New Delhi, July 10, 2013
Supreme Court strikes down law that allowed time for appeal
The Supreme Court on Wednesday held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.
Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.
The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.
Allowing two writ petitions filed by advocate Lily Thomas and Lok Prahari, through its General Secretary S. N. Shukla, the Bench said: “A reading of the 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. 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.”
Writing the judgment, Justice Patnaik said: “ 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 and for a person to continue as a member of Parliament or the State Legislature has to be the same.”
The Bench said: “Section 8 (4) 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.”
The Bench held: “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) and 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.”
The Bench said: “Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act. Sitting members of Parliament and State Legislature who have already been convicted of any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.”
However, the Bench said: “If any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.”
NEW DELHI, July 12, 2013
Persons in lawful custody cannot contest polls: court
Convicted or not, rule applies to those in jail andpolice custody; not applicable to those out on bail
The Supreme Court has held that persons in lawful custody — whether convicted in a criminal case or otherwise — cannot contest elections. The ruling, however, does not apply to those on bail.
A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya dismissed appeals filed by the Chief Election Commissioner and others against a Patna High Court judgment that in 2004 had held that when a person in custody is disqualified from voting he or she must be disqualified from contesting in elections too.
In its order, the Bench said: “We have heard counsel for the [political] parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of Section 62 (5) of the Representation of the People Act 1951 is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.”
Jan Chaukidar (Peoples Watch) and others filed petitions in the Patna High Court contending that a person, who was confined in prison, whether under a sentence of imprisonment, transportation or otherwise, or was in the lawful custody of the police was not entitled to vote by virtue of Section 62 (5) of the RP Act and accordingly was not an “elector” and was, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State.
The High Court accepted this contention and held:
“A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament and all other public elections.
The Court has no hesitation 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 [a] privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls.”
Aggrieved by the findings of the High Court, the appellants filed the appeals and the Bench dismissed them and upheld the findings rendered by the High Court.
NEW DELHI, July 12, 2013
Govt. may file review petition against SC verdict on convicted lawmakers
J. Balaji
It may seek referral to a five-member Constitution Bench
By striking down a safeguard provided in Section 8(4) of the Representation of the People Act, 1951 — which allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within three months of the date of judgment (by the trial court) — and declaring it ultra vires the Constitution, the Supreme Court has engendered a legal debate vis-à-vis Parliament’s power to enact such a law.
The apex court on Wednesday observed: “…Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting subsection (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution.”
Informed sources said the government was considering filing a review petition, seeking referral of the matter to a five-member Constitution Bench.
The Court even stated that “ … 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.”
The former secretary-general of Lok Sabha, P.D.T. Achary, told The Hindu on Thursday that for the first time in history the Supreme Court struck down a provision in the RP Act, 1951. “Since the issue involved important constitutional matter and the legislation made by Parliament has been declared ultra vires , a review petition might be filed by the government or by any person through PIL,” he said.
He made it clear that MPs/MLAs or MLCs, sentenced to less than two years in criminal cases (which are not covered by the provisions of disqualification to contest poll), could continue to enjoy their membership even after the latest verdict. Technically, such convicted elected representatives were not covered under Section 8 (4) of the RP Act, which was struck down by the SC, he said.
Section 8 deals with disqualification of elected representatives upon conviction for certain offences. A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1), (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years from his release.
The SC Bench found it unconstitutional that while convicted persons could be disqualified from contesting elections, they could continue as MPs/MLAs and MLCs once elected.
“A reading of the two provisions in Articles 102(1) (e) and 191(1) (e) 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,” it said, and added: “Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) 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.”
“The language of Articles 102(1) (e) and 191(1) (e) is such,” the court observed, “that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature and for a person to continue as a member of Parliament or the State Legislature has to be the same.”
Sources said the government might also seek clarification from the court on another order of the Bench, which stated that: “… persons in lawful custody, whether on conviction in a criminal case or otherwise, cannot contest elections.”
“What will happen to those candidates who get arrested after their nominations are accepted by the Returning Officer? Will this order be applicable to those in custody in relation to civil cases,” the sources asked. These, according to them, were some of the grey areas that need to be clarified.
