Law Commission Recommends Disqualification Of Politicians On Framing Of Charges It merits immense significance that the Law Commission just recently in its latest report has very strongly recommended that politicians be disqualified from contesting elections once charges are framed against them in the court.But it has also added a rider by suggesting substantial safeguards to prevent misuse of this provision. Very rightly so because very often laws are misused rather than used as we all have seen in the case of Section 498A of IPC.

Let me bring out here that in its 244th report submitted to the Union Ministry of Law and Justice, the Law Commission has also suggested an enhanced sentence of two years under the Representation of the People's Act, 1951, for filing of false affidavits by politicians and disqualification on such conviction. The report titled Electoral Disqualifications, has been placed before the Supreme Court in the matter of Public Interest Foundation vs Union of India. In this very case, the Apex Court has requested the Law Commission to examine the two issues and submit its report to the Union Government.

Let me also shed light here on the pertinent fact that the Law Commission headed by Justice AP Shah who is former Chief Justice of Delhi High Court considering the request of Supreme Court decided to hold detailed discussions and meetings with a cross-section of stakeholders and general public, as well as internal deliberations, including a national consultation, before preparing its recommendations. Justice Shah categorically said that the political class doesn't seem to be serious about electoral reforms.

He said that this was one of the reason why criminal elements entered politics and tainted money came into the economy. He said that when the law panel called a meeting of major parties for consultation and held a national level seminar on February 1 on this subject, just before responding to the Supreme Court on the issue of disqualification of charge sheeted politicians from contesting elections, all the major parties, including the AAP, BJP and Congress did not attend the meet, and neither did they send any representation.

Justice Shah was at pains to point out that, Institutional integrity is important to preserve. Criminals should not be allowed to get elected to assemblies and Parliament as that will weaken these institutions.

The panel had in its opinion very strongly backed disqualification of candidates against whom a court has framed charges for serious offences like rape, murder etc. However, the Apex Court has kept the case sub-judice with an interim order saying trials against lawmakers facing serious charges should be completed in a time bound period of one year.

Let me also highlight here that against the existing legal provision of disqualification upon conviction in a criminal case, the Law Commission stated that disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, had a significant potential for curbing the spread of criminalisation of politics. The 54 page report pointed out that:
The stage of framing of charges is based on adequate levels of judicial scrutiny and added that the filing of police report under Section 173 of the Cr PC was not an appropriate stage to introduce disqualification because of lack of sufficient application of judicial mind at this point.

The Law Commission was at pains to point out that disqualification on conviction had proved to be incapable of curbing the growing criminalisation of politics because of long delays in trials and 'rare convictions'. It further noted that the law needed to evolve to pose an effective deterrence and prevent subversion of the process of justice. While enumerating the safeguards, the Commission has suggested bringing only those offences which have a punishment of five years or above within the remit of disqualification.

Charges filed up to one year before the date of scrutiny of nominations will not lead to disqualification, and disqualification will operate till an acquittal by the trial court, or for six years, whichever is earlier.
The Law Commission also suggested that for charges framed against sitting MPs and MLAs, the trial must be expedited through day-to-day hearing and concluded within a year. The Supreme Court has accordingly accepted this suggestion and passed an order directing that all pending trials against MPs/MLAs be completed within a year.

According to another recommendation made by the Commission, persons with charges pending on the date of the law coming into force must be disqualified from contesting future elections, unless such charges are framed less than one year before the date of scrutiny of nomination papers or the person is a sitting MP or MLA at the time of enactment of the Act. The report suggested that a gap of one year be introduced between the last date for filing of nomination papers and the date of scrutiny, to give them adequate time for filing of objections.

Justice Shah was at extreme pain to point out that:
All earlier suggestions made by the Law Commission on electoral reforms remain unimplemented. Particularly on decriminalization of politics, the 1999 report had made several suggestions but no government took any action. This is one of the reasons why criminal elements enter politics and tainted money comes into the economy. In 1999, it was suggested to disqualify chargesheeted politicians from participating in elections.

Justice Shah minced no words in warning the nation that:
These criminal elements have the potential to subvert the judicial process and as a result you can see trials are delayed for several years and that is the reason why the rate of conviction is less. Earlier there was unhealthy connection between politicians and underworld. Now these criminals are seeking elections themselves.

He further lamented that:
Even after the Lily Thomas judgment of the Supreme Court ( which struck down Section 8(4) of the RP Act disqualifying a convicted MP/MLA from membership of the House ) there has been only three disqualifications so far.

He also voiced his grave concerns over how the number of lawmakers facing serious criminal charges are frighteningly high and more than 160 MPs in the last Lok Sabha were those who had serious criminal charges against them. He emphasized that law breakers should not be allowed to become law makers.

No one can ever dispute what Justice AP Shah has recommended and said. It is a national tragedy that for getting any job from a soldier to IAS or Judge or any other, there is proper police verification done and if someone wrongly out of jealousy gets the name of any candidate reported in a criminal case in any police station, he/she is immediately barred from getting the job.

But if the same candidate wants to become an MP/MLA, he has been vested the right to rape as many women as he likes, become a Phoolan Devi or Malkhan Singh and yet enter Parliament and can contest election even from jail ! They can openly hold talks and dialogues with terrorists who get very rigorous training in various training camps on how best to mercilessly kill our soldiers, people etc by ISI, Pakistani army and other foreign countries and declare ceasefire with them and hostile nations like Pakistan even as our soldiers die fighting with them but no one is bothered for them except for namesake in official functions ! This open mockery of our Constituion and law must stop now itself ! Parliament and politicians cannot be above the Constitution and the law of the land !

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut -250001, UP.