A threat to democracy

Citizens should use social media and other platforms to force the Centre to bring an appropriate amendment to Sec 8 of the RPA to curb criminalisation of politics.

Does it come as a surprise that the number of Lok Sabha MPs with a criminal background has doubled from 125 in 2004 to 251 in 2024?

At this rate, a majority of our Lok Sabha MPs could have criminal cases in the near future, and they may even be in majority in the Union council of ministers.

And these cases (251) are not just hoisted on them by their political rivals. As many as 170 are facing serious charges, including rape, murder etc. It is not a surprise that two of the candidates got elected as MPs in 2024 while being in jail.

The situation in our state legislatures is no better. According to a report by the Association for Democratic Reforms, in Dec 2023, 13 out of 30 chief ministers in the country had criminal cases.

The only legal provision relating to the disqualification of a candidate for contesting an election or holding his elected status as an MLA or an MP is contained in Sec 8(3) of the Representation of People Act (RPA).

It states: “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.”

It may be mentioned that the right to contest an election is neither a fundamental right nor a common law right. It’s a right conferred by a statute as ruled by the Supreme Court. It can, therefore, be taken away by amending the statute.

The framers of our Constitution were aware of the possibility of undesirable persons getting elected to our legislatures, as both Dr Rajendra Prasad, the president of the Constituent Assembly, and Dr Ambedkar, the chairman of the drafting committee, expressed their concerns during the debates in the Constituent Assembly.

Dr Rajendra Prasad said, “… if the people who are elected are capable and men of character and integrity, they would be able to make the best even of a defective Constitution. If they are lacking in these, the Constitution cannot help the country… and India needs today nothing more than a set of honest men who will have the interest of the country before them.”

Dr Ambedkar also expressed somewhat similar views. “I feel, however good a Constitution may be, it is sure to turn out bad because those who are called to work it, happen to be a bad lot. However bad a Constitution may be, it may turn out to be good if those who are called to work it, happen to be a good lot. The working of a Constitution does not depend wholly upon the nature of the Constitution … Who can say how the people of India and their parties will behave?”

No political party or their leaders can claim that they do not encourage or sponsor candidates with criminal background for contesting elections.

Their sole consideration for giving tickets to candidates is their winnability. They indulge in vote bank politics, making all kinds of promises to the electorate even when they know that the government may find it difficult to fulfil them, dividing the society on caste and on the basis of religion.

They have also brought down political discourse to an abysmal level during election campaigns and even during the legislature sessions. Use of unparliamentary language has become the order of the day; money and muscle power are rampant during elections. What else could we have expected from our lawmakers who have among them a very large number facing serious criminal charges?

Alarmed at these developments, various law commissions, the Election Commission and even the SC have been flagging the issue of criminality among lawmakers from time to time, asking the Centre to amend the RPA to bar/disqualify candidates who are charged for heinous crimes.

Various law commissions from 1999 onwards have been recommending that the disqualification envisaged under Section 8 of the RPA should come into operation when charges are framed rather than during the conviction, at least with respect to heinous offences.

The EC, too, has proposed that candidates against whom charges have been framed in serious crimes be barred from contesting elections and that false affidavits should also become a ground for disqualification.

The SC in its July 2013 judgement in Chief Election Commissioner vs Jan Chaukidar 7, ruled, “… persons in the lawful custody of the police also will not be voters, in which case, they will neither be electors. The law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is a privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls….”

But unfortunately, within four months the Centre brought an amendment that once again restored the ability of an undertrial accused to contest and hold electoral offices.

The SC again in Public Interest Foundation v. Union of India (Sep 2018) expressed its anguish over the pervasive rise in criminalisation of Indian polity. The court went on to request Parliament to make an earnest effort at addressing this issue.

It is unfortunate that our lawmakers have not bothered even to have any discussion on the recommendations of the concerned Constitutional bodies, leave aside amending the law on disqualification of elected legislators.

I have no doubt that all our well-meaning citizens, especially the youth, have as much or even greater stake in sending men of honour and integrity to our legislatures, as only then can we expect India to become a better society and a developed nation. It is assuring that all the concerned constitutional bodies are likely to support such efforts.

What is needed are sustained efforts in generating strong public opinion to bar the entry of undesirable elements into our legislatures. The youth and civil society, which are so active on social media, must make full use of the media to generate public opinion and see that the Centre takes this issue seriously and brings an appropriate amendment in Sec. 8 of the RPA.

I am sure Parliament can certainly incorporate adequate safeguards
in the proposed legislation to ensure that no candidate is barred from contesting elections if he is being falsely implicated in criminal cases due to political reasons.

(The author is a retired IAS officer)