Bending the Law Behind Bars — Legal Conundrum of Jailed-Candidates Contesting Elections in India

The eighteenth Lok Sabha will see the entry of two jailed candidates — Amritpal Singh from Khadoor Sahib, Punjab and Engineer Sheikh Abdul Rashid from Baramulla, Kashmir as elected Members of Parliament. Whilst the Constitution of India¹ and the Representation of the People Act, 1951² (RPA) does not explicitly prevent a jailed undertrial candidate from contesting unless convicted for a sentence entailing punishment of a minimum of 2 years; there is no doubt allowing such candidates to participate in the electoral process merely on the premise of them being undertrials leaves a lot to be answered morally, legally as well as logistically.

The charges against both of them are serious, to say the least. Amritpal Singh, was arrested in 2023 under the National Security Act, 1980³, after he went absconding amid a crackdown against his secessionist militants and has been in jail since then. Engineer Rashid, a former two-time MLA, was arrested in 2019 under the Unlawful Activities (Prevention) Act, 1967⁴ (UAPA), on allegations of money laundering linked to terror-funding activities and has been in jail ever since.

The present article will examine the perplexed legal position of jailed candidates contesting elections in India, by tracing the legal developments and will make a case for why the issue merits attention of lawmakers by contrasting it with the position in other countries, the unique circumstances of India and the overarching principle flaw in the omission for such a change in the electoral laws.

History of the law on disqualification on account of criminal antecedents

The RPA is a comprehensive piece of legislation addressing various aspects of elections in India including — qualifications and disqualifications for membership in legislative bodies. Chapter III enumerates the various circumstances that would lead to disqualification of a person from contesting or holding any seat in an assembly, we are at the present moment concerned with Section 8⁵ which deals with disqualification on account of criminal offences and provides for the disqualification of any person if they have been convicted for any of the three-categories of offences delineated thereunder. Sub-section (1) provides for specific offences, conviction of which would result in disqualification such as rape, bribery, terrorism, etc. Sub-section (2) more particularly sub-clauses (a) and (b) instead of listing down any specific offences provides for disqualification in the event of contravention of any law for prevention of hoarding, adulteration or profiteering. Whereas sub-section (3) provides for disqualification for any other offence not mentioned in the aforesaid provision if such person is convicted and sentenced to a jail term of at least two years [with sub-section (2)(c) being an extension of this provision specifically applicable to any offence pertaining to dowry as long as the sentence is for 6 months].

Thus, whilst on the surface Section 8 provides for three-distinct categories that would lead to disqualification, the permeating theme between all these provisions is the requirement of “conviction”. Any disqualification under Section 8 effectively disbars a person from either contesting elections or holding any electoral office from the date of their conviction for a period of six years after the sentence has been served. The underlying reason behind this provision is to prevent convicted criminals from holding legislative office and to ensure that “law breakers do not become lawmakers”.

Steps towards cleaning up the Indian elections from the grips of criminals has been a long-drawn battle to say the least. The first notable steps in this direction can be traced to the 2002 decision of the Supreme Court in Union of India v. Assn. for Democratic Reforms⁶ which mandated the disclosure of criminal records by all candidates contesting elections. Overtime, these requirements have been made more stringent, by mandating the Election Commission of India and the respective political parties to publish criminal records of their nominees on their websites. Unfortunately, these very first steps towards cleansing elections of criminals have remained the only steps in place for the present moment.

In 2012, significant traction was made by the Supreme Court, in Chief Election Commr. v. Jan Chaukidar⁷, where it was ruled that any person in jail or custody in connection with any offence even if not yet convicted, cannot contest elections to legislative bodies. In the said decision, although the Supreme Court conceded that Section 8 of the RPA only provides for disqualification on conviction, yet it held that a person who is in jail could still be debarred from contesting elections irrespective of whether they have been convicted or not. This was in view of the distinction created between a “jailed person” and an “elector” by the RPA. The Court observed that under the RPA, in order to be eligible to contest elections or become a member of an assembly, the person must be an “elector” which as per Section 2(1) of the Act means any person who is not disqualified from voting. Section 16⁸ is the general provision that deals with disqualification of a person from voting and the resultant deletion of his name from the electoral roll. However, interestingly, Section 16 was not the only provision inasmuch as Section 62⁹ more particularly sub-section (5) of the RPA also provides for an additional ground for disqualification from voting and states that no person shall vote in any election if he is confined in a prison or in any lawful custody of police, ergo a “jailed-person”. This in the opinion of the Court meant that, since a jailed person by virtue of Section 62(5) ceases to be an “elector” under the RPA, he or she is no longer qualified to contest elections.

