The Representation of the People Act, 1951 of the Indian Constitution, enlisted in Articles 324 to 328, delineates the conduct of elections throughout the nation. It provides the power to legislate and make rules of elections to Parliament and the state legislature. In addition, it provides for criteria pertaining to qualifications and disqualifications of electoral candidates. The RPA Act 1951 mentioned in Part XV of the constitution was enacted by the Indian provincial parliament before the first general elections of 1952. The act restricts and prevents the entry of certain candidates with criminal backgrounds for the sake of national safety and the smooth functioning of democracy. It strikes down the use of illegal strategies for the conduct of elections and at the same time ensures transparency and inclusiveness in the electoral procedure.
The disqualification of candidates is based on the violation of laws. Section 8 of the act provides the grounds on which a person is disqualified from contesting elections in case he/she has been convicted for the following offences. The operational word here is ‘conviction’. Conviction is the word used when the charges pressed against the defendant are held to be true by the court of law.
Charges filed under the Indian Penal Code
- Section 153A – Promoting enmity between different groups of people divided on the basis of caste, colour, religion, place of birth, etc. and disrupting an environment of harmony
- Section 171E and 171F for the offense of bribery and undue influence or personation in elections respectively
- Section 376 – Offense of rape
- Section 498 – Cruelty towards a woman by the husband or a relative of a husband
- Section 505 – making controversial and hate provoking statements related to religion, communities, or classes
Civil Rights offenses
- Promoting or preaching the traditional practice of ‘untouchability’ which is abolished completely under Article-17.
- Committing offences that are aforementioned and which contradict the Civil Rights Act, 1955.
- Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988 and violation of its section 3 and 4 result is a dismissal of political candidacy.
Contravention of acts
- A person convicted for breach of the Dowry Prohibition Act, 1961 and the Commission of Sati (Prevention) Act, 1987.
- Demeanour of the Indian National Flag or its Constitution (section 2) or halting singing of National Anthem (section 3) with respect to the Prevention of Insults to National Honour Act, 1971.
Offenses related to custom
- Exporting or importing prohibited items in the national boundaries as provided in the section 11 of the Customs Act, 1962.
- Contravention of the Foreign Exchange (Regulation) Act, 1973.
Terrorism and unlawful activities
- Promoting terrorism or committing disruptive activities, being a member of an unlawful association.
- The charges are pressed under two major acts – Unlawful Activities (Prevention) Act (namely section 10-12), 1967 and Terrorist and Disruptive (Prevention) Act, 1987 (section 3 and 4) which results in immediate disqualification in case of conviction.
Hoarding, profiteering and adulteration of certain items
- Laws pertaining to prevention of the practice of hoarding and adulteration of food and drug items under the Narcotics Drugs and Psychotropic Substances Act, 1985 and Drugs and Cosmetics Act, 1940.
- Hoarding commodities mentioned under the Essential Commodity Act, 1955 or accomplishing adulteration as defined by the Prevention of Food Adulteration Act, 1954.
Imprisonment
- A person sentenced for two or more years of imprisonment is disqualified from the date of conviction till six years after the release.
- As per the guidelines issued by the Election Commission, even if such a person is on bail or waiting for the appeal to be heard, he or she is still disqualified and thus prevented from contesting elections.
Acts of corruption and disloyalty
- In accordance with Section 9 of RPA 1951, a person found guilty of corrupt practices in the office is left to be determined by the President. The President rules over whether he or she should be disqualified and the time period of disqualification.
- A person holding an office under the Government of India, if convicted for corruption or disloyalty towards the state is disqualified for a period of five years
Government offices and agreements
- A manager, secretary or managing agent of any company or corporation having 25 percent or more capital share from the Central Government is disqualified from contesting elections as long as the person holds the office
- A person who is in a contract based on trade and business with the Central Government is disqualified as long as the contract exists between the two parties
Failure in disclosure of Election Account Expenses
- If the Election Commission finds out that the candidate did not lodge election expenses as required, without any reasonable justification, the candidate concerned may be disqualified
Remedies Available Against Disqualified Person
- The disqualified candidate holds the right to challenge the grounds of disqualification in their respective high court jurisdictions. The disqualification can also be challenged in the form of appeal at Supreme Court.
- The election results can also be challenged by signing an election petition if a voter or a candidate suspects some malpractices. If in case a person wants to complain about illicit illegal practices during the election process, he or she can reach out to the autonomous regulatory body of Election Commission.
- In the Representation of the People Act, 1951- Section 11 authorizes and empowers the Election Commission (EC) to remove or reduce any disqualification except the conviction is held under section 8A.
- Any candidate disqualified under the section 8A, that is, on the grounds of corrupt practices may submit a petition of appeal to the President for removal of such conviction and disqualification. Before giving assent, the President has to seek advice from the EC and shall act according to the body’s advice. In other words, the decision of disqualification of a member post the election to the parliament is taken by the President on the recommendation of the EC.
- Defection may be defined as a process of changing the party from which the legislator was elected. Such a move is widely criticized and questions the morality and loyalty to one party. A legislator is disqualified on the grounds of defection. This is enlisted under the tenth schedule of the Indian constitution. The authority of the disqualification process lies with the Speaker or Chairman of the house. The disqualified legislator, like any other disqualified individual, is allowed to appeal the verdict in higher courts of authority.
- Earlier according to the section 8(4) of the RPA, members of parliament and legislative assemblies were given an exception of dismissal from their disqualification. This lasted for a period of three months until their appeal process is ongoing. However, after the Lily Thomas vs Union of India case, the section was declared unconstitutional. It was realised that the MPs and MLAs misused the delayed court proceedings and took part in active parliamentary politics.
Criminalizing the politics of a nation as big as India would undermine it being the largest democracy in the world. The electoral procedure is a mammoth task that also requires scrutinising the background of political candidates who may rule the nation in the future. Putting dishonest legislators to power can be a serious threat to the democracy of any country. The Representation of the People Act, 1951 is thus an important act to decriminalise politics by breaking the nexus of crime and power and thereby ensuring free and fair elections.