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) |
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