Jailed Politicians Barred from Elections while Convicted Lawmakers Disqualified – Supreme Court

Correspondent (Asia: South, Politics)

NEW DELHI — On July 10, the Supreme Court of India passed a landmark judgement according to which Members of Parliament, Members of Legislative Assembly and other lawmakers would be disqualified immediately on the day of their conviction, while politicians in jail or under police custody would not be able to contest elections.

Previously, under Section 8(4) of the Representation of the People Act, a person convicted of criminal offence could not stand for election, but a convicted lawmaker already in office was exempt from disqualification for a period of three months.

Now, within three months, if one appeals against one’s conviction, one would stay in power till his appeal has been disposed of. Due to the slow nature of judicial courts, it takes ages for an appeal to be disposed of and once it is, politicians would simply appeal to a higher court, thus staying in power.

Wednesday’s ruling came after three public interest litigations — two by lawyer Lily Thomas and one by non-governmental organisation Lok Prahari through its secretary S N Shukla. The judgement stated that “If because of a disqualification, a person cannot be chosen as a Member of Parliament or state legislature, for the same disqualification, he cannot continue as a Member of Parliament or the state legislature.”

However, the verdict is prospective, and not retrospective. Thus, lawmakers convicted prior to this ruling will continue to be sheltered by the previous law.

As for the second verdict, the bench stated that since only an “elector” can contest the polls, and he or she forfeits the right to vote while behind bars or in police custody, it should only be that such persons are not allowed to stand in elections.

George Fernandes (pictured) and A K Roy had won elections while in jail during Emergency in 1977. Criminals with immense political clout across party lines have since regularly contested and won elections while in jail, even on serious charges.

This path-breaking decision by the Apex Court bench of Justices A K Patnaik and S J Mukhopadhayay is expected to rid Indian polity of criminal elements; however, the decision is to be reviewed by the Parliament before it is implemented.

Amra Ram, Communist Party of India (Marxist) legislator, stated, “The court has said that those convicted and imprisoned for two years will be disqualified (for six years). If this happens, no one will be able to contest. And they will not even have the right to appeal. How will we fight for the cause of the people? If the intention is to remove criminals from politics then only those with serious allegations should be debarred and not all MPs or MLAs.”

Satish Poonia, BJP general secretary said, “This is a welcome step by the Supreme Court. No one will deny that there is a need to decriminalise politics. But democratic institutions, too, have a role in a democracy. Political parties should get together and debate this issue and bring in a strong legislation that will check entry of criminals in politics”.

The argument by the Union of India was that such disqualifications would reduce the strength of the House and weaken the government if such members belonged to the ruling party, “The strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong and the government in power may be surviving on a razor-edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.”

Some argue that the verdicts take away excessive power from the legislature, while bestowing it upon the judiciary.

According to an analysis by the National Election Watch and Association of Democratic Reforms, a staggering 31% of Members of Parliament (MPs) and legislators (MLAs/MLCs) have criminal cases – which in some cases are multiple and severe – pending against them.

“This judgement will have serious and far-reaching implications for cleansing India’s political system,” said former Chief Election Commissioner S Y Quraishi.

Anil Bairwal, national coordinator of Association for Democratic Reforms, said, “Our political system suffers from many problems like criminalisation, extreme use of money, power, lack of internal democracy and transparency within political parties etc. This judgement is a step to address the issue of candidates with criminal cases in politics.”

“This judgement will act as a deterrent to the political parties to give tickets to the candidates with criminal cases, particularly because MP/MLAs will lose their seats immediately on conviction. This is really very significant,” he added.

Image Courtesy: Nirzardp, Licensed under the Creative Commons Attribution-Share Alike 3.0 Unported| Wiki Commons

Image Courtesy:Presidential Press and Information Office Ru, Licensed under the Creative Commons Attribution 3.0| Wiki Commons