REPRESENTATION OF PEOPLE ACT, 1951- current issues

The two recent judgements of Supreme Courton electoral laws to cleanse the politics-
 Lily Thomas vs Union of India- ruled that Section 8(4) of the Representation of the People Act (RPA) was ultra vires since it provide a three-month window to legislators to file an appeal against conviction of crimes.
  Why ultra vires? (Court says once convicted, article 101 will come into picture which disqualifies persons according to provisions of article 102).
 However art. 102 say person is disqualified according to law made by parliament.
 And parliament made RPA according to which person stands disqualified on conviction; so once convicted art.101 will come into picture, thereby nullifying provisions of sec 8(4) – (constitution is supreme to ordinary laws).
 But constitutional expert Acharya (former secretary-general of parliament says there’s no immediate disqualification)
 Article 101(3)(a) of the constitution which provides that “if a member of either house of parliament- becomes subject to any of the disqualifications mentioned in Article 102 (detailed provisions of the article are mentioned below), his seat shall thereupon become vacant.
 Chief Election Commissioner vs Jan Chawkidari- more controversial ruling as it bars those in police custody or under arrest from contesting elections.
The court concluded that section 8(4) of RPA, 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).
It is important to note that the court didn’t go into the question of whether section 8(4) infringes the equality provision in Article 14.

It is obvious that the second ruling is ripe for misuse-.
 If the view of the Supreme Court is accepted, then a rival politician need only get a false First Information Report (FIR) filed against his political rival and have him sent to police custody or jail to disqualify him.

A large number of criminal cases against politicians, in any case, are of a “political” nature – an outcome of agitation politics, protests, civil disobedience and so on. Even in the past and the present, some of our best law-makers have been part of various civil disobedience and protest movements.

Sections in question: -
1. Section 2(e) defines an elector as “a person whose name is entered in the electoral roll of that constituency and who is not subject to any of the disqualifications mentioned in section 16 of the RP Act, 1950.” The Supreme Court has relied on the definition of “elector,” as found in Section 2 (e) of the RPA, and observed that in view of Sections 3, 4, and 5, to be qualified for membership of the legislature; one has to be an elector.
2. Section 8(4) of the RPA had allowed convicted legislators to appeal their conviction and evade disqualification until their appeals were exhausted. This ruling therefore tries to address an anomaly wherein a convicted criminal cannot contest elections, while convicted members of Parliament and legislative assemblies can continue to sit in the legislature for three months from the date of conviction pending the filing of legal appeals.
3. It is difficult to comprehend how the Supreme Court relied on Section 62(5) of the RPA to disqualify persons who are in jail or police custody from standing for elections, given that there is no mention of section 62(5) in the Act’s definition of “elector.” The Act clearly distinguishes a voter and an elector- Section 62(5) only debars a person in jail from voting, not from contesting an election.
4. Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.
5. Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act.

Reasons for SC verdict: -
The Supreme Court has given two reasons for its verdict:
 First, it held Section 8(4) to be in violation of Article 101(3)(a), and its corresponding provision for the States, Article 190(3)(a), of the Constitution.
 Article 102(1) of the Constitution states:
A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament
a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
b) if he is of unsound mind and stands so declared by a competent court;
c) if he is an undischarged insolvent;
d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
e) if he is so disqualified by or under any law made by Parliament.
 A careful perusal of Article 102 shows there is nothing therein which renders it inconsistent with Section 8(4).
 Second, the SC has held that Parliament had no legislative competence to enact Section 8(4). This reasoning, too, is difficult to accept because Entry 72 to List 1 of the 7th Schedule in the Constitution specifically allows Parliament to legislate on elections to Parliament or the State legislatures and the offices of President and Vice-President and the Election Commission.

Relevance of judgement in decriminalizing politics: -
• 1/3 of parliamentarians and state legislators are accused of serious crimes.
• Politicians- organized crime nexus (booth rigging, capture, fake electors etc).
• The judgement could be seen as the symbol against wider political apathy.
• Even after institutionalized procedures like model code of conduct criminal elements continue to enter legislatures (law breakers becoming law makers).

