Recent judgments on the disqualification of convicted legislators and candidates in custody, and the banning of caste rallies, are not correct in law and need to be revisited

Two judgments of the Supreme Court, delivered on July 10, 2013, regarding the disqualification of Members of Parliament and Members of Legislative Assemblies, and one interim order of the Lucknow Bench of the Allahabad High Court banning caste rallies have been the subject of a great deal of discussion and debate recently.

I have perused and considered these judgments, and with great respect to the courts which passed these orders, have serious reservations about their correctness in law.

In Lily Thomas v. Union of India, the Supreme Court declared Section 8 (4) of the Representation of the People Act, 1951, (RPA) which allowed legislators a three-month window to appeal against their conviction — effectively delaying their disqualification until such appeals were exhausted — as unconstitutional.

In Government of Andhra Pradesh v. P. Laxmi Devi (2008), the Supreme Court considered at great length the doctrine of judicial review of statutes. In paragraph 36 of that judgment, the Court observed that invalidating an act of the legislature is a grave step and should never be lightly taken. A court can declare a statute to be unconstitutional “not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question” ( vide paragraph 41 of that judgment).

The philosophy behind this view is that there is a broad separation of powers under the Constitution, and the three organs of the state must respect one another and must not ordinarily encroach on one another’s domain. In paragraph 44 of the aforesaid judgment, the Court observed there is only one ground for striking down a statute, and that is if it clearly violates some provision of the Constitution in so evident a manner as to leave no manner of doubt.

Keeping the above considerations in mind, one fails to see how Section 8(4) could be held to be unconstitutional.

Two reasons

The Supreme Court has given two reasons for its verdict: First, it held Section 8(4) to be in violation of Article 102, and its corresponding provision for the States, Article 191, of the Constitution. A careful perusal of Article 102 shows there is nothing therein which renders it inconsistent with Section 8(4).

Article 102(1) of the Constitution states:

1) 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

In my opinion, none of the five clauses in Article 102(1) are attracted so as to invalidate Section 8(4). Clause (e) is not attracted because Section 8 (4), which is a law made by Parliament, specifically states that a legislator convicted is not disqualified during pendency of his appeal if it is made within three months.

Second, the Supreme Court 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. It is well-settled that legislative entries in the Constitution are to be widely construed, and in any case Parliament has residual power to legislate under Entry 97 to List 1.

The second judgment of the Supreme Court in Chief Election Commissioner v. Jan Chawkidari also merits reconsideration because it has held that if a person is in jail or police custody, he cannot contest an election.

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.

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.”

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.

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.

Meetings

As regards the interim order of the Allahabad High Court on caste rallies, with due respect I submit that it requires further review.

I make this argument because the view taken by the High Court required a final, well considered judgment and not an interim order, and second, since there is no legal bar to a caste rally, as long as no law is violated. In fact Article 19(1)(b) of the Constitution gives citizens a fundamental right to assemble peaceably. A political party can call a meeting of a caste, for example, of Dalits to discuss the problems facing that community, and there is no law barring such a meeting.

With respect, the aforementioned decisions of the Supreme Court and the Allahabad High Court may be perceived as making or amending the law, a function that is in the domain of the legislature ( vide SC decision in Divisional Manager, Aravali Golf Course v Chander Hass (2007)).

Let me make it clear that I am totally against the criminalisation of politics or casteism in politics, but the problem we are discussing is not about one person’s view but what the correct, legal position should be.

(Markandey Katju is a former judge of the Supreme Court.)