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Report No. 244

D. Charges Framed against Sitting MPs/MLAs

The proposal above thereby makes charges framed at a certain point of time a ground for disqualification under the RPA. Thus only if a person has charges framed against him more than one year and less than six years before an election in relation to offences which have maximum punishment of five years or more then the said person is disqualified. A mere framing of charge simpliciter without reference to this time period is not sufficient to disqualify him.

The rationale for this proposal is clear-if someone has charges in the protected window (cut-off period), then the law protects them cognizant of the possibility of misuse before an election; if someone has charges pending for more than six years then the law makes a determination that the period of disqualification on this ground cannot exceed the period of disqualification that is occasioned by conviction.Thus a person is disqualified on the basis of the time at which charges have been framed against him.

This however does mean that in certain situations sitting MPs/MLAs may have charges framed against them while holding office. This may happen when a charge is framed against him during the protected window (cut-off period) before an election and he wins the election and when a charge is framed against him more than six years before the date of scrutiny of nominations for an election, i.e. the charge has lapsed. In addition, a charge may be framed against such an MP/ MLA while he is in office. It is essential that in law these three situations are treated similarly.

In the first two situations, the law, for reasons clearly delineated aforesaid, allows the candidate to contest elections. Thus it is clear that in these situations such a person who has charges framed against him but is nonetheless allowed to contest cannot be disqualified merely because he has won the election. That would render the protection that the law gives him illusory.

To provide uniformity, it is thus necessary that an MP/ MLA has charges framed against him while in office is also not disqualified immediately at the moment charges are framed. However at the same time it is anomalous to the very idea of keeping Parliament free from criminal elements if such persons are allowed to continue functioning in their incumbent offices without any attendant sanctions.

This is especially true in light of the data above which demonstrates particularly acute delays in trials involving political candidates and office-holders. Thus for sitting MPs/ MLAs who are in office with charges framed against them,certain provisions are necessary in order to ensure that the probity of public office is maintained.

We believe two steps are necessary:

1. Expediting trials-It is recommended that in the case of sitting MPs/ MLAs who have relevant charges framed against them (in the three situations above) the trial is concluded speedily. However given the data on delays in trials, especially involving powerful persons, this is unlikely to happen as a matter of course.

Thus we suggest that the Supreme Court be pleased to order that in all cases when a sitting MP/ MLA has charges framed against him,the relevant court where he is being tried conducts the trial on a day-to-day basis with an outer limit of completing the trial in one year. In the first two cases above, this time period would begin to run from the date on which the person takes oath as a member; in the third case it would run from the date on which charges are framed against him. This would expedite the trial to the extent possible and thereby ensure that he is either convicted, and disqualified, or acquitted in a reasonable period.

2. If the trial cannot be completed within the said time period or the charge is not quashed in the said period, the trial judge shall give reasons in writing to the relevant High Court in whose jurisdiction it is based, as to why the trial could not be completed. In formulating its reasons, it can follow the guidelines of the Supreme Court laid down in RS Nayak v. AR Antulay, (1992) 1 SCC 279. Once the said period expires, two consequences may ensue:

(a) The person may be automatically disqualified at the end of the said time period or

(b) The right to vote, remuneration and perquisites of office shall be suspended at the end of the said period up to the expiry of the House.

Both these alternatives, in our opinion, provide sufficient disincentives for political parties to field candidates with criminal charges against them. While the former has the benefit of uniformity with how contesting candidates who have charges framed against them and consequently disqualified are dealt with, the latter takes away significant facets of a person's membership of the House. Both these options, disqualification in the first case and severe disabilities in the second, will operate till the dissolution of the House. The Supreme Court might be pleased to direct the implementation of one of the aforesaid options, which in its wisdom, it believes is more appropriate.

In conclusion to this part, it must be reiterated that we recommend that disqualification must ensue on the framing of charges in relation to specific offences when framed at a particular time. This balanced provision is recommended as an optimal harmonisation between the need to keep criminal elements out of politics while at the same time not creating an over-inclusive provision that disqualifies honest candidates from being disqualified owing to false cases against them.

This will keep a majority of criminals charged with serious offences out of the electoral fray. At the same time for the residue who are the beneficiaries of the safeguards in the law, a strict provision dealing with sitting MPs and MLAs is also provided for. Such a combination of provisions, it is hoped, will deter political parties from handing out tickets to tainted candidates.

Such candidates, will either not be able to take part in elections, or even if they are, will be subject to an expedited trial of their case along with a taking away of key benefits of their membership or disqualification as last resort measures. We thus believe that this reform has the potential to significantly cleanse Indian elections and politics of criminal elements.

Electoral Disqualifications Back

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