Politics must have saints and sinners

10th July 2013, may go down in Indian Constitutional history as the day that the Supreme Court decided to strike a double blow in the cause of decriminalisation of the body politic.

In the Lily Thomas judgment, the court has struck down Section 8(4) of the Representation of People’s Act 1951 as ultra-vires the Constitution. The section, basically entitled a convicted legislator to continue in office, so long as his matter was not disposed off by an appellate court.

The second blow was a short order in Jan Chaukidar, where the court has affirmed the Patna High Court’s ruling that a person in lawful police custody cannot contest elections to Parliament or the state legislatures. While the public has seemingly welcomed these twin blows, politicians, appear to be seething in protest. Even some retired Judges like Justice Katju have voiced their misgivings about courts getting into political thickets.

The politicians’ fear of the first judgment is that it leaves them at the mercy of the judgment of a trial judge and the disqualification cannot be immediately set aside in appeal unless the conviction itself is stayed by a superior court. The unstated fear is that a mere magistrate or a trial judge who has no independent constitutional protection against removal, can convict and immediately disqualify them. They will literally risk political dismemberment from the exalted class of law-makers.

Previously the mere filing of an appeal, kept the disqualification at bay till such time that the appeal was heard. Given our congested courts, it was easy to delay appeals. Very often it was the voter who in the next election voted out a convicted politician, much before the disqualification actually set in with the dismissal of the appeal.

S 8(4) in effect gave the politician a long enough stay on disqualification after conviction and rendered nugatory the salutary effects of the three preceding sub sections of S 8 of the RP Act. The anomalous situation was that after getting elected, even if one was convicted, he could yet continue to make law and even participate in the government.

The logic of such anomalies was highlighted in 2001 political situation, in Tamil Nadu. J Jayalalitha was convicted in a corruption case and disqualified from contesting elections. Yet when her party swept the elections, she was chosen as the leader of the legislature party and sworn in as chief minister. The Supreme Court in B R Kapur ruled that “If perchance, for whatever reason, the Governor does appoint as Chief Minister a person who is not qualified to be a member of the legislature or who is disqualified to be such, the appointment is contrary to the provisions of Article 164 of the Constitution”.

While Jayalalitha’s case may have been an extreme example, which rightfully invited judicial wrath, the intervening decade has seen several worthies of the Pappu Yadav & Shibu Soren variety, adorn the hallowed halls of Parliament while simultaneously fighting to stay out of their natural habitat in jail. Hundreds more faced charges of varying intensity. Despite several calls for decriminalisation by the Election Commission, parties continued to field candidates on the winnability factor alone. A few charges here and there were ignored, and even convictions were blithely set aside for “Bahubalis” who could deliver a seat for the cause of forming a government.

It is in this background that the judgments must be assessed. Lily Thomas rests upon a restrictive reading of Parliament’s power to legislate on political disqualifications. It holds that while Parliament has the power to legislate on disqualification, it cannot delay it. Since Article 101(3) (a) of the Constitution mandates that upon disqualification of a member, “his seat shall thereupon become vacant”, Parliament has no power to postpone the operation of such disqualification. The court has therefore ruled that “the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect.”

Jan Chowkidar merely affirms the Patna High court’s logic that “.. 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 privilege to vote, which privilege may be taken away...”

Not thought out

While decriminalisation is a consummation devoutly to be wished for, the two judgments do not appear to be sufficiently thought through. Surely, if Parliament has power to disqualify, it includes the power to prescribe when it comes into effect. Thereupon Article 101(3) (a) does not mean forthwith. Confusion has been worse confounded by Jan Chowkidar, which needed more than a mere adoption of a High Court’s logic. Voting may be a statutory right but deprivation of a constituent's right to be represented by a member of his choice is another matter. Lawful custody by a policeman can be exercised in myriad situations and a vengeful government can hobble any opposition by strategic arrests just short of the election day.

The already overcrowded court system will have political battles overwhelming it and the role of lawyers in political parties will get even more dominant. The appointment of judges, will also inevitably be much more closely examined for possible political bias. A government of laws will in all probability become a government of lawyers.

 Politics, like the society it represents, must have both saints and sinners. Punishment in the criminal courts must not be presumed in advance, to be a disqualifier in the political sphere.

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