However well-intentioned the Supreme Court might be in its efforts to cleanse the political system of criminals, its decision to bar any person who is in jail or in police custody from contesting an election to legislative bodies is a case of the remedy being worse than the disease. By extending the curtailment of the right to vote of a person in prison or lawful police custody to the right of the person to stand in an election, the Supreme Court has, in effect, left the door open for the practice of vendetta politics by ruling parties. All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest. As per the 2004 judgment of the Patna High Court in Jan Chaukidar v Union of India — upheld by the Supreme Court on Wednesday — all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election. The judges relied on the Representation of the People Act (RPA), which says that one of the qualifications for membership of Parliament or State legislature is that the contestant must be an elector. Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies. But law enforcers are notorious for carrying out the orders of their political masters. Confusion and chaos will necessarily follow this order of the Supreme Court unless it is tempered along the lines suggested by the Election Commission, which wants only those cases in which charges are framed six months prior to an election to be taken into account.
Less controversial is the court’s decision to declare Section 8(4) of the RPA ultra vires of the Constitution. Sitting MPs and MLAs will now automatically be disqualified upon being convicted of a serious crime rather than after all their appeals are exhausted. In India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative. Politicians have often taken cover under this section to continue as legislators long after the slow wheels of the law have caught up with them. But here too, there could be complications. An acquittal on appeal during the tenure of the legislature is one. Moreover, a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardised. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications. Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgments.