EC welcomes the SC verdict on MPs, MLAs to be disqualified on date of criminal conviction

The Election Commission has welcomed the Supreme Court verdict declaring ultra vires Section 8 (4) of the Representation of the People Act, 1951 that allowed convicted MPs, MLAs and MLCs to continue their membership if they had appealed against their conviction/sentence within three months of the date of judgment. Similarly, it was happy with another order in the judgment that barred jailed persons from contesting polls, “though there are some grey areas in the verdict.”

          An official in the Election Commission said that, EC want to check criminals from contesting polls and becoming people’s representatives, but these reforms have not yet been approved by Parliament. On the order on banning those in jails from contesting polls, he said though under 62 (5) of the RP Act, no person who is in jail/police custody/preventive detention, could participate in polling, there were instances where court’s permission was obtained to exercise their franchise. Even in the Presidential poll, an MP, who was in jail for corruption cases, had voted with the permission of the court.

Some questions:-

If a jailed person is prevented from contesting poll, what will happen if a person is arrested and jailed after his nomination was accepted by the returning officer during scrutiny? Or

What will happen if the person is arrested during the campaign period or on the polling day? Are they eligible to contest the poll or not?”

 The former Chief Election Commissioner, Navin Chawla, too welcomed the verdict as “a step in the right direction.” He wanted the government to approve the Commission’s suggestion for decriminalisation of politics. As per the RP Act, a person, who has been convicted and sentenced to two-year imprisonment or more, cannot contest any poll to Parliament, Legislative Assembly and Legislative Council.

However, in cases relating to dacoity, FERA, rape, dowry, NDPS Act (Narcotic Drugs and Psychotropic Substances Act), POTA (Prevention of Terrorism Act) and bribery, mere conviction would disqualify a person from contesting any election. This is applicable even if the person is on bail after the conviction and his appeal is pending for disposal in the higher court. The disqualification will be in force for six years from the date of release of the person from jail.

An in-depth study by National Election Watch and Association of Democratic Reforms says 31% Mps and MLAs have criminal past
1448 MPs/MLAs have pending criminal cases	At least 82% of the MPs and MLAs elected on JMM tickets declared criminal cases in their affidavits
162 of them are Lok Sabha Members	Lalu Prasad-led RJD has 64% cases	48% of the Mulayam-led SP has criminal cases against them
641 Legislators with grave charges of murder, rape and kidnap among others	In the Congress, 305 of 1433 MPs and MLAs have declared criminal records, accounting to 21%
6 Legislators’ affidavits say they are facing rape charges	Of BJP’s 1017 members, 313 has declared it, amounting to 31% of its legislators

TAINT IN LEGISLATURES
Lok Sabha (543 members)
30% (162 members) have criminal cases against them	14% (77 members) have serious criminal cases against them
MLAs in State Assemblies (4032 members)
31% (1258 members) have criminal cases against them	14% (565 members) have serious criminal cases against them

The Supreme Court held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.

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MPs,MLAs to be disqualified on date of criminal conviction: SC

MPs, MLAs to be disqualified on date of criminal conviction: SC

The Supreme Court held that chargesheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. A Bench of Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional Section 8 (4) of the Representation of the People Act that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.

Section 8 of the RP Act deals with disqualification on conviction for certain offences: A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1) (2) and (3) shall be disqualified from the date of conviction and shall continue to be disqualified for a further period of six years since his release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as they can continue in office even after conviction if an appeal is filed within three months.

The Bench found it unconstitutional that convicted persons could be disqualified from contesting elections but could continue to be Members of Parliament and State Legislatures once elected.

Allowing two writ petitions filed by advocate Lily Thomas and Lok Prahari, through its General Secretary S. N. Shukla, the Bench said: “A reading of the two provisions in Articles 102(1) (e) and 191(1) (e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”

Writing the judgment, Justice Patnaik said: “The language of Articles 102(1) (e) and 191(1) (e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature and for a person to continue as a member of Parliament or the State Legislature has to be the same.”

The Bench said: “Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.”

The Bench held: “Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. 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.”

