India being the largest democracy of the world and a welfare State, casts a duty on its parliamentarians to protect the rule of law as well as to look after the well-being of the citizens. However, at times, the rights of these lawmakers or those looking to get into public life get infringed in the process of framing the welfare laws. Such a scenario is evident in the case of the parliamentarians and the candidates interested in contesting elections but have been convicted or fined for any offence. Section 81 of the Representation of the People Act, 1951 (RPA) calls for a bar of 6 years for contesting elections, on any person who has been convicted for more than 2 years or fined under any offence as specified in this section. This bar of 6 years is in addition to the incarceration period of the convict and hence, raises an important question of sustainability of such an additional punishment which is levied on the prospective candidate, who has already been punished by the law in form of either imprisonment or fine.
Hence, it would not be wrong to suggest that such a bar deprives the person hit by the section of an equal opportunity to contest elections, a right vested in every Indian citizen by the Constitution of India. Prior to the year 2003, the period of bar started from the date of conviction of any parliamentarian or the prospective candidate but then, the law underwent changes and the period to inhibit the convicted election candidate was changed to begin from the date of release of the convicted person in addition to the period of incarceration.2 Therefore, this article aims at critically analysing the arbitrary provision, namely, Section 83 of the Representation of the People Act on the touchstone of well-established constitutional principles.
Principle of democracy
The word democracy is derived from two ancient Greek words, “demos” which mean people and “kratos” which means rule and thus, the democracy collectively means “rule by the people,” which can also be understood as direct, participatory and representative form of rule by the people.4 As stated by Abraham Lincoln, democracy is a government “of the people, by the people, and for the people”.5
In a democratic setup, “salus populi suprema lex esto”, meaning the “welfare of the people” and their interest are primary and any other interest are secondary for the Government.6 It refers to the rule by the citizens in which the ultimate power is entrusted and exercised by the people through their elected representatives in a free electoral setup.7 Depriving people of the right to contest elections strikes at the very heart of the concept of democracy. One cannot possibly look to justify (what many may argue as) “double jeopardy” under the garb of “cleansing politics”. It is also beyond understanding as to how a convict, having served his sentence, is seen as unfit for public life for another 6 years and the same person is deemed fit to be a parliamentarian or a legislator after he or she passes that threshold. It is interesting how the concept of “reformation” and the universally accepted norm that a person who has served his or her sentence must be accepted in the society without any biases and prejudices is lost in this case.
Democracy is one of the basic features of the Constitution and is recognised in the Preamble to the Constitution.8 While discussing the concept of democracy, the Supreme Court observed that it is unquestionable that democracy is an indispensable feature of the Constitution.9 This principle was restated in T.N. Seshan v. Union of India.10 The Court held that democracy is undoubtedly the fundamental and basic structure of the Indian Constitution and it is a creation of the rule of law which seeks to establish a democratic social order.11 The Supreme Court also observed that democracy is an also an incarnation of constitutional philosophy along with being a part of political philosophy.
The idea of democracy embraces rights of human beings which forms the foundation of Indian democratic setup. It is based on equilibrium between the interest of public and constitutional rights. This balance can be illustrated through Article 1912 that guarantees freedoms in clause (1), however, in clause (2) authorises the State machinery to enforce reasonable or the justified restrictions on such freedoms on the grounds of public interest. This idea follows the modern theory of constitutionalism, according to which all the rights are interrelated. This means that Constitution permits restrictions where such restrictions are justified on the grounds such as public interest and rights of others.13
Criminalisation of politics
In the year 2018, the five-Judge Bench of the Supreme Court ruled that the politicians having criminal antecedents cannot be stopped from contesting elections.14 The rationale behind the judgment highlights the fact that a mere criminal accusation on the election candidates cannot rob them off their statutory right/constitutional right to contest elections until they are convicted for a criminal offence. Additionally, it is important to acknowledge the power tussle in politics that often attracts accusations and counteraccusations. Such political vendetta was alleged by the Congress in the year 2019, whereby the party accused the Modi Government of targeting the political opponents in false cases.15
During the Narasimha Rao Government, in the year 1993, Vohra Committee was established under the chairmanship of the then Home Secretary N.N. Vohra, to look into the reasonable nexus amongst the criminals, bureaucrats and politicians.16 The report of this Committee unveiled some serious concerns expressed by the intelligence agencies like CBI, IB and RAW that the criminal network and mafia was virtually running a parallel Government.17 The problem of criminalisation of politics seems to be like an issue which has been addressed several times by Parliament as well as the Supreme Court, but no reasonable steps have been taken. Recently, when a petition was filed in the Supreme Court to seek Lokpal-monitored investigation in criminal-political nexus, the Supreme Court denied entertaining the utopian plea.18 Even before Vohra Committee, Goswami Committee which was established in 1990 on electoral reforms, concurred with the abovementioned observations and addressed the crippling effect of money and muscle power in elections.19 The same issue has been raised time and again in different committees and reports but Parliament has failed to make any stringent law to curb the root cause of the problem.
