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Report No. 244

E. Retroactive Application

As discussed in Section V-A, the trials of legislators are subject to inordinate delays. Some criminal trials of sitting MPs and MLAs have been pending for over two decades.83 While ordinarily the above reform proposal on disqualification on framing of charges would apply only with prospective effect, we believe that due to the current extent of criminalisation of politics and the quantum of delay in pending trials, the reform proposal will only be effective if applied retroactively.

That is, on the date of these amendments coming into effect, all persons with criminal charges (punishable by more than five years) pending on that date are liable to be disqualified subject to certain safeguards.

83. Candidate affidavits sourced from the Election Commission Website.

However, the following situations must be considered before disqualification is effected:

(i) Charges have been framed at the time of the law coming into effect, but less than a year before the date of scrutiny of nominations before election.- in this case, the cut-off period would apply as explained in Section V-C(ii) will apply and the person will not be disqualified.

(ii) Charges have been framed at the time of the law coming into effect, but more than six years before the date of scrutiny of nominations- in this case, we believe that the person should be disqualified, since the disability of disqualification has not operated against him prior to the amendments coming into force. Since the person has not suffered from any disability as a consequence of charges being framed against him, it is appropriate that he be disqualified once the Act comes into effect.

(iii) Charges are pending, but the person is a sitting MP or MLA on the date of enactment of this la.- in such cases, we believe that the administrative burden of expediting more than two thousand trials of sittings MPs and MLAs will be too great. Therefore the law should apply against a person only when he contests elections for the first time after the enactment of this provision, but not against a person who holds office on the date of enactment.

Unless the law is applied retroactively in this manner, it will not have a significant deterrent effect on the criminalisation of politics in the country.



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