Wilting under the strong pressure of public opinion and a dramatic late intervention by Congress Vice-President Rahul Gandhi, the Union Cabinet has now withdrawn the controversial ordinance that sought to defer the disqualification of convicted lawmakers, a move that would have been a direct contravention of the Supreme Court judgment of July 10 this year that said that convicted lawmakers would face immediate disqualification. While it is a relief that a serious blow to ethical governance has been averted, the challenges inherent in the attempt to privilege the political-legislator class and confer a certain degree of immunity from the consequences of illegalities committed by them do remain.
In this context, The Hindu Centre sought the views of two distinguished legal experts, Arun Jaitley, former Union Law Minister and Leader of the Opposition in the Rajya Sabha, and former Attorney-General for India, K. Parasaran, on the implications and significance of this controversial move to defer the disqualification of convicted legislators.
These interviews were conducted in New Delhi on October 2 by The Hindu Centre’s Chief Political Coordinator, M.R. Venkatesh. Both conversations offer insights into the inherent unconstitutionality of the ordinance that now stands withdrawn and the clearly undemocratic spirit of this move that virtually places the political class a notch above other citizens. We present here below the edited transcripts of these interviews:
M. R. Venkatesh: The central ordinance to prevent disqualification of convicted Members of Parliament and State legislators has kicked up a major nation-wide row. How and why is it dubbed unconstitutional?
You see, Sections 8(1), 8(2), and 8(3) of the Representation of the People Act (RPA), 1951 list out the sections under which, if you are convicted for a period of two years or more, you will be disqualified. That is the statutory provision for disqualification. Section 8(4) says that if a sitting member of a legislative body is disqualified, then for three months the disqualification will stand deferred; and thereafter, if an appeal is filed, the present membership will be protected till the appeal is disposed of. That only relates to existing membership and not future elections. The Supreme Court of India has recently said that this deferment for convicted persons or disqualified persons is unconstitutional because it violates Articles 102 and 191 of the Constitution. A law made by Parliament has to be subject to the Constitution, not contrary to the Constitution. Membership of a legislative body has a bundle of rights. All that the new provision [the ordinance, which the government has announced it was withdrawing] does is that it allows you the benefit of the membership; it allows you the right to attend and speak, but says you cannot draw a salary or vote. So two rights are taken away; the other rights continue to vest. This provision is as unconstitutional as the original provision, because it allows you to exercise some of the rights. But under Articles 102 and 191 as presently framed, this provision is contrary to the law. That is the Constitution.
M. R. Venkatesh: What makes this ordinance, meant to give a lifeline to convicted members of Parliament and State legislatures, bad in law?
People seem to have forgotten the Supreme Court ruling in the famous K.M. Nanavati Vs State of Bombay case of 1961, wherein the issue of the Governor’s power under Article 161 of the Constitution — the power of pardon, to suspend, remit or commute a sentence — came up. The corresponding power for the President is under Article 72 of the Constitution. This is an executive power that is exercised by the Governor. The Governor’s order suspending a sentence [Nanavati, a high-ranking official in the Navy, was convicted under Section 302 of the Indian Penal Code] could be operational during the pendency of the appeal. But once the Supreme Court is seized of that matter, you can’t do that. It is the same principle that is the basis of my argument over this ordinance. Just as executive power cannot be exercised to interfere in the functioning of the courts, legislative power cannot be exercised in a matter pending before the court. The ordinance-making power of the President, as in this instance, under Article 123 of the Constitution, is a legislative power and cannot be exercised in a pending case. I am not saying in all cases, but during the pendency of a case before the court, the matter is entirely different.
What is the difficulty with The Representation of the People (Second Amendment and Validation) Bill, 2013, which is now before a Standing Committee of Parliament?
If the ordinance is contrary to the Constitution, obviously the Bill which has the same subject matter is also contrary to the Constitution. The only difference between the Bill and the ordinance is that the latter is executive legislation subject to ratification by Parliament; the Bill is yet to be approved [by Parliament].
My objections were based on two considerations. The moral consideration that if the Supreme Court had taken a step to debar convicted people from continuing to be law-makers, why should we amend the law and enable them to become law-makers? In my meeting with the Law Minister [Kapil Sibal], I objected to the Bill on the ground that besides being morally unacceptable, it violated the Constitution.
Is it on this basis that this central ordinance is flawed?
Yes, this ordinance is flawed. I wish to remind you that members of Parliament and State legislatures have certain privileges, under which no member is liable to any proceedings in any court of law in respect of anything said in Parliament [or State legislatures]. Still, we follow the principle of sub judice in a matter pending before the court. If the matter is sub judice, we do not discuss it in Parliament. It is for the court to pass an order, suspending a sentence, and the like; either the sentence may be suspended or the conviction may be suspended. But normally, the courts will suspend only the sentence, not the conviction. So when suspending the sentence, it is open to the court to put whatever conditions it feels is appropriate. It can say you can only attend Parliament and sign the register, nothing else. It can say you participate in the proceedings, but you do not vote or draw your salary. It all depends on the nature of the offence committed. If anybody [convicted and sentenced] is permitted [to attend Parliament], normally the court will not permit the member to vote or draw his or her salary; but in some cases the court may allow the member to participate in the proceedings, in some others it may not. Similar is the case with respect to voting. After all, a government fell for want of one vote! In some other instance, it may be more important from the larger national interest to allow voting. If some five or six persons belonging to different political parties are undergoing a sentence after a conviction, the court may, in such a situation, say ‘you can vote’. But my entire argument [against this ordinance] is focused on a matter which is pending before the court.
