Supreme Court vs Parliament in criminal stand-off

Even as Parliament passed a bill late on Friday that maintains the right of lawmakers in jail to contest polls, the Supreme Court has asked the Centre to enforce its order for the immediate disqualification of sitting MPs, MLAs and MLCs who have been convicted for an offence attracting a sentence of two years or more.

While the government and Parliament maintain that the apex court's ruling is wrong and that Parliament has right and duty to resort to constitutional remedies to correct such anomalies, the Supreme Court has reiterated that sitting Members of Parliament and state legislators are no longer protected by Clause 4 of Section 8 of the Representation of People's Act.

On Friday, the Representation of the People (Amendment and Validation) Bill, 2013, was rushed through in the Lok Sabha and passed within 15 minutes after a brief discussion.

Some members wanted an elaborate debate on the Bill, but the overwhelming majority of the House, including Leader of Opposition Sushma Swaraj, pushed for its passage even without discussion.

The Bill negates the Supreme Court's July 10 order, which held that those in jail cannot vote as per the RP Act, and hence, do not qualify for contesting general or state assembly elections. The Bill was passed by Rajya Sabha on August 27. 

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Union Law and Justice Minister Kapil Sibal on Friday said, “The Supreme Court is right because it is final, it is not right because it is right.”

“There is a general negative perception in the country that all politicians are criminals. Courts are enthusiastic to prove us so, even if we are not so. Courts have to be extremely careful while delivering judgements which have an impact on the polity of the country."

"I have greatest respect for the judiciary and that is why we never make adverse comments against any judge or court," he said in response to BJP leader Ravi Shankar Prasad's remarks.

The law minister said the verdict of a court to bar persons in jail from contesting elections was "clearly erroneous" as the matters or right to vote and right to be on electoral roll were being dealt by separate sections in the Constitution and till proven guilty, every one was to be taken as innocent.

"We are fallible, we commit mistakes and the judges can also commit mistakes… the judiciary should be extremely careful while giving judgements which can affect the polity of the country," he said. 

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Noting that the "delicate balance" between the various institutions of the Constitution has been disturbed, Sibal said there was an environment of "mistrust" in which the political class was dubbed as criminal.

Talking about the apprehensions caused by the apex court verdict, he said, "If an SHO decides to detain you on the eve of elections, then you cannot file nominations."

The Amendment Bill seeks to add a proviso to sub-section (2) of section 62 of the RP Act to state that a person cannot cease to be a voter while in detention as his or her right is only temporarily suspended.

One of the amendments states that as the name of the jailed person continues to be on the electoral rolls, he or she also continues to be an elector and can file nomination for an election.

"Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector," the proviso reads. 

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The amendment shall come into effect from July 10, 2013, the day the Supreme Court gave the judgement.

After examining the Supreme Court order, the government had filed a review petition, but instead of waiting for the outcome, it felt the need to "suitably" address the situation, the Statement of Objects and Reasons of the Bill states.

The apex court had on Wednesday agreed to review the judgement. In its verdict, the apex court had ruled that only an "elector" can contest the polls and he or she ceases the right to cast a vote due to confinement in prison or being in custody of police.

The court had, however, made it clear that disqualification would not be applicable to persons subjected to preventive detention under any law.