THE REPRESENTATION OF THE PEOPLE (AMENDMENT) BILL, 2002
It has been claimed that the Representation of The People (Amendment) Bill, 2002 (the Bill), which has been drafted by the Government with such unseemly haste, is an attempt to settle the long-standing issue of debarring the criminals from entering into our legislatures. The Government should, however, know that in a democratic society, no issue, particularly the one that is of such great public import as the present one, can ever be treated as settled unless it is settled right and unless it is done in consultation with the public.
For the last so many years, the citizens have been demanding amendments in law to debar the entry of criminals into our legislatures. The existing provisions in the Representation of the Principal Act, 1951 (the principal Act) disqualify a person from gaining entry into the legislatures only if he is convicted of an offence specified in Section 8 or found guilty of a corrupt practice. The existing law has failed to prevent entry of criminals, which is obvious from the fact that so many of them have become “disciplined members” of political parties and have won elections to “serve the public”. The fault lies not only with the election laws but with the way our criminal justice system has been functioning. Besides being slow, cumbersome and dilatory, the system has failed to bring the rich and powerful people to justice. It is not the rule of law but the rule of power and politics that has prevailed.
The Supreme Court’s order of May 2, implemented through the Election Commission’s guidelines of June 28, does not deal with the disqualification issue. All it says is that a citizen has a right to know a candidate’s criminal background, assets and liabilities and educational qualifications so that he can make an informed choice before casting his vote. The idea of disclosing information appears to have unnerved the politicians so greatly that they immediately closed ranks and urged its rejection. The Bill inserts a new clause in the principal Act (Section 33 A), which says that a candidate is required to furnish information only under the Act and the rules and no decree, order or direction of any court or Election Commission in this respect needs to be complied with.
The Bill makes a concession and requires a candidate to inform by filing an affidavit along with his nomination papers if he is accused of any offence punishable with imprisonment for more than two years in a pending case where the charge has been framed by a competent court. While the Amendment Bill provides for a penalty in the form of imprisonment for filing a false affidavit, this has not been included separately and specifically as a “corrupt practice” under Section 123 of the principal Act.
The Bill indicates that the politicians are more afraid of declaring their assets and liabilities and their criminal background than being charged in a court of law with having committed heinous offences. They are fully aware that the way our police and courts function, it takes years before charges are framed by courts in criminal proceedings, if at all the cases against politicians reach that stage. For a criminal case against a politician to reach the court, it is necessary to have a police force, which is insulated from illegitimate political control and pressures. Do we have such a police force? One need not go to Gujarat to answer NO. Thus presently, it will be one of the rarest of rare cases when a politician still holding some position of power is taken in a criminal proceeding to a stage where he has to face charges framed by a court of law not once but twice.
Declaration of assets, however, is a different ball game altogether, raising questions of how he has acquired them. A recent study done by a research organisation of Delhi has shown that a person to win elections has to be ‘superrich.’ Probably another study can be done by the same organisation to find if winning elections is the major way to become superrich.
Though a citizen’s right to have full information about the candidates’ background is not being recognised by law, the Bill makes a fraudulent attempt to convey that its purpose is to debar criminals from entering into legislatures. It adds Section 8B to the principal Act, which would have the effect of disqualifying a person against whom (i) charges have been framed by a competent court (ii) in two separate criminal proceedings, showing his involvement (iii) in “heinous offences” and this should have been done at least (iv) six months prior to the date of filing nomination papers. There are some peculiar features of this amendment, which need to be noted. One, the person to be disqualified must be involved in two separate criminal proceedings. One is not enough. If a person is charged by a court with having committed “heinous offences” in only one criminal proceeding, he will not be disqualified. There is also a proviso to this Section, which says that any criminal proceeding which is stayed will not be taken into account. If the concerned person succeeds in getting one of the criminal proceedings stayed, he will not be disqualified. Two, the offence must be heinous; an ordinary offence will not do. In other words, besides being a recidivist, he must belong to the hardcore category of criminals. Three, the “heinous offences”, as defined in the Bill, includes waging or attempting or abetting waging of war against the Government of India, murder, kidnapping or abducting in order to murder, or for ransom, rape, custodial rape, dacoity, drug peddling and a few specified offences under POTA. The person concerned can jolly well keep on committing other offences under IPC, like robbery, arson, riots, grievous hurt, extortion etc or under other local and special laws, like possessing or manufacturing arms and explosives, trafficking in women, illicit bootlegging, smuggling or amassing assets disproportionate to his income through corrupt means etc. He can rest assured that he will not be disqualified under this Bill.
Can any piece of legislation be more fake than this? But then, if it were not for such absurd attempts of the government to put wool over our eyes, we would have nothing left to laugh at.
(Original version of article published in the Indian Express dated 21.08.2002)
