The Tale of an Ordinance: Criminals in Politics

By Hrishikesh Utpat

The political bickering over the now-aborted ordinance reversing the landmark Supreme Court judgment declaring section 8(4) of the Representation of People’s Act ultra vires has caught the nation’s attention. A quick look at the facts of the case will be informative.

Provisions in Representation of People’s Act, 1951

The conduct of elections in India is according to Constitutional provisions, supplemented by parliamentary laws. The major laws are Representation of the People Act, 1950 – dealing primarily with procedural matters such as preparation of electoral rolls – and the Representation of the People’s Act, 1951 which deals with all aspects of conduct of elections.

The disputed sections in the aforementioned case are Sections 8(4) and 62(5), which read as follows:

• Sec. 8(4) – Notwithstanding anything, [Section 8, sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
• Sec. 62(5) – No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police: Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

Section 8(4) has to be further read alongside other sub-sections of Section 8 which deal with disqualification. Specifically, Section 8(3) says that any person convicted of any offense carrying a sentence of not less than 2 years shall be disqualified from membership of Parliament or State Legislature for a period of 6 years from date of conviction.

Supreme Court Verdict

In a 2004 decision, the Patna HC had held that when a person in custody was disqualified from voting, he/she would be disqualified from contesting elections too. The rationale behind this was that if a person is decreed ineligible for voting, it is wrong to give them the power to contest elections to the nation’s legislative bodies.

In its July 10, 2013 order, the Supreme Court said: “We do not find any infirmity in the findings of the Patna 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.”

Similarly, the Supreme court passed another verdict declaring ultra vires the above mentioned Section 8 (4) of the Representation of the People Act, 1951, that allowed convicted MPs, MLAs, MLCs to continue their membership if they had appealed against their conviction/sentence within three months of the date of judgment. The rationale behind this decision was that such a provision was in direct contravention of Article 14 of the Constitution which ensures the fundamental right of equality before the law. The protection granted to sitting MPs and MLAs by Sec. 8(4) was unavailable for common citizens of India. Furthermore, such disqualification is in accordance with Articles 102 (e) and 191 (e) of the constitution, allowing for disqualification of Members of Parliament or State Legislature on basis of laws made by the respective legislative bodies.

Consequences

The government tried to bypass the SC decision by means of a bill to amend the concerned sections of the Representation of People’s Act, 1951. Since the monsoon session of parliament ended without the bill being taken up, the Cabinet introduced an ordinance to implement the same. The ordinance was then withdrawn by the government, amidst a lot of political bickering and attempts at point-scoring by all parties.

The effects of the SC decision have already begun to take effect. The ex-Chief Minister of Bihar, and current Member of Parliament, Lalu Prasad Yadav has been sentenced to 5 years in jail for corruption in the fodder scam, and is no longer an MP. Another ex-CM of Bihar, Jagdish Sharma has been sentenced to 4 years in the same scam, and has been disqualified as an MP. Similarly, Rajya Sabha MP Rasheed Masood has been sentenced to 4 years in jail in the ‘MBBS seat allocation scandal’ and has been disqualified as an MP.

Clearly, the SC decision is a landmark one towards achieving de-criminalization of politics.

Hrishikesh Utpat has completed his BE (Computer Science) from MIT College, Pune, and his currently pursuing a masters degree in Economics. He particularly enjoys social sciences, and has chosen to study Economics because it provides the “perfect blend of Science and Social Sciences”. Currently preparing for the UPSC Civil Services Exam, Hrishikesh hopes to serve the country by joining the bureaucracy – having cleared the Preliminary exams for the Civil Services in 2013, he will be appearing for the Mains exams in December. His passions include reading, writing, travelling, mountaineering and teaching. Currently affiliated with the prestigious Chanakya Mandal Pariwar organization in Pune, Hrishikesh teaches a wide range of subjects such as History, International Relations, Economics, Mathematics and Statistics.