Over 60 years have passed since India got its independence. With the passage of time, one hoped, Indian democracy would become vibrant and strong. There are many pillars of democracy, including an independent judiciary, a free press, and free and fair elections. We have the first two intact to a great extent, but not the third. We are on the threshold of a new round of elections — the 15th general election to the Lok Sabha and Assembly elections in three States - and political parties are vying with one another to win votes. Most reprehensibly, efforts are made to acquire the support of criminals. In the 14th Lok Sabha, as many as 93 MPs had criminal charges pending against them. Their trial proceedings have not attained finality.
Section 8 of the Representation of the People (RP) Act, 1951 requires a conviction for a period of over two years to disqualify a candidate from contesting. If he is found guilty of offences under special laws, he would stand disqualified irrespective of the period of sentence. The principle that is relied upon to protect the candidate from disqualification when serious charges are pending is that of criminal jurisprudence — that a person is presumed innocent unless found guilty. However, this is only for the purpose of preventing punishment by way of incarceration or fine. There is no fundamental right to contest an election to Parliament or a Legislative Assembly. A statute can take away the right of such a person to contest, on the basis of the higher principle of maintaining the purity of elections.
Under criminal law, there are at least three stages at which an accused can be relieved of charges. A magistrate trying an offence has first to take cognisance of the chargesheet and then satisfy himself that prima facie an offence has been made out, after applying his mind to the statements and the documents annexed to the Police Report. The case could be closed at this stage. Thereafter the accused has an opportunity at the time of framing of charges to show that no prima facie case is made out or that no reasonable grounds exist to suspect him of the commission of the offence. He would then be discharged. Lastly, an accused could seek quashing of charges under Section 482 of the Criminal Procedure Code.
It would, therefore, be incorrect to apply the presumption of innocence, in a wooden fashion, to the issue of disqualification of a candidate contesting elections without taking note of the damage that otherwise would be caused to the democratic process. Section 8 of the RP Act will have to be amended so that a person against whom charges have been framed by a court for an offence mentioned in Section 8(1), or a person who is charged with an offence which carries a sentence of imprisonment of more than two years, would stand disqualified. However, it is only in a case where the chargesheet has been filed a year prior to the notification of elections that disqualification should apply. Otherwise a rival could easily file a false case and have a chargesheet framed, leaving no time for the accused to get a discharge or have the chargesheet set aside.
In the absence of such an amendment to Section 8 of the RP Act, the Supreme Court in 2002 delivered a judgment in Association of Democratic Reforms, requiring every candidate to disclose, at the time of filing of nomination, any charges pending against him for offences that may involve punishment for a period above two years or otherwise.
It will be a great day for India if, instead of an amendment to the RP Act, every party obtains from prospective candidates a statement of the pending criminal cases against them and allots the ticket only to such among them who possess a clean record. Perhaps Section 29-A should be amended to incorporate in the Constitution and objectives of all parties that no candidate with criminal charges pending against him would be allotted the ticket.
The RP Act has applied a different yardstick in the case of one who is convicted while being an MP or MLA. In such a case, a conviction even for one of the serious offences mentioned in Section 8, or for a period exceeding two years, will not cause disqualification. In another case concerning a candidate in an election, the Supreme Court has held that not only would such candidate have to prefer an appeal or revision petition, but he would have to get a stay on the sentence and of the conviction, to prevent disqualification. This would mean the candidate would have to establish before the appellate court that the findings rendered against him by the trial court are unjustified or perverse.
In the case of a sitting legislator, however, by reason of Section 8(4), the mere filing of an appeal would operate as a stay of disqualification, even if bail was refused and he obtained neither stay of conviction nor a stay of sentence. Obviously, this would seem to be discriminatory and violative of the equality clause in Article 14 of the Constitution. Unfortunately, the Supreme Court appears to feel differently about the allegation of discrimination brought about between a sitting legislator and a candidate. The reasons it gives in Prabhakaran v. Jayarajan for why a legislator must be given a special dispensation do not appear to be sound