Press Release : Himachal Pradesh Assembly Election 2017 - Analysis of Sitting MLAs Against Whom Charges Have Been Framed by The Court for Offences Falling Under Section 8(1) (2) & (3) of The R.P Act,1951

0 views

Skip to first unread message

ADR India

unread,

Oct 21, 2022, 5:14:36 AM10/21/22

to national-el...@googlegroups.com, national...@googlegroups.com

Press Release

Date: October

21, 2022

Dear Friends,

Association for Democratic Reforms (ADR) and Himachal Pradesh Election Watch have analysed the affidavits of 68 sitting MLAs from Himachal Pradesh Assembly 2017. Out of these 68 MLAs, there are 6 MLAs (9%) against whom charges have been framed by the court for offences falling under Section 8(1) (2) & (3) of the R.P Act, 1951. This report analyses:

The number of MLAs with criminal cases which fall under Section 8(1) of the RP Act who will be disqualified, if convicted
The number of MLAs with criminal cases which fall under Section 8(2) of the RP Act and who will be disqualified, if they are convicted with a punishment of not less than 6 months,
The number of MLAs with criminal cases which fall under Section 8(3) of the RP Act who will be disqualified, if they are convicted with a punishment of not less than 2 years.

To access the full report in English and Hindi: https://adrindia.org/content/analysis-sitting-mlas-against-whom-charges-have-been-framed-court-offences-falling-under

About Section 8(1), (2) & (3) of RP Act, 1951:

Section 8 of the Representation of People Act, 1951 lays down disqualifications for persons being chosen as, and for being, a ‘Member of either House of Parliament’ as well as a ‘Member of the Legislative Assembly or Legislative Council’ of the State. Sub-sections (1), (2) and (3) of Section 8 of the Act provide that a person convicted of an offence mentioned in any of these sub-sections shall stand disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his/her release.

The offences listed under Section 8 (1), (2) & (3) are serious/grave/heinous in nature and cover offences under Indian Penal Code, 1860 (IPC) such as murder, rape, dacoity, robbery, kidnapping, crimes against women, bribery, undue influence, enmity between different groups on ground of religion, race, language, place of birth. It also covers offences relating to corruption and money laundering, offences relating to production/manufacturing/cultivation, possession, sale, purchasing, transport, storage, and/or consumption of any narcotic drug or psychotropic substance, offences relating to FERA, 1973, offences relating to hoarding and profiteering, adulteration of food and drugs, dowry etc. In addition, Section 8 also covers all the offences where a person is convicted and sentenced to imprisonment for not less than two years.

Summary and Highlights

There are a total of 6 MLAs who have declared criminal cases where the charges have been framed under Section 8(1) (2) & (3) of the R.P Act,1951
All 6 MLAs are from BJP.

Analysis of Pending Criminal Cases of MLAs who have declared criminal cases where the charges have been framed under Section 8(1) (2) & (3) of the R.P Act,1951

As per details of criminal cases declared in the self sworn affidavits submitted by the MLAs while contesting Himachal Pradesh assembly elections in 2017 and bye-elections held thereafter, pendency in respect of criminal cases where charges have been framed under Sec 8 (1), (2), (3) is shown below. However, it may be pointed out that the status of these cases may have undergone a change over the years for some MLAs. The exact current status will be known only in respect of MLAs who decide to re-contest in the Himachal Pradesh Assembly elections 2022, after they file their nomination papers.

The average number of years that criminal cases against 6 MLAs have been pending is 5 years.

2 MLAs have a total of 2 criminal cases pending against them for five years or more.

Criminal cases pending for the period:

11 Years

7 Years

4 Years

3 Years

1 Years

· Forgery of valuable security, will, etc., Forgery for purpose of cheating, Cheating and dishonestly inducing delivery of property, Using as genuine a forged document or electronic record: Dr. Rajeev Bindal of BJP from Nahan constituency

· House-trespass after preparation for hurt, assault or wrongful restraint, Punishment for Rioting: Surender Shourie of BJP from Banjar constituency.

