Civil resistance

Civil society's limited victory in blocking the passage of two of the three Bills in Parliament perceived to be seeking to shield the political class from demands of probity and accountability will have a far-reaching impact on the course and direction on Indian polity.

IT is a well-recognised axiom that Parliament, in its wisdom, can seek to reverse the basis of a court’s judgment that appears to it as flawed in order to mitigate its consequences. By introducing on August 30 a Bill in the Rajya Sabha to address the situation arising out of the Supreme Court’s July 10 judgment in Lily Thomas vs Union of India , the government appeared to do precisely that.

In the Statement of Objects and Reasons (SOR) attached to the Bill (No.LXII of 2013), Law Minister Kapil Sibal referred to the judgment that had held that Parliament had no power to enact sub-section (4) of Section 8 of the Representation of the People Act, 1951. The court had also declared that the provision was ultra vires the Constitution and the judgment should be given prospective effect.

Section 8 of the RPA provides that a person convicted of an offence mentioned in the provision shall be disqualified from the date of conviction and the disqualification is to be continued for such period as specified in that section. Sub-section (4) carved out an exception (the SOR refers to this sub-section in the present tense, even though on August 30 the Supreme Court consigned it to history) providing that the disqualification under sub-sections (1) (2) or (3) of Section 8 should not take effect in the case of a sitting member of Parliament or the Legislature of a State until three months being elapsed from the date of conviction or, if within that period an appeal or application of revision was brought in respect of the conviction or the sentence, until that appeal or application was disposed of by the court.

The government, apparently dissatisfied with the judgment, filed a petition for its review in the Supreme Court. Instead of waiting for the outcome of the review petition, the government felt there was a need to amend the Act by substituting the old sub-section (4) of Section 8 with a new one. The old provision, struck down by the Supreme Court in Lily Thomas , provided relief from disqualification to a legislator merely on the grounds that he or she had filed an appeal or application for revision in respect of conviction or the sentence within 90 days of the judgment. The new provision, however, required that such conviction or sentence must also be stayed by a court and provided that such a member, until the date on which the conviction is set aside by the court, shall neither be entitled to vote nor draw salary and allowances but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be.

On September 26, the Bill was referred to a Select Committee of Parliament, which was to submit a report within two months. t Parliament clearly wanted the Bill to receive mature consideration before being enacted into law. Yet, on September 25, the day before it was referred to the Select Committee, the Cabinet cleared the proposal to promulgate the same Bill as an Ordinance. The haste was clearly in bad taste, as the eminent jurist Fali S. Nariman emphasised, since the effect of an Ordinance under Article 123(2) is that it shall have “force” and “effect” as an Act of Parliament. This would be totally inconsistent with the present fact, as the pending Bill had been referred to a select committee. Nariman added, in an e-mail communication to the RTI activist Subhash Chandra Agrawal, that the circumstances that make it necessary for the President to take immediate action under Article 123 are justiciable, and the only circumstance possibly justifying “immediate action”, according to him, could only be for a few ascertained individuals who would be benefitted. “A special law-making for special individuals is anathema to the Rule of Law on which our Constitution is based,” he observed.

According to K. Parasaran, Member of Parliament and former Attorney-General of India, the Bill’s provisions depriving the Member’s right to vote, and draw salary and allowances until the court sets aside the Member’s conviction, are clearly unconstitutional, as they interfered with the exercise of judicial power. To paraphrase his article in The Hindu (“Measure for Unconstitutional Measure”, October 2), he claimed that it is for the court, staying the conviction or sentence, to specify the consequences (whether the Member will be deprived of the right to vote etc.) of such stay, and Parliament cannot usurp this authority even through a Constitutional amendment or Ordinance, let alone an amending Act. If the court’s order staying the conviction or the sentence of a legislator is without any conditions, depending on the nature of the crime, then his or her membership of the House should not be subjected to any restrictions by Parliament, as the Court clearly believed that such restrictions were not justified, he explained. On the contrary, a court, staying the conviction or sentence, may feel that the member concerned should not have the right to participate in the proceedings of the House, which the Bill seeks to protect, he suggested.

The Bill and the Ordinance also raised the question of propriety as the Supreme Court was yet to dispose of the government’s review petition in Lily Thomas when the Bill was introduced. A division Bench of the Supreme Court dismissed the government’s review petition only on September 4.

The Union Cabinet’s decision on October 2 to drop the Bill and the Ordinance, following the dramatic opposition to them by the Congress vice-president, Rahul Gandhi, might have tentatively brought the curtains down on this unsavoury controversy. But the lessons from the episode will have long-term relevance for our polity.

The second Bill, introduced by the Government on August 23 in the Rajya Sabha to amend the RPA, however, had an easy passage in Parliament. It was passed by the Rajya Sabha on August 27 and by the Lok Sabha on September 6. The Bill, known as Representation of the People (Amendment and Validation) Bill, 2013, provides that even if a person is prohibited from voting due to being in police custody or in jail, as long as his name is entered on the electoral roll, he shall not cease to be an elector. This implies that he can file nomination for an election.

The definition of “disqualified” in the RPA has been amended. Currently, the definition of disqualified means disqualified for either being chosen as or being a Member of Parliament or a State Legislature. The amendment adds a ground to the definition that the disqualification has to be due to conviction for certain specified offences and can be on no other ground. Conviction for one of these offences would result in the person’s name being removed from the electoral roll and he would cease to be an elector.

The Bill is the government’s response to the Supreme Court’s judgment in the case of Chief Election Commissioner vs Jan Chaukidar, also delivered by a Division Bench on July 10. In this judgment, the court had upheld an order of the Patna High Court declaring that a person who has no right to vote by virtue of sub-section (5) of section 62 of RPA, is not an elector, and is, therefore, not qualified to contest the election to either House of Parliament or the Legislative Assembly of a State. The Supreme Court has agreed to hear the Centre’s review petition in this case from October 23.

Although the government had evolved a consensus among the parties, to amend the RPA, to nullify the effect of the Supreme Court’s judgment, the question why the government, despite being a party to the case, did not seriously contest the Patna High Court’s verdict favouring Jan Chaukidar, the NGO which sought to deprive the right of the jailed persons to contest elections, during the hearing of the CEC’s appeal against it in the Supreme Court, remained unanswered. The Supreme Court, during the preliminary hearing of the government’s review petition, however, agreed that Parliament could go ahead to amend the Act to overcome any difficulty which its July 10 order might have created.

The third Bill, the Right to Information (Amendment) Bill, 2013, introduced in the Lok Sabha on August 12, seeks to reverse the June 3 decision of the Central Information Commission to include political parties within the ambit of “public authorities”, required under the RTI Act, 2005 to provide information. The SOR of the Bill states that declaring a political party as public authority under the RTI Act would hamper its smooth internal working, which is not the objective of the Act, and was not envisaged by Parliament under the Act. Further, it apprehends that political rivals may misuse the provisions of RTI Act, thereby adversely affecting the functioning of political parties. However, on September 5, in view of intense pressure from civil society activists protesting against the Bill, Parliament referred the Bill to a select committee for examination and report within three months.

Civil society’s limited victory in blocking the passage of two of the three Bills in Parliament, perceived to be shielding the political class from demands of probity and accountability, will have a far-reaching impact on the course and direction of Indian polity.