ISSN (Print) - 0012-9976 | ISSN (Online) - 2349-8846

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Decriminalising Politics

Debarring convicted and arrested politicians from holding public office is a double-edged sword.

The Supreme Court of India recently came up with two rulings on electoral laws. Both judgments seek to bar “criminals” from serving in Parliament. The first judgment in Lily Thomas vs Union of India ruled that Section 8(4) of the Representation of the People Act (RPA) was ultra vires. This section had provided a three-month window to legislators to file an appeal against conviction of crimes, barring which their seats would go vacant. The second judgment in Chief Election Commissioner vs Jan Chawkidari is more controversial as it bars those in police custody or under arrest from contesting elections.

It is easy to see how the outcome of the second ruling is ripe for misuse. Politicians could now simply file cases against opponents in a manner which gets the latter arrested. This would debar them from contesting elections or disqualify them. The threat becomes even more serious given the brazen manner in which those in government use the police and investigative agencies to target their political rivals. A large number of criminal cases against politicians, in any case, are of a “political” nature – an outcome of agitation politics, protests, civil disobedience and so on. The disqualification of candidates who are imprisoned for engaging in political activity would run counter to the best principles of democracy and would push India’s political culture towards further excluding those who protest for their rights. Some of our best lawmakers have been part of various civil disobedience and other protest movements. Invoking the letter of the law to disallow the candidature of those arrested for political protests and dissidence, when cases are filed under criminal law, goes against the spirit of democratic politics.

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