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People accused of serious crimes becoming public representatives: Does India need a new law to bar criminals and separatists from becoming MPs and MLAs?

For decades, the separatists opposing India and many criminal elements have taken advantage of the Indian Constitution and democratic processe for their benefit

The announcement of the Delhi assembly elections in January has only intensified the political temperature of the national capital. The polls are now around the corner with the voting to commence on 5th February and the results scheduled to be declared on 8th February. All political parties are making their utmost efforts for victory. It is quite evident that all moral principles, which are quite glaringly absent in the political landscape, have been sacrificed for the sake of electoral support, notably from the minority community.

A prime case in point is the All India Majlis-e-Ittehadul Muslimeen (AIMIM), a party that claims to champion the cause of minorities but, in reality, only panders to extremist elements as its entire leadership has a long history of perpetrating divisive and hateful narratives against Hindus. Hence, the endorsement of former Aam Aadmi Party (AAP) councillor Tahir Hussain who has been involved in the 2020 anti-Hindu riots in Delhi, as a party candidate is not surprising. However, it is certainly a disappointing development for the democratic fabric of the nation.

Tahir Hussain has been identified as a prime accused of inciting the violence. His property was utilized to orchestrate the unrest and it served as a hideout for several rioters along with a depot for various weapons, including petrol bombs. He is currently facing several charges including murder, rioting and money laundering under the Unlawful Activities (Prevention) Act. However, the Delhi High Court provided him with custody parole to submit his nomination for the Mustafabad assembly constituency.

While the situation might appear demoralizing, the more pressing concern is that it is the norm and not an exception. The political parties award election tickets to such individuals to enhance their electoral prospects, especially those that predominantly depend on minority votes. They disregard the criminal backgrounds of these candidates because the latter wield a privileged position and considerable influence over the populace. Furthermore, as provisions of Indian democracy allows independent candidates to fight polls, such criminals exploit the opportunity as demonstrated in the recent Lok Sabha election.

Using the country’s democracy to pursue separatist agenda

The Lok Sabha election attracted widespread attention not only because of the surprise results, wherein the Bharatiya Janata Party was left a few seats short of 272, but also for certain people who had marked their presence in the respective constituencies with remarkable triumphs. The name of Amritpal Singh was especially in the headlines after he won from the Khadoor Sahib seat. He has not only advocated for the separation of Punjab from India but is also an outspoken supporter of the Khalistan movement.

The members of his organisation “Waris Punjab De” and supporters even attacked Ajnala police station to release one of their associates from custody. Amritpal Singh has ties to both international Khalistan terror groups and Pakistan’s Inter-Services Intelligence, according to Indian security officials. Photographs of Khalistani flags, symbols, money, firearms bearing the “A.K.F” (Anandpur Khalsa Fauj) and other incriminating proof was uncovered on the phone of one of his close aides.

There were suspicious deposits totaling around Rs 40 crore, primarily from overseas sources, found in the accounts of some “Waris De Punjab” members. According to information, he has been assembling his own army and “human bomb squads” consisting of young people who have been groomed to become suicide bombers like terrorist Dilawar Singh. Even his wife Kirandeep Kaur who lived in the United Kigdom has links with terror outfit Babbar Khalsa.

Amritpal Singh is presently incarcerated at Assam’s Dibrugarh Central Jail under the National Security Act (NSA). He was given a parole and flown to New Delhi for his oath-taking ceremony as an member of parliament. A man who had earlier vowed and left no stone unturned to undermine the sovereignty and integrity of India, as well as to violate the constitution, took an oath to uphold the very tenets he breached and more importantly, intend to do the same until his nefarious goal is achieved.

The electoral victory has fortified his confidence to such an extent that he has now proclaimed the formation of a political party. It was announced at a rally in Muktsar Sahib in the presence of his father Tarsem Singh and Faridkot MP Sarabjeet Singh Khalsa, the son of Beant Singh, one of the assassins of former Prime Minister late Indira Gandhi. Similar to the Shiromani Akali Dal (Amritsar), his party is also poised to manipulate the authority and rights granted by the Constitution with the aim to balkanize and undermine the country.

The next name defeated the present chief minister of the union territory of Jammu and Kashmir and a political royalty Omar Abdullah, from Baramulla. A vocal anti-Indian and anti-Hindu voice from the valley Abdul Rashid Sheikh, popularly known as Engineer Rashid who was arrested under the Unlawful Activities Prevention Act (UAPA) on terror funding charges and is serving his time in the Tihar Jail comfortably managed to defeat the Abdullah scion.

The former had also won the assembly election in 2008 and 2014 from the Langate constituency and even established the Jammu and Kashmir Awami Ittehad Party which joined forces with the radical Jamaat-e-Islami to fight the last Jammu and Kashmir assembly poll. He has a long history of involvement with secessionist outfits, including the People’s Conference led by Abdul Ghani Lone, which was a key participant in the Muslim United Front that contested the 1987 elections with an Islamist agenda. He gained further notoriety in 2015 for arranging a beef party on the lawns of the government circuit.

What does the law say: The right to vote vs the right to be elected

The Supreme Court acknowledged that free and fair elections are a component of the “basic structure” of the Indian Constitution, and that any legislation or policies that would contravene this principle could be overturned, in the 1975 case of Indira Gandhi v. Raj Narain. It also noted that the rights to vote and to be elected do not have the same standing as free and fair elections, despite the fact that they are regarded as the most important constitutional provisions.

