Supreme court wields the broom for some urgently needed political reforms. Will it really work? Isn’t it judicial activism? A complete guide to the unfolding debate that will shape the future of our democracy
Jagdeep Chhokar | August 2, 2013
As political parties cut across their otherwise impregnable differences to gang up and scuttle the move to get them under ambit of RTI and oppose the Supreme Court order on convicted legislators being immediately disqualified, a sense of despondency has kicked out a sudden surge of hope in the people. We present the background and implications of the apex court’s rulings on the key issues to cleanse the political system.
This article appears in the latest issue that has hit the stands.
THREE JUDGMENTS of the supreme court in July seem to have almost set the cat among the pigeons – the pigeons being political parties and their sympathisers. Significant sections among civil society seem encouraged by these judgments. Taken together, the judgments are a significant commentary on the political system in the country and an example of how electoral reforms happen or do not happen. But first, the judgments.
The first judgment has come to be popularly called the Manifesto or the Freebies judgment. It came on July 5, in the civil appeal no. 5130 of 2013 (arising out of SLP (C) No. 21455 of 2008), S Subramaniam Balaji Vs The Government of Tamil Nadu & Others, the judgment of which was delivered along with the transferred case no 112 of 2011 S Subramaniam Balaji Vs The Government of Tamil Nadu & Others.
The other two are actually part of a set which has come to be popularly called the Criminalisation judgment, or the Lily Thomas judgment. It came on July 10, in two cases. The main case is writ petition (civil) no. 490 of 2005, Lily Thomas Vs Union of India & Others, with writ petition (civil) no. 231 of 2005, Lok Prahari Vs Union of India & Others. The other judgment that forms part of this set is in Civil Appeals numbered 3040-3041 of 2004, The Chief Election Commissioner etc. Vs Jan Chaukidar (Peoples Watch) & Others.
The petitions and petitioners
The Manifesto judgment came as a result to two petitions filed by Subramaniam Balaji in the Madras high court, one in 2006 and the other in 2011. In 2006, while releasing the election manifesto for the assembly elections the DMK had announced a scheme of distribution of free colour TV sets to each and every household which did not possess the same, if the party/its alliance were elected to power. As the judgment says, “In the month of February 2011, pursuant to the elections to the Tamil Nadu state assembly, the ruling party (DMK) announced its manifesto with a volley of free gifts. In the same manner, the opposite party – AIADMK and its alliance also announced its election manifesto with free gifts to equalise the gifts offered by the DMK and promised to distribute free of cost the following items, viz., grinders, mixies, electric fans, laptop computers, 4 gm gold thalis, '50,000 cash for women’s marriage, green houses, 20 kg rice to all ration card holders even to those above the poverty line and free cattle and sheep, if the said party/its alliance were elected to power during the Tamil Nadu assembly elections 2011.” This was also challenged by Subramaniam Balaji on the ground that such promises by the parties are unauthorised, impermissible and ultra vires the constitutional mandates.
The Criminalisation judgment is in two parts. The first part consists of two petitions, one filed by Lily Thomas, an 85-year-old advocate of the supreme court, and the other by a Lucknow-based NGO called Lok Prahari, through its general secretary, SN Shukla, a retired IAS officer (read an interview with him in following pages). Both these petitions were filed in 2005. As the judgment says, “These two writ petitions have been filed as public interest litigations for mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the constitution.”
The importance of sub-section (4) of Section 8 of the Representation of the People Act, 1951 (the RP Act) is the following.
Sub-sections (1), (2), and (3) of Section 8 of the RP Act provide that a person convicted of certain offences, which are listed in the section, is disqualified from contesting elections from the date of his/her conviction and for another six years after the conviction period is over. Sub-section (4), inserted in 1989, makes an exception for sitting members of parliament and state assemblies, and gives them a three-month grace period. If they file an appeal against the conviction or sentence during these three months, they can continue being legislators and also keep contesting elections, till the appeal process is finally exhausted, which means till the appeal is finally decided by the supreme court. This benefit of three months is not available to an ordinary citizen who wishes to contest elections.
Both Lily Thomas and Lok Prahari wanted sub-section (4) to be declared “as ultra vires the constitution”, meaning illegal. The renowned constitutional lawyer, Fali Nariman, argued on behalf of Lily Thomas, and Shukla himself argued for Lok Prahari.