At one stage, all the political parties seemed to support this Bill.
That is factually incorrect. On August 13, 2013, an all-party meeting was held [in New Delhi], where the Government made proposals to amend the Constitution itself for the purpose. Sushma Swaraj [leader of the BJP in the Lok Sabha], said at that meeting that she would consult the party; at that stage the proposal was that it could be referred to the Standing Committee. Thereafter, from August 15 onwards, I kept informing the government in several discussions I had with them, giving my reservations about both the constitutional amendment and the Bill proposed under the Constitution. And my objections were based on two considerations. The moral consideration that if the Supreme Court had taken a step to debar convicted people from continuing to be law-makers, why should we amend the law and enable them to become law-makers? In my meeting with the Law Minister [Kapil Sibal], I objected to the Bill on the ground that besides being morally unacceptable, it violated the Constitution.
Does the Bill also suffer from the same infirmity?
Yes, yes. It is only the Bill [The Representation of the People (Second Amendment and Validation) Bill, 2013] which they want to bring in now as an ordinance. The Bill was introduced in the Rajya Sabha and I wanted to speak on it but it did not come up for discussion. There was no time. More important Bills like the Food Security Bill were pending in the Upper House. So there was no time for debate or discussion.
Just as executive power cannot be exercised to interfere in the functioning of the courts, legislative power cannot be exercised in a matter pending before the court.
Your take on the view that a ‘saving clause’ [such as Section 8(4) of the RPA] is a small political compromise to make for the survival of the democratic system?
You see, according to me, if under the present law as declared by the Supreme Court it is unconstitutional, you can’t compromise with the constitutionality. The law doesn’t permit it.
The Government’s position is that they are only bringing an amendment to the Representation of the People Act, vis-à-vis Sub-section 4 of Section 8.
You see, no amendment to any legislation can be made which is contrary to the Constitution.
Do you feel it requires a constitutional amendment instead?
Amending the Constitution in order to enable convicted people to continue to be law-makers will be received badly by public opinion. This will be found to be morally unacceptable.
You see, once a court has convicted a person, there is some sanctity to that conviction.
You have mentioned [in an article titled ‘Measure for unconstitutional measure’, published in The Hindu of October 2, 2013] that the ordinance interferes with the exercise of judicial power?
That’s right. It is for the courts to specify on what conditions they suspend a sentence. Parliament cannot say these are the conditions which will operate. If the court does not suspend the sentence, this amendment does not operate. Only if the court suspends the sentence, the amendment will operate. But I wish to reiterate, Parliament cannot say that once the court suspends the sentence, I will give the conditions. This underlying principle is wrong.
A former Speaker of the Lok Sabha, Somnath Chatterjee, has said a sitting MP or MLA convicted by a magistrate should be given a chance to appeal and any automatic disqualification renders the system of appellate courts redundant.
It is a plausible view to have. But this plausible view has been struck down by the Supreme Court of India. And therefore, unless the Supreme Court reconsiders its view, it won’t be permissible under the present law.
Is this why you drew a parallel with Raj Narayan Vs Indira Gandhi’s case?
It was to illustrate what type of interim order should be passed [in such cases], only for that purpose. To show that the executive should not interfere with the court’s jurisdiction when a matter is pending, for that purpose I revisited Nanavati’s case. But on the nature of the interim to be passed [when a sentence is suspended], I went into Mr. Justice V. R. Krishna Iyer’s order [in the Indira Gandhi election case]. Because Krishna Iyer has been a member of the executive, a member of the legislature, and also a Supreme Court judge. He had the experience of all three roles. And in Indira Gandhi’s case, he made a distinction between her membership of the House and her role as the Prime Minister of India. He did not touch any of her rights as Prime Minister, because her election was set aside [by the Allahabad High Court]. Hence, Mr Justice Iyer, in his order, said, ‘as a Prime Minister, whatever functions you have to perform under the Constitution, you perform’. But as a member, it was quite different. Krishna Iyer said you can sign the register as a member and attend Parliament, but not participate as a member. However, as PM, she could address both Houses of Parliament. He gave examples of certain Articles under the Constitution on the functions of a Prime Minister and added that she could perform all those functions.
But what is the remedy for an MP or MLA who could be subject to a ‘wrong judicial determination’ in the first place?
