New Delhi: The Supreme Court on Wednesday ruled that MPs and MLAs should quit immediately if they are convicted of criminal charges, irrespective of the scope for an appeal, dramatically increasing the chances that the Indian political system could be in for a bout of cleansing.
The apex court has struck down as invalid a provision in the Representation of the People Act that allows convicted lawmakers a three-month window for appeals. Those who have already filed appeals against convictions are exempt from the ruling.
Experts and activists say this could be a boost to the growing demand for more transparency and accountability among the political class as parties may be reluctant to give tickets to those who face a plethora of charges, regardless of their ability to win an election.
The ruling is expected to plug the loophole through which lawmakers could file repeated appeals against their convictions, allowing them to stay in power by taking advantage of the country’s slow-moving justice system.
“This ruling has given clarity for an incongruous position that a person cannot contest election if he is convicted but can continue as a lawmaker if the conviction takes place after he or she becomes a lawmaker. This is a first step. The next step should be to disallow all those charged with criminal cases from contesting elections,” said Subhash Kashyap, a constitutional expert, and one of those who have been vigorously advocating such a measure.
A two-member bench consisting of A.K. Patnaik and Sudhansu Jyoti Mukhopadhaya said Section 8 (4) of the Representation of the People Act states that “disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislature of a state, take effect until three months” have elapsed.
Both the ruling Congress and the main opposition Bharatiya Janata Party (BJP) have welcomed the decision while the Left parties trod a cautious line, saying that the party would react only after going through the entire judgement.
The number of lawmakers charged with criminal offences has multiplied in the past decade.
According to the Association for Democratic Reforms (ADR), a non-profit organisation that campaigns for transparency and accountability in public life, out of 4,807 members of Parliament (MPs) and members of the legislative assemblies (MLAs) analysed by it, 1,406, or 30%, face criminal cases. 688 sitting MPs/MLAs are facing serious criminal charges against them.
To be sure, this data pertains to charges and not convictions.
The ruling United Progressive Alliance has, in its second term in power, been buffeted by a series of controversies related to corruption, including the so-called 2G scam—related to allotment of telecom licences and spectrum to some companies on favourable terms— and the coal allotment controversy (related to the improper allotment of captive coal mines).
The controversies have forced several ministers to resign and some of them, and some others, are being investigated by various agencies in connection with charges filed against them. None of its ministers or former ministers have been convicted. The government was also discomfited, albeit temporarily, by a popular anti-corruption movement led by activist Anna Hazare.
The Representation of the People Act seeks to bar a person from contesting elections for six years for a conviction in a criminal case with two years imprisonment.
The apex court, which issued the ruling on a public interest litigation (PIL) filed by advocate Lily Thomas, said Parliament does not have the powers 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”.
The judgement further said: “To put it differently, if because of a disqualification, a person cannot be chosen as a member of Parliament or state legislature, for the same disqualification, he cannot continue as a member of Parliament or the state legislature.”
The argument against this by the Union of India was that such disqualifications would reduce the strength of the House and weaken the government if such members belonged to the ruling party.
“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 and 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,” the government argued.
Those who opposed the petition also pointed out that a by-election would be necessitated and it would lead to complications in the event of the convicted member being acquitted by a superior criminal court.
Activists welcomed the ruling.
“This is a very, very important step. Like other things, our political leaders have put various safeguards to keep themselves unaccountable (and this will change that),” said Anil Bairwal, national coordinator of ADR.