The
National Commission to Review the Working of the Constitution (NCRWC) which was
headed by the eminent jurist and former Chief Justice of India Mr. M. N.
Venkatachalaiah recommended that the election law be amended to bar any person
charged with an offence punishable with imprisonment up to five years, from
contesting elections to parliament and state assemblies. Further, it said any
person convicted for heinous offences like murder, rape, dacoity and smuggling
must be permanently barred from contesting elections.
The
Second Administrative Reforms Commission headed by Mr.Veerappa Moily, a member
of the Union Cabinet, recommended that Section 8 of the
Representation of the People Act, 1951 be amended “to
disqualify all persons facing charges related to grave and heinous offences and
corruption”, with the modification suggested by the Election Commission. The
Law Commission suggested 14 years ago that mere framing of
charges by a court in regard to election-related offences should by itself be a
ground for disqualifying a person from contesting an election. In other words,
all the three august commissions named above held the view that mere framing of
charges was enough to bar individuals from contesting elections to parliament
and state assemblies.
The
Election Commission decided 16 years ago that candidates
in parliament and state assembly elections should file affidavits about their
convictions in cases covered by Section 8 of the RP Act, 1951. The commission was of the view that conviction by a trial
court was sufficient to attract disqualification “and even those released on
bail during the pendency of their appeals against their convictions are
disqualified from contesting elections”.
Thereafter,
in September, 1997, the Chief Election Commissioner wrote
to the Prime Minister in this regard and pressed for immediate amendment of the
law to deal effectively with the malaise. He said there were “grave
incongruities” in the existing provisions in Section 8 and
wanted the same amended. The Commission said that under jurisprudence, a person
is presumed to be innocent unless proved otherwise and convicted by a court of
law. Thus, in strict legal parlance, a criminal is one who has been convicted
of a crime by a court of law. “But the common man perceives otherwise. In his
eyes, a person who has been charged with certain types of offences and is under
trial is also a criminal. The common man considers it criminalization of
politics if he sees a history-sheeter or a notorious bad character, involved in
various crimes of a heinous nature like murder, dacoity or rape, contesting
elections and getting elected”.
It
held the view that “a person facing trial in a serious offence, if kept out of
the electoral fray till he is exonerated of the charge, should not have a
legitimate grievance, as such restriction on his right to contest elections
would be a reasonable restriction in the greater public interest and for
bringing sanctity to the august Houses which are the supreme law making bodies
of the country”. The Election Commission’s efforts to keep criminals out of
electoral politics were stonewalled by successive governments at the Centre for
16 years.
It
is in this context that the Supreme Court decided last July to strike down
Section 8 (4) of the RP Act, 1951
which enabled criminals to continue their tenures in Parliament and state
assemblies if they filed appeals against their conviction in a higher court.
Any judge in any democracy who sees steady deterioration in democratic values
is bound to correct the aberration. And that is exactly what the Supreme Court
did last July. Though the court did not bar politicians who are charge-sheeted
from contesting polls, it declared that a person convicted and sentenced to two
years’ imprisonment, should be kept out of the electoral fray, even if his
appeal is pending in a higher court. The court also barred persons in jail from
contesting elections because such persons lose the right to vote.
The
Union Cabinet’s first response to the Supreme Court verdict was to amend the
Representation of the People Act, 1951 in order to save
the seats of criminal legislators. At its meeting on August 22,
it approved two amending bills to negate the recent Supreme Court verdict on
disqualification of convicted legislators. The first amendment sought to add a
proviso to sub-section (4) of section 8
of the Representation of the People Act, 1951 stating that
the convicted member shall continue to take part in proceedings of Parliament
or Legislature of a state but he or she shall neither be entitled to vote nor
draw salary and allowances till the appeal or revision is finally decided by
the court. The other amendment said an MP or MLA would not lose his right to
vote if under arrest even for a short duration and thereby would retain his
right to contest a poll. However, despite the government’s desperate efforts
during the Monsoon Session of parliament, it could not effect these changes
because a key amending bill was referred to a parliamentary standing committee.
