NOMINATION OF CANDIDATES

Criminalisation of Politics.

Whereas, sub-section(4) of section 8 of the Representation of the People Act, 1951, states that none of the above mentioned disqualifications will take effect in case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, till 3 months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court; and

Whereas, it has been often observed that even those persons who are not the sitting members of Parliament or State Legislatures on the date of conviction, contest election if they have filed an appeal or application for revision and have bee granted bail during pendency of such appeals/revision; and

Whereas, the Commission has carefully examined and considered the question whether such persons who have been convicted of offences mentioned in the said section 8 of the Representation of the People Act, 1951, can contest elections during the period when they are released on bail, pending disposal of their appeals or applications for revision; and

Whereas, the Commission has observed that this very question has come to be considered by several Hon'ble High Courts and they have taken the view that the release on bail does not wipe off the disqualification under the said section 8 of the Representation of the People Act, 1951; and

Whereas, it has been observed that the Hon'ble Madhya Pradesh High Court, while dealing with the case of Purshottamlal Kaushik Vs. Vidya Charan Skukla (66 Election Law Reports-110) held in that case as follows:-

"It is obvious that the decision of the returning officer must depend on facts as they existed on the date of scrutiny since it is beyond human comprehension to visualise subsequent events and to base the decision of validity of nominations on the unknown future events. 'The improper rejection' of a nomination within the meaning of expression used in section 100(1) (c) and 'improper acceptance' in section 100(1) (d) (i) of the R.P.Act, 1951, must, therefore, mean whether the rejection of acceptance of the nomination by the returning officer was improper with reference to section 36(2) (a) on the basis of facts existing on the date of scrutiny which alone were available to him and were relevant for deciding the validity of the nomination.

...........The question now is of the effect of suspension of the sentence by the appellate Court. Section 389 Cr. P.C. which gives this power to the first court till filing of appeal and then to the appellate court enables suspension of execution of the sentence or order appealed from. It is only the execution which is suspended and nothing more with the result that the sentence awarded is not to be suffered during the pendency of the appeal even though it subsists and the appellant is released on bail. There is no indication in section 8(2) of the R.P.Act that the disqualification thereunder remains in abeyance during the pendency of appeal against conviction. On the other hand, section 8(3) gives the contrary indication by laying down an exception only in case of sitting members. Suspension of execution of the sentence or order and grant of bail under section 389 Cr. P.C. has the only effect of avoiding sufferance of sentence pending appeal, but then in order to attract the disqualification under section 8(2) it is not necessary to suffer any part of the sentence awarded. This has also been held by the Supreme Court in Sarat Chandra's case (Supra): This decision also indicates that suspension of sentence does not wipe out the conviction and sentence. It was held that a reprieve is a temporary suspension of the sentence which does not wipe it out; all that it does is to have an effect on the execution of the sentence. If suspension of sentence during pendency of an appeal does not have the effect of wiping it out, it is difficult to accept the contention that the disqualification under section 8(2) remains arrested or in abeyance during operation of the suspension order pending appeal against the conviction and sentence. This is more so, when in section 8(2) there is nothing to support this view and section 8(3) gives contrary indication."; and

Whereas, the Hon'ble High Court of Judicature at Allahabad also took a similar view in the case of Shri Sachindra Nath Tripathi Vs. Doodnath (84 Election Law Reports 46). and while declaring the election as void of Shri Doodnath, who stood convicted by the trial court for offences under sections 302 and 307 IPC, and who stood released on bail during the election period, held that:-

"The disqualification, which is an automatic effect of convection, springs up right at the time of pronouncement of conviction, which finding is yet to be reversed or set aside.

............It is to be seen as to what is the effect of bail, granted to the respondent before the date of filling the nomination paper. If no bail is granted and the execution of the sentence is not suspended by the stay orders, then the accused will remain in jail and the only effect of granting bail is that he is released from the confinement. Grant of bail does not interfere with the finding of conviction and that cannot render the disqualification, automatically emerging from conviction, inoperative": and



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