DEMOCRACY ON TRIAL: A CASE OF TEMPORARY DISQUALIFICATION OF PEOPLE’S REPRESENTATIVES UNDER SECTION 8B OF THE REPRESENTATION OF THE PEOPLE ACT

Abstract

A recent report by the Association of Democratic Reforms, dated 6th June, 2024, reveals that 46% of the newly elected members of the Lok Sabha have criminal cases registered against them, with 27 already convicted. This report underscores the recommendation made by the 244th Law Commission of India advocating for the enactment of Section 8B of the Representation of the People Act, 1951. The proposed section suggests the disqualification of such representatives from contesting elections once the charges are framed for serious offences. The proposed amendment was never enacted, but it highlights society's deep concern about the growing trend of criminalisation in politics, which threatens constitutional democracy. The Supreme Court, in Public Interest Foundation v. Union of India, held that a person cannot be disqualified from membership in a legislative body merely on the framing of criminal charges, and hence missed an opportunity to enable much needed reforms. This issue resonates with the recent case of Ashwini Kumar Upadhyay v. Union of India, which raises the question of whether candidates facing serious criminal charges should be barred from contesting elections. In light of these developments, this paper evaluates the constitutionality and effectiveness of Section 8B. Part I examines the current legislative and judicial landscape for electoral disqualifications. Part II dissects the substance and intent of Section 8B while also addressing the arguments made against the temporary disqualification of candidates. It further addresses safeguards under Section 8B. It underscores the ineffectiveness of judicial intervention in curbing the cancer of the criminalisation of politics. Part III undertakes a comparative analysis of political decriminalisation with other countries, followed by an exploration of the practical implications, concluding with recommendations for enhancing electoral and legislative integrity.