Electoral Reform and the Criminalisation of Politics

In one line

A person convicted of a serious offence cannot sit in a legislature, and since 2013 that is true of a sitting member from the day of conviction; but a person merely charged can still contest, and the Supreme Court has said that changing this is for Parliament and not for the courts.

In the wording a student can write in an exam: articles 102(1)(e) and 191(1)(e) empower Parliament, and Parliament alone, to lay down disqualifications for membership by law, and articles 101(3)(a) and 190(3)(a) provide that a member who becomes subject to such a disqualification loses his seat, which "shall thereupon become vacant". In Lily Thomas v. Union of India the Court held that section 8(4) of the Representation of the People Act 1951, which deferred the effect of a conviction for a sitting member, was "beyond the powers conferred on Parliament by the Constitution" and therefore ultra vires. In Public Interest Foundation v. Union of India the Court declined to add disqualification on the framing of a charge, because "the Court cannot make the law", and instead directed disclosure and recommended legislation.

Why the law has this at all

Two problems, and they need separating. The first is that a legislature that makes the criminal law should not be composed of people convicted under it. The second, harder, is that a criminal charge in India can take a decade to try, so a rule keyed to conviction disqualifies almost nobody in time to matter, while a rule keyed to a charge can be manufactured by a hostile government or a hostile complainant.

Every proposal in this area is an attempt to place a line between those two failures. Public Interest Foundation records the Vohra Committee's finding of a "rapid spread and growth of criminal gangs" with "an extensive network of contacts" among politicians and officials, and the Court's own view that criminalisation of politics is "a termite to the citadel of democracy".

The provisions

Article 102(1) lists four disqualifications for membership of either House of Parliament and then adds a fifth, "(e) if he is so disqualified by or under any law made by Parliament." Article 102(2) adds disqualification under the Tenth Schedule. Article 191(1) is in identical terms for a State Legislature, and its clause (e) likewise refers to a law made by Parliament, not by the State.

The opening words of both articles are the ones that decide Lily Thomas. A person is disqualified "for being chosen as, and for being, a member". The same disqualification governs the candidate and the sitting member.

Article 101(3)(a) provides that if a member of either House "becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of article 102 . . . his seat shall thereupon become vacant". Article 190(3)(a) says the same for a State legislator.