Report No. 244

C. Safeguards

(i) Offences in relation to which this disqualification applies

Some previous reports have made various recommendations with respect to the range of offences. For example, the Election Commission Proposal of 2004 recommended that a person charged with any offence punishable with imprisonment for a maximum term of five years or more should be subject to disqualification. The ARC in its report "Ethics and Governance" and Ministry of Law and Justice in "Background Paper on Electoral Reforms, 2010" also concurred with the 5 year punishment threshold.

On the basis of the survey of recommendations above, it is clear that limiting the offences to which this disqualification applies has two clear reasons, i.e. those offences which are of such nature that those charged with them are deemed unsuitable to be people's representatives in Parliament or State Legislatures are included and the list is circumscribed optimally to prevent misuse to the maximum extent possible. The determination of what these offences are differ depending on the report in question- their fundamental underpinning however is the same.

If these two principled considerations are taken into account, we believe that all offences which have a maximum punishment of five years or more ought to be included within the remit of this provision. Three justifications support this proposal: first, all offences widely recognised as serious are covered by this provision.

This includes provisions for murder, rape, kidnapping, dacoity, corruption under the Prevention of Corruption Act and other crimes of a nature that justify those charged with them being disqualified from holding public office. Second, the data extracted above demonstrates that a large portion of offences for which MPs, MLAs and contesting candidates face criminal prosecutions relate to such provisions. Thus the reformed provision will ensure that such candidates are disqualified thereby creating a significant systemic impact.

Third, it has the benefit of simplicity-by prescribing a standard five-year period, the provision is uniform and not contingent on specific offences which may run the risk of arbitrariness. The uniform five-year period thus makes a reasonable classification- between serious and non-serious offences and has a rational nexus with its object-preventing the entry of significantly criminal elements into Parliament and State Legislature.