However, within just four months, the Government brought an amendment that once again restored the ability of undertrial accused to contest and hold electoral offices by the insertion of a proviso to Section 62(5) of the RPA whereby any jailed person was deemed to still be eligible to contest elections, and with it the ambit of disqualification from contesting elections or holding any assembly seat on account of criminal antecedents was effectively narrowed down back to condition of “conviction” in terms of Section 8 of the RPA.

While the iron was still hot, the Law Commission came out with its 244th Report¹⁰ on Electoral Disqualifications wherein, it highlighted the alarming rise in criminals contesting and securing seats in various assembly elections across India, and attributed the reasons behind such trend to the existing legal framework, specifically the inadequacy of Section 8 in acting as a deterrent for criminals entering and possibly seizing elections. Accordingly, the Law Commission without mincing any words, recommended that the disqualification envisaged under Section 8 should come into operation when charges are framed rather than conviction, at least in respect of heinous offences. This, however, was not the first time, that such a recommendation had made its way, in fact the Law Commission had recommended the very same thing on an earlier occasion as well, in its 170th Report in 1999¹¹ and similar recommendations had made way by several more commissions¹². What was different from the earlier report was that, now the Law Commission had specified the areas of concerns expressed earlier over such a change. It justified its rationale on the touchstone that “framing of charges” marks a significant step in the wheels of criminal justice, it indicates the case has withstood judicial scrutiny and that a judicial mind was applied which found it to possess a prima facie merit in the indictments levelled. Moreover, the stage of framing of charges provides a slew of safeguards to the accused in the form of moving a discharge application or a quashing petition to put the case through even more rigours of judicial scrutiny, thus effacing any concerns over false charges.

In this backdrop, a 5-Judge Bench of the Supreme Court in Public Interest Foundation v. Union of India¹³, was called upon to include criminal antecedents as an implicit condition of disqualification from assembly based on a “reading up” of Section 8 of the RPA. However, the courts despite expressing its great anguish over the pervasive rise in criminalisation of Indian polity and falling standards of propriety, the Court ultimately refrained from including it as a criterion for disqualification, as it unavoidably meant changing the very scheme of the RPA, was for the legislature in its wisdom to bring about and not the courts. However, despite this, the Supreme Court went upon to requesting the Parliament to make an earnest effort at addressing this issue. Till now, the position remains the same, and even though the Supreme Court left it to the wisdom of Parliament, on many occasions the courts have observed that if the recommendations of Law Commission were to be accepted, it would reduce the criminalisation of politics in a “single stroke”.¹⁴

Vexed legal position

This has resulted in a very precarious situation one which is rather contradictory — as while a person is though deemed unfit in the eye of the law for bail due to involvement in acts prejudicial to national security or moral turpitude is simultaneously deemed fit to participate in national elections and hold the office of Member of Parliament (MP) and or minister and even take decisive actions in discharge of the functions of his/her office. This is a very serious issue whereby individuals facing grave charges, such as corruption or terrorism, can still contest elections and serve as MPs until they are convicted. This loophole significantly undermines public trust in the political system by allowing potentially unethical individuals to hold and potentially abuse power for personal gain or to settle political scores. It enables those awaiting trial to misuse their elective offices to manipulate or delay the outcome of their criminal proceedings. It was observed by the Supreme Court that due to Section 8 of the RPA; elections have become polluted as there is no inhibition for persons with criminal background to continue indulging in criminality to gain success in election after election.¹⁵

