By Shreenath Khemka, Partner Atharva Legal LLP

Democracy is the edifice of the Indian Constitution, and the electoral process is its cornerstone. With political experience, it has become evident that democratic success lies in the quality of choice presented to the electorate. The foremost challenge therein has been to keep criminals out of the political system. Whilst specific guidance existed for eighty-sixing criminals from the electorate, under Article 326; no corollary guidance existed for the candidates under Article 102 and 191. Notwithstanding, the Parliament enacted the Representation of Peoples Act 1951 under Articles 102 (1)(e) and 191 (1)(e) read with Article 327.

Section 8 of the 1951 Act disqualified convicts from contesting elections for the period of their sentence, and 6 years therefrom. The reason for the additional 6 years' punitive disqualification or cooling-off period was identified in the Law Commission of India's 244^th Report on Electoral Disqualifications (2014) to prevent a convict from contesting elections for at least one election cycle consequent to his release. This 2014 Report was judicially affirmed by the Apex Court in Public Interest Foundation & Ors. v. Union of India & Anr. WP(C) 536 of 2011.

It must be sighted that there is no blanket disqualification for conviction; unless the conviction was for an enlisted offence, or for a minimum term of 2 years under Section 8 (3). Evermore, pursuant to Lily Thomas v. Union of India & Ors. (2013) 7 SCC 653, a sitting representative convicted of an offence for less than 2 years would continue in the public office, whilst undergoing sentence. This paradoxical position under Section 8 (3) is lis pendens before the Punjab & Haryana High Court in Ganesh Khemka v. Union of India & Anr. CWP-PIL 150 of 2019, wherein the High Court prima facie observed the violation of reasonable classification under Article 14.

Whilst the Election Commission had been entrusted the constitutional mandate for the conduct of elections under Article 324; Section 11 of the 1951 Act conferred an adjudicative mandate. Under Section 11, the Commission has the power to condone any disqualification arising out of the 1951 Act. Although the exercise of Section 11 powers is rare, its exercise qua Section 8 is a black swan—the power being exercised only thrice. Mitrasen Yadav was allowed to contest elections in 1974; whose life imprisonment for double murder was remitted to imprisonment. Shyam Narain Tiwari was allowed to contest elections in 1977; whose death sentence for murder was converted to a life sentence, which was remitted to rigorous imprisonment. Prem Singh Tamang was allowed to contest elections in 2019; who suffered 1-year sentence for corrupt practice under the Prevention of Corruption Act.

Notwithstanding the rarity of its usage, Section 11 creates an inherent tussle qua Section 8. Firstly, Section 11 embodies no fetters, guidance, or principle for the exercise of adjudicative powers. Principally, the Commission acts in the capacity of a criminal court (when dealing with the death penalty) by looking at the set of mitigating factors, social considerations, etc. However, the lack of statutory guidance runs the risk of over-delegation and arbitrariness in exercise. Secondly, Section 11 creates space for potential abuse of the law. Although the Commission has only exercised powers to relax disqualification qua the cooling-off period and not the period under conviction; the carte blanche phraseology allows for the same. Therefore, the Commission is capable of allowing a convict to contest elections, or to hold membership to the House, whilst serving his sentence; the same being ridiculous against the precept of Rule of Law. Thirdly, Section 11 seems to create an unreasonable distinction between convictions arising from corrupt practices under the Prevention of Corruption Act under Section 8 (1)(m), and corrupt electoral practices under Section 8A. Whilst the former is condonable by the Commission, the latter is not. The plausible reason for not allowing a condonation of disqualification under Section 8A is to maintain a higher threshold for criminals who tampered with the electoral process. However, disqualification under Section 8 (1)(m) is of a similar nature; as the offence deals with similar rupturing of public machinery for private gains.

The constitutionality of Section 11 qua Article 14 is lis pendens before the Delhi High Court in Dek Bahadur Katwal v. Union of India & Ors. WP(C) 11296 of 2019; wherein the specific challenge is qua the Commission's decision to allow Prem Singh Tamang to contest the 2019 By-elections to the Sikkim Assembly. However, irrespective of how the Delhi High Court holds the Petition on merits, the perils faced by the unfettered powers under Section 11 need to be ruled in.

This article was published at Livelaw on 6 May 2020.