Should covicted persons be allowed to fight elections?
The conviction by court of law prohibits a citizen from fighting election as per RP Act, but taking advantage of so many judgments and loopholes in law most of them fight and win too, making a mockery of our system.
THE SPEEDY trial of Bihar government has increased the rate of conviction. In fact it has even surpassed the national average. Only a couple of weeks ago, as many as a dozen political figures including few former MPs, former ministers and some sitting MLAs have been convicted in different cases. Munna Shukla, sitting MLA from Lalganj, Bihar, Rajan Tewary, ex MLA, Shashi Roy, MLA and former minister and others have been convicted and awarded punishment. Most of them have been awarded life imprisonment. In another case, one former MP, Dr RK Rana, has been convicted in infamous fodder scam. Leaving political fallout of such convictions apart, the legal question has again come to fore that whether they would be able to fight election in future or whether their membership in legislature would be scrapped. The article throws light on the constitutionality and legality of this burning issue.
Election and offence; poll and crime are like twin brothers and go side by side. The question that whether the convicted persons should be allowed to fight election or not has remained ambiguous in spite of clear cut provision to this effect made in Representation of People’s Act. In fact section 8(3), which reads as ‘A person convicted of any offence and sentenced to imprisonment for not less than two years, other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’
Apparently, it appears that the provisions are too simple to be interpreted, therefore, should be easily and unambiguously enforced.
With the passage of time, the criminalisation of politics started and large number of politicians started pitching themselves into electoral fray. The matter came to fore only when the sitting MP or MLAs got convicted by the competent court, in which quantum of punishment was more than two years.
In 1997, the ECI reiterated its legal stand and directed all the returning officers to disqualify any candidate who remained convicted for more than two years irrespective of status of appeal.
Subsequently this matter came into a legal battle between ECI and J Jaylalitha. She had been convicted in TANSI case under provisions of Prevention of Corruption Act, 1988 for more than three years, therefore in view of the direction of the ECI, her nomination was rejected and she could not fight the election.
In spite of it, she was sworn-in as CM of Tamil Nadu by then Governor, Fatima Bibi and a retired SC Judge. There were lot of legal battles and finally she had to quit till her conviction was stayed. Supreme Court, however, ruled that anyone can be appointed as CM of a state as per article 164 of the Constitution but the matter remained unresolved that whether the convicted person would fight election or not.
This matter remained unresolved and hardly any person could be disqualified by the ECI from fighting election on the ground of conviction in accordance with the provisions of RP Act.
This issue again came in light when sitting MP of BJP and cricket star Navjot sidhu was convicted by Punjab and Haryana High court in December 2006 U/S 304 of IPC for three years. Sidhu resigned and subsequently bye election was announced. Sidhu sought to fight the election again. The matter was taken to the Supreme Court which gave reprieve to Sidhu and temporarily stayed his conviction. Siddhu consequently fought election and won, Navjot sidhu v/s state of Punjab and others appeal (cri) 59 of 2007.
The stay of conviction by appellate court in general is interpreted in favour of the convict and nominations of such candidates are accepted by the RO.
This ruling of the Apex Court in Navjot Sidhu case opened Pandora’s Box vis-a-vis conviction versus elections.
In General election, 2009, so many convicted persons either fought or sought to fight elections. Sanjay Dutt, the film star, Md Sahabuddin, Surajbhan, Pappu Yadav, all sitting MPs from Bihar have been convicted by courts. Now all of them are on bails. Md Shahabuddin was granted bail by Patna High court. He was denied from fighting elections. Sanjay Dutt too was convicted under Arms Act, 1956 for which minimum quantum of punishment is seven years. Thus Dutt’s case was also a fit case of disqualification from fighting election, he sought permission from the court but was denied. In UP, the mafia don Bablu Srivastava has also been convicted but he has not been granted bail. The question is that whether he should be allowed to fight the fray if he gets bail. If yes, then how people like Abu Salem, Kasab, Afzal etc will be prevented and disqualified from fighting elections.
Lawyers like Prashant Bhusan categorically say that the judgement of Apex court in sidhu’s case was not correct. In fact this judgement has become a case of precedent. Ours is a law of precedent and the judgement passed by the higher judiciary becomes as good as law itself. Taking the advantage of this provision, the criminals make mockery of the entire system.
Coming to the crux of the matter, legal issue involved in these cases is that whether stay in conviction should be treated as acquittal. If the provision of the Representation of People’s Act, 1951, section 8 (3) is taken into account, it is clear that once the person is convicted, he will be disqualified and cannot fight election for the next six years after his release.
The legal luminaries are vertically divided on this issue. One school of thought is of the opinion that a person cannot be held guilty till the last legal option available to him is exhausted. It means that a person cannot be said to have been convicted if he has filed an appeal before the superior court and the court has accepted it for hearing. Some legal experts, however, say that acceptance of petition for admission and suspension of conviction is two different and separate things. They further maintain that if the conviction is suspended only then the person can be said not guilty or convicted.
The problem in our country is that if this proposition is accepted, hardly any criminal can be prevented from fighting elections because in India the provisions of appeal, in different nomenclature like SLP, LPA Single Bench and Double Bench etc are numerous and they can go on years and years before all options are exhausted. In fact taking advantage of this very provision, large number of criminals succeeds in fighting elections and makes a mockery of section 8(3) of RP Act, 1951.
The other side of the story is that if this provision is implemented in Toto, large number of political activists would be deprived of their political rights to fight elections, because instances of fabrication of false cases against political rivals by party in power are abundant. It is therefore a balance has to be strike and ensure that the criminals do not fight elections.
