Opinion: Is there provision to disqualify a candidate before elections, asks Justice K Chandru
Justice K Chandru (Illustration by Varghese Kallada)

Opinion: Is there provision to disqualify a candidate before elections, asks Justice K Chandru

With the announcement of by-elections to Thanjavur, Aravakurichi and Tirupparangundram, feverish activities have started. The two major political parties, the DMK and AIADMK have announced their candidates for the by-polls. Surprisingly, they have re-nominated, the very same candidates who went to the polls during the General Elections that was held in May 2016.

Chennai

The PWF has decided to boycott the elections, many eye-brows have been raised and the popular question posed is whether the candidates whose conduct lead to the postponement of the elections can once again be fielded in the by-polls. Before looking into the legal angle, the circumstances that lead to the ordering of the by-poll should be recapitulated. In Tirupparangundram constituency the candidate, who got elected prematurely died and hence the by-poll. In respect of Aravakurichi (Karur) and Thanjavur, the postponement of elections during the month of May was necessitated due to the large scale corrupt practices, including bribing the voters indulged by the two major political parties and their candidates, and the subsequent report sent by the election observers, lead to the postponement of the poll. 
The nature of report, regarding the “cash for vote” scam, was not divulged. But since there is a constitutional requirement of holding the polls, the election commission has announced new dates.
With the countermanding of the two elections (Aravakurichi and Thanjavur) , is it proper for the two major political parties to nominate the very same candidates for those two constituencies? Can they be constitutionally or legally disqualified from the contest is the question which is exacting the minds of many. Under Article 173 of the Constitution, a citizen of India can contest the Assembly poll provided he is a 25 years of age and above. 
Under Article 191, he can be disqualified if he holds any office of profit with the government or of unsound mind or an insolvent or if he suffers from any disqualification prescribed by the law made by the Parliament. He can also be disqualified if he defects to another political party during his tenure. The People’s Representation Act, which is a law enacted by the Parliament also prescribes further disqualifications like a conviction in a criminal case etc. But all these disqualifications will get attracted after a person gets elected to the assembly; before a person contests the election, there is no method by which he/she can be disqualified on such grounds. 
Since in the case of Aravakurichi and Thanjavur  the election commission had countermanded the elections, whether the same candidates can be fielded, is the question. Unfortunately, both the Constitution and the Representation of People’s Act are silent on this aspect. It is only after the Election Commission, exercising a supervisory control, started issuing various directives including a model code of conduct under Article 324 of the constitution a level playing field came into the process. Thanks to the Supreme Court’s intervention in the case filed by the Association for Democratic Reforms (2002) the Supreme Court guaranteed the right of the voters to know the criminal background of candidates as well as their educational qualification and the assets owned by them and their spouses. 
This was on the belief that a well-informed citizen can exercise his/her choice in a better manner. Beyond this the Parliament did not choose to make any further provisions in the election laws so that a corrupt candidate can be eliminated even before the poll. Therefore in the by-polls for the three constituencies the only choice open to the voters is to wait for the poll outcome and thereafter challenge the winning candidate on grounds of corrupt practices including bribing the voters.

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