The 1951 Act was made with a view to regulate the elections and to ensure that the best of the people are going to be elected as representatives for a better India. Hence, keeping in mind the objective of the Act, the Bombay High Court in Navnath Sadashiv Taras v. State of Maharashtra20 held that while deciding qualification or disqualification of any election candidate, purposive interpretation must be done to construe that the convicts are kept away from contesting elections. Moreover, to make the election system transparent, it was held that people of India have a right to information regarding criminal history of the election candidate and hence, all the candidates necessarily require signing the affidavits to publish such information.21
It is evident that despite the steps taken by the Government such as formation of committees, and addressing the issue of criminalisation of politics in detail at different forums, entry of politicians with criminal records in Parliament has rather increased. As per the Report of Association for Democratic Reforms, there is a 26% rise in the number of politicians with criminal antecedents in the elections of 2019 in comparison to year 2014.22 The irony that lies here is that the Government failed to adhere to the objective of the RPA Act and no substantial action has ever been taken to curb the politicians with criminal records from entering into Parliament.
The RPA Act provides for the disqualification of candidates who have been fined or convicted with a punishment of more than 2 years under the listed category of offences and additionally lays down extra restriction of debarment of candidates from contesting for 6 years after their release from prison.23 The most prominent question that rises here is about the justification of additional punishment in form of debarment of a person who is convicted for more than 2 years of imprisonment or has been fined from elections for an enhanced period of 6 years since his release from prison or since date of conviction in case of fine. Firstly, nowhere the justification has been provided for keeping such a long tenure of 6 years to make the convicted person eligible for contesting elections. The idea that a person convicted of a “serious offence” must not be allowed to contest elections for 6 years after his/her release is unjustifiable. Not only does it rob a citizen of his/her fundamental rights to contest elections, it goes against the very spirit of the Constitution and creates a separate class of citizens within the country. This also carves out a situation where a person who has been punished as per the law is punished well after he/she has served the sentence and we end up suspending their constitutional rights.
RPA through the lens of Indian Constitution
Article 8424 of the Constitution states the qualifications for being a Member of Parliament. It provides that a person shall not be eligible to be chosen to fill a seat in Parliament if he is not a citizen of India, and has made an oath or affirmation according to the form set out for the purpose in the Third Schedule.25 He should be not less than 30 years of age in case of Council of States and not less than 25 years of age in the case of a seat in the House of the People.26 Moreover, he must also possess any other qualifications as provided under any Parliament made law.27
Article 10228 states the disqualifications for membership and provides that a person shall be disqualified from being elected in either House of Parliament if he does hold any office of profit under the State or the Centre. It further provides that a person will be disqualified if he is of unsound mind, an undischarged insolvent, non-citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement adherence to a foreign State.29 Also, the last ground for disqualification is under any law made by Indian Parliament.30 Similarly, Article 17331 provides for qualification for membership of the State Legislature and Article 19132 enumerates the disqualifications similar to Article 102.
Parliament by the Representation of the People Act, 1951 Act has prescribed further conditions for a person to become a Member of Parliament or of Legislative Assembly. Section 833 of the Act provides the disqualification of a person on conviction for certain category of offences. The right to contest an election is a statutory right34 and Parliament is entitled to impose restrictions on the same. However, it is pertinent to mention that such restrictions shall be reasonable and unarbitrary. A legislation which is arbitrarily invading the right of a person cannot be regarded as reasonable.
