Good in part

SC on disqualification

The judgment, doubtless, is a giant stride towards cleaning the polity which is touching the cesspool of degradation.

For Samuel Johnson, politics is the last refuge of scoundrels. The phenomenon is old and worldwide. But now, it is not scoundrels but hardened criminals for whom politics is the last refuge. So, it is trite to say that the politics has been criminalised. The civil society in India has been solicitous about it but the legislature refused to take cognisance.

Ultimately, the Supreme Court had to step in. In a landmark decision on  July 10, the apex court declared section 8(4) of the Representation of People Act, 1951, as ultravires of the right to equality and the equal protection guaranteed by Article 14 of the Constitution.

Now, the sitting MPs/MLAs will stand disqualified after conviction in a criminal case. Section 8(4) created an exception for sitting members by providing that they would be allowed three months’ time to file an appeal pending which their membership will continue.

Certain confusions about the judgment need to be dispelled. Clauses (1), (2) and (3) of section 8 define crimes and punishment which disqualify a candidate from contesting elections. Section 8(1) gives a list of crimes under which even the imposition of a fine of Re 1 leads to disqualification; under section 8(2) again, there is a list of crimes is given in which sentence of six months renders a candidate ineligible for contesting elections.

Section 8(3) covers all after criminal offences, and conviction of two years or more disqualifies a candidate. It is section 8(4) which creates an exception in favour sitting MP/MLAs and they can continue as members of the House till the pendency of the appeal in the higher court. There is a general misconception that someone is disqualified if they are convicted for two years or more. It is not so. Under classes (1) and (2) of section 8, a lesser punishment leads to disqualification for six years is besides the period of sentence; the two is not concurrent, i.e., if a person is sentenced to 14 years of jail, he/she stands disqualified for 20 years.

The Supreme Court pronounced the momentous verdict in a petition filed by advocate Lily Thomas and another one by an NGO Lok Prahri. The civil society has been solicitous about the canker of criminalisation afflicting the body politic of the country, but Parliament refused to take cognisance resulting in law breakers becoming law makers. Articles 102 and 191 of the Constitution empower Parliament to make laws about the qualification and disqualification of candidates. So, it was obligatory for Parliament to remove the discrepancy in the R P Act, 1951. The inaction on the part of the legislative sanctifies judicial activism.

Travesty of justice

The R P Act,1951 was amended in 1956 and all disqualifications were clubbed together under section 8, and an exception was created for sitting members. The Act underwent several modifications and finally section 8(4) in the present form came into existence in 1989. It should not be inferred that the exception did not exist earlier; only the member of clause changed to (4). It is amazing that an exception was created in favour of sitting members in 1950s when politicians were revered for their integrity. The judification for the exception was that if a sitting member is disqualified from the date of conviction, then that particular constituency would go unrepresented. This point cannot be sneezed it as by-election cannot be held till the appeal is pending because if the election is held as the convict is acquitted and the term of the House has not ended, it will be travesty of justice.

Second part of the judgments has raised the hackles of the political class, The apex court has ruled that even undertrials cannot contest elections as section 4 and 5 of the R P Act lay down that in order to be elected to Parliament or state legislatures, the individual must be an elector. Further, section 62(5) of the Act mandates that no person shall vote at any election if he is incarcerated, whether under a sentence or imprisonment or transportation or otherwise or is in the lawful custody of the police.

The judgment cannot be faulted but it has tremendous potential for misuse and abuse. A political rival may be arrested under allegation of any cognisable criminal offence just before the nomination papers are to be filed.

The court invariable sends the accused to judicial custody as the investigation takes time. If no charge sheet is filed, he may be put at large but by then the elections will be over. Sending a person behind bars is not difficult in a corrupt system obtaining in the society. If the Supreme Court transfers trials from one state to other to ensure fair trial, it speaks volumes about the probability of trials getting vitiated. However, creating exception for sitting members is a glaring case of invidious discrimination.

The judgment, doubtless, is a giant stride towards cleaning the polity which is touching the cesspool of degradation. But it also leaves many questions unanswered. Is the verdict of the trial court final and conclusive enough to disqualify? Then what is the meaning of appellate process?   Why is the Supreme Court not putting its own house in order so that cases are decided in a short time span? Now even criminal cases keep pending for decades, not years and the blame must be apportioned to the judiciary also besides investigation and prosecution.