Disqualified order on disqualification

Until August 1997, the Election Commission followed the procedure that a person, convicted under one or other of the statutory provisions of disqualification and released on bail during the pendency of his appeal, is not disqualified for contesting an election. This view has been nurtured by long years of interpretation and numerous decisions given by the Supreme Court. It has been made clear that the right of filing an appeal is part of natural justice and that ``every step that makes the right of appeal fruitful is obligatory and every action or inaction which stultifies it is unfair and ergo unconstitutional''.

The Election Commission issued an order on August 28, 1997 with instructions to the Returning Officers that disqualification under Sec. 8 would commence from the date of conviction, `regardless of whether the person intending to be a candidate is out on bail or not'. This was contrary to the position taken by the apex court and followed by the EC for over 46 years in the past. To justify its departure from the established practice, the Election Commission in its order has cited judgments of the Madhya Pradesh High Court in Purushottamal Kausik v Vidya Charan Shukla, of the Allahabad High Court in Sachindra Nath Tripathi v Doodnath, the Himachal Pradesh Court in `Vikram Anand v Rakesh Singha etc.'

The Commission referred only to some of the decisions of the High Courts and there are many judgments of the other High Courts that are not in favour of the decision now taken by the EC. However, we have to see how far the Supreme Court, the final forum for judicial authority, accepted or reversed on appeal those judgments referred to in the order. The first mentioned case was about a complaint against Mr. Vidya Charan Shukla, who, as Minister of State for Information and Broadcasting during 1975- 77, was accused of preventing release of a film `Kissa Kursi Ka' (a satire on the establishment). The producer of that film was Amrit Nahata, a Congress MP from 1967 to 77. After the period of emergency, Nahata filed a criminal case against Mr. Shukla. In February 1979, the court convicted and sentenced Mr. Shukla to two years' imprisonment. He came out on bail and filed his nomination in December 1979 to contest the 1980 January parliamentary election. The opposing candidate raised objection under Sec. 8 (3); but the Returning Officer accepted the nomination overruling the objection and Mr. Shukla won the election. On the election petition preferred by the losing candidate, the Madhya Pradesh HC held that the nomination of Mr. Shukla was improperly accepted, on the ground that he stood disqualified on the date of nomination.

In its order, the Election Commission has referred to the judgment of the Madhya Pradesh HC in this case, but conveniently omitted to deal with the reversal of this judgment later by the Supreme Court. During the pendency of the election case, there was acquittal of Mr. Shukla by the appellate court in the criminal case. The Supreme Court took the view that his acquittal by the appellate court had rendered the disqualification annulled retrospectively from its inception. The Supreme Court also made, with foresight, a pertinent observation about the possibility of a case in which a candidate's nomination is rejected on account of disqualification on the date of nomination and subsequently his conviction is set aside in the final judgment, obliterating the disqualification with retrospective effect. The SC observation pinpoints the irreversible damage that will be caused if the Returning Officers are instructed to reject nominations during the pendency of appeal.

In the case of Rakesh Singha, there were two appeals, one against his conviction in the criminal case and another against the judgment of the HC setting aside his election. It may be noted that when the Supreme Court first dismissed the appeal in the criminal case, both sides agreed not to press further. So the question of disqualification was not at all argued before the Supreme Court then. Regarding the Tripathi case, it is not known whether there was an appeal in the apex court.

Leaving aside all other judgments of various High Courts, there is the latest one at the Madras High Court on the specific issue leading to disqualification of AIADMK leader, Ms. Jayalalitha and the learned judge has said that conviction and punishment are inseparable and that there should be no disqualification for the appellant to contest the election.

Erroneous rejection of a valid nomination not only causes irreversible damage to the nominee, but also distorts the conduct of fair election. Ironically, the Returning Officer of Kottarakara has adopted a different norm by accepting the nomination of Mr. Balakrishna Pillai who has been convicted and sentenced to five years imprisonment in a criminal case. Acceptance of his nomination papers has invited strong disapproval from the discerning public including that of the veteran jurist, Justice V. R. Krishna Iyer.

Sec. 8 (4) provides that, in the case of a person who on the date of his conviction is a Member of Parliament or a State Legislature, disqualification shall not take effect for three months from the date of conviction, or if within that period an appeal is made, until that appeal is disposed of by the court.

