A decision to disqualify chargesheeted candidates could also affect sitting legislators.

The Supreme Court is examining a PIL filed by the Public Interest Foundation on the criminalisation of politics. The PIL asks that persons charged with serious criminal offences be debarred from contesting elections to Parliament and state assemblies.

The Election Commission has filed an affidavit supporting the PIL and stating that if the offence has a maximum punishment of imprisonment for five years or more, the chargesheeted person should be disqualified from being a candidate. It says that the framing of charges implies that the person does not have the adequate integrity and character required of a candidate for high public office.

There are two significant arguments that can be made against this case. First, the PIL ignores the basic premise that a person is innocent until found guilty through the judicial process. The second problem is that this position skews the incentive for political parties towards framing their political opponents to keep them out of the contest.

The Election Commission contests these arguments and states that these issues are addressed by the fact that charges are framed by a court after judicial scrutiny. The court looks at the allegations and the evidence, and frames charges only if it determines that there is a prima facie case. This judicial process protects a prospective candidate from frivolous allegations. The person is still not adjudged guilty; he is only debarred from contesting elections to legislative bodies.

However, the standing committee of Parliament that examined the issue took a different position. It pointed out that at the time of framing of charges, the court is not required to appreciate evidence to conclude whether it is sufficient for convicting the accused. It also said that the prosecution could be influenced by the party in power and there is the likelihood of framing false and malicious charges.

The National Commission to Review the Working of the Constitution had also examined this issue. It proposed a protection through a delayed implementation of the disqualification. That is, for a person to be disqualified from contesting elections, the charges should have been framed at least one year prior to the election. It also recommended that special courts with powers equivalent to high courts be set up for the speedy disposal of such cases.

The recent Supreme Court judgment in the Lily Thomas case adds a new angle to the discussion. This was the judgment that struck down the three-month period given to sitting legislators to appeal if they were convicted, and to continue as members until the appeal was decided. The judgment interpreted two articles of the Constitution to reach its conclusion. It said that Article 102(1) required that there be no differentiation between sitting members and those contesting elections. That is, any law made by Parliament regarding disqualification from legislative bodies has to treat both these categories in an identical manner. It also said that Article 101(3)(a) stated that, on disqualification, the seat would immediately become vacant. Based on these two interpretations, the court ruled that there could not be an exception clause for sitting legislators, and that they would be disqualified immediately if they were convicted of any of the offences that invited disqualification.

Let us apply the same rationale to the issues raised in the PIL. If the court upholds the PIL, it will result in a direction that any person who is chargesheeted for a serious criminal offence will not be permitted to contest elections. The corollary to this potential order, using the Lily Thomas rationale, would be: if any sitting MP or MLA is chargesheeted for such an offence, he or she would be immediately disqualified and would have to vacate the seat.

Therefore, the bar set by the Lily Thomas judgment to disqualify a sitting legislator will be lowered significantly. Following the judgment, the position is that any person loses his seat in Parliament or a state legislature if he is convicted for a certain set of offences (including any conviction where the sentence is imprisonment of two years or more). Given that charges are framed at a preliminary stage, before the evidence is subjected to cross-examination, it is possible to complete the process of chargesheeting with less rigour than that needed to convict a person (which requires the court to find that he is guilty beyond reasonable doubt). This implies that it would be easier to disqualify an elected MP or MLA if the Supreme Court passes an order in favour of the PIL. The fact that conviction rates are not very high indicates that several sitting legislators could be disqualified even if they are later found not guilty. It is important that these consequences be considered while the court examines the PIL.