Constitution Bench should8217;ve decided: Ex-CJI

Convicted MPs,MLAs: Was part of the Bench that upheld constitutionality of Section 84 of RPA

Even as the government continues to mull various options after the Supreme Courts judgment disqualifying a Member of Parliament or Legislative Assembly immediately on his/her conviction,former Chief Justice of India CJI K G Balakrishnan feels that the two-judge Bench should have referred the matter to a larger Bench.

I think the issue of constitutionality of sub-section 4 of Section 8 of the Representation of the People Act RPA should have been referred to a Constitution Bench. But,this is only my opinion. It is for the government to decide what its next course of action should be, Justice Balakrishnan told The Indian Express on Friday.

The views of the former CJI,presently Chairperson of the National Human Rights Commission NHRC,are significant since he was part of the five-judge Constitution Bench headed by the then CJI R C Lahoti that had upheld the constitutionality of Section 84 of the RPA.

While deciding appeals in two separate election petitions,one of the questions that the five-judge Bench had answered in its judgment was the purport of sub-section 4 of Section 8 of RPA and whether the protection against disqualification conferred by sub-section 4 on a member of a House would continue to apply though the candidate had ceased to be a member of Parliament or legislature of a state on the date of nomination or election?

A comparative reading of sub-sections 3 and 4 of Section 8 of the RPA shows that Parliament has chosen to classify candidates at an election into two classes for the purpose of enacting disqualification. These two classes are: i a person who on the date of conviction is a member of Parliament or legislature of a state,and ii a person who is not such a member. The persons falling in the two groups are well defined and determinable groups and,therefore,form two definite classes. Such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved, the Bench had ruled.

The Bench further pointed out,Once the elections have been held and a House has come into existence,it may be that a member of the House is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member of a House,but the very existence and continuity of a House democratically constituted.

Over eight years after the judgment,Justice Balakrishnan on Friday said the views expressed in the judgment hold true even today.

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The judgment said the purpose of carving out such an exception section 84 was not to confer an advantage on any person but to protect the House. We had also said that sub-section 4 would cease to apply immediately after the House was dissolved or the person ceased to be a member of that House, Justice Balakrishnan said.

Asked what options the government could consider to deal with the judgment,the NHRC Chairperson said a review was a possibility. Or,maybe,the government can think of amending Articles 1021e and 1911e of the Constitution. The latest judgment,I feel,may not be the last word on this issue and a larger Bench may have to consider this issue, he added.