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Disqualification of Convicted Representatives in India

In the newly independent India, the legislature enacted the Representation of People Act, 1951 seeking to provide qualification and disqualification for the participation of houses of parliament or the houses of each state. Subsequently, a contesting representative faces invalidation in case of any criminal allegations or conviction for any offence, against that contester. The basis for such a disqualification is pillared on the common notion of inherent incapability and potential inability for such a person to run a political office.

In India it is a known fact which has been debated for a long time that the nexus between criminality and politics goes to the root of key problems which our country is facing. In addition to the incapability that persons of a criminal bent of mind bring to a political office, their influence and power critically undermines the work and effort of hardworking candidates who might actually work in the interest of the people instead of their own.

The Constitution of India through Articles 324 and 329 establishes the foundations for the electoral system in the country. The Constitution allows Parliament to make provisions in all matters relating to elections to the Parliament and State Legislatures. It is by virtue of the operation of these laws that the Parliament has enacted laws such as the Representation of the People Act 1950 (RPA Act 1950), Representation of the People Act 1951 (RPA Act 1951) and Delimitation Commission Act of 1952. Particularly, the RPA Act of 1951 is at the centre for governing the qualification of people’s representatives.

Section 2(d) of Representation of People Act, 1951 provides meaning to the word ‘election’ as follows: “an election to fill a seat or seats in either House of Parliament or in the House or either House of Legislature of a State”. Further, the Act defines ‘conviction’ as “an outcome of a criminal prosecution which concludes in a judgment that the defendant is guilty of the crime charged.” Under the Act, Section 8 provides various grounds for disqualification of representatives, upon conviction of certain offences. The provisions under the Section state that if a person contesting election is charged with any criminal charges or has been convicted for the same earlier loses his right to stand for election in accordance with the object of the Act. The Section also provides various grounds under which a person may be disqualified on conviction for certain offenses. Clause 1 of Section 8 states that a person convicted of an offense punishable under:

  • Section 153A IPC i.e. offense of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or,
  • Section 171E IPC i.e. offense of bribery or Section 171F i.e. offense of undue influence or,
  • Under Section 376, IPC any or all offences in association with rapeor cruelty under clause 2 or 3 of Section 505 IPC

In addition to this, there are numerous other offences, which may lead to disqualification of a political candidate, if committed. For instance:

1.  Preaching and practicing of untouchability under Protection of Civil Rights Act, 1955

2.  Importing and exporting of prohibited goods under Section 11 of the Customs Act, 1962

3.  Being a member of an unlawful association, under Sections 10 to 12 of Unlawful Activities (Prevention) Act, 1967

4.  Any offence under the Narcotics Drugs and Psychotropic Substances Act, 1985 & The Prevention of Corruption Act, 1988

Further, a representative shall be disqualified, wherein the conviction is for:

1.  Only fine, for a period of six years from the date of such conviction;

2.  Imprisonment, from the date of such conviction along with a continued disqualification for a duration of six years from release

Anyhow, there are certain remedies available to those who are disqualified from running a political office. In case an aggrieved person wishes to redress his grievance regarding any corrupt practices being undertaken during the election process, a complaint can be made to the Election commission of India under the office of the Chief Election Commissioner. Further, even when an accused is on bail after conviction, and the appeal is pending for disposal, disqualification from contesting an election holds continued as per the guidelines issued by the Election Commission of India.

The Supreme Court in its judgment in the case of Lily Thomas v. Union of India, expressly held that any member of parliament, any legislative assembly or council, convicted of an offence and granted imprisonment of at least two years, immediately loses the membership of the house upon such conviction. This judgment laid down by a divisional bench is in contrast with the earlier stance taken by the apex court, wherein sentenced members held their seats in office until the point that they exhausted all judicial means of redressal. In this sense, the judgment may be said to be extremely laudable.

Section 8(4) of the Representation of the People Act, which permitted elected representatives three months to appeal their conviction, was proclaimed unconstitutional. This was in contrast to the earlier position, wherein convicted members held on to their seats until they exhausted all judicial remedies in lower, state and Supreme Court of India.

The Supreme Court deliberated upon the issues of whether the Parliament was competent to enact Section 8(4) of the Act and whether Section 8(4) of the Act was ultra vires the principles laid down by the Constitution because it permitted people of a certain class hold political membership even when convicted of an offence.

In an extensive judgment, the apex court held that, by virtue of Article 102(1)(e) andA. 191(1)(e) of the Constitution, the Parliament had undisputed power to a law that outlined the aspect of disqualification of a political candidate or a sitting member of any house of the parliament or state assemblies.

However, it was also held that once a member is disqualified, the seat automatically becomes vacant by virtue of Article 101(3)(a) and Article 190(3)(a) of the Constitution of India. Echoing in the sentiment the court highlighted how the parliament cannot subsequently defer the date on which any such disqualification takes effect and prevent the resulting vacancy. The Court held the said Articles as a limiting provision on the powers of the Parliament to affect the aspects of disqualifications of representatives. Consequently, Section 8(4) of the Act was held to be ultra vires to the Constitution of India since the provisions of the Section provided powers to parliament which were in contravention of the Constitution.

Such criminalisation of politics is an issue that affects the very core of a democratic setup as it pertains to the fairness of the election process. Firstly, the number of criminals that get elected in the state and the central legislature has increased manifold since India’s independence.

According to the Association for Democratic Reforms, in the year 2004, 24% of the MPs had criminal cases pending against them, the number was 30% in 2009, it shot up to 34% in 2014, while the number stands at 43% in the Parliament that was elected in the year 2019. These figures picture an alarming situation with regard to where we are headed if things continue to go in the same direction. The Parliament over the years has failed to enact a law to set rules which would govern the penalties if legislators have criminal records or convictions. This, however, should not be a surprise because of the vested interests of people sitting in the Parliament.

In the present scenario the potent Representation of the People Act, 1951 is the legislation that governs the disqualification of elected legislators. Sections 8(1), 8(2), 8(3) of the Act lay down that if a legislator is convicted of certain offences which are provided in these sections, he/she shall stand disqualified from running a political office, which in itself, is a very effective enactment. However, in addition to the existing provisions, candidates & political parties can also be mandated to provide wide publicity with respect to all criminal cases pending against the candidate upon filing for nomination to contest in an election, which ought to bring to light any areas of concern for the public and ensure greater transparency.
On a closing note, it may be said that the criminalization of politics has been an issue plaguing the Indian Political System for a long time and affects the very roots of democracy. The judicial precedent laid down by the Lily Thomas case is an extremely laudable one and possesses the potential to facelift our Indian democracy and curb the entry of people with a criminal bent of mind into law-making systems of democracy.

About author –

This article has been written by Vidhit Verma, 2nd year BBA LLB(Hons.) student at School of Law, Christ University, Bengaluru.

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