DECRIMINALISING INDIAN POLITICS: SYNCHRONISING DEMOCRATIC PROBITY AND FAIRNESS IN INDIA'S ELECTORAL SET-UP

Abstract

govern themselves cannot be overemphasised. The modern democratic governments mostly act as people’s representatives, exercising delegated agency for the performance of sovereign functions. The prosecution of criminals is one such important function performed by the State on behalf of society. Therefore, the logical corollary is that the State authority should itself be free from any kind of criminal vice, in order for it to exercise the moral authority for the prosecution of criminals. Section 8 of India's Representation of the People Act, 1951, thus prohibits anyone found guilty of a crime that carries a sentence longer than two years from holding a representative office. This paper reviews Sections 8 and 11 of the RoPA, whereby it is contended that the sceptre swayed by these legislative provisions is inadequate and impaired in its application. The authors critically examine the adequacy of the legislative provisions in achieving their objective of divorcing criminality from political participation, including from historical and modern standpoints. The authors shall propose a novel approach to legislative reform, aimed at eliminating the menace of criminality in politics. This approach will strive to strike a balance between an unduly harsh and draconian disqualification and one that is toothless and ineffective in the context of convicted (and accused) politicians. For this purpose, the paper shall begin with the legislative history and the rationale behind Section 8, enlisting similar laws in other democracies. Thereafter, in the second part, the authors shall empirically examine the inadequacy of Sections 8 and 11 by exposition of instances of its impaired application. Finally, the authors shall propose a novel and nuanced approach which balances the need for ethical politics, devoid of criminality and also safeguards the freedom of people to contest elections.