L A W  &  J U S T I C E

Criminal all: Disqualification Muddle
Joginder Singh Toor

A curious e-mail is roaming around the corner disclosing obnoxious information – "Can one imagine working for the following Company? It has a little over 500 employees with the following statistics: 29 have been accused for spouse abuse. 7 have been arrested for fraud. 19 have more than three criminal cases pending against them. 117 have been charged and are being investigated for murder, rape, assault, extortion and robbery. 71 cannot get credit or loan due to bad credit histories. 21 are current defendants on various lawsuits. 84 have been involved in offences and have paid fines." It is 545 members Lower House of Parliament of India.

The facts may vary but are disturbing. The Indian Express February 25, 2007 discloses that every fourth member of Lok Sabha has a criminal record with cases ranging from murder to cheating. The ruling dispensation has 36 M.Ps with a criminal background, two being in jail. 15 Congress M.Ps, 10 from R.J.D. and five from NCP face cases.

The opposition fares no better.  37 members of parliament from the National Democratic Alliance have criminal antecedents, 26 come from the right wing Hindu party, the Bhatia janata Party that boasts all the time of high moral values. The Smajwadi Party and Bahajun Samaj Party too have 18 such M.Ps. Have we accepted this moral degradation and falling public standards as normal? The question haunts the public. Should we condone the increasing role of criminality in politics and the society? Who owes the responsibility? law makers or the law enforcers? To ensure rule of law has by and large obliterated? In public interest litigation by Manoj Narula, the Supreme Court of India has appointed Rakesh Divedi, senior Advocate as amicus curiae, to help find solution enabling the judiciary to provide a static solution till legislation on the matter is enacted.

As a primary step the Supreme Court has invited the views of all the States on politicians with criminal cases pending against them. Till now only 8 States have responded.

Bihar and Manipur hold the view that debarment should begin with a court framing charge against the accused. "Only those of unblemished character should be allowed to hold any public office." According to Bihar government, the mechanism to debar politicians "after conviction" has not worked due to lengthy trials. Manipur is of the view that it is proper not to include persons with criminal background and/or charged with offences involving moral turpitude in the ministries of the state governments.

As against this view the States of Gujarat, West Bengal, Mizoram, Himachal Pradesh, Assam and Punjab are of the view that debarring person from entering a legislature should not start from the framing of the charge but only after conviction.  West Bengal emphases that Section 8 of the Representation of People Act lists the criteria for disqualification for holding public office which allows "only final conviction" as a disqualification. The view is sought to be supported by the argument that after the Election Commission enables the voters to get the relevant information about the electoral candidates, a person elected to Parliament or State Legislature should not have any further restraints on his right as Member of Parliament or Member of the State Legislature. Mere pendency of criminal proceedings against any person does not make him/her ineligible for inclusion in the council of ministers. The apprehension of the West Bengal Government is that since there are several instances of one ruling party frame charges against opposition leaders that at times can not withstand the scrutiny of courts. State of Assam and Punjab endorsed this view. The Government of India has taken the stand that some odd criminal cases pending against a member of parliament do not "make his/her integrity or honesty doubtful in nature.”

Section 8 of the Representation of People Act provides for disqualification only on a conviction for offences specified in this section and not all criminal offences. Offences promoting enmity between different groups on ground of religion, race, place of birth, language, bribery to voters, exercise of undue influence during election, rape, untouchability, offences of importing and exporting prohibited goods, offences of being a member of an association declared as unlawful or dealing with its funds or relating to notified unlawful activities, foreign exchange, Narcotic Drugs, Terrorist acts, misuse of religious institutions, booth capturing and related offences, conversion of places of worship, insulting National Flag, National Anthem, National Honour, the commission of Sati, Prevention of Corruption Act, if proved and the person accused of the offences is convicted of the offences, only then it entails disqualification.

The inadequacy of this section to prevent the entry of persons with criminal background and those facing criminal charges, to enter legislative assembly or parliament is well demonstrated. Persons like underworld Don Abu Salem and Dawood Ibrahim's henchman Bablu Srivastav who intend to contest the forthcoming assembly elections in Uttar Pradesh has left the center with no option but to plan a measure to prevent the entry of hardcore criminals into politics.

Acting fast on Election Commission's report, the Law Ministry has sent the draft of a proposed legislation to the Parliamentary Standing Committee on Law and Justice headed by Dr. E.M.Sundrashna Natchiappan. The Bill to ensure debarring the criminals involved in the acts of terrorism, anti-national activities and organised crimes covered under the Un-Lawful Activities (Prevention) Act, election-related offences murder, rape, drug and human trafficking and other heinous crimes from the moment the charges are framed by the court. It would cover all those accused who were liable to be sentenced for five years or more for their involvement in the listed offences.

This proposed Bill becoming law would make a sea-change in the disqualifying provision mentioned in section 8. It is to be seen how the states that have opposed the disqualification being extended to the stage of framing of the charge and not the date of conviction react to this.  Indian public certainly desire this new law.

jogindersingh_toor@yahoo.com

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