Updated February 5, 2022
Elections and other political processes are crucial to the quality of a country’s governance. It can either greatly advance or set-back a country’s long-term development. So, an election should be inclusive, transparent and accountable. But, in recent days elections are often influenced by the various malpractices. People’s Representative influences the elections through various unethical techniques including Voter Bribery, Muscles Power, voter intimidation, manipulation through media etc. These all play a crucial part in determining the result of elections. The increase in malpractices, corruption in politics is destroying the very system and edifice of our parliamentary democracy.
These malpractices are not only being used in the current days, albeit many such events have been taken over the years to alter the result of the elections. So, to stop these malpractices and provide a free and fair electoral process, the parliament of India constituted many Act and articles. Part XV of the constitution of India consists of Articles which deals with the elections and establishment of the election commission on these matters. It consists of Article 324 to 329 that deals with the electoral system in our country. Constitution of India allows Parliament to make provisions within the range of Doctrine and basic Structure of constitution in all matters relating to elections. In exercise of this power, the Parliament has enacted laws like Representation of the People Act 1950 (RPA Act 1950), Representation of the People Act 1951 (RPA Act 1951).
The act was passed by the parliament under Article 327 of the constitution. It provides for the conduct of election to the parliament and state legislatures. It also clarifies about the qualifications and disqualifications for membership of those Houses.
Qualification Required for the Membership of the Parliament Under People Representation Act, 1951-
1. According to the Representation of People Act, a person shall not be qualified to be chosen to fill a seat in the Lok Sabha unless:
(a) Only a registered elector can contest an election. Thus, he must be registered as an elector for a parliamentary constituency and must be eligible to vote.
(b) A member of any Scheduled Caste of any state can contest elections; in the case of a seat reserved for the Scheduled Castes in any State.
(c) A member of any Scheduled Tribe of any state can contest elections in the Lok Sabha; in the case of a seat reserved for the Scheduled Tribes.
(d) However, an SC/ST person can also contest elections on an unreserved seat.
(e) He is an elector for any Parliamentary constituency; in case of any other seat.
2. Qualification for membership of the Rajya Sabha: A person shall not be qualified to be chosen as a representative of any State or Union territory in the Rajya Sabha unless he is an elector for a Parliamentary constituency.
The Representation of the People Act (RPA), 1951 is an act of parliament of India which was enacted to deal with the following electoral matters
(a) Conduct of elections to the Houses of Parliament and the Houses or Houses of State Legislature of each State.
(b) Qualifications and disqualification for membership of parliament and the state legislatures.
(c) Notification of general elections.
(d) Administrative machinery for the conduct of elections
(e) Registration of political parties.
(f) Conduct of elections
(g) Free Supply of certain material to candidates of recognised political parties.
(h) Disputes regarding elections
(i) Corrupt practices and electoral offences.
A person can be disqualified on the following grounds:
Sections 8 to 10 of the Act deals with disqualification of people’s representative.
Section 8- A person convicted of an offence punishable under certain acts of Indian Penal Code like Protection of Civil Rights Act 1955, Unlawful Activities (Prevention) Act 1967, (Prevention) Act 1967, Prevention of Corruption Act 1988, Prevention of Terrorism Act 2002 etc. and offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., shall be disqualified.
Section 8A- Disqualification on ground of corrupt practices.
In a report of 2013, almost 2171 candidates were disqualified by the Election Commission in a bid to ensure free and fair elections and to curb the use of money power. These all candidates were disqualified under Section 8A.
Section 9- Disqualification for dismissal for corruption or disloyalty- A person who has held an office under the Government of India or under the Government of any State has been dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years from the date of such dismissal
Rashtriya Janata Dal (RJD) chief Lalu Prasad Yadav and JD(U) MP Jagdish Sharma were formally disqualified from the Lok Sabha, (they both were convicted in the Bihar fodder scam)
Section 9A- Disqualification for government contracts etc.
Section 10- Disqualification for office under Government company:-
A person shall be disqualified if he is a managing agent, manager or secretary of any or corporation in which the government has at least 25% share.
Section 10A- Disqualification for failure to lodge account of election expenses.
In 2014, Smt. Umlesh Yadav Vs Election Commission case- The election commission disqualified Smt. Umlesh Yadav, the sitting MLA from Bisauli in Uttar Pradesh under Section 10A of the RPA, 1951.
The remedies available to such person against his disqualification include:
(a) Section 11 of RPA, 1951 mentions that election commission can remove any of the disqualifications except under section 8A or reduce the period of any such disqualification.
(b) Judicial petition: The person in question can file a petition in the high court and then in Supreme court to challenge the verdict of disqualification.
Supreme Court too has given judgements with regard to disqualification. In Lily Thomas Vs Union of India, the Supreme Court declared section 8 (4) of the Representation of the People Act, 1951 (RPA) which allowed legislators a three-month time to appeal against their conviction as unconstitutional, as this section effectively delayed their disqualification because they would file an appeal in the higher court and continue in the House.
Supreme Court upheld Patna High Court judgement debarring persons in judicial and police custody from contesting elections (Section 62 (5) of the Representation of the People Act 1951).
The Supreme Court recently decided to lay down the law on whether the country should even wait until a corrupt legislator is convicted and disqualified from the Parliament or Assembly or whether he/she should be disqualified at the very stage of framing of charges against him/her by the trial court.
Free and fair elections are the foundations of any democracy. Thus, the timely reforms to the electoral process by ECI, according to the changing needs of the society and the strong review of the judiciary are necessary to prevent corrupt and dishonest legislators from contesting elections.