Keeping the statute quo

The judgments on the Representation of the People Act stray into legislative terrain.

The Supreme Court judgments of July 10, disqualifying convicted or jailed MPs and MLAs from contesting elections, won a lot of accolades. It was claimed they would clean our politics. I have no sympathy for criminals, but in my respectful opinion lawmaking is the job of the legislature, not the judiciary.

Others objected that since many legislators have criminal backgrounds, they will not change the law. My reply was: if it is said that the judiciary must step in if the legislature is not doing its job properly, it can likewise be said that since the judiciary is not doing its job properly (there is often great delay in deciding cases, a section of the judiciary has become corrupt, etc) the legislature or executive should do the work of deciding cases. This would lead to a constitutional crisis and chaos.

In Lily Thomas vs Union of India, the bench struck down Section 8(4) of the Representation of the People Act, 1951, as unconstitutional. Now it has been held by the Supreme Court in Government of Andhra Pradesh and Others vs P. Laxmi Devi (2008) that the invalidation of a statute by the judiciary is a grave step. The court can declare a statute unconstitutional not merely because it is possible to take such a view, but only when it is the sole possible view not open to rational question. This is because there is a broad separation of powers in our Constitution between the three organs of state. If one organ encroaches on the others' domain, the system cannot function. Declaring a statute to be unconstitutional is thwarting the will of a co-ordinate organ of the state, which should be done only if there is a clear violation of some constitutional provision. Keeping the above considerations in mind it is difficult to understand how Section 8(4) could be held unconstitutional.

Now it is true that Parliament has enacted somewhat different laws for the disqualification of a person who wishes to be chosen as a legislator, and a person who is already one. The former is disqualified immediately on the date of conviction if the sentence is for not less than two years. For the latter, disqualification is deferred till the disposal of the appeal, if the appeal is filed within three months of the conviction.

Noting this distinction, the bench referred to Article 102(1) (e) of the Constitution, which states: "A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". A similar provision exists for state legislatures.

It is a principle of interpretation of statutes that the word "and" can sometimes be read as "or", and vice versa. The bench has read the word "and" as "and", not as "or", to declare Section 8(4) unconstitutional. But if it is read as "or", Section 8 (4) becomes constitutional. It is well settled that if two views are possible, one upholding the constitutional validity of a statute, and the other declaring it unconstitutional, the former is to be preferred, because there is always a presumption in favour of the constitutional validity of the statute.

Also, Articles 102 and 191 do not mention when the disqualification becomes effective. Parliament can fix different dates for different categories, which it has the power to do under entries 72 and 97 of List 1 of the Seventh Schedule of the Constitution.

Moreover, as pointed out in the decision of the Constitution bench of the Supreme Court in K. Prabhakaran vs P. Jayarajan, 2005, Parliament by enacting Section 8(3) and Section 8 (4), has chosen to demarcate two categories: one, a person who is, on the date of conviction, an MP or MLA, two, a person who is not. The court went on to say "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". This five-judge bench decision, though referred to, has been practically negated by the decision of the two-judge bench in the Lily Thomas case.

As for the decision in ECI vs Jan Chowkidar, which disqualified jailed persons from contesting elections, the bench relied on Section 62 (5) of the RP Act, 1951, which states that a person in police custody cannot vote. But having the right to vote is different from having the right to contest elections. Sections 3, 4 and 5 entitle an elector to contest. Under Section 2(e), an elector is defined as a person who is entered in the voters list and is not disqualified under Section 16 of the RP Act, 1951. There is no mention of Section 62(5) in Section 2(e). Many persons in jail have contested elections, for example, George Fernandes. To hold otherwise would only give rival politicians an opportunity to file false FIRs and get their competitors arrested, and thereby disqualified.

I submit with respect that both these decisions are incorrect in law and need to be reconsidered.

( The writer, a former judge of the Supreme Court, is chairman of the Press Council of India)

Published in The Indian EXPRESS on July 24th, 2013.