Congress leader Rahul Gandhi’s disqualification from Lok Sabha following his conviction in a three-year-old defamation case has brought back the issue of banning convicted lawmakers from contesting elections.
The Lok Sabha Secretariat wasted no time in issuing the disqualification notice against Gandhi on Friday, a day after he was sentenced to two years in jail by a Surat court for his remark about PM Narendra Modi’s surname at an election rally in 2019.
The disqualification of Gandhi, who has been granted bail to file an appeal against the Surat court order while his sentence stands suspended for 30 days, raises serious concerns about the possibility of political misuse of the disqualification process to target opponents and suppress dissent.
I argue that convicted politicians, regardless of the crime, should be allowed to hold office because of their right to appeal in higher courts, the cognitive biases of judges, and the fact that voters are capable of making their own decisions. Appeal is a continuum of the original proceeding and judgment in the lower court is just a part of that process. Therefore, disqualification on the basis of the lower court judgment is a travesty of natural Justice, particularly when the appeal has been provided as a matter of right.
Playing by the book
Rahul Gandhi’s disqualification was made under Article 102(1)(e) of the Constitution read with Section 8(3) of the Representation of the People Act (RPA) 1951. But it was a 2013 Supreme Court judgment that made the Congress leader’s disqualification an immediate affair.
In the 2013 Lily Thomas case, the Supreme Court struck down the RPA’s Section 8(4), which allowed convicted MPs and MLAs to continue holding office while their appeal was pending. The court held as unconstitutional the provision under which a lawmaker’s disqualification took effect “only after three months”.
Then-Manmohan Singh government argued that disqualification would necessitate by-elections, which would disrupt the functioning of the government. But the court rejected the argument and held that disqualification of convicted politicians was necessary to maintain the integrity of the democratic process and ensure that only those who were fit to hold public office were elected to power.
The judgment came in the backdrop of the Anna Hazare movement, which, among other things, had demanded the disqualification of convicted politicians.
Also read: Rahul Gandhi disqualification: What are the grounds for expelling lawmakers & what laws say
Time to revisit
Banning convicted lawmakers from contesting elections violates the principle of natural justice and the right to a fair trial. It also creates a situation where politicians may be disqualified on flimsy or false charges, without the opportunity to clear their name.
Given the high possibility of cognitive and societal biases among judges in India, there is also a risk that marginalised communities may be unfairly targeted and deprived of political representation. These communities are often poorly represented in the judiciary. Judges from privileged backgrounds may not be sensitive to their issues, which can result in unfair and discriminatory judgments, further marginalising these communities.
But the right to appeal, guaranteed under Article 21 of the Constitution, can ensure that justice is not denied, and individuals are not wrongfully convicted or punished. The higher courts play a crucial role in upholding this right, by providing a forum for individuals to challenge decisions that may be biased, erroneous, or against the principles of natural justice.
The criminal justice system in India is fraught with many challenges, including lengthy trials, a high burden of proof, and inadequate legal representation. It is important to revisit and challenge the 2013 judgment to ensure equitable representation in democracy.
The blanket ban on convicted politicians also undermines the democratic principle of allowing the people to choose their representatives. People should be able to make an informed choice based on a candidate’s qualifications, character, and vision.
Moreover, the ban is not a foolproof way to prevent criminals from entering politics. It is possible for individuals with criminal backgrounds to use their power and influence to manipulate the legal system and avoid conviction. Therefore, a more effective approach would be to strengthen the criminal justice system and ensure that offenders are held accountable for their actions.
One possible solution could be to allow convicted politicians to hold office until their appeals are exhausted. This approach would provide them with the opportunity to appeal wrongful convictions and maintain the principle of natural justice.
Another solution is to focus on improving the criminal justice system and ensuring fair trials, rather than solely relying on the ban to deter criminals from entering politics. This could include measures such as improving legal representation for the marginalised and vulnerable communities.
Alternatively — and this may sound outrageous — the right to contest elections should be open to all citizens, including convicted criminals. It is up to the voters to decide whether they are fit to hold public office. This would be a reflection of a truly democratic society, where all citizens are treated equally and have the right to participate in the democratic process. There is no need to presuppose that voters are dumb and therefore cannot make the right choice. They do, after all, always have the option of pressing the NOTA button on the EVM.
Dilip Mandal is the former managing editor of India Today Hindi Magazine, and has authored books on media and sociology. He tweets @Profdilipmandal. Views are personal.
(Edited by Prashant)