Towards decriminalization of politics
In our October-December 2011 issue we had reproduced the petition jointly filed by Public Interest Foundation, Common Cause, Transparency International and Gandhi Sewa and Satyagrah Brigade in the Supreme Court under article 32 of the Constitution, seeking appropriate directions for arresting the rampant criminalization of politics. The main prayer in the petition was for the disqualification of persons charged with the commission of serious offences disqualified from contesting elections to Parliament and the state legislatures. At the insistence of Common cause, a prayer for fast-tracking of pending criminal cases against sitting members of Parliament and state legislatures was also incorporated in the petition.
The prayers finally made in the PIL were as follows.
A. Lay down appropriate guidelines/ framework to ensure that those charged with serious criminal offences are unable to enter the political arena by contesting elections;
B. Lay down a time frame of six months during which trial of such persons are concluded in a time bound manner;
C. Direct the Central Government to implement the directions passed by this Hon'ble Court in Dinesh Trivedi, M.P. and Ors .v. UOI and Ors., (1997) 4 SCC 306 in letter and spirit;
D. Direct the Government to consider the feasibility of enacting legislation to deal with the menace of criminalization of politics and debar those charged with serious offences from contesting elections of any sort.
E. Declare the provisions of Sec. 8(4) of the Representation of People Act as ultra vires Art. 14 of the Constitution of India;
We have been keeping our readers informed of the developments in this matter through regular updates. In this issue, we are presenting the interim order issued by the apex court on March 10, 2014, for fast-tracking of criminal cases against sitting members of Parliament and state legislatures.
It would be appropriate to recall the developments leading to the issuance of this landmark order. Notice to the respondents, viz. the Union of India (UOI) and the Election Commission of India (ECI).had .been issued on January 5, 2012, but they failed to file their affidavits in reply despite repeated directions of the Court. The ECI eventually filed its reply in February 2013, broadly supporting the prayers made in our PIL. The Commission reiterated its longstanding recommendations for debarring persons charged with serious criminal offences from contesting elections to Parliament and State legislatures and endorsed our prayer for declaring Section 8(4) of the Representation of the People Act (RPA), which allowed convicted legislators to avoid disqualification merely by filing an appeal or revision petition, as ultra vires the Constitution.
On July 7, 2013, the Supreme Cour delivered its judgment in the PILs filed by Lily Thomas and Lok Prahari, holding Section 8(4) of the RPA as ultra vires the Constitution. This was the last of the reliefs sought in our PIL.
August 19, 2013.
Taking note of the relief already granted in the said PILs, the Court passed the following order. "2. Insofar as prayer (e) is concerned, we are informed that by a decision of this Court dated July 7, 2013 in Writ Petition (C) No. 490 of 2005 Lilly Thomas vs. Union of India and others and Writ Petition (C) No. 231 of 2005 - Lok Prahari through its General Secretary S.N. Shukla vs. Union of India and others, the said provision has been declared ultra vires.
3. We are also informed that a review petition has been filed by the Union of India seeking review of the judgment dated July 7, 2013.
4. Be that as it may, prayers (a),(b),(c) and (d)remain to be considered by this Court.
5. In its counter-affidavit filed by the respondent No. 2 Election Commission of India (for short "Election Commission"), it is stated that as early as on 16.09.1997, it had expressed its serious concern and anxiety in the matter of growing criminalization of politics to the then Prime Minister of India. Election Commission says that it has recommended that the law may be simplified by amending Section 8 of the Representation of People Act, 1951 (for short "the Act") that whoever is convicted of any offence by a court of law and sentenced to imprisonment for six months or more should be debarred from contesting elections for a period totaling the sentence imposed plus an additional six years. It is also the view of the Election Commission that where a person has been accused of serious criminal charges and the court is prima facie satisfied about his involvement in the crime and consequently, charges have been framed against such person, then in such cases, keeping such person out of the electoral arena would constitute a reasonable restriction for serving the larger public interest. As a precaution against motivated cases, it is suggested that it may be provided that only those cases which were filed prior to six months before an election, may be considered for the purposes of disqualification as proposed. It is also the suggestion of the Election Commission that persons found guilty by a Commission of Enquiry should also stand disqualified from contesting election.
