Need to bar convicted lawmakers from contesting polls

Those who break the law should not make the law, the supreme court had said

GN Bureau | July 13, 2017


#elections   #criminals   #politicians  


A key element of electoral reforms is to bar convicted MPs and MLAs from contesting elections for their entire lifetime. Yet, this has not happened till now.
 
The election commission drew the supreme court's ire due to its silence on the critical issue of decriminalisation of politics — whether convicted MPs and MLAs should be barred from contesting elections for life? reported the Times of India
 
Justices Ranjan Gogoi and Naveen Sinha on Wednesday read out a portion of the EC's fresh affidavit that said it supported "the cause espoused by" petitioner Ashwini Upadhyay, who said those convicted should be "uniformly barred from the legislature, the executive and the judiciary".
 
Upadhyay has said that it would not be possible to decriminalise the polity without barring convicted persons from elections.
 
Upadhyay in his petition prayed: “Petitioner submits that decriminalization of the Polity is impossible without debarring the convicted person from electoral politics for life, as done in case convicted person is from the executive and judiciary. We cannot apply different rules to debar convicted person from judiciary, executive and legislature.”
 
The petition names Uttar Pradesh, Gujarat and Maharashtra as the states with the highest percentage of MPs accused of criminal and serious criminal offences. It points out an “evident link” between criminality and the probability of winning as attributable to a candidate. “While any random candidate has one in eight chances of winning a Lok Sabha seat, a candidate facing criminal charges is twice as likely to win as a clean candidate,” it said
 
The demand for keeping the convicts out of elections is not new.
 
“Once the conviction of the elected representative has attained finality, the representative should automatically be disqualified by the Speaker or Presiding Officer of the House. It is clarified that the disqualification would also apply in cases where an elected representative has not filed any revision/appeal on conviction,” said the 244th report of the Law Commission filed in February 2014. 
 
The Association for Democratic Reforms (ADR) has rightly recommended that any person against whom a charge has been framed by a court of law, in a criminal case for which the punishment is imprisonment of two years or more should not be allowed to contest elections. In particular, any candidate against whom charges have been framed for serious offences like murder, rape, kidnapping etc. should be banned from contesting elections.
 
However, the union government on April 17 had opposed in the Supreme Court a demand to bar convicted politicians for life from contesting polls.
 
The government affidavit said: “The provisions (in Representation of People Act) involved are intra-vires and have been in the statute book for quite some time and continue to serve the purpose for which these are enacted i.e. curbing the entry of persons with criminal antecedents into political arena.”
 
Incidentally on March 21, the election commission had supported in Supreme Court a demand to bar convicted politicians for life from contesting polls. The EC had said that the plea made by PIL petitioner is “not adversarial” in seeking directives for ensuring that trials of MPs and MLAs are concluded within a year and that such convicts are prohibited for life from the political process.
 
The EC added, it has already submitted detailed proposals for electoral reforms, which include decriminalisation of politics, making the offence of bribery a cognizable offence, prohibiting advertisements during 48 hours before the polls and prohibition of paid news.
 
In another case, the Supreme Court had said that “those who break the law should not make the law”.
 
“Those who break the law should not make the law. Generally speaking the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics and the house – a powerful wing of governance. Persons with criminal background do pollute the process of election as they do not have many a holds barred (sic) and have no reservation from indulging into criminality to win success at an election,” the apex court said in K Prabhakaran vs P Jayarajan.
 

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