Indian Constitution and Representation of People Act 1951 has provisions rearding disqualification of MP and MLA. Article 327 and 328 of the Indian Constitution confers the power on parliament and state legislature (where laws made by Parliament are not there or inadequate) respectively to make rules/regulations for election to Parliament/State Legislature. Consequently the Parliament has passed Representation of People’s Act, 1951 to provide for grounds of disqualification of candidates and sitting legislators. In the year 2013, the amendment to RPA, 1951 that sought to nullify Supreme Court’s verdict on Sec 8(4) of RPA,1951 in Lily Thomas case caused much heartburn and raises the issue whether the grounds for disqualification is being diluted.
Under the Constitution, Article 102 and 191 provides for grounds of disqualification of MP and MLA respectively.
These grounds of disqualification of MP and MLA are –
a) Mental unsoundness
b) Being an undischarged insolvent
c) Citizenship under doubt
d) If he/she holds an office of profit
e) Parliament can make additional laws for disqualification of MP and MLA which it has done through Representation of People’s Act, 1951
a. If person is convicted for an offence for 2 years or more, the person will be disqualified for the term of sentence plus 6 years
b. If found guilty of corrupt practices
c. Dismissed for corruption
d. Disqualified for a contract entered into with government related matters
e. A person remains disqualified as long as he managing agent, manager or secretary of any government company or corporation
f. If fails to lodge expense accounts of elections Section 8(4) of RPA, 1951 gave a reprieve of three months to legislators from immediate disqualification if they were convicted for an offence, so that they could file an appeal in the higher courts.
The SC in Lily Thomas case 2013, reversing one of its own judgment of 2005 where it accepted differential treatment of legislators and candidates, invalidated Section 8(4) on the grounds that :
(i) Differential treatment of legislators and candidates violates the law of equality as envisaged under Art 14
(ii) It interpreted Article 101(3)(a) to state that any disqualification is immediate
The Parliament subsequently passed an amendment to RPA, 1951 reinstating Section 8(4) in effect by giving a cooling off period of 90 days and allowing the convicted legislator to continue if he/she is able to get a stay on either the sentence or conviction. The passage of this Bill without a discussion in Rajya Sabha created huge furor as it was an action that was seemingly governed by politician – criminal nexus which has led to the menace of criminalization of politics. However the then Law Minister Mr Kapil Sibal had argued that the amendment would prevent political victimization as false charges can be filed against a person. In light of huge public pressure, the bill was subsequently withdrawn.
Dilution of Office of Profit Clause has also been observed in multiple cases where persons holding important political position and office of profit simultaneously are exempted from disqualification by passing a law that specifically protects them from disqualification. Article 102(1)(a) of Constitution says that a person holding Office of Profit will be disqualified unless explicitly exempted by a law made by Parliament or State Legislature. Recently the Delhi Legislature passed a law, subsequently disallowed by President, that said that Parliamentary Secretaries do not hold Office of Profit.
The Court however through several verdicts has ensured that the disqualification of MP and MLA procedure functions as a much needed deterrent as it has passed several orders in this regard
a) In UoI v/s Association for Democratic Reforms, 2002 case, the Supreme Court made it mandatory for candidates to provide a comprehensive list of information at the time of filing nomination. In Ramesh Dalal v/s UoI 2005 case, the Supreme Court held that any person facing criminal charge at the time of filing nomination shall not be allowed to contest election.
b) In 2015, Supreme Court held that even after a Returning Officer has declared the result, the election can be nullified if candidate has not disclosed criminal records
c) In 1997, SC directed all HCs to not suspend the conviction but only the sentence in case of appeal, a provision that was also tried to be nullified by the proposed 2013 amendment to RPA 1951
d) The Court has also tried to make the election process more transparent and fair by upholding NOTA in PUCL vs UoI 2013 case, directed all courts to fast track the judicial process in cases involving convicted legislators in PIL Foundation v/s UoI case 2014
Criminalization of politics is a huge issue that needs to be resolved and any effort to dilute the already existing measures of disqualification is met with huge public outcry signifying the strength of our democracy. The Election Commission is also concerned with the issue and has taken the following steps/ suggested measures to deal with this issue
a) In 1998, ECI directed all ROs to pay heed to the 1997 judgment of SC
b) It has suggested the following reforms
1. Introduction of Two Ballot Electoral System to replace the current FPTP system
2. Right to Reject for voters
3. Suggested that all people who have been convicted by an enquiry committee shall not be allowed to contest elections till acquitted in a court of law
4. People convicted for serious offence (>5 years) shall not be allowed to contest elections if charges are framed by a judicial magistrate
5. Increasing the duration of conviction under Article 125(4) of RPA 1951 for providing wrong information, from 6 months to 2 years for the disqualification provision under RPA 1951 to take effect