The time has come that we should make suitable amendments in RP Act because the provision of two years imprisonment for disqualification has become obsolete after amendment in section 41 of Criminal Procedure Code, which prohibits arrest by Police in a case in which imprisonment is less than seven years. The RP Act should be made an integrated, comprehensive and complete law for election matters, which may incorporate provisions of model code of conduct also, because right now we do not have any special law for model code of conduct and this code is nothing but a compendium of circulars and instructions issued by ECI time to time. Model code of conduct as such is not enforceable in the court of law until it is reinforced by other penal provisions prevailing in different parts like IPC, Public property defacement act, Laud speaker Act etc.
Apparently, it appears that the provisions are too simple to be interpreted, therefore, should be easily and unambiguously enforced.
With the passage of time, the criminalisation of politics started and large number of politicians started pitching themselves into electoral fray. The matter came to fore only when the sitting MP or MLAs got convicted by the competent court, in which quantum of punishment was more than two years.
In 1997, the ECI reiterated its legal stand and directed all the returning officers to disqualify any candidate who remained convicted for more than two years irrespective of status of appeal.
Subsequently this matter came into a legal battle between ECI and J Jaylalitha. She had been convicted in TANSI case under provisions of Prevention of Corruption Act, 1988 for more than three years, therefore in view of the direction of the ECI, her nomination was rejected and she could not fight the election.
In spite of it, she was sworn-in as CM of Tamil Nadu by then Governor, Fatima Bibi and a retired SC Judge. There were lot of legal battles and finally she had to quit till her conviction was stayed. Supreme Court, however, ruled that anyone can be appointed as CM of a state as per article 164 of the Constitution but the matter remained unresolved that whether the convicted person would fight election or not.
This matter remained unresolved and hardly any person could be disqualified by the ECI from fighting election on the ground of conviction in accordance with the provisions of RP Act.
This issue again came in light when sitting MP of BJP and cricket star Navjot sidhu was convicted by Punjab and Haryana High court in December 2006 U/S 304 of IPC for three years. Sidhu resigned and subsequently bye election was announced. Sidhu sought to fight the election again. The matter was taken to the Supreme Court which gave reprieve to Sidhu and temporarily stayed his conviction. Siddhu consequently fought election and won, Navjot sidhu v/s state of Punjab and others appeal (cri) 59 of 2007.
The stay of conviction by appellate court in general is interpreted in favour of the convict and nominations of such candidates are accepted by the RO.
This ruling of the Apex Court in Navjot Sidhu case opened Pandora’s Box vis-a-vis conviction versus elections.
In General election, 2009, so many convicted persons either fought or sought to fight elections. Sanjay Dutt, the film star, Md Sahabuddin, Surajbhan, Pappu Yadav, all sitting MPs from Bihar have been convicted by courts. Now all of them are on bails. Md Shahabuddin was granted bail by Patna High court. He was denied from fighting elections. Sanjay Dutt too was convicted under Arms Act, 1956 for which minimum quantum of punishment is seven years. Thus Dutt’s case was also a fit case of disqualification from fighting election, he sought permission from the court but was denied. In UP, the mafia don Bablu Srivastava has also been convicted but he has not been granted bail. The question is that whether he should be allowed to fight the fray if he gets bail. If yes, then how people like Abu Salem, Kasab, Afzal etc will be prevented and disqualified from fighting elections.
Lawyers like Prashant Bhusan categorically say that the judgement of Apex court in sidhu’s case was not correct. In fact this judgement has become a case of precedent. Ours is a law of precedent and the judgement passed by the higher judiciary becomes as good as law itself. Taking the advantage of this provision, the criminals make mockery of the entire system.
Coming to the crux of the matter, legal issue involved in these cases is that whether stay in conviction should be treated as acquittal. If the provision of the Representation of People’s Act, 1951, section 8 (3) is taken into account, it is clear that once the person is convicted, he will be disqualified and cannot fight election for the next six years after his release.
The legal luminaries are vertically divided on this issue. One school of thought is of the opinion that a person cannot be held guilty till the last legal option available to him is exhausted. It means that a person cannot be said to have been convicted if he has filed an appeal before the superior court and the court has accepted it for hearing. Some legal experts, however, say that acceptance of petition for admission and suspension of conviction is two different and separate things. They further maintain that if the conviction is suspended only then the person can be said not guilty or convicted.
The problem in our country is that if this proposition is accepted, hardly any criminal can be prevented from fighting elections because in India the provisions of appeal, in different nomenclature like SLP, LPA Single Bench and Double Bench etc are numerous and they can go on years and years before all options are exhausted. In fact taking advantage of this very provision, large number of criminals succeeds in fighting elections and makes a mockery of section 8(3) of RP Act, 1951.
The other side of the story is that if this provision is implemented in Toto, large number of political activists would be deprived of their political rights to fight elections, because instances of fabrication of false cases against political rivals by party in power are abundant. It is therefore a balance has to be strike and ensure that the criminals do not fight elections.
The time has come that we should make suitable amendments in RP Act because the provision of two years imprisonment for disqualification has become obsolete after amendment in section 41 of Criminal Procedure Code, which prohibits arrest by Police in a case in which imprisonment is less than seven years. The RP Act should be made an integrated, comprehensive and complete law for election matters, which may incorporate provisions of model code of conduct also, because right now we do not have any special law for model code of conduct and this code is nothing but a compendium of circulars and instructions issued by ECI time to time. Model code of conduct as such is not enforceable in the court of law until it is reinforced by other penal provisions prevailing in different parts like IPC, Public property defacement act, Laud speaker Act etc.
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