The Case Against The Ordinance to Protect Criminal Legislators

Dr. A Surya Prakash, 

Distinguished Fellow, VIF

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.