Sunday, 9 August 2020

De-Criminalisation Of Politics

Updated: August 3, 2013 2:55 pm

The judgment in Lily Thomas case has come at a very critical juncture and against the backdrop of major problem of criminalisation of politics. Figures indicate that 1448 of India’s 4835 MPs and State Legislators have criminal cases against them that include serious charges like murder, rape and kidnapping. The Supreme Court verdict has been heralded by all political parties as a cleansing process of democracy. As per the verdict, persons who have been convicted for more than two years will stand disqualified from July 10, 2013, onwards as mandated by law laid down by the Supreme Court. The judgment, however, protects sitting MPs and MLAs, who stand convicted for more than two years.

Earlier, a controversy had arisen relating to the Right to Information for citizens to know about public functionaries, including their criminal and educational background. In The Union of India Vs. Association for Democratic Reforms and Anr. (AIR 2002 SC 2112), the Supreme Court held that the Right to Information of the citizens was to be derived from the constitutional right of freedom of speech and expression. The Representation of People Act was amended. Section 33(A) was introduced requiring a candidate to furnish information, where he is accused of an offence punishable with an imprisonment of two years or more. It was believed that this would take care of excluding criminals from becoming
MPs and MLAs as the citizens would not vote such people to power. However, it appears that this object has not
been achieved.

Legally speaking, the moot questions that arise are:

  1. When the law provides a statutory right of appeal in criminal cases, can the candidates, who might be victims of malicious and false cases, either politically motivated or otherwise, be denied this statutory right?
  2. When a citizen’s right to information is safeguarded and criminal antecedents of a candidate provided, should it not be left to the choice of the voter?
  3. When the Constitution itself gives power to the Parliament to provide for disqualification under Articles 191 and 102, would the Parliament not have a right to extend or stay such disqualifications by law?
  4. What effect would such ruling have on the conduct of the House, particularly in the current day politics, which is running on razor-edge thin majority, where each and every member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government?
  5. When has the Constitution Bench of the Supreme Court upheld Section 8(4) of the Representation of People Act in K. Prabhakaran Vs. P. Jayarajan (2005)1 SCC 754)?

The Supreme Court held in Prabhakaran Section 8(4) of the 1951 Act:

“Notwithstanding anything in sub-section (1), sub- section (2), or sub-section (3), a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, take effect until three months have elapsed.”

Question No 3 framed in Prabhakaran’s judgment: “What is the purport of sub-section (4) of Section 8 of RPA? Whether the protection against disqualification conferred by sub-section (4) on a member of a House, would continue to apply though the candidate has ceased to be a Member of Parliament or Legislature of a State on the date of nomination or election.”

The Supreme Court held: “Once the elections have been held and a House has come into existence, it may be that a member of the House is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member of a House, but the very existence and continuity of a House democratically constituted. If a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor-edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government. Secondly, bye-election shall have to be held, which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Such reasons seem to have persuaded the Parliament to classify the sitting members of a House into a separate category. Sub-section (4) of Section 8, therefore, provides that if on the date of incurring disqualification a person is a member of House, such disqualification shall not take effect for a period of 3 months from the date of such disqualification. The period of 3 months is provided for the purpose of enabling the convicted member to file an appeal or revision, if an appeal or revision has been filed putting in issue the conviction and/or the sentence, which is the foundation of disqualification, then the applicability of the disqualification shall stand deferred until such appeal or application is disposed of by the court in appeal or revision.”

It is ultimately a matter of interpretation. In Lily Thomas case, the Supreme Court held that since Articles 101 and 190 provide that the seat will become vacant on disqualification, the Parliament cannot make a provision in Section 8(4) to defer such disqualification. A possible interpretation could have been if Articles 101 and190 were read to say that the seat will become vacant upon disqualification (where disqualification is deferred for three months or till stay is granted in
an appeal).

I am only expressing some doubts while analysing the judgment in the light of the Constitution and the Representation of the People Act, 1951. If the judgment is implemented, it would undoubtedly change the face of politics and democracy. Whether any political party or anyone else will challenge this judgment in any appropriate jurisdiction is a question mark.

We have yet another historical judgment in this discourse on cleansing politics—the right of criminals to vote! The Supreme Court in Chief Election Commissioner vs. Jan Chaukidar (2013) held: “….to vote is a statutory right. It is a privilege to vote, which can be taken away. In that case the elector would not be qualified, even if his name is on the elector rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in lawful custody of the police is taken away. A person who has no right to vote by virtue of the provision of Section 62(5) of the 1951 Act is not an elector and is therefore not qualified to contest the election to the house of people or the Legislative Assembly of the State….”

The law gives it and the law takes it away, so said the Supreme Court. To vote is a statutory right it is a privilege to vote which privilege is taken away. The law temporarily takes away the power of such persons to go anywhere near the election scene. My concern is especially the under trials. To be denied a major democratic right without even a conviction is an anathema to democracy. And again there is yet another concern—a criminal pays price to society by incarceration on conviction. Why this double jeopardy?

Indisputably, implementation of these judgments will result in a paradigm shift in the course of politics. Criminalisation of politics may be relegated to historical text.

 By Pinky Anand

(The writer is Senior Advocate, Supreme Court)

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