In a democracy, sovereignty lies in the people. It is the people who appoint governments as well as dismiss them. The Constitution of India was adopted and enacted in the name of ‘We the people of India.’ The two major institutions of governance, namely the Parliament and the state legislatures, are constituted by representatives of the people and are elected through “free and fair” elections. The legislatures and the governments are made of the representatives of the people. Article 102 of the constitution of India and sections 8, 8A,9 9A, 10 & 10A of the Representation of People Act prescribes certain disqualifications for a person contesting an election to the Lok Sabha and/ the state legislatures. One of the most contentious disqualification is what is given in Section 8(1) of the peoples Representation Act 1951, debarring persons convicted for an offense where the punishment is imprisonment for two years or more from contesting an election. The whole idea of this section is to prevent criminals from contesting elections but this section will apply only when there is a conviction what about those who are charged with an offense but not yet convicted?.
In India the time span from charge sheeting to conviction/acquittal can take decades and with political clout it could be made even longer thus a legislature can easily complete two to three terms before the case is finally closed. According to the law commission of India (Report No.239 on an average the percentage of conviction is less than 40%). The same report also mentions that the main reason for such low conviction is shoddy and inefficient investigation and the delay at all levels of investigation and the trial.
It is thus clear that the law and the system permits criminals, to be an elected representative by simply ensuring that the case is not completed. India has highest number of elected representatives with criminal records and whose cases are technically pending .Presently 186 out of the 543 M.Ps in the lok sabha has criminal record, i.e. 34% of the MP have criminal antecedent, of these 63 MPs are from the winning party – BJP
Of the state assemblies Kerala has the highest with 62% of MLAs having criminal cases and Goa has nearly 23% of them having criminal cases.
How can this be acceptable when the national average for crime per population is less than 0.60%.( from the records of National crime records Bureau) How do we say that the elected members of parliament as well as state legislature are representative of the population
This is happening despite the proclaimed objective of the legislation and the constitutional duty cast on the Election commission to ensure that the elections should be free and fair. Are the elections fair when the voter (The sovereign) does not have complete information about the candidates criminal antecedent? Is it complete and correct information when the outcome of the criminal proceeding is not only unknown but indefinite in time? Is not the Election Commission, duty bound, to ensure that the candidate is not a criminal in all sense of the term? This is where the Law, The government, and the Election Commission have failed the people of India by allowing by their inaction to have such large percentage of persons with criminal record to rule and make laws for the country.
If one were to blame the law and the system for this state of affairs, who made the system and the rules?
Shouldn’t the Constitutional Authority specifically entrusted with the responsibility of free and fair election take positive steps in this direction and shouldn’t the supreme court of India intervene to protect the democracy?
India is used to the system of special courts, we do have a number of special courts for various purposes from debt recovery to family to consumer to NDPS matters and recently the special court on environment. The National Green tribunal has effectively prevented environmental degradation. Is not the Country more important than the environment? Why not, a special court, to deal with all criminal cases against elected representatives, and those who would aspire to be elected. Shouldn’t the voters know the truth about their candidates?
A special court to try election related offenses and offenses by elected representative should function as a fast track court. Such a court should first prepare a case management port folio as to the total time for disposal, number of sittings, number of adjournment etc and all these cases involving elected representatives should be taken up on a priority basis and decided before the next general elections.
The Election Commission could recommend establishment of such a court to the central government under Article 324 of the Constitution which vests the Election Commission the power of superintendence of all elections in the country.. In the case of, Election Commission of India v/s. Ashok Kumar , the Supreme Court observed that, ‘superintendence, direction & control’ these words are enough to include all powers necessary for smooth and effective working, conduct of elections so that the will of the people may be expressed. Article 324 is a reservoir of power to act for the avowed purpose of pushing forward a free and fair election with expedition. In Shaligram Shrivastava V Naresh Singh Patel, the Supreme court held that a voter has the elementary right to know full particulars of a candidate who is to represent him in the Parliament and such right to get information is universally recognized natural right flowing from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution
Recently, in Krishnamoorthy vs Sivakumar & Ors (on 21 January, 2015) The Supreme Court has observed that “voters’ fundamental right to know the antecedents of a candidate is independent of statutory rights under the election law. A voter is first citizen of this country and apart from statutory rights; he is having fundamental rights conferred by the Constitution. Members of a democratic society should be sufficiently informed so that they may cast their votes intelligently in favour of persons who are to govern them. Right to vote would be meaningless unless the citizens are well informed about the antecedents of a candidate. There can be little doubt that exposure to public gaze and scrutiny is one of the surest means to cleanse our democratic governing system and to have competent legislatures
Any further delay by the Election commission or the Government to act will greatly damage the character of the Indian democracy.
Recently at one of the International academic conferences at Delhi a Chinese delegate began his presentation like this “in my country presently we have a government of the corporate, by the corporate and for the corporate”:, An Indian might have said in “my country we have a government of slogans, by slogans and for slogans”. May be by 2020 when the new lok sabha and the assemblies are constituted one may not be wrong in then saying that in India we have a “government of criminals, by criminals and for criminals” thanks to the Election Commission of India, knowing they did not act.
(The writer is a Professor of law and former Dean, Faculty of Law, Goa University)
