This July, the Supreme Court delivered two judgements with far-reaching consequences. The first ruled that members of Parliament and the state legislature are disqualified to continue immediately upon their conviction for offences set out in sections 8(1), 8(2), and 8(3) of the Representation of the People Act (RPA), 1951, and protection granted to them from such disqualification by section 8(4) of the RPA is ultra vires of the Constitution.
The second held that if a person doesn't qualify to be an elector in accordance with provisions of section 62(5), he is also not eligible to contest the election to these legislative chambers. In order to assess the impact of these judgments on our constitutional democracy, it is not enough just to know as to what these rulings are. It is even more important to analyse the constitutional and legal provisions governing this matter, the principles the apex court dwelt upon to rule so and the import and impact of these rulings in the backdrop of broader governance realities pertaining to policing and the system of criminal justice administration.
The first ruling is based on constitutional provisions enshrined in article 101(3)(a) and article 102 read with section 8 of the RPA relating to disqualification of MPs and corresponding provisions of article 190(3)(a) and 191(1) 191(2) of the Constitution relating to the disqualification of the members of the state legislature.
The second judgment draws upon provisions of section 62(5) of the RPA. These provisions are as follows:
Article 101(3): If a member of either house of Parliament - (a) Becomes subject to any disqualifications mentioned in clauses (1) or (2) of article 102, his seat shall thereupon become vacant.
Article 102 (1): A person shall be disqualified for being chosen as, and for being, a member of either house of Parliament - (e) if he is disqualified by or under any law made by Parliament.
Section 7 RPA: Definition. In this chapter:
(b) Disqualified means disqualified for being chosen as, and for being, a member of either house of Parliament or legislature of a state.
Section 8 (3): A person convicted of any offence and sentenced to imprisonment for not less than two years (other than offences referred to in sub-section (1) or (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(4) Notwithstanding anything in sub-sections (1), (2) or (3), a disqualification under either sub-section 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 elapsed from that date or if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Section 62(5): A person shall not vote if he is confined in jail or is in the lawful custody of the police.
After sifting the constitutional and legal provisions, the justices ruled that:
1) Parliament intended to make a uniform law, both for becoming or for continuing as a member of the Parliament or state legislature. In other words, if a person is disqualified to become a member by virtue of incurring disqualifications set out in sections 8(1) (2) and 8(3) of the RPA, he is also disqualified to continue as a member.
2) Section 8(4) of RPA is ultra vires of the Constitution, as it violates constitutional provisions contained in articles 103(a), 102(1)(e) pertaining to a members of Parliament and articles 190 (3)(a) and 191(1) & (2) pertaining to a member of state legislature.
3) Members of these legislative chambers will have to vacate their seats immediately upon incurring disqualification set out in sections 8(1), (2) & (3) of the RPA.
4) If a person is not entitled to vote by virtue of section 62(5) of the RPA, he is also debarred from contesting an election. In other words, if your do not have a right to vote in the elections, you have no right to contest elections.
Consequently, the seats of such members of Parliament and state legislature who are disqualified under section 8 of the RPA shall be declared vacant immediately upon their incurring such disqualification. However, this verdict will take effect prospectively and, therefore, not affect existing members. By virtue of the second ruling, any person who cannot vote by virtue of section 62(5) of the RPA, which provides that, "A person shall not vote if he is confined in jail or is in the lawful custody of the police", shall also stand disqualified to contest an election.
From the plain reading of the constitutional provisions and the relevant law, it is evident that the ruling of the apex court regarding vacation of seats of such members who incur disqualification immediately thereupon is legally well-founded, rooted in robust common sense and resonates very well with the intent of the founding fathers and Parliament to keep criminals out of legislative chambers of our country. However, the honourable court's grant of protection to existing members of Parliament and state legislature, by invoking the doctrine of prospective overruling, is somewhat puzzling and disheartening.
The second decision, which disqualified those in jail or in lawful police custody from contesting the elections is more troubling when viewed in the context of the governance ethos of our county, even if it may be legally sound. In theory, democracy is very uplifting, but the way it is practiced is indeed depressing. In the backdrop of the naked pursuit of power, misuse of government machinery and broken system of criminal justice administration, provisions like section 62(5) of the RPA are really draconian.
To deny a person the right to vote and, now, even the right to contest elections merely because of his being in jail or in lawful police custody, without his being proven guilty of an offence, sits ill at ease with constitutional democracy.
In the meantime, the twin judgments have been hailed by the media and by the people at large as the harbinger of ridding politics of criminals. The political class have demurely welcomed the rulings, even though out of fear of their being dubbed pro-criminal. Whether it is a beginning of a grand cleansing or a short diversion from the business-as-usual, the jury is still out. The predominance of criminals in politics begs the question: Why so many criminals are in politics in the first place? Because they are not in jail. For this to happen, the law alone is not enough. This calls for reinventing the Republic by rediscovering and reaffirming our faith in the constitutional imperatives of transparent, efficient and accountable governance; level playing field for the disadvantaged and the rule of law. It is easier said than done. But we must continue our tryst with destiny relentlessly.