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Casting Out Criminal Candidates

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The on-going battle between the Supreme Court of India and our legislative fathers on the question whether criminals should be law makers ignores the superlative irony that winning elections is a tough task without engaging in criminally culpable conduct. Perhaps the ancestors of our legislative fathers who art in heaven understood this considerably better. And perhaps this is why the Representation of People’s Act 1951 took a great leap of faith and allowed those accused of crimes to contest elections. Let me dispose of the legal principles first.

In substance, under Section 8(1), a person convicted of a whole bunch of offenses (including those under some truly obscure and exotic laws such as Places of Worship Act 1991 and Prevention of Insults to National Honour Act, 1971) isdisqualified from contesting elections for a period of six years from the date of such conviction. Further, under the next sub section, a person convicted of another bunch of offenses (including even more exotic ones such as Commission of Sati Act 1987) is disqualified for six years after release from imprisonment. Finally, the third subsection adds a catch-all generic clause which provides that anyone cast into the slammer for two years or more is also disqualified from contesting elections for a period of six years after he is released from prison. So far so good. The rub comes in Section 8(4) which protects legislators while they appeal their convictions. We can summarize the principle thus:  if a legislator is convicted, it doesn’t take effect till three months after his conviction. If in that period of three months, he appeals the conviction, he is not disqualified till after the appeal has been disposed of. Since criminal cases take a decade to decide and two decades more to appeal and second appeal, basically, no conviction has any impact on any candidate’s electoral prospects! This is what the recent Supreme Court pronouncement is about.

In fairness, I can see the point of such a law. Aspiring democracies around the world, not including BRMP (i.e The Banana Republics of Mango People), are replete with case histories of candidates who have been slapped with contrived cases and then convicted and jailed in order only to prevent them from winning the next election. In some cases, they were hanged too. For more on this, the Bhutto family resident in the Islamic Republic of Pakistan may be a good starting point. General Musharraf’s family may not be such a bad idea either. It won’t hurt to remember Malaysia’s case where another powerful politician was confined to the dungeons for allegedly having unlawful anal knowledge. That electoral politics is globally a dangerous game is well known. That laws ought to protect candidates from the worst excesses of trumped up charges and pre-ordained convictions from Kangaroo courts is not so well understood in our cynical society where criminality is often suspected to be the chief qualification for electoral success. This is no doubt what convinced India’s highest court to rethink this whole matter.

Ensuing events have provided two illuminating highlights. First, in Lily Thomas vs. Union of India [2013(8)SCALE469], the Supreme Court has held that Section 8(4) is unconstitutional. Going forward, any legislator who is convicted of an offense gets disqualified immediately whether or not he files an appeal. No doubt, Mr Lalu Yadav is deeply interested in this development. The principle does not apply to a legislatorwho has been convicted already and has filed an appeal but it does apply to him if he loses again, whether or not he appeal again. It does not end there.

In Chief Election Commissioner Etc. vs. Jan Chaukidar [2013(8)SCALE487], the Supreme Court went on to rule that if you can’t vote in an election, you can’t be a candidate either. Section 62(5) of the Representation of People’s Act states that a person confined in prison or in the lawful custody of the police can’t vote. This doesn’t apply to preventive detention of course meaning you can’t detain your opponent without charge and then use that to deny him the right to seek election to a legislative post. To me, this is by far a much greater paradigm shift. Think about it: there is no concept of conviction here; you only have to be arrested for good reason or bad to find that your political career has been interrupted for the next five years!

No doubt, herds of educated Indians are delighted at this radical swing of the legal pendulum. Section 8 of the Representation of People’s Act has allowed hard core criminals to acquire great legislative power. That is not the same thing as saying that Section 8 is bad law. If the police had great skills in investigating crimes; if the office of the public prosecutor had the best lawyers spearheading the war against ganglord legislators, if the courts were quick to deliver decisions in criminal cases, every hood would get convicted pretty quickly and Section 8 would have done its job of protecting the innocent. If we condemn Section 8, it’s because the ‘system’ does not work and not because it is bad law. In that perspective, the Jan Chaukidar judgment can’t be good. Worse, it is band aid for the mortally wounded.

Why do I say so? I have at least three good reasons. First, it must be the 33 years of legal training but on the principle of it, I don’t like anyone being condemned unheard. This principle remains good across the board and for all matters, not just crimes. If you want to strip any man of his rights, you must tell him why and you must give him an opportunity to persuade you that you are wrong. Our system works on the principle that the police accuse and the courts judge. If an arrest alone ejects you from the electoral process, you have been judged only because you were accused and that is not good law.

Second, the Jan Chaukidar decision has abandoned all attempts to distinguish between bad men and the bad application of law against good men. I’m not being glib. A lot of people get arrested in India for a great many bad reasons - for publishing a book about Shivaji suggesting that historical identities are retrospectively “constructed” (See Quashing Questionable Crimes); for writing a Facebook post supportingDurga Shakti Nagpal’s initiatives against illegal sandmining: for forwarding an email about Didi “disappearing” her nominee minister (See Dour Desis and Diabolical Diatribes) – and the idea that such people should also lose their right to fight an election just seems wrong. To hang the civil rights of one man on the professional compulsions of those who arrest him is indefensible.

But none of the foregoing is the principle area of concern. The real concern is the central principle on which our electoral politics runs.Any democratic society that engages overwhelmingly in distributive politics - as opposed to growth politics - must necessary feature an electoral machine used primarily as a tool for wealth re-distribution. India has been this kind of society since independence. Any short term growth oriented lapse of distributive reasonin our historyhas very quickly been redeemed by more redistributions of wealth! Some of these redistributions of wealth have occurred through the creation of unconscionable laws but clearly, not enough has been done because huge numbers of our people remain powerless and poor. In the face of this reality, what do we expect the electorate to do?

In this environment, political constituencies disbelieve promises of future redistributions: they literally sell their votes for cash. Naturally, any candidate’s ability to win an election is based mainly on the ability to generate this cash. Most means for generating political funds are illegal. Distribution of political funds to buy votesis illegal too. Electoral candidates always run the risk of getting arrested for succumbing to their political compulsions. This means instant disqualification. When elections can’t be won without the illegal use of illegally generated funds, to disqualify those are required to engage in illegality to achieve their ambitionsstrikes me as farce, even more than irony. This makes the quest for a political career into a kind of steeplechase by a half blind athlete over an unknown course on a dark and stormy night.

(The author is managing partner of the Gurgaon-based corporate law firm N South. He is the author of “Winning Legal Wars” and “Bullshit Quotient: Decoding India’s corporate, social and legal Fine Print”. He can be contacted at [email protected]).