Furthermore, Article 101(4)¹⁶ of the Constitution of India empowers the Lok Sabha Speaker to declare a seat vacant upon continuous absence of sixty days from the House by an MP without prior approval/sanction by the Lok Sabha Speaker. This provision makes the position of a jailed MP even more precarious since his continuance as a MP depends entirely upon him securing bail from the courts who in turn rarely grant bail to anyone accused of serious offences like terrorism and corruption or upon the grace of the Speaker who in turn would act as per his own political preferences. Logistically and financially too the current situation puts the entire nation at a disadvantage since by-polls would have to be conducted upon conviction of the jailed MP or upon vacation of his/her seat as per provisions of Article 101(4) of the Constitution. It is well known that bypolls are an expensive process which also affected the normal executive functioning of the constituency due to the rigours of the model code of conduct getting applied. Additionally, bypolls also affect the political stability of the country especially in a hypothetical situation where the Government of the day is hanging on a wafer-thin majority.

Comparative analysis

A careful reading of the Law Commission’s Report¹⁷ would reveal that the linchpin of their recommendations was imbibed on the understanding that any disqualification upon framing of charges would be emanating exclusively from the judiciary and thus, free from any political push, and there are few countries where criminal charges are considered sufficient for disqualification and debarment from elections.

(i) Egypt

This recommendation of vesting disqualification in the hands of judiciary is not unheard of, in fact this very process has been consistently followed by Egypt, who has in turn been successfully in turning the tide over its marred history of undemocratic electoral processes. In Egypt, the judiciary plays an active role in elections, it is involved not just in issues pertaining to the validity of laws but also devising election procedures and overseeing the results. The electoral history of Egypt has several instances of impropriety in elections, which led to stringent provisions being enacted and the incorporation of Article 88 in the Egyptian Constitution of 1923¹⁸, mandating judicial supervision in all matters of elections. The Supreme Constitutional Court (SCC) handles issues of constitutional challenges and fairness of electoral laws, while administrative courts manage the election procedures and resolve related issues rather than an executive body. Each ballot box and constituency are directly supervised by a Judge.

The Egyptian Electoral Law (Law No. 45 of 2014) on the Regulation of the Exercise of Political Rights outlines the conditions under which individuals can be disqualified from standing for elections where Article 52¹⁹ provides that a candidate may be disqualified if he is alleged to have committed a violation of any law (including penal provisions). A conviction is not required for disqualification, and a candidate may be debarred if there is prima facie evidence to indicate a violation as the disqualification proceedings are in addition to the criminal proceedings. Last year in November 2023, the former lead of Egypt’s Dignity Party; Ahmed “Al-Tantawy” along with several members of his party were prevented from contesting elections due to charges of terrorism and forgery against them being referred to trial. The underlying reason behind dispelling the requirement of a conviction stems from the fact that disqualification proceedings like all other process of elections in the country are exclusively decided by the non-partisan judiciary. Earlier disqualification matters were exclusively decided by the Court of Cassation — Egypt’s highest general judicial court until 2017, when the High Elections Committee (HEC) a new body exclusively consisting of judicial members was tasked with the same. Since the disqualification proceedings envisages adducing evidences and application of independent judicial minds, the requirement of a conviction has been done away with. Thus, if a person is facing criminal charges and jailed in connection with those charges, he or she may be prevented from contesting in elections for the duration of those charges/imprisonment subsisting, however, a disbarment or an outright ban from contesting election still requires a formal conviction, whereupon such person cannot stand in elections for 5-years.

(ii) Thailand

Laws on electoral procedures, regulation of the Members of the Parliamentary Houses, party code of conduct, etc. have been consolidated in the Organic Act on Election of Members of the House of Representatives B.E. 2561 (2018). Section 42 of the Act²⁰ prescribes the qualifications required in order to be eligible to stand in elections, and provides that any person who either has been sentenced by a final judgment (ergo convicted) or who has been detained by a warrant of the Court i.e. confined to jail under the law shall be prohibited from contesting elections. Thus, for the purposes of disqualification, a distinction has been created by the Act between a candidate against whom criminal charges may be pending and a jailed-candidate i.e. a person who in lieu of the pending charges is currently detained or confined in jail, with the latter not being entitled to stand in elections under the law.

