Context: The Supreme Court of India is currently hearing petitions seeking a lifetime ban on convicted individuals from contesting elections.
Relevance of the Topic:Mains: Electoral Reforms: Can convicted candidates contest elections?
Legal Provisions in this regard
- Section 8(3) of the Representation of the People Act, 1951 (RP Act, 1951): Disqualifies individuals convicted of criminal offences and sentenced to imprisonment for two years or more. Such individuals remain disqualified for six years post-release.
- Section 8(1) of RP Act, 1951: It further disqualifies individuals convicted under specific laws. The disqualification lasts during the sentence and 6 years post the release. The offences include:
- Heinous crimes like Rape.
- Protection of Civil Rights (PCR) Act, Preaching or practicing Untouchability.
- Unlawful Activities (Prevention) Act (UAPA) for unlawful associations.
- Prevention of Corruption Act.
- Section 11 of RP Act, 1951: It empowers the Election Commission (EC) to remove or reduce the disqualification period of a convicted person.
Present Trends
A report by ADR states that:
- 251 (46%) of the 543 elected MPs in 2024, have criminal cases against them.
- 171 (31%) face serious criminal charges including rape, murder, attempt to murder and kidnapping.
- Candidates with criminal records have a 15.4% chance of winning, compared to 4.4% for candidates with a clean record.
Supreme Court decisions in the past:
- Association for Democratic Reforms (2002): This mandated disclosure of criminal records of candidates contesting elections.
- CEC vs Jan Chaukidar (2013): Patna High Court interpreted that under-trial prisoners, as non-electors under Section 62(5) of RP Act, 1951, are ineligible to contest elections. However, Parliament amended the law to allow them to contest elections.
- Lily Thomas Case (2013): Struck down Section 8(4) of RP Act, 1951, which allowed convicted legislators to continue in office if they filed an appeal. Post-judgment, disqualification is immediate upon conviction.
Current Petition:
- The petition seeks a lifetime ban on convicted individuals from contesting elections, arguing that convicted persons are ineligible for even junior government jobs, so they should not be lawmakers.
Central Government’s stance (2020 affidavit):
- MPs and MLAs are not subject to ‘service conditions’ like government employees. The existing six-year disqualification post-release is deemed sufficient.
- The Supreme Court has sought fresh responses from the Central Government and the EC on the issue.
Arguments for and against a permanent ban on convicted candidates from contesting elections:
| Arguments in favor | Arguments against |
| - Integrity of Legislative bodies: A permanent ban is seen as a necessary measure to maintain the integrity of legislative bodies. The current temporary bans are considered inadequate. - Criminalisation in politics It would address the broader issue of criminalization in politics. - Conflict of interest Convicted politicians returning to Parliament and State Legislatures face a conflict of interest when vetting laws. - Democratic integrity Allowing those convicted of heinous crimes to return after a short sentence defeats democratic integrity. | - Banning candidates with criminal records may impact parties expected winning probabilities, benefiting third-party candidates. -Case to case basis Each case should be decided on its own merit, considering the gravity of offenses and criminal history. |
Way forward
- Law Commission and EC Recommendations:
- In 1999 and 2014, it has been suggested barring candidates from contesting if charged with offences carrying over five years of imprisonment.
- However, political consensus on this has been lacking due to likely misuse.
- Permanent disqualification may be disproportionate for minor convictions without moral turpitude.
- Matters related to heinous crimes and corruption-related convictions may warrant lifetime disqualification.
- The EC’s power to alter disqualification periods should be reviewed for constitutional validity.
While a complete lifetime ban on convicted politicians is under consideration, stricter measures for serious crimes and a review of the EC’s discretionary powers could be viable steps toward reducing the criminalization of politics.