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Supreme Court verdict on disqualifying netas: A right step in the wrong direction?

By Manish

In what is being hailed as a landmark judgment, the Supreme Court on Wednesday struck down section 8(4) of the Representation of the People Act, 1951 (RPA), as exceeding Parliament’s legislative power.

The case was simple: two petitioners, Lily Thomas and Lok Prahari Foundation, challenged the validity of section 8(4) of the RPA, which governs the conduct of elections and composition of the Houses of Parliament and state Legislatures. Among other things, the RPA prescribes qualifications and disqualifications for candidates and members of Parliament and legislative assemblies.

While the result of the judgment itself may be praiseworthy, the Supreme Court’s reasoning and methodology are problematic. Reuters

While the result of the judgment itself may be praiseworthy, the Supreme Court’s reasoning and methodology are problematic. Reuters

The basis for our democracy - the elected legislatures - lies in the Constitution, particularly Chapter II of Part V and Chapter III of Part VI, which govern the functioning of elected legislatures at the Centre and State level respectively. Among the provisions contained therein are Articles 102 and 191, worded in identical terms, which list out five conditions for disqualification of elected MPs and MLAs respectively:

— holding an office of profit
— being declared of unsound mind
— being an undischarged insolvent
— not being a citizen of India
— under any provision that Parliament makes in this regard.

The last of these includes the disqualifications under the RPA, contained in section 8. The first three sub-sections are a long list of offences under various laws, conviction under which initiates disqualification. The controversial portion is sub-section (4), which carves out an exception, stating any disqualification shall not take effect until three months after the conviction and, if an appeal is filed by the accused during this time, till its disposal. As a result of this, MPs and MLAs who were convicted in various cases, would file appeals in higher courts, thus escaping immediate disqualification. Given the backlog of cases in our court system, the appeals would take a long time to be disposed of, during which period the convicted MP or MLA would not only attend sessions of Parliament or the legislative assembly, but also contest elections from jail (a practice that was increasingly being seen as a fraud on the electoral system, and furthering an unfortunate criminalisation of the already-maligned polity).

It was in this context that section 8(4) of the RPA was challenged, in an attempt to close this 'escape route' for convicted MPs and MLAs and clean up the system. The petitioners argued that firstly, Parliament was not empowered by the Constitution to create such an exception, and secondly, even if it was, the exception was wholly arbitrary and in violation of the Fundamental Right to equality under Article 14 of the Indian constitution.

The respondent (the Central government) argued that the validity of the provision had earlier been upheld by a Constitution Bench of the Supreme Court, and that Parliament was in any case competent to enact the provision in exercise of its legislative powers.

A word on court functioning here: the Supreme Court of India has a sanctioned strength of 31 judges, who decide cases sitting in groups of two or more, called Benches. Questions involving substantial interpretation of the Constitution, under Article 145, are to be heard by a bench of five judges or more, called Constitution Bench. Under internally evolved rules of judicial discipline, the conclusions in any judgment delivered by a bench are binding on all future benches of the same or lesser strength, and can only be set aside (or 'overruled') by a larger bench. The present case was heard by a Bench of two judges.

In a previous judgment delivered in 2005, a Constitution Bench of the Supreme Court had interpreted section 8 of the RPA. While the validity of s.8(4) was not challenged, it provided an interpretation of the provision premised on its validity and this is what the Central Government relied upon in the present case. In a rather shakily-reasoned decision, the bench chose to 'distinguish' the earlier case (since they could not overrule it), also going into a long discussion of mostly academic value that relied upon Articles 101(3) and 190(3) of the Constitution (again worded in identical terms), which state that in case of an MP or MLA being disqualified under any of the circumstances mentioned in Articles 102 or 191 respectively, such MP or MLA's seat "shall thereupon become vacant".

The Court held that the use of the word "thereupon" in the Constitution was intended to mean immediate and automatic disqualification, and therefore Parliament exceeded its legislative power by creating an exception to these express words of the Constitution. Section 8(4) was accordingly, struck down on this ground. Consequently, the Court also declined to examine the ground of violation of Article 14.

The final aspect before the Court was whether MPs and MLAs who had been convicted but had filed appeals prior to this judgment would also be disqualified or could continue to retain the protection of section 8(4). The Court held that its judgment would only apply prospectively. This means all MPs and MLAs who are convicted after 10 July, 2013, shall stand immediately disqualified, but those who have filed appeals prior to this date will remain protected.

In respect of concerns raised by the respondents about judicial delays during appeals (what would happen in case an MP was convicted and disqualified but later acquitted after several years?), the Court also said that appellate courts had the power to suspend the conviction (and disqualification) pending appeal. However, it cautioned that this power ought to be used sparingly.

While the result of the judgment itself may be praiseworthy, the Supreme Court’s reasoning and methodology are problematic. This is a period when the Court has repeatedly expressed its frustration with the political system and sought to assert itself as the protector of the Constitution and a popular alternative to a corrupt and inept legislature and executive — even if this has meant legal clarity being sacrificed at the altar of populist reform.

The framers of our Constitution envisaged a system of institutional checks and balances, not unnecessary public confrontation and attempts by the different wings to undermine each other's power. It is unfortunate that in its (well-meaning) attempt to protect the Constitution and ensure institutional integrity, the Supreme Court has given legal principles — and perhaps the Constitution itself – the short shrift.

Certainly, a sound judgment based on the Fundamental Right to equality (the stronger of the two arguments advanced by the petitioners) would have served the purpose far better than this convoluted attempt to strike at Parliament's legislative power. At the end of this round, the judiciary has effectively taken away Parliament’s power to suspend disqualifications on conviction, but arrogated this power to itself. It remains to be seen how Parliament and the legislators respond.

(Manish is a researcher at the National Law University, Delhi. The views expressed here are his own.)