(iii) Philippines

In Philippines the “Batas Pambansa Blg.881” more popularly known as the “Omnibus Election Code” is the principal legislation that governs the conduct of elections in the country and all ancillary matters connected thereto. Sections 12 and 68 of the Code²¹ provides for the conditions for disqualification of a person from holding an office. It is in many ways similar to Section 8 of the RPA inasmuch as it too provides for disqualification where a person has been convicted of any offence except where a person is charged with an offence involving moral turpitude, which is where the similarities end, as in the latter case no conviction is required. The disqualification envisaged under the Omnibus Code is quite a unique approach in many ways, as when there is a conviction for any offence carrying a sentence of 18-months, disqualification is automatically attracted, however, where no conviction has been made in respect of an offence, there the disqualification is not immediate and it depends upon whether the offence involves any moral turpitude i.e. a conduct which is unbecoming of the public office and sentiment. Thus, all offences which result in a conviction of requisite sentence lead to a disqualification, however offences for which a conviction is yet to be made can also lead to disqualification provided it involves moral turpitude, which is determined by the Commission on Elections (COMELEC) subject to the finality from the courts. The praxis of a possible disqualification for moral turpitude even in the absence of a conviction is to ensure that people who are unfit for holding public offices are not allowed to campaign and contest elections, and to deter public office-bearers from abusing their positions for ulterior purposes.

Formidability of conviction as a condition for disqualification

The idea behind requiring conviction for setting into motion any disqualification proceeding is not a matter of right of an individual to contest election, but rather is an axiomatic choice of achieving a balance between the principles of criminal jurisprudence and electoral propriety.

It is a well-settled cannon of criminal jurisprudence, that a person is not held guilty in the eye of the law only because allegations is made out against him or charges have been framed, as such unless a conviction is rendered that person for all purposes of the law cannot be branded as a criminal.²² However, at the same, while a person pending trial cannot be considered a criminal, it does not mean that he or she is entitled to be treated as if there is no criminal charge at all, and certain restrictions can most definitely be imposed to secure the ends of justice. To what extent restrictions may be placed is completely a matter of achieving a delicate balance between the individual’s right and preservation of law and order in the society. Majority of the countries see disqualification on the mere framing of charges as a drastic and a premature step, one that is unwarranted in the wake of the relatively speedy conclusion of trials. Although many countries like India have a similar requirement of a conviction being rendered first, in order to be disqualified as a member of any assembly election, yet it is equally true that none of those countries have an issue of criminalisation of the political landscape as extensive as India’s or the magnitude of pendency that draws-out trials for years on end.

However, the assertion that because a person is innocent until proven guilty, he or she must be allowed an unhindered participation in elections is a misconceived notion. A “disqualification” should not be conflated with “determination” of guilt — the underlying reason behind disqualification of a person under Section 8 of the RPA is not because he or she is a branded criminal in the eye of the law, but rather because he or she is undesirable or unfit for contesting or holding a seat in the assembly. If under the criminal machinery, formulation of charges is prima facie a sufficient suspicion denying an accused his fundamental right of liberty and freedom within the confines of a jail, then it can certainly be sufficient to deny contesting an election, which is not even a fundamental or a constitutional right but a statutory right.

(i) Remoteness of evidence and nexus with public faith

To further assuage the aspersion that such a change in disqualification does not amount to branding suspected accused as criminals, it would be apposite to again refer to the laws in Philippines and Thailand, where such disqualification process exists. In Philippines, not all offences without conviction lead to disqualification, but only those that involve moral turpitude. Disqualification here is not entirely dependent upon the evidence adduced, in fact even where there may be clinching evidence towards the guilt, even then disqualification may not occur at the stage of framing of charges if the offence does not involve any moral turpitude. Thus, disqualification here has nothing to do with whether a person did an offence or not but whether the nature of offence calls for a disqualification. Moral turpitude has been defined anything done contrary to justice, honesty, modesty or good morals that impeaches the person’s credibility²³. Where an individual owes a duty to either another individual or to the society to act in a specific manner and still acts contrary to it, his conduct would be one involving moral turpitude.²⁴ Since in Thailand, the aspect of “moral turpitude” that leads to disqualification rather than the “remoteness of the evidence”, it clearly shows that the consequence of disqualification emanates out of the need of the society rather than any de facto adjudication of charges yet to be formally proved in the criminal courts. Thus, the question of any premature determination of guilt in case disqualification is attracted at the stage of finalisation of charges is completely misconceived.

