Should Convicted Politicians Be Permanently Barred from Elections?

Syllabus:

GS-2:

Representation of People’s Act , Parliament , Judgements & Cases

Focus:

The Supreme Court is hearing a petition seeking a lifetime ban on convicted individuals from contesting elections. The petition argues that if convicted persons are ineligible for government jobs, they should also be disqualified from becoming lawmakers. The Central government, however, maintains that the current six-year disqualification period is sufficient.

Should Convicted Politicians Be Permanently Barred from Elections?

Legal Provisions Governing Convicted Candidates:

Representation of the People Act, 1951

  • Section 8(3): Disqualifies a person convicted of a criminal offense and sentenced to at least two years of imprisonment. The disqualification extends for an additional six years after their release.
  • Section 8(1): Mandates disqualification of individuals convicted under specific laws, regardless of their sentence duration. These include:
    • Heinous crimes (e.g., rape).
    • Protection of Civil Rights (PCR) Act (untouchability offenses).
    • Unlawful Activities (Prevention) Act (UAPA) (unlawful associations).
    • Prevention of Corruption Act (corruption offenses).

Section 11 – Election Commission’s Power

  • The Election Commission (EC) has discretionary power to reduce or remove disqualification of a convicted person.
  • In 2019, the EC reduced Prem Singh Tamang’s disqualification period from six years to 13 months, allowing him to contest and win a by-election despite being convicted under the Prevention of Corruption Act.

Understanding Criminalisation of Politics:

Definition & Significance:

  • Criminalisation of politics refers to the participation of individuals with criminal backgrounds in electoral politics.
  • It undermines democracy, fairness in elections, accountability, and the rule of law.

Statistics:

  • In 2004, 24% of parliamentarians had pending criminal cases; this rose to 43% in 2019 (ADR data).
  • The number of MPs with criminal charges increased by 44% since 2009 (2023 petition).
  • In 2019, 159 MPs had serious criminal cases, including rape, murder, and kidnapping.

Causes of Criminalisation:

  • Vote Bank Politics: Candidates use illegal means like vote-buying with the help of criminals.
  • Corruption: Money power fuels contempt for the law and strengthens the criminal-political nexus.
  • Vested Interests: Voters prioritize community interests over candidates’ criminal backgrounds.
  • Muscle Power: Fear and violence, combined with the First Past the Post (FPTP) system, help criminals win.
  • Money Power: Black money and mafia funds finance elections, increasing criminal influence.
  • Poor Governance: Lack of stringent laws and weak enforcement of the Model Code of Conduct.

Initiatives & Recommendations:

  • Vohra Committee (1983): Highlighted political-criminal nexus and recommended reforms.
  • Law Commission Report (2014): Proposed disqualification of candidates with serious charges filed at least a year before elections.
  • Special Courts (2017): The government set up 12 fast-track courts for MPs/MLAs.
  • SC Monitoring (2019): Directed the Centre to monitor delays in criminal case investigations.

Key Supreme Court Judgments:

  • ADR v. UoI (2002): Candidates must disclose criminal records before elections.
  • Ramesh Dalal v. UoI (2005): MPs/MLAs convicted for two or more years are disqualified.
  • Lily Thomas v. UoI (2013): Sitting legislators lose office immediately upon conviction.
  • Public Interest Foundation v. UoI (2019): Political parties must publish candidates’ criminal records.

Supreme Court Judgments on Criminalization of Politics:

Association for Democratic Reforms (ADR) Case (2002)

  • The Supreme Court ruled that candidates must disclose their criminal records before contesting elections, promoting transparency in the electoral process.

CEC vs. Jan Chaukidar Case (2013)

  • The Patna High Court ruled that undertrial prisoners cannot contest elections as they lose their voting rights under Section 62(5) of the RP Act.
  • However, Parliament overturned this decision by amending the RP Act, allowing undertrials to contest elections.

Lily Thomas Case (2013)

  • The Supreme Court struck down Section 8(4) of the RP Act, which allowed sitting legislators to retain their seats after conviction if they filed an appeal.
  • Current Rule: A sitting MP/MLA is disqualified immediately after conviction.

Issues with Election Commission’s Discretion

  • The EC’s decision to reduce the disqualification period of Prem Singh Tamang contradicts its own recommendations on curbing criminalization in politics.
  • Raises concerns about arbitrary and politically motivated decisions regarding disqualifications.

The Current Petition for a Lifetime Ban:

Arguments in Favor of a Lifetime Ban

  • Petitioners’ View: If convicted individuals cannot qualify for a junior government job, they should not be eligible to contest elections even after six years.
  • Political Representation vs. Public Trust: Public office requires higher ethical standards, and allowing convicted individuals to contest undermines democracy.
  • Preventing Repeat Offenders: Many candidates re-enter politics after completing their disqualification period, raising concerns about governance integrity.

Government’s Position

  • The Central Government (2020 affidavit) argued that MPs and MLAs are not government employees and do not have service conditions like civil servants.
  • The current six-year disqualification period is deemed sufficient by the government.

Supreme Court’s Current Stand

  • The Supreme Court has sought responses from the Centre and the Election Commission regarding the petition.
  • The verdict will determine whether a lifetime ban is justified or if the existing framework is adequate.

The Extent of Criminalization in Politics:

Data on Criminal Candidates (ADR Report, 2024)

  • 46% of MPs (251 out of 543) have criminal cases.
  • 31% (171 MPs) face serious charges, including:
    • Rape, murder, attempt to murder, kidnapping.
  • Win Probability:
    • A candidate with a criminal background has a 15.4% chance of winning.
    • A candidate with a clean record has only a 4.4% chance of winning.

Past Recommendations to Curb Criminalization

  • Law Commission (1999 & 2014) and the Election Commission have recommended disqualifying candidates if charges are framed in a court for offenses punishable by more than five years.
  • Challenges to Implementation:
    • Political parties argue that such provisions could be misused for political vendetta.
    • Fear of false accusations being used to eliminate opposition candidates.

The Way Forward:

Stricter Disqualification Rules

  • Permanent disqualification should be considered for heinous crimes (murder, rape) and corruption-related offenses.
  • For less severe offenses, disqualification should be based on moral turpitude and public interest.

Reforming Election Commission’s Powers

  • The Election Commission’s discretionary powers to reduce disqualification periods should be reviewed for constitutional validity.
  • The Supreme Court should lay down clear guidelines to prevent arbitrary decisions.

Speedy Trials for Politicians

  • Fast-track courts should handle criminal cases against politicians to prevent delays and misuse of legal loopholes.

Political Parties’ Responsibility

  • Political parties should voluntarily deny tickets to candidates with serious criminal cases.
  • Stronger laws are needed to hold parties accountable for fielding tainted candidates.

Electoral Awareness and Voter Responsibility

  • Citizens must be educated on candidates’ criminal records before voting.
  • Greater transparency in political funding and election processes is essential to reduce criminal influence in politics.

Conclusion:

The criminalization of politics undermines democracy and public trust. While a lifetime ban for heinous crimes and corruption cases is justified, it must be implemented carefully to prevent political misuse. Strengthening disqualification laws, fast-tracking trials, and enforcing stricter candidate selection can ensure cleaner governance without violating democratic rights.

Source: TH

Mains Practice Question:

Discuss the issue of criminalization of politics in India. Should convicted individuals face a lifetime ban from contesting elections? Examine past judicial pronouncements and suggest reforms to ensure ethical governance while preventing political misuse of disqualification provisions. (250 words)