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]

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], and

2. 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?

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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:

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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  suspended at the expiry of the one-year period.

5. Disqualification in the above manner must apply retroactively as well. Persons with  charges pending (punishable by 5 years or more) on the date of the law coming into  effect must be disqualified from contesting future elections, unless such charges are  framed less than one year before the date of scrutiny of nomination papers for  elections or the person is a sitting MP/MLA at the time of enactment of the Act.  Such disqualification must take place irrespective of when the charge was framed.

 II. 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? ”

1. There is large-scale violation of the laws on candidate affidavits owing to lack of sufficient legal consequences. As a result, the following changes should be made to the RPA:

i. Introduce enhanced sentence of a minimum of two years under Section 125A of the RPA Act on offence of filing false affidavits

ii. Include conviction under Section 125A as a ground of disqualification under Section 8(1) of the RPA.

iii. Include the offence of filing false affidavit as a corrupt practice under S. 123 of the RPA.

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2. Since conviction under Section 125A is necessary for disqualification under Section  8 to be triggered, the Supreme Court may be pleased to order that in all trials under  Section 125A, the relevant court conducts the trial on a day-to-day basis

3. A gap of one week should be introduced between the last date for filing nomination papers and the date of scrutiny, to give adequate time for the filing of objections to nomination papers

PROPOSED LEGISLATIVE CHANGES

In order to implement the aforesaid recommendations, the following legislative reforms are suggested:

(i) Amendments on disqualification upon framing of charges

The Law Commission proposes that a new section (Section 8B) be inserted in the RPA after Section 8A. It should read:

“8B. Disqualification on framing of charge for certain offences. - (1) A person against whom a charge has been framed by a competent court for an offence punishable by at least five years imprisonment shall be disqualified from the date of framing the charge for a period of six years, or till the date of quashing of charge or acquittal, whichever is earlier.

(2) Notwithstanding anything contained in this Act, nothing in sub-section (1) shall apply to a person: (i) Who holds office as a Member of Parliament, State Legislative Assembly or Legislative Council at the date of enactment of this provision, or (ii) Against whom a charge has been framed for an offence punishable by at least five years imprisonment; (a) Less than one year before the date of scrutiny of nominations for an election under Section 36, in relation to that election; (b) At a time when such person holds office as a Member of Parliament, State Legislative Assembly or Legislative Council, and has been elected to such office after the enactment of these provisions;

(3) For Members of Parliament, State Legislative Assembly or Legislative Council covered by clause (ii) of sub-section (2), they shall be disqualified at the expiry of one year from the date of framing of charge or date of election, whichever is later, unless they have been acquitted in the said period or the relevant charge against them has been quashed. OR (3) For Members of Parliament, State Legislative Assembly or Legislative Council covered by clause (ii) of sub-section (2), their right to vote in the House as a member, remuneration and other perquisites attaching to their office, shall be suspended at the expiry of one year from the date of framing of charge or date of election, whichever is later, unless they have been acquitted in the said period or the relevant charge against them has been quashed.

(4) Any disqualification/ suspension under sub-section (3) shall operate till the dissolution of the House, or for Members of the Rajya Sabha or State Legislative Council, up to the end of their present term as Member.

[Clause 3 is to be read with the direction to be issued by the Supreme Court to all courts that trial of Members of Parliament, State Legislative Assembly or Legislative Council against whom charges have been framed for an offence punishable by at least five years imprisonment shall be expedited and heard on a day-to-day basis with a view to completing the trial in one year from the date of framing of charge or date of election whichever is later.]

“8C. Transitory provision ;A person against whom a charge has been framed by a competent court for an offence punishable by at least five years, before the enactment of this provision irrespective of when the charge was framed, shall, unless exempted under sub-section (2) of Section 8B, be disqualified for a period of six years from the date of enactment of this provision or till the date of quashing of charge or acquittal, whichever is earlier.”

(ii) Amendments on false disclosures

The Law Commission recommends that the following changes be made to the law on false disclosure on affidavits

i. Section 125A of the Representation of the People Act, 1951 should be amended by substituting the words “may extend to six months, or with fine, or with both” with the words “shall not be less than two years, and shall also be liable to fine”. The amended Section 125A would read as follows:

“125A. Penalty for filing false affidavit, etc.—A candidate who himself or through his proposer, with intent to be elected in an election,—

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) give false information which he knows or has reason to believe to be false; or

(iii) conceals any information,

in his nomination paper delivered under sub-section (1) of section 33 or in his affidavit which is required to be delivered under sub-section (2) of section 33A, as the case may be, shall, notwithstanding anything contained in any other law for the time being in force, be punishable with imprisonment for a term which shall not be less than two years, and shall also be liable to fine.”

[Section 125A is to be read with the direction to be issued by the Supreme Court to all courts that trial under Section 125A shall be expedited and heard on a day-to-day basis]

ii. Section 8(1)(i) of the Representation of the People Act, 1951 be amended by inserting the words “or section 125A (penalty for filing false affidavit, etc.)” after the words “section 125 (offence of promoting enmity between classes in connection with the election)”. The amended Section 8(1)(i) would read as follows:

“8. Disqualification on conviction for certain offences. —(1) A person convicted of an offence punishable under—

(a)…(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 125A (penalty for filing false affidavit, etc.) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act.

iii. Section 123 of the Representation of the People Act, 1951 be amended by inserting clause 4A after clause 4 as follows:

“123. Corrupt practices.—The following shall be deemed to be corrupt practices for the purposes of this Act:

(1)…(4A) failure by a candidate to furnish information relating to sub-section (1) of section 33A, or giving of false information which he knows or has reason to believe to the false, or concealment of any information in the nomination paper delivered under subsection (1) of section 33 or in the affidavit delivered under sub-section (2) of section 33A”.

 Read Full Report here