The Telegraph
Thursday , September 5 , 2013
CIMA Gallary

Convict bar stands with new-law alert
- SC refuses to review order on lawmakers but will look into poll ban on those in custody

New Delhi, Sept. 4: The Supreme Court today refused to review an order that disqualifies lawmakers as soon as they are convicted and hinted at judicial scrutiny if an escape clause now in Parliament is voted into law.

But the apex court agreed to look into a ruling that upheld a Patna High Court order disallowing persons in custody from contesting elections. In this context, the two-judge bench referred to the “very, very clumsy” manner in which Parliament drafted the related legislation.

The court was dealing with two separate review petitions that were heard together.

According to clause in the Representation of the People Act (RPA) that was struck down by the court, MPs, MLAs and MLCs convicted of a series of listed offences enjoyed a three-month cushion to file an appeal and secure a stay order, following which they could continue in their elected posts and contest fresh elections.

That breather no longer exists. However, the political class had rallied together after the Supreme Court’s original order on July 10 and the Union cabinet had cleared amendments to overcome the court directive.

A bill to allow convicted legislators to contest polls has been introduced in the Rajya Sabha while another to let persons in custody run for public office has been passed by the same House.

When additional solicitor-general Paras Kuhad today drew the court’s attention to the legislative process, the bench of Justices A.K. Patnaik and S.J. Mukhopadhya said it would not like to comment on the issue.

“You can introduce the bill and carry out the amendments. That is Parliament’s prerogative. But if someone at some stage chose to challenge the amended provision, then we may have to examine it,” Justice Patnaik, heading the bench, said.

The court explained why it was not entertaining the review petition on disqualifying convicted lawmakers. “If the court has to review the judgment, there has to be a mistake of law or fact. There is no substantial question of law involved here as we have only interpreted the statute,” the bench said.

The Centre had said the two-judge bench which had passed the order on July 10 “ought to have referred the issue to a larger bench” as a Constitution bench in 2005 had upheld the validity of the special immunity granted to MPs and MLAs as was provided in the RPA.

The court today observed: “We are not inclined to interfere. We are glad Parliament has accepted our interpretation. That is the reason the amendment has been brought.”

A government source later told The Telegraph: “The amended provision seeks to enable even convicted legislators to continue as members.”

The provision introduced in the Rajya Sabha stipulates that if a convicted member files an appeal or a revision petition against the conviction and upon stay of the conviction by the appellate court, the member can continue in office.

However, such members shall not be entitled to vote and draw salary and allowances, though they can take part in House proceedings.

On another review plea, the court issued notices to the Election Commission, the Bihar government and Jan Chowkidar, an NGO, on whose writ petition Patna High Court had ruled that even those in lawful custody cannot contest polls.

An appeal filed by the Election Commission and the Bihar government was dismissed by the apex court on July 10, affirming the view of the high court.

Today, while dealing with the arguments of another additional solicitor-general, L. Nageswara Rao, the apex court said it was not convinced with the Centre’s argument that the July 10 order upholding the high court directive needed to be quashed.

The bench pointed out that it had not laid down any new law but had only interpreted the RPA that laid down such a provision.

“It is the legislature which had created the confusion (by enacting the RPA to restrict even those in custody from contesting the elections). The court has merely interpreted the provision. But you (the government) can always carry the amendment. The legislation seems to have been clumsily drafted. It seems to have been very, very clumsily drafted,” the bench said.

The court also snubbed the government when Rao said a voter could be debarred from voting if he/she is in jail but not a legislator.

“When you say a voter should be barred from voting how can you say that a convicted person be allowed to continue in office? What type of a law do you have? When a person is not eligible to vote, how can you have a person as a member or candidate for election?” the bench asked the additional solicitor-general.