Does recent judgment on political convicts lack clarity?

Crime and politics have gone hand in hand since India’s Independence. In my diverse career of being a lawyer, socio-political activist and philanthropist for more than 21 years, I have seen several politicians taking over crime or criminals taking over politics and that too formally. Founding fathers of the constitution of India had foreseen ventual blending of the two professions of politics and crime; and accordingly introduced preventive as well as curative measures in our constitution, the mother of all laws. Article 102(1) lays down the disqualifications for membership of either House of Parliament whereas Article 191(1) lays down the disqualifications for membership of the Legislative Assembly or Legislative Council of the State. These two Articles categorically state that “A person shall be disqualified for being chosen as, and for being” an MP, MLA and MLC if they are covered by any of the five sets of disqualifications contained in the said Articles.

The one I am concerned herein is the last and the fifth set of disqualification under Article 102(1)(e) and under Article 191(1)(e) of the Constitution, which enables the Parliament to lay down by law other disqualifications for membership of either House of Parliament or of Legislative Assembly or Legislative Council of the State. In exercise of this power conferred upon the Parliament, it provided in the Representation of the People Act, 1951, the disqualifications for membership of Parliament and State Legislatures. Section 8 of the said Act provides that a person convicted of an offence mentioned therein shall stand disqualified from the date of conviction and the disqualification to continue for the specific period mentioned therein. Section 7 of the said Act defines the word “disqualified” to mean disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or of Legislative Council of State. However, a saving provision within the said Section 8 of the said Act provides that `notwithstanding’ anything to the contrary, a disqualification 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. It is this saving or protection provided in Sub-section (4) of Section 8 of the said Act for a Member of Parliament or the Legislature of a State got to be challenged before the Hon’ble Supreme Court of India in two connected writ petitions in 2005 as ultra vires the Constitution [Lily Thomas Vs. Union of India & Ors].

Recently the said two writ petitions came to be finally decided after a gap of eight years, the Hon’ble Supreme Court of India by way of judgment dated 10th July 2013 held that in terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, the Parliament has been vested with the powers to make law laying down the same disqualifications `for person to be chosen’ as a member of Parliament or a State Legislature and `for a sitting member’ of a House of Parliament or a House of a State Legislature. It further held that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature (as per these provisions, the seat of MP, MLA or MLC, as the case may be, shall become vacant upon disqualification). Consequently, it was finally held that the Parliament exceeded its powers conferred by the Constitution in enacting Sub-section (4) of Section 8 of the Act and accordingly Subsection (4) of Section 8 of the Act which contains saving or protection provision is ultra vires the Constitution.

Though, the judgment does attempt to restore the principle that our constitution is made by the gentlemen for the gentlemen and that convicted criminals have no right to be chosen as peoples’ representative or continue as such; but it still leaves some questions unanswered. The judgment having begun on a healthy and cognitive premise seemed to have got ended short of final rational destination. I am pointing out two main flaws in the judgment, which did make me ponder about its correctness. Firstly, the Hon’ble Supreme Court found that the disqualification under Section 8 of the said Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the CrPC or the High Court under Section 482 of the CrPC. In other words the ambiguity left is that on conviction a sitting Member will vacate the seat with immediate effect but if he obtains stay of conviction then he becomes eligible to contest future elections and be chosen as such. Does this not carve out dual dissimilar treatment by law? On one hand you unseat a convict and on the other hand on stay of conviction you make him eligible to be chosen again. Why does he not deserve restoration of his lost membership with the stay of conviction? Does this tantamount to status qua ante? There is lack of clarity in the decisiveness of this judgment. In my view once convicted always a convict until acquitted in appeal. No relief in transit. Secondly and finally, the Hon’ble Court also held that sitting members who have already been convicted for any of the offences under Section 8 of the said Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of Sub-section (4) of Section 8 of the said Act `should not be affected by the declaration now made’ in this judgment. The Hon’ble Court felt that this is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by Sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court. The premise of prospective effect of the judgment herein is wholly erroneous; as it gives benefit to the convicts on the ground that they committed crime knowing fully well that they will get protection of Sub-section (4), hence, the protection should stay good and valid for said convicted criminals. It’s like applying the principle of promissory estoppel in favor of a convicted criminal. In my view this judgment should have applied to all political convicts regardless of their timing of offence/conviction and not selectively. I am sure that this judgment is merely a part of evolutionary process and will soon be improved to meet the ends of justice.