Wednesday , 21 November 2018
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Excluding Bad Guys From Legislatures

On July 10, 2013 the Supreme Court gave a verdict that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. A two-member bench comprising  Justices A K Patnaik and S J Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The apex court order made it mandatory for Parliament and the state legislatures to promptly notify the disqualification of convicted lawmakers. However, the Election Commission has found that in some cases “there has been delay in the issuance of such notification by the secretariat of the House”. The Election Commission has asked the secretariats of the Lok Sabha and Rajya Sabha and state legislatures to promptly notify the disqualification of convicted lawmakers “without any discrimination”.

The approach of a government, whether in a state or at the Centre, is often not objective and even-handed when it comes to filing a case or pushing the prosecution or expediting the disqualification after conviction in a court of a law against a member of the House who either belongs to the ruling party or a party in alliance with it. The government makes overt and covert attempts to help the person escape the clutches of the law. In case of conviction any time during the current term, an elected member enjoyed protection under Section 8(4) of the Representation of People Act which allowed a three-month period for filing an appeal. Once an appeal was filed, the member managed to complete his term as the appeal took time for disposal in the higher court. Under law this was treated as suspension of sentence and hence the sitting members could continue as members.

This created a dichotomy in law. While Section 8 (4) of the RP Act disqualified any candidate from fighting an election if he was convicted under certain offences, the same section allowed a sitting member of Parliament or state legislature to continue as a member till the completion of his term if he was convicted after his election. The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected. There could not be two different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the state legislature. The country must have one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or legislative assembly or legislative council of the state.

The first disqualification from Parliament had come on October 21, 2013, after Rashid Masood, a Congress member of the Rajya Sabha, was held guilty in a case of corruption. RJD chief Lalu Yadav and JD(U) leader Jagdish Sharma were disqualified as Lok Sabha members on October 22, 2013, following their conviction in the fodder scam. These three disqualifications came within less than two weeks of the Supreme Court striking down Section 8(4) of the RP Act. However, the same has not been the case with every house of legislature in the past two years. The Election Commission’s concern is genuine. In view of the growing public pressure on the system to reverse criminalization of politics, action to disqualify sitting members on their conviction should be quick. The Supreme Court order left no room for delay in disqualification. The disqualification had to be immediate. The order therefore makes it the duty of the top executives of the central government or state government to inform the secretariats of Lok Sabha, Rajya Sabha, legislative assembly and legislative council immediately – within a week – of the conviction of a member by any court. In the interest of stronger deterrence to criminalization and corruption of politics, the governments must do it.

The disqualification of sitting members can follow conviction under a wide range of offences under the RP Act, such as promoting hatred and enmity between different groups on ground of religion, place of birth and language, bribery, domestic violence, foreign exchange violations, smuggling, practising untouchability, trade and possession of narcotics, food adulteration, demanding and receiving dowry and so on. The wide range of offences virtually lay out the ground rules for the non-eligibility of the “bad guys”. It means that anyone who wants to make politics a career has to be clean. The laws need to be more stringent for the exclusion of the bad guys. The list of offences under the RP Act should be expanded, such that criminals are excluded from elections and houses of legislature and clean guys get elected as members.

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