First, the facts.
" disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
The Act, section 8, states that:
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years ... shall be disqualified form the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(4) ... a disqualification ... shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsedFurther, section 62 of the Act states that:
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:
On July 10, 2013, the Supreme Court of India, in the case of Chief Election Commissioner Etc. vs Jan Chaukidar (Peoples Watch), gave a judgment which said:
... Section 4 of the 1951 Act lays down the qualifications for membership of the House of the People and one of the qualifications laid down is that he must be an “elector” ...
... Section 62 of the 1951 Act is titled “Right to vote” and it provides in sub- section (5) that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise ...
... 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 1951 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.
This is merely a judgment of elementary logic, and is therefore not very remarkable (though I disagree with its premises, more about that later).The second judgment, much more remarkable, in the case of Lily Thomas vs Union Of India & Ors, stated that:
... if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature.
Constitution and Parliament cannot make a provision ... to defer the date on which the disqualification of a sitting member will have effect...
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.
So in these two judgments, the Supreme Court of India is clarifying two points:
- A person in custody or in prison, not being qualified to vote, cannot also therefore be elected.
- A convicted representative is to be treated equally with a convicted person attempting to become a representative and therefore can have no "grace period" of 3 months; his/her disqualification is immediate. Hence, section 8(4) of the RPA is struck down.
Yesterday, the Upper House of India tried to wriggle its way out of the above two judgments by passing The Representation of the People (Amendment and Validation) Bill, 2013, which stated, rather innocently at first glance:
... in section 7, in clause (b), after the words "or Legislative Council of a State", the words "under the provisions of this Chapter, and on no other ground" shall be inserted.
Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector.By limiting the reasons for disqualification as well as the very definition of the word "elector" to include prohibited/disqualified folks, the Parliament of India is attempting to subvert the Supreme Court judgments. With one stroke, it is trying to kill two birds. As per the amendment, disqualified people can't vote, but since they are now included in the set of "electors", they can be elected. And it upholds the "grace period" of 3 months by expressly stating that the disqualification shall be "on no other ground".
Now, a few comments:
- Why should a person in jail not be allowed to vote? He is subject to the laws of the land, and should he not have a voice? What if the laws under which he is jailed are unjust? Also note that the Act disqualifies undertrials and other sundry prisoners as well.
- In India, it is supremely easy to arrest anyone and to make sure they remain in custody without conviction. If you manage to file a complaint against anyone in India, you can get that person arrested and sent to police custody and, later, to jail. Bail is not a matter of right but can be declined on frivolous grounds. I have written about this extensively. Add to that the glacially slow judicial system in India and the widely recognized fact that filing a complaint with the Indian police is a privilege not available to everybody. So, it stands to reason that the privileged can prevent anyone from getting elected by filing false complaints against him and making sure he remains in jail.
- I will go even further and ask as to why even a convict should be disqualified from voting or from contesting elections? As is the law, all candidates have to declare their past convictions. Shouldn't that be enough? Are the authors of the Indian constitution saying that the Indian voters can't see right from wrong and need to be expressly prevented from voting for a criminal/prisoner? That they will otherwise want to, preferring a criminal over a non-criminal? What does that say about our democracy?
- It is true that Indian politics is infested with crime, corruption and cronyism. But the fact is that it is the Indian voter who is voting these "vile" politicians to power again and again. Both the Indian voters and the Indian politicians are looking at short-term gains for themselves and do not care if there is immense collateral damage. I think this is a serious problem and has no easy solution in a democracy. We are perhaps condemned to be in a vicious cycle of poverty, subsidies, corruption, vote-purchasing, voting for one's community, ...
- As an aside, I am amazed at the gall of Mr Kapil Sibal who is trying to hoodwink the people of this country by redefining the terms used in the constitution. Supreme Court of India must again act and suo motu strike down this new amendment as ultra vires of the constitution. Of course, the parliament can then amend the constitution itself, as it has done 98 times before.
- A Footnote. I pride myself on my searching skills, but even I had to spend half an hour to find out the text of the amendment. The text of the amendment surprisingly does not even refer to the Lily Thomas judgment. Also, there seems to be no way in India to find out which of our representatives voted for or against a bill. I think such a facility is the need of the hour for there to be representation of the people that is not just a facade.