UPA not first to take ordinance route to overturn SC, NDA did it in 2002

While BJP is up in arms against the UPA's decision to take the ordinance route to blunt a Supreme Court order aimed at keeping criminals out of Parliament and legislative assemblies, it seems to be conveniently forgetting that it did exactly the same thing in similar circumstances in 2002.

When the Supreme Court passed a landmark judgment in May 2002 ordering all candidates seeking to be elected to the Parliament or the state assembly to disclose their criminal backgrounds, their financial assets and educational qualifications, the BJP-led NDA government within four months promulgated an ordinance amending the Representation of People Act to negate the apex court order.

 UPA not first to take ordinance route to overturn SC, NDA did it in 2002


But the collective glee of the politicians was short-lived. The ordinance, which was subsequently passed by Parliament in December 2002, was struck down by the Supreme Court in 2003 on the grounds that it was unconstitutional. In that judgement, the Supreme Court made some very strong observations on the government's attempts disregard its orders.

Quoting from that judgment: "At the outset, we would state that such exercise of power by the Legislature giving similar directions was undertaken in the past and this Court in unequivocal words declared that the Legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Courts."

The landmark 2002 order of the Supreme Court making it mandatory for candidates to declare their criminal, financial and educational background was in response to a Public Interest Litigation (PIL) filed by the Association of Democratic Rights (ADR).

Recounting the details of how the then government had tried to block the Supreme Court order, ADR's co-founder Jagdeep Chhokar said, "When the Election Commission issued an order to implement the Supreme Court judgement, an all party meeting was held and it was decided that the Representation of People Act should be amended to prevent the disclosure. They prepared a Bill to amend the Act but before the Bill could be introduced, the Parliament was adjourned because of a petrol pump scam. The government then issued an ordinance. We went to the Supreme Court against the ordinance and the Supreme Court declared that ordinance was unconstitutional and null and void."

Cut to 2013, the UPA government has outdone the NDA in pushing through an ordinance in utter disregard of a Supreme Court order to protect narrow political interests. The Cabinet on Tuesday cleared an ordinance that will prevent the immediate disqualification of MPs and MLAs convicted of crimes punishable with two years or more, a move that flies in the face of the SC order of July 10.

Responding to Law Minister Kapil Sibal's claim, as reported by the Times of India, that the ordinance was in line with the SC order because it only allows convicted MPs and MLAs to attend proceedings of the House but denies them the right to vote or benefit from other privileges, Chhokar said, "If an MP sits in the Lok Sabha and is not allowed to vote, what is the point of him being there. If a legislator cannot take part in the legislative process, what is the point of him being in Parliament?"

Asked whether the ordinance would be challenged in court, Chhokar said, "We are ready to challenge it. We are writing to the President not to sign it. But if he signs it, we will challenge it in the court immediately."

The government has come under fire for the desperation it has shown to ensure that the Supreme Court order is blocked.

"This is an unfortunate habit of governments led by the Congress where they try to undo judgements of the Supreme Court by either passing a law or an ordinance. This is extremely unfortunate," said Venkatesh Nayak coordinator of the Access to Information Programme at the Commonwealth Human Rights Initiative.

Explaining the context under which ordinances are ordinarily passed, Nayak said, "An ordinance has to be passed in the context of an emergency. That is the reason the ordinance making power is given to the Executive. What is the grave emergency in this case? Here there is a bill tabled in Parliament and it has been referred to a standing committee. The cabinet has passed this ordinance without telling people why they are doing it. This is not in keeping with the democratic traditions of this country."

Updated Date: Sep 25, 2013 17:08:06 IST