India is witnessing an increasing number of instances wherein active citizens are using Public Interest Litigation [PIL] to take on the political class. This strikes one to be slightly more effective than games such as let-us-trade-allegations and holler-hoot-shoot-and-scoot, played in TV studios, wherein sometimes the panelists think nothing of squandering away their precious ignorance much to the collective amusement of the viewers.
This write-up will focus on 2 such cases that could have far-reaching implications on the quality of politics as well as politicians, in India. Irrespective of how things pan out on these PILs, as a concerned citizen [and one among millions if I could hazard a guess], it warms the cockles of my heart to see David take on Goliath.
Background: The two PILs revolve around The Representation of the People Act [RPA] which, in a nutshell,
“Provides for the conduct of elections to the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.”
Sections 8.1(a) through 8.1(n) of the RPA list down the disqualification criteria of an elected representative. A quick look at the criminal charges, which about 640 MPs/MLAs boast of on their pre-election affidavits, reveals the overlap between the charges and the aforementioned criteria to be significant. If the wheels of the Criminal Justice System - as applicable to elected representatives - could move faster, a not insignificant number of these MP/MLAs could be disqualified, were they to be convicted of the charges that are listed against them.
But things go phut kaput when one reads Section 8(4), and I quote:
“Notwithstanding anything [in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect 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 the sentence, until that appeal or application is disposed of by the court.”
Shorn of the farrago of legalese, the essence of it all can be captured in the following few words:
If you are an elected representative, you can park your derriere in the House even if you have been convicted. How? Just appeal to a higher court and get a stay on the sentence or the conviction.
Case 1: Thankfully, this has been challenged, with Fali Nariman leading the charge. Pursuant to a PIL filed by the NGO Lok Prahari concerning Section 8(4) of the RPA 1951, senior constitutional expert Fali S Nariman has said that this discriminatory provision was the first hurdle in the fight against criminalization of politics and ought to be struck down on the ground that it was in conflict with equality of law guaranteed under the Constitution (Article 14 of the Constitution provides for equality before law – it is time the elected representatives make their acquaintance with the Constitution again).
As this news report indicates, “Nariman slammed Section 8(4) of the RPA as discriminatory and violative of Article 14 of the Constitution. Section 8(4) creates two classes of convicts - one, the common man who on conviction cannot contest elections for MPs and MLAs and second, sitting MPs and MLAs who would continue to be treated as not convicted despite being found guilty for a heinous offence by a court of law”
The Times of India report then goes on to state: “The Supreme Court put the question to the Centre on 10Jan, 2013, seeking a detailed response from the Union government on the constitutional validity of Section 8(4) of Representation of People Act which allows for special treatment for lawmakers”.
The bench - Justice AK Patnaik and Justice Gyan Sudha Misra -has asked the Centre to file its response within four weeks and posted the matter for further hearing on 12th Feb, 2013.
Case 2: In another parallel development, a bench of Delhi High Court comprising Justice Sanjay Kishen Kaul and Justice Indermeet Kaur, heard the arguments of a PIL that has alleged that INC and BJP have “violated the Representation of People’s Act (RPA) 1951 and Foreign Contribution (Regulation) Act (FCRA) by taking donations from government companies and foreign sources, which is prohibited under both the legislations.”
Dr. EAS Sarma (former secretary to the Government of India) and Association for Democratic Reforms [ADR] are the petitioners in this particular case.
As this ADR press note states:
a) INC and the BJP have violated Section 29B of the Representation of People’s Act 1951, which categorically prohibits them to take donations from government companies and from any foreign source
b) The donation of huge sums of money made by the Vedanta Group (being a foreign company) to major political parties like INC and BJP is in clear violation of the FCR Act of 1976 and the FCR Act of 2010.
c) The donation of huge sums of money by the public sector undertakings [who are also State within Article 12 of the Constitution] to the political parties is in violation of Section 293A of the Companies Act.
The Delhi High Court, after hearing the petitioners, has asked the Home Ministry and Election Commission of India (ECI) to file their responses within 2 weeks. The Court has also said that the two political parties, INC and BJP, will be called upon to respond only after going through the responses of the Home Ministry and ECI. The next date of hearing in the matter has been set as 4th February 2013.
Final Thoughts: The current Electoral system holds too many hidden contradictions in its folds for it to be deemed stable and consistent. The most stunning contradiction of it all being, the power to make effective changes and modifications rests with the very same people who stand to lose the most (private gains, private wealth, private power) were such changes to be effected.
In light of these contradictions, PILs like these are good news for the citizens, irrespective of which political party one supports; after all, as I have written time and again, the problem of corrupt and criminal MPs & MLAs, as also of the ills the current political funding mechanisms lead to, is not restricted to only one political outfit.
The sooner the cesspool is cleaned up a bit - Sisyphean as the task appears - the better it will be for the country.
Updated Date: Jan 14, 2013 16:14 PM