Elections are the nerve centre of democratic politics. They bestow power on certain individuals charged with representing the will of the people in legislature. But can an individual of questionable integrity charged with criminal cases be given the opportunity to represent the interest of the entire citizenry? Is it in the fairness of the electoral system to allow such person/ s to determine the political outcome in a democracy?

The recent judgments of Supreme Court in Public Interest Foundation v. Union of India (2018) and Lok Prahari v. Election Commission of India (2018) failed to address these questions. In fact, the apex Court, in the first case appealed to the rational sense of the parliamentarians to bring laws to disqualify candidates if charged with criminal cases. And, in the second case, the court reiterated its earlier decisions not to disqualify the legislators if the conviction is stayed.

Whatever may be the reasoning of such pronouncements, the Court lost an opportunity to correct the inherent imbalance of power between criminally-tainted representatives and the intimidated voters. In other words, the criminally tainted individuals will continue to abuse the weaknesses of our electoral laws to not only gain political power but also to reinforce the vulnerability of people for eternity and to legitimize their activities in the realm of crime.

Assumptions and Safeguards

What are the assumptions offered to avoid the decriminalisation of politics? First, criminal cases filed against rival candidates may be politically motivated. Second, criminal cases may be framed even in the case of candidate’s involvement in legitimate political agitations. Third, the ruling regime may try to ensure electoral victory by engineering criminal charges against the opponent candidates. One cannot deny the merits in each of these assumptions. But can we afford to hold our electoral system hostage to multiple varieties of criminal abuse and manipulation? If not, then, why do we create conditions and opportunities for criminal interference in the electoral process of our country?

A fine balance should have been carved by our apex court by giving a serious thought to certain ‘safeguards’ already proposed by our Election Commission in 1998: 1) candidates charged with heinous offences like murder, dacoity, rape, kidnaping or moral turpitude be barred from contesting elections; 2) such cases must have been registered six months before the election; and 3) the court should have framed the charges punishable with minimum sentence of five year.

The recommendations of the Law Commission in 1999, in its 170th report and National Commission for Review of the Working of the Constitution in 2002 were more and less on the same lines.

Rising Political Criminality

Sadly, as per the report of Association of Democratic Reforms (ADR) on 25 September 2018, 115 Lok Sabha MPs (21 per cent of the total) and 20 Rajya Sabha MPs (9 per cent) are facing serious criminal cases. Out of 4,083 MLAs analysed by ADR, 891 (22 per cent of the total) are facing serious criminal charges. There are 48 MPs and MLAs against whom the cases are declared for crime against women; 58 MPs and MLAs facing cases related to hate speech; 64 MPs and MLAs facing kidnapping charges, and 56 MPs and MLAs facing cases related with murder. Many are charged with multiple offences. This data confirms the supposition that it is criminals who get the task of making policy decisions and operate governments.

The specific danger is posed to the democratic processes arising from the concerted use of their power to assert influence over law-making, public officials and institutions like police, investigative agencies and judiciary to their advantage. This led to a pointed question: Is the rise of such criminality not leading to the decomposition of our democratic system?

Undoubtedly, there is a fundamental flaw in the use of the adversarial doctrine (i.e. a person is innocent until proven guilty) in the political context. It is largely because a candidate charged with heinous crimes takes advantage of the “presumption of innocence” to contest elections and later take oath of allegiance to the Constitution and the law as members of legislature and ministers. It is nothing but a fraud on the Constitution.

In the past, in Lily Thomas v. Union of India (2013), the Supreme Court had strengthened the parameters of qualification by declaring Section 8(4) of Representation of People Act, 1951 as ultra vires of the Constitution. The apex Court proactively held that any legislator/parliamentarian convicted of a crime and awarded a minimum of two-year imprisonment loses membership of the House with immediate effect and a person who is in jail or in police custody cannot contest election to legislative bodies.

Therefore, a legitimate expectation was created in Public Interest Foundation v. Union of India (2018), which pleaded that where a person has been accused of serious criminal charges and where the court is prima facie satisfied about his/her involvement in the crime and consequently charges have been framed against such person, then in such cases, keeping such person out of the electoral arena would work as a reasonable restriction in the larger public interest. However, the Bench missed this opportunity with an unpragmatic hope that the legislature in its wisdom would take appropriate measures if required under Article 102(1)(e) and judiciary should not cross the Lakshman Rekha.

The court found language employed in Section 7(b) read with Sections 8 to 10A of the 1951 Act, unambiguous and complete and hence felt no intervention was required from judicial side. In another setback to people’s legitimate expectations, the Supreme Court in Lok Prahari v. Election Commission of India while relying on its previous decisions in Ravi Kant Patil and Lily Thomas avowed its stand that upon the stay of a conviction by appellate court under Section 389 of the Cr. P. C., the disqualification under Section 8 will not operate.

Failed Adversarial System

Regrettably, the criminal courts of our country creep in slow-motion, procedure is complex, the dockets are heavy, the service of process is tardy and, still more frustrating, there are appeals upon appeals and revisions and supervisory jurisdictions, baffling and baulking speedy termination of prosecutions. Leisurely justice and the long-drawn-out criminal proceedings hardly carry conviction. Even if they do, human memory disremembers the gravity of crimes committed.

We must agree that the gradual loss of citizen’s confidence in rule of law is equally conditioned by seeing their elected representatives continuing to hold law-making offices despite credible criminal charges against them. Courts are less to blame than the Code made by Parliament and Governments are guilty of denying or delaying basic amenities for the judiciary to function smoothly. Justice has become a Cinderella in our constitutional arrangement. But unfortunately, parliamentary and pre-legislative exercises spread over several years have hardly done anything radical to remove this vested illicit interest.

In fact, Parliament has tried to dilute the Supreme Court’s judgment known as ADR judgment (2002) requiring candidates to declare their criminal offences, assets and liabilities, and educational qualification by inserting two new sections (33A and 33B). But Supreme Court struck down section 33B and reiterated its earlier pronouncements in 2003. Therefore, court instead of being finicky about absolute processual equality must be creative in innovating procedures compelled by special situations.

Conclusion

Ordinary citizens see the fortunes bestowed on these favoured species when they violate the norms of criminal law and get places in legislature or even become ministers and lose faith in the system itself. The rule of law turns into the rhetoric of ‘show me the man and I will show you the law’. The very concept of Public Power carries with it a great deal of trust and accountability in a people-oriented constitutional scheme and places the holders of public power on a different equilibrium.

Dilution of alleged adversarial principle in the larger public interest and treating legislators as a class by themselves would mollify the doctrine of reasonable classification and hence would not amount to violation of Article 14 of the Constitution, which prohibits class legislation but permits reasonable classification. The doctrine of presumption of innocence as contested by the petitioners is confined to criminal law and any proceeding prior to conviction, such as framing of charge for instance, can become the basis to entail civil liability of penalty. Therefore, debarring a person facing charges of serious nature from contesting an election does not lead to creation of an offence but a distinct civil restriction.

Framing of a charge is done after the allegations and evidence have judicially scrutinized and the competent court has applied its judicial mind and therefore, apex court’s failure to push forward a clean-up in the Public Interest Foundation and Lok Prahari cases not only outrages the rule of law but also deepens the crisis of legitimacy of our democracy. Our legislators could eventually turn out to be places for master-criminals and tainted Caesars with public office acting as a protective mantle.

The writers are, respectively, Associate Professor & Head, Department of Political Science, Maulana Azad National Urdu University, and Associate Professor of Law, NLUO Cuttack.