After the Supreme Court’s twin verdict on convicted and jailed politicians, political parties fear that there will be a sharp increase in the politics of vendetta. Instead of anticipating the future, parties should put pressure on the Centre to dig out the 2004 recommendations of the Election Commission (EC) that suggested that “any person accused of an offence punishable by imprisonment for
five years or more should be disqualified from contesting elections even when trial is pending, provided charges have been framed by the competent court”.
This suggestion is important because politicians often make a mockery of their jail term and pre-election affidavits. Here’s an example: criminal-turned-politician Atique Ahmad listed his criminal history (35 cases) in his affidavit for the 2004 polls. A month later, he entered Parliament as a member of the 14th Lok Sabha from Phulpur, the prestigious seat won by the country’s first PM Jawaharlal Nehru in the first elections held after Independence. However, Ahmad spent most of his tenure in jail and was released on bail in 2012. That didn’t stop him from contesting yet another election in Uttar Pradesh in 2012. There are several such cases.
The listing of criminal cases in the nomination papers became mandatory in 1997. It acquired legal sanctity in 2000 after the Allahabad High Court ruled that “all nominations would have to be necessarily accompanied with such an affidavit, the absence of which can even become the basis for the rejection of the petition”.
Reacting to the judgment, former additional solicitor general RN Trivedi said: “This is a landmark judgment and would strengthen the EC in its mission to eradicate criminalisation of elections.” The petitioner in the case was HK Lal, a former vice-chancellor of a Bihar university, whose nomination from Lucknow in 1999 against former PM AB Vajpayee was rejected on the ground that he had not submitted the affidavit. Lal had argued that since the EC had no authority to constitute law, he was not bound by its directives.
Later in July 2004, the EC in the list of recommendations submitted to Prime Minister Manmohan Singh suggested that ‘any person accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting elections even when trial is pending, provided charges have been framed by the competent court”. The EC said such a step would go a long way in cleansing the system and would protect the sanctity of the legislative houses. However, the UPA did not act on the recommendations.
The counter-view to this proposal is that a person is innocent until proven guilty. But the EC was of the view that keeping out a person, who is facing criminal charges and where the court is prima facie satisfied about his involvement in the crime and has framed charges, from the electoral arena would be a reasonable restriction in the greater public interest. However, as a precaution against motivated cases by the ruling party, it may be provided that only those cases, which were filed prior to six months before an election, would lead to disqualification.
In 2009, while the elections were on, the Patna High Court passed an order that persons behind bars cannot contest elections. On the basis of an application moved by the EC, this order was stayed by the Supreme Court with the observation that the HC could not have passed the order during the course of the election process.
The apex court has now taken the second step. Now it is for the government to take the last major step to cleanse the system. But does the UPA have the stomach for it?