CONVICTION VERSUS ELECTION

(WHERE TO BE KEPT?)

COVICTED PERSONS TO BE ALLOWED OR NOT TO FIGHT ELECTION

Sarita Yadav

Election and offence; poll and crime are like twin brothers and go side by side. The question that whether the convicted persons should be allowed to fight election or not has remained ambiguous in spite of clear cut provision to this effect made in Representation of People’s Act. In fact section 8(3) which reads as ‘A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)]shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.’

Apparently, it appears that the provisions are too simple to be interpreted and therefore should be easily and unambiguously enforced.

With the passage of time, the criminalisation of politics started and more and more numbers of politicians started pitching themselves into electoral fray. The matter came to fore only when the sitting MP or MLAs got convicted by the competent court in which quantum of punishment was more than 2 years.

In 1997 the ECI reiterated its legal stand and directed all the returning officers to disqualify any candidate who remained convicted for more than two years irrespective of status of appeal.

In this very year, this matter came into a legal battle between ECI and J.Jaylalitha. She had been convicted in TANSI case under provisions of prevention of corruption Act (PC Act 1988) for more than three years, therefore in view of the direction of the ECI, her nomination was rejected and she could not fight the election. 

In spite of it she was sworn-in as CM of Tamil Nadu by the Governor, Fatima Bibi, a retired SC Judge. There were lot of legal battle and finally she had to quit till her conviction was stayed. Supreme Court however ruled that anyone can be appointed as CM of a state as per article 164 of the constitution but the matter remained unresolved that whether the convicted person would fight election or not.

This matter remained unresolved and hardly any person could be disqualified by the ECI from fighting election on the ground of conviction in accordance with the provisions of RP Act.

This issue again come in light when sitting MP of BJP and cricket star Navjot sidhu was convicted by the Punjab and Haryana High court in December 2006 under section 304 of IPC for 3 years. Sidhu resigned and subsequently bye election was announced. Sidhu sought to fight the election again. The matter was taken to the Supreme Court and the apex court gave reprieve to sidhu and temporarily stayed his conviction, thus siddhu fought election and won.( Navjot sidhu vs state of Punjab and others appeal (cri) 59 of 2007. 

The stay of conviction by appellate court in general is interpreted 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 has opened a Pandora box vis-a-vis conviction versus elections.

In the present general election 2009 for constitution of 15th Lok Sabha, so many convicted persons have either filing nominations or aspire to fight elections. Sanjay Dutt, the film star, Md Sahabuddin, Surajbhan, Pappu Yadav, all sitting MPs from Bihar have been convicted by courts. Now all of them are on bails. Md Shahabuddin has been granted bail only two days ago by Patna High court. He has however been denied from fighting elections. Sanjay Dutt has already been convicted under Arms Act, 1956 for which minimum quantum of punishment is 7 years. Thus Dutt’s case is also a fit case of disqualification from fighting election. In UP the mafia don Bablu Srivastava has also been convicted but he has not been granted bail. The question is that whether he should be allowed to fight the fray if he gets bail. If yes, then how people like Abu Salem, Kasab, Afzal etc will be prevented and disqualified from fighting elections.

In UP and Bihar names like Anand Mohan, Muktan ansari, Atik ahmed, Raja bhaiya etc have either been convicted or facing 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 from satisfactory. Lawyers like Prashant Bhusan categorically say that the judgement of Apex court in sidhu’s case was not correct. In fact this judgement has become a case of precedent. Ours is a law of precedent and the judgement passed by the higher judiciary becomes as good as law itself. Taking the advantage of this provision, the criminals make mockery of the entire system. 

Coming to the crux of the matter, legal issue involved in these cases is that whether stay in conviction should be treated as acquittal. If the provision of the Representation of People’s Act, 1951(section 8(3)) is taken into account, it is clear that once the person is convicted, he will disqualified and cannot fight 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 be held guilty till the last legal option available to him is exhausted. It means that a person cannot be said to have been convicted if he has filed an appeal before the superior court and the court has accepted it for hearing. Some legal experts however say that acceptance of petition for admission and suspension of conviction is two different and separate things. They further maintain that if the conviction is suspended only then the person can be said not guilty or convicted. 

The problem in our country is that if this proposition is accepted, hardly any criminal can be prevented from fighting elections because in India the provisions of appeal, in different nomenclature like SLP, LPA Single Bench, and Double Bench etc are numerous and they can go on years and years before all options are exhausted. In fact taking advantage of this very provision, large number of criminals succeeds in fighting elections and makes a mockery of section 8(3) of R.P.Act, 1951.

The other side of the story is that if this provision is implemented in Toto, large number of political activists would be deprived of their political rights to fight elections, because instances of fabrication of false cases against political rivals by party in power are abundant. It is therefore a balance has to be strike and ensure that the criminals do not fight elections. 

The time has come that we should make suitable amendments in RP Act because the provision of 2 years imprisonment for disqualification has become obsolete after amendment in section 41 of Criminal Procedure Code which prohibits arrest by Police in a case in which imprisonment is less than 7 years. The RP Act should be made an integrated, comprehensive and complete law for election matters which may incorporate provisions of model code of conduct also, because right now we do not have any special law for model code of conduct and this code is nothing but a compendium of circulars and instructions issued by ECI time to time. Model code of conduct as such is not enforceable in the court of law until it is reinforced by other penal provisions prevailing in different parts like IPC, Public property defacement act, Laud speaker Act etc.