The original petition in the second part of this judgment was filed by an NGO called Jan Chaukidar (People’s Watch) in the Patna high court in 2004. We may call it the Jan Chaukidar judgment. The main contention was that a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police, is not entitled to vote (by virtue of sub-section (5) of Section 62 of the RP Act) and accordingly is not an “elector” and is, therefore, not qualified to contest elections to the house of people or the legislative assembly of a state because of the provisions in Sections 4 and 5 of the RP Act.
In nutshell, since a person who is in jail is not allowed to vote, s/he should also not be allowed to contest elections too.
What do the judgments say, and what do they mean?
The supreme court has made some very significant observations in the judgment. Let me put it in the words of the court itself.
“Although, the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree” (Para 77) (Emphasis added).
“Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the election commission [EC] to frame guidelines for the same in consultation with all the recognised political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates” (Para 79) (Emphasis added).
“We hereby direct the EC to take up this task as early as possible owing to its utmost importance. We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society” (Para 80) (Emphasis added).
What it means is that (a) the supreme court is concerned about what political parties say in their election manifestoes because promises of distribution of freebies shakes the root of free and fair elections to a large degree, (b) it wants the EC to draw up some guidelines in the regards in consultation with all the recognised political parties, and (c) it wants parliament to make a law for this purpose, and to do this quickly.
Here again, let the court speak for itself.
“Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the constitution, we hold that parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of parliament or a state legislature and for a sitting member of a house of parliament or a house of a state legislature. We also hold that the provisions of Article 101(3)(a) and 190(3) (a) of the constitution expressly prohibit parliament to defer the date from which the disqualification will come into effect in case of a sitting member of parliament or a state legislature. Parliament, therefore, has exceeded its powers conferred by the constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the constitution” (Para 20) (Emphasis added).
“Sitting members of parliament and state legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of parliament or state legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this court... However, if any sitting member of parliament or a state legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of parliament or the state legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence” (Para 23) (Emphasis added).
What the above means is (a) an MP or an MLA who is convicted by a competent court of imprisonment in criminal case will lose his/her seat from the date of conviction, and will not be able to contest elections for six years after the sentence is over, unless s/he is acquitted by a higher court in appeal. Merely filing an appeal in a higher court will not allow such convicted MP/MLA to continue to be a legislator, and to continue contesting elections till the appeal is “finally” decided, and (b) those MPs/MLAs who have been convicted and who have filed appeals till the date of the judgment, can continue undisturbed but those convicted from the day after the judgment will not have this facility of continuing till their appeal is “finally” decided.
In this brief judgment the supreme court upheld the Patna high court judgment saying:
“We have heard learned counsel for the parties and we do not find any infirmity in the findings of the high court in the impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the house of the people or the legislative assembly of a state” (Para 6) (Emphasis added).
The implication of this is that a person who is in jail for any reason, except preventive detention, cannot contest an election. The logic is that one, who is not allowed to vote, cannot be allowed to seek votes and get elected.
Apprehensions/Misgivings of parties
It is interesting to note that in their first reactions, two senior politicians both of whom happen to be well-known lawyers, one each from the two leading political parties, Congress and BJP, seemed to agree with the decisions and reasoning of the supreme court, with the usual caveat of not having read the judgments in full. However, as time passed, misgivings, doubts, apprehensions and lacunae began to be found in the judgments. Let us discuss them judgment-wise.
A well-known TV personality who specialises in interviews and also writes a column in a leading English daily, questioned the court’s view “that election promises damage a level-playing field essential for free and fair elections” and declared that it “isn’t true”. This was followed by a startling revelation: “Promises are free and anyone can make them. And a small party can be as extravagant as a large one in any competitive offering of promises.” It is instructive to know that folks who consider themselves opinion makers should consider “making promises” to be such a frivolous activity that anyone can make anyone else any promise one feels like. And particularly, political parties which contest elections to acquire power to govern the citizens’ lives can outdo one another with no consequences to themselves in making “extravagant” promises.
The same gentleman goes further to say, “Of course, freebies should be discouraged, if not dispensed with altogether, but that’s not for the EC or legislation to do. It’s best left to the pressure of public opinion and concerns of moral propriety.” Obviously, in the considered opinion of this worthy, the responsibility for the “concerns of moral propriety” rests solely with “public”, and has no relevance to those who make such “extravagant” promises in the first place!
