Bid to clip Supreme Court's power

23-Nov-2017 By Sam Rajappa

Posted 28 Sep 2013

It is universally accepted that criminalisation of our political system, both at the national and state levels and across party lines, should end. The most alarming form of criminalisation is the significant number of people convicted of criminal charges or cases pending against them occupying Parliament and State legislatures.

An analysis done by the Association of Democratic Reforms reveals that only 24 out of 4,807 MPs and MLAs in the country have declared in their affidavits of ever being convicted in a court of law.

ADR has analysed 47,389 affidavits of Assembly and Lok Sabha candidates since 2008 and found 8,041 have declared criminal cases against them, 3,759 were of serious nature.

The Election Commission has been pleading for reforms for the last two and a half decades to cleanse the electoral system by keeping criminals out.

Apart from significant contribution made by various civil society groups on the subject, at least seven government committees beginning with the Goswami Committee on Electoral Reforms of 1990 to the Second Administrative Reforms Commission of 2008 had suggested to keep criminals out of the elected legislative bodies.

The Ethics Committee of Parliament wanted expeditious implementation of electoral reforms. Neither the Congress nor the BJP governments at the Centre did anything to de-criminalise elective politics.

It was in this milieu about a dozen non-governmental organisations filed public interest petitions before the Supreme Court seeking its intervention to bar entry of politicians with criminal record into the Lok Sabha and the State Assemblies.

Their contention was that criminalisation affects the basic structure of democracy and the court should declare Sections 8, 9 and 11A of the Representation of People Act, 1951, unconstitutional. In its judgment of 10 July, the Supreme Court struck down Section 8 (4) of the RPA as unconstitutional.

The Representation of the People (Amendment and Validation) Ordinance, 2013, hastily cleared by the UPA Cabinet on 24 September, is aimed at nullifying the effect of the apex court order.

According to the existing provision of the RPA, anyone found guilty of a criminal offence and convicted for a prison term of two years or more is disqualified to contest elections for six years.

A sitting member of legislature, however, cannot be disqualified automatically if the lawmaker challenges his conviction in a higher court within three months and gets a stay of conviction and the sentence.

The Supreme Court order was necessitated by the government’s failure to bring about much needed electoral reforms. When SY Quraishi was the Chief Election Commissioner, then Law minister Salman Khurshid went to Nirvachan Sadan thrice to give an assurance that the government was serious about reforming electoral laws and sought some minor modifications to the Commission’s proposal.

The court was an independent judicial body and framing of charges was done with judicial application of mind even if prima facie at that stage. The Commission suggested at least in those cases in which the FIR had been registered against candidates six months prior to the election should be barred. Khurshid wanted one year from the charge sheet instead of six months. Quraishi readily agreed. But there was no action on the part of the government since then.

Howsoever high the legislators might consider themselves to be, they are equal before laws made by Parliament. Under Articles 102 (1) (e) and 191 (1) (e) of the Constitution, Parliament is obliged to make laws common to all citizens.

By striking down Section 8 (4) of the RPA, the Supreme Court had only rectified an anomaly in the law made by Parliament. The urgency of the Ordinance is seen as a move to enable convicted Congress MP, Rashid Masood, to retain his membership, and bail out Rashtriya Janata Dal leader, Lalu Prasad, in case of conviction in the fodder case.

The President is under pressure from the opposition parties not to sign this patently unconstitutional Ordinance. When the Supreme Court has held as unconstitutional convicted legislators continuing in office, Parliament cannot exercise its legislative jurisdiction to negate it.

In a democracy, there cannot be one law for the ordinary citizen and another for the elected representatives. The Law Commission in its 170th report had proposed a bar on persons charged with any offence punishable with imprisonment of five years or more contesting election to Parliament or State legislatures. As a first step there should be a law to ban political parties giving tickets to candidates with criminal records.

Rule 4A of the Conduct of Election Rules, 1961, prescribes that each candidate must file an affidavit regarding cases, if any, in which he or she has been accused of any offence punishable with imprisonment for two years or more in a pending case in which charges have been framed by a court.

On an order of the Supreme Court to the Election Commission dated 27 March, 2003, candidates must also file an affidavit giving information relating to all pending cases in which cognizance has been taken by a court, and also assets and liabilities and educational qualifications.

An affidavit filed by the ministry of Law and Justice in the Supreme Court stated that convicted MPs and MLAs get disqualified only after exhausting all legal remedies and based on the legislative policy of the government to ensure “existence and continuity” of an elected legislature. It said only 24 out of 4,807 lawmakers were convicted since 2008.

It is unfortunate that at a time when the people are looking forward to ridding Parliament and legislatures of elected members with criminal records, the government is in a hurry to promulgate an ordinance to give them a fresh lease of life.

The Union Cabinet which usually meets on Thursdays was advanced to Tuesday to pass this illegal Ordinance. Ordinances are promulgated only in emergencies when both Houses of Parliament are not in session and if the President is satisfied that “circumstances exist which render it necessary for him to take immediate action,” according to article 123 of the Constitution.

In this case, a government Bill introduced in the Monsoon session of Parliament that allowed the convicted legislators to continue in office has been referred to the Standing Committee.

If there was no emergency then, what is the urgency now? Instead of recognising the Supreme Court order as an opportunity to weed out criminal elements from our legislatures, the UPA government has chosen to shield them. The only people who will gain from this Ordinance are MPs and MLAs convicted of serious crimes.

The government should know that no harm will be done to our ‘vibrant’ democracy if those with serious criminal charges are kept out of Parliament and State Assemblies and disallowed from fighting elections.

Contesting election is not a fundamental right. The National Commission to Review the Working of the Constitution in which the late CR Irani, Editor-in-Chief of The Statesman was a member, recommended special courts to establish, prima facie, whether a candidate’s offence was of such a nature that he or she should not be allowed to contest.

Fundamental reforms are required to bar those against whom serious criminal charges are pending whose nomination papers could be rejected at the level of the Returning Officer.

That President Pranab Mukherjee is not comfortable with the Ordinance is evident from the fact that he has held a meeting with Home minister Sushilkumar Shinde, Parliamentary Affairs minister Kamal Nath and Law minister Kapil Sibal to find out its urgency.

None could convince him that it was essential for the continuance of Parliament. If he returns the Ordinance, the government could re-send it and he would have no option but to sign. The best course open for the President is to sit on it till the winter session of Parliament.

Sam Rajappa is Consulting Editor of The Weekend Leader

  • Thursday, November 23, 2017