Should One be Barred From Contesting Elections Even After Their Sentences have been Served?

In response to a PIL filed by BJP member and advocate, Ashwini Kumar Upadhyay, the Supreme Court commented on February 12, that if a convicted person cannot contest in elections, how can he be allowed to form a political party? What a person cannot do individually, how can he be allowed to do so collectively? The PIL had been filed in November 2017 and on December 1, 2017, the Supreme Court had issued an Order wherein the Court had framed the issue to be decided as ‘whether a person otherwise disqualified from contesting elections can form and register a political party.’ The February 12 Order called for the Union of India to file a counter affidavit within two weeks and set the matter to be listed for final disposal on March 26, 2018.

The petition had prayed that the Court issue a writ of mandamus to;

1. “ban the convicted person from forming a political party and becoming political office bearer, for the period, he is disqualified for registration in electoral roll under section 16 of the RPA, 1950, contesting election under sections 8, 8A, 9, 9A, 10, or 10A of the RPA, 1951, disqualified for voting under section 11A of the RPA, 1951, disqualified for being election agent under section 41 of the RPA, 1951, or forfeit his right to vote under section 62 of the RPA 1951;”

2. “in the alternative, declare section 29A of the RPA, 1951, arbitrary, irrational and ultra-vires the Constitution and authorize the Election Commission of India for registration and deregistration of political parties as suggested by the Goswami Committee on Electoral Reforms”.

In short, the petition seeks to restrict persons who have been disqualified from contesting elections for an exhaustive list of offences;

1. Violation of laws in the IPC regarding communal harmony, rape, and cruelty towards a wife.

2. Preaching or promoting untouchability,

3. Importing or exporting prohibited goods,

4. Being a member of an association banned under the Unlawful Activities (Prevention) Act, 1967.

5. Being barred from voting or being an election agent

6. As well as violations of the Foreign Exchange (Regulation) Act, 1973, the Narcotic Drugs and Psychotropic Substances Act,1985 , the Terrorism and Disruptive Activities Act, 1987, The Religious Institutions (Prevention of Misuse) Act, 1988, election offences (communal, booth capturing, rigging, etc), The Places of Worship (Special Provisions) Act, 1991, Prevention of Insults to National Honour Act, 1971, Commission of Sati (Prevention) Act, 1987, Prevention of Corruption Act, 1988, Prevention of Terrorism Act, 2002, hoarding or profiteering, adulteration of foods, and the Dowry Prohibition Act, 1961.

The other prayer is for the deletion of section 29A of the Representation of the People Act, 1951, which empowers the Election Commission of India to register political parties but does not provide for deregistration. A reference has been made to the Goswami Committee on Electoral Reforms. The Goswami Committee report in one of its recommendations sought the deletion of section 29A and a new legislation to be introduced which would empower the ECI to register as well as deregister political parties within the parameters laid down in the legislation. While the Court in its order on December 1, 2017, declined to consider declaring section 29A ultra-vires the Constitution, the Election Commission in its counter affidavit, in no uncertain terms viewed the striking down of section 29A.

The first prayer which was considered by the Supreme Court is problematic on several counts. Firstly, a government in power can slap several charges on the members of opposition parties for political activism. For example, taking out a dharna to protest against a government policy can result in charges under section 141 to 145 of the IPC which refer to unlawful assemblies, 146 to 148 which refer to rioting and section 186 which refers to obstructing a public servant in discharge of public functions among others. Furthermore, in several instances, the CBI has been used as a tool of the party in power to institute an investigation against political opponents, more to discredit rather than prosecute. In this regard, charges under the Prevention of Corruption Act can be slapped on political opponents. Therefore, when the existing institutions have been misused by governments in power, by raising the penalty to be faced in the event of a conviction for offences against under the laws mentioned in the Representation of the People Act, 1951, the final effect can only be speculated to be the erosion of democracy.

The second issue is about the status of a person after serving a sentence. The prevailing theory of punishment in India is that of the reformative theory of punishment. The reformative theory of punishment views the purpose of punishment as a means to alter the behaviour of the convict so that upon release the convict can then become a productive member of society. This theory of punishment was expressed in the State of Maharashtra vs. Nisar Ramzan Sayyed a judgement of the Supreme Court in April 2017. In this case, the Supreme Court took note of the Law Commission Report on Death Penalty, stating that the death penalty goes against the reformative theory of punishment and hence the death penalty of the accused was commuted to life imprisonment.

Given that this theory of punishment currently prevails in the Indian judicial system, by its very essence it is difficult to comprehend how a person upon conviction can be barred from political participation for life. The Representation of the People Act, 1951 does contain provisions barring a person from standing for office as well as from being an elector for a period of six years after the sentence for offences contained in the Act have been served. This penalty by itself goes against the reformative theory of punishment, and by making the ban for life, the extent of punishment goes beyond the sentence imposed by the court. By barring a person from political participation after serving a sentence, the Court would end up serving two sentences for the same offence.

Further, there are instances of former offenders becoming responsible public servants. Pu Laldenga who led the Mizo National Front to a bloody insurgency which even captured Aizawl through Operation Jericho later became the Chief Minister of Mizoram. Phoolan Devi is another example of a former ‘criminal’ turned peoples’ representative. As for current representatives, Pema Khandu through a petition to the NCW has been accused of gangraping a woman along with two other persons in 2008. Rape and gangrape are covered under the grounds for disqualification under section 8 of the Representation of the People Act, 1951. If convicted, the man being projected as the future for Arunachal Pradesh and the Northeast will be barred from politics for six years after conviction. If the prayer of the appellant Ashwini Kumar Upadhyay is granted by the Court, the young Chief Minister could be barred for life.