DECRIMINALIZING POLITICS
The Supreme Court has held that persons in lawful custody — whether convicted in a criminal case or otherwise — cannot contest elections. The ruling, however, does not apply to those on bail.
A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya dismissed appeals filed by the Chief Election Commissioner and others against a Patna High Court judgment that in 2004 had held that when a person in custody is disqualified from voting he or she must be disqualified from contesting in elections too.
In its order, the Bench said: “We have heard counsel for the [political] parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of Section 62 (5) of the Representation of the People Act 1951 is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.”
Jan Chaukidar (Peoples Watch) and others filed petitions in the Patna High Court contending that a person, who was confined in prison, whether under a sentence of imprisonment, transportation or otherwise, or was in the lawful custody of the police was not entitled to vote by virtue of Section 62 (5) of the RP Act and accordingly was not an “elector” and was, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State.
The High Court accepted this contentionand held “A right to vote is a statutory right, the Law gives it, : the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is [a] privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls.” Aggrieved by the findings of the High Court, the appellants filed the appeals and the Bench dismissed them and upheld the findings rendered by the High Court.
questions unanswered
Although it has been hailed as a boon for the health of democracy, the Supreme Court judgment disqualifying an MP or an MLA immediately on his conviction is vulnerable to attack for one major reason of propriety or judicial discipline: It is contrary to a decision on the same issue by a larger bench.
While Wednesday's verdict striking down Section 8(4) of the Representation of the People Act was pronounced by a two-judge bench, the one it overruled was delivered in 2005 by a five-judgeConstitution bench.
In Lily Thomas vs Union of India, the bench of Justices A K Patnaik and S J Mukhopadhaya justified this departure from the norm claiming that the Constitution bench's decision in K Prabhakaran vs P Jayarajan had not dealt with the validity of Section 8(4).
This is a questionable premise because the 2005 verdict had very much dwelt on and upheld the rationale behind the exception carved out by Section 8(4) allowing convicted legislators to retain their seats for the remaining tenure of the House. For, if a convicted legislator were to be debarred from attending the House, it could have a range of far-reaching repercussions: the number of members in the House would be reduced and a government surviving on a razor-thin majority could be rendered even more unstable. If the appellate court were to set aside the conviction, the by-election already held to fill the vacancy would be fraught with legal complications.
Taking such repercussions into account, the Constitution bench said: "The purpose of carving out such an exception is not to confer an advantage on any person ; the purpose is to protect the House." This was reinforced by the fact that the exemption from disqualification granted by Section 8(4) would cease the moment the House was dissolved. "Any other interpretation would render Sub-section (4) liable to be annulled as unconstitutional," the Constitution bench concluded.
Despite such a clear endorsement of the constitutionality of Section 8(4) by the five-judge bench, the two-judge bench on Wednesday reopened the issue on the ground that the earlier verdict had not considered the question whether Parliament was empowered to discriminate between a sitting legislator and a fresh candidate. It said that the Constitutional provisions under which Section 8(4) of the RP Act had been enacted - Articles 102 and 191 - mandated that the same grounds for disqualification would apply for "being chosen" or for "being" an MP or MLA. Parliament was therefore found to have "exceeded its powers" by disobeying the constitutional stipulation "to make law laying down the same disqualifications", whether for being elected or retaining membership. The two-judge bench might be right in holding that the angle of legislative power hadn't been considered by the five-judge bench.
Legal opinion is divided on whether any such reason could be cited by a smaller bench to sidestep a decision by a larger bench. However much it may be desirable and in tune with popular sentiment, Wednesday's verdict would appear to have sacrificed the means at the altar of the end.
While Wednesday's verdict striking down Section 8(4) of the Representation of the People Act was pronounced by a two-judge bench, the one it overruled was delivered in 2005 by a five-judgeConstitution bench.
In Lily Thomas vs Union of India, the bench of Justices A K Patnaik and S J Mukhopadhaya justified this departure from the norm claiming that the Constitution bench's decision in K Prabhakaran vs P Jayarajan had not dealt with the validity of Section 8(4).
This is a questionable premise because the 2005 verdict had very much dwelt on and upheld the rationale behind the exception carved out by Section 8(4) allowing convicted legislators to retain their seats for the remaining tenure of the House. For, if a convicted legislator were to be debarred from attending the House, it could have a range of far-reaching repercussions: the number of members in the House would be reduced and a government surviving on a razor-thin majority could be rendered even more unstable. If the appellate court were to set aside the conviction, the by-election already held to fill the vacancy would be fraught with legal complications.
Taking such repercussions into account, the Constitution bench said: "The purpose of carving out such an exception is not to confer an advantage on any person ; the purpose is to protect the House." This was reinforced by the fact that the exemption from disqualification granted by Section 8(4) would cease the moment the House was dissolved. "Any other interpretation would render Sub-section (4) liable to be annulled as unconstitutional," the Constitution bench concluded.