Arbitrary classification of offences
Section 8(3)35 of the Representation of the People Act, 1951, provides that a person who is convicted of any offence other than offences provided in Sections 8(1)36 and (2)37 of the Act and is sentenced to jail for more than 2 years, shall undergo a ban from contesting elections for 6 years after his release along with his period of the sentence.
A question arises that what will happen in a case in which an individual has been sentenced on various counts in which none of the conviction of any single offence is more than two years but when the whole period of different sentences of imprisonment is counted it becomes 2 years or more and the Judge orders the sentences to run consecutively, whether the person will be disqualified under Section 8(3) of the Act? By a plain reading of Section 8(3), it is clearly evident that it talks about “a person convicted of any offence” which implies that any one of the offences should have a conviction of more than two years for attracting disqualification under Section 8(3). However, in K. Prabhakaran v. P. Jayarajan38 the Supreme Court held that in Section 8(3) of the RPA, gravity of offence has not to be seen but the duration of the imprisonment is important for disqualification. However, K.G. Balakrishnan, J. in his dissenting opinion stated that Section 8(3) of RPA is a provision through which a person is disqualified and thus it should be strictly interpreted.39 Only when a situation perfectly fits within the walls of the provision, only then a person should be disqualified and if a person who has not been sentenced for any offence for more than 2 years, he should not be disqualified.40
It is to be noted that the order for the sentence to run alongside or sequentially is an order as to the mode in which the sentence is to be executed and totally depends upon the court. Moreover, the Code of Criminal Procedure, 197341 does not provide any guidelines and there are no specific provisions to tell us that under which situations what mode of sentence is to be executed. There is a high chance where two persons who have committed similar crimes are given different modes of sentences, one to be executed concurrently and another to be executed consecutively. In such a case, one person who is to be awarded consecutive imprisonment of more than 2 years shall be disqualified under Section 8(3)42 however; the person awarded concurrent imprisonment will be allowed to contest election. It is pertinent to mention that Article 14 of the Constitution provides that, among equals, the law should be equal and equally administered without any kind of distinction.43 However, if such a situation arises, two convicts having committed the same offences will be treated unequally which is violating the principle of equality as mandated by Article 1444 of the Constitution.
The next question which arises is that what if a person is convicted for more than two years and his prison time is eventually decreased? Will then he be disqualified under Section 8(3) of the RPA. To answer this question a Constitution Bench judgment of the Supreme Court in Sarat Chandra Rabha v. Khagendranath Nath45 can be referred. In this case the convict was awarded a remission due to which his period of imprisonment was reduced from two years. The Court held that as the remission has reduced the period of sentence it will save him from incurring the disqualification.46 It is to be noted that the power of remission is wholly an executive action and there is no law as such to question the legality of this action. Person having influential contact and the confidence of the ruling Government can easily get remission through such executive action. However, a person from opposition party will suffer as they will not be granted such remission due to political vendetta and several other factors.
It is clear from the abovementioned judgments of the Supreme Court that it is the time period and not the gravity of the offence which is the reason of disqualification under Section 8 of the RPA. However, Section 8(1) also provides for disqualification even on sentence of only fine and no imprisonment at all. Hence, it can be said that in such cases time period of the conviction does not matter. Moreover, Section 8(3) also carves out special distinction and provides that mere conviction is not sufficient to incur a disqualification; the convection must be of more than two years.
This provision discriminates among convicts on the basis of time period of the conviction as well as on the gravity of offences. Hence, it is manifestly arbitrary, irrational and violative of Article 1447 of the Constitution.
Principle of double jeopardy
In pursuance of the disqualifications mentioned under Section 848 of RPA, the ban of additional 6 years on the election candidate who has been fined or convicted for more than 2 years is arbitrary in nature and amounts to double punishment. With the advent of international law, many rights and duties of the sovereign States were recognised by means of international conventions and bodies. One of such common law principle is “nemo debet bis vexari pro una et eadem causa” which states that no one should be tried twice in respect to the same matter. This doctrine is also enshrined under Article 20(2)49 of the Indian Constitution.
Article 14(7)50 of the United Nations International Covenant on Civil and Political Rights (ICCPR) guarantees:
“No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.”
Moreover, Article 75(4)(h)51 to the 1977 Additional Protocol I to the Geneva Conventions guarantees that “no one shall be punished by the same party for an offence in respect of which a final judgement acquitting or convicting that person has been previously pronounced under the same law and judicial procedure”.
