Section 8 of the Representation of the People Act (RPA), 1951, contains provisions aimed at decriminalizing electoral politics.
Section 8 (3) of the Representation of the People Act, 1951: MP/MLA convicted of any offense and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction.
Even if a person is on bail after the conviction and his appeal is pending disposal, he is disqualified from contesting an election.
There are two categories of criminal cases that attract disqualification upon conviction.
It contains offenses that entail disqualification for a period of six years upon any conviction. Major IPC offenses are included under this head, for example:
making speeches that cause enmity between groups (Sec.153A) and doing so in a place of worship (Sec.505)
bribery and personation during elections and other electoral offenses,
offenses relating to rape and
Cruelty to women by husbands and later’s relatives.
If the punishment is fine, the six-year period will run from the date of conviction.
If there is a prison sentence, the disqualification will begin on the date of conviction and will continue up to the completion of six years after the date of release from jail.
Besides, serious provisions of special laws such as the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act, etc are among the category of offenses that entail disqualification regardless of the quantum of punishment. Laws for the prevention of Sati, corruption, terrorism, and insult to the national flag and national anthem, etc are also part of this group.
All other criminal provisions form a separate category under which mere conviction will not entail disqualification.
A sentence of at least two years in prison is needed to incur such disqualification.
Is there legal protection for legislators against disqualification?
Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013.
Section 8(4) allowed convicted MPs, MLAs, and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
In other words, the mere filing of an appeal against conviction will operate as a stay against disqualification.
But in Lily Thomas vs. Union of India, the Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires, and held that the disqualification takes place from the date of conviction.
Can the disqualification be removed?
Yes, the Supreme Court has the power to stay not only the sentence but also the conviction of a person.
In some rare cases, conviction has been stayed to enable the appellant to contest an election.
But the Supreme Court has made it clear that such astay should be very rare and for special reasons.
The RPA itself provides a remedy through the Election Commission.
Under Sec. 11 of the Act, the EC may record reasons and either remove or reduce the period of, a person’s disqualification.
The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a byelection and remain in office.
Important Supreme Court Judgements:
2002– Union of India (UOI) v. Association for Democratic Reforms and Anr: The SC held that every candidate, contesting an election to the Parliament, State Legislatures, or Municipal Corporation, has to declare their criminal records, financial records, and educational qualifications along with their nomination paper.
2005- Ramesh Dalal vs. Union of India: The SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.
2013- In Lily Thomas v. Union of India: The SC held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of.
The court held that MP/MLA convicted for two years or above would be disqualified immediately.
2015: Krishnamurthy v. Sivakumar & Ors: The SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidate at the time of filing of nomination paper as mandated by law was a categorically imperative.
Election Commission’s Measures and Recommendations
In 1997, Election Commission directed all the Returning Officers (ROs) to reject the nomination papers of any candidate who stands convicted on the day of filing the nomination papers even if his sentence is suspended.
The Election Commission recommended that if a person is found guilty by a Commission of Inquiry. Then he shall be disqualified from contesting elections.
Further, Election Commission believes that if a court of law frames the criminal charges against the accused person. Then prima facie he might have been involved in the alleged crime, hence he should be disqualified from contesting elections.
The First Past the Post (FPTP) electoral system shall be replaced by the 2-ballot system. Under which a candidate is declared elected from a territorial constituency based on the majority principle. If no one wins 50 percent of the vote. All candidates except the top two are excluded and voters are asked to vote a second time. In the second round, the candidate who wins the most votes is elected.
The 2-ballot system will make winning elections very difficult for criminals as they will have to garner. The widest possible support from the voters to get the majority votes.