6. The views of the Election Commission have also been expressed before the Parliamentary Committee in its meeting held on 20.2.2007. The Parliamentary Committee in its 18th report is reported to have disagreed with the views of the Election Commission.
7. The counter-affidavit of Election Commission states that the matter is understood to have been under re-consideration by the Ministry of Law & Justice to consider disqualification of persons in cases where charges concerning heinous offences have been framed by the Court.
8. The views of the Election Commission are, thus, in accord with the recommendations made by the Law Commission of India relating to the above subject in its 170th Report wherein a recommendation has been made that Section 8B of the Act be enacted and the framing of charge (by court) in respect of election offences and certain other serious offences be made a ground of disqualification".
October 7, 2013
The Court permitted the UOI to file its response.
November 25, 2013
In an effort to buy time, the UOI had informed the Court that the issue of electoral reforms had been referred in its entirety to the Law Commission `for consideration and examination with the aid of reports of various Committees in the past, the views of the ECI and other stakeholders, etc., and to suggest comprehensive measures for plausible changes in the law under reference'. The Court directed the UOI to file the reference made to the Law Commission, so that the Court could shorten the area of debate.
December 16, 2013
The Court was pleased to pass the following order.
1. On 25.11.2013 Mr. Paras Kuhad, learned Additional Solicitor General, submitted that for the purposes of de-criminalisation of politics and electoral reforms, the matter had been referred to the Law Commission of India (for short, `Law Commission') for consideration.
2. Pursuant to the order of 25.11.2013, an additional affidavit has been filed by the Government of India through the Deputy Secretary, in the Legislative Department, Ministry of Law and Justice. It is stated therein that the Ministry of Law and Justice vide its Note dated 16.01.2013 had desired the Law Commission to consider and examine the issue of `Electoral Reforms'. The Note of the Ministry of Law and Justice has been placed on record which reads asfollows :-
"This issue of electoral reforms has been engaging the attention of the Government for quite some time. As far as back in 1972, the joint parliamentary committee on Amendment of Election Law had suggested that steps should be initiated so the burden of legitimate election expenses, as are borne by the a candidate or a political party, are progressively shifted to the State.Thereafter, a number of Committees have given their recommendations, some of which have already been implemented by way of amendments in the election and other related laws. The Law Commission of India had earlier presented the 170th Report on "Reforms of the Election Laws" in 1999. The issue of State funding of Elections was also considered by a Group of Ministers in July, 2012 when the GoM agreed that the issue was required to be examined carefully in consultation with the Election Commission.
3. With a view to advancing the issue of free and fare elections and to progressively eliminate the use of money and muscle power in elections, the funding and conducts of elections, better management of electoral system, regulation of political parties, including the audit and finance thereof and review of the anti-defection laws are some of the issues on which detailed deliberations are required. This would require consultations with the Election Commission as well as with other stakeholders. Also there is overwhelming public opinion in the country that undesirable elements with criminal antecedents be weeded out from the legislatures and Parliament.
4. The Law commission of India may urgently consider the issue of electoral reforms in its entirety after taking into consideration the reports of various committees in the past, views of the Election Commission and the other stake holders and may suggest comprehensive measures for changes in the law expeditiously, preferably within a period of three months towards achieving the purpose listed in para 2 above."
5. It appears from the above Note that the Law Commission has been requested to suggest comprehensive measures for changes in the law expeditiously and preferably within a period of three months.
6. We are informed that the Law Commission has not so far submitted the report pursuant to Note dated 16.01.2013.
7. The Election Commission of India (for short,'Election Commission') in its response dated 21.11.2013 filed before the Court had recommended that where a person has been accused of serious criminal charges, and where the court is prima facie satisfied about his involvement in the crime and consequently charges have been framed at least six months before the election for an offence punishable with imprisonment for 5 years or more, against such person, then in such cases, the said person should be disqualified from contesting elections.