(ii) Jailed-persons stand on a different footing under the law

The Philippines on the other hand has carved out a distinction between candidates who have been charged of a criminal offence and candidates who in lieu of those charges have been confined in jail, with only the latter being disqualified from elections. The premise here is that, if there is enough suspicion to confine an accused in jail even before a guilty verdict, then the suspicion is considered sufficient enough to even warrant a disqualification. Although under criminal jurisprudence, all accused are presumed innocent, yet a distinction is cardinally recognised between an accused and a jailed accused. The criminal jurisprudence itself contemplates possibility of an undertrial to be jailed and denied bail if there is sufficient suspicion of their involvement. If under the law, a pre-trial confinement to jail is not considered as branding/ pre-judging an accused as criminals, then logically the same would be true for disqualification as well, at least for the jailed-candidates. Although, an immediate disqualification on mere formulation of charges would be too drastic of a step and does involve some semblance of pre-judging in haste, yet when it comes to jailed-persons, who already stand on a different footing under penal laws, then such distinction can definitely be pertinent for disqualification under the electoral laws. In this context, it would be apposite to reiterate the observations made by the Supreme Court in Anukul Chandra Pradhan v. Union of India²⁵, where in the context of “right to vote” it was observed that undertrials in jail cannot claim equal freedom of movement, speech and expression much less a statutory right of voting.

It is true that the process of a criminal justice machinery should not become a punishment in itself, that does not imply that it should also become a paradise for criminals and alike. If long period of custody and unlikelihood of trial beginning anytime soon can be a cogent ground to release a person on bail, then likewise delay in trial should also not be weaponised by taking undue advantage of long-pending trials and freely continue contesting elections and holding positions of paramount societal importance. In Brajesh Singh v. Sunil Arora²⁶, it was observed that the stipulation of “conviction” under Section 8 of the RPA has led to the unsatisfactory result of undertrials taking advantage of the law and standing for election after elections, simply because their cases have not been decided. This is exactly what the Law Commission has also opined — since initiation of criminal proceedings hardly attract any dire consequences at least in terms of elections, it has failed to live-up as a cogent deterrent for political figures from indulging in criminal activities.

(iii) Disenfranchisement of jailed candidates is not a punishment

We may profitably again revisit of Jan Chaukidar case²⁷, where the distinction between an “elector” in terms of Section 2(1) and a jailed candidate under Section 62 of the RPA was acknowledged. From the earlier discussion, it is abundantly clear that the reason why the Supreme Court without hesitation recognised this distinction to curtail the right to contest an election appears to have been in view of the underlying difference between Sections 8 and 62 of the RPA. A closer reading of the RPA would reveal that, fundamentally Section 8 is quite different from Section 62(5) and thus the reasoning appears to have some force to it. The difference between the two provision lies in the consequence envisaged by it. While Section 8 of the RPA provides for two consequences on the requirement of conviction i.e. disbarment from contesting elections for a specified duration (emphasis) and ceasing to be an elected member of any assembly, Section 62 read with Section 2(1) is inherently different inasmuch as the same, in the absence of conviction provides for just one consequence i.e. disbarment from contesting election. The disbarment envisaged under Section 62 was not intended as a punishment as the disbarment would continue only as long as the person was within the confines of jail/prison rather than any specified duration, it is merely a restriction which is distinct from a punishment. What can be discerned from this is, as long as disqualification is by its nature not a punishment but a restriction, the aspect of presumption of innocence will not apply. Thus, while at some level, the notion of presumption of innocence can apply to Section 8, it cannot be said to be applicable with equal force when it comes to jailed-candidates. As such any argument on dilution of this presumption should be confined only to criminal law and penal provisions like Section 8 of the RPA, where disqualification could be viewed as a form of punishment, but they should not extend to restrictions that were earlier envisaged under Section 62 of the RPA.

