Why is it that the law in India over-criminalises politicians as if they are a class of persons who should be severely and brutally punished in case they err, much more than ordinary citizens who have committed similar crimes or erred in other offences that can be treated as the same degree of crime. Is not the law equally applicable to all?
Though enacted to work with the right intentions, the law relating to disqualification of convicted representatives in India suffers from peculiar problems and most certainly needs a revisit.
The Representation of the People Act, 1951, was enacted to provide for the qualifications and disqualifications for membership of the Parliament or the Legislatures of the states. The Act, along with Articles 102 and 191 of the Constitution, forms the basis of the disqualification law. It was introduced in our Parliament by the country’s first law minister, Dr BR Ambedkar.
What was the controversial Clause 4 of Section 8 of the ROP Act that was struck down by the Supreme Court? It stated that "Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3), a 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."
Essentially Section 8 of the said Act provides for disqualification on conviction for certain offences, while Clause 4 of the Section provided for an option of appeal making the trial court verdict ineffective till the appeal is disposed of.
Striking down Clause 4 ended the much-needed cushion of appeal for lawmakers and made them vulnerable to immediate disqualification, even on a wrongly decided judgment of a trial court. While Clause 4 of Section 8 of the said act was struck down by the Hon’ble Supreme Court in 2013 in Lily Thomas vs. Union of India, it was only on the grounds that the said provision was ultra vires the Constitution and not because of any harm that would ensue had the provision still been intact.
The Indian law relating to disqualification of convicted representatives does not recognise a right to a basic first appeal as a measure of protection. This poses a risk to the reputations that politicians have built over the years. A politician is nothing without his public image and the absence of Section 8(4) harms just that and therefore needs changes.
One cannot overemphasise the amount of hard work and decades of patience that politicians put in before they finally enjoy the respect of the people and get elected to occupy a public office. It is this decades of hard work and respect that a politician gains over time in the eyes of the public that needs to be considered and given basic levels of protection, to the extent that no disqualification shall take place till the conviction is upheld by at least the first court of appeal.
The problem of disqualification without an option of appeal has far-reaching effects beyond just losing one’s position - the politicians lose respect in the eyes of their voters. Their conviction would be used in speeches by opponents to humiliate them at least till the time the appeals court overturns the decision of the trial court. This combination of loss of public office as well as loss of reputation is what Section 8(4) was trying to avoid.
Further, apart from providing minimum protection to the lawmakers, Section 8(4) served other purposes too, as recognised by the Supreme Court as recently as in 2005 in K Prabhakaran v. P Jayarajan, wherein it upheld the clause along with the special treatment and protection that it provided to the sitting members of Houses.
While upholding the said Section 8(4), the court opined that it operates as an exception. The purpose of carving out the said exception between the sitting legislator and candidate was to protect the House. It is possible that the government in power may be having a razor-thin majority where the disqualification of even one member may have serious consequences upon its functioning.
An incorrectly convicted politician is left without any leg to stand on to avoid disqualification. Legal luminaries point out that a recourse could be found under Section 389 of the Code of Criminal Procedure, 1973, wherein power has been conferred on the appellate court not only to suspend the execution of the sentence, but also to suspend the order of conviction. The latter avoids the operation of the incorrect verdict and saves the politician from disqualification.
One such regularly cited example is of Navjot Singh Sidhu v. State of Punjab and Another [(2007) 2 SCC 574] wherein the appellate court stayed the order of conviction of a sitting MP and allowed him to continue as a member, notwithstanding the conviction by the trial court.
But the real question is not whether the power is there with the court, but how frequently the power has been used. It should be understood that a stay on conviction is only given in very rare cases and therefore it isn’t a sufficient recourse for a politician who has served people for decades to be respected as a credible person.
The Supreme Court has accepted its rarity in Ravikant S Patil v. Sarvabhouma S Bagali [(2007) 1 SCC 673] wherein it said, "It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay."
Considering that such an option of getting the appellate court to stay the conviction is so rare to achieve, I doubt whether it qualifies to be a recourse in the first place. +In conclusion, it would be worthwhile to emphasise that no class of citizens can be discriminated against as if they are not equal in the eyes of the law.
If a convicted felon has an unfettered right of appeal and there are no suggestive judgments to contain him from fully appealing his case, then why not an MLA or MP? Does not the law say that all are equal before it?
Has not the lower judiciary erred in several cases that were overturned by the upper appellate judiciary? What does that mean? It means that the judiciary does err or to put it charitably, the lower judiciary sometimes does not take into consideration all factors and comes to incorrect conclusions. Unfettered appeal is the only remedy to correct that error.
(The writer is a MP, YSR Congress Parliamentary Party Leader and National General Secretary
and canbe mailed at firstname.lastname@example.org)