Whenever any person is convicted for any offence listed under Section 852 of RPA, with fine or with imprisonment for more than 2 years, the additional bar of 6 years on that person from contesting elections is not a punishment which is granted for an offence committed under RPA but is a separate penalty which is levied on a person convicted for more than 2 years or charged with fine. This position does not take into consideration a person, who is convicted for a term of less than 2 years. The principle of double jeopardy comes into picture when a person is punished twice for the same criminal offence. Hence, in the present case, since there is no separate offence which is committed by the election candidates who are accused of criminal acts, it cannot be said that the additional punishment in the form of debarment of the convicts from contesting elections for a further period of 6 years is justified under law.
In Bhagwan Singh v. Commr.53, it was held that the disciplinary inquiry does not amount to double jeopardy. This is because the objective of carrying out disciplinary proceedings is to decide whether the accused person is suitable for the service or not.54 On the other hand the object of the criminal prosecution is to find out whether ingredients of the offence have been made out or not.55 Comparing the disciplinary inquiry with the disqualification of the convicted persons under RPA, it is clear that the disciplinary inquiry is synonymous to the disqualification of any election candidate, when he is convicted by any court with fine or imprisonment of more than 2 years. In both the cases, the unfit person is removed from the office and hence, such a punishment is justified but in case of RPA, when an additional bar of 6 years is put on the convicted person, that would amount to double punishment given to the convicted person.
India being the largest democracy offers several fundamental rights to its citizens and simultaneously has power to restrict such rights on reasonable grounds. While looking at this democratic setup through the lens of common man, this setup feels ironical whereby the problem of criminalisation in political setup is recognised by the Government whereas Government failed to take any steps to curb the menace. While the law provides the 6 years’ ban on convicted politicians, it suitably discriminates the election candidates by making a separate classification whereby fine also attracts the ban but the less than 2 years imprisonment does not attract the same.
As was rightly stated by Oscar Wilde that “Every saint has a past, and every sinner has a future.” It is right of every convicted person to start afresh and again make a life worth living. So, either by following the reformative justice, the candidates all the convicted candidates shall be given equal opportunity to contest elections and start their political career afresh without any ban or there shall be a permanent ban on entry of any convicted person into politics.
*Partner, L&L Partners, New Delhi.
**Advocate-on-Record, Supreme Court of India.
*** 5th year student, Maharashtra National Law University, Nagpur.
**** 5th year student, Institute of Law, Nirma University, Gujarat.
4 Tasneen Sultana, The Evolution of Democracy through the Ages: Focus on the European Experience, Journal of European Studies (2012).
5 James A. Langley, Who Coined “Government of the People, by the People, for the People”?, The Washington Post, <https://www.washingtonpost.com/opinions/who-coined-government-of-the-people-by-the-people-for-the-people/2017/03/31/12fc465a-0fd5-11e7-aa57-2ca1b05c41b8_story.html>.
15 Government Targeting Political Opponents with False Cases: Congress, Times of India, 31-8-2019, 22:43 IST.
16 Vohra Committee Report, Ministry of Home Affairs, 5-10-1993, <https://adrindia.org/sites/default/files/VOHRA%20COMMITTEE%20REPORT_0.pdf>.
17 Vohra Committee Report, Ministry of Home Affairs, 5-10-1993, <https://adrindia.org/sites/default/files/VOHRA%20COMMITTEE%20REPORT_0.pdf>.
18 Vohra Committee Report: SC Refuses to Entertain Plea, Says Prayers are Utopian, Economic Times, 11-12-2020, 01:50 p.m. IST.
19 Goswami Committee on Electoral Reforms, Government of India, 1990.
22 Mohua Chatterjee, 2014 vs 2019: A 26% Rise in MPs with Criminal History, Times of India, 27-5-2019, 03:44 IST.
41 Code of Criminal Procedure, 1973. http://www.scconline.com/DocumentLink/y587uE3Q.
50 International Covenant on Civil and Political Rights, UN GAOR, Art. 14(7).
51 Protocol Additional to the Geneva Conventions of 12-8-1949, and Relating to the Protection of Victims of International Armed Conflicts, Art. 75(4)(h).