The question of disqualification of MPs, MLAs or MLCs has been a bone of contention between the lawmakers and the civil society. For quite some time, civil society has been harping on equality before the law as set forth in the Constitution of the country. But after the first generation of our legislators passed away, the new incumbents began to think of feathering their nests in one way or the other. This happened because the necessary training of bringing up the second and third generation of our lawmakers in a strong culture of nationalism was left to back burner. This in turn gradually lowered our moral values. We are not averse to a change in social formation in view of economic and material change. That is but a natural course of events. But we do not expect fast degradation in moral character of our lawmakers and politicians.
The Supreme Court has struck down the provision (Section 8(4) of the Representation of People’s Act that gives a convicted lawmaker the power to remain in office on the ground that appeals have been filed and decision is pending The Supreme Court Bench in a landmark judgment said that the Parliament has exceeded its powers by enacting the said Act. According to this Act, an elected representative to the Parliament or to the State Legislative Assembly continues to enjoy his rights and powers a representative of the people (of respective constituency) pending a final decision by the higher court if he is convicted for a crime by a lower court. The Supreme Court Bench has observed that the provisions of the judgment come into effect in case of sitting Member of Parliament or a State Legislature.
The case may simply be explained in this way. A member of the one of the two houses of the Parliament or of a State Legislature is convicted under certain clauses of the constitution and awarded punishment in accordance with the law. In ordinary course, the punishment pronounced by the court has to be implemented forthwith. If it is done so, the member is disqualified and no more remains a member of the Parliament or the Legislative Assembly whatever the case. But since we have the appealing system, this person may file an appeal in a higher court against the decision of the lower court. The higher court may take time to decide his case. What will be his official position for the period pending final decision of the higher court? According to the Act stated above, he enjoys the privilege of continuing to be member of the Parliament/LA till the time the superior court pronounces its judgment. It could be any length of time. This is what the Bench of the Supreme Court has challenged and struck down. According to the latest judgment, an elected MP/MLA loses his claim to the membership of the Parliament/ Legislative Assembly and must quit. It does not matter that the higher court to which he has appealed upholds or turns down his appeal.
This is a landmark judgment. It will go a long way in decriminalizing of politics in our country. It has often been seen that politician generally use their influence at highest level to procrastinate the appeal against conviction and remain active in political arena. They try to make themselves indispensable to the party or the group, and take full advantage of the facilities state provides the peoples’ elected representatives. Again, Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come. The date from which his disqualification has to be computed would be precisely the date on which judgment is given. The Parliament cannot bring in an Act that violates clauses of the Constitution. This is the reason why the Bench has contested the right of the Parliament to enact an Act that is ultra virus to the Constitution.
Again on moral grounds also, it is unbecoming on the part of an elected representative to stay put in his place once his conviction is declared. The sub-section 8(4), which has been struck down, says a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court. We think that the Supreme Court Bench has taken a right decision and thus made positive contribution towards decriminalizing of politics in our country.
In the wake of this history making judgment of the Supreme Court, no fewer than 1,460 MPs and MLAs in the country have declared criminal cases against them in the affidavits, which they were asked to submit. On carrying out scrutiny of 4,807 affidavits of sitting MPs and MLAs by Association for Democratic Reforms (ADR) and National Election Watch (NEW) 688 (14 per cent) of the total analyzed have declared serious criminal cases against themselves. On an average 31 per cent of total MLA’s are found to have criminal cases against them and in the case of Jharkhand 71 percent of sitting MLAs are carrying criminal antecedents. The tainted MPs or MLAs come from various national mainstream parties besides smaller regional parties. Close analysis of State-wise and party-wise criminal cases of MPs and MLAs is simply horrifying. For example the Bihar 2010 Assembly had 58 per cent MLAs who had declared criminal cases against themselves, while the Uttar Pradesh 2012 Assembly has 47 per cent MLAs with criminal cases. This is a sordid story and it was long felt that some steps should be taken to rid the parliament and legislative assemblies of criminals. The present judgment from the Supreme Court may not be the last remedy to overcome this aberration nevertheless it is a landmark step and will certainly contribute to stemming the tide. We therefore welcome it and expect more stringent measures to be taken to make our democracy functional in letter and in spirit.
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