Report No. 244

(v) Rebutting counter-arguments

The last section demonstrated why disqualification of contesting candidates at the stage of framing of charges is justified, both in principle and practice. In the context of the excessive criminalisation of politics in India today, such a step has considerable potential to exclude criminal elements from the electoral fray, restoring the dignity and high status that the Parliament and State Legislative Assemblies are constitutionally expected to possess.

At the same time, it is imperative to take cognizance of the possibility of misuse of such a provision. In an effort to keep criminal elements out of legislatures, one must not create disabilities for honest candidates who find themselves foisted with false criminal charges. An optimal balance must be found, maximising the former and minimising the latter.

At the National Consultation, several representatives of political parties expressed a fear that such a disqualification would be used as a tool for political vendetta. Many believed the fear of misuse was so large that it warranted a rejection of the proposal itself. At the same, a consistent stream of Supreme Court decisions have held that the framing of charges is done by the Court on the basis of the police report and other documents led by the prosecution; neither does the accused have a right to cross-examine witnesses nor lead any documents at that stage.

The implication thus is that if there is misuse of the provision and false charges are framed in order to disqualify candidates, the accused would have very little legal remedy. Thirdly, it must be frankly admitted that enlarging the scope of disqualification by making it attendant on the framing of charge rather than conviction is a diversion from strict principles of criminal jurisprudence. As Mr.TA Andhyarujina, pointed out at the Consultation, a man is still technically innocent, till proven guilty and convicted by a competent court of law. Disqualifying him at the stage of framing of charge would thus be premature with considerable jurisprudential difficulties.

These three concerns-misuse, lack of remedy for the accused and the sanctity of criminal jurisprudence-all have some merit. However none of them possess sufficient argumentative weight to displace the arguments in the previous section. While misuse is certainly a possibility, that does not render a proposal to reform the law flawed in limine.

The Supreme Court has repeatedly pointed out in the context of statutory power vested in an authority that the possibility of misuse of power is not a reason to not confer the power or strike down such provision. Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1. Similarly a potential fear of misuse cannot provide justification for not reforming the law per se. It does point to the requirement of instituting certain safeguards, circumscribing the conditions under which such disqualification will operate. This matter is dealt with below.

Though there is a view that the accused has limited rights at the stage of framing of charge, the legal options available to him are fairly substantial. As the previous section shows, the stage of framing of charges involves considerable application of judicial mind, gives the accused an opportunity to be heard, places the burden of proof on the prosecution to demonstrate a prima facie case and will lead to discharge unless the grounds pleaded are sufficient for the matter to proceed to trial.

Thus it is not as if the accused has no remedy till charges are framed-on the contrary, he has several legal options available to him prior to this stage. Finally, though criminal jurisprudence presumes a man innocent till proven otherwise, disqualifying a person from contesting elections at the stage of framing of charges does not fall foul of this proposition. Such a provision has no bearing on whether indeed the person concerned is guilty of the alleged offence or not.

On the contrary, it represents a distinct legal determination of the types of persons who are suitable for holding representative public office in India. Given the proliferation of criminal elements in Parliament and State Assemblies, it is indicative of a public resolve to correct this situation. Further, the existing provisions which disqualify persons on conviction alone have been unable to achieve this task.

Thus it is now strongly felt that it is essential to disqualify those persons who have had criminal charges framed against them by a court of competent jurisdiction, subject to certain safeguards, from contesting in elections. Such a determination of suitability for representative office has no bearing on his guilt or innocence which can, and will, only be judged at the criminal trial. To conflate the two and thereby argue that the suggested reform is jurisprudentially flawed would be to make a category mistake.

The question that remains thus pertains to the safeguards which are necessary in order to prevent misuse of this provision leading to false charges being framed. Since the purpose of such safeguards is to ensure that the possibility of false charges being framed is minimized, a three-pronged approach is adopted. First, the type of offence in relation to which charge is framed is circumscribed to include only those offences which represent serious and heinous crimes.

This has a twofold justification-preventing the routine filing of charges in petty offences which are easier to fabricate; emphasizing that such disqualification only operates in limited circumstances when the offences in question are of a nature that those charged with having committed them are entirely unsuitable to be elected representatives of the people. Second, a cut-off period before the election is provided for, charges framed during which time will not attract this disqualification.

The rationale for such a protected window is to obviate the impact of false charges being framed very close to the elections with the sole intention of getting a political rival disqualified. Third, the disqualification will only last for a specified period of time. An appropriately designed cap on disqualification of this nature will underline that the impact of a charge-based disqualification is optimally structured. At the same time it will check any incentive that a person may have to file false charges. Each of these is discussed below in the section on safeguards built-in to the law.