Wednesday, 24 July 2013

Keeping the statute quo

The judgments on the Representation of the People Act stray into legislative terrain.

The Supreme Court judgments of July 10, disqualifying convicted or jailed MPs and MLAs from contesting elections, won a lot of accolades. It was claimed they would clean our politics. I have no sympathy for criminals, but in my respectful opinion lawmaking is the job of the legislature, not the judiciary.

Others objected that since many legislators have criminal backgrounds, they will not change the law. My reply was: if it is said that the judiciary must step in if the legislature is not doing its job properly, it can likewise be said that since the judiciary is not doing its job properly (there is often great delay in deciding cases, a section of the judiciary has become corrupt, etc) the legislature or executive should do the work of deciding cases. This would lead to a constitutional crisis and chaos.

In Lily Thomas vs Union of India, the bench struck down Section 8(4) of the Representation of the People Act, 1951, as unconstitutional. Now it has been held by the Supreme Court in Government of Andhra Pradesh and Others vs P. Laxmi Devi (2008) that the invalidation of a statute by the judiciary is a grave step. The court can declare a statute unconstitutional not merely because it is possible to take such a view, but only when it is the sole possible view not open to rational question. This is because there is a broad separation of powers in our Constitution between the three organs of state. If one organ encroaches on the others' domain, the system cannot function. Declaring a statute to be unconstitutional is thwarting the will of a co-ordinate organ of the state, which should be done only if there is a clear violation of some constitutional provision. Keeping the above considerations in mind it is difficult to understand how Section 8(4) could be held unconstitutional.

Now it is true that Parliament has enacted somewhat different laws for the disqualification of a person who wishes to be chosen as a legislator, and a person who is already one. The former is disqualified immediately on the date of conviction if the sentence is for not less than two years. For the latter, disqualification is deferred till the disposal of the appeal, if the appeal is filed within three months of the conviction.

Noting this distinction, the bench referred to Article 102(1) (e) of the Constitution, which states: "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". A similar provision exists for state legislatures.

It is a principle of interpretation of statutes that the word "and" can sometimes be read as "or", and vice versa. The bench has read the word "and" as "and", not as "or", to declare Section 8(4) unconstitutional. But if it is read as "or", Section 8 (4) becomes constitutional. It is well settled that if two views are possible, one upholding the constitutional validity of a statute, and the other declaring it unconstitutional, the former is to be preferred, because there is always a presumption in favour of the constitutional validity of the statute.

Also, Articles 102 and 191 do not mention when the disqualification becomes effective. Parliament can fix different dates for different categories, which it has the power to do under entries 72 and 97 of List 1 of the Seventh Schedule of the Constitution.

Moreover, as pointed out in the decision of the Constitution bench of the Supreme Court in K. Prabhakaran vs P. Jayarajan, 2005, Parliament by enacting Section 8(3) and Section 8 (4), has chosen to demarcate two categories: one, a person who is, on the date of conviction, an MP or MLA, two, a person who is not. The court went on to say "such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved". This five-judge bench decision, though referred to, has been practically negated by the decision of the two-judge bench in the Lily Thomas case.

As for the decision in ECI vs Jan Chowkidar, which disqualified jailed persons from contesting elections, the bench relied on Section 62 (5) of the RP Act, 1951, which states that a person in police custody cannot vote. But having the right to vote is different from having the right to contest elections. Sections 3, 4 and 5 entitle an elector to contest. Under Section 2(e), an elector is defined as a person who is entered in the voters list and is not disqualified under Section 16 of the RP Act, 1951. There is no mention of Section 62(5) in Section 2(e). Many persons in jail have contested elections, for example, George Fernandes. To hold otherwise would only give rival politicians an opportunity to file false FIRs and get their competitors arrested, and thereby disqualified.

I submit with respect that both these decisions are incorrect in law and need to be reconsidered.

( The writer, a former judge of the Supreme Court, is chairman of the Press Council of India)

Published in The Indian EXPRESS on July 24th, 2013.

18 comments:

  1. Sir,I am really sad that you have put in your energy to speak on this..I would have been delighted had you spoken about election reforms and how to make political parties accept it.It would have been more positive and constructive for the nation.

    ReplyDelete
  2. Indeed you seem to have taken up this matter more than what was quite a vocal crusade against sending Sanjay Dutt to prison to serve his sentence in full.
    The pity is the system could send Mr Dutt to prison, but the criminals who walk the floor of the Parliament and legislatures with impunity are free and if one accepts your contention will continue to be free to defile democracy.
    Yes it is the legislature that should make laws and the Courts.

    But what if the legislators circumvent the law to perpetuate and make it easy for criminals to contest elections and enjoy power?