Judgment triggers debate on Parliament’s power to enact laws
A review petition can be filed by the government or by any person through PIL
July 12, 2013
Judicial overreach
Opinion » Editorial
However well-intentioned the Supreme Court might be in its efforts to cleanse the political system of criminals, its decision to bar any person who is in jail or in police custody from contesting an election to legislative bodies is a case of the remedy being worse than the disease. By extending the curtailment of the right to vote of a person in prison or lawful police custody to the right of the person to stand in an election, the Supreme Court has, in effect, left the door open for the practice of vendetta politics by ruling parties. All that politicians in power now need to do to prevent rivals from contesting an election is to ask the police to file a case and effect arrest. As per the 2004 judgment of the Patna High Court in Jan Chaukidar v Union of India — upheld by the Supreme Court on Wednesday — all those in lawful police or judicial custody, other than those held in preventive detention, will forfeit their right to stand for election. The judges relied on the Representation of the People Act (RPA), which says that one of the qualifications for membership of Parliament or State legislature is that the contestant must be an elector. Since Section 62(5) of the Act prevents those in lawful custody from voting, the reasoning goes, those in such custody are not qualified for membership of legislative bodies. But law enforcers are notorious for carrying out the orders of their political masters. Confusion and chaos will necessarily follow this order of the Supreme Court unless it is tempered along the lines suggested by the Election Commission, which wants only those cases in which charges are framed six months prior to an election to be taken into account.
Less controversial is the court’s decision to declare Section 8(4) of the RPA ultra vires of the Constitution. Sitting MPs and MLAs will now automatically be disqualified upon being convicted of a serious crime rather than after all their appeals are exhausted. In India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative. Politicians have often taken cover under this section to continue as legislators long after the slow wheels of the law have caught up with them. But here too, there could be complications. An acquittal on appeal during the tenure of the legislature is one. Moreover, a by-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardised. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications. Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgments.
NEW DELHI, July 13, 2013
SC ruling a judicial overreach, says CPI (M)
It will infringe on the democratic rights of citizens
The Communist Party of India (Marxist) has described as “a case of judicial overreach” the judgment of a two-member Bench of the Supreme Court that a person who is in jail or in police custody cannot contest elections to legislative bodies.
“This is a drastic judgment which will infringe on the democratic rights of citizens. A person who is an undertrial prisoner who is not convicted of any offence or a person who is in police custody without having faced a trial and conviction will be deprived of the right to contest elections,” a CPI (M) Polit Bureau statement said here on Friday.
“There are a number of false cases which are foisted on political activists. Further, there are lakhs of undertrials languishing in jail unjustly deprived of their basic liberties given the inefficiency and bias of the legal-judicial system. This judgment can lead to large scale misuse. Ruling parties and governments can get people behind bars in order to prevent them from contesting elections,” it said.
An earlier judgment by the same Bench of the Supreme Court ordered immediate disqualification of an MP or MLA on being convicted of an offence which attracts disqualification. It struck down Section 8(4) of the Representation of the People Act that allows a convicted member to continue membership for a three month period for filing an appeal to the higher court and to get a stay on the conviction and the sentence.
Seeking a review of the earlier judgment, the party said the intention of the ruling to remove persons convicted in serious criminal and corruption cases was good and laudable. However, the verdict that section 8(4) of the Act was ultra vires of the Constitution, posed certain problems. Given the present state of the judicial system, conviction by a trial court was often set aside by a higher court on appeal. If a member was disqualified instantly and got an acquittal later by a higher court, there would be no scope for redressal. It was necessary to look into this aspect and other issues raised by the ruling, it added.
Meanwhile, the Communist Party of India has welcomed the ruling that disqualified people’s representative who have been convicted by a court for 2 years or more.
This well-intentioned move would help to cleanse the Parliament and State Assemblies from convicted criminals who manage to prolong their membership during pendency of appeals in higher court.
“However, it has been noted that there are also cases where some people are punished under criminal proceedings, for participating in agitations on people’s issues, and the conviction may exceed two years,” a CPI statement said.
NEW DELHI, July 13, 2013Section 8(4) of RP Act an exception to protect House, says 2005 verdict
“How can Division Bench now strike down the provision which was held not unreasonable by Constitution Bench?”
The controversy over the recent Supreme Court decision declaring Section 8(4) of the Representation of the People Act, 1951 ultra vires the Constitution seems to be turning into a legal debate. Legal experts are asking how come such an order was passed by a Division Bench when a Constitution Bench had already declared that the provision was “not unreasonable”.
Section 8(4) allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence within three months of the trial court judgment.
Senior lawyer and former Rajya Sabha member of the DMK R. Shanmugasundaram told The Hindu on Friday that he had doubts whether the latest verdict would stand the test of law. For, the Constitution Bench, in the K. Prabhakaran vs. P. Jayarajan case, said on January 11, 2005: “The persons falling in the two groups [those who are convicted before the poll and those convicted while being MPs/MLAs or MLCs] are well defined and determinable groups and, therefore, form two definite classes. Such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved.”