The Bench said: “Under Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from the date of conviction. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act. Sitting members of Parliament and State Legislature who have already been convicted of any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.”

However, the Bench said: “If any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.”

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EC may deploy EVMs with paper

As the Election Commission (EC) has yet another mammoth task of holding Legislative Assembly polls in Delhi, Madhya Pradesh, Chhattisgarh, Rajasthan and Mizoram before the end of this year. It is planning to deploy, to get feedback and on experimental basis, Electronic Voting Machines (EVMs) with Voter Verifiable Paper Audit Trail (VVPAT), in some constituencies.

A senior EC official told that, EC have to amend the rules relating to this and this has to be done by the Law and Justice ministry based on the recommendations of the Commission. He pointed out that the representatives of the recognised national and State-level political parties, during the all-party meeting held in May, had expressed satisfaction over the functioning of the EVM with VVPAT developed by the EC and made some suggestions for further improvement.

The VVPAT was jointly developed by Electronics Corporation of India Limited (ECIL) and Bharat Electrionics Limited (BEL) and the model has already undergone field trials twice.

 After the improvement made in the VVPAT, a voter who exercises his vote through the ballot unit of the EVM can physically see the printout of the vote cast by him. The name of the candidate, his/her election symbol and his/her serial number in the ballot will be displayed in the printout, although this cannot be taken home by the voter.

Sources said that the Commission, which reviewed the poll preparedness in the five States with the respective Chief Electoral Officers (CEOs), and instructed them to speed up the work related to the elections, would soon be visiting the respective State capitals to meet the political representatives, besides interacting with the State government officials to review preparedness and receive suggestions/feedback.

The progress of preparation of electoral rolls and its summary revision, distribution of the Elector Photo Identity Card (EPIC), selection of polling personnel, setting up of polling stations, transfer/appointment of officials related to poll work, pending execution of non-bailable warrants and preparation/requirement of Electronic Voting Machines (EVMs) were among the subjects covered in the meetings which were held individually with each CEO and their team by the Commission on Thursday and Friday.

The elections are due for the Legislative Assemblies of Madhya Pradesh (total membership 230), Mizoram (40), NCT Delhi (70), Rajasthan (200) and Chhattisgarh (90). The terms of those Assemblies are ending on December 12, 15, 17 and 31 of December this year and January 4, 2014, respectively.

While Shivraj Singh Chauhan and Raman Singh are presently leading the BJP governments in Madhya Pradesh and Chhattisgarh respectively, Sheila Dixit, Lal Thanhawla and Ashok Gehlot are heading the Congress governments in Delhi, Mizoram and Rajasthan.

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EC rejects derecognise of PMK

Rejecting the demands from certain quarters to de-recognise the Pattali Makkal Katchi (PMK) for allegedly promoting “casteism and hatred among various communities”, the Election Commission has made it clear that it had no such powers or provisions to do the same on this charge during the non-election time, even if the allegation is true. Of course, during poll, when the model code of conduct is in force, the Commission, based on the evidences, can issue notice and seek explanation if any such complaint is received. It can even withdraw the recognition if any party fails to fall in line with the directions of the Commission and continue to violate MCC (Model Code of Conduct) provisions.

A political party’s recognition could be withdrawn during the non-poll time – under the Election Symbols (Reservation and Allotment) order, 1968 – only on other issues like not getting a certain percentage of votes/certain number of MLAs, MPs during general elections to the Legislative Assembly/Lok Sabha, and failing to abide by the lawful directions of the Commission. Even not upholding democracy in the party set up or failure to file the mandatory accounts/expenditure of the organisation could also attract de-recognition after the Commission issues notice and not satisfied with the reply.

The official pointed out that the Commission had very little role to play with regard to the allegations like “promoting enmity between communities, castes” vis-a-vis demand for withdrawing recognition of political parties. It is for the other enforcement agencies to pursue such complaints. Withdrawal of recognition to a political party mean that the party will not be invited for the meeting of the representatives of the recognised political parties, convened by the Commission, withdrawing its allotted poll symbol, and such party cannot enjoy other privileges and facilities given by the Commission to the recognised parties.

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