The Supreme Court on Wednesday prevented convicted legislators from entering Parliament and Assemblies, but agreed to reconsider its decision on disallowing jailed politicians from contesting polls.
On July 10, 2013, the Supreme Court (SC) had ordered immediate disqualification of convicted legislators by holding Section 8(4) of the Representation of Peoples Act 1950 as unconstitutional. This provision allowed affected MPs/MlAs to continue in House if an appeal was filed before a higher court within three months of conviction.
Taking up the review petition filed by the Centre against this order, the bench of Justices AK Patnaik and SJ Mukhopadhaya found no “substantial question of law” to entertain the petition.
“You have no case. There is no error apparent on the face of the judgement,” the bench told Additional Solicitor General Paras Kuhad, while dismissing the plea.
However, on the issue of disqualifying jailed politicos, the bench conceded there was a grey area in law, for which it issued notices to the Election Commission and petitioner Jan Chaukidar on the second review petition of the Centre.
Ironically, before the judgement under review was pronounced, the Centre did not take part in the hearing.In the review petition, the Centre questioned the decision of the SC claiming it failed to distinguish between “elector” and “voter” provided under the RP Act.
The SC’s decision of July 10 held that a person in lawful custody of police (except preventive detention) in a case of corrupt practice or any offence will cease to be an elector. This would disentitle him from contesting polls as per the disqualification provided under Section 62(5) of the RP Act.
When ASG lN Rao suggested that the provision of Section 62(5) applied to voters and not candidates, the bench spotted the lacuna in law. “When it comes to candidates, you allow him to contest from jail. And when it comes to voters, you prevent him. What kind of a law is thisIJ In a matter relating to corrupt practices, candidate should come first or voter.”
Pointing to this lacuna, the bench said: “The Act is very clumsily drafted. When it comes to special Acts, it should be carefully drafted,” and pointed out that the word ‘voter’ was not defined. “Your legislature has created all this confusion,” the judges added.
However, the court agreed to examine the disqualification against a jailed person to contest polls in the light of Constitution Article 102, which did not provide so even for a candidate to be chosen as MP or MlA. The court fixed the matter for hearing on October 23.
Interestingly, the SC had in its possession a copy of the Bill moved by the Centre in Rajya Sabha to override the court ruling. The new Bill re-introduced the protection available to a convicted legislator upon filing of an appeal against his/her conviction. It, however, added a clause that such members will not be entitled to vote and draw salary or allowances till he/she obtained a stay on conviction.
Giving a backhanded compliment to the Centre for doing a “thorough research,” the bench said: “Your Bill has accepted our argument…without stay of conviction you cannot continue. It’s a well-considered judgement. We are glad Parliament has accepted it.”
The ASG pointed out that a substantial question of law was involved as the validity of Section 8(4) was settled by a Constitution Bench of this court. But the SC reminded the Centre that this point was considered at length in its judgement.