SHOULD CONVICTED PERSONS BE ALLOWED TO CONTEST ELECTIONS?

THE CONTEXT: The Supreme Court is currently hearing petitions challenging Sections 8 and 9 of the Representation of People Act, 1951, seeking a lifetime ban on convicted persons from contesting elections. As of 2024, 46% of MPs have criminal cases against them, with 31% facing serious charges, highlighting the ongoing issue of criminalization in Indian politics.

THE STATISTICAL CONTEXT:

    • 46% of MPs elected in 2024 have criminal cases against them.
    • 31% face serious criminal charges, including rape, murder, and kidnapping.
    • Candidates with criminal backgrounds have a 15.4% chance of winning compared to 4.4% for those with clean records.

THE BACKGROUND: DISQUALIFICATION UNDER THE REPRESENTATION OF THE PEOPLE ACT, 1951

LEGAL PROVISIONS FOR DISQUALIFICATION

    • Section 8(1): Disqualifies individuals convicted of heinous crimes such as rape, offenses under the Unlawful Activities (Prevention) Act (UAPA), or corruption under the Prevention of Corruption Act, irrespective of sentence duration. The disqualification extends for six years post-release.
    • Section 8(3): Disqualifies individuals convicted and sentenced to imprisonment for two years or more. Such individuals are barred from contesting elections during their imprisonment and for an additional six years after release.
    • Section 11: Empowers the Election Commission of India (ECI) to reduce or remove the disqualification period in specific cases. For instance, this provision was controversially applied in 2019 to reduce Sikkim Chief Minister Prem Singh Tamang’s disqualification period from six years to 13 months.
    • Article 191 of the Constitution: Provides additional grounds for disqualification, such as holding an office of profit, being declared insolvent, or being of unsound mind.

KEY LEGAL DEVELOPMENTS: DISQUALIFICATION OF CANDIDATES AND LEGISLATORS

    • Association for Democratic Reforms (ADR) Case, 2002: Filed by the NGO ADR, this case sought greater election transparency by mandating disclosure of candidates’ criminal records, assets, liabilities, and educational qualifications. The Supreme Court Directed the Election Commission of India (ECI) to require candidates to disclose their criminal antecedents when filing nomination papers.
    • CEC vs Jan Chaukidar Case, 2013: Originated from a PIL filed by the NGO Jan Chaukidar in the Patna High Court, highlighting malpractices in elections. Supreme Court Ruling upheld the Patna High Court’s interpretation of Section 62(5) of the RP Act, which denies voting rights to individuals in prison or police custody. Held that individuals not eligible to vote cannot contest elections as they cease to qualify as “electors.”
    • Lily Thomas Case, 2013: Filed by Kerala-based advocate Lily Thomas and NGO Lok Prahari through a PIL challenging Section 8(4) of the RP Act. Supreme Court Ruling declared Section 8(4) unconstitutional as it provided a three-month window for sitting MPs/MLAs to appeal their convictions without facing immediate disqualification. It also held that disqualification under Sections 8(1), (2), and (3) would apply immediately upon conviction. The court ruled that Article 102(1)(e) and Article 191(1)(e) do not distinguish between sitting legislators and candidates regarding disqualification.

CURRENT PETITION: LIFETIME BAN ON CONVICTED POLITICIANS

The petition filed by Ashwini Kumar Upadhyay before the Supreme Court seeks a lifetime ban on convicted persons from contesting elections to Parliament and State Assemblies. It challenges the constitutionality of Sections 8 and 9 of the Representation of the People Act, 1951 (RP Act), which currently imposes a six-year disqualification post-sentence completion for convicted individuals. The case raises critical legal, ethical, and democratic questions regarding the criminalization of politics.

