July 19, 2013 12:00:24 am
The Supreme Court ruling disqualifying MPs and MLAs after a conviction and prohibiting those behind bars from contesting an election has caused not only political but also legal ripples. Many former judges and lawyers feel the verdict by the two-judge bench has overruled what a constitution bench had laid down eight years ago.
Last week,the two-judge bench of A K Patnaik and S J Mukhopadhaya held section 8(4) of the Representation of the People Act,1951,ultra vires of the Constitution. Section 8(4) allows convicted legislators to continue if they have appealed in higher courts. The bench ruled that Parliament had exceeded its legislative competence in enacting this provision.
In 2005,a five-judge constitution bench had said section 8(4) makes a valid and reasonable distinction between sitting legislators and others. Days after the latest ruling,former Chief Justice of India K G Balakrishnan one of the five judges in the 2005 bench said the two-judge bench should have referred the matter to a larger bench.
Another former Supreme Court judge,Press Council of India incumbent chairman Markandey Katju,too expressed his reservations about the verdict,underscoring the necessity for a review since the judiciary cannot make laws.
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Advocate Fali S Nariman,who appeared for petitioner Lily Thomas,and S N Shukla,another petitioner who is the general secretary of the Uttar Pradesh-based NGO Lok Prahari,strove to convince the two judges that the issues before them were different from what the constitution bench had adjudicated in K Prabhakaran vs P Jayarajan on January 11,2005.
The two-judge bench had asked the government to defend the validity of section 8 (4) on two counts: if it was in conflict with Articles 101 and 102 that provide for immediate disqualification of an MP or an MLA on conviction,and if it was ultra vires of Article 14,which deals with the right to equality.
The governments reply cited the 2005 verdict,which had upheld the validity of section 8(4) after examining whether classifying lawmakers as distinct from other citizens,who could not participate in elections if convicted,was reasonable and did not violate Article 14. Quoting from that judgment,the government said the exception was created to prevent a reduction in the strength of the house and a members party. It stressed that protection was given to the house and not to the members.
Nariman,however,told the judges he was not just arguing for the violation of the right to equality,but his contention pertained to the very basis of enacting this law. He said the larger bench had upheld section 8(4) as a reasonable classification not violative of Article 14,but the current case brings up Articles 101 and 102 too. According to Nariman,if it was held that Parliament had no power to enact section 8(4),there was no need to touch issues relating to Article 14.
The bench accepted this,saying it would look into whether Parliament could have validly enacted section 8(4) when Articles 101 and 102 stipulate immediate disqualification.
Additional solicitors general Sidharth Luthra and Paras Kuhad sought to bring up the findings of the larger bench again,but the two-judge bench told them their discussion pertained to the constitutional validity of the enactment of section 8(4),which had not been argued in the Prabhakaran case. Subsequent arguments focused on this aspect.
In its judgment,the bench held that the Constitution had given Parliament the power to make the same set of disqualifications for legislators and ordinary citizens,hence carving out an exception was beyond its powers.
The verdict read together the provisions of the Constitution and the Representation of the People Act. Declaring section 8(4) as ultra vires,it said it was not necessary to go into the validity of section 8 (4) vis a vis Article 14 after it had already held that Parliament lacked the powers to make this law.
The 2005 bench,in contrast,had noted that section 8(4) required interpretation in a manner so that it is not rendered unconstitutional. The latest ruling,which will not impact sitting MPs and MLAs,has gone for a plain reading rather than a complex interpretation. It has maintained a distance from the earlier ruling,refraining from touching upon the rationale behind it.
No third party can now seek a review of the verdict. If the government decides to,it will have to take into account the prospect of being seen as demanding immunity for criminal elements.
At one stage,the bench had observed that Parliament could have this immunity for its members,not in the form of a law but rather by way of a constitutional amendment. If we think that the intention of the Constitution is to oust them [convicted MPs,MLAs,out they go. And if they want anything else,they will have to amend the Constitution, it said.
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