'The Ordinance Is Unconstitutional'

'The President would be within his rights to refer the matter back to the government'

Updated on: 27 September 2013 12:00 am

This article was written by the BJP leader of opposition in Rajya Sabha before Rahul Gandhi's "complete nonsense" remarks on the UPA's Ordinance on convicted netas

Criminalization of politics and politicization of criminals have been a matter of grave concern for the Indian democracy. India is still grappling with the problem of allowing politicians charge-sheeted with offences involving moral turpitude who contest elections and get elected to legislative bodies. The credibility of politics, public life and governance has suffered. The Judgment of the Supreme Court dated 10th July, 2013 striking down section 8(4) of the Representation of Peoples Act 1951 as ultra vires was an opportunity for political parties to take at least one step forward. The UPA government, has suggested through an Ordinance an amendment to the Representation of Peoples Act and substituted the original ultra vires section 8(4) with a new formulation. The new formulation entails that the disqualification of a convicted member of a legislative body would be deferred and the member would continue to be a lawmaker with a restriction that he cannot draw his salary or vote in the process of law making. A question has been asked— why should a convicted person be a lawmaker?

The moral dilemma

People expect a convicted person to be in prison. However, the original section 8(4) required that if a person is a Member of a legislative body his conviction would not take effect for a period of three months and if within that period such a person files an appeal or Revision then his current membership would continue till the appeal or revision application are disposed of. The contrary view is one based on probity, ethics and morality. If a person is convicted why should such a person be continued as a law-maker? Many in the past have questioned the rationale behind this principle. The presumption of innocence cannot apply once conviction has already taken place. This provision has been justified on the ground that an elected person is a class apart—a separate class from an ordinarily convicted person. The ordinarily convicted person’s rights would be governed by the appeal and the interim or final orders passed. However, an elected representative has been given a statutory protection so that during the pendency of the appeal there is no bye election which is necessitated. The Supreme Court has struck down this provision vide its judgment dated 10/7/2013 as ultra vires Article 102 and 191 of the Constitution. The Judgment of the Supreme Court is final. The Review Petition against the judgment has been dismissed. This Judgment lays down a law applicable to the whole country unless the Supreme Court on a future date takes a contrary view. The moral question being asked is: once a provision has been held to be unconstitutional by the Supreme Court should the Indian Parliament exercise its legislative jurisdiction to enable convicted persons to continue as a law maker? Even though he cannot vote , his participation in the debates certainly influences the course of law making. Should the Indian Parliament not have utilized this opportunity to allow a provision of this nature to be wiped from the statutes?

On Procedure

The Bill was introduced before the Parliament . It is pending before the Rajya Sabha. The Rajya Sabha did not consider it appropriate to take up the matter for consideration. The Bill has been referred by the Chairman Rajya Sabha to the Standing Committee. Having been referred to the Standing Committee all stake holders and those holding contrary view will all get an opportunity to influence the opinion of the Standing Committee. What was the urgency that the government was compelled to bring this legislation through the Ordinance route? The only compelling reason for bypassing Parliament and taking the ordinance route is to help a class of tainted politicians who have been already convicted or are apprehensive of a court judgment in near future. That a government can be pressured by the logic of the tainted speaks volume of the lack of integrity of this government. Procedurally, it is improper to bring an ordinance in a matter which is already pending before the Standing Committee.

The Ordinance is Unconstitutional

Article 102 of the Constitution clearly provides that the disqualification applies to a person ‘for being chosen as or for being member of parliament’ if he is disqualified by a law made by the Parliament. Article 191 similarly deals with State legislatures. Section 8 of the Representation of Peoples Act 1951 disqualifies a category of convicted persons mentioned in section 8 (1), (2) and (3) of the Act. The Supreme Court in the case of Lily Thomas vs. Union of India in its judgment delivered on 10/7/2013 has clearly held as under:

Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in Sub-clauses (a), (b), (c) and (d) of Clause (1) of Articles 102 and 191 of the Constitution. We may note that no power is vested in the State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of members of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Articles 102(1) (e) and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact Sub-section (4) of Section 8 of the Act is vested in Parliament under Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution.

To put it differently, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because 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 or for a person to continue as a member of Parliament or the State Legislature has to be the same.

The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, Sub-section (4) of Section 8 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 law declared by the Supreme Court thus clearly is that there is an express limit on the power of Parliament which cannot wholly or partially allow the convicted legislator to continue to exercise any rights of a legislator. The right to attend and participate in the proceedings which the proposed Ordinance confers on a convicted legislator such a right. The parliament in view of the express language of Article 102 and 191 cannot confer such a facility to an otherwise disqualified legislator. The proposed Ordinance amending section 8(4) of the Representation of Peoples Act 1951 is as unconstitutional as the original section 8(4). The Hon’ble President of India would be well within his rights to advise the government that it ought not to legislate an unconstitutional legislation. The President would be within his rights to refer the matter back to the government.