VOLTE FACE ON DISQUALIFICATION OF CONVICTED LEGISLATORS
*Swapna Jha
The Supreme Court delivered a landmark judgment on July 10, 2013, striking down the provision in the Representation of the Peoples Act, 1951 (RPA), that protected convicted legislators from disqualification in the event of an appeal being filed in higher courts within three months of conviction. The order led to a series of developments that would have done credit to the theatre of the absurd. Instead of using the opportunity offered by it to press forward with much needed electoral reforms, which would have earned the union government the admiration of civil society, it embarked on a course of action which exposed it to public odium and ridicule.
The proposals for electoral reforms have a long history of pendency. The considered recommendations made by various expert bodies have at best elicited a perfunctory response from the government. Mention may be made here of the prescriptions of the Tarkunde Committee on Election Expenses (1975), the Dinesh Goswami Committee on Electoral Reforms (1990), the Vohra Committee on Criminalisation of Politics (1993), the Indrajit Gupta Committee on State Funding of Elections (1998), the Law Commission Report on Reform of Electoral Laws(1999), the National Commission to Review the Working of the Constitution of India (2001), the Proposal for Electoral Reforms by the Election Commission of India (2004), the Report of the Second Administrative Reforms Commission (2008) and the Report of the Core Committee on Electoral Reforms (2010). There has also been a concerted campaign by several civil society organizations such as Association for Democratic Reforms, Lok Prahari, Public Interest Foundation and Common Cause to force the pace of electoral reforms.
Instead of accepting the salutary verdict of the apex court with good grace and taking steps to rectify the iniquity in the extant law, the union government chose to nullify its effect by introducing a Bill in Parliament and to make matters worse, tried during the pendency of the Bill to ensure that the tainted legislators, whose disqualification was imminent, were immunized from the effect of the judgment by surreptitiously issuing an ordinance! It was only when the Presidential assent appeared problematic and there was widespread public criticism over this cynical move that Rahul Gandhi came out with his `complete nonsense' statement at a public forum. This led to a hastily summoned meeting of the Cabinet and the passing of a resolution to revoke the ordinance and withdraw the Bill!
The Constitutional Position
In order to appreciate the full import of these developments, let us take a look at the important legal provisions governing this matter. The RPA lays down certain rules for disqualification of Members of Parliament and Legislative Assemblies in the event of their conviction. Section 8 (4) of this Act provides an escape clause, which the convicted MPs and MLAs have been exploiting by preferring an appeal against their conviction in order to continue till the end of their term.
It was in this background that the Supreme Court delivered its order in the two writ petitions (WP (C) 490/2005 (Lily Thomas Vs Union of India & Ors. and WP (C) 231/2005 Lok Prahari Vs Union of India &Ors), declaring as unconstitutional Section 8 (4), which set different criteria for disqualification of an electoral candidate and an elected representative.. The Court held that it was beyond the law making powers conferred by the Constitution on Parliament to make separate sets of rules for disqualification for persons to be chosen as members of Parliament or State Assemblies and for persons serving as members of these bodies.
It will be recalled that in 1998 the Election Commission had proposed an amendment to the RPA to the effect that any person accused of an offence punishable by imprisonment for five years or more would be disqualified from contesting an election even during the pendency of the trial, provided charges had been framed against that person by a competent court. The Law Commission had also made a similar recommendation in the year 2000. Subsequently, The National Commission for the Review of the Functioning of the Constitution and the Second Administrative Reforms Commission lent their support to the proposal. These recommendations have gone unheeded because of stiff resistance from all political parties. The judgment in Lily Thomas should have been construed as a nudge to the political establishment to take the first step forward on the long road to decriminalization of Indian politics.
Relevant extracts from the judgment are reproduced below for the benefit of our readers:
Judgment
We will first decide the issue raised before us in these writ petitions that Parliament lacked the legislative power to enact sub- section (4) of Section 8 of the Act as this issue was not at all considered by the Constitution Bench of this Court in the aforesaid case of K. Prabhakaran (supra). …………… Hence, when a question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument by which affirmatively, the legislative powers were created, and by which negatively, they are restricted.
15. We must first consider the argument of Mr. Luthra, learned Additional Solicitor General, that the legislative power to enact sub-section (4) of Section 8 of the Act is located in Article 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution. Therefore, Article 246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than matters enumerated in List II and List III) Parliament will have power to make law.
Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution. We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of members of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr.Luthra that the power to enact sub-section (4) of Section 8 of the Act is vested in Parliament under Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not in Articles 102 (1)(e) and 191 (1)(e) of the Constitution.
16. Articles 102(1)(e) and 191(1)(e) of the Constitution, which contain the only source of legislative power to lay down disqualifications for membership of either House of Parliament and Legislative Assembly or Legislative Council of a State, provide as follows:
"102(1)(e). A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament-(e) if he is so disqualified by or under any law made by Parliament."
"191(1)(e). "A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State(e) if he is so disqualified by or under any law made by Parliament.
A reading of the aforesaid two provisions in Articles 102(1)(e) and 191(1)(e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State. In the language of the Constitution Bench of this Court in Election Commission, India v. SakaVenkataRao (supra), Article 191(1) [which is identically worded as Article 102(1)] lays down "the same set of disqualifications for election as well as for continuing as a member". Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature. To put it differently, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same.