The Bench — headed by the then Chief Justice R. C. Lahoti and consisting of Justices Shivaraj V. Patil, K. G. Balakrishnan, B. N. Srikrishna and G. P. Mathur — even observed that Section 8 (4) was an “exception.” Sub-section 4 “operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RP Act.”
Another lawyer and Tamil Nadu Congress Committee president B.S. Gnanadesikan said the legal issue involved now was whether the Division Bench could deviate from the verdict of the Constitution Bench. The exception from disqualification given to the elected representatives under Section 8 (4) (provided they appealed within three months) was a well thought-out provision in the interest of the country. Mr. Gnanadesikan suggested that a special law be enacted to ensure that such an appeal (against conviction) was disposed of within a month by the court concerned.
Legal experts pointed out that the Constitution Bench in 2005, while dealing with Section 8 (4), had observed:
“Once the elections have been held and a House has come into existence, it may be that a member is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member, but [on] the very existence and continuity of a House democratically constituted.
“If a member was debarred from sitting in the House and participating in the proceedings, no sooner [than] the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor-thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.
“Secondly, a by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Such reasons seem to have persuaded Parliament to classify the sitting members of a House in a separate category.
“..The disqualification provision must have a substantial and reasonable nexus with the object sought to be achieved and the provision should be interpreted with the flavour of reality bearing in mind the object for enactment.”
“Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3) is founded on the factum of membership of a House. The purpose of carving out such an exception is not to confer an advantage on any person; the purpose is to protect the House.”
NEW DELHI, July 14, 2013
Section 8(4) of RP Act already upheld by Constitution Bench: Legal experts
How can Division Bench cam deviate from Constitution Bench verdict?
The controversy over the recent decision of a division bench of the Supreme Court declaring ultra vires Section 8(4) of the Representation of the People Act, 1951 seems to be turning into a legal debate as legal experts are questioning how come such order could be passed when a Constitution Bench of the apex court already declared that the provision was “not unreasonable”.
Section 8(4) of the RP Act allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within three months of the date of judgment by the trial court.
Senior lawyer and former member of Rajya Sabha from DMK, R. Shanmugasundaram, told The Hindu on Friday that he had doubts whether the latest verdict would stand the test of law as a Constitution Bench of the Supreme Court, on January 11, 2005, in the K. Prabhakaran vs P. Jayarajan case had stated that: “The persons falling in the two groups [those who are convicted before the poll and those convicted while being MP/MLA or MLC] are well defined and determinable groups and, therefore, form two definite classes. Such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved.”
The Constitution Bench — headed by then Chief Justice R. C. Lahoti and consisting of Justice Shivaraj V. Patil, Justice K. G. Balakrishnan, Justice B. N. Srikrishna and Justice G. P. Mathur — had even observed that Section 8 (4) of the RP Act was an “exception.” It said that “Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RP Act.”
Another renowned lawyer and Tamil Nadu Congress Committee president B.S. Gnanadesikan said the legal issue involved now was whether the Division Bench could deviate from the verdict of the Constitution Bench. The exception from disqualification given to the elected representatives under Section 8 (4) of the RP Act (provided they appealed against their conviction within three months) was a well thought out provision in the interest of the country and under the special circumstances.
Mr. Gnanadesikan suggested that a special legislation could be enacted to ensure that such appeal (against conviction) of the elected representatives should be disposed off within a month by the court concerned.
Legal experts pointed out that the Constitution Bench in 2005, while dealing with Section 8 (4) of RP Act had observed:
“Once the elections have been held and a House has come into existence, it may be that a member of the House is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member of a House, but the very existence and continuity of a House democratically constituted.”
“If a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.”
“Secondly, by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Such reasons seem to have persuaded the Parliament to classify the sitting members of a House into a separate category.”
“..The disqualification provision must have a substantial and reasonable nexus with the object sought to be achieved and the provision should be interpreted with the flavour of reality bearing in mind the object for enactment.”
“Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3) is founded on the factum of membership of a House. The purpose of carving out such an exception is not to confer an advantage on any person; the purpose is to protect the House.”
Jaipur, July 14, 2013
Judiciary can’t make law, says Katju
Press Council of India Chairman Markandey Katju on Saturday expressed reservations about the recent Supreme Court verdict barring convicted lawmakers from contesting polls. The judgment “should be reviewed. Making laws is the work of legislature. The judiciary can enforce laws but cannot make a law. Here I feel that the judiciary did the work of legislature,” he told reporters on the sidelines of a function here. — PTI
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