The 39 ministers sworn in as part of the cabinet expansion of the Maharashtra government ahead of the winter session of the Assembly in Nagpur on Sunday included BJP’s Nitesh Rane, an MLA who has 38 FIRs against him that includes 66 serious sections — the highest among the list of 288 MLAs that were voted to power in the recently concluded assembly elections. Serious sections are those carrying punishment of two years or above that would disqualify them from contesting if they are found guilty by the courts.
In all, 13 of the 39 MLAs who took oath as ministers during the cabinet expansion have at least one police case against them in which a serious section has been applied, as per their affidavits.
Besides Rane, BJP’s Jaykumar Gore has 18 serious sections across five FIRs and Shivendrasingh Bhosale has16 serious sections across six FIRs against him.
Those inducted into the cabinet include leaders such as Hasan Mushrif, Pratap Sarnaik, Dhananjay Munde and Ajit Pawar, who are facing ED investigations. Even though none of them have been chargesheeted, no closure report has been filed against them either. Chargesheet is a document submitted by police after completing their investigation.
While the Representation of People (RP) Act 1951 mandates that lawmakers who have been convicted in corruption cases or serious crimes — crimes carrying two years’ imprisonment or more — should not be allowed to contest for six years, several netas, including those with several FIRs against them, continue to contest polls. In some cases, police investigation has been dragging on for up to 36 years and in certain other cases where chargesheets were filed, court trials have been pending for over 25 years.
An analysis of the affidavits filed by the 288 winning candidates in the recently concluded Maharashtra elections by The Indian Express reveals that 120 of them, across parties, have serious cases pending against them. While 20 of them have at least eight FIRs against them, 18 MLAs have trials pending for over 10 years. At least 15 others have trials pending for five years or more.
This, despite the fact that there are dedicated courts set up just to hear cases against lawmakers to ensure that they do not face grinding delays that other cases go through in the clogged judicial system. In at least three cases where chargesheets are filed, trials completed and the lawmaker is convicted for a serious offence, the higher court stayed the conviction, enabling them to contest elections.
A closer look at the data shows how the inbuilt mechanism against criminalisation of politics in the RP Act and a Supreme Court order seeking special courts to try lawmakers may not have the impact it desired for the decriminalisation of politics.
In the recently concluded Maharashtra polls, of the total 288 seats, BJP won 132 seats, Shiv Sena (Shinde) 57 and Ajit Pawar’s NCP won 41 seats. Among the key opposition parties, Shiv Sena UBT won 20 seats, Congress won 16 while Sharad Pawar’s NCP won 10 seats among others. An analysis of the record of the lawmakers shows that of the 288 lawmakers, 120 or 41.66 per cent have declared serious cases against them.
CASE DIARIES
Nitesh Rane
BJP’s Nitesh Rane who won from the Kankavli constituency in the Konkan belt and will soon be a minister has the highest number of 38 FIRs registered against him that include 66 serious sections. Majority of these FIRs are related to alleged communal speeches given by him across the state in the past one-and-a-half years.
Of the 38 cases, chargesheets have been submitted in only 10 cases registered earlier. No chargesheet has been filed against him for the alleged communal speeches given by him as so far the government has not given sanction to prosecute him.
Of the 10 cases in which chargesheets have been filed, the courts have framed charges — that begins the process of trial — in just four cases, one of which was in 2020 in which the trial has not come to an end, as per his affidavit. Thus, till the time either the government gives sanction, Rane has nothing to worry even if FIRs pile up against him.
Jitendra Awhad
NCP (SP) MLA Jitendra Awhad, who won from the Mumbra-Kalwa constituency in Thane, faces 22 active FIRs across police stations as per the affidavit filed by him. Among them, police have granted approval to withdraw eight cases and court approval is pending. Awhad faces 45 serious sections in the 22 active FIRs, of which six are pending before the courts and in one case, chargesheet was filed in August 2018. The trial has not concluded in any of the cases, as per the affidavit filed by him.
Manikrao Gutte
Manikrao Gutte of the Rashtriya Samaj Paksha, who won from the Gangakhed constituency in Parbhani, is facing 12 FIRs that includes 28 serious sections related to offences in which if convicted, he would be barred from polls. Of the 12 FIRs, charges have been framed only in three cases.
PROBE DELAYS
Babanrao D Yadav
Babanrao D Yadav (Lonikar) of the BJP who won from Partur in Jalna, declared an FIR in the pending cases section that was registered at Ashti police station in Jalna in 1985. No details have been provided in the column for the sections that have been applied or description of the offence or whether the chargesheet has been filed. If a case is closed, the candidate does not need to mention it in the affidavit whose format seeks details of only pending cases.
