Manmohan's credibility at stake

The UPA-2 Government has no option but to withdraw the controversial ordinance on convicted law makers after Rahul Gandhi dubbed the measure as ‘complete nonsense’ which should be ‘torn and thrown out’. The ordinance stipulates negation of the Supreme Court order on disqualifying convicted MPs and MLAs. Rahul’s rebuff is considered an embarrassment to Prime Minister Manmohan Singh and his cabinet colleagues. The cabinet will meet next week after return of the PM from US visit, reconsider the ordinance, and withdraw it.

Intervention by President Pranab Mukherjee set the ball rolling. He questioned the objective of the ordinance to much discomfiture of the government. The President made his unease clear to Home Minister Sushil Kumar Shinde and Law Minister Kapil Sibal whom he summoned soon after the ordinance was sent for his signature.

Criminalization of politics has, perhaps, become the biggest menace in the society and it has to be checked whatever may be cost, even if some innocent persons suffer. Shockingly, 30 per cent of India’s MPs face criminal charges including (rape and murder). People in general have suffered because of entry of criminals in Parliament and state legislatures. What a paradox; the law breakers have become law makers.

The Association of Democratic Reforms (ADR) has come out with figures which are staggering. Going by the records of the Election Commission, the ADR says 162 of 545 Lok Sabha members and 1,258 out of 4,032 sitting MLAs have declared that there are certain cases pending against them. Those among them who have been convicted “in harness” have filed appeals so that they can service full-term.  It is unfortunate that union cabinet has cleared an ordinance that seeks to protect convicted parliamentarians and state legislators from disqualification. It is deplorable indeed that the UPA government has adopted this brazen course to nullify a Supreme Court verdict of far reaching importance.

It is not a coincidence but a cool, calculated move, to bail out Lalu Prasad, an UPA ally, who faces a likely conviction in the fodder scam. Another MP, who will benefit from the Ordinance, is Congress Rajya Sabha member, Rashid Masood, whom a CBI court recently found guilty of fraudulently nominating undeserving candidates for MBBS seats when he was Health Minister. 

The apex court’s July 10 ruling, said that if any sitting MP or MLA is convicted, he will have to resign from the legislature. The ruling aimed at setting right a legislative flaw that shielded MPs and MLAs from being disqualified till such time their appeals in the courts remain pending.  This step was long overdue and it is backed by strong public opinion.

The Representation of the People (Amendment and Validating) Ordinance, 2013 overturns a Supreme Court order, mandating the disqualification of lawmakers immediately upon their conviction. Firstly, the Ordinance marks the backdoor entry of a bill that faced opposition in the monsoon session of parliament. Secondly, it aims to create a class of people who can legitimately claim to be special in the eyes of law—even when convicted by a law court.

The Supreme Court’s ruling was itself based on the sound principle that there cannot be sets of citizens; a convicted legislator could not claim immunity from disqualification when this relaxation was not available to a convicted citizen aspiring to contest election. Section 8(4) of the Representation of the People Act protects a convicted legislator from disqualification provided he or she appeals before a high court within three months. 

The Court struck down this clause, which “carves out a saving in the case of sitting members of Parliament or State legislature”, even as it held that Parliament was obliged under Articles 102(1) (e) and 191(1) (e) of the Constitution to make one common law for both ordinary citizen and sitting legislators.           

The court order is by no means a case of judicial overreach. The disqualification is restricted to MPs and MLAs convicted in criminal cases where the offences are punishable by a jail sentence of two years or more. This automatically excludes not just those convicted on lesser grounds but also those charge-sheeted for grave offences.

It is unfortunate that the government   now seeks to amend the law to restore the earlier position that is allowing the convicted MPs and legislators three months time for appealing in a higher court and getting a stay of their conviction and sentence. This enables criminals to continue their tenure in Parliament and state assemblies if they file appeals against their conviction in a higher court. Any judge in any democracy who sees steady deterioration in democratic values is bound to correct this aberration.

By way of background, it may be recalled that a division bench of the Supreme court on 10th July, 2013 has upheld an order of the High Court of Patna, declaring that a person who has no right to vote 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 verdict is considered important as it ensures that those who are convicted of serious crimes cannot sit in Parliament or state legislature by filing an appeal. 

The crucial verdict struck down as unconstitutional Section 8 (4) of the Representation of the People Act that gives elected convicts the cover of appeal in order to sit in Parliament or State Assemblies for years.

The Association of Democratic Reforms, which examined the sworn affidavits of a total of 4,807 sitting MPs and MLAs, found 14 per cent had declared serious criminal charges against themselves. Obviously, the presumption of innocence must and does not apply in these cases. A conviction, however, is a very serious matter. Besides, the appeal process could take years, leading to untenable situation of a convicted legislator completing his or her full term. It is clear that Ordinance has been rushed through with political motives.  IPA