The Country has been ransomed to criminals.
The MPs convicted for murder and rape will decide the fate of the country.
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Jailed MPs can vote if case pending before higher court
Express News: Friday, July 11, 2008 New Delhi: : As both the UPA and the Opposition tally figures, there has been speculations about the votes of some of the MPs who are in jail at present.
According to Lok Sabha Secretary-General P D T Achary, while a convicted Member of the Parliament will stand disqualified under Section 8 of the Representation of the People’s Act, he can still vote if his case is pending before a higher court. “In case his appeal is pending in a higher court, the disqualification does not take effect,¶ said Acharya.
The five pro-UPA MPs who are languishing in jails at present are RJD MPs Mohd Shahabuddin and Rajesh Ranjan alias Pappu Yadav, SP MPs Atiq Ahmed and Afzal Ansari, Suraj Bhan Yadav of the LJP and BSP MP Umakant Yadav.
“In case the member’s appeal is pending in a higher court he has to get a clearance from the court. Then the member can be brought to Parliament, escorted by the police, and taken back to the jail after the voting is concluded,¶ Acharya said.
However, Lok Sabha Joint Secretary V K Sharma said, “Though a member can always claim that he has a right to vote and participate in Parliamentary proceedings, it is not a fundamental right and he can’t claim it as a matter of right.¶
Because of faulty laws, the convicted MPs still hold the voting power. As the ruling party needs support of each and every member of the parliament, votes of these convicted MPs become the deciding factor. This will give these MPs immense blackmailing potential.
Politics is the fully developed state of crime in India. Local muscle men, and criminals whose services were earlier sought for extortion or vote gatherings are now directly entering the electoral fray and getting elected. At present about 25% of our elected MPs/MLAs have criminal cases pending against them. There is no effective law preventing the criminals from joining the politics.
Present Status :
(a)At the time of nomination.
In terms of Section 33A of the Representation of the People Act, 1951, read with Rule 4A of Conduct of Election Rules, 1961, each candidate has to file an affidavit in Form 26 appended to the Conduct of Election Rules, 1961, giving information on the following:-
• Cases, if any, in which the candidate has been accused of any offence punishable
with imprisonment for two years or more in a pending case in which charges have
been framed by the court.
• Cases of conviction in offences specified in the Sections 8, 8A, and 9 of RP Act, 1951.
• Cases of conviction for an offence other than any of the offences mentioned in
Section 8 of the Representation of the People Act, 1951, and sentenced to imprisonment for one year or more.
If the candidate has been convicted for an offence listed in Section 8 ,8 A, and 9 , the candidate is disqualified for election. Besides this, if the candidate has been convicted with imprisonment for two years in any other offence, he/she is disqualified.
But these laws have not been effective.
1. Disqualification demands conviction. The ordinary conviction rate in Indian Courts is about 5%. If the accused is powerful, influential, and politically connected, the conviction rate is close to zero.
2. The present law does not bar under- trials from contesting elections. Even a person accused of murder/rape and presently in jail, can contest election.
3. The candidates are required to give details of criminal cases in which charges have been framed by the court. This is merely a formality. Even if the candidate provides wrong information, the Election Commission has no means to verify and disqualify the candidate. If a person complains against the candidate, it follows the procedure of Code of Civil Procedures and the nearest High Court conducts the proceedings under Section 99 of R P Act. If the High Court finds a candidate guilty of furnishing false information, under section 125A, the guilty may be punished with fine, or imprisonment for six months or both. The problem is that if the candidate has lost the election, no one is bothered to complain against him/her. If the candidate gets elected, whole of the State machinery is at his/her disposal and conviction becomes very difficult.
In the midst of the recent general elections, the Patna High Court had passed an order that persons behind bars cannot contest elections. On the basis of an application moved by the Election Commission, this order was stayed by the Supreme Court with the observation that the High Court could not have passed the order during the course of the election process. However, the SLP (No. 9204-05/2004- ECI vs. Jan Chowkidar (Peoples Watch) & Ors.) is pending before the Supreme Court for final disposal.
(b)After election of the candidate
1. If an elected member of parliament or legislature is convicted of any offence with a sentence of imprisonment for two years, section 8(4) of RP Act, 1951 gives a grace period of three months to incumbent legislators before disqualification comes into effect. However, if within the said three months an appeal or application for revision is brought in respect of the conviction or sentence, the disqualification will not operate until that appeal or application is disposed of by the court. Unfortunately this provision is being misinterpreted consistently, and any candidate, who has been convicted but filed an appeal, is being exempted from disqualification until the appeal is disposed of. Similarly, if the legislator, though convicted, has appealed in the court against conviction, is not disqualified from contesting another fresh election.