· House-trespass after preparation for hurt, assault or wrongful restraint, Voluntarily causing hurt to deter public servant from his duty, Punishment for criminal intimidation, Punishment for Rioting, Assault or criminal force to deter public servant from discharge of his duty: Rakesh Pathania of BJP from Nurpur constituency.

· Mischief by injury to works of irrigation or by wrongfully diverting water, Mischief causing damage to the amount of fifty rupees, Punishment for Rioting, Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment: Hans Raj of BJP from Churah constituency.

· Punishment for Rioting: Jia Lal of BJP from Bharmour constituency.

· Punishment for Rioting: Govind Singh Thakur of BJP from Manali constituency

Observations by ADR

I. On 10^th August, 2021 the Supreme Court of India penalised 10 political parties that had contested the Bihar Assembly Elections, 2020 for not complying with the Supreme Court’s orders dated 13^thFebruary, 2020 and 25^th September, 2018 that had directed political parties to publish and list out reasons on their website including their social media platforms for nominating candidates with criminal background within 72 hours of the selection of such candidates. Taking a lenient approach, the penalty of Rs 1 lakh and Rs 5 lakh was imposed because the political parties had failed to follow the SC directions inspite of the repeated reminders from the SC and other main stakeholders. Infact, with their sole agenda of winning elections, political parties had purposely fielded such tainted candidates with criminal background and overlooked the critical credentials necessitated in a participatory democracy such as merit, integrity, honesty, qualifications and achievements.

II. The order dated 10^th August, 2021 clearly indicates that neither the ‘Legislature nor the ‘political parties will ever take any concrete steps in the directions to eliminate the ‘Muscle-Power’ from the Indian Political System. The Supreme Court in its order dated 10^th August, 2021 had sadly observed, “This Court, time and again, has appealed to the law-makers of the Country to rise to the occasion and take steps for bringing out necessary amendments so that the involvement of persons with criminal antecedents in polity is prohibited. All these appeals have fallen on the deaf ears. The political parties refuse to wake up from deep slumber…”

III. In order to curb increasing criminality in politics, the Supreme Court has, lately given six orders; 10th March, 2014 (Trial within one year); ; 27^th August, 2014 (Prerogative of Prime Ministers and Chief Ministers of the State to not appoint ministers in their cabinet with criminal background); 1^st November, 2017 (Special 11 fast-track courts); 25^th September, 2018 (Publication of criminal cases); 13^th February, 2020 (Reasons for giving tickets to candidates with criminal background), 10^th August, 2021 (Penalty to Political Parties for not complying with SC orders). Unfortunately, none of these orders have been able to dissuade parties from giving tickets to candidates with criminal background. In 2018, the Supreme Court had said, “The nation eagerly waits for such legislation, for the society has a legitimate expectation to be governed by proper constitutional governance. The voters cry for systematic sustenance of constitutionalism. The country feels agonized when money and muscle power become the supreme power.”

IV. This void in law is detrimental to the public interest. Only stringent action and measures are required to be taken by the judiciary. Mere warnings or levying miniscule penalties will certainly not help in eradicating criminal elements from elections. It is a known fact that reforms cannot be left to the wisdom of our leaders and political parties. Therefore, it is the need of the hour that the Supreme Court steps in the area left purposely vacant by our lawmakers and comes up with directions by debarring the entry of such elements from our electoral and political process.

V. It is high time that the courts dispense with the belief that ‘disqualification of candidates with criminal background is outside the scope of their powers.’ The ‘separation of powers’ doctrine has a concomitant doctrine called ‘checks and balances. While each pillar of the Federal Structure is independent in the exercise of its functions, however, if any one pillar does not do what it is supposed to do or does something wrong, the other two pillars are expected to step in to correct the distortions arising out of the inability or unwillingness of the one pillar to perform its responsibility as indicated in the constitution. The implication is that while the authority of each pillar is independent, it is not absolute. It is subject to be ‘checked’ and ‘balanced’ by the other two pillars.

Contact Details

Himachal Pradesh Election Watch

Mr. O.P. Bhuraita
State Co-ordinator
+91 9318820000, +919418454867
opbhu...@gmail.com opbhu...@rediffmail.com