SC judgement on convicted netas jumps crucial step in deductive process


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15 Jul 2013

 
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SC judgement on convicted netas jumps crucial step in deductive processYesterday, the Supreme Court handed down a landmark judgment which strikes down a provision of the Representation of the People Act 1951 (‘RPA’) that sought to protect convicted MPs, MLAs or MLCs from being disqualified if they appealed their conviction in a higher court or filed a revision application.

To summarise important aspects, sub-sections (1) to (3) of s. 8 contained a list of offences under which any individual convicted, whether an aspiring candidate or an elected representative, would be disqualified. However, the protection under sub-section 4 was carved out only for sitting MPs, MLAs or MLCs. This distinction is crucial to understand the contours of SC’s judgment. A PIL was filed challenging the constitutionality of s. 8(4).

There are two aspects in the ratio decidenci of the judgment which need examination.

Firstly, the SC held that Articles 102 and 191, on the basis of which s. 8 was enacted, empowered the Parliament to make “one law” for a person to be disqualified for “being chosen as” and “for being” an elected representative. In other words, Parliament was empowered to make only those disqualification laws which applied to both sitting and aspirant politicians. It could not, therefore, carve out protection for one category. This is basically on the lines of what the petitioners argued.

Does this mean, therefore, that if s. 8(4) afforded protection to both sitting politicians and aspiring politicians, it would have not fallen foul of Articles 102 and 191? Can, therefore, the Parliament amend RPA and introduce a similar provision as s. 8(4) and make it applicable to both categories?

The answers to these questions would seem clearer after we look at the problematic portion of SC’s holding. SC asserts that the Parliament had absolutely no power to enact any such a protection at all. How SC arrives at such a conclusion is perplexing.

According to SC, under Articles 101 and 190, which pertain to vacancy of seats, once an elected member becomes subject to any grounds for disqualification in Articles 102 and 191, his seat shall “thereupon become vacant”. The SC relies on the word “thereupon” to conclude that as soon as any ground for disqualification is triggered, the seat becomes vacant.

There is little quarrel with this interpretation. The interpretation of “thereupon” as meaning “automatically” is fairly convincing. However, SC jumps a crucial step in the deductive process in arriving at the conclusion that s. 8(4) conflicts with that automatic consequence.

One of the grounds under Articles 102 and 191 for disqualification of a politician is “if he is so disqualified by or under any law made by Parliament”. The relevant law for this purpose is s. 8 RPA.

Do note that the “ground” which triggers vacancy is the law made by Parliament, i.e., s. 8 RPA. This law, in turn, contains its own “grounds”, i.e., offences in s. 8(1)-(3). The two “grounds” are clearly distinguishable. Importantly, that law also consciously includes an important limitation in the form of s. 8(4).

The key aspect is that the list of grounds, i.e., offences in s. 8(1)-(3), along with the limitation in s. 8(4), together constitutes the “ground” which triggers disqualification and ensuing vacancy, i.e., “law made by the Parliament”, i.e., RPA s. 8.

SC has concluded that sub-section (4) is unconstitutional because Parliament cannot make a law which “defers the date on which the disqualification of a sitting member will have effect” thereby preventing his seat from becoming vacant. Therefore, according to SC, what conflicts with the two consequences – disqualification and vacancy – isn’t the “ground” mentioned in Articles 102 or 191 (i.e., RPA), but a provision limiting grounds within that “ground” (i.e., s 8(4)).

SC, in deducing this conclusion, skips a vital step by conflating the two clearly distinguishable “grounds”.

This isn’t to say that s. 8(4) cannot be challenged under any other ground. An examination of a rather broad and multipronged Article 14 could have provided SC with a more convincing basis of testing the constitutionality of s. 8(4). In fact, one of the arguments made by the petitioners was on Article 14. Instead, SC concluded its unconstitutionality through the other rather perplexing route.

To be sure, the outcome of this judgment is desirable given that the sheer misuse of s. 8(4) in the recent past had reached alarming levels. The legal basis, however, for coming to such a critical conclusion suffers from serious deficiencies. With due respect, this SC judgment is fit for reexamination through a review or a reference.

(This column was published in Bar & Bench on July 12, 2013)


Kartikeya is a lawyer qualified and practising in India and the State of New York. He writes commentary on current affairs, particularly on developments in the legal field.

(c) NiTi Digital. Reproduction and/or reposting of this content is strictly prohibited under copyright laws.


 
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  • narendra varma

    This is a very timely judgment which will go a long way to stem the rot of the criminalisation of Indian Polity. Since long society is begging for an effective device to arrest the ever growing influx of criminals in our legislatures with and aid and abetting of so called national parties which do not wait for a moment to indulge in such anti national activities. What several conscientious and patriotic citizens failed to do despite all their good intensions has been done by our Supreme Court just by a stroke of a pen. The consternation of all political parties on account of this verdict to debar all jailed neta from contesting elections is understandable. To-day criminals under the facade of Neta are in majority in every party that is why their embarrassment is easily discernible. The so called national leaders have no qualm to join hands with criminal to advance the prospects their parties at the hustings and that is why there is great upsurge of criminal in our polity. But to clean the Augean stable this verdict is very appropriate and timely because when all human values of life like sensitivity towards human sufferings, morality, accountability and probity in public life etc have lost upon these political parties. This verdict has come as fresh air to revitalise our Democracy and purge all stinging political mess. The heart of every law abiding citizen pains to see the scores of criminals, convicted by the competent of Court of law, sitting in legislatures which are temples of our democracy on account of the provisions of now declared ultra-vires section 8(4) R P Act. The common man has welcomed this verdict as the God sent opportunity to get rid of the criminal who surreptitiously made entry into Indian political system with the approval and blessings of so called national leaders. Politics has become an institution to perpetuate dynastic rule and to rob the national resources without fear of Law of the land and accountability of their action. Those who still preach of probity and morality in public life, their concern is only skin deep and shallow. There is no surprise that political parties of all hues both, secular and pseudo secular, lose no time to come together to overcome this spanner in their pursuit of robbing the national resources in every conceivable means by giving their misdeeds an ideological colour. To-day there is acute paucity of bold and strong character politicians in Indian politics which is full of sycophants and demagogues. Why there is any apprehension of slapping of false cases and imprisonment, when any politician has not indulged in any unlawful activity? Has our political class lost faith in our judicial system? If they are of un-impeachable integrity, sincere and loyal to their avocation, they should not fear from this verdict which ensures keeping of criminals away from the political system, rather they should without any exception welcome this verdict. How can they claim themselves to be super Indians and want to be treated differently in a society where Rule of Law is its hall mark? Unfortunately they are ganging up to nullify the effect of this verdict by means of resurrecting any analogous provision in the Representation of People Act. We should pray that they may not succeed in their nefarious design to deface and defile our democracy.




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