Bapusaheb Tukaram Pathare
NCP Sharadchandra Pawar candidate Bapusaheb Tukaram Pathare who won from Vadgaon Sheri in Pune has declared an FIR registered in 1988 at the Yerwada police station under sections 143, 144, 147, 148, 149, 341, 325, 506(2) of the Indian Penal Code. In the column on whether the chargesheet is filed, Pathare has mentioned that no chargesheet has been filed in the case nearly 36 years after the offence was registered.
Delays in trials
Abu Asim Azmi
In an FIR registered against Samajwadi Party MLA from Mankhurd Shivaji Nagar by the Economic Offences Wing of the Mumbai police, charges were framed in 2000 but the case is still listed as pending.
Sajid Khan Pathan
Congress MLA Sajid Khan Pathan from Akola (West) constituency had charges framed against him in August 25, 2010. However, it is still listed as pending case.
Conviction stayed
Seven lawmakers who won the recent elections were convicted of a crime by a court. Of these, four were convicted in minor offences that would not disqualify them, three others had the judgements stayed by higher courts.
Shiv Sena’s Chandrakant Sonawane who won from Chopda seat in Jalgaon was found guilty under the Prevention Of Corruption Act in the Jalgaon Housing scam. He was sentenced to four years by a court in Dhule in August 2019. However, he appealed in the Bombay High Court, which stayed the order.
BJP’s Raju Todsam who won from Arni seat in Yavatmal was convicted in two cases in which the punishment was three years. One case was related to assaulting a Maharashtra State Electricity Distribution Company Ltd (MSEDCL) staffer and obstructing government work over excess electricity bill to one of his supporters, while in the other he and his supporters allegedly ransacked a cotton auction over improper weighing and low prices for cotton farmers.
In both cases, he filed an appeal before the Nagpur bench of the High Court, which stayed the conviction in the first case and declined to stay the second one, following which he appealed in the Supreme Court.
Shiv Sena’s Mahendra Dalvi who won from the Alibag seat in Raigad was convicted for two years in 2022 for allegedly beating up one Babu alias Salim Lalasaheb Digi at Thal in Raigad district in 2013. In April 2023, the Bombay High Court suspended the conviction enabling him to contest the polls and win.
Following a 2017 Supreme Court order, 12 Special Courts (2 in NCT of Delhi and one each in Uttar Pradesh, Bihar, West Bengal, Madhya Pradesh, Maharashtra, Karnataka, Andhra Pradesh, Telangana, Tamil Nadu and Kerala) were constituted just to try cases against lawmakers. Of these 10 special courts are functional in nine states, including Maharashtra.
What does RP Act say
Section 8 of the Representation of People Act, 1951 (RP Act) titled “Disqualification on conviction for certain offences” states that if a person is convicted of any of the offences in the exhaustive list provided in the provision, they will be disqualified from contesting elections to Parliament or state legislatures from the date of conviction onwards and face further a six-year disqualification from contesting elections beginning from the date of their release.This disqualification only kicks in once a person has been convicted and does not apply if they have only been charged with criminal offences.”
However, there are exceptions to the rule. The Election Commission of India (ECI) is empowered under Section 11 of the RP Act to “remove” or “reduce” the period of disqualification. In 2019, the ECI used this power to reduce the period of disqualification faced by Sikkim Chief Minister Prem Singh Tamang who was released following a one-year prison sentence in 2018 for misappropriating funds in the procurement of cows. The Sikkim Krantikari Morcha leader went on to win in the by-election for the Poklok Kamrang assembly seat.
Another situation where a disqualified MP or MLA can still contest is when their conviction is stayed on appeal to a higher court. In 2019, the Supreme Court held that once a conviction is stayed, “the disqualification, which operates as a consequence of the conviction cannot take or remain in effect”.
In recent years, this section has seen two major challenges in the Supreme Court. In 2011, the Public Interest Foundation filed a petition arguing that persons who have criminal charges against them (and are not convicted) or file false affidavits regarding their criminal history should also be disqualified.
However, a five-judge bench headed by the then CJI Deepak Misra in September 2018 unanimously held that only the legislature could alter the RP Act. The bench declined to disqualify lawmakers and candidates from contesting elections upon framing of criminal charges against them. The bench, however, said that the Parliament must make a law to prevent people with serious criminal cases pending against them from entering the legislature and participating in the law-making process.
In 2016, advocate and former BJP spokesperson Ashwini Kumar Upadhyay filed a petition seeking a permanent disqualification for convicted persons. This case is ongoing, and in November 2023, the apex court, taking note of delays in criminal cases against MPs and MLAs, ordered the Chief Justices of all High Courts to register a suo motu case titled “In Re: Designated Courts for MPs/MLAs” for the high courts to issue directions for the “expeditious and effective” disposal of these cases. However, according to a report submitted to the court in April 2024, 4,472 such cases were still pending.
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