Need for a preventive remedy.
“I am more disturbed by the second judgment holding valid Section 62(5) of the Representation of the People Act, 1951, which prohibits any person from voting if he is confined to prison even on a petty offence or is in the lawful custody of the police (say being a slum dweller, a poor rickshaw driver, and thus unable to obtain bail) while permitting rich accused persons like those involved in the Colgate and telecom scandals if on bail, but denying the trade union workers like those of Maruti the right not only to contest an election but also the right to vote because the anti-labor state colludes to keep them in jail…”, says the former Chief Justice of High Court of Delhi.

A recent judgment of the Supreme Court holding that Section 8(4) of the Representation of the People Act, 1951, which exempts a sitting legislator from vacating the seat if convicted of offences under sub sections (1), (2) and (3) of Section 8 (which prohibit a person from contesting elections to the legislatures) till his appeal is decided, is ultra vires of the Constitution.

Surprisingly, there is less panic and opposition to the judgment than one would have expected – evidently because the judgment exempts from its applicability the existing legislators – thus the present members of Parliament and state legislatures going to the polls this year are not really affected. The two-judge Bench side-stepped a five- judge decision in the Prabhakar case which had categorically held that the two categories, one of persons who are not legislators and the other who are legislators, “is based on a wellestablished nexus with a public purpose”.

The two situations are different – in the latter course the vacation of a seat affects the House. As it is, the courts on their own have developed a universal practice of permitting the convicted member only to mark his presence to prevent his disqualification but forbidding him to take part in the proceedings or vote till his appeal is decided. So for all practical purposes a convicted MLA plays no part in the deliberations of the legislature.

This interpretation by the Supreme Court would have serious consequences for opposition human rights activists, trade unionists and political activists, who are so indiscriminately and partisanly prosecuted under various security laws or even when holding bandhs and demonstrations. In such a situation automatic vacation of the seat of a sitting legislator would empower the ruling party with an arbitrary unanalyzed power.

Consider the enormity of injustice to the elected legislator,who had no conviction at the time of getting elected, but getting convicted during his term would automatically have his seat vacated, notwithstanding that his conviction may be set aside in appeal shortly thereafter; but by then another person would have been elected, thus causing irreparable damage to the career of the political activist.

The court recognizes the anomaly but opines that the legislator can ask for a stay of conviction by the appellate court and, if granted, he can continue. With respect, is this not leaving to the uncertainty of different reactions by judges prompting the cynical comment in English law that what is justice is measured by the length of the Chancellor’s foot.

I am afraid this process is so discretionary and would vary with individual decisions by different judges – hardly a satisfactory alternative to Section 8(4) of the Act, which had at least a practical object to see that the electorate choice is not nullified by an adverse decision of the trial court without giving an opportunity of it being corrected in appeal which is his statutory right.

In order to avoid further delay (which is really the villain) it could be legislated that the seat would stand vacated if the first appeal fails – no further appeals or revision before the courts will prevent the seat from being vacated. It could also be provided that the appeal by a sitting convicted legislator will be mandatorily decided within three months.

This alternative has the merit of removing criminality from elections and also the prevention of irreparable harm and injustice to the elected legislator. No, I am not underestimating the danger of criminalization of politics – personally I would call it politicization of criminals because previously criminals helped candidates win, now criminals compete to become legislators themselves – a horrible undemocratic situation endangering clean democracy. A recent survey shows that at present 162 out of the 545 Lok Sabha members and 1,258 out of the 4032 sitting MLAs have themselves declared that criminal cases are pending against them.

And this in spite of the warning given by the Vice President, Mr. Hamid Ansari, as far back as 2004: “Exactly 23% of MPs elected in 2004 had criminal cases registered against them – over half of these cases could lead to imprisonment of five years or more. The situation is worse in the case of MLAs… Are we not progressing?” My opposition to the extreme interpretation by the Supreme Court resulting in a validly elected legislator losing his seat should not be interpreted as in any way minimizing the danger of criminality in our legislatures.

Rather the contrary. I feel that a more satisfactory mechanism to halt the politicization of criminals is to have a law, long advocated by the P.U.C.L., that if six months before the polling date, a person has been chargesheeted by a court, he /she would stand debarred from contesting the forthcoming election. This time-frame would give the person concerned sufficient time to have the charge sheet quashed by an appellate court, thus negating the doubtful defense put forth by political parties of false cases being lodged against political rivals on the eve of the nomination date.

I am more disturbed by the second judgment holding valid Section 62(5) of the Representation of the People Act, 1951, which prohibits any person from voting if he is confined to prison even on a petty offence or is in the lawful custody of the police (say being a slum dweller, a poor rickshaw driver, and thus unable to obtain bail) while permitting rich accused persons like those involved in the Coalgate and telecom scandals if on bail, but denying the trade union workers like those of Maruti the right not only to contest an election but also the right to vote because the anti-labor state colludes to keep them in jail – would this not (against their better sense) provoke an ordinary simpleton citizen to tend to agree with Charles Dicken’s favorite Character Bumble when he said, “If law supposes that – the law is an ass – an idiot”, echoing in the same strain what provoked George Chapmen (1559-1634) to say:

“I am ashamed, the law is such an ass.” In the U.K. the right to vote is only denied if a person is convicted and sentenced to 12 months. In Israel even a convicted person in jail is allowed to vote. The United Nations as far back as 1955 resolved “that unconvicted prisoners are presumed to be innocent and shall be treated as such”.

Also why is it that the political parties, which are so upset at the latest Supreme Court ruling, are mysteriously silent and inactive at not amending the election rules to give the voters the right of negative voting, by carrying out the unanimous recommendation of the Election Commissions to the Central Government so as to provide an extra button of negative voting in the electronic voting machine? Are they afraid of facing the searing answer of the electorate in the voting machine of “None of the above”?