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An overdue cleansing has begun -Soli J Sorabjee
-The Indian Express


The Supreme Court has delivered a sterling judgment on convicted legislators. It could have gone further

Democracy is a basic feature of our Constitution. The entry of people with colourful criminal antecedents in Parliament or statelegislatures is a menace to our democracy. The figures for criminals in Parliament and state legislatures are staggering. They touch 30 per cent of the members in the Lok Sabha and 31 per cent of members in state legislatures.

Under the present law, these criminals are eligible to stand for election. The ineligibility arises only when the person is convicted and there is no judicial order staying the sentence or conviction. There have been repeated demands that a person who has been chargesheeted by a court of law for grave offences involving moral turpitude should be ineligible to stand for election. Political parties, whilst loudly proclaiming their desire for clean politics, were not agreeable to the requisite amendments in the Representation of the People Act 1951 (RP Act), and continued to give tickets to tainted criminals who possessed the indispensable attribute of winnability.

The recent landmark judgment of the Supreme Court, delivered on July 10 by a bench comprising of Justices A.K. Patnaik and S.J. Mukhopadhaya, is most welcome. It is a step in the right direction for partially ridding our polity of the pervasive criminality that has infected it.

The question before the court was about the constitutionality of Section 8(4) of the RP Act. Under Section 8 of the RP Act, a person convicted of certain offences mentioned therein shall stand disqualified for different periods depending on the offences for which he is convicted. For example, under Sections 8(1), 8(2) and 8(3), the convicted person shall be disqualified when he is sentenced to imprisonment from the date of such conviction, and shall continue to be disqualified for a further period of six years after his release.

However, Section 8(4) makes a departure from this position. It lays down that if the person is a member of Parliament or of the legislature of a state, disqualification would not take effect from the date of conviction 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 sentence, until that appeal or application is disposed of by the court, which would really mean years in view of the excruciatingly slow pace of our criminal justice system.

The court held that Parliament wanted to make one law for the election of a member and for his continuance as a member. In other words, if because of a disqualification, a person cannot be chosen as a member of Parliament or state legislature, for the same disqualification, he cannot also continue as a member of Parliament or state legislature.

Next, the court referred to Article 101(3)(a) of the Constitution, which provides that "if a member of either House of Parliament - (a) becomes subject to any of the disqualifications mentioned in Article 102, his seat shall thereupon become vacant". There is a similar provision regarding members of state legislatures. The court ruled that on account of disqualifications incurred by a member, his seat automatically falls vacant by virtue of the expression, "his seat shall thereupon become vacant". Consequently, Parliament cannot, by enacting Section 8(4), defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification incurred. The court concluded that subsection (4) of Section 8 of the act, which defers the date on which the disqualification will take effect, is ultra vires the Constitution because it is inconsistent with Articles 101(3)(a) and 190(3)(a), which prohibit Parliament from defering the date from which the disqualification will come into effect. In view of this conclusion, the court did not go into the question of whether Section 8(4) infringes the equality provision in Article 14.

Then, the court softened the effect of its judgment by ruling that "sitting members of Parliament and state legislatures who have already been convicted for any of the specified offences and who have filed appeals or revisions which are pending, should not be affected by the declaration of unconstitutionality of Section 8(4) now made by us in this judgment." Why? "Because the knowledge that sitting members of Parliament or state legislatures will no longer be protected by subsection (4) of Section 8 of the act will be acquired by all concerned only on the date this judgment is pronounced by this court."

This part of the judgment is debatable and disappointing. It diminishes the impact of this sterling judgment. In this case, there is no question of any past transactions or estates that had changed hands and been acted upon for years that would be affected by the judgment. Nor is there any question of administrative chaos which, if any, would have been in the political parties whose numbers in Parliament and state legislatures would have fallen sharply. MPs and MLAs convicted of grave offences involving moral turpitude - in other words, criminals - did not deserve any sympathetic protection from the court by invocation in effect of the doctrine of prospective overruling. Law breakers should not be permitted at all to function as law makers. The court should have gone the whole hog.

The writer is a former attorney general for India