On the Right of Convicts to Contest Elections: Examining

Election Laws on Disqualification

Tazeen Ahmed
Legal Intern at ubAdvocate
Law Student at Jamia Millia Islamia, New Delhi
Can convicts contest election?

▪ Yes, Convicts are eligible to contest elections after 6 years, once they
have been convicted and have served their punishment terms for their
offence(s).
▪ Ironically, they are eligible to stand up as candidates for contesting
elections but do not hold the right to vote.
 INTRODUCTION

India is a democratic country and elections are a festival of democracy. People choose their elected representatives

or public servants. However, many such contestants are convicted with criminal charges. This raises serious

concerns about the domination of money and muscle power in elections. It becomes important to look at the laws

which treat criminal politicians and whether convicts are eligible to stand for election or not.

‘Conviction’ can be defined as “an outcome of a criminal prosecution which concludes in a judgment that the

defendant is guilty of the crime charged”.

This Photo by Unknown Author is licensed under CC BY-NC-ND

 SHOCKING STATISTICS


According to the Association for Democratic Reforms, the B.J.P. has 116 MPs or 39% of its
wining candidates with criminal cases, followed by 29 MPs (57%) from the Congress.

11 winners, 5 from the BJP, 2 from the BSP, 1 each from the Congress, the NCP, AND THE YSR
Congress Part, and an Independent- have murder charges against them. 29 winners were charged
with hate speech.

A BJP MP from Bhopal, Pragya Singh Thakur has been convicted with terror charges in
connection with the 2008 Malegaon Blasts and has nonetheless, been safeguarded and sheltered
by the party.

A congress MP from Kerala, Dean Kuriakose, has 204 criminal cases against him, including
culpable homicide, house trespass, robbery and criminal intimidation.

Around 1 out of 5 politicians are facing or have faced serious criminal charges like rape, murder,
criminal intimidation and worse.

The report of
candidates, i.e.the 2019
43% hadLok Sabhacases
criminal Elections revealed
against them. that out of 539 winning candidates, 233

The more with
candidate shocking data of 2019which
criminal charges elections
waswas the whereas
15.5% chance ofit winning
was onlythe elections
4.7% for theofcandidates
the
with a clean record. 
 LANDMARK CASE ON THE RIGHT OF VOTERS TO
KNOW ABOUT THEIR REPRESENTATIVES

In a landmark judgment, Public Interest Foundation v. Union of India , the S.C. directed all the political
parties to publish the criminal record of the contesting candidates along with the reasons for defending
each one of those candidates apart from the reason of their popularity. This was a step towards
transparency. By furnishing the contestants’ affidavits with their criminal antecedents, the voters could
be awoken and made aware about their representatives. The information requires to be published within
48 hours of selection of the candidate or before two weeks of the date of filing on the nomination,
whichever is earlier. This was also done to facilitate an informed decision by the public.

WRIT PETITION (CIVIL) NO. 536 OF 2011

LANDMARK CASE ON DISQUALIFICATION

The Apex Court in Lily Thomas v. Union of India case

ruled that any Member of Parliament(MP), Member of
Legislative Assembly (MLA) or Member of a Legislative
Council (MLC)  who is convicted of a crime and given a
minimum of two years' imprisonment, loses membership
of the House with immediate effect. 
 WHAT THE LAW SAYS ON DISQUALIFICATION
OF CONVICTS FROM CONTESTING ELECTIONS

Section 8 of the Representative of People’s Act, 1951 contains provisions related to disqualification on conviction for certain offences.

According to Section 8(1) of the RPA, a person convicted of an offence can be punished under-
(a) section 153A (offence of promoting enmity between different groups on ground of religion,
race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of
harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or
personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A
or section 376B or section 376C or section 376D (offences relating to rape) or section 498A
(offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or
sub-section (3) of section 505 (offence of making statement creating or promoting enmity,
hatred or ill-will between classes or offence relating to such statement in any place of worship
or in any assembly engaged in the performance of religious worship or religious ceremonies) of
the Indian Penal Code (45 of 1860); or
 
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for (m) the Prevention of Corruption Act, 1988 (49 of 1988); or
punishment for the preaching and practice of “untouchability”, and for the
(n) the Prevention of Terrorism Act, 2002 (15 of 2002),] 6[shall be
enforcement of any disability arising therefrom; or
disqualified, where the convicted person is sentenced to—
(c) section 11 (offence of importing or exporting prohibited goods) of the
(i) only fine, for a period of six years from the date of such conviction;
Customs Act, 1962 (52 of 1962); or
(ii) imprisonment, from the date of such conviction and shall continue to be
(d) sections 10 to 12 (offence of being a member of an association declared
disqualified for a further period of six years since his release.]
unlawful, offence relating to dealing with funds of an unlawful association or
offence relating to contravention of an order made in respect of a notified
place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985);
or
(g) section 3 (offence of committing terrorist acts) or section 4 (offence of
committing disruptive activities) of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of
the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes in connection
with the election) or section 135 (offence of removal of ballot papers from
polling stations) or section 135A (offence of booth capturing) or clause (a) of
Supposing a politician is on bail, pending disposal of his appeal, can he
contest the election?

No.
Even if is a person is on
bail after the conviction
and his appeal is pending
for disposal, he is
disqualified from
contesting an election as
per the guidelines issued
by the Election
Commission of India.
 How do politicians manage to save themselves from
disqualification?
The politicians
clutches offor escape
disqualificationfrom the
after being
convicted
certain loopholes someandoffences
flaws due
in the to
laws. This
politics goesis why criminalization of
unchecked.
The politicians
seats while being can hold on to
sentenced their
until they
have
the exhausted
Lower Courts,all High
their remedies
Courts and with
Supreme Court.
The Election
issued directives Commission
by the hastobeen
court
publish information
candidates, including about
their the
criminal
antecedents.
mechanism However,
to ensure there
that is no
these orders
are being observed.
Parties tend
criminal to justify
records on the candidates
basis of with
their
seniority,
toss all theexperience
charges and loyalty
against them and
into
the
are bin, asserting
baseless and that such
driven by allegations
malicious
political
competitivemotives and unhealthy
spirits.
 How do politicians manage to save themselves from
disqualification?

Since a candidate cannot be disqualified from contesting elections on

the grounds of furnishing false statements in the affidavit, candidates
misuse this aspect and make submissions which are either incomplete
or false.
Prosecution of the candidate for furnishing false statements under
Section 125A of the RPA is possible only when a complaint is received
against the candidate and that too does not affect the nomination or
election of the candidate.
In cases where the convict has been punished for an offence, it is
argued that the person is no more a criminal and is an equal citizen.
He/ She cannot be debarred from contesting elections for life. He/ she
can only be disqualified for a specified duration of time as provided by
law.
The Supreme Court in a petition held that convicts cannot be barred for
lifetime from contesting election as it would amount to equating an
‘elected representative’ with a ‘public servant’. Moreover, it also held
that disqualification under the Representation of the People Act of
1951 for the period of the prison sentence and six years thereafter was
enough for legislators.