Political parties themselves do not seem to be worried about this judgment. The obvious reason is the fact that the court has asked the EC to do it “in consultation” with them. Political parties seem to be smug in the implicit understanding that nothing will happen unless they agree to it, and they can be quite blatant about such disagreement as happened when the vice president, in his capacity as the chairman of the Rajya Sabha, made some proposals to make the working of the upper house more effective in a pre-session meeting of all political parties. All parties were unanimous in rejecting those suggestions.
This is the judgment that seems to have caused significant disquiet among the political parties and their sympathisers. Some of the major concerns are discussed below.
Here is a sample concern, “What happens if the conviction is overturned on appeal? The punishment will have been meted out but the recipient is innocent! Shouldn’t the MP/MLA be given a window for appeal?” The concern, and sympathy, for a convicted MP/MLA is truly touching but what about a “common citizen” who might also aspire to be an MP or an MLA? This “common citizen” is not allowed to contest in the first place, from the moment s/he convicted by the first court. The right to continue to be an MP/MLA is not an inalienable right, which is available to existing MPs/MLAs and is acquired by them the moment they get elected. Isn’t it time that our legislators learnt that they are also citizens and the same laws should apply to them as do to all citizens? And we must remember that there cannot be a law made to suit every conceivable situation perfectly.
Another concern raised is judicial impropriety in a two-judge bench “overturning” the 2005 ruling of a constitution bench, the main proponent of which is a well-known retired judge of the supreme court currently holding a statutory position of some significance. What is overlooked while this concern is expressed is that the bench in the Lily Thomas case has specifically clarified that they are not deciding the issue referred to in the constitution bench judgment.
The Lily Thomas judgment says: “As we have held that parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the constitution, it is not necessary for us to go into the other issue raised in these writ petitions that sub-section (4) of Section 8 of the Act is violative of Article 14 of the constitution. It would have been necessary for us to go into this question only if sub-section (4) of Section 8 of the Act was held to be within the powers of parliament. In other words, as we can declare sub-section (4) of Section 8 of the Act as ultra vires the constitution without going into the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the constitution, we do not think it is necessary to decide the question as to whether subsection (4) of Section 8 of the Act is violative of Article 14 of the constitution” (Para 22) (Emphasis added).
The other issue that seems to upset judicial purists is that the reason for holding sub-section (4) of Section 8 of the RP Act valid in 2005 was to protect the existing governments as “The government in power may be surviving on a razor edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government,” as the 2005 judgment specifically says.
The fact that the two-judge bench has specifically noted that it has refrained on treading on the 2005 judgment shows how restrained it has been. It is also proved by the bench holding that the judgment will not apply to sitting MPs/MLAs who have been convicted but have already appealed. As a matter of fact, this part of the judgment has also been criticised by some legal luminaries, including a former attorney general of India, who has written as follows:
“This part of the judgment is debatable and disappointing. It diminishes the impact of this sterling judgment. In this case, there is no question of any past transactions or estates that had changed hands and been acted upon for years that would be affected by the judgment. Nor is there any question of administrative chaos which, if any, would have been in the political parties whose numbers in parliament and state legislatures would have fallen sharply. MPs and MLAs convicted of grave offences involving moral turpitude – in other words, criminals – did not deserve any sympathetic protection from the court by invocation in effect of the doctrine of prospective overruling. Law breakers should not be permitted at all to function as law makers. The court should have gone the whole hog.”
This has arguably caused the most agitation in the political class. This is what the well-known TV personality and columnist writes:
“Third, the supreme court judgment declaring that any one in lawful custody, including under-trials, is disqualified from contesting elections. The court’s argument is if you can’t vote you can’t contest. However, these people are innocent. Not only are they not convicted many may not even be charged! This also means another George Fernandes, who fought and won in July 1977 from jail, is impossible. That, alone, diminishes our democracy. Beyond moral concerns, this judgment can be used to foist false cases to disqualify those you may not be able to electorally defeat. This is, possibly, an invitation for vendetta.”
The above quote contains many gems. First of all, it is not the court’s argument that one who cannot vote cannot contest elections, but this is what the constitution of the country says. Second, the bland, unqualified, absolute declaration, “However, these people are innocent”, is delightful. One wonders who “these people” are, some politicians or lakhs of under-trials who have spent more time in jail than their offences warrant!
Of course, we always remember Fernandes but conveniently forget that for every Fernandes, we have many more Shahabuddins and others of that ilk. And not allowing one Fernandes to contest “diminishes our democracy” more than having 162 out of 545, or 29.72 percent members of the highest legislative body in the country who have self-declared criminal cases pending against them.
