Curious case of the convicted lawmaker

Tags: Op-ed
Curious case of the convicted lawmaker
AFP
IN SPOTLIGHT: In Bihar, the fodder scam of about Rs 950 crore was first suspected in February 1985, and involved two former chief ministers of Bihar, members of parliament as well as state assembly and bureaucrats
In a PIL filed before the apex court in 2011, Public Interest Foundation (PIF), an NGO, had sought disqualification of candidates in electoral fray who have been chargesheeted for serious and heinous offences attracting sentence of five years or more. The Supreme Court was informed by the election commission of India (ECI) that it has endorsed the suggestion made in the PIL and a proposal on similar lines has been sent to the ministry of law and justice. The apex court further sought the advice of the law commission of India in this regard. The law commission organised a national level conference after circulating detailed consultation paper. The response of major political parties at best was lukewarm. However, the law commission forwarded its opinion to the Supreme Court.

After giving opportunity to the concerned parties, the Supreme Court passed an order on March 10, that the charges framed against sitting MPs and MLAs for the offences specified in section 8(1), 8(2) and 8(3) of the Representation of the Peoples Act shall be concluded expeditiously and in no case later than one year from the date of the framing of charges. It is an important order as it would deter criminals from seeking election as their ability to manoeuvre prolonging of the trial would stand seriously curtailed. The Supreme Court is to hear the main prayer in PIL regarding disqualification on the next date some time in September this year.

In order to appreciate the issue, it is important to recall the existing provisions under chapter III of the Representation of the People Act (RPA), 1951, which deals with disqualifications for membership of parliament and state legislatures. Section 8 of the RPA, 1951, lists offences which would attract disqualification on conviction. It specifically provides that a person convicted of any offence and sentenced to an imprisonment of not less than two years shall be disqualified from contesting elections for a period of six years from membership of parliament and state legislatures.

The rationale behind these provisions is sound that a person unless convicted for specified offences should be considered innocent and mere proceedings in the court should not attract any disqualification. There have been vociferous demands from the civil society that political parties must not entertain criminals to contest elections. However, the ‘winnability’ factor being the primary determinant, the political parties have made light of the demand. This is clearly reflected in the composition of parliament where in comparison with the 2004 Lok Sabha, there has been emphatic rise by 27 per cent in 2009 of tainted MPs with pending criminal charges. The gravity is further impelled with the disclosure that the number of total pending criminal cases has increased by almost 21 per cent in 2009 compared with the previous Lok Sabha as disclosed by Association for Democratic Reforms.

The report of the Justice Verma Committee on Amendments to Criminal Law, 2013, has dealt on this subject in the 13th chapter titled ‘electoral reforms’. The ECI had conveyed to the Justice Verma Committee that it had sent a recommendation to the government as far as 1998 for candidates to be disqualified even prior to conviction for serious offences. The committee, after due deliberations, recommended “an amendment to the Representation of People Act, 1951 by which the spirit of the election commission’s suggestion is carried out ... For us, it is sufficient if a chargesheet has been filed and cognizance has been taken by a court for the person concerned to be disqualified from contesting elections to either house of parliament or to the legislature of a state”. The committee, in its report, lists serious and heinous offences attracting sentence of five years or more for disqualification once charge sheeted by a competent court.

In Bihar, the fodder scam of about Rs 950 crore highlights the unbridled freedom enjoyed by politicians. The scam, which was first suspected in February 1985, involved two former chief ministers of Bihar, members of parliament and the state assembly and bureaucrats. It was only in March 2012 that special CBI court framed charges against 44 accused, though CBI had filed the chargesheet in March 2003. As of September 2013, the convictions have been handed over to former chief minister, senior politicians and bureaucrats marking 28 years for justice to be completed in the scam. This case establishes that criminals have adopted all legal means to escape from judicial convictions.

A review of candidates who contested in the recent assembly elections in Chhattisgarh would suffice with a view to appreciate the menace of criminalisation and the capacity of such politicians to influence the judicial process. In Chhattisgarh, out of 983 candidates who contested elections, there were four candidates who faced charges in crimes punishable with an imprisonment for a term of two years or more, and for a term of five years or more relate to the charges between 1990 and 1995; five candidates between 1996 and 2001; 14 candidates between 2002 and 2007; 57 candidates between 2008 and 2013.

Apart from the advocacy of the liberal principle of innocence unless found guilty, those who oppose disqualification at the stage of chargesheet also highlighted the apprehension of political vendetta. This has been countered by the suggestion that only such chargesheets should be considered which the competent court has taken cognizance at least one year before the notification of the election. The data from Chhattisgarh and the incidence of fodder scam unravels the stark reality of an inadvertent legitimacy being granted to criminals in Indian politics, however grisly and lurid the crime is. Those who are canvassing for conviction as the criterion for disqualification of potential lawmakers would do well to pause and ponder whether India can embrace the luxury of highest liberal benchmark without correcting the backward linkages.

(The writer is ex-chairman of TRAI and director of Public Interest Foundation)

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