Thursday, 26 November 2020

MPS And MLAS To Face Immediate Disqualification If Convicted In Criminal Cases

Updated: August 24, 2013 11:12 am

In a landmark judgment that will surely help decriminalise politics, the Supreme Court, on July 10, 2013, struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts. The Apex Court also made it clear that MPs, MLAs and MLCs would stand disqualified on the date of conviction. The Supreme Court minced no words and made it loud and clear that Parliament has exceeded its powers by enacting the provision (Section 8 (4) of the Representation of Peoples Act) that permits a convicted lawmaker to remain in office on the mere ground that appeals have been filed and are pending.

The bench of Justices AK Patnaik and SJ Mukhopadhaya, in its 41-page verdict, however, clarified that convicted lawmakers whose appeals are pending prior to pronouncement of Wednesday’s verdict are “saved” as it would come into effect prospectively. The Apex Court discussed Articles 101 (3) (a) and 190 (3) (a) of the Constitution that deal with the issue of disqualification of MPs of either House of Parliament and MLA and MLCs of the Legislative Assembly or Legislative Council of State respectively. It was held that, “We also hold that the provisions of Article 101 (3) (a) and 190 (3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature.”

The Supreme Court has also made it clear that, “Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the (RP) Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires to the Constitution.” It said : “As Parliament had no power to enact sub-section (4) of Section 8 of the Act and hence, it would not deal with other issues raised in the two PILs filed by a lawyer Lily Thomas and NGO Lok Prahari”. The PILs had sought striking down of this provision on the ground that they violate certain constitutional provisions which, among others, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.

The Supreme Court has given some respite to sitting members by saying that, “Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.” It, however, made it amply clear that, “If any sitting MPs, MLAs or MLCs are convicted after the pronouncement of this verdict his membership of Parliament or the State Legislature will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and / or sentence.”

The Chief Election Commissioner, VS Sampath has unequivocally hailed the Supreme Court judgment, saying it would help clean the electoral process. He said that, “It was long overdue. There cannot be any distinction between elected individuals and non-elected individuals. I hope that the Supreme Court order will clean the process.” The Election Commission had long been asking the government to amend the provision in the Representation of the People Act that allowed convicted MPs and MLAs to continue in their posts as long as their appeal was pending in the higher courts, but now the Supreme Court has struck down the provisions. HS Brahma who is presently Election Commissioner exuded happiness at the judgment and said that, “We welcome the judgments. It has been our endeavour since 1994 to figure out how to restrict criminals from entering the body politic of our country. We have not been very successful in it. But at least with the Supreme Court judgments now, we have achieved 95 per cent of our electoral reform proposals. We will implement the judgments seriously and scrupulously. After the Supreme Court judgment, we have a provision to stop people in jail from contesting.”

In 2005, the five-judge constitution bench of the Supreme Court had said that Section 8 (4) was a valid and reasonable distinction between sitting legislators and others. Eminent senior advocate Fali S Nariman, who appeared for petitioner Lily Thomas, and SN Shukla, another petitioner who is the general secretary of the Uttar Pradesh based NGO Lok Prahari, took pains to convince the two judges that the issues before them were different from what the constitution bench had adjudicated in K Prabhakaran vrs P Jayarajan on January 11, 2005. The two-judge bench had asked the government to defend the validity of section 8 (4) on two counts: if it was in conflict with Articles 101 and 102 that provide for immediate disqualification of an MP or an MLA on conviction ; and if it was ultra vires of Article 14, which deals with the right to equality. The government’s reply cited the 2005 verdict, which had upheld the validity of section 8 (4) after examining whether classifying law makers as distinct from other citizens, who could not participate in electors if convicted, was reasonable and did not violate Article 14. Quoting from that judgment, the government said the exception was created to prevent reduction of the strength of the house and a member’s party. It emphasized that protection was given to the house and not to the members.

Fali S Nariman, however, told the judges very plainly that he was not just arguing for the violation of the right to equality, but his contention pertained to the very basis of enacting this law. He said the larger bench had upheld Section 8 (4) as a “reasonable classification” not violative of Article 14, but the current case brings up Articles 101 and 102 too. According to Nariman, if it was held that Parliament had no power to enact Section 8 (4), there was no need to touch issues relating to Article 14. The bench accepted this, saying it would look into whether Parliament could have validly enacted Section 8 (4) when Articles 101 and 102 stipulate immediate disqualification. Additional Solicitors General Sidharth Luthra and Paras Kuhad sought to bring up the findings of the larger bench again, but the two judge bench told them their discussion pertained to the constitutional validity of the enactment of Section 8 (4), which had not been argued in the Prabhakaran case. Subsequent arguments focused on this aspect.

In its judgment, the bench held that the Constitution had given Parliament the power to make the same set of disqualifications for legislators and ordinary citizens, hence carving out an exception was beyond its powers. The verdict reads together the provisions of the Constitution and the Representation of the People Act. Declaring Section 8 (4) as ultra vires, it said that it was not necessary to go into the validity of Section 8 (4) vis a vis Article 14 after it had already held that Parliament lacked the powers to make this law. interestingly no third party can now seek a review of the verdict. If the government, however, decides to, it will have to take into account the prospect of being seen as demanding immunity for criminal elements. At one stage, the bench had observed that Parliament could have this immunity for its members, not in the form of a law and rather by way of a constitutional amendment. The bench said that, “If we think that the intention of the Constitution is to oust them (convicted MPs, MLAs), out they go. And if they want anything else, they will have to amend the Constitution.”

