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Updated: October 2, 2013 00:20 IST

Measure for unconstitutional measure

K. Parasaran
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The ordinance seeking to amend the Representation of the People Act interferes with the exercise of judicial power

Bill LXII of 2013, namely, The Representation of the People (Second Amendment and Validation) Bill, 2013 is pending before Parliament. I examine here whether the Bill, when passed as an Act or its provisions promulgated as an Ordinance, will be unconstitutional or not.

Declared principle

The constitutional principle applicable in a situation analogous to this has already been declared five decades ago in the then sensational case of K.M. Nanavati vs State of Bombay (AIR 1961 SC 112). Mr. Nanavati was convicted for an offence under Section 302 of the Indian Penal Code. He held a very high position in the Navy and his services were considered necessary during the pendency of his appeal. In the bona fide exercise of power under Article 161 of the Constitution of India, the Governor of Bombay chose “[…] to suspend the sentence passed by the High Court […] until the appeal intended to be filed by him in the Supreme Court against the conviction and sentence is disposed of […]”

Mr. Nanavati preferred a Special Leave Petition before the Supreme Court. The Supreme Court ruled by a majority of four to one that both Article 142 and Article 161 being provisions in the Constitution should be harmoniously interpreted.

“[…] the order of the Governor granting suspension of the sentence could only operate until the matter became sub-judice in this Court on the filing of the petition for special leave to appeal. After the filing of such a petition, this court was seized of the case, which would be dealt with in accordance with law. It would be for this court […] to pass such orders, as it thinks fit, as to whether the petitioner should be granted bail or surrender to his sentence or to pass such other or further orders as this Court might deem fit in all the circumstances of the case.”

Therefore, the exercise of the ordinance-making power by the President under Article 123 of the Constitution of India in the present case will be unconstitutional. The proposed amendment to Section 8(4) of the Representation of People Act, 1951, by way of Clause 2 of the Bill, provides that the disqualification of an MP/MLA shall not take effect “if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court.”

The proposed amendment to the proviso to Section 8(4) reads:

“Provided that after the date of conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of the Parliament or the Legislature of a State, as the case may be.”

No doubt the proviso will operate only when an appeal or application for revision is filed in respect of such conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court. Subject to what conditions the stay will operate is a matter for the court to decide and the executive/legislature has no jurisdiction in the matter. It is exclusively for the court to decide and by way of a legislative device, the order of the court cannot be modified, varied, or altered as to what restriction will operate on the right of the member consequent on the order of court staying the conviction and/or the sentence. Moreover, in the event of a stay granted by the court without any conditions, it will operate unconditionally.

The aforesaid provision interferes with the power of the court to pass appropriate orders pending the appeal. Though there is no similar provision like Article 142 in respect of the High Courts, the position in law will be the same even in cases of appeals to the High Courts, as such exercise of power by the legislature would interfere with the judicial powers of the High Courts. Even a constitutional amendment will offend the basic feature of the Constitution viz., interfering with the exercise of judicial power.

Suspension of sentence

The exercise of judicial power in suspending a sentence/quashing by appellate courts is provided under Section 389 and 482 of the Criminal Procedure Code respectively. Therefore, an executive order or an ordinance or even an enactment to such effect will amount to interfering with the exercise of judicial power and, hence, will be unconstitutional.

In Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 1590), under the then existing practice, a single Judge of the Hon’ble Supreme Court exercised powers during vacation of the court. Hon’ble Mr. Justice V.R. Krishna Iyer passed interim orders pending Mrs. Indira Gandhi’s appeal against the order setting aside her election. The learned judge beautifully crafted the interim order to point out that she had two capacities, one as the Prime Minister and another as a Member of Parliament. He ruled that —

“(iii) The appellant-petitioner [as] Lok Sabha member, will be entitled to sign the Register kept in the House for that purpose and attend the Sessions of the Lok Sabha, but she will neither participate in the proceedings in the Lok Sabha nor vote nor draw remuneration in her capacity as Member of the Lok Sabha.

(iv) Independently of the restrictions under para III on her Membership of the Lok Sabha, her rights as Prime Minister or Minister, so long as she fills that office, to speak in and otherwise take part in the proceedings of either House of Parliament or a joint sitting of the House (without right to vote) and to discharge other functions such as are laid down in Articles 74, 75, 78, 88, etc., or under any other law, and to draw her salary as Prime Minister, shall not be affected or detracted from on account of the conditions contained in this stay order.”

It may be noted that the court did not permit her as a Member of Parliament to even participate in the proceedings. As a member, she could only sign the register kept in the House and attend the session. The Bill and the Ordinance, however, provide for disqualified members to also take part in proceedings pending the appeal.

In a particular situation where peculiar facts demand that in the interest of the nation, if the court is of the opinion that a disqualified member should be permitted to vote on a particular motion in the House, it may permit him/her to vote. This power of the court is also interfered with by the proposed amendment. There may be special circumstances like the nature of the offences or the peculiar facts of the case or the nature of the subject matter which may have to be voted in Parliament where the court may permit voting, akin to how a convicted person undergoing imprisonment may occasionally be released on parole for any good, compelling reasons.

That the court passes similar orders pending appeal in election matters is not a good reason to support the Ordinance/Act as that is the exercise of judicial power pending appeal which cannot be done by exercise of executive/legislative power.