8. Ms. Meenakshi Arora, learned senior counsel for the Election Commission, has placed before us copy of `Consultation Paper on Electoral Reforms' (for short, `Consultation Paper') circulated by the Law Commission. The Consultation Paper indicates the issues for consideration for Electoral Reforms.
9. With regard to filing of false affidavits under Section 125A of the Representation of People Act, 1951, the two issues under consideration before the Law Commission are (i) whether filing of false affidavits under Section 125A of the Representation of People Act, 1951 should be a ground for disqualification and (ii) if yes, what mode and mechanism needs to be provided for adjudication on the veracity of the affidavit?
10. It appears that the Law Commission may take some time for submitting comprehensive report on all aspects of Electoral Reforms as sought for by the Central Government in its Note dated 16.01.2013. We feel that the issues with regard to de-criminalistion of politics and disqualification for filing false affidavits deserve priority and immediate consideration by the Law Commission.
11. We, accordingly, request the Law Commission to expedite consideration on the two issues, namely, (1) whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal Procedure [Issue No. 3.1(ii)of the Consultation Paper] and (2) whether filing of false affidavits under Section 125A of the Representation of People Act, 1951 should be a ground of disqualification? and, if yes, what mode and mechanism needs to be provided for adjudication on the veracity of the affidavit? [Issue No. 3.5 of the Consultation Paper].
12. This Court will appreciate if the report on the above two issues is submitted by the Law Commission to the Government of India by the end of February 2014.
13. The Election Commission may forward copy of its affidavit filed before this Court to the Law Commission immediately.
14. The Government of India on receipt of the report from the Law commission may place the same on record of the present matter.
15. List the matter on March 10, 2014.
March 10, 2014
The Supreme Court was pleased to pass an interim order to the effect that trials in criminal cases against lawmakers must be concluded within a year of the charges being framed. The Court also directed that trials must be conducted on a day-to-day basis, and if a lower court is unable to complete the trial within a year, it will have to submit an explanation to the Chief Justice of the High Court concerned and seek an extension of the trial. The interim order of the apex court, which virtually grants the relief sought in Prayer B of the PIL, is reproduced in full.
1. On 16.12.2013, this Court requested the Law Commission of India (for short, `Law Commission') to expedite consideration of the two issues, namely, (1) whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal Procedure [Issue No. 3.1(ii) of the Consultation Paper] and (2) whether filing of false affidavits under Section 125A of the Representation of People Act, 1951 should be a ground of disqualification? and, if yes, what mode and mechanism needs to be provided for adjudication on the veracity of the affidavit? [Issue No. 3.5 of the Consultation Paper].
2. In pursuance of the above order, the Law Commission has prepared its recommendation in the form of 244th Report titled `Electoral Disqualifications'.The report was forwarded by the Chairman, Law Commission to the Minister for Law and Justice. A copy of the same has been placed on record.
3. At the outset, we record our appreciation for the excellent work done by the Law Commission in the short time. The 244th Report shall be of significant use at the time of consideration of the above two questions.
4. Insofar as the first question is concerned, the Law Commission has observed that disqualification upon conviction has proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent subversion of the process of justice. In the opinion of the Law Commission, the filing of the police report under Section 173 of the Code of Criminal Procedure is not an appropriate stage to introduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage. The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalisation of politics.
Having regard to all this, the Law Commission has suggested that the following safeguards must be incorporated into the disqualification:
i. Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision.
ii. Charges filed up to one year before the date of scrutiny of nominations for an election will not lead to disqualification.
iii. The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier.
iv. For charges framed against sitting MPs/MLAs, the trials must be expedited so that they are conducted on a day-to-day basis and concluded within a 1 year period. If trial not concluded within a one year period then one of the following consequences ought to ensure:
• The MP/MLA may be disqualified at the expiry of the one year period, or
• The MP/MLA's right to vote in the House as a member, remuneration and other perquisites attaching to their office shall be suspended at the expiry of the one year period.
