Saturday, March 07, 2009

No Criminals in Politics

As India goes to elections in a month’s time, there is a pervading sense of concern and of dismay about the candidates, political parties and alliances that form part of the electoral canvas. A staggering 20% of the current members of Parliament have criminal records, some of whom have charges of heinous crimes such as murder, rape, dacoity and kidnapping against them. While section 8 of the Representation of People’s Act, 1951 provides for the disqualification of a candidate from election following conviction for an offence listed in that section, section 8(4) provides that such a disqualification shall not take effect if there is an appeal or application for revision pending in respect of that offence. Given that there is an automatic right of appeal with respect to most criminal convictions and the tremendous backlog of cases in courts as discussed in previous blogposts here and here, not only do most MPs complete their terms before an appeal against their conviction is disposed off but also often if they belong to the party in power, the cases against them fall apart due to political pressure on the investigative agencies and presumably also on the courts.

In an attempt to rectify this situation and galvanized into action by the Mumbai terror attacks, the Public Interest Foundation in New Delhi chaired by Bimal Jalan, a nominated member of Parliament, has launched the “No Criminals in Politics” campaign. According to the campaign concept note, “[t]he recent Mumbai attacks have once again highlighted the need for individuals with a high level of personal integrity to provide effective leadership for our country.” The core idea of the campaign is to initiate a nationwide effort to enable large numbers of citizens to appeal to political parties not to give tickets to people with criminal antecedents in the upcoming elections. The campaign website provides information on the criminal antecedents of sitting MPs and also provides details of such criminal cases. It also provides news and updates about the election alongwith its partners, the Association for Democratic Reforms, National Election Watch and Jaago Re. The campaign calls upon people to popularise the campaign message through email/sms, social networking sites, discussions in the blogosphere as well as through organisation of events propagating the campaign message in places across the country.

6 comments:

Anonymous said...

What is the justification against denying tickets or barring people who merely have criminal "records" as opposed to convictions? Doesn't it go against one of the fundamental tenets of our criminal jurisprudence i.e. "innocent until proven guilty". This is especially true, given how easy it can be to launch criminal proceedings and thereby bar one's adversaries. This is compounded by the fact that cases take years to get disposed off, and a person would lose his/her important democratic right of contesting for a long period of time, merely because a criminal case is pending against him/her.

Furthermore, what is exactly meant by the term "criminal records"? Does it mean that a person has been convicted by a court of competent jurisdiction? Or does it just mean that a FIR has been filed against that person? Or does it mean that a charge sheet has been filed?


Harsh

K.V.DHANANJAY said...

The question we need to ask really is, do party ticket givers take these efforts seriously? Have they? Absolutely Not.

I don't believe these efforts make any impact on who are fielded in elections and while I greatly appreciate every one of these forums for doing something for their country, I am afraid I must say that their efforts lead to no real consequence whatsoever.

Anybody really think about the need to ask the Election Commission to look into the legal nature of election promises?

If I were one of these forums, I would write to the Election Commission to ask on whether parties or candidates that make election promises have any compulsion to not fraudulently entice voters with false promises.

That is, our Election Commission has a duty to safeguard voters from relying on promises made by persons who fail to disclose if those promises are legally actionable - whether they are legally enforceable or actionable and if the candidate concerned waives his parliamentary immunity? OR if the promises are not meant to be legally enforceable?

In either case, the Election Commission has a duty to insist that all political promises be attended by a disclaimer on whether they are legally enforceable or not. As long as the Election Commission fails to regulate this aspect of the matter, candidates may very well obtain advantage of ambiguity in the minds of voters with respect to the true nature of promises that are known none elese but to the maker of those promises.

I have extensively read on these issues and I am of the firm conviction that a Writ will lie to compel the Election Commission to direct that all political promises be attended by a disclaimer that reveals the legal relation intended by the promisor/candidate/political party.

tarunabh said...

agree with harsh that mere FIR or chargesheet will violate presumption of innocence. but if there is any 'live' conviction by a competent court, even if an appeal is pending, it should count as disqualificatory. my understanding was that interim orders in appeals stay the execution of the sentence and grant bail. but surely a conviction can only be set aside, how can a conviction be 'stayed'? well, even if it is legally possible, any conviction should be disqualificatory unless it is set aside.

