The controversy over the recent decision of a division bench of the Supreme Court declaring ultra vires Section 8(4) of the Representation of the People Act, 1951 seems to be turning into a legal debate as legal experts are questioning how come such order could be passed when a Constitution Bench of the apex court already declared that the provision was “not unreasonable”.
Section 8(4) of the RP Act allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within three months of the date of judgment by the trial court.
Senior lawyer and former member of Rajya Sabha from DMK, R. Shanmugasundaram, told The Hindu on Friday that he had doubts whether the latest verdict would stand the test of law as a Constitution Bench of the Supreme Court, on January 11, 2005, in the K. Prabhakaran vs P. Jayarajan case had stated that: “The persons falling in the two groups [those who are convicted before the poll and those convicted while being MP/MLA or MLC] are well defined and determinable groups and, therefore, form two definite classes. Such classification cannot be said to be unreasonable as it is based on a well laid down differentia and has nexus with a public purpose sought to be achieved.”
The Constitution Bench — headed by then Chief Justice R. C. Lahoti and consisting of Justice Shivaraj V. Patil, Justice K. G. Balakrishnan, Justice B. N. Srikrishna and Justice G. P. Mathur — had even observed that Section 8 (4) of the RP Act was an “exception.” It said that “Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RP Act.”
Another renowned lawyer and Tamil Nadu Congress Committee president B.S. Gnanadesikan said the legal issue involved now was whether the Division Bench could deviate from the verdict of the Constitution Bench. The exception from disqualification given to the elected representatives under Section 8 (4) of the RP Act (provided they appealed against their conviction within three months) was a well thought out provision in the interest of the country and under the special circumstances.
Mr. Gnanadesikan suggested that a special legislation could be enacted to ensure that such appeal (against conviction) of the elected representatives should be disposed off within a month by the court concerned.
Legal experts pointed out that the Constitution Bench in 2005, while dealing with Section 8 (4) of RP Act had observed:
“Once the elections have been held and a House has come into existence, it may be that a member of the House is convicted and sentenced. Such a situation needs to be dealt with on a different footing. Here the stress is not merely on the right of an individual to contest an election or to continue as a member of a House, but the very existence and continuity of a House democratically constituted.”
“If a member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow. First, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted member may belong. The government in power may be surviving on a razor edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.”
“Secondly, by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court. Such reasons seem to have persuaded the Parliament to classify the sitting members of a House into a separate category.”
“..The disqualification provision must have a substantial and reasonable nexus with the object sought to be achieved and the provision should be interpreted with the flavour of reality bearing in mind the object for enactment.”
“Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3) of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3) is founded on the factum of membership of a House. The purpose of carving out such an exception is not to confer an advantage on any person; the purpose is to protect the House.”
