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COVICTED PERSONS TO BE
ALLOWED OR NOT TO FIGHT
ELECTION
Om Prakash Yadav
Election and offence; poll and crime are like twin brothers
and go side by side. The question that whether the convicted
persons should be allowed to fight election or not has remained
ambiguous in spite of clear cut provision to this effect made in
Representation of People’s Act. In fact section 8(3) which reads
as ‘A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any
offence referred to in sub-section (1) or sub-section (2)]shall be
disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his
release.’

Apparently, it appears that the provisions are too simple to

be interpreted and therefore should be easily and
unambiguously enforced.

With the passage of time, the criminalisation of politics

started and more and more numbers of politicians started
pitching themselves into electoral fray. The matter came to fore
only when the sitting MP or MLAs got convicted by the
competent court in which quantum of punishment was more
than 2 years.
In 1997 the ECI reiterated its legal stand and directed all
the returning officers to disqualify any candidate who remained
convicted for more than two years irrespective of status of
appeal.
In this very year, this matter came into a legal battle
between ECI and J.Jaylalitha. She had been convicted in TANSI
case under provisions of prevention of corruption Act (PC Act
1988) for more than three years, therefore in view of the
direction of the ECI, her nomination was rejected and she could
not fight the election.
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In spite of it she was sworn-in as CM of Tamil Nadu by the

Governor, Fatima Bibi, a retired SC Judge. There were lot of
legal battle and finally she had to quit till her conviction was
stayed. Supreme Court however ruled that anyone can be
appointed as CM of a state as per article 164 of the constitution
but the matter remained unresolved that whether the convicted
person would fight election or not.
This matter remained unresolved and hardly any person
could be disqualified by the ECI from fighting election on the
ground of conviction in accordance with the provisions of RP
Act.
This issue again come in light when sitting MP of BJP and
cricket star Navjot sidhu was convicted by the Punjab and
Haryana High court in December 2006 under section 304 of IPC
for 3 years. Sidhu resigned and subsequently bye election was
announced. Sidhu sought to fight the election again. The
matter was taken to the Supreme Court and the apex court
gave reprieve to sidhu and temporarily stayed his conviction,
thus siddhu fought election and won.( Navjot sidhu vs state of
Punjab and others appeal (cri) 59 of 2007.
The stay of conviction by appellate court in general is
interpreted in favour of the convict and nominations of such
candidates are accepted by the RO.
This ruling of the apex court in Navjot Sidhu case has
opened a Pandora box vis-a-vis conviction versus elections.
In the present general election 2009 for constitution of
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15 Lok Sabha, so many convicted persons have either filing
nominations or aspire to fight elections. Sanjay Dutt, the film
star, Md Sahabuddin, Surajbhan, Pappu Yadav, all sitting MPs
from Bihar have been convicted by courts. Now all of them are
on bails. Md Shahabuddin has been granted bail only two days
ago by Patna High court. He has however been denied from
fighting elections. Sanjay Dutt has already been convicted
under Arms Act, 1956 for which minimum quantum of
punishment is 7 years. Thus Dutt’s case is also a fit case of
disqualification from fighting election. In UP the mafia don
Bablu Srivastava has also been convicted but he has not been
granted bail. The question is that whether he should be allowed
to fight the fray if he gets bail. If yes, then how people like Abu
Salem, Kasab, Afzal etc will be prevented and disqualified from
fighting elections.
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In UP and Bihar names like Anand Mohan, Muktan ansari,

Atik ahmed, Raja bhaiya etc have either been convicted or
facing trials for offences like murder, attempt to murder etc,
most likely many of them would be successful in fighting
election due to the prevailing situation which is far from
satisfactory. Lawyers like Prashant Bhusan categorically say
that the judgement of Apex court in sidhu’s case was not
correct. In fact this judgement has become a case of precedent.
Ours is a law of precedent and the judgement passed by the
higher judiciary becomes as good as law itself. Taking the
advantage of this provision, the criminals make mockery of the
entire system.
Coming to the crux of the matter, legal issue involved in
these cases is that whether stay in conviction should be treated
as acquittal. If the provision of the Representation of People’s
Act, 1951(section 8(3)) is taken into account, it is clear that
once the person is convicted, he will disqualified and cannot
fight election for the next 6 years after his release.
The legal luminaries are vertically divided on this issue.
One school of thought is of the opinion that a person cannot be
held guilty till the last legal option available to him is
exhausted. It means that a person cannot be said to have been
convicted if he has filed an appeal before the superior court
and the court has accepted it for hearing. Some legal experts
however say that acceptance of petition for admission and
suspension of conviction is two different and separate things.
They further maintain that if the conviction is suspended only
then the person can be said not guilty or convicted.
The problem in our country is that if this proposition is
accepted, hardly any criminal can be prevented from fighting
elections because in India the provisions of appeal, in different
nomenclature like SLP, LPA Single Bench, and Double Bench etc
are numerous and they can go on years and years before all
options are exhausted. In fact taking advantage of this very
provision, large number of criminals succeeds in fighting
elections and makes a mockery of section 8(3) of R.P.Act, 1951.

The other side of the story is that if this provision is

implemented in Toto, large number of political activists would
be deprived of their political rights to fight elections, because
instances of fabrication of false cases against political rivals by
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party in power are abundant. It is therefore a balance has to be

strike and ensure that the criminals do not fight elections.
The time has come that we should make suitable
amendments in RP Act because the provision of 2 years
imprisonment for disqualification has become obsolete after
amendment in section 41 of Criminal Procedure Code which
prohibits arrest by Police in a case in which imprisonment is
less than 7 years. The RP Act should be made an integrated,
comprehensive and complete law for election matters which
may incorporate provisions of model code of conduct also,
because right now we do not have any special law for model
code of conduct and this code is nothing but a compendium of
circulars and instructions issued by ECI time to time. Model
code of conduct as such is not enforceable in the court of law
until it is reinforced by other penal provisions prevailing in
different parts like IPC, Public property defacement act, Laud
speaker Act etc.