The way forward

The integrity of elected representatives is crucial for the health of any democracy. A law against criminals entering the political system will only further strengthen India’s democracy. No doubt “innocent until proven guilty” is an indispensable element of criminal justice, however this assertion is valid only for penal laws and not electoral laws. Firstly, even in criminal jurisprudence, one must keep in mind that this presumption of guilt is neither an absolute notion nor a fundamental right, which is why even the Supreme Court on many occasions refused to link this presumption back to Article 21²⁸.²⁹ Secondly, it is no longer res integra that matters pertaining to election stand on a different footing. The Supreme Court whilst interpreting Section 8 of the RPA cautioned courts to be mindful of the fact that it is not dealing with a fundamental right or even a common law right, and thus, should refrain from importing such concepts in deciding election disputes.³⁰

Disqualification from elections on filing of criminal charges ought not to be equated with a punishment, as disqualification is only a consequence of the criminal charges much-like an arrest, intended to only prevent persons unfit to hold public offices, and this is clearly fortified from the aforesaid observation of the Supreme Court. It is not intended as a punishment for the person who is sought to be disqualified but as a necessary measure for the society, thus any law on disqualification must be construed from the perspective of the society and viewed disjointly and independently from a person’s right. If our law permits the initiation of disciplinary proceedings and withholding promotions of civil servants against whom criminal proceedings are pending then it can certainly allow for a temporary suspension from contesting elections as long as the criminal charges are well-founded and have withstood judicial scrutiny. It would also not be out of place to mention that several constitutional posts of public importance such as members of Public Service Commission, Chief Vigilance Commissioner and the Chief Secretary are subjected to the test of integrity check where “framing of charges” is recognised as a disqualification for such posts, thus there is no reason to not extend the said test to the posts of Members of Parliament and State Legislatures as well.

As such, it would be preposterous to construe electoral disqualification through the lens of criminal jurisprudence as if it were to be a punishment or a proponent of a penal law. However, at the same time it any change in law should zealously ensure that, any form of disqualification on the framing criminal charges must not become a punishment by any stretch and ought to be inflicted only in cases of heinous offences, where necessary to the public through a test of proportionality by a judicial mind.

Drawing from international practices, India could introduce a mechanism wherein MPs accused of grave crimes, such as terrorism or corruption, are temporarily suspended from office until the charges are cleared. This suspension should be overseen by an impartial judicial or quasi-judicial body to ensure fairness and prevent political misuse. Additionally, India could establish an independent oversight body, to recommend disqualification based on serious accusations. This body should operate within a proper judicial framework for appeals and independent scrutiny, ensuring transparency and accountability in the process. Furthermore, given the Supreme Court’s repeated calls for swift resolution of criminal cases involving politicians³¹, India could consider establishing a Special Fast-Track Court dedicated to handling cases involving MPs. This specialised court would prioritise these cases, ensuring prompt trials and preventing elected officials from unnecessarily languishing in jail. To further ameliorate the situation, the temporary disqualification should only ensue where charges are levelled at least 6-months prior to an election involving grave offences specifically laid down by the legislature such as corruption or terrorism and only after the charges are framed by the Magistrate. Moreover, the disqualification on formalisation of charges, should only extend to those who are already confined in jail, and even thereafter the duration of such disqualification should at-best be for 1-2 years. Doing so would also put to rest the issues that may arise in lieu of a seat being declared vacant under Article 101(4).

These measures, if implemented effectively, could help curb the misuse of false allegations for political purposes, promote fairness and efficiency in the judicial system, and uphold the integrity of elected offices in India. It will reinforce the principle that public office-holders must abide by the law and adhere to ethical standards, contributing to a culture of accountability and respect for legal norms. It will also create a level playing field for all candidates by ensuring that those facing serious criminal charges do not gain an unfair advantage or influence the electoral process inappropriately. The current system falls short in addressing the issue of MPs facing serious accusations being free to contest and hold offices to legislative bodies. Time and again the courts have iterated that any provision enacted with a view of excluding persons with criminal background and maintaining propriety in elections would go a long way in subserving the constitutional purpose and would be welcomed.³²