A crooked line
HC's effort to stop jailbirds from contesting confuses what should be with what is.
The recent judgment by the division bench of Patna High Court debarring all imprisoned persons from contesting elections is a classic example of mixing up the normative (what ought to be) with the positive (what is). The judgment illustrates how even a desirable or ‘morally correct’ result can’t be achieved by an invalid route or incorrect procedure. Indeed, such judicial activism often achieves a result opposite of that intended by the ‘do-gooders’.
The high court, expressing concern over the criminalisation of politics, has held (extrapolating from Section 62(5) of the Representation of People’s Act, 1951, which debars an imprisoned person from voting) that such persons shall also stand disqualified from standing for elections. In doing so, the high court notes the constitutional challenge to Section 62(5) on the ground that the right to vote is a valuable right and should not be taken away merely on imprisonment. The apex court, on more than one occasion, rejected such challenges and upheld Section 62(5).
The high court notes that there is no specific disqualification regarding right to stand as a candidate either in the statute or in the Indian Constitution. But it refers to Article 326 of the Constitution which uses the word ‘crime’ and concludes that this word would include not merely a conviction but even ‘criminality’ (as reflected in finding oneself behind bars) as a disqualification from being a candidate. The high court also relies upon the new obligation of disclosure inserted in the Act in August 2002 regarding information involving (in addition to assets, education, etc.) status as an accused in any pending case punishable with over two years imprisonment where any court has framed a charge. From this, it concludes that the new disclosure requirements indicate “that a new concept was coming... with the purpose of cleansing politics”.
Taking recourse to cricketing terminology, the high court underlines the necessity of having strict rules for the game. In cricket, a LBW ruling is designed to preclude foul play by covering one’s wicket. So, the batsman is given out without him being either bowled or caught. So also, the high court opines, the electoral match cannot allow “foul play” by allowing imprisoned persons to contest.
Finally, the court concludes that one behind bars cannot be treated as an ‘elector’ because an elector is one entitled to vote. An imprisoned person is not entitled to vote, and hence cannot be a candidate.
The high court is to be commended for its zeal in cleansing politics of negative elements but its judgment clearly suffers from flawed reasoning. Two fundamental issues are overlooked. First, disqualification of any kind — especially an electoral one of this kind — must be specifically provided by law and cannot be implied. Basic principles of law tell us that eligibility conditions must exist and be known prior to their application and they must be categoric and specific so as not to catch their subjects by surprise. The basic point about debarring imprisoned persons from voting is part of an existing statute law of India. However, no such bar exists regarding candidates standing for elections, which has been completely missed by the high court.
Second, the high court judgment by its very nature has retrospective operation. It applies instantaneously (till stayed) to all those in prisons who have filed nomination papers. None of them was issued notice or heard before disenfranchising them as a candidate. Many would have completed their elections on April 20 or 26 — the judgment is dated April 30. A few are likely to win, some even by heavy margins. Without even a semblance of natural justice and without giving them an opportunity, the court directs the EC, if necessary, to countermand their elections. Clearly, a case of gross excess of jurisdiction.
Third, the EC is likely to be in a bind on the technical issue of whether this judgment operates within Bihar or has all-India operation. Legal opinion on this is not entirely clear but there is good authority for the view that orders of this nature are not restricted to the parties before the court and not within state boundaries. Such a far-reaching order of an all-India implication requires in-depth examination.
Fourth, the reasoning of the court summarised earlier leaves much to be desired. A bar on an imprisoned person’s right to vote cannot automatically and without legislation be judicially equated to the right of that person to stand as a candidate. A bare perusal of Article 326 and its use of the word ‘crime’ would make it abundantly clear that it is referring to conviction. The newly added disclosure requirements are irrelevant — the issue here is one of disqualification. An LBW is a pre-existing, known, legally mandated rule in cricket, not one created, as in the present case, by the umpire after the ball has been bowled.
Cleansing Indian politics is a serious business requiring legislation. It must start by repealing the special exception and immunity created for sitting MPs convicted of an offence who are excluded from disqualification by the mere act of filing an appeal against conviction, even if the appellate court does not stay the conviction. Second, legislation and not judicial diktat should provide for the regime inaugurated by the Patna judgment.
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