In an enlightening and thought provoking editorial titled “An overdue cleansing has begun” by Soli J Sorabjee, an eminent Constitutional expert and senior lawyer who was the former Attorney General of India, it is pointed out very rightly that, “DEMOCRACY is a basic feature of our Constitution. The entry of people with colourful criminal antecedents in Parliament or state legislatures is a menace to our democracy. The recent landmark judgment of the Supreme Court, delivered on 10th July by a bench comprising of Justices A.K. Patnaik and S.J. Mukhopadhaya, is most welcome. It is a step in the right direction for partially riddling our polity of the pervasive criminality that has infected it. The question before the court was about the constitutionality of Section 8 (4) of the RP Act. Under Section 8 of the RP Act, a person convicted of certain offences mentioned therein shall stand disqualified for different periods depending on the offences for which he is convicted. For example, under Sections 8 (1), 8 (2) and 8 (3), the convicted person shall be disqualified when he is sentenced to imprisonment from the date of such conviction, and shall continue to be disqualified for a further period of six years after his release. However, Section 8 (4) makes a departure from this position. It lays down that if the person is a member of Parliament or of the legislature of a state, disqualification would not take effect from the date of conviction until three months have elapsed from that date or if, within that period, an appeal or application for revision is brought in respect of the conviction or sentence, until that appeal or application is disposed of by the court, which would really mean years in view of the excruciatingly slow pace of our criminal justice system. The court held that Parliament wanted to make one law for the election of a member and for his continuance as a member. In other words, if because of a disqualification, a person cannot be chosen as a member of Parliament or state legislature, for the same disqualification, he cannot also continue as a member of Parliament or state legislature. Next, the court referred to Article 101 (3) (a) of the Constitution, which provides that “if a member of either House of Parliament-(a) becomes subject to any of the disqualifications mentioned in Article 102, his seat shall thereupon become vacant”. There is similar provision regarding members of state legislatures. The court ruled that on account of disqualifications incurred by a member, his seat automatically falls vacant by virtue of the expression, “his seat shall thereupon become vacant”. Consequently, Parliament cannot, by enacting Section 8 (4), defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification incurred. The court concluded that subsection (4) of Section 8 of the act, which defers the date on which the disqualification will take effect, is ultra vires the Constitution because it is inconsistent with Articles 101 (3) (a) and 190 (3) (a), which prohibit Parliament from defering the date from which the disqualification will come into effect. In view of this conclusion, the court did not go into the question of whether Section 8 (4) infringes the equality provision in Article 14. Then, the court softened the effect of its judgment by ruling that “sitting members of Parliament and state legislatures who have already been convicted for any of the special offences and who have filed appeals or revisions which are pending, should not be affected by the declaration of unconstitutionality of Section 8 (4) now made by us in this judgment.” Why? “Because the knowledge that sitting members of Parliament or state legislatures will no longer be protected by subsection (4) of Section 8 of the act will be acquired by all concerned only on the date this judgment is pronounced by this court.” This part of the judgment is debatable and disappointing. It diminishes the impact of this sterling judgment. In this case, there is no question of any past transactions or estates that had changed hands and been acted upon for years that would be affected by the judgment. Nor is there any question of administrative chaos which, if any, would have been in the political parties whose numbers in Parliament and state legislatures would have fallen sharply. MPs and MLAs convicted of grave offences involving moral turpitude-in other words, criminals-did not deserve any sympathetic protection from the court by invocation in effect of the doctrine of prospective overruling. Law breakers should not be permitted at all to function as law makers. The court should have gone the
whole hog.”

While endorsing the Supreme Court’s latest ruling in no uncertain terms, a word of caution too is appropriate. If speedy justice is not delivered, no power on earth can stop the criminalization of politics. For instance, the never ending case of LN Mishra who was the former Chief Minister of Bihar and was also later Union Minister. He was murdered in 1975. The then 27-year-old youth accused of his murder is now an ailing 65 years old man. Of the 39 witnesses whom he had relied on as his defence to prove his innocence, 31 have died. More than 20 different judges have supposedly heard the case over the years on a day-by-day basis. It is a pity that when the accused, having grown weary of fighting the case relentlessly, sought to have the case dismissed on the ground that the long delay had made justice impossible in his case, the court declared that 38 years was by no means too long ! If this happens in such a VVIP case, what justice can there be for poor and weak who have no power? Hence, to effectively check criminalization of politics, speedy and rationale justice must be delivered at the earliest in all cases involving MPs, MLAs and other politicians. The police too has to be freed from political control so that chances of ruling parties framing opposition leaders falsely is minimized to the least possible extent.

The amendments the law ministry has suggested is one that proposes to debar a member of a legislature who is convicted for a prison term of not less than two years and whose appeal against the conviction is pending before a higher court, from participating in the proceedings of the legislature until the disposal of the appeal. Another amendment, this one proposed in Section 8 of the Representation of the People’s Act, proposes to disqualify any person against whom charges have been framed in a crime which carries a jail term of five or more years. However, the charges should have been framed by the court at least one year before the date of notification of the elections. The ministry has also proposed that a politician convicted by any court for having filed a false affidavit should be disqualified from contesting elections for a period of three years from the date of the court order. At present, the maximum punishment for this crime is six months. The law ministry has requested the Law Commission to send its response on this at the earliest.

By Sanjeev Sirohi

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