Should convicted persons be allowed to fight elections

8/14/2019 Should convicted persons be allowed to fight elections

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COVICTED PERSONS TO BE

ALLOWED OR NOT TO FIGHTELECTION

Om Prakash Yadav

Election and offence; poll and crime are like twin brothersand go side by side. The question that whether the convictedpersons should be allowed to fight election or not has remainedambiguous in spite of clear cut provision to this effect made in

Representation of Peoples Act. In fact section 8(3) which readsas A person convicted of any offence and sentenced toimprisonment for not less than two years [other than anyoffence referred to in sub-section (1) or sub-section (2)]shall bedisqualified from the date of such conviction and shall continueto be disqualified for a further period of six years since hisrelease.

Apparently, it appears that the provisions are too simple to

be interpreted and therefore should be easily andunambiguously enforced.

With the passage of time, the criminalisation of politicsstarted and more and more numbers of politicians startedpitching themselves into electoral fray. The matter came to foreonly when the sitting MP or MLAs got convicted by thecompetent court in which quantum of punishment was morethan 2 years.

In 1997 the ECI reiterated its legal stand and directed allthe returning officers to disqualify any candidate who remainedconvicted for more than two years irrespective of status ofappeal.

In this very year, this matter came into a legal battlebetween ECI and J.Jaylalitha. She had been convicted in TANSIcase under provisions of prevention of corruption Act (PC Act1988) for more than three years, therefore in view of thedirection of the ECI, her nomination was rejected and she could

not fight the election.


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In spite of it she was sworn-in as CM of Tamil Nadu by theGovernor, Fatima Bibi, a retired SC Judge. There were lot oflegal battle and finally she had to quit till her conviction wasstayed. Supreme Court however ruled that anyone can be

appointed as CM of a state as per article 164 of the constitutionbut the matter remained unresolved that whether the convictedperson would fight election or not.

This matter remained unresolved and hardly any personcould be disqualified by the ECI from fighting election on theground of conviction in accordance with the provisions of RPAct.

This issue again come in light when sitting MP of BJP andcricket star Navjot sidhu was convicted by the Punjab and

Haryana High court in December 2006 under section 304 of IPCfor 3 years. Sidhu resigned and subsequently bye election wasannounced. Sidhu sought to fight the election again. Thematter was taken to the Supreme Court and the apex courtgave reprieve to sidhu and temporarily stayed his conviction,thus siddhu fought election and won.( Navjot sidhu vs state ofPunjab and others appeal (cri) 59 of 2007.

The stay of conviction by appellate court in general isinterpreted in favour of the convict and nominations of such

candidates are accepted by the RO. This ruling of the apex court in Navjot Sidhu case hasopened a Pandora box vis-a-vis conviction versus elections.

In the present general election 2009 for constitution of15th Lok Sabha, so many convicted persons have either filingnominations or aspire to fight elections. Sanjay Dutt, the filmstar, Md Sahabuddin, Surajbhan, Pappu Yadav, all sitting MPsfrom Bihar have been convicted by courts. Now all of them areon bails. Md Shahabuddin has been granted bail only two daysago by Patna High court. He has however been denied fromfighting elections. Sanjay Dutt has already been convictedunder Arms Act, 1956 for which minimum quantum ofpunishment is 7 years. Thus Dutts case is also a fit case ofdisqualification from fighting election. In UP the mafia donBablu Srivastava has also been convicted but he has not beengranted bail. The question is that whether he should be allowedto fight the fray if he gets bail. If yes, then how people like AbuSalem, Kasab, Afzal etc will be prevented and disqualified fromfighting elections.


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In UP and Bihar names like Anand Mohan, Muktan ansari,Atik ahmed, Raja bhaiya etc have either been convicted orfacing trials for offences like murder, attempt to murder etc,most likely many of them would be successful in fighting

election due to the prevailing situation which is far fromsatisfactory. Lawyers like Prashant Bhusan categorically saythat the judgement of Apex court in sidhus case was notcorrect. In fact this judgement has become a case of precedent.Ours is a law of precedent and the judgement passed by thehigher judiciary becomes as good as law itself. Taking theadvantage of this provision, the criminals make mockery of theentire system.

Coming to the crux of the matter, legal issue involved in

these cases is that whether stay in conviction should be treatedas acquittal. If the provision of the Representation of PeoplesAct, 1951(section 8(3)) is taken into account, it is clear thatonce the person is convicted, he will disqualified and cannotfight election for the next 6 years after his release.

The legal luminaries are vertically divided on this issue.One school of thought is of the opinion that a person cannot beheld guilty till the last legal option available to him isexhausted. It means that a person cannot be said to have been

convicted if he has filed an appeal before the superior courtand the court has accepted it for hearing. Some legal expertshowever say that acceptance of petition for admission andsuspension of conviction is two different and separate things.

They further maintain that if the conviction is suspended onlythen the person can be said not guilty or convicted.

The problem in our country is that if this proposition isaccepted, hardly any criminal can be prevented from fightingelections because in India the provisions of appeal, in differentnomenclature like SLP, LPA Single Bench, and Double Bench etcare numerous and they can go on years and years before alloptions are exhausted. In fact taking advantage of this veryprovision, large number of criminals succeeds in fightingelections and makes a mockery of section 8(3) of R.P.Act, 1951.

The other side of the story is that if this provision isimplemented in Toto, large number of political activists wouldbe deprived of their political rights to fight elections, becauseinstances of fabrication of false cases against political rivals by


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party in power are abundant. It is therefore a balance has to bestrike and ensure that the criminals do not fight elections.

The time has come that we should make suitableamendments in RP Act because the provision of 2 years

imprisonment for disqualification has become obsolete afteramendment in section 41 of Criminal Procedure Code whichprohibits arrest by Police in a case in which imprisonment isless than 7 years. The RP Act should be made an integrated,comprehensive and complete law for election matters whichmay incorporate provisions of model code of conduct also,because right now we do not have any special law for modelcode of conduct and this code is nothing but a compendium ofcirculars and instructions issued by ECI time to time. Model

code of conduct as such is not enforceable in the court of lawuntil it is reinforced by other penal provisions prevailing indifferent parts like IPC, Public property defacement act, Laudspeaker Act etc.

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Should convicted persons be allowed to fight elections