Breaking; Disqualify the MPs/MLAs when the charges are framed against them in a Criminal Case; Law Commission to SC, Govt. [Read the Full Report]

Justice Ajit Prakash Sha started his innings as the Chairman of the Law Commission of India filing the landmark report on Electoral Disqualifications. Law Commission of India filed its 244th report recommending landmark reforms on Indian Election laws. The Ministry of Law and Justice, Government of India had addressed a letter dated 16th January, 2013 requesting the Twentieth Law Commission to consider the issue of 'Electoral Reforms' in its entirety and suggest comprehensive measures for changes in the law.While the Commission was working towards suggesting its recommendations to the Government on reforms in electoral laws, W.P. (Civil) No. 536 of 2011 titled Public Interest Foundation. v. Union of India, a public interest litigation (PIL)was filed in the Supreme Court in the year 2011 praying inter alia for guidelines or framework to be laid down by the Court to deal with the menace of criminalization of politics and debar those charged with serious offences from contesting elections. The Hon'ble Supreme Court in the above noted matter has, on 16th December, 2013, taken note of the Consultation Paper prepared and circulated by the Commission. Appreciating that the Commission may take some time for submitting a comprehensive report on all the aspects of electoral reforms, the Court in its order dated 16th December, 2013 in the aforementioned petition, has observed that "the issues with regard to de-criminalization of politics and disqualification for filing false affidavits deserve priority and immediate consideration" and accordingly directed the Law Commission to "expedite consideration on the two issues, namely,"1. Whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal Procedure? [Issue No. 3.1(ii) of the Consultation Paper], and2. Whether filing of false affidavits under Section 125A of the Representation of the People Act, 1951 should be a ground for disqualification? And if yes, what mode and mechanism needs to be provided for adjudication on the veracity of the affidavit? [Issue No. 3.5 of the Consultation Paper]"The matter was accordingly adjourned for three months within which period the Law Commission was expected to submit its response on the aforesaid two issues to the Government of India to be forwarded to the Hon'ble Court. It is in these circumstances the commission filed this report before the Supreme Court. Live Law Report here. RECOMMENDATIONS In light of the above discussions, the Law Commission makes the following recommendations on the two issues considered in this report in accordance with the directions of the Hon'ble Supreme Court in its order dated 16th December, 2013 in Public Interest Foundation &Ors. V. Union of India and Anr, (W/P Civil No. 536 of 2011):I. Whether disqualification should be triggered upon conviction as it exists today or upon framing of charges by the court or upon the presentation of the report by the Investigating Officer under Section 173 of the Code of Criminal Procedure?1. Disqualification upon conviction has proved to be incapable of curbing the growing criminalisation of politics, owing to long delays in trials and rare convictions. The law needs to evolve to pose an effective deterrence, and to prevent subversion of the process of justice.2. The filing of the police report under Section 173 Cr.PC is not an appropriate stage to introduce electoral disqualifications owing to the lack of sufficient application of judicial mind at this stage.3. The stage of framing of charges is based on adequate levels of judicial scrutiny, and disqualification at the stage of charging, if accompanied by substantial attendant legal safeguards to prevent misuse, has significant potential in curbing the spread of criminalization of politics.4. The following safeguards must be incorporated into the disqualification for framing of charges owing to potential for misuse, concern of lack of remedy for the accused and the sanctity of criminal jurisprudence:i. Only offences which have a maximum punishment of five years or above ought to be included within the remit of this provision.ii. Charges filed up to one year before the date of scrutiny of nominations for an election will not lead to disqualification.iii. The disqualification will operate till an acquittal by the trial court, or for a period of six years, whichever is earlier.iv. For charges framed against sitting MPs/ MLAs, the trials must be expedited so that they are conducted on a day-to-day basis and concluded within a 1- year period. If trial not concluded within a one year period then one of the following consequences ought to ensue:- The MP/ MLA may be disqualified at the expiry of the one-year period; OR- The MP/ MLA's right to vote in the House as a member, remuneration and other perquisites attaching to their office shall be ...

Breaking; Disqualify the MPs/MLAs when the charges are framed against them in a Criminal Case; Law Commission to SC, Govt. [Read the Full Report]

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