Of Criminals and Elections

This post was prompted by a question posed by Suresh in an email to me a few weeks ago. Suresh wrote:

I think Arun Gawali is a CONVICTED criminal, albeit he has possibly an appeal in process. Are such criminals permitted to contest elections in  India?

…grateful for explanation.

Suresh’s email had a link to this news-report: Arun Gawli to contest LS polls from North Central Mumbai

Now, as far as I know, the law relating to criminals standing for elections is clear. No “convicted” criminal can contest an election [I believe this is part of Section 8 (3) of the Representation of the People Act, 1951 – although I have not verified this]. This report in “The Hindu” quotes the Supreme Court bench as saying:

Law prohibits any person who has been convicted of any offence and sentenced for not less than two years from contesting the election and such person shall be disqualified for a further period of six years since his release.

In the face of such a provision, the power of the court under Section 389 Cr.PC [to suspend conviction and sentence] shall be exercised only under exceptional circumstances.

As you can see, the Honourable Court does have the authority to “stay” a conviction i.e. suspend the conviction and the sentence – which can allow a convict to contest for an election.

There is another reason why so many “criminals” appear to be involved in politics (although ADR believes the number of criminals who get “tickets” has been steadily decreasing over the years). It is the slow judicial system in India – which means it can literally be years before any accused is actually convicted after a trial.

In the meantime of course the accused is free to contest elections – which they do – and sometimes win as well.

The Courts appear to be increasingly taking a tough stand on this issue though…as observed in the recent case of Sanjay Dutt* (see P.S.) and also that of Mohd Shahabuddin (RJD MP from Siwan):

Patna High Court disallowed controversial RJD MP from Siwan Mohd Shahabuddin’s petition seeking to contest Lok Sabha polls in Bihar by refusing to stay his conviction in a kidnap and murder case but granted him regular bail in it.

Separately, a Lucknow based voter, Hanuman Tripathi has filed a PIL on this matter which mentions:

…the issue needs to be resolved for once and all by the apex court as it is being “filed in larger public interest to save our democracy from becoming a tool in the hands of criminals, terrorists and other people having criminal bent of mind in order to save legalisation of crime and criminalisation of politics.”

I cannot agree more.

Finally, some excerpts from a great article on this topic by Bibhu Mohapatra that was published on Liberty Institute’s website in Dec ’08.

*** Excerpts from Should candidates facing criminal charges contest elections? ***

In August 1997, GVG Krishnamurthy, the then Election Commissioner, called for legislation and administrative measures to curb criminalisation of politics.

He disclosed that in the 1996 general elections…of the 13,952 candidates, who contested, nearly 1,500 had criminal records; and almost 700 MLAs in the country were involved in criminal cases and trial was pending against them.

In the last 5 years (Since 2003 when affidavits of the candidates became mandatory and are accessible on the EC web site), out of 39,866 candidates contesting various state and parliamentary elections, 3163 (7.9%) had pending criminal charges against them.

If we look at the figures of those who won in these elections (4431), there were 977 (22.04%) who had pending criminal cases against them… 

Out of the 543 members of the Lok Sabha 102 (18.78%) had pending criminal cases against them…

The argument against criminalization of politics has been mainly based on three premises.

First, unless proven guilty, every one is to be presumed innocent; second, according to the law a person’s right to vote and right to contest in an election could be taken away under certain circumstances.

It is specifically mentioned that a person behind the bars cannot cast her votes but the law is silent on the right of that person contesting an election.

Third, politicians are mostly victims of opposition wraths and often the charges against them are for obstructing public servant from carrying out his duties or unlawful assembly etc. Such cases, the politicians argue, are inevitable in public life and should not be taken seriously.

…All major political parties are to be blamed in this case. They go by the yardstick of “winnability” of the candidate, and caste, religion, crime records and money power—all the known tyrannies of democracy—come into play while giving tickets to such candidates.

This is somehow substantiated by the fact that out of 405 candidates who had pending cases against them in the Lok Sabha elections, 102 (25.18%) won and among the 2758 candidates who had criminal background in the assembly elections, 875 (31.73%) won.

…Another reason for concern is the slow disposal rate of our Courts and the low rate of conviction. Till the end of 2006, 71, 92451 cases were listed in various high courts (The High court figures are taken because the appeal cases in electoral matters are only taken up at this level) and out of these 59, 99200 (83.4%) were still awaiting trial.

The lower courts scenario is worse….(Further) Once convicted a contestant could appeal in the Supreme Court and that itself would take a long time. That is how many elected representatives have enjoyed full tenures without being bothered about their criminal past.

Though there is much talk in the media about criminalization, it is not reflected in the activity of our law makers. A search in Lok Sabha questions shows that since 5 May 2004 till 24 October 2008, the issue of electoral reforms has come up 34  times and criminalization of politics has figured only thrice.

…There is definitely a lack of political will to curb criminalization of politics.

In the midst of the last general elections, the Patna High Court had passed an order that said, “…The law of the Legislature controls elections, the Constitution of India does not provide all the rules of the game. But the rules of the game have to be as strict as those of any game, which kicks up hysteria. It’s like a leg before wicket ruling, where you’re neither bowled out nor caught out. Cover a wicket and get a ball on your leg pads and you’re out. It’s not fair to cover a wicket. Why is this rule of the game so strict? A fair opportunity must exist to get the player out if he presents an occasion. It’s a foul to cover a wicket. Criminality is also a foul in elections. It is not a qualification. It is certainly a disqualification.” 

*** End of Excerpts ***

It would be very interesting to read how other democracies deal with this matter…I will try and cover that in a follow-up post.

* P.S. As an aside, before someone begins to make hasty comparisons with Navjot Singh Sidhu, please read what the Hon Judges said about this:

On the contention that the Supreme Court granted relief to Navjot Singh Sidhu in similar circumstances, the Bench pointed out that he was a sitting member of Parliament and he could have continued as MP even after his conviction and sentence in view of Section 8 (4) of the R.P. Act (given three months to file an appeal).

The Bench said Mr. Sidhu resigned and expressed his desire to contest the election. That was a case where the trial court acquitted him and the High Court, in reversal, found him guilty. It was in those circumstances this court granted stay of the order of conviction and sentence, the Bench said.

As an aside, some of you may enjoy this interview of R Gurumurthy, founder of NoCriminals.org 

Related Posts:

Volunteer to remove Criminals and Cash from Indian Politics 

“Jaago Re!” and ADR – Two Excellent Initiatives 

Should there be certain “selection criteria” for MPs? 

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