ARGUMENTS IN FAVOR OF A LIFETIME BAN ARGUMENTS AGAINST A LIFETIME BAN
Upholding Integrity and Public Trust:

    • Lawmakers occupy positions of public trust and are responsible for creating laws. A lifetime ban would ensure that individuals with criminal convictions do not tarnish the sanctity of these offices.
    • Example: The Lily Thomas judgment (2013) emphasized the need for clean governance by mandating immediate disqualification upon conviction.
 Rehabilitation and Second Chances:

    • Denying individuals who have served their sentence the opportunity to reform contradicts principles of rehabilitation and reintegration into society.
    • Example: Nelson Mandela was imprisoned for 27 years but later became South Africa’s President, leading the country to democracy.
Parity with Government Jobs:

    • A convicted person is permanently barred from holding government jobs, even at junior levels, under service rules. Allowing such individuals to contest elections creates an inconsistency.
    • Example: A person convicted under the Prevention of Corruption Act cannot be a government employee but can become an MP or MLA.
 Potential for Political Misuse:

    • Legal provisions could be weaponized by political opponents to file false cases against rivals, especially in India’s politically charged environment.
    • Example: Arvind Kejriwal faced multiple cases during his political career, some of which were later dismissed as politically motivated.
Curbing Criminalization of Politics:

    • As per the Association for Democratic Reforms (ADR), 46% of MPs elected in 2024 have criminal cases, with 31% facing serious charges like murder, rape, and kidnapping.
    • Case Study: Mohammad Shahabuddin, a former MP from Bihar, was repeatedly elected despite multiple murder charges, highlighting systemic flaws.
 Disproportionate Punishment:

    • Not all convictions involve moral turpitude or crimes against society. A blanket lifetime ban could unfairly penalize individuals convicted for minor or politically motivated offences.
    • Example: Civil disobedience or protests against unjust laws could lead to convictions but should not equate to crimes like corruption or murder.
Judicial and Expert Recommendations:

    • The Supreme Court, Election Commission of India (ECI), and Law Commission (1999 and 2014) have all recommended stricter disqualification norms.
    • The Law Commission suggested barring candidates even at the charge-framing stage for offences punishable by five years or more.
 Judicial Delays and Weak Criminal Justice System:

    • India’s slow judicial processes often result in prolonged trials, making it unfair to impose lifetime bans based on lower court convictions that may be overturned on appeal.
    • Nearly 5,000 cases are pending against sitting and former MPs/MLAs as of 2025.
Strengthening Democracy and Rule of Law:

    • A lifetime ban would prevent individuals convicted of heinous crimes or corruption from misusing political power to influence investigations or intimidate witnesses.
    • Example: Lalu Prasad Yadav’s conviction in the fodder scam did not prevent him from influencing politics through his party.
 Right to Representation and Voter Choice:

    • Disqualifying individuals permanently could limit voters’ choices in a democracy where public support often overrides legal judgments.
    • Voters should have the final say in electing their representatives.

GOVERNMENT AND ELECTION COMMISSION STANCE ON DISQUALIFICATION OF CONVICTED POLITICIANS:

GOVERNMENT’S POSITION Election Commission’s Position
Current Six-Year Disqualification is Adequate:

    • The Central Government, in its affidavit filed before the Supreme Court in 2020, argued that the existing provisions under Section 8 of the Representation of the People Act, 1951, which impose a six-year disqualification post-sentence completion, are sufficient.
    • It emphasized that MPs and MLAs are not bound by ‘service conditions’ like government employees. Unlike civil servants, legislators are directly accountable to the electorate, which should have the final say on their qualification.
 Stricter Norms to Curb Criminalization:

    • The ECI has consistently advocated for stricter disqualification norms to address the growing criminalization of politics. In its 2004 report on electoral reforms, it recommended amending Section 8 of the RP Act to disqualify candidates at the charge-framing stage for offences punishable by imprisonment of five years or more.
    • To prevent misuse, it suggested that only cases filed six months prior to elections should lead to disqualification.
Concerns Over Judicial Overreach:

    • The government has expressed reservations about judicial activism in disqualification matters, arguing that decisions on electoral reforms should be left to Parliament.
 Lifetime Ban for Heinous Crimes:

