Report No. 244
D. Existing Legal Framework
Legally, the prevention of the entry of criminals into politics is accomplished by prescribing certain disqualifications that will prevent a person from contesting elections or occupying a seat in Parliament or an Assembly. Qualifications of members of Parliament are listed in Article 84 of the Constitution, while disqualifications can be found under Article 102. Corresponding provisions for members of State Legislative Assemblies are found in Articles 173 and 191.
Article 102 states that a person shall be disqualified from being chosen, and from being a member of either House of Parliament if he holds an office of profit, if he is of unsound mind and so declared by a competent court, if he is an undischarged insolvent, if he is not a citizen of India and if he is disqualified by any other law made by Parliament.
Parliament through the RPA has prescribed further qualifications and disqualifications for membership to Parliament or to a Legislative Assembly. Section 8 of the Act lists certain offences which, if a person is convicted of any of them, disqualifies him from being elected, or continuing as, a Member of Parliament or Legislative Assembly.
Specifically, Section 8(1) lists a number of offences, convictions under which disqualify the candidate irrespective of the quantum of sentence or fin.- these include certain electoral offences, offences under the Foreign Exchange Regulation Act, 1973, the Narcotics Drugs and Psychotropic Substances Act, 1985 the Prevention of Corruption Act, 1988 etc. Section 8(2) lists other offences, convictions under which would only result in disqualification if imprisonment is for six months or more.
Section 8(3) is a residuary provision under which if a candidate is convicted of any offence and imprisoned for two years or more, he is disqualified. Section 8(4), which existed previously, was struck down by the Supreme Court in Lily Thomas v. Union of India, (2013) 7 SCC 653. Disqualification operates from the date of conviction and continues for a further period of six years from the date of release.
The scheme of disqualification upon conviction laid down by the RPA clearly upholds the principle that a person who has conducted criminal activities of a certain nature is unfit to be a representative of the people. The criminal activities that result in disqualification irrespective of punishment under Section 8(1) are either related to public office, such as electoral offences or insulting the national flag, or are of grave nature, such as offences under terrorism laws.
Section 8(3), on the other hand, envisages that any offence for which the minimum punishment is two years is of a character serious enough to merit disqualification. In either case, it is clear that the RPA lays down that the commission of serious criminal offences renders a person ineligible to stand for elections or continue as a representative of the people. Such a restriction, it was envisaged, would provide the statutory deterrent necessary to prevent criminal elements from holding public office, thereby preserving the probity of representative government.
However, it is clear from the above account of the spread of criminalisation in politics that the purpose behind Section 8 of the RPA is not being served. The consequences of such criminalisation and the possible reform measures that may be considered shall be discussed in the following chapters.
With respect to the filing of affidavits by candidates, a candidate to any National or State Assembly elections is required to furnish an affidavit, in the shape of Form 26 appended to the Conduct of Election Rules, 1961, containing information regarding their assets, liabilities, educational qualifications, criminal convictions against them that have not resulted in disqualification, and cases in which criminal charges are framed against them for any offence punishable with two years or more.
Failure to furnish this information, concealment of information or giving of false information is an offence under Section 125A of the RPA. However, the sentence under Section 125A is only imprisonment for a period of 6 months, and the offence is not listed under Section 8(1) or (2) of the RPA. Therefore, conviction under Section 125A does not result in disqualification of the candidate. Neither is the offence of false disclosure listed as a corrupt practice which would be a ground for setting aside an election under Section 100.
Therefore, there is currently little consequence for the offence of filing a false affidavit, as a result of which the practice is rampant.