DC debate: Supreme Court verdict on convicts running in elections

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‘Will change face of Indian politics’
by Pradyumna Kumar Reddy, Advocate, High Court of Andhra Pradesh
A recent ruling by the Supreme Court of India prevents politicians from contesting in elections if they are convicted of a serious crime. This verdict was passed upholding an earlier ruling, the Patna High Court passed — Jan Chaukidar Vs. Union of India.
This landmark decision of the Supreme Court is going to change the face of Indian politics. A mind-numbing high percentage of Indian politicians have criminal charges pending against them.
On further interpretation of the said decision, it can be categorically deduced that lawmakers who have been convicted in a criminal case shall not continue to hold office with immediate effect and they shall be barred from contesting in elections.
Politicians with pending criminal cases per se shall also fall within the ambit of the said statute. It applies to the politicians who have been found guilty and convicted by the courts in India and also the people who are in prison (both convicts and under trials).
Earlier, pending appeals against conviction acted as armour to the lawmakers.  The appeals once admitted would take several years to be adjudicated and the lawmakers could continue in office during the pendency. This shield shall cease to exist after this law comes into force.  However, the people who are on bail do not fall within the scope of this statute.
It was established by a bench comprising Justice A.K. Patnaik and Justice S.J. Mukopadhyaya, that “If a person has no right to vote (if convicted of a crime), he has no right to contest.” All criminal cases are deemed to be offences against the state at large. Hence, a person who has committed an offence against the state shall not be a representative of the same state.
On the contrary, this ruling also raises concerns as it could be misused by politicians to target each other by foisting frivolous charges on political rivals to eliminate them from contesting.
It would also create a platform to settle personal grudges between groups and ensure that a candidate is barred from contesting elections. In the present day, mere allegations made against an individual are enough to put him behind bars on the pretext of investigation.
Such undertrials might be acquitted of the said charges as the case progresses, but they are made to forego their candidature as a fallout of the case alleged against them. It should be borne in mind that an accused is deemed to be innocent until the case against him is proved in a court of law.
The apex court has struck down Section 8(4) of the Representation of Peoples Act, 1951 by holding it to be ultra vires to the Constitution of India. The judgement marks the beginning of equality in justice for the lawmakers and the common man before the court of law.
The verdict ensures that criminals with political aspirations do not abuse the prolonged trials to their advantage.
Our legal system is primitive and there has been no advancement in our laws in many decades now. Such revolutionary changes in the political system of India have been much awaited and are well appreciated.
Now that the court has taken a view in this regard, they shall consider the practical consequences and the implementation of the judgement. It is a welcome change!
‘SC judgements can be easily misused’
by K. Ramakrishna Reddy, Senior Advocate, AP High Court
The Supreme Court rendered two important judgements under Representation of Peoples Act, 1951, which are bound to have far reaching consequences on Indian electoral system and public representatives.
Anyone wedded to democracy and its values would welcome the spirit of the two important judgements, but in reality it is bound to be counter-productive and subjective. I personally feel, in the matter of implementation of the verdicts, there are several loopholes one should take note of.
There is every possibility of misuse of the provision against opponents during elections at the instance of party in power. There are several cases against political opponents, and the law says the accused will get relief from the courts only if he is not guilty.
I can understand that those convicted should not be allowed to contest in polls, but not being able to contest on mere allegations at the time of issuance of election notification is untenable.
Parliament has to consider some way out to overcome the misuse of the said provision at the instance of political opponents, otherwise it will have considerable effect on our electoral system in conducting fair elections.
I feel it should not be applied to those who are booked for offences at the instance of the ruling party and wish to contest elections genuinely, in spite of being lodged in jails as long as they are facing trial.
In the first case, the petitioner Lily Thomas, challenged the validity of Sec. 8(4) of RP Act, as an ultra vires of Article 102 and 191 of Constitution of India. Sec. 8(1)(2)(3) of RP Act set out certain offences, penalties and periods of disqualification from the date of conviction for contesting the election as Member of Parliament or State Legislature.
Section 8(4) facilitates the convicted persons, to contest the election or to continue as elected member, after filing an appeal within three months from the date of conviction, and until the disposal of the appeal, without giving any effect of the disqualification set out u/s 8(1)(2)(3) of the RP Act.
In 1953, the SC held, in the Saka Venkat Rao case, that the disqualification for contesting the election as well as continuing as member in the House are the same under Art. 102 (1) and 191(1).
As such, Parliament is not conferred with any power under the provisions of Constitution to enact law or not to give effect to the disqualification, either to contest or to continue as member after incurring disqualification as stipulated under sec. 8(1)(2)(3) of RP Act; hence Sec. 8(4) is unconstitutional and ultra-vires.
The Supreme Court on this premise held that, the Constitution prescribes express disqualification of members of Parliament and State Legislatures under Art. 102(1) and 191 (1) namely (a) office of profit under the state, (b) unsound mind (c) undischarged insolvent (d) not a citizen of India and acquiring citizenship of foreign state, and (e) ‘if he is so disqualified by or under any law made by Parliament.’
In exercise of power under clause (e) above, the Parliament has enacted provision u/s 8 of RP Act by providing disqualification u/s 8(1)(2)(3) for contesting the election as well as for continuing as member. Therefore, giving effect of stay of operation of disqualification for specified offences u/s 8(4) is unconstitutional and ultra-vires.
The SC accepted the aforesaid contention of the petitioner by following the rule laid down by Lord Selborne in a well known Privy Council case and in Keshavananda Bharathi case, that ‘any law made by Parliament should be within the limits of basic instrument (Constitution) and if the Parliament exceeds its power, it is unconstitutional and ultra-vires.’
The Supreme Court also categorically stated that the disqualification set out u/s 8(1)(2)(3) will come into effect from the date of conviction. However, by following the law laid down in Golaknath case on the rule of prospective, the law declared by Supreme Court is not given effect for sitting members who have already filed appeals.
But, it is reported that several members of Parliament and State Legislatures are facing trials in various courts for offences specified under sec. 8(1)(2)(3). In case of conviction by the courts, the sitting members will also incur disqualification hereafter.