July 29, 2021
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Mummy, Baby, Bathwater

Mummy, Baby, Bathwater

Yesterday, writing in the Indian Express, Pratap Bhanu Mehta underlined how the Ordinance route was not just politically expedient but also made it patently obvious that the objective was to protect individual legislators, not the larger integrity of the institution:

Just think of a scenario where a government has a wafer thin majority of one or two. A lower court convicts an MP and the government falls as a result. Of course, if the MP is guilty, the court has no choice but to convict, no matter what the consequences. But it is not entirely unreasonable to think that, given how large the consequences might be for government, it would be better to have another judge at least take quick look and ascertain that the lower court judgment was not mala fide or deeply erroneous. No one is saying the MP should not be disqualified. But surely it is not unreasonable to seek a safeguard against one mischievous or incompetent judge causing a major disruption in government. Given the high rates of appeals, of overturning lower court judgments, this is not an unreasonable worry. The idea is not to protect the wrongdoing of individual MPs; it is to prevent the possibility of the House and government being waylaid by a judicial error. Exactly such a possibility had been hinted at in an older constitutional judgment, in the 2005 K. Prabhakaran vs P. Jayarajan case. The court had suggested that it was within legislative competence to provide safeguards for the integrity of the House as a whole...

The real mystery in this whole affair is not that an argument cannot be made for introducing safeguards. The real mystery is that the government made its own case shoddily. So for example, the bill it introduced was neither fish nor fowl. It prevented the convicted MP from voting in the House but did not disqualify him. This undercut the argument about the integrity of the House that the Jayarajan case had tantalisingly made possible.

Read the full piece at the Indian Express: Blunt Hammer Syndrome

And the Indian Express returns to the theme, pointing out in its editorial:

The bill attempted to avert distortions and manipulation that the court-mandated disqualification of convicted MPs could have created. It was clumsily drafted, and so there was merit in it being sent to a committee for careful consideration. Disqualification of legislators by a lower court alone, pending an appeal, allows the composition of the House to be altered by potentially imperfect judgments. The bill was needed, but it was also essential that the political class articulate the democratic necessity for its passage — the debate would have ironed anomalies out of the draft legislation, besides nuancing the popular sentiment to show that disqualification of convicted MPs is not exactly the right way of cleansing politics, that it could, in fact, undermine a popular mandate. The ordinance, on the other hand, was an expedient measure, and the president rightly sought clarifications.

However, by panicking at the popular disgust with the ordinance and disowning the bill altogether, MPs have collaborated in a spectacular and frightening institutional surrender. A future Lok Sabha may well have to undo the damage inflicted by them.

Read the full editorial: No 'nonsense'

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