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Lifetime Ban on Convicted Politicians
Context:
The Supreme Court of India is currently hearing petitions advocating for a lifetime ban on convicted individuals from contesting elections.
Legal Provisions on Disqualification
- RPA, 1951: The Representation of the People Act, 1951 (RP Act, 1951) lays down provisions for disqualifying convicted individuals from contesting elections.
- Section 8(3): According to Section 8(3), a person sentenced to imprisonment for at least two years is disqualified from contesting elections during the incarceration period and for six years post-release.
- Section 8(1): Additionally, Section 8(1) stipulates that individuals convicted under laws related to heinous crimes, such as rape, the Protection of Civil Rights (PCR) Act for untouchability, the Unlawful Activities (Prevention) Act (UAPA), and the Prevention of Corruption Act, will be disqualified regardless of the sentence duration and for six years beyond their release.
Qualifications and Disqualifications mentioned in Constitution
Qualifications
- Rajya Sabha: A person must be a citizen of India and at least 30 years old. They must also take an oath or affirmation of allegiance to the Constitution and be a registered voter in the state from which they seek election.
- Lok Sabha: A person must be at least 25 years old. They must affirm their faith in the Constitution, uphold India’s integrity, meet requirements prescribed by Parliament, and be a registered voter in any constituency in India. A candidate for a reserved seat must be a member of a Scheduled Caste or a Scheduled Tribe.
Disqualifications
- If they hold an office of profit under the Government of India or the Government of any State.
- If they are of unsound mind and declared so by a competent court.
- If they are an undischarged insolvent.
- If they are not a citizen of India, have voluntarily acquired citizenship of a foreign state, or are under acknowledgment of allegiance to a foreign state.
- If they are disqualified by or under any law made by Parliament.
Judicial Precedents on Decriminalisation of Politics
- Association for Democratic Reforms (ADR) Case (2002): Mandated candidates to disclose their criminal records before elections, promoting transparency.
- CEC vs. Jan Chaukidar (2013): Upheld the Patna High Court’s interpretation that undertrial prisoners lose their status as ‘electors’ and thus, cannot contest elections.
- However, this ruling was nullified by a parliamentary amendment.
- Lily Thomas Case (2013): Struck down Section 8(4) of the RP Act, 1951, which previously allowed convicted legislators to retain their seats if they appealed the conviction.
- Post this judgment, disqualification is immediate upon conviction.
- Section 11: Additionally, Section 11 of the RP Act, 1951 grants the Election Commission (EC) the power to reduce or remove the disqualification period of convicted individuals.
- This provision was controversially invoked in 2019 when the EC reduced the disqualification period of Sikkim’s Chief Minister, Prem Singh Tamang, from six years to 13 months, enabling his electoral comeback despite a conviction under the Prevention of Corruption Act.
Current Petition and Government’s Response
- The petition before the Supreme Court seeks a lifetime ban on convicted individuals from contesting elections.
- The petitioners argue that if a convicted individual is ineligible for even a junior government job, they should not be allowed to become lawmakers post-conviction.
- However, in its 2020 affidavit, the Central Government countered that MPs and MLAs are not bound by ‘service conditions’ like government employees, and the existing six-year disqualification post-release is sufficient.
- The Supreme Court has now sought fresh responses from the Central Government and the EC on this matter.
Need for Electoral Reform
- According to a report by ADR, 251 (46%) of the 543 elected MPs in 2024 had criminal cases against them, with 171 (31%) facing serious charges like murder, rape, and kidnapping.
- The report also highlighted that candidates with criminal backgrounds had a 15.4% chance of winning, compared to just 4.4% for candidates with clean records.
- Both the Law Commission (in 1999 and 2014) and the EC have recommended barring individuals from contesting elections if charges framed against them involve crimes punishable by more than five years.
- However, political parties have resisted this reform, citing concerns over potential misuse.
While lifetime disqualification for all convictions might be excessive, a nuanced approach could be adopted. Convictions involving moral turpitude, heinous crimes, or corruption could warrant permanent disqualification, as these directly impact public trust in governance. Meanwhile, the constitutional validity of the EC’s power to reduce disqualification periods should be revisited to ensure its impartiality and integrity.
