2013 Amendment to RoPA, Jan Chowkidar and Lily Thomas Case

The Jan Chowkidar (People’s watch) is a Patna based NGO. Its plea in Supreme Court had created a lots of political drama back in 2013. The plea was around the Sections 62 of the RoPA 1951. Section 62 of the act said that:

Only an elector can be a representative. If a person is not qualified to vote, he cannot represent the people.

Section 62 implies that if a person is jailed or in lawful detention at the time of elections, he shall not be eligible for voting. However, if a person is in preventive custody, he can vote.

The question of Jan Chowkidar was that – If only an elector can be representative, then how those who lose being an elector on account of their jail or custody, can contest the elections?

In 2004, the Patna High Court had that when a person in custody is disqualified from voting he or she must be disqualified from contesting in elections too. Here is what HC noted:

A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is [a] privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls”

The HC verdict was challenged by Chief Election Commissioner in the Supreme Court. The two member bench of Supreme Court dismissed this appeal and upheld the decision of the Patna High Court. Supreme Court also said that by virtue of these acts, a person who has no right to vote by virtue of the provisions of Section 62 (5) of the Representation of the People Act 1951 is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State.”

Lily Thomas vs. Union of India 2004 Case

The Representation of Peoples Act provides that- if a person is convicted under a punishable offence related to so and so crimes; he will be disqualified if sent to jail for at least 2 years.

This provision is in Section 8 of the 1951 act. However, section 8(4) of the same act says that if the person is an MP or MLA on the time of conviction; and this MP or MLA appeals within the three months of conviction date for revision of such conviction will not get disqualified. This can be illustrated by an example:

Suppose a Neta X is an MP who is today convicted by a session’s court and sent for jail for 4 years. Now According to section 8, this person should disqualify from the membership of parliament.

However, Netaji approaches to high court and appeals against the decision of the session court within 90 days from today. Now, dramatically, section 8(4) if the same act would become his savior and “preserve” his membership.

This savior section of the convicted politicos was challenged in court in the Lily Thomas v. Union of India case. In the verdict on this case, what Supreme Court did was that it simply nullified this section and declared that this is unconstitutional and void.

The Supreme Court verdict used some wisdom from article 102(1)(e) and 191(1)(e) of the constitution.

Article 102(1)(e) of the Constitution says that the Parliament can make a law providing for circumstances whereby a MP shall stand disqualified from the membership of either house of the Parliament.  Article 191(1)(e) says the same thing about MLAs.  This implies that although constitution empowers the parliament to make law to “decide on disqualification” of the members, it does not give competence to parliament to “preserve and protect” the membership of those who have been convicted for some crimes.

The advocate who argued for the petitioners (Fali Nariman) argued that constitution does not empower the parliament to make a law that actually protects and preserves the membership of a sitting MP or MLA even after conviction in a criminal case. The basis of this argument is that if the Parliament is not expressly allowed by the Constitution to pass laws on a given subject, it cannot pass a law on that subject.

The advocates for the Union of India argued on the following basis:

Parliament is constitutionally competent to declare under whatever circumstances a MP or MLA will stand disqualified. This competency also includes in itself to temporarily postpone the effect of such disqualification.

The legislative competence of the parliament does not comes from article 102(1)(e) and 191(1)(e) but from article 246 read with entry 97 of Union List of the 7th schedule which says that parliament is empowered to make laws on residuary subjects. Simply, it means that if a given subject is not mentioned in any of the three lists in Schedule 7, then, for the purposes of determining ‘legislative competence’ (i.e. who is competent to pass a law on the subject) it will automatically fall into Union List.

Thus, we see that the Government’s advocates tried to establish that this matter is a residual matter and falls in the ambit of the Union List. Supreme Court did not buy this idea.

The above two judgments were lethal weapons for the membership of many prominent netas whose conviction was nearby. The first thing government did after these verdicts was to consult the matter with Attorney General of India, who advised them to file a review petition in the Supreme Court. Without waiting for the judgment on review petition, almost entire political line joined hands and immediately, the Representation of the People (Amendment and Validation) Bill, 2013 was introduced in the Rajya Sabha in last week of the August 2013.  Rajya sabha passed it with the speed of light. In first week of September, the bill was passed by Lok Sabha also. It was about to become an act that government behaved like an old man in hurry and sought the back door entry of Representation of the People (Amendment and Validation) ordinance 2013. What the government wanted to is that:

  • To nullify the Supreme Court judgment and assert parliamentary supremacy (over judiciary).
  • Even if a person is prohibited from voting due to being in police custody or in jail, as long as his name is entered on the electoral roll he shall not cease to be an elector.
  • Change the definition of being “disqualified”. According to the new definition, the disqualification has to be on certain specified offences and can be on no other ground.

However, when a press conference of UPA was being held, Rahul Gandhi publicly berated the government’s controversial ordinance to shield convicted politicians, in a dramatic intervention. Subsequently, UPA dropped the idea of that ordinance.

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