17. Mr.Luthra and Mr.Kuhad, however, contended that the disqualifications laid down in sub-sections (1),(2) and (3) of Section 8 of the Act are the same for persons who are to continue as members of Parliament or a State Legislature and sub-section (4) of Section 8 of the Act does not lay down a different set of disqualifications for sitting members but merely states that the same disqualifications will have effect only after the appeal or revision, as the case may be, against the conviction is decided by the Appellate or the Revisional Court if such appeal or revision is filed within 3 months from the date of conviction. We cannot accept this contention also
…… Article 101(3)(a) provides that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant and similarly Article 190(3)(a) provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant. This is the effect of a disqualification under Articles 102(1) and 190(1) incurred by a member of either House of Parliament or a House of the State Legislature. Accordingly, once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to 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 under Article 102(1)(e) or Article 191(1)(e) of the Constitution.
19. The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and 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. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
20. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) 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. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.
22. As we have held that Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been necessary for us to go into this question only if sub- section (4) of Section 8 of the Act was held to be within the powers of the Parliament. In other words, as we can declare sub-section (4) of Section 8 of the Act as ultra vires the Constitution without going into the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution, we do not think it is necessary to decide the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution.
24. With the aforesaid declaration, the writ petitions are allowed. No costs."
Review Petition:
The government sought a review of the verdict by a five-judge Constitutional Bench on August 12, 2013, On September 4, 2013 the bench of J A. K. Patnaik and J S. J. Mukhopadhyay opined that they did not find any error apparent on the face of the record in their judgment and dismissed the review petition.
The Representation Of The People (Second Amendment And Validation) Bill, 2013: (Bill No. LXII of 2013:
A Bill to nullify the judgment of the Supreme Court was introduced in Rajya Sabha in the Monsoon Session and was referred by the Chairman to the Standing Committee.
Ordinance:
As it became clear that the bill to negate the Court verdict would not be passed during the Monsoon Session, the Union Cabinet approved an Ordinance to protect convicted MPs and MLAs from immediate disqualification.
In the above context, it may be noted that Article 123 of the Constitution grants the President certain law making powers to promulgate an ordinance subject to certain conditions. The President can only promulgate an ordinance when neither of the two Houses of Parliament is in session. The President has to be satisfied that there are circumstances that require `immediate action'. The justification for bringing an ordinance while a bill for achieving the same legislative objective was pending in Parliament was awkwardly lacking in this case.
The Ordinance made one key change to Section 8 (4) of the RPA. Instead of making the suspension of disqualification contingent on the filing of an appeal within three months of conviction, the ordinance provided, "…a disqualification under any of the said sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislator of a state, take effect, if an appeal or application for revision is filed with respect of the conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court." In effect, a convicted MP or MLA would, in addition to appealing against the conviction and sentence, also have to secure a stay order to avoid disqualification.
The Ordinance also stipulated that after the date of the conviction and until the date on which the conviction was set aside by the court, the member would neither be entitled to vote, nor draw any salary or allowances, but could continue to take part in the proceedings of the legislature concerned. It is noteworthy that the law declared by the Supreme Court excluded the possibility of Parliament allowing a convicted legislator to continue to exercise "any rights of a legislator". The right to attend and participate in the proceedings of the legislature concerned, which the ordinance conferred on a convicted legislator, was clearly such a right, which could not be conferred on an otherwise disqualified legislator. Hence the Ordinance to amend section 8(4) of the Representation of Peoples Act 1951 was as unconstitutional as the original section 8(4), which was struck down by the Supreme Court.
The Turn Around:
In a major embarrassment to the UPA government, Rahul Gandhi, intervening in a press briefing on the controversial ordinance organized by the Communication Department of the Congress Party on September 27, 2013, denounced it as "complete nonsense" and proclaimed, "What our government has done is wrong". Five days later, the Union Cabinet, in a hastily summoned meeting, decided to withdraw the ordinance as well as the Bill to provide amnesty to convicted lawmakers. The government's statement announcing the withdrawal of the ordinance barely disguised its embarrassment, "Having regard to various concerns, which have been expressed in relation to the validity and advisability of the proposed Ordinance seeking to amend the Representation of People's Act," it said, "the Cabinet has decided to withdraw the proposal for promulgating the Ordinance as well as the Bill."
Consequence
The Lok Sabha and Rajya Sabha secretariats sought the suggestion of the Law Ministry on the procedure to be adopted for the disqualification of the convicted MPs. According to The Hindu of October 19, 2013, Attorney General G.E. Vahanvati opined that the convicted MPs should be disqualified without any further delay and the vacancies notified pursuant to the Supreme Court's, verdict. Eventually, Shri Rasheed Masood, Congress member of Rajya Sabha from Uttar Pradesh, Shri Lalu Yadav, Rashtriya Janata Dal member from Chhapra Lok Sabha constituency and Jagadish Sharma, Janata Dal (United) member from Jahanabad Lok Sabha constituency (both in Bihar) were disqualified from the dates of their respective conviction.
Conclusion
This denouement demonstrates the power of the public opinion to influence legislative decisions. It also raises an issue which is crucial for the future of our polity and that is: Should it be left to the judiciary to determine the course of evolution of our democracy or should the Constitution be amended to provide for a referendum on such existential issues?. In any case, it is evident that the time has come for a vigilant civil society to play a more active role in the democratic processes.
*Swapna Jha is Research Officer (Legal) at Common Cause.