The most interesting bit is foisting “false cases to disqualify those you may not be able to electorally defeat” which is “(b)eyond moral concerns”. This raises two important questions. First, who “foists false cases” on opponents? The citizens, voters, police, or the judiciary? The answer, which does not seem to be known to everyone who uses this argument, is that false cases, particularly for political purposes, are “foisted” always at the behest of other politicians. If the politicians refuse to discipline themselves collectively, should the citizenry continue to suffer or should the citizenry not take recourse to another pillar of the state, the judiciary, and seek redress?
Other, broader concerns
Several other larger concerns have also been expressed. The major ones are discussed below.
It has been said that the judiciary is overreaching and overstepping into the territory of the legislature, and that is should limit itself to ‘interpreting’ the law. It is necessary to deal with this concern comprehensively. The point at issue is: What is the remedy for a citizen if the legislature fails to address an issue and pubic interest continues to suffer?
This was the precise issue dealt with by the supreme court in the Union of India versus Association for Democratic Reforms (ADR) case in a judgment in May 2002 (civil appeal no.7178 of 2001). In that judgment, the court referred to the famous Vineet Narain case and said the following:
“While discussing the powers of this court it was observed:
‘The powers conferred on this court by the constitution are ample to remedy this defect and to ensure enforcement of the concept of equality. There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue of Article 141 and there is mandate to all authorities to act in aid of the orders of this court as provided in Article 144 of the constitution. In a catena of decisions of this court, this power has been recognised and exercised, if need be, by issuing necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role.’ [Emphasis supplied]”
The key observation is that the supreme court has the power “to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its role”. And this power is granted to the court by the constitution itself.
So far as sticking to “interpreting” the law is concerned, the following observation in Rajasthan v. Union of India (AIR1977 SC1361) by justice PN Bhagwati is instructive:
“It is necessary to assert in the clearest terms particularly in the context of recent history, that the constitution is supreme lex, the permanent law of land, and there is no department or branch of government above or beyond it. Every organ of the government, be it the executive or the legislature or the judiciary, derives its authority from the constitution and it has to act within the limits of its authority. No one however highly placed and no authority howsoever lofty can claim that it shall be the sole judge of the extent of its power under the constitution or whether its action is within the confines of such power laid down by the constitution. This court is the ultimate interpreter of the constitution and to this court is assigned the delicate task of determining what is the power conferred on each branch of government, whether it is limited, and if so, what are the limits and whether any action of that branch transgresses such limits.”
In all the three judgments, the supreme court has done nothing but “interpret” various provisions of the constitution, often in combination.
Another observation worth noting is that a lot of this confusion could be avoided if the judicial system worked more efficiently and cases were decided expeditiously. To put it more candidly, the political establishment often says that their problems are because the judiciary does not work properly, and that the judiciary should first put its house in order before pointing fingers at and trying to correct the political system.
A certain degree of tension among three independent organs of the state is inevitable, and can even be healthy. This situation in India is a bit complicated because there is no clear separation between the executive and the legislature. This lack of clarity sometimes, if not often, results in situations where these two branches of the state seem to work in tandem to fault the judiciary, and seek judicial reforms.
There is no doubt whatsoever that there is much in the judiciary that needs reform but the fact also is that all of that cannot be done by the judiciary alone. A lot of judicial reform depends on changes in existing legislation, which can only be done by the legislature. Functioning of the legislatures is an almost direct outcome and is determined by the political system. Though one could possibly compare it to the usual ‘chicken and the egg’ situation but on balance, greater onus seems to be on the political system to reform itself before it can talk about reforming the judicial system. The political system’s extreme reluctance to reform is discussed below.
Whither political reforms
These three judgments, taken together, have been referred to as a boost to the process of political reforms in the country. But this has to be taken with great caution and the proverbial pinch of salt. This is because electoral reforms have a long history. It was in May of 1990 in what has come to be known as the Goswami committee report, officially called the Committee on Electoral Reforms, that the following was written, “All these four decades, especially after 1967, the demand for electoral reforms has been mounting up.”
If the “demand for electoral reforms (had) been mounting up” since 1967, the situation on April 13, 2012, was the following:
“Hence allow me Sir, to place before you the commission’s deep disappointment over the fact that a necessary legislation in this regard is yet to be materialised despite an assurance given to us by the hon’ble minister of law and justice.”
