Tuesday, August 16th, 2022 00:47:23

Supreme Court Judgment Emergence Of New India?

Updated: August 3, 2013 2:52 pm

The Supreme Court, on 10 July, 2013, delivered a verdict in regard to convicted MPs and MLAs. This judgment, which can be regarded as a landmark one in recent times, has ruled that a convicted elected representative cannot continue in office and that the conviction will lead to instant disqualification of the elected representative. The safeguards provided under Section 8(4) of the Representation of the People Act, 1951 have been struck down and declared ultra vires of the Constitution. The Supreme Court has held that there cannot be two separate laws for elected representatives and contesting candidates. Later, the next day, the Allahabad High Court gave another judgment whereby no political party can hold caste rallies. This verdict too is another landmark judgment but it has ignited a debate. If we go by this judgment of the Supreme Court, it will affect the prospects of more than 30 per cent convicted MP’s and MLA’s in the Parliament and state assemblies.

The Association for Democratic Reforms (ADR) and National Election Watch (NEW) have brought out a report on the criminal cases declared by sitting MPs and MLAs in the affidavits that they filed before the Election Commission while filing their nominations. It was found that more than 30 per cent of our elected representatives have been convicted in criminal cases.

The following are the salient features that emerge from the analysis carried out by Association for Democratic Reforms (ADR) and National Election Watch (NEW):-

■    ADR and NEW have done an analysis of 4,807 sitting MPs and MLAs. A total of 1,460 out of these 4,807 (30 per cent) sitting MPs and MLAs have declared criminal cases against them in their self-sworn affidavit submitted to the Election Commission of India prior to contesting elections. Around 688 (14 per cent) out of the total number of sitting MPs and MLAs analysed have declared serious criminal cases against themselves.

■    Around 162 (30 per cent) out of the 543 Lok Sabha MPs have declared criminal cases against them. Fourteen per cent of the current Lok Sabha MPs have declared serious criminal cases.

■    About 1,258 (31 per cent) out of the 4,032 sitting MLAs from all state assemblies have declared criminal cases against themselves. Around 15 per cent of the current MLAs from all state assemblies have declared serious criminal cases.

■    The Jharkhand Assembly 2009 has the highest percentage of elected representatives (74 per cent) who have declared criminal cases against themselves. Fifty-five out of 74 MLAs of the Jharkhand Assembly 2009 have declared criminal cases.

■    Among the recent elections that have been covered by ADR and NEW, the Bihar Assembly 2010 has 58 per cent MLAs who have declared criminal cases, while the Uttar Pradesh Assembly 2012 has 47 per cent MLAs with criminal cases.

■    None of the MLAs of the Manipur Assembly 2012 have declared criminal cases against them.

      Analysis of sitting MPs and MLAs, who self-declared criminal cases:

  • Eighty-two per cent of MPs and MLAs who have got elected on JMM tickets have declared criminal cases against themselves. Around 64 per cent of MPs and MLAs who have got elected on RJD tickets have declared criminal cases against themselves. About 48 per cent of elected representatives who have got elected on SP tickets have declared criminal cases.
  • Thirty-one per cent of MPs and MLAs who have got elected on BJP tickets have declared criminal cases against themselves (Out of the 1017 MPs and MLAs from BJP, 313 have declared criminal cases). Twenty-one per cent of MPs and MLAs who have got elected on INC tickets have declared criminal cases (out of the 1,433 elected representatives from INC, 305 have declared criminal cases against themselves).

Anil Bariwal of the National Coordinator of National Election Watch, Association for Democratic Reforms, which has brought out this analysis and the list of convicted people representatives, says “This is a significant judgment. People of India have been waiting for long for such a law, where the political parties can stop giving tickets to corrupt politicians, which has kept Indian politics always in bad light.” While talking to Uday India, he says the only hope now from political parties is that “they should rationally accept this judgment as a measure to cleanse our political system.”

