Yesterday, 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)