The Bill, if enacted as law, and/or the Ordinance will also be violative of Article 14 of the Constitution as being arbitrary, discriminatory and irrational.

(The author is currently a Member of Parliament, Rajya Sabha, and former Attorney General of India)

More In: Lead | Opinion

The article was over-jargonised and designed to impress budding lawyers and to confuse the voters.
Simple questions in politics require simple answers(In Yes or No).
Do we need a criminal to compete in elections?
Does conviction by lower court not mean that the man is guilty?
Do we need to go into the whole legal caboozle of appeals to delay the inevitable till the criminal dies?
Lastly,
Are we required to vote at all or the Ordinance would enable the UPA & NDA to do that on our behalf?

from:  S.Pandey
Posted on: Oct 3, 2013 at 17:25 IST

The author has not touched upon the issue that in case the appellate court
completely overturns the judgment of trial court ,say, after five and half years it
will ruin the political life of a person since in that event he is disqualified from
present house of legislature (as per supreme court order) and also will not be
eligible to contest in next elections held in the intervening period due to the
disqualification continuing for six years as per existing law. It would have been
better if the author would have written something new and innovative about the
desirability of pronouncement of judgement by two judges instead of single judge
of the trial court when the future of a person is at stake. Further, has the time not
come to make a law wherein it will be mandatory for the court to annex a
statement with the judgement giving reasons why the judgement has been delayed
for more than two years.

from:  Anand Mohan
Posted on: Oct 2, 2013 at 23:49 IST

The ordinance says "if a MP or MLA is convicted by a lower court and
has appealed for a review in higher court and higher court has found
substance in his appeal and put a stay on the conviction then he is
allowed to take part in the proceedings of the house." What is wrong
with this? Why are we making such an issue of it? Is a person
convicted by lower court has no right to appeal against it just
because he is an MP or MLA? or if an higher court has put a stay on
the conviction, should we still consider the person as convicted or as
accused (i think he should be considered as someone accused because
higher court has better sense of judgement than lower courts)? and one
more thing, why is media projecting Rahul Gandhi as some hero who is
out to cleanse politics and why are we are not talking of Milind Deora
who stood up in parliament and spoke against the bill?

from:  Rahul Choudhary
Posted on: Oct 2, 2013 at 22:50 IST

Government is for the people, from the people, by the people, think about it.
Does it matter to common man.

from:  Pankaj Dhano
Posted on: Oct 2, 2013 at 20:17 IST

Power of the judiciary to discretely pass orders in special situations of National interests put
across by the author, quickly followed by finding fault with 'court passing similar orders
pending appeal in election matters' merits pondering. The discretion is on a subjective
matter that could be interpreted variably left with the dispensing authority. Similar powers are
with the cabinet of ministers on matters related to ordinances. It is when these august
authorities misuse their powers that the National interests derail. We need to be optimistic
that both these authorities do not fail the Nation, God forbid, simultaneously.

from:  M.R.Sampath
Posted on: Oct 2, 2013 at 17:25 IST

The article very aptly puts that judiciary is above legislature.
MOREOVER, the legislature can't misuse its power in an irrational way
for its own interest.

from:  hitesh
Posted on: Oct 2, 2013 at 15:23 IST

This bill is just an attempt by the MPs and MLAs themselves to save themselves from the scourge of being disqualified of their respective positions.But it might happen that any such member might not have committed a crime despite which he gets convicted and might have to lose his seat.But I must say that the author has beautifully,constitutionally and rationally described as to why the provisions of this bill and the ordinance are unconstitutional.Here comes the power of judicial review by which arbitrary legislative action can be checked constitutionally.

from:  Azaat Shatru Kapoor
Posted on: Oct 2, 2013 at 14:07 IST

Rather than contempt of Mahathma gandhi, now the Cabinet has to brace
with contempt of Rahul Gandhi

from:  Prabhu
Posted on: Oct 2, 2013 at 12:20 IST

On a question of fact, Nanavati was Lieutenant Commander which is
equivalent to a major and obviously not a very high position. There are
legal issues in the article which could be contended but that would be
an academic exercise that I do not intend to. Nevertheless I wonder what
kind of advice the present government is getting from its Attorney
General.

from:  Hilary Pais
Posted on: Oct 2, 2013 at 11:49 IST

well said sir...it has drawn the attention to the real core issue of the
matter. the govt. should not only take back the ordinance but should
immediately take back the Bill, if it really want to respond the "will
of the people", as they are pretending to respect.....

from:  Om Prakash Yadav
Posted on: Oct 2, 2013 at 10:30 IST

A good article the people in power should take the advise of constitutional experts. It is better the Government withdraws the bill and save our nation from criminals and looters.

from:  Raghu
Posted on: Oct 2, 2013 at 07:22 IST

Lawmakers can draft laws and supreme court has to abide with that. Supreme court has powers to interpret the constitution and not put executuve orders. In this case, law makers have nullified the argument and supreme court has got to rewrite the judgement.

Looks strange, but this is the fact.

from:  Vinoo
Posted on: Oct 2, 2013 at 02:01 IST

'The Bill, if enacted as law, and/or the Ordinance will also be violative
of Article 14 of the Constitution as being arbitrary, discriminatory and
irrational.'
~And,worse still, it will be Contempt of Mahatma Gandhi.

from:  Soundararajan Srinivasa
Posted on: Oct 2, 2013 at 01:26 IST
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