The Supreme Court has struck down a section of Representation of the People Act that allows a convicted lawmaker to remain in office while there are still cases pending against them, when a bench of Justice AK Patnaik and SJ Mukhopadhyaya said: “The only question is about the vires of
section 8(4) of the Representation of the People Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction.”

In effect, what the Supreme Court order says is that the disqualification of an MP or an MLA will come into effect immediately after the representative is convicted by any court.

 Control terrorism without playing politics

There are two common happenings in India—scams and explosions. The favourite weapon of terroristsis planting bombs and blasting Indian heritage sites or landmarks, which is corroding the security environment of the country. But again two things are incomprehensible: First, the common response of leaders to politicise the issue rather than work out a solution to the problem. Second, isthe constant droning by the Prime Minister: “Terrorist attacks will not be tolerated”. The terror attacks go on and we continue holding the olive branch of the friendship with a country that seems to mastermind terrorism. Till today Pakistan has done nothing to bring the culprits of 26/11 attacks in Mumbai to the gallows. Then how long will we go on saying that we will not tolerate the attacks?

Worse reportscome political parties who blame one another rather than helping in fighting the terror. The incompetent Home Minister of India plays petty politics by communalising it to favour one community or the other. Let us accept that all citizens of the country, be they from any religions, are equally committed to Indian nationhood and that the terrorists are brainwashed fanatics, who are carrying out a war of communal and inhuman hatred. We must deal with terrorism with an iron hand and not with soft gloves as done by the Home Minister.

The Bodhgaya blasts are clearly the result of poor policing. The political interference and present attitude of Home Ministry is evident from the Ishrat Jahan case. Why did the Home Ministry submit an affidavit to the court describing Ishrat Jahan, as linked to terrorists? Why do the CBI and IB not see eye to eye and the IB continues to hold that she was a terror link? One can only call it an inept handling by the Ministry or the misfortune of the country. In the Bodhgaya blasts, definite pre-information to the state government about the likelihood of terror attack on the temple was given but everybody seems to have slept on it. Let us not blame only Nitish Kumar, every one right from the Centre to the State is oblivious of deteriorating professionalism in police which fails to react to the changing scenario and distress calls. Even in the case of Delhigang rape incident, the culprits had robbed a pedestrian, whose complaint was not taken. The cup of negligence and lip sympathy to terrorism is full. The Prime Minister is trying to establish himself as man of peace even when internal war is threatening the country. How long will the country continue to bleed with the shadow war of terror? How long will we wait for the results of “We will not tolerate such attacks” ?

By NK Singh

The SC order also says that the representative cannot contest elections again and cannot cast his vote from jail, under any circumstances.

With this judgment, a new debate also resurfaces. If enacted, it is going to be a law, and the ruling party may use it on a large scale against members of opposition parties. Cases and arrest warrants can be generated on a large scale against those who are in opposition and by those who are in power, with the intent to stop them from filing nominations. This will again increase the workload of courts and will lead to a political chaos.

The judgment came after the petitions were filed in the Supreme Court by Lily Thomas (writ petition (civil) no. 490 OF 2005) and an NGO Lok Prahari (writ petition (civil) no. 231 of 2005) in 2005, through its secretary S.N. Shukla, who had sought striking down of various provisions of RPA on the ground that they violate certain constitutional provisions, which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.

The PILs had said that certain sections of RPA allow convicted lawmakers to continue in office while their appeals are pending and thus those provisions are “discriminatory and encourage criminalisation of politics.” Senior Counsel Fali S Nariman and SN Shukla (General Secretary of Lok Prahari) appeared for Lily Thomas and Lok Prahari respectively during
the hearings.

After the verdict, Kolkata-based senior lawyer Jayanta Gupta, talking to Uday India, commented on how this verdict is going to be implemented from legal point of view: “It is the law of the land and this judgment is an excellent verdict by the Supreme Court of India. There is no problem in implementing this judgment but the political parties may get united to create hindrance in its implementation, creating chaos.”

By Joydeep Dasgupta



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