation.
4. If the persons facing criminal prosecution are disqualified indiscriminately, there is a real danger of trumped up charges against political opponents. This is particularly likely in a system in which police function directly under the control of the government, and the government has specific powers to withdraw prosecution, order investigation and grant parole and pardon.
5. Mafia dons and organised gangs often escape even prosecution for want of tangible evidence.
6. There are rowdy sheets and history sheets opened by the police against certain individuals with criminal record. Annexure - I gives the criteria applicable in one State. However, if they are solely relied upon to disqualify a candidate, there is danger of misuse of such powers.
7. The period of disqualification under RP Act 1951 for conviction varies with the offence, and this variation does not always seem to have a rational basis. Annexure -II gives a table indicating the offence and the period of disqualification.
8. While the list of offences under Sections 8,8A and 9 of RP Act 1951 is fairly large and comprehensive, certain offences seem to have been left out. Annexure-III gives an illustrative list of offences conviction for which should incur disqualification as recommended by the Law Commission.

Possible proposals for electoral reform :

1. The anomalies in respect of period of disqualification may be corrected broadly in line with the recommendations of the Law Commission.
2. The punishments for certain offences should be altered, and certain new offences should be included, so that there are more rational criteria for disqualification of candidates as proposed by the Law Commission. The list should include conviction for corrupt electoral practices under section 99 of RP Act, 1951
3. Any person against whom criminal charges are framed by a magistrate for any offence listed under section 8 of RP Act 1951 or any warrant case should be disqualified to contest in elections as long as charges are pending against him/her.
4. Any person in respect of whom a History sheet or a Rowdy sheet or a similar record by whatever name it is called, has been opened and is kept open in any police station within the Indian union in accordance with the provisions of the appropriate laws or police standing orders, should be disqualified as long as such History sheet or Rowdy sheet is kept open.

   In order to ensure that there is no misuse of this provision to harass political opponents, a safeguard should be provided in the form of judicial scrutiny. Any person who is aggrieved by the opening of History sheet or Rowdy sheet and who wishes to contest the election may appeal to the Sessions Judge at least two months before the date of election notification, and thereupon the Sessions Judge shall hold a summary enquiry and decide within a month whether or not the opening of such History sheet or Rowdy sheet is valid. The order of the Sessions Judge shall be binding on the police authorities.

5. Every candidate for an elective office shall file at the time of nomination before the Returning Officer an Affidavit in Annexure IV. The nomination of those persons who do not file such an Affidavit shall be rejected.

   If any misleading or incorrect information is furnished in the Affidavit, or if any facts are concealed, such a person shall be disqualified for a period of, say twelve years. In case such a person has been already elected, his election stands nullified and he shall be disqualified for twelve years. In such cases a complaint shall be filed before the Election Commission, whereupon the Commission shall issue notices to the compliant and the candidate and after summary enquiry give its decision within 90 days from the date of complaint. The decision of the Election Commission shall be final and binding.

6. Similar disqualification provisions should be incorporated in respect of elections to local governments.

However, empirical evidence shows that criminalization of politics is not the monopoly of any caste group. In fact, there are more organised criminal gangs with political connections among the so called upper castes. When criminal record of candidates is carefully compiled, there are more upper caste candidates with such a record. Also once disqualification is applicable to all crime __ violent as well as white-collared, __ there is greater probability of the provisions being applicable to all sections equitably. For instance if wilful defaulters of bank loans are disqualified, there is greater chance of influential sections being made accountable.

There are other concerns expressed about the fairness of disqualification of candidates facing criminal charges or those listed as rowdy sheeters etc. Firstly only charges framed by a magistrate in warrant cases after prima facie enquiry are included. Once there is judicial application of mind, it acts as a reasonable safeguard to protect individual interest. Secondly, there have to be certain reasonable standards with uniform and objective application, and there can never be absolute certainty about a person's guilt. There are cases of conviction which are set aside on appeal. There are known cases of innocent persons having been found guilty of capital offences and executed. If we wish to apply exacting standards, we should wait until the final appeal is heard, which obviously defeats the objective of decriminalization of politics. Thirdly, there are fears that police records about rowdy sheeters etc could be highly subjective and arbitrary. In fact, the criteria for opening such records are well laid down and are objective. To eliminate the risk of political manipulation, a provision is made for judicial determination of the fairness of the police records at the level of the Sessions Judge.

Fourthly, when there is a clash between the society's right to have fair and proper representation in legislatures and the individual's right to represent the people, clearly society's rights take precedence over individual right. The right to contest elections is not a fundamental right. The harm done by denying an occasional innocent person a chance to contest is much less than allowing a criminal to be elected. In fact the balance today has swung against decent citizens in elections, and this distortion ought to be corrected.

Fifthly, these proposals are meant to reduce the role of criminals in politics, and cannot in themselves be adequate to eliminate the flaws and distortions in the criminal justice system. That requires a different, and far-reaching reform effort. However, the failure to reform, the criminal justice system cannot militate against reform of the electoral system. Electoral reform is central to the fairness of representation and health of a democracy.

Finally, when there is overwhelming distortion in electoral politics and money power and criminal involvement have come to dominate elections, effective and far-reaching reforms are required to safeguard public interest. Tentative and half-hearted reforms will fail to cleanse our political and electoral system.