    • The ECI has supported a lifetime ban on individuals convicted of heinous crimes such as murder, rape, and corruption, arguing that such individuals undermine public trust in democratic institutions.
Focus on Rehabilitation:

    • The government highlighted the principle of rehabilitation, stating that a lifetime ban could violate the fundamental rights of individuals under Articles 14 (Equality) and 21 (Right to Life and Liberty). It stressed that individuals should not be permanently barred from public life after serving their sentence.
 Fast-Tracking Criminal Cases Against Politicians:

    • The ECI has called for the establishment of special courts to expedite trials involving elected representatives. This aligns with recommendations by the Supreme Court and Law Commission to ensure timely justice and prevent prolonged litigation.
Potential for Misuse:

    • A blanket lifetime ban could lead to misuse through politically motivated cases, particularly against opposition leaders. This concern aligns with broader apprehensions about weaponizing legal provisions for electoral gains.
 Mandatory Disclosure of Criminal Records:

    • Following the Supreme Court’s judgment in the Association for Democratic Reforms (2002) case, the ECI mandated candidates to disclose their criminal antecedents while filing nomination papers. However, it has noted gaps in enforcement and called for stricter penalties for false affidavits.

THE WAY FORWARD:

    • Disqualification at the Charge-Framing Stage: To prevent misuse, implement safeguards such as barring disqualification for cases filed within six months before elections. Establish independent judicial oversight committees to review cases before disqualification is enforced.
    • Empowering the Election Commission: Under Article 324, the Election Commission of India (ECI) must be granted greater autonomy to scrutinize candidates effectively. Amend Section 11 of the Representation of the People Act, 1951, to limit ECI’s discretionary power to reduce or remove disqualification periods, ensuring consistency.
    • State Funding of Elections: As suggested by the Dinesh Goswami Committee (1990), state funding can reduce candidates’ reliance on illicit funds and curb the influence of money power in elections. Provide partial state funding through vouchers redeemable with political parties based on their electoral performance. Cap election expenditure limits for candidates and parties, ensuring accountability through audits.
    • Judicial Fast-Tracking: The Supreme Court in Public Interest Foundation vs Union of India (2018) directed setting up fast-track courts for politicians’ cases. However, implementation remains inconsistent across states.
    • Mandatory Disclosure and Voter Awareness: Enforce strict penalties under Section 125A of the RP Act for false affidavits regarding criminal records, assets, and liabilities. Ensure real-time publication of candidates’ criminal records on digital platforms managed by the ECI.
    • Voter Awareness Campaigns: Civil society organizations like ADR should collaborate with ECI to educate voters about the consequences of electing candidates with criminal records. The Supreme Court in PUCL vs Union of India (2003) recognized voters’ “right to know” as part of Article 19(1)(a), emphasizing informed electoral participation.
    • Lifetime Disqualification for Heinous Crimes: Amend Section 8 of the RP Act to impose lifetime disqualification for convictions involving heinous crimes while maintaining proportionality for lesser offences. Banning tainted candidates will disrupt the nexus between crime and politics.

THE CONCLUSION:

The ultimate solution to criminalization in politics lies in implementing stringent disqualification norms, including lifetime bans for heinous crimes, complemented by judicial fast-tracking and voter awareness initiatives. This holistic approach will uphold democratic integrity, foster ethical governance, and restore public trust in India’s political system.

UPSC PAST YEAR QUESTION:

Q. Discuss the procedures to decide the disputes arising from the election of a Member of the Parliament or State Legislature under The Representation of the People Act, 1951. What grounds on which any returned candidate’s election may be declared void? What remedy is available to the aggrieved party against the decision? Refer to the case laws. 2022

MAINS PRACTICE QUESTION:

Q. “The criminalization of politics undermines the democratic ethos and erodes public trust in governance.” Analyze the causes and implications of this phenomenon in India.

SOURCE:

https://www.thehindu.com/news/national/should-convicted-persons-be-allowed-to-contest-elections-explained/article69212513.ece

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