Mr. Balakrishna Pillai is a sitting member of the Kerala Assembly. Probably the Returning Officer made his decision on the exemption given in Sec. 8 (4) to legislators. If so, he has woefully failed to understand the letter and spirit of Sec. 8 (4). The sub-section gives only protection to a legislator against vacation of his seat in the legislature until the final judgment of the appellate court. Also such protection will be there as long as his membership lasts within the term of the particular Assembly. Suppose, the duration of a State Assembly is five years - from May 1, 1996 to April 30, 2001. A member of such an Assembly shall get the protection of Sec. 8 (4) only during this period of five years and not beyond it.

Further, the protection given is for his `being a member', not for `being chosen as a member'. A member of an Assembly with a conviction and punishment for more than two years cannot contest an election to the Lok Sabha on the basis of protection given under Sec. 8 (4) to him as a member of the Assembly.

If Mr. Balakrishna Pillai gets elected somehow even under this invalid nomination, the new Assembly constituted after the election will not be able to give him protection under Sec. 8 (4) as his conviction and punishment have been incurred before the commencement of that Assembly. The only justification for acceptance of nomination of a sitting MLA will be not on the basis of Sec. 8 (4), but under the previous practice of Sec. 8 (3) that allowed persons to contest elections during pendency of appeal. Mr. Balakrishna Pillai should have been debarred if the Returning Officer applied the instructions given by the recent order of the Election Commission.

Over and above all these things, I strongly feel that there is no legal validity for the 1997 August order of the Election Commission. There are Constitutional provisions for certain qualifications for the membership of Parliament under Art.84 and for that of State Legislatures under Art.173. There are some basic disqualifications laid down in Art.102 for Parliament and Art.191 for State Legislatures. The Tenth Schedule also has prescribed some disqualifications.

In addition to these, Parliament has provided `Qualifications and Disqualifications' in Part III of the Representation of the People Act. The much-discussed disqualifications are covered under Sec.8 of the Election Law. Thus we have enough statutory provisions on qualifications and disqualifications for contesting election and for being member of a legislature. Further, under the Constitution, we have the judiciary to give decisions in cases of disputes and to interpret the constitutional and statutory provisions wherever needed. If a change in the law or in its application is to be made, it can be done only by Parliament by amending the provisions involved or by the court by its interpretation and decision.

Contrary to the statutory provisions and judicial decisions available hitherto, the Election Commission took a decision to issue an order on August 28, 1997 under the `powers vested by Article 324 of the Constitution'. It is true that for conduct of fair and free elections, the Constitution and the Election Law have vested the EC with enough powers. But there is a limitation to the powers vested in the Election Commission under Art.324. In the case of Mohinder Gill v Chief Election Commissioner (1978 AIR SC 851), Justice V. R. Krishna Iyer, speaking for the Court said: ``And the supremacy of valid law over the Commission argues itself. No one is an imperium in imperio in our constitutional order. It is reasonable to hold that the Commission cannot defy the law armed by Art.324. Likewise, his functions are subject to the norms of fairness and he cannot act arbitrarily. Untouched power is alien to our system... Art.324 in our view operates in areas unoccupied by legislation and the words `superintendence, direction and control' as well as `conduct of all elections' are the broadest terms.''

As warned by the Supreme Court, the Commission cannot, in the name of Art.324, defy the law established by Parliament and act arbitrarily. The order of August 1997 is illegal and invalid; it is a clear case of arbitrary action and of deliberate defiance of Parliament and the Court.

I am not here to go into the merits of the cases and convictions given. But I apprehend that the 1997 order of the Election Commission will open the flood gates for those in power to foist innumerable cases against the political activists in the Opposition and twist the legal procedures to get early convictions to bring the accused under one of other of the sections resulting in disqualification. Then, the Returning Officers will act according to the EC order to reject nominations on the ground that the disqualification takes effect from the date of conviction irrespective of the fact whether the convicted person is released on bail or not during the pendency of appeal. It may be easy for those in power to fix grievous charges under many serious offences in IPC like 153A and a simple punishment in a lower court for one hour will debar a person from contesting or being in a legislature for several years to come.

(The writer is a former Member of Parliament.)

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