In Kuldip Nayar v. Union of India, 2006, a five-judge constitution bench concluded that the right to vote (or the right to elect as it was known) is “pure and simple, a statutory right.” Voting is therefore not a fundamental right and is subject to repeal. The bench observed the same for the right to vote, concluding that both of these statutory rights could be governed by laws passed by Parliament.

“Disqualification on conviction for certain offences” is the heading of Section 8 of the Representation of People Act, 1951 (RP Act). Let us assume that a person is convicted of one of the offenses, which is mentioned in the broad list of offenses in the proviso. In that event, they shall be debarred from seeking election to a seat in the Parliament or State Legislature from the date of their conviction and further prohibited from seeking an election for a period of six years from the date of their release.

A Public Interest Foundation filed in 2011 petitioned to disqualify people who have affidavits which are false regarding their criminal background or who have manufactured criminal charges against them. Nonetheless, a five-judge panel unanimously agreed that the RP Act could be amended only by the legislature. The Election Commission of India (ECI) is authorized by Section 11 of the RP Act to “remove” or “reduce” the period of disqualification.

The former used its powers to reduce the disqualification period for Sikkim Chief Minister Prem Singh Tamang ECI. He was released from jail in 2018 after completing one year for embezzling funds meant to purchase cows. The head of the Sikkim Krantikari Morcha subsequently won the Poklok Kamrang assembly seat in the bye-election. A disqualified MP or MLA can challenge his conviction on the ground of stay of such verdict while his petition is before a higher court.

The Supreme Court pronounced, in 2019, “the disqualification which operates as a consequence of the conviction cannot take or remain in effect” in case of an order of deferment of such order. Former Bahujan Samaj Party MP Dhananjay Singh, convicted of abduction in 2020 by a district court, approached the Allahabad High Court and filed a petition for staying his seven-year sentence to permit him to contest the Lok Sabha election. However, the court refused to put off the judgment, stating, “it is the need of the hour to have purity in politics,” although granting him bail.

“No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police,” reads subclause (5) of Section 62 of the RP Act, on the other hand, which places a number of restrictions on the right to vote. This provision effectively disenfranchises anyone who has been charged with a crime from voting unless they have been granted bail and/or acquitted except those under preventive detention.

A challenge to Section 62(5) was junked by the highest court in the 1997 case of Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of India. It was contended that the rule denies undertrials and those detainees who are remanded for the inability to pay the sum of bail while the same was not applied to those who received bail and hence infringed on the right to equality.

The court dismissed this argument for four reasons. The court restated that voting rights are statutory rights that could be restricted by statutes. It then highlighted that there is a “resource crunch” since police would need to be deployed and infrastructure would need to be provided.

A prisoner then “cannot claim equal freedom of movement, speech, and expression” due to his actions. Last but not least, restrictions on inmates’ right to vote make sense because they are tied to preventing “persons with criminal backgrounds from being present at the election scene.” The judgments were lately cited by the Delhi High Court in the year 2020 and also by the Supreme Court in the year 2023 while rejecting pleas for voting rights for prisoners.

Ashwini Kumar Upadhyay, a Bharatiya Janata Party leader and advocate, had submitted a plea in 2016 for permanent disqualification of the guilty. In November 2023, the apex court ordered the chief justices of all high courts to register a suo motu case titled “In Re: Designated Courts for MPs/MLAs” with regard to the delays in criminal cases against MPs and MLAs. The matter is still under consideration, and the high courts are directed to issue guidelines to deal with such matters in a “expeditious and effective” manner. However, 4,472 such cases are still pending based on a report filed before the court in April 2024.

Threat to national security, law and order

For decades, the separatists opposing India and many criminal elements have taken advantage of the Indian Constitution and democratic processe for their benefit. Former Lok Sabha MP Simranjit Singh Mann is yet another startling example of it. Unfortunately, the issue doesn’t pertain to one or a few parts of the country but have been prevalent in other areas including Kashmir and the Northeast as well. Despite their overtly anti-India statements and criminal backgrounds, these individuals are not precluded from becoming lawmakers. Their participation in Indian polity is also a considerable waste of time and resources mainly because some of these individuals opportunity to participate in parliamentary functions or contribute as public representatives.

It is essential to recognize that this matter is intrinsically linked to the preservation of law and order, as well as the overall safety and security of the nation. When individuals with such egregious criminal backgrounds are elected to Parliament or State Legislature, it is unrealistic to expect that they will enforce laws aimed at ensuring the nation’s safety and security as their presence in such powerful places can only enhance their ability to inflict harm from within and damaging social cohesion and law and order while safeguarding themselves and their kind.

They also utilise the authority to further their ideologies and crimes. This even encourages others who are akin to them. The Babhubali culture and its influence on politics are a testament to this assertion. Gangsters such as Atiq Ahmed and Mukhtar Ansari exemplify how they exploited legal frameworks to advance their criminal enterprises and communal agendas. Political parties also need to stop catering to them and stop such elements from gaining political power.

It is also essential to emphasize that the polity alone cannot be held accountable for this situation, rather, the electorate must be educated and encouraged to look beyond narrow political interests, personal benefits and favoritism. There is an urgent need for increased education and awareness regarding this issue.

However, the realization of this objective could span decades or even generations. Hence, a preliminary step could involve imposing a law that prohibits such accused from engaging in the electoral process, which would allow for further developments to follow. This matter is of utmost importance and therefore, requires attention with the same level of proactivity and urgency.

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