The judgement now makes it mandatory for the incumbent legislator to vacate his/her seat if convicted of a serious crime.
The judgement, however, is applicable only for prospective convictions and not for sitting legislators who have been convicted but have filed appeals which are pending adjudication.
The judgement is a welcome push for the civil society, the NGOs etc who want to decriminalize politics, bring more transparency and accountability into it – like the issue of RTI and political parties. Some jurists say it is judicial over-reach since,
 door is open for the practice of vendetta politics by ruling parties, and
 aby-election to fill a seat vacated by a convict takes time and a government surviving on a wafer-thin majority could be jeopardized. Governments should be allowed to continue until by-elections are held to fill vacancies caused by such disqualifications.
Legislators who have been convicted usually manage to file appeals and these appeals have tended not to reach their final conclusion because of the long delays in the judicial process. In some cases, the delay in justice could directly be attributed to the positions of power occupied by the legislators.
Instead of taking a narrowly legalistic view, courts should also consider the likely practical consequences of their judgments. Above all, in India, appeals drag on for years, and certainly for more than five or six years, which is the tenure of an elected representative.
The Supreme Court recently has agreed to review its judgment, holding that persons in lawful custody — whether on conviction in a criminal case or otherwise — cannot contest elections.
Politics offers a promising avenue for circumventing justice. While India’s elected representatives do not have formal immunity from prosecution, office-holders can rely on the trappings of office to delay or derail justice. Chief among these is the ability of elected politicians to transfer pesky officials for reasons unrelated to their performance. Some solutions to this awful scenario include,
1. rolling back of “transfer raj” by the govt.,
2. taking up the electoral reforms promulgated by the election commission-
  any candidate against whom charges have been framed by a court, at least 6 months prior to the election and for an offence punishable by at least 5 years in jail, should be disqualified,
3. police reforms- tenure security and stability,
4. establishment of a special electoral tribunal charged with adjudicating serious criminal cases against political aspirants, for speedy justice, and
5. modern democratic state valuing human rights should try to re-integrate the erring individuals into main stream. This is being done in many developed countries.


SOME SALIENT FEATURES OF RPA
• Qualification for membership of council of states
 Unless he is an elector for a parliamentary constituency in India.
• Qualification for membership of house of people
 A person is not qualified unless
1. In the case of a seat reserved for the SC/ST in any state, he is a member of any SC/ST respectively, whether of that state or of any other state and is an elector for any parliamentary constituency;
2. In case of any other seat he is an elector for any parliamentary constituency.
• Qualification for membership of legislative assembly
 same as above (house of people)
• Qualification for membership of legislative council
 Unless he is an elector for any assembly constituency in that state.
 In the case of seat filled by nomination- he should be ordinarily resident in that state.
• Disqualification on conviction of offences {section (8)}
 A person shall be disqualified where the convicted person is sentenced to only fine for a period of 6 years from the date of conviction or imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of 6 yearssince his release, if he/she is convicted ofan offence punishable under IPC, Protection of Civil Rights etc.
 A person convicted of any offence and sentenced to imprisonment for not less than 2 years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years since his release.
 SECTION 8(4): - Gives exemption to sitting MLAs & MPs from being disqualified immediately on conviction; until 3 months have elapsed from that date, or if within that period an appeal or application for revision is brought in or until that appeal/application is disposed off by the court.
• Disqualification on grounds of corrupt practices
 The case of every person found guilty of a corrupt practice shall be submitted to the president for the determination of question as to whether such persons shall be disqualified and if so, for what period provided that the period for which the person may be disqualified shall in no case exceed 6 yrs from the date on which the orders takes effect.
 Any person who stand disqualified may submit a petition to the president for removal of such disqualification for remaining time period.
 Before giving his decision on any petition, the president shall obtain the opinion of Election Commission on such question or petition and shall act according to such opinion.
• Disqualification for dismissal for Corruption or Disloyalty.
 A person, who having held an office under the GoI or any state has been dismissed for corruption or for disloyalty to the state should be disqualified for a period of 5 yr from the date of such dismissal.
• Disqualification for Govt Contracts
• Disqualification for office under Govt company
 A person shall be disqualified if he is a managing agent or manager or secretary of any company, corporation of which govt has not less than 25% share.
• Disqualification for failure to lodge account of election expenses.
 If he fails to submit it, disqualified for 3 yrs.


• Removal or Reduction of period of disqualification.
 The Election Commission may remove any disqualification under this (except under dismissal for corruption / disloyalty) or reduce the period of such disqualification (from appeal, not suo-moto)
• Disqualification arising out of conviction and corrupt practices.
 If any person is convicted of an offence punishable under the IPC, he shall for a period of 6 yrs from the date of conviction is disqualified for voting at any election. The Election Commission may remove any disqualification under this clause.




Time to think: -
1. Whether it is morally and socially good to bar people from voting for the reason that they are being convicted?
2. Does it amount to their isolation from normal process of social organisation?
3. Elector v/s voter

by KARTHIK.R
References: -
1. RPA, 1951
2. Economic and Political weekly article on Decriminalising Politics.
3. The Hindu articles-
a) MPs, MLAs to be disqualified on date of criminal conviction
b) Judicial overreach
c) Crime, caste and judicial restraint
d) Court to review ruling on barring persons in custody from polls