India being a democracy, elects its leaders every 5 years. The leaders who govern them are from among the people themselves. The contestant who garners the most votes in an election gets to govern the people for the next 5 years.
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The basic qualifications that are required to fight an election are: –
There are many other conditions for a candidate to qualify but these are the basic conditions that are to be fulfilled.
The act which lays down the rules for elections in India is The Representation of People Act, 1951.
The holding of free and fair elections is the sine-qua-non of democracy. To ensure the conduct of elections in a free, fair and impartial manner, the constitution-makers incorporated Part XV (Articles.324-329) in the constitution and empowered Parliament to make laws to regulate the electoral process.
So keeping in context, the parliament enacted the Representation of People Act, 1951 to govern elections all over India.
The act contains all the statutes regarding elections in India. It grants the ECI power and independence to conduct fair elections and also decides the eligibility of voters as well as the candidates.
In the Representation of the People Act, 1951, there is no mention of minimum educational qualification to fight an election.
According to experts, in a country where the literacy rate is low, adding a minimum educational qualification would undermine democracy and take away the rights of rural labourers to fight elections and represent people like them.
But Haryana government has passed a bill legislating the minimum educational qualification for elections to the Panchayati Raj Institutions. The Bill fixes, matriculation as an essential qualification for general candidates. The decision of the Haryana State Assembly was upheld by the Apex Court in the case of “Rajbala & Ors vs the State Of Haryana”.
The court while upholding the bill said that education helps us differentiate between right and wrong and can help make the person a better administrator.
The Representation of the People Act, 1951 says nothing about pending criminal charges against a candidate, so a candidate with numeral criminal charges against him can fight elections without any problem.
Critics justify it by saying that if candidates started getting disqualified just for pending cases against them, then there would be many false cases registered to avoid some candidates from fighting elections.
The law only says about people who have been convicted in a criminal trial. RPA says that a person cannot fight election for 6 years from the date of conviction in a criminal trial, also, the statute will come into effect if the punishment for the crime committed should be more than 2 years.
They are allowed to contest elections because the act which governs the disqualification of candidates says nothing about pending criminal charges and even if you are convicted, you will face a ban of only 6 years before you can contest again.
The RPA, 1951 lays down certain rules for disqualification of MPs and MLAs.
Section 8 (3) of the Act states that if an MP or MLA is convicted for any other crime and is sent to jail for 2 years or more, he/ she will be disqualified for 6 years from the time of release. Even if a person is on bail after the conviction and his appeal is pending for disposal, he is disqualified from contesting an election.
Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
The Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires and held that the disqualification takes place from the date of conviction.
RPA , 1951
The Supreme Court has blatantly denied banning criminals in politics by saying it “can not” do that. The court has although asked the Parliament to enact a law as soon as possible to avoid criminals from entering politics.
There have been multiple times when this issue has been raised in the apex court. On January 24th, 2020, the Election Commission of India told the Supreme court that candidates with criminal past should not get tickets.
A plea was filed in the Supreme Court to ban convicted criminals from contesting elections or holding an office under the government. The plea argued that if a person has been convicted once by a court, he can never apply for a government job. As serving the people also comes under the government, why should the lawmakers be exempted from this rule.
The central government replied that the elected representatives and other government officers are governed by different acts.
The elected representatives are governed by the Representation of the People Act, 1951 and are bound by the oath they take to serve people.
When the petitioner asked the court to extend the ban on candidates who are convicted in a court of law from 6 years to a lifetime ban. The government submitted that such a direction would amount to amending the law and requested the court to not enlarge the scope of the petition and challenge the vires of the law.
The central government is in no mood to ban criminals from politics and thus refuses to amend the concerned Act. This can be seen in the present government as 50% of the ministers have pending criminal charges against them.
As RPA does not have any provision to stop people from criminal backgrounds and the government and the Court is in no mood to amend the law, politicians with criminal cases against them can contest the elections with ease.
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