The
latest decision of the Union Cabinet to bring an ordinance to undo the Supreme
Court’s historic verdict in this case betrays its utter contempt for the
opinions of some of the best legal minds in the country. Rejecting the sage
counsel of eminent jurists, the political class has almost unanimously decided
to challenge the Supreme Court’s verdict and to take legislative measures to
undo parts of the apex court’s order. Sailing along with this view, which was
expressed forcefully by politicians from across the political spectrum at an
all-party meeting convened prior to the Monsoon Session of Parliament, the
government announced its resolve to seek a review of the apex court’s judgement
and simultaneously introduced a Bill to amend the Representation of the People
Act, 1951. The purpose of this amendment is to protect the
so-called rights of criminal-politicians rather than that of the people. They
are also meant to overturn the verdict of the Supreme Court relating to the
prohibition on persons in jail losing their right to file nominations in
elections. The Rajya Sabha cleared this amendment first. The Law Minister
Mr.Kapil Sibal, who piloted this Bill decided to utilize the opportunity to
lecture the judiciary and all and sundry. He advised the judiciary to be
“extremely careful” in giving rulings which have an impact on the polity. He
claimed that there was a negative perception in the country that all
politicians were criminals and that the courts were enthusiastic to prove this
to be right.
Only
a few political parties have had the gumption to oppose this atrocious move to
protect criminal-politicians. Among them are the two main communist parties.
The Communist Party of India opposed the ordinance which enables convicted MPs
and MLAs to continue in their posts if they have filed appeals against their
conviction. It said the government had introduced a Bill to this effect in
Parliament during the Monsoon Session and the same had been referred to a
parliamentary standing committee. Under these circumstances, the CPI said the
government should not be in a hurry to insulate convicted MPs and MLAs from
disqualification as per the Supreme Court’s judgement. Opposing the ordinance,
it said this matter needed to be discussed in parliament after the standing
committee presented its report. The Communist Party of India (Marxist) also
opposed the ordinance. It declared that the ordinance route was “undemocratic”.
The Bharatiya Janata Party sent a delegation to the President urging him not to
sign the ordinance.
Thanks
to the Supreme Court’s directive many years ago, we have enough information on
the criminal background of our legislators. So, let us test the actions of the
union government and the Law Minister’s defence of the politician on the basis
of available facts and the analysis of the background of our representatives
done by the Association of Democratic Rights (ADR). This organization has found
that 1460 of the 4807 sitting MPs and
MLAs in the country (constituting 30 per cent) have
declared criminal cases against themselves in their self- sworn affidavits
submitted to the Election Commission of India prior to contesting elections. 688 (14%) out of the total number of sitting MPs and MLAs have
declared serious criminal cases against themselves. Further, ADR has found that
162 of the 543 Lok Sabha MPs (30 per cent) have declared criminal cases against themselves. 14 per cent of the current Lok Sabha MPs have declared serious
criminal cases against themselves. Of the 4032 MLAs in the
country, as many as 1258 (31%) from all state assemblies
have declared criminal cases against themselves. 15 per
cent of the current MLAs from all state assemblies have declared serious
criminal cases against themselves, according to this analysis by ADR.
Mr.Sibal
also made the extraordinary claim that the political class was the most
accountable class in the country and that the politicians were accountable to
parliament, to the election commission, to the country and to the people, to
whom they go every five years. It was strange to hear this from the Law
Minister of a government that wants the Supreme Court to review its decision to
bar convicted persons from continuing in parliament and state assemblies and
which has decided desperately to take the ordinance route to overturn the
Supreme Court verdict. It is equally strange to hear this from a Law Minister
whose actions betray utter contempt for the opinions of the Law Commission, the
Justice Venkatachalaiah Commission, the Second Administrative Reforms
Commission, the Election Commission and the Supreme Court.
But
the strangest development of all is the manner in which Mr.Rahul Gandhi, the
Congress Vice-President who virtually slept through all the governmental moves
since mid-July to bail out criminal-politicians, suddenly woke up last week and
publicly rebuked his own government for bringing the ordinance. Realising
belatedly that the government’s move had created much revulsion among the people
and that even the President, Mr.Pranab Mukherjee was reluctant to sign on the
dotted line, Mr.Gandhi has tried to salvage his own image at the cost of the
Prime Minister and members of the Union Cabinet. But this will not wash.
Intemperate conduct before cameras will not explain his deafening silence on
this issue for 45 days. This is yet another example of
what political power does to individuals. They think they have the power to
fool all the people all the time.
Dr.
A Surya Prakash, Distinguished Fellow, VIF
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