Let us be very clear. He or she can certainly file an appeal, and then when the next election is held, he or she can re-contest [if he or she is acquitted or the conviction is stayed]. That is the remedy. But as long as the conviction order stands, his or her right to be part of a legislature stands eclipsed. And how many such cases are there in the whole country? Not more than three, four, or five? So for these people, should you amend the Constitution or the law?
Do you think that the larger issue is if such things happen to sitting MPs and MLAs on a large scale, the stability of democracy can be somewhat undermined?
As I said, I have only stated the purely constitutional position. I have got my strong views on that [the political aspect], but I don’t want to express anything on that.
But why do you think the Government went ahead with this ordinance?
I think they were under a political compulsion from a longstanding ally.
But as long as the conviction order stands, his or her right to be part of a legislature stands eclipsed. And how many such cases are there in the whole country? Not more than three, four, or five? So for these people, should you amend the Constitution or the law?
Constitutionally, is there a specific bar, pending an appeal, on membership of sitting MPs/MLAs being automatically disqualified?
No. It is only on conviction that disqualification [from the membership of the House] is attracted under the RPA, if the sentence given is for a particular number of years. The Supreme Court has recently said that the disqualification applies automatically. The amendment by the government said it can be deferred for a period of three months [from the date of conviction] to enable an appeal and suspension of the operation of the sentence by a court; then they can participate in the proceedings of Parliament or the legislature of the State concerned, but not vote or draw a salary and allowances.
Nonetheless, there is another view that seeks to justify retaining Section 8(4) of the RPA as providing for an ‘exception or a class legislation’ once a democratically elected House has been properly constituted in the larger national interest?
On the question of ‘class legislation’, the Supreme Court had upheld its validity. It is only on the question of the legislative competence of Parliament that they have struck it down. That is a separate ground.
You also mentioned [in your article] that the ordinance was violative of Article 14 of the Constitution. Could you explain that a bit?
Article 14 of the Constitution has been widely interpreted by the Supreme Court to include situations that are unjust, unfair, unreasonable, discriminatory, and irrational. Is it not irrational to say that a convicted person, if he gets an order of stay, can participate in the proceedings of Parliament irrespective of the nature of the offence committed?
But a provision like this, by itself, can’t be unconstitutional?
Provided the Constitution permits it. If it runs contrary to the Constitution, it won’t be permitted.
A law made by Parliament has to be subject to the Constitution, not contrary to the Constitution. Membership of a legislative body has a bundle of rights.
Are you saying you cannot have an omnibus protection for all convicted MPs/ MLAs as the ordinance seeks to do?
Yes. No omnibus protection. In fact, sentencing is an art. It depends on the nature of the offence. The punishment prescribed by the acts would only be, say, up to three, five, or seven years. But sentences can vary from even one day, months to several years; a court can give a variety of sentences. It is the discretion of the court. It depends on the facts of the case, the nature of the offence and such things. In the ordinance — I am confining myself only to that— everything is confined to ‘during the pendency of the proceedings’. But those are matters for the court to decide. The legislature cannot substitute itself [for the judiciary in this process]. This is the short point.
One another aspect is that in States like Tamil Nadu, for instance, parties keep filing cases against each other, inviting the charge of recurring political vendetta?
Section 8(4) does not apply to a charge-sheeted person. It applies only to a convicted person. So a vindictive charge-sheet would ordinarily be thrown out by a court. But here the court, after a trial, adjudicated and held you guilty!
But does not that sub-section provide some kind of a check on the abuse of the process of law?
You see, once a court has convicted a person, there is some sanctity to that conviction. An order of conviction stands on a different footing from an order framing a charge or the filing of a charge-sheet.
If too many heads were to roll on this ground, hypothetically speaking, would it not lead to an anarchic situation?
The question is based on a premise that courts unfairly convict people. I am not accepting that. And history stands as evidence that this has not happened. The total number of people in the country who are in legislatures and are convicted would not be more than a handful.
If the leadership at the top level is affected by such a process, would it not reflect on governance? Because this can happen to any big leader today.
You see, if convicted people are there at the highest level, that itself will have a more adverse impact on governance.
Would the framers of this Bill have not considered all these aspects?
You see, nobody is infallible. To err is human, to forgive divine. This brings us to the importance of having debates. In fact, Lord Krishna says in the Bhagavad Gita, “Where there is a debate on Atma Vidya [to know the true nature of the self], I manifest myself in that argument which is the best.” So, it is a debate. I have written my view. You debate and come to a proper conclusion on its logical reasoning, because reason is the soul of law and if the reason for the law ceases, the law itself ceases. The Constitution is sacred. Every citizen owes allegiance to the Constitution. All laws must be in conformity with the Constitution. Neither the executive nor the legislature nor the judiciary may exercise powers which may be considered an overreach into some other territory in which it has no jurisdiction. This sort of [dialectics between] activism and conservatism is as old as our Puranas.
Is it not irrational to say that a convicted person, if he gets an order of stay, can participate in the proceedings of Parliament irrespective of the nature of the offence committed?