With the public gaze resting so determinedly on politicians involved in crimes against women, some political parties have announced that they will not henceforth field such candidates. Some well meaning social activists have filed PILs in the Supreme Court, seeking suspension of MPS and MLAs with cases of crimes against women pending against them. The Supreme Court has declined the prayer, the matter being outside its jurisdiction.
But why must we hold our breath and wait for political parties to display the good sense to not field criminals as candidates when that's something that they have not done for several decades? Why must we appeal to the courts for relief ? Why do we not demand a legal provision for disqualifying those candidates and elected representatives who have pending criminal cases?
The qualifications and disqualifications for the people's elected representatives are laid down in the Representation of The People Act, 1951 ( the Act ). At present, the law provides for disqualification of only those candidates and MPs/MLAs who are convicted of serious crimes. Because there are long delays in criminal courts, this means that people accused of serious crimes become and remain MPs/MLAs. If the disqualification clause were to kick in before the conviction, we would in one stroke be rid of such elected representatives.
More than a year ago (4rth August, 2011), The Times of India had reported that there is a move to amend the Representation of the People Act, 1951 along these lines; the move appears to have sunk without a trace.
What is being proposed is that the Representation of the People Act, 1951 be amended so that elected representatives or candidates against whom the court has framed charges involving serious crimes are disqualified from office and contesting election respectively.
Such a provision will remove the anomaly that MPs/MLAs who have been arrested and against whom investigations have concluded and charges framed in serious crimes continue to participate in parliamentary/government business and to draw salary, perquisites and privileges. Even when an MLA/MP gets convicted, he does not get disqualified till the appeals that he files against the judgement are finally disposed of. The corporate sector would not employ such a person and if he were a government employee, he would be placed under suspension/dismissed. Our elected representatives and political aspirants, however, enjoy a different status ----the irony is that rather than the standard of probity, it is the level of immunity from the consequences of criminal activity which is higher in their case!
The bogey that is raised against such a provision in the Representation of People Act is that it will be abused by political rivals who, it is said, may get false/bogus FIRs registered or complaints filed in order to wreck the political aspirations of their rivals.
However, if one looks at the various stages of criminal proceedings in India, it becomes clear that this is an exaggerated and baseless apprehension. If an FIR or complaint is registered with mala fide and without sufficient ground, the case will not reach the stage of framing of charges, which is the stage at which it is proposed that disqualification clause under the Representation of the People Act should kick in.
Stages of criminal proceedings
The Code of Criminal Procedure, 1973 (the CrPC) is the procedural law vis a vis the substantive criminal laws, such as the Indian Penal Code, 1860, the Prevention of Corruption Act, and other laws that criminalise specific acts of omission or commission and lay down the penalty for such crimes. It divides the procedure to be followed in criminal cases into three stages ---- investigation, inquiry, and trial.
Investigation is the preliminary stage and begins after the recording of a First Information Report (FIR) in the police station. It includes all the action taken by the police officer for collecting evidence, ascertaining facts and circumstance, arresting the suspected offender, examination of various persons including the accused, recording their statements in writing, search and seizure, and formation of opinion as to whether, on the basis of the material collected, there is a case to place the accused before a magistrate for trial and if so, taking the necessary steps for filing the charge-sheet. Investigation ends in a police report to the court.
The court sifts and weighs the evidence placed before it to find out whether or not there is a prima facie case against the accused person(s). If, after considering the material placed before it and hearing the accused person and the prosecution , the judge considers that there is no ground or insufficient ground for proceeding, he discharges the accused . In case the material placed before the court discloses grave suspicion against the accused , the court frames the charge. A charge sets out the offence that was allegedly committed by the accused person.
Now the charge is read over and explained to the accused. If the accused pleads guilty, the judge records the plea and may convict him.If the accused pleads not guilty , the trial begins and examination of witnesses, cross examination, examination of the accused by the court etc take place. If after taking the evidence for the prosecution and examining the accused, the judge considers that there is no evidence that the accused has committed the offence, he acquits the accused. Otherwise, a defence is entered, evidence adduced in its support and witnesses produced. After conclusion of arguments by the prosecutor and defence, the court pronounces a judgment in the trial.
As of now, the disqualification clause kicks in after stage 3 , what is proposed is that it gets set into motion after stage 2. Obviously, if a mala fide FIR has been registered by a political opponent, no charges will be framed by the court against the MP/MLA/candidate. Therefore, the argument that such an amendment will be abused by political opponents is baseless and merits not even a second look.
Why then are political parties wary of even talking about such an amendment? Because 31% of our MPs/MLAs have pending criminal cases and would be immediately disqualified!