Despite such a clear endorsement of the constitutionality of Section 8(4) by the five-judge bench, the two-judge bench on Wednesday reopened the issue on the ground that the earlier verdict had not considered the question whether Parliament was empowered to discriminate between a sitting legislator and a fresh candidate. It said that the Constitutional provisions under which Section 8(4) of the RP Act had been enacted - Articles 102 and 191 - mandated that the same grounds for disqualification would apply for "being chosen" or for "being" an MP or MLA. Parliament was therefore found to have "exceeded its powers" by disobeying the constitutional stipulation "to make law laying down the same disqualifications", whether for being elected or retaining membership. The two-judge bench might be right in holding that the angle of legislative power hadn't been considered by the five-judge bench.
Legal opinion is divided on whether any such reason could be cited by a smaller bench to sidestep a decision by a larger bench. However much it may be desirable and in tune with popular sentiment, Wednesday's verdict would appear to have sacrificed the means at the altar of the end.
Judicial overreach
However well-intentioned the Supreme Court might be in its efforts to cleanse the political system of criminals, its decision to bar any person who is in jail or in police custody from contesting an election to legislative bodies is a case of the remedy being worse than the disease. By extending the curtailment of the right to vote of a person in prison or lawful police custody to the right of the person to stand in an election, the Supreme Court has, in effect, left the door open for the practice of vendetta politics by ruling parties. All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest. As per the 2004 judgment of the Patna High Court in Jan Chaukidar v Union of India — upheld by the Supreme Court on Wednesday — all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election. The judges relied on the Representation of the People Act (RPA), which says that one of the qualifications for membership of Parliament or State legislature is that the contestant must be an elector. Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies. But law enforcers are notorious for carrying out the orders of their political masters. Confusion and chaos will necessarily follow this order of the Supreme Court unless it is tempered along the lines suggested by the Election Commission, which wants only those cases in which charges are framed six months prior to an election to be taken into account.
Less controversial is the court’s decision to declare Section 8(4) of the RPA ultra vires of the Constitution. Sitting MPs and MLAs will now automatically be disqualified upon being convicted of a serious crime rather than after all their appeals are exhausted. In India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative. Politicians have often taken cover under this section to continue as legislators long after the slow wheels of the law have caught up with them. But here too, there could be complications. An acquittal on appeal during the tenure of the legislature is one. Moreover, a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardised. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications. Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgements
What does it mean for political parties
Political parties are ‘deeply concerned’ and even ‘outraged’ at the Supreme Court verdict that any person in custody — whether convicted or not — could not contest elections.
Even as they had apprehensions, politicians had ‘cautiously welcomed’ the verdict, which disqualified convicted lawmakers from holding office or contesting polls. But the judgment barring those imprisoned from fighting polls has opened up prospects of a confrontation between the judiciary and the political class.
Both major parties, the Congress and the BJP officially refrained from making a comment. Congress spokesperson Sandeep Dikshit said, “Till we see the full judgment, we cannot comment.”
BJP spokesperson Nirmala Sitharaman said while they welcomed any effort at ‘reform’, they needed more time to formulate a position.
But privately, political sources contacted by The Hindu expressed concern.
A Congress member in the Lok Sabha said, “Imagine a situation when a political rival, days before the nomination for an election, files drummed up and false charges against me on any pretext, say for outraging a woman’s modesty. I will be picked up, and then cannot contest polls.”
He gave other instances to show the implications of the verdict. “This is a country where thousands of Muslims are in prison, without conviction, where even Anna Hazare was in custody. How will it work?”
In his initial response, Communist Party of India (Marxist) general secretary Prakash Karat told The Hindu that the verdict was ‘out of order, and liable to misuse on a large-scale.’ He raised concerns, which appear to be shared by the wider political class.
“This would mean that a person in custody, even if charges are not framed, cannot contest elections. Then there are others who may be on bail. What happens to them?” He, however, added that the CPI(M) would take a ‘considered view’ on both the judgments before offering a formal and detailed view.
Communist Party of India MP D Raja said the verdict raised ‘very serious practical and political questions.’ “In a multiparty system, political parties have their prejudices. A government can, out of political vendetta, file charges against a rival. The logic of the verdict is not clear.”
He added that politicians participate in protests and agitations, and might be put in custody. “These are controversial issues and need to be examined in more detail.”
Rashtriya Janata Dal spokesperson Manoj Jha had similar apprehensions.
He said, “This calls for wider consultations. In a fragmented and unequal socio-political matrix, it is easiest to file charges against those fighting for the marginalised, poor and vulnerable. Politicians can be accused of sedition, for waging war against the state, if they question the establishment and put into prison. Should they be de-barred then?”