Crime and politics

The National Commission to Review the Working of the Constitution comes up with a set of proposals aimed to stem the criminalisation of politics.

IN a consultation paper that is yet to be released, the National Commission to Review the Working of the Constitution (NCRWC) has observed that criminalisation has become a worrisome characteristic of India's politics and electoral system. According to unofficial studies cited by the Commission, in 1996 as many as 39 Members of Parliament, including four Ministers, faced criminal charges which included murder, rape, dacoity, abduction, assault and breach of peace. An investigation into the record of 500 persons who were candidates in the Lok Sabha elections of 1998 revealed that 72 of them had criminal proceedings pending against them. A recent report cited by the Commission says that 169 members of the Uttar Pradesh Legislative Assembly have criminal records.

The findings basically point to serious defects in the electoral system. An order issued by the Election Commission (E.C.) in August 1997 clarified that disqualification of a person from contesting elections to Parliament and the State legislatures under Section 8 of the Representation of the People Act, 1951 (RPA) takes effect from the date of conviction by a trial court irrespective of whether the convicted person is released on bail or not during the pendency of an appeal. However, Section 8(4) of the Act exempts sitting Members of Parliament and State legislatures from such disqualification. Further, the utility of the E.C.'s order in countering the scourge of criminalisation of politics is limited because it seeks to keep out only persons convicted and disqualified under the RPA.

The Commission notes that one possible explanation for the rapid criminalisation of the polity is that criminals have understood the mechanics of the electoral process and have themselves become contenders for power. Earlier, politicians patronised criminals and provided them protection from the law-enforcement agencies in exchange for the use of their muscle power during elections.

According to the Commission, early signs of criminalisation appeared after Section 77 of the RPA was amended in 1974 to provide that expenditure incurred by political parties and others shall not form part of the election expenditure of a candidate, thereby paving the way for unrestricted spending in elections. The Commission has suggested the deletion of Explanation (1) to Section 77 of the RPA so that expenses incurred by the political party and the friends of a candidate are considered part of his or her election expenses. It has also suggested that the E.C. be vested with legal powers to supervise, verify and investigate the election expenses of candidates and initiate legal action if they exceed the prescribed limits. State funding of elections, with sufficient safeguards, will offer a level playing field to those seeking to contest elections without money power.

The Commission has noted that in the context of social stratification and disharmony, the inherent weakness of the first-past-the-post system enables even a criminal to get elected just by securing a fraction of the total votes polled. To overcome this, the paper proposes the replacement of the present system with a two-ballot system. The idea of introducing the latter system is borrowed from a recommendation made by the Law Commission in its 170th report. Under this system, a candidate would not be declared elected unless he or she obtains the majority of the votes polled. If none of the contestants gets the majority, there will be a "run-off" election between the candidates in the first two positions. Former Chief Election Commissioner M.S. Gill backed a similar proposal.

However, applying the criterion of majority in the first round of elections would be impractical. It would lead to run-off elections in a large number of constituencies, as candidates in India often get elected by winning less than 50 per cent of the votes polled. To tide over this problem, the Commission's paper has suggested that to begin with, a candidate may be declared elected in the first round itself if he or she secures not less than 40 per cent of the votes polled. After the system stabilises, the threshold may be raised to 50 per cent plus 1, the paper suggests. The proposed system, the paper claims, will compel political parties to broaden their support base, thereby strengthening social cohesion. It would also strengthen the representative character of an elected member.

To combat criminalisation, the paper has proposed the strengthening of existing laws by removing certain lacunae. Section 8 of the RPA, for instance, disqualifies a person from contesting elections if he or she has been convicted in the manner specified in sub-sections (1), (2) and (3) of the Act. Under Sections 8(2) and (3), a convicted person is disqualified for the period of imprisonment and six years thereafter. Under Section 8(1), the disqualification is only for a period of six years from the date of conviction, whatever the term of imprisonment. Section 8(4) exempts sitting members of Parliament and the State legislatures from disqualification following conviction under any of the preceding three sub-sections if they have filed an appeal against their conviction within three months of the judgment. The exemption will be in force until the court disposes of the appeal.

The incongruities in Section 8 of the RPA came into focus in "the Jayalalithaa disqualification case". The Supreme Court's Constitution Bench ruled that she was ineligible to hold the office of Chief Minister of Tamil Nadu following her conviction and disqualification under Section 8(3) of the RPA. Section 8(1), for instance, mentions 10 categories of grave offences. A person found guilty of any of these will be disqualified even if the sentence imposed by a court is not significant. How-ever, this has given rise to an anomalous situation: a person convicted for an offence under sub-section(1) and sentenced for a period exceeding six years can contest an election even while serving the sentence of imprisonment because his or her disqualification ceases to operate at the expiry of six years. This is in contrast to those found guilty of committing offences under Sections 8(2) and 8(3), who may be disqualified for a much longer period than those disqualified under Section 8(1), even though the offences mentioned in Sections 8(2) and 8(3) are considered less grave than those mentioned in Section 8(1).

Jayalalithaa was convicted and sentenced to three years by a trial court. The execution of her sentence was stayed by the appellate court. But the Bench held that a stay on the execution of sentence did not amount to a stay on the sentence itself. The inconsistency between Sections 8(1) and 8(3) was left unresolved by the Bench.

The paper says that there seems to be no good reason why disqualification for a lesser period should be prescribed for serious offences of the nature mentioned in Section 8(1) and a person should be allowed to contest elections even while serving a sentence of imprisonment. It, therefore, has proposed that in all cases under Section 8 a person should be disqualified for the period of imprisonment and six years thereafter.

The Commission's paper has taken enough hints from the Constitution Bench's judgment in the Jayalalithaa case. The Bench had made it clear that it would not hesitate to strike down Section 8(4) in its entirety if it is found to be violative of Article 14. The paper holds that it may be appropriate to provide some protection to sitting legislators in order to avoid any situation in which the conviction of a sitting member is set aside by a higher court but the vacancy caused by his or her disqualification is filled in the meantime through elections. But the Commission is against extending the protection until the disposal of an appeal by a sitting member against his or her conviction. The paper has proposed that the disqualification in such cases shall not operate for six months from the date of conviction. If the appellate court does not provide any relief within this period, the period of disqualification of the member would begin. The paper has made it clear that such protection should not be available to them if they want to contest elections that may be held after the completion of their existing terms.

The NCRWC paper has made another significant proposal with regard to the framing of charges in an offence that attracts a maximum punishment of five years or more. In such cases, the accused would be disqualified from being chosen as or from being a Member of Parliament or a State legislature at the expiry of two years from the time of framing of charges. The accused would continue to remain disqualified until the completion of the trial. Many politicians may reject the proposal on the grounds that it could be abused by a ruling party against political opponents. To allay such fears, the Commission's paper has proposed an amendment of the Code of Criminal Procedure, 1973, in such a way that the trial in such cases would be completed within two years.