    If a law is inadequate to protect the citizens from such elements why not then legislate? Cant the court rule that not doing so is culpable and dereliction of duty invested by the fact that legislators have been elected to safe guard the constitution and enact laws to serve and for the betterment of the people and the society?
    Tell me Sir, how do you then propose an effective way to banish goons and felons from power?


    ReplyDelete
  3. No doubt what you have said is totally true but it is a harsh fact to know that Supreme Court is often circumventing its powers. Truth is no matter any number of articles you write situation could not be changed. Courts enjoy such immense immunity that they have become so fearless of doing any wrong to others.
    In this context I can put my own case. My case SLP(civil) 13805/11 was dismissed by Supreme Court solely relying upon S. P. Jain (supra). Inspite of our submission that the S. P. Jain(supra) is per incuriam to the statute and the said case facts needs to be reconsidered by the Larger Bench. The said case was flouting two very important provisions of the Land Acquisition Act, 1894, Section 11A and Section 17(3A), which were specifically brought by the Legislature by amending the century old colonial act. Regretfully, SC dismissed the case may be because judges were too lazy to hear the matter.
    The very next day of the dismissal of our review petition, SC reffered the exactly same/similar case C.A. 24/2009 to Larger Bench as 1 of the judge Justice Ashok Kumar Ganguly hold that S. P. Jain(supra) is per incuriam to the statute and is totally different on facts.
    Consequently, we filed a Curative Petion which too was dismissed inspite of the fact that it was solely SC's mistake and arrogance of following a wrong law.
    Hence there is absolutely no hearing for a common man neither in SC nor anywhere else. Only high profile cases are being looked upon.

    ReplyDelete
  4. Yes, though review/curative provisions are provided in law for rectifying the wrongs committed by the human judges to serve the interests of justice, our judges having come down from heaven to dispense justice on this manly land think that they are infallible. There needs tobe a mechanism to review the functioning of the supreme court of India.

    ReplyDelete
  5. Interpreting the "and" as an "or" in this case renders the sentence "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament" very much irrational.

    With the "or" in place, the sentence becomes "A person shall be disqualified for being chosen as, OR for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". This implies a choice is available to either disqualify the person to be chosen as, or to disqualify the person to be, a member of Parliament. This choice, not being universally available at the instant of disqualification, renders the sentence (on choosing the "or" reading of "and") infeasible. Therefore choosing to interpret the "and" as an "or" would be an irrational choice.

    ReplyDelete
  6. This comment has been removed by the author.

    ReplyDelete
  7. I am very much pleased with the contents you have mentioned. I wanted to thank you for this great article.

    ReplyDelete
  8. very nice post , ilke your way of shareing the post .very usefull infomation in this post you cover nice picture. really thanks for this posting.
    COMMODITY TIPS

    ReplyDelete
  9. o doubt what you have said is totally true but it is a harsh fact to know that Supreme Court is often circumventing its powers. Truth is no matter any number of articles you write situation could not be changed.

    wife vashikaran mantra

    ReplyDelete
  10. Yes, however review/curative procurements are furnished in law for redressing the wrongs conferred by the human judges to serve the investment of equity, our judges having descend from paradise to administer equity on this masculine arrive surmise that they are trustworthy. There needs tobe a system to audit the working of the incomparable court of India.


    get wife love back mantra and how to get lover back

    ReplyDelete
  11. Your post is so informative , Your way of posting on "Keeping the statute quo " very useful. Really thanks for this posting. Keep posting.

    vashikaran specialist and get lover back

    ReplyDelete
  12. I think there needs to be a mechanism to review the functioning of the supreme court of India.
    Get love back by black magic | Husband and wife problem solution

    ReplyDelete
  13. astrology is ancient science and more effective to get ride from all the human problems.
    Free online astrology on phone

    ReplyDelete
  14. Very interesting topic will bookmark your site to check if you write more about in the future.
    __________
    Dua for parents

    ReplyDelete
  15. Really important written content. the information that you shown is hard to faith and many superbly i liked the way you afford things here Accredited GED Online

    ReplyDelete
  16. This comment has been removed by the author.

    ReplyDelete
  17. Searching for Top Call Girls in Gurgaon and Delhi, We have top Class escorts in Gurgaon, for fun in the Night, Our High Class Call Girls in Gurgaon are top escorts in Industry and they have great qualities to gave you real fun time.

    Escorts in Gurgaon
    Escorts in Gurgaon
    Escorts in Gurgaon
    Call Girls in Delhi

    Call Girls in Dwarka
    Call Girls in Delhi
    Escorts in Gurgaon
    Escorts in Gurgaon
    Call Girls in Delhi

    ReplyDelete