5. It is suggested by the Law Commission that disqualification in the above manner must apply retroactively as well.
6. As regards the second question, the Law Commission has observed that there is large scale violation of the laws on candidate affidavits owing to lack of sufficient legal consequences. The Law Commission has suggested that the following changes should be made in The Representation of the People Act, 1951 (for short, `RP Act'):-
I. Introduce enhanced sentence of a minimum of two years under Section 125A of the RP Act on offence of filing false affidavits.
II. Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RP Act, and
III. Include the offence of filing false affidavits as a corrupt practice under Section 123 of the RP Act.
7. It is recommended by the Law Commission that since conviction under Section 125A is necessary for disqualification under Section 8 to be triggered, the Supreme Court may order that in all trials under Section 125A, the relevant court conducts the trial on a day-to-day basis. It is further recommended that a gap of one week should be introduced between the last date of filing nomination papers and the date of scrutiny, to give adequate time for the filing of objections to nomination papers.
8. The Law Commission has proposed legislative reforms by amendments in the various provisions of the RP Act as well.
9. The issues raised in the Writ Petition would require detailed and elaborate hearing particularly in light of the constitutional provisions viz., Articles 84 and 102 of the Constitution of India for the Members of Parliament and Articles 173 and 191 for the Members of Legislative Assemblies.
10. One of the questions of constitutional importance that may also require consideration is :Whether disqualification for membership can be laid down by the Court beyond Article 102(a) to (d) and the law made by Parliament under Article 102(e).
11. Presently, we feel that a direction may be issued in respect of MPs/MLAs who have charges framed against them for conclusion of the trial expeditiously to ensure the maintenance of probity of public office.
12. We, accordingly, direct that in relation to sitting MPs and MLAs who have charges framed against them for the offences which are specified in Section 8(1), 8(2) and 8(3) of the RP Act, the trial shall be concluded as speedily and expeditiously as may be possible and in no case later than one year from the date of the framing of charge(s). In such cases, as far as possible, the trial shall be conducted on a day-to-day basis. If for some extraordinary circumstances the concerned court is being not able to conclude the trial within one year from the date of framing of charge(s), such court would submit the report to the Chief Justice of the respective High Court indicating special reasons for not adhering to the above time limit and delay in conclusion of the trial. In such situation, the Chief Justice may issue appropriate directions to the concerned court extending the time for conclusion of the trial.
13. List the matter after six months.
Underlining the significance of this order, Public Interest Foundation, lead petitioner in the PIL, issued a press release, which, inter alia, stated,
"The order has far-reaching consequences in cleansing the politics of the country. Firstly, it would deter the criminals from seeking tickets as this would expose them to the prescribed limit of one year for the verdict of the charges. Secondly, the political parties who are sensitive to the number game in terms of aspiring power would shy away from taking risk of giving tickets to candidates with criminal background as any conviction would lead to vacancy in the Parliament and State Assembly, which may have direct impact on the majority of the concerned party. The judgment has come at a very opportune time, as the parties are actively engaged in selecting candidates for the forthcoming election to Parliament and some State Assemblies."
In reality, almost all major political parties, belying the hope expressed in the PIF press release, selected their candidates for the Lok Sabha elections on the basis of `winnability' rather than a clean record. Candidates with pending criminal cases figured prominently in the lists of all political parties. As a result, the 16th Lok Sabha boasts of the highest number of lawmakers being pursued for breaking the law.
Although the BJP has more than its fare share in this illustrious contingent, its Prime Ministerial candidate was emphatic in his endorsement of the demand for ridding the nation's lawmaking bodies of criminal taint. After acceding to the office of Prime Minister, he has renewed his commitment to decriminalize politics and exhorted the newly elected MPs to seek expeditious disposal of the criminal cases pending against them. And as luck would have it, he has chosen none other than Nripendra Misra, Director of Public Interest Foundation, as his Principal Secretary.
The new government, we have every reason to hope, will ensure that there is no gap between practice and precept, at least on this score. The matter is now listed for August 19, 2014.
