Contesting of Elections by the Convicted Persons 

Syllabus: GS2/Polity and Governance

Context

• The Supreme Court is hearing petitions seeking a lifetime ban on convicted persons from contesting elections.

About

• The petition argues that if a convicted person is not eligible for even a junior-grade government job, how could they become law makers?
• The Supreme Court has again sought the response of the Central government and the EC on the current petition.
• Criminalisation of Politics: A report by The Association for Democratic Reforms (ADR) states that 251 (46%) of the 543 elected MPs in 2024, have criminal cases against them, and 171 (31%) face serious criminal charges including rape, murder, attempt to murder and kidnapping.
  • Chances of winning for a candidate with a criminal background was 15.4% as against just 4.4% for a candidate with a clean background. 

Disqualification of Convicted Person

• Section 8(3) of the Representation of the People Act, 1951 (RP Act, 1951), provides for the disqualification of a person convicted of a criminal offence and sentenced to imprisonment for not less than two years. 
  • Such a person is disqualified from contesting elections for a further period of six years from the date of release. 
• Heinous Crimes: Under Section 8(1), individuals convicted of heinous crimes like rape, untouchability under the PCR Act, unlawful activities under UAPA, or corruption will be disqualified from holding office, regardless of their sentence length, and for six years after release.
• Section 11 of the RP Act, 1951 provides that the Election Commission (EC) may remove any disqualification or reduce the period of disqualification of a convicted person.

Arguments in Favour of Banning the Convicted Person from Contesting Elections

• Preserving Integrity: Convicted individuals, especially for serious crimes, make their candidacy detrimental to the integrity of the political system.
• Public Trust: Allowing convicted persons to run for office will undermine public trust in the electoral process and in elected representatives.
• Role Model Standards: It could send the wrong message about the acceptability of illegal or unethical behavior.
• Security and Safety: Individuals convicted of violent crimes or corruption may pose a threat to the safety of citizens.
• Social Justice: Preventing convicted persons from holding office could be seen as a safeguard for social justice, ensuring that those with a history of criminal behavior are not in positions of power where they could influence laws or policies to their benefit.

Arguments Against

• Right to Participation: Convicted individuals still retain their fundamental democratic rights, including the right to run for office and participate in the political process.
• Rehabilitation: People who have served their sentences may have reformed and should be allowed to contribute to society through public office.
• Presumption of Innocence: Banning individuals based on a conviction could be unfair if their legal status changes.
• Overreach of Power: Banning convicted persons could be seen as an overreach by the state, limiting citizens’ freedom to choose their leaders.

Past Judgements of SC

• Association for Democratic Reforms (ADR) case (2002): It mandated the disclosure of criminal records of all candidates contesting elections. 
• The CEC vs Jan Chaukidar case (2013): It upheld that persons who are under trial prisoners cease to be ‘electors’ and hence not qualified to contest elections.
  • However, the Parliament amended the act in 2013 to overturn this judgment allowing under trial prisoners to contest elections.
• Lily Thomas (2013)Case: The court struck down section 8(4) of the RP Act, 1951, that allowed a sitting legislator to continue as a member even after being convicted if they filed an appeal, as unconstitutional and against political justice.
  • After this judgment, a sitting legislator is disqualified immediately after the sentencing for a conviction.

Conclusion

• The Law Commission in 1999 and 2014, and the EC on various occasions have highlighted the need to curb the criminalisation of politics. 
• They have recommended that even persons against whom charges are framed by a competent court for an offence that entails punishment of more than five years should not be allowed to contest elections.
• However, there has been no consensus on this recommendation amongst political parties considering the risk of its misuse. 

Source: TH