Decriminalising elections: Cleaning up the electoral process

Rajeev Dhavan
Rajeev DhavanFeb 16, 2020 | 09:42

Decriminalising elections: Cleaning up the electoral process

Treat it as a Valentine's message to the people of India.

Just before Valentine's Day, the Supreme Court delivered a hugely important decision on decriminalising elections. Treat it as a Valentine's message to the people of India.

It is well-known that elections in India have tempted criminality all too often, even to the extent of booth and ballot capturing accompanied by criminal assaults and threats. Here, we are concerned with criminals awaiting trial and those who have been convicted by the trial court.


An old demand

In 2013-14, the Supreme Court closed one gap in the Lilly Kurian case. Hitherto those convicted by the trial court whose appeal was before the Supreme Court and got any kind of injunctive relief from the highest court of the land could stand for election, adding to the swelling number of convicted legislators. Another advance had been made earlier, confirmed in a public interest litigation case of 2011, when the Supreme Court ruled that voters are entitled to know all the antecedents of a candidate including his or her property, cash assets and their criminal record. But this needed to be disclosed more widely to all.

These issues had troubled discourse in the public domain for quite some time. BR Ambedkar had warned the Constituent Assembly that the success of India's parliamentary democracy depended on good, responsible people being elected to its legislatures. Indeed, the Representation of the People Act, 1951 (as amended from time to time) barred convicted criminals from standing for elections. Unfortunately over the years, the Supreme Court wrongly interpreted this to mean that conviction also meant disposal of the appeals, including where the criminals had exhausted all pending appeals till the High Court or Supreme Court. In 2013, the Congress government referred this to the Law Commission, especially on disqualifying those against whom either charges were framed by the trial court or who had been convicted by that court. In 2014, the Law Commission's 244th report said that the disqualification should extend to those at charge stage or on conviction, if they were indicted for offences carrying a punishment of five years or more in prison.


On March 8, 2016, Justice Gogoi presiding over a three-judge bench referred this matter to a Constitution Bench of five judges. In 2018, the then Chief Justice of India, Dipak Misra, started hearing the case. On September 25, he ordered disclosure of all criminal antecedents.

Two weeks later, the Election Commission of India amended the relevant Form 26 so that all candidates and political parties could publicise these details. But politics yielded to this in much too imperfect a manner.

The current stimuli

According to a BJP spokesperson, such imperfection was contempt of court and in 2019 filed an application before the Supreme Court in this regard. During the hearing in January 2020, interim directions were given to order maximum publicity to this information. This was a kind of pre-Republic Day present to Indian democracy, two days before the event.

The Supreme Court reserved judgment on January 21, 2020 and then passed a pre-Valentine's Day order that the path to de-criminalisation lay in political parties putting on their websites details of all pending criminal cases of those standing for elections. In a sense, this would hurt all parties since promoting 'criminals' for elections is part of money-muscle politics. For the moment, the BJP and Congress have welcomed this decision. They are surely aware that defying this order would invite contempt of court. The Constituent Assembly had, among other elements, declared insolvency a disqualification in the Constitution itself.


But other disqualifications were left to Parliament which did enact this prohibition, though it was interpreted incompletely by all. It must be asked whether these kinds of directions are fair. At the helm is the principle that a person is innocent until finally convicted after the entire criminal process. This wrong interpretation was rectified by the Supreme Court in the Lilly Kurian case which held that even a conviction by the trial court was enough unless the superior court ruled that not just the punishment but the conviction itself was stayed by the superior court until the final disposition of the case.

Apex court delivers

This has proved to be an uphill task for superior courts. The other objection is that more often than not false criminal cases are filed by politicians or their well-wishers against opponents. The remedy lies in getting these allegations quashed by the superior courts which does happen.

But these objections do not fully comprehend the meaning of the latest order judgment. The present case is simply asking the parties to know the criminal antecedents of the candidates that they promote. There is no doubt that some may say that this promotes defamation against candidates. It is difficult to perceive how declaring the truth can be defamatory. Today, our Supreme Court follows American and English precedent to declare in the Auto Shankar case (1996) that public persons must be more amenable to fair bonafide comment and truth than a private person unless what is spoken is about their private lives. In the present post-judgment dispensation, we are not dealing with convicting anybody, but simply publicising true facts clearly so that the electorate may know about not just the candidates but also the party which promotes them. This case cleans up Indian democracy's electoral process.

(Courtesy of Mail Today)

Last updated: February 16, 2020 | 09:42
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