The disturbing trend of ‘criminalisation of politics’ – which is simply or rather simplistically understood, as being the criminalisation of our elected representative bodies i.e., Parliament, state assemblies and other representative bodies – has engaged considerable attention of the Indian citizenry, for reasons that are too obvious to require any explanation here.

When concerns around this issue were raised over a period of time, before the most important forum within the judiciary, the Supreme Court, some interesting pronouncements have come our way. Evidently, they have made an impact on the electoral process, even  though it is debatable whether such judicial interventions have facilitated cleansing of our parliamentary institutions – more specifically, whether we have a better choice of candidates representing us in the Parliament and Assemblies today.

2002 judgment: declaring criminal cases made compulsory

One of the most formidable of judicial interventions in this direction came in the Association for Democratic Reforms (ADR) case (2002) decided by the Supreme Court. This decision made it mandatory for each candidate who intends to become either an MLA, MLC or MP to give details of his/her and his/her family’s assets to the Election Commission, as a pre-requisite to filing his/her nomination to contest such elections. It was also made compulsory for such candidates to give full details of his/her past criminal conviction/s and/or of pending criminal case/s. (Please note that the meaning of the phrase, ‘pending criminal case’ is noteworthy and it has been explained later)

The Election Commission was acknowledged as having the monitoring role, so far as filing of these particulars in the form of a declaration in an affidavit by the candidate was concerned. Thanks to this process, now the electorate comes to know, well in advance, the background of the candidates, from whom the representatives will have to be chosen.

Convicted to be disqualified immediately

Most recent judicial development in this area is the decision of the Supreme Court in Lily Thomas case (July 2013) on immediate disqualification of MPs, MLAs and MLCs upon conviction by a court in a criminal case.

The Lily Thomas decision addressed a grave anomaly in the electoral law of this country. The anomaly that existed in the law was simply this:

A person who had been convicted under specific provisions (some, not every) of the Indian Penal Code and other special penal legislations such as the Prevention of Corruption Act, etc. was disqualified from contesting elections for a period of six years from the date of conviction, but a person who was already an electoral representative  on the date of criminal conviction, would however not suffer from immediate disqualification as MLA, MLC or MP, as the case may be. Instead, the operation of his disqualification would start after the lapse of three months from the date of conviction or if an appeal is filed before a higher court, only after the case is disposed of by the courts of appeal upholding the conviction by the lower court. So mere filing of an appeal was sufficient temporary protection against disqualification.

For example, if a criminal case was registered against a person in the first year of becoming an MLA and the trial commenced in the criminal court, which ultimately resulted in his/her conviction, he/she would not be disqualified automatically so long as he/she preferred an appeal and the appeal was pending for hearing and judgment. Given that the appeals in criminal cases take about two to three years, or in some cases even more time, there is every likelihood that this person would have completed his/her entire term as MLA and thus the stricture of ‘disqualification’ in election law rendered thoroughly meaningless.

In this backdrop, the strongest of arguments advanced by the petitioners – social activist Lily Thomas and an NGO, Lok Prahari- was to the effect that there is a glaring contradiction in law, since the same law that prescribes criminal conviction as a disqualification to become an electoral representative cannot protect an electoral representative; and aid him/her in avoiding the consequences or bearing the responsibilities of criminal conviction. The Supreme Court agreed with this contention in entirety and held, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature.

Not the end of the road for convicted

This judgment and the general views about it, may have given an impression to a person from non-legal background that all avenues and recourses to a convicted elected representative would be closed after his/her conviction in a criminal case. Incidentally, it is not so.

This judgment does not and cannot take away the right to appeal, to a superior court against the order of conviction, by anyone including an elected representative. Consequently, an elected representative will also have a right, like any other convict, to seek a remedy in law called, the ‘suspension of conviction and of sentence’ during the period an appeal is pending.

Of course, the suspension of conviction or sentence is not done routinely by any court of appeal, but would depend on the seriousness of the offence, etc. To that extent, it would make a convicted elected representative more open than before to automatic disqualification as soon as his/her plea for suspension of order  of conviction and sentence is turned down by a court of appeal.

Who will be disqualified to continue, if convicted?

If this be the law in the book and on paper, what would it entail for some of our MLAs including MLAs from Bangalore?

There are, in all, 74 MLAs from the state, against whom criminal cases are said to be pending as per the records maintained by National Election Watch, a wing of ADR, out of which, a considerable 11 MLAs represent various constituencies in Bangalore. (Click here to check the full list of MLAs with criminal cases.)

What this decision portends to these MLAs is, legally speaking, more complex than  easily comprehensible.

What is a pending criminal case?

Firstly, a mere filing of criminal complaint against an MLA/MP, without a criminal court taking cognizance of the offences, without framing of charges by such court, cannot be called as a pending criminal case especially for considerations under election law. This is because, right at the beginning, at the important stages in criminal prosecution, namely ‘taking of cognizance of offences’, or ‘framing of charges’, a case may be closed by the courts, if, on the face of the allegations of complaint, no criminal offence is made out,. In fact, until cognizance is taken of offences by a criminal court, a person would not even be considered an accused in law.

For this reason alone, some of the names should go out of the list prepared by the National Election Watch and some may or may not find entry in the list. For example, R Ashoka from Padmanabhanagar constituency would have to go out of the list, since no cognizance has been taken in the declared cases; Zameer Ahmed Khan, MLA of the Chamarajpet constituency will be left out, since no charges are framed.

Not all convictions attract disqualification

Secondly, not all offences/sections of IPC or other sections of penal law will be applicable to attract disqualification. For instance, all the cases pending against Y.S.V.Datta, MLA from Kadur are under Section 138, of Negotiable Instruments Act (NI Act), popularly called as ‘cheque bounce cases’. Even conviction under NI Act would not entail disqualification under the prevailing election law, because only if the punishment is for more than two years it would carry relevance in election law concerning disqualification.

Poignantly, while the concept of criminalisation of politics in the eyes of citizens at large, is based on apparently grave misuse of power and state machinery by the elected representatives; as the discussion above would reveal, our law does not reflect the same view in identical terms, due to some justifiable reasons, and some limitations of the law itself.

Here is a list of Bangalore MLAs, as per National Election Watch records, stated to have criminal cases against them, and the punishment that may be imposed on them, if declared guilty by the court:

* This table has been compiled after analysing the affidavits declared by the MLAs to the Election Commission, during 2013 Assembly elections, as documented by Association for Democratic Reforms. Any other case filed against any of these/other MLAs after the declaration of affidavit hasn’t been taken into consideration.

Some observations:

• Not declaring the criminal cases after charges have been framed by court is itself an offence under criminal law. Therefore, there are examples of political leaders like H D Kumaraswamy, not declaring criminal cases because cognizance have not been taken or charges not framed by the criminal court which is acceptable under the prevailing election law because they would not be considered as ‘accused’ as per law.
• The existing MPs/ MLAs who have been convicted and completed the jail term are ineligible to contest the elections for six years from the date of release. If they have already completed six years, they can contest.
• If conviction results in imposition of only fine, but not imprisonment, then such person/s can contest an election after six years from the date of conviction.

Why does the law exclude councilors/corporators ?

Corporators are people’ representatives but they do not come under the Representation of People’s Act. They are not independent law makers unlike MLA, MLC and MP. They are part of the process of decentralisation of powers. All corporations in cities and Panchayats in the rural areas exercise powers delegated by the State Legislature. They are governed by the Karnataka Municipal Corporations Act and elections are held by the State Election Commission, not Central Election Commission.