“However, the quality of our elections often gets questioned on account of certain weaknesses in our electoral process. Commission’s reform proposals have always aimed at addressing this predicament. Though certain minor reforms have been adopted by government and parliament, the substantial ones have been actually left out allowing the allegations that politicians are not keen about the reforms because of their vested interest.”
“I would like to bring to your kind notice that some proposals which are of technical nature and require only amendment of rules within the competence of the ministry of law and justice, have also been pending for a long time. This raises questions about the lack of political will, which causes us deep distress” (Italics added).
These are excerpts from a the letter that the then, and outgoing, chief election commissioner, Dr SY Quraishi, wrote to the prime minister on, before demitting office on June 10, 2012.
There seems to be great reluctance on the part of the political system towards any attempt at reform. One of the earliest examples is of Section 77 of the RP Act which provides for laying down a limit for election expenditure by a candidate, and says that exceeding that limit makes the election of the candidate liable to be set aside. Candidates started claiming that expenditure was incurred by their friends, supporters, and the party and did not come under the purview of Section 77. When this matter came for consideration of the supreme court in 1975, it maintained that “a party candidate does not stand apart from his political party and if the political party does not want the candidate to incur the disqualification, it must exercise control over the expenditure which may be incurred by it directly to promote the poll prospects of the candidate. The same proposition must also hold good in case of expenditure incurred by friends and supporters directly in connection with the election of the candidate. This is the only reasonable interpretation of the provision which would carry out its object and intendment and suppress the mischief and advance the remedy by purifying our election process and ridding it of the pernicious and baneful influence of big money” (Italics added).
True to character, our politicians did not like this. Soon after the above judgment, an ordinance was issued amending Section 77 of the RP Act by inserting Explanation 1 in subsection (1) of Section 77 which clarified that “any expenditure incurred or authorised in connection with the election of a candidate by a political party or by any other association or body of persons or by any individual (other than the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to have been, expenditure in connection with the election incurred or authorised by the candidate or by his election agent for the purpose of this section ...,” which completely nullified the object and purpose of the supreme court judgment.
This pattern of changing the laws, often through an ordinance, whenever something did not suit the political system was again in evidence in 2002 when the supreme court decided in the ADR case that candidates contesting elections will have to disclose criminal cases pending against them. The same thing happened when ADR sought copies of income tax return of political parties in 2008. We see the same phenomenon repeated now with the central information commission’s decision of June 3, declaring six national political parties to be public authorities under the Right to Information Act.
And exactly the same things are being said about the three supreme court judgments. So, one would need to be a clairvoyant to be able to say whether these judgments will lead to anything of substance happening. But what is clear is that the country and its citizenry are not what they were in 1975, 2002, or even in 2008. And the sooner political parties realise that, the better it will be for the country at large and also for the political parties themselves.
Mindset of political parties
The major concern here is the mindset of the political establishment that since they control the power of making laws, no laws can and should apply to them. What they do not seem to realise is that ‘rule of law’ is an essential concomitant of a liberal democracy, and the phrase ‘rule of law’ means that laws apply to everyone equally. As a matter of fact, this is precisely what Article 14 of the constitution, “Equality before law”, provides for.
The entire process and effort for political and electoral reforms is, in effect, an attempt to change the mindset of political parties, to make them understand and realise that ‘business as usual’ is not going to continue. They may be able to delay this a bit but there is no way it can be denied indefinitely.
Even if attempts are made to undo these judgments, they will be resisted by all possible means by the citizens and civil society. And even if some of these attempts to undo the judgments succeed, the success will be short-lived.
The judgments however do present an unprecedented opportunity for the political establishment to initiate a long delayed process of the reform of their internal functioning. If the legal experts in the government and the political establishment find some gaps, it will be very graceful of them to initiate changes in various laws to bring them in line with these judgments.
Coming back to the two commentator-sympathisers of political parties, one of them ends his piece with, “Let me make it clear that I am totally against the criminalisation of politics or casteism in politics, but the problem we are discussing is not about one person’s view but what the correct, legal position should be.” Despite his legal eminence, I am afraid he seems to overlook the fundamental tenet that laws exists to serve society, society does not exist to serve law.
The other one also ends his piece with an interesting observation, “Clean our politics we must but these judgments might not be the best way of doing so.” Sadly, he does not say what the best way is, and also overlooks the adage that “The best is often the worst enemy of the good.”
The supreme court has shown the way. All of us, including the political parties, must follow it.
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