This is a paradox. Before getting elected, a candidate can not contest election if he/she is convicted of an offence, irrespective of the state appeal in the higher court. But after getting elected, the equation changes. Neither the candidate is disqualified from the present position, nor is he/she disqualified for fresh election. If an MP in convicted of murder, pending his/her appeal, he/she remains an MP and there is no bar for contesting fresh elections.
A PIL filed by Basant Kumar Chaudhary in the Supreme Court seeks to erase this distinction. The Government, however, opposed his plea through an affidavit expressing the apprehension that doing away with the relief provided under RPA could rock the boats of governments surviving on slender majorities.
2. If a candidate is elected as an MP and the Court finds him/her guilty of corrupt practices, he/she is not disqualified automatically. The Government sends the matter to the President who decides the disqualification and the period of disqualification. Usually these procedures take a protracted course and very often delayed to suit the purpose of the ruling party.
Practically, it is impossible to disqualify an elected MP/MLA
Several organizations have repeatedly demanded that any person charged with any offence punishable with imprisonment for a maximum term of five years or more, should be disqualified for being chosen as or for being a member of Parliament or Legislature of a State till he/she is cleared of charges by the court. The same views have been endorsed by National Law commission, National Commission for Review of Constitution, and Election Commission of India. But when it comes to politicians to decide about it ( Read Standing Parliamentary Committee on Electoral Reforms), the outcome Is zero. They refused this notion on the ground that the candidates may be falsely implicated in criminal cases by the ruling party.
Proposed Electoral Reforms
1. Any person who is accused of an offence punishable by imprisonment for five years or more should be disqualified from contesting election even when trial is pending, provided charges have been framed against him by the competent court. The argument of the political class that a person is presumed to be innocent until he is proved guilty, does not hold ground. Keeping a person, who is accused of serious criminal charges and where the Court is prima facie satisfied about his involvement in the crime and consequently framed charges, out of electoral arena would be a reasonable restriction in greater public interests. Secondly, when there is a clash between the society’s right to have fair and proper representation in legislatures and the individual’s right to represent the people, clearly society’s rights take precedence over individual right. The right to contest elections is not a fundamental right. The harm done by denying an occasional innocent person a chance to contest is much less than allowing a criminal to be elected.
Such person should be disqualified for being chosen as, or for being, a member of Parliament or Legislature of a State on the expiry of a period of one year from the date the charges were framed against him by the court in that offence and unless cleared during that one year period, he shall continue to remain so disqualified till the conclusion of the trial for that offence.
In case a person is convicted of any offence by a court of law and sentenced to imprisonment for six months or more the bar should apply during the period under which the convicted person is undergoing the sentence and for a further period of six years after the completion of the period of the sentence. If any candidate violates this provision, he should be disqualified. Also, if a party puts up such a candidate with knowledge of his antecedents, it should be derecognized and deregistered.
2. Any person convicted for any heinous crime like murder, rape, smuggling, dacoity, etc. should be permanently debarred from contesting for any political office.
3. Criminal cases against politicians pending before Courts either for trial or in appeal must be disposed off speedily, if necessary, by appointing Special Courts.
4. A potential candidate against whom the police have framed charges may take the matter to the Special Court. This court should be obliged to enquire into and take a decision in a strictly time bound manner. Basically, this court may decide whether there is indeed a prima facie case justifying the framing of charges.
5. The Special Courts should be constituted at the level of High Courts and their decisions should be appeasable to the Supreme Court only (in similar way as the decisions of the National Environment Tribunal). The Special Courts should decide the cases within a period of six months. For deciding the cases, these Courts should take evidence through Commissioners
6. If any misleading or incorrect information is furnished in the Affidavit, or if any facts are concealed, such a person shall be disqualified for a period of twelve years with imprisonment for two years.. In case such a person has been already elected, his election stands nullified and he shall be disqualified for twelve years along with imprisonment for two years. In such cases a complaint shall be filed before the Election Commission, whereupon the Commission shall issue notices to the compliant and the candidate and after summary enquiry give its decision within 90 days from the date of complaint. The decision of the Election Commission shall be final and binding.
7. If an elected MP/MLA is convicted and sentenced, he/she will cease to be a member of the house. His/her case will undergo hearing in special Court which will deliver its decision in three months. Even after three months, if found guilty, the legislator should remain disqualified and repeat election should be conducted.
The members of Parliament and the State Legislature should be governed by the same set rule as those applicable to other contesting candidates.
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