Jasmine Joseph said...

please see the recommendation of election commission, which is as follows. "The Commission is of the view that keeping a person, who is accused of serious criminal charges and where the Court is prima facie satisfied about his involvement in the crime and consequently framed charges, out of electoral arena would be a reasonable restriction in greater public interests. ... However, as a precaution against motivated cases by the ruling party, it may be provided that only those cases which were filed prior to six months before an election alone would lead to disqualification as proposed. It is also suggested that persons found guilty by a Commission of Enquiry should also stand disqualified from contesting elections."

there are two aspects to be taken note of; public interest and realisation that disqaulification due charge sheeting may be misused.

while appreciating the concern of harsh, that the presumption of innocence is vital, i would argue that critical is the need to keep criminals away from politics. it is not unusual that two rights might contradict with each other. here they are; the right to be presumed innocent and right to democracy achieved through free and fair election.

the question then is, what is in the interest of public?

i would say, it is to keep people who is in the shadow of doubt away from politics. let them come out clear through the processes of courts and then contest.

my supporting corollary would be that even an undertrial is sometimes denied of the fundamental right to liberty even before he is adjudged guilty.

such a disqualification if brought through an amendment in RP Act, 1951, legally becomes sound read with the (current) position that right to vote and contest elections are statutory right, which can be regulated by the statute.

jasmine

Namita said...

The disqualification under the Representation of People's Act only comes into effect upon conviction by a competent court and not merely on the filing of a FIR. Thus, there would be no violation of the presumption of innocence in case a candidate were to be disqualified even if there was an appeal pending against his conviction.

Moreover, it should be noted that a candidate may be disqualified for only certain offences listed in Chapter III of the Act. The offences listed include those under the TADA, POTA, the Prevention of Corruption Act as well as certain obscure ones like those under the Commission of Sati (Prevention) Act. Interestingly, offences of murder, dacoity, rape etc. are not included within the list.

Moreover, according to section 8(3) and (4) of the Act, the disqualification shall last for a period of 6 years if the sentence for the offence of which the candidate is convicted is less than two years and six years plus the period of imprisonment if the imprisonment for that offence is longer than two years. Thus, the disqualification is of a limited nature and does not prevent the candidate from ever contesting elections again.

Harsh, I think this should address your concerns.

To address Dhananjay's point as to whether it makes sense to undertake these initiatives because political parties don't care anyways....I actually think that civil society pressure does play a role in altering political party incentives for putting up candidates for elections. Therefore, I think a campaign like this can have a positive impact on our electoral choices. However, even assuming that such a campaign has no immediate positive effects for the upcoming election, I think such civil society initiatives, insofar as they are attempts to make our political representatives more accountable are good for the strength of a vibrant democracy like India. Voter apathy can only make the situation worse. Therefore, we should applaud and not dismiss such initiatives.

K.V.DHANANJAY said...

Considering the fact that reasonable men agree that the criminal justice system in India is far from being efficient, the disqualifications prescribed by the Parliament do little to address the real problem - factually criminal people contesting to the Parliament and State Legislature.

Presumed innocence is one thing and multiple charges on a variety of crimes is another altogether.

The question really is, whether the Election Commission is authorised to prescribe a disqualification on the basis of 'public policy'? If only we could locate such a power in the election commission, there will be some hope of compelling it through a Court to add to the list of disqualifications in order to protect public interest.

I am not pessimistic or uncharitable, but I do not see our Parliament keen to add to disqualifications any time soon and any discussion on what ought to be additional disqualifications proceeded on a faith in a change of heart in our Parliament is rather naive.

Besides, lets not forget that we have in our Statute books, Section 19 of the Prevention of Corruption Act, 1988 that would have been summarily quashed by a Constitutional court of any western nation.

Yet, in our country, we are yet to get our Courts to declare that provision as impermissible upon the Executive as it vests a judicial function in the Executive and makes a subjective satisfaction of the Executive determinative of whether 'a public servant should be formally prosecuted for infraction of laws governing his conduct'.

At some level, I wonder if our higher courts are consistently sensitive to the legal issues bothering the people.