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Ill portents from the Ordinance that never was

By Ravi Nair. Dated: 10/8/2013 9:48:32 PM

There is a certain vicarious glee in the decision to disallow Mr. Lalu Prasad to retain his parliamentary seat or contest elections, following his conviction in the Fodder Scam Case. The chatteratti has failed to comprehend that the issue is not the fate of Mr. Yadav. That will be determined by the superior courts. The real question is whether an individual's democratic right to vote and stand in elections can be extinguished before they have exhausted legal due process and exercised the judicial right of appeal.
The Supreme Court judgments Chief Election Commissioner vs. Jan Chowkidar (2013) and Lily Thomas vs. Union of India (2013) create problematic precedents for the future of democracy in India. Aside from calls for case reviews from a few notable lawyers, public debate on the judicial pronouncements has been poor. This is despite the complexities posed, which run to the heart of future democratic polity in India.
The Representation of People Act (RPA) disqualifies an individual sentenced to more than two years imprisonment from contesting in elections during his detention and for six years after his release. However, Section 8(4) stipulates "disqualification under either subsection 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."This created a legal loophole allowing individuals to remain in legislatures when convicted of serious offences.
In Lily Thomas vs. Union of India, a two- judge bench of the Supreme Court held the automatic protection of appellants in Section 8(4) of the RP Act is unconstitutional and struck it down. Henceforth, when a magistrate sentences an MLA or MP to over two year imprisonment, they will be automatically unseated. This closes the previous gap in the law.
Mr. KN Bhatt, a former additional solicitor general of India, reacts succinctly,
"Unwittingly, perhaps, the court has made a magistrate and a police officer the pivots of democracy… Merit apart, court is not empowered by the Constitution to make pronouncements of this type. Article 145(3) mandates that to decide any case involving a substantial question of law, as to the interpretation of the Constitution, the minimum number of judges who are to sit on the bench shall be five. In this case, interpretation of some important provisions of the Constitution were involved. Article 103 of the Constitution provides that the question of disqualification from the membership of the Houses "shall be referred to the President (or the Governor as the case may be, who after consultation with the Election Commission, will give his decision, which shall be final."
He adds that in making their decision, the Court ignored the judgment of a larger bench,
"In 2005 a five-judge bench of the Supreme Court considering 8(4) of the Representation of Peoples Act was in the Prabhakaran vs. P. Jayarajan case stated, "If a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House will stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor-edge thin majority where each member counts - and disqualification of even one member may have a deleterious effect on the functioning of the government - such reasons must have persuaded Parliament to classify the sitting members into a separate category."
The case of Chief Election Commissioner vs. Jan Chowkidar (2013) examined Section 62(5) which states, "No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police." Otherwise, only persons named in the electoral roll can vote. Disqualifications are contained in Section 16 of the RP Act, 1950 and include people without Indian citizenships or of unsound mind. The Court concluded that individuals in jail are not eligible to be candidates in elections.
This places in the mandate of the police and executive the power to potentially disqualify any individual from democratic processes. Police officers or any mandated body, whether individually or upon the command of the executive, may prevent a person from contesting an election by arresting them on any charge and releasing them the day after nominations are closed. This would prevent them from standing as an electoral candidate. Don't we know this from past experience in Kashmir?
A potential mechanism to mitigate this risk would be to identify relevant cases and conduct day-to-day expeditious trials at all stages from the trial court to final appeal. This should be complemented by a perusal of relevant cases by a committee similar to the POTA Review Committee. This would ensure the charges were substantial and not inspired by extraneous reasons.
It is true that public opinion is tired of petty and major corruption. Yet, there is little stomach for ending the executive caprice and impunity in all aspects of governance. This has too long been the root of not only corruption but the maladies afflicting India's body politic.
Double standards on impunity and corruption remain frightening. The case of Capt Satish Sharma is instructive. In the 1995 Petrol Pump Allotment Case, the CBI closed 15 cases against him, as the Union Government did not give permission to prosecute him.
In September 2009, the Chief Justice of the Supreme Court called for an amendment to the anti-corruption law that requires prior sanction is granted by a competent authority for the prosecution of a public servant.
The Chief Justice observed that the provision contributed to, "a climate of impunity where the requisite sanction is either delayed or denied by higher executive authorities." This was supported by the then Law Minister, who suggested Constitutional provisions, Articles 310 and 311 which shield public servants from dismissal, removal or reduction in rank need to be revisited.
In September 2013, the Central Bureau of Investigation (CBI) described as "blasphemous" the Government's contention that it needed to retain the power to approve investigation against senior bureaucrats even in court-monitored cases. This was during the Supreme Court's probe into the Coal Block Allocation scam which stretched from 2004 to 2009. The Attorney General argued that the CBI needed prior sanction from the government before probing any officer of the level of Joint Secretary and above even in court-monitored cases. This allegedly intended to protect honest officers from harassment. This is evidence of the quiet burial to the Supreme Court's pronouncement in the Vineet Narain case where the Court dismissed the executive's arguments.
According to the Code of Criminal Procedure (CrPC) Section 197 and its current interpretation and implementation, courts may not hear a case against a public official unless the Central or State government gives authorization for said prosecution who attempt to submit an FIR further impedes the pursuit of justice.
The prosecution of public officials requires government sanction and simply filing an FIR brings threats and intimidation. This makes it nigh impossible for an individual to sue the State or Central government for abuses. They can only receive compensation at the discretion of presiding judges. Victims of abuses have little incentive to bring cases to achieve vindication of their rights. In turn, public officials enjoy de facto immunity for serious human rights abuses and corruption.
The Union cabinet has kowtowed to the pretender to the throne. Little did the scion of the Nehru Gandhi family know that the British sentenced his esteemed great grandfather, Jawaharlal Nehru and his feisty grandfather Feroze Gandhi for prison terms of over two years.
The two-year sentence roll call is instructive, while being illustrative, Dr Rammanohar Lohia, Mr. Mahavir Tyagi of the Congress, one of the ablest Parliamentarians of Independent India, Pandit Bhagwat Dayal Sharma the first Chief Minister of Haryana, Lal Bahadur Shastri, Prime Minister of India, Gopinath Bordoloi the first Chief Minister of Assam, C Subramanium, an efficient Minister of Food and Agriculture, Abul Kalam Azad, another great son of India, our first Education Minister, K Kamaraj, Mr. Fakhruddin Ali Ahmed former President of India.
One can only imagine the consequences if Indira Gandhi had been mandated with this power during the Emergency. George Fernandes or AK Roy amongst many would never have made it to Parliament. This is particularly the case as there are no legal provisions that differentiate political offences from others.
The road to hell is paved by the good intentions of a clueless chatteratti. As an old rock band put it, "It is a bad moon rising, trouble on its way."
(The author is a Delhi based analyst)