Following document is a transcript of a discussion held between Kumar Vivek, Narinder Pal Singh and Tauseef on RPA.
Representation of people Act: Whole episode
We hope the basics are clear so we are delving more on recent debates, verdicts and aftermath like Amendments and Ordinance episode.
First of all we should understand how and why the dormant case came into being when the provision was there from the act of 1951.
It all started with the case of Jan Chowkidar, a Patna based NGO when Central Election Commission filed a petition in Supreme Court against the verdict of Patna High Court.
Why CEC filed the petition and on what ground? What was the reason on which Jan Chowkidar filed the case in High court?
For this to understand, we need to heed on the provisions of RPA and articles of our constitution.
Section 62 of RPA, Act 1951, says
Only an elector can be a representative, if a person is not qualified for vote, he cannot represent the people.
If a person is in jail or lawful detention at the time of elections, he shall not be eligible for voting. However if the person is in preventive detention, he can vote.
The Jan Chowkidar case was based on the above provisions that if only an elector can be a representative then how those who ceased being an elector on account of jail or custody, can contest election.
Patna high court in Jan chowkidar petition said: If a person in custody is disqualified to vote, he or she must be disqualified from contesting an election too.
It says that “right to vote is a statutory right, not absolute, so it can be taken away”.
This verdict was challenged by CEC in SC, but SC held the validity of HC and rejected the petition of CEC.
SC said “by virtue of these acts, a person who has no right to vote by virtue of provision of section 62(5) of RPA, 1951 is not an elector and is therefore cease to contest the election to the house of people or legislative assembly.
What is there in section 62(5) of the RPA?
It debars persons who are in jail or in police custody from voting.
There are various other articles and sections that need to be taken care of while understanding the whole issue.
What is there in Art 102 and 191?
They contain the conditions under which an elected MP and MLA respectively can be disqualified. There are essentially 5 conditions: office of profit, unsound mind, un discharged insolvent, not a citizen of India and under any law made by Parliament.
So, in accordance with the 5th condition the Parliament enacted RPA 1951.
What do we mean by Art 102 and 191 then?
They simply convey one message: In case of an MP or MLA being disqualified under any of the circumstances mentioned in Articles 102 or 191 respectively, such MP or MLA’s seat “shall thereupon become vacant”.
What is there in section 2(e) of the RPA?
It defines an elector as a person whose name is entered in the electoral roll of that constituency and who is not subject to disqualifications mentioned in section 16 of the RPA.
What is there in section 8(4) of the RPA?
It has given an exception to the seating MPs and MLAs wherein upon conviction they are given a 3 months period to appeal in the High Court. There disqualification ceases until the disposal of their appeal.
So what is the problem?
The exception was being misused by the MPs and MLAs keeping in mind the judicial delays. They continued attending parliamentary proceeding, framing laws and acting as active members of the executive.
So Lily Thomas and Prahari NGO challenged the constitutional validity of section 8(4) of the RPA.
What did SC say?
It declared section 8(4) of the RPA ultra vires.
The constitution had mandated the Parliament to enact laws for disqualification under Art 102. So Parliament enacted RPA. But the parliament is not authorized to create exceptions because as soon as a person is convicted Art, 101 will come into picture. And as we all know the Parliamentary laws cannot supersede Constitutional provisions, the SC struck 8(4) down.
Can candidates who are in jail or detained contest elections? What SC had to say?
If a person has been convicted or taken into custody or has been detained, he loses his liberty and thus becomes ineligible for filing his nomination for contesting any election.
Possibility of misuse by the political parties.
What about activists turned politicians? If the same is applied then many present leaders would be disqualified from the Parliament.
62(5) debar them from voting and not contesting elections.
Moreover it is a matter of interpretation by the SC which had relied on 2(e) for the definition of elector. There is difference between voter and elector!!!
RPA amendment in the pipeline…The ‘nonsense’ episode…!
With 8(4), SC declared it unconstitutional on the ground that if a person is not eligible to be a candidate to be elected if there are criminal cases according to 102 article, then elected representative who is convicted, how it can still govern us while being convicted. There is ambiguity that on one hand we are saying convicted person can’t stand for elections and on the other hand by being elected and then if some criminal case. They can happily file APPEAL and enjoy.
8(4) say that MP or MLA who is convicted can file an appeal in higher courts within 90 days and there is provision that no action will be taken on them for 90 days. Within this period they can file an appeal and they usually file it. Our overburdened judiciary is not so quick to handle the cases and so these appeals remain pending and our CONVICTED POLITICIANS still rule us…
Regarding 62(5),Patna High court give its decision in 2004 in Chief Election Commissioner v. Jan Chawkidar case that “when a person in custody was disqualified to vote he/she was also disqualified from contesting the elections”.
HC gave its decision that person convicted is not eligible for Voting and accordingly is not an “elector” and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951 Act.
ELECTOR: It is a person whose name is on the electoral list.
VOTER: who is eligible for voting but may not be on the electoral list.
Recent 10 July SC judgment says RP (Amendment and Validation) Act, 2013, which says “… by reasons 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.”
So they mean that person who is on the electoral list whether be in jail or not is able to vote and contest elections.
Now the summary of whole episode:
As we discussed about Jan Chowkidar case and CEC petition against HC and then SC verdict.
Now let us shed some light on Lily Thomas Vs Union of India case, 2004. And the amendment carried out later on. We will look how RPA First (Amendment and Validation) Act came into being and Second Amendment, which was forced by Ordinance, was retrieved.
Now we very well understand what is the controversy regarding 8(4) of RPA.
So this section was challenged by Lily Thomas, in case Lily Thomas vs Union of India.
Why SC nullified this section?
SC verdict used some wisdom from article 102(e) and article 191(e) of the Constitution.
Article 102(e) of the Constitution says that, Parliament can make law providing for circumstances whereby MPs shall stand disqualified from the membership of either house of Parliament. And article 191(e) says the same thing about MLAs.
It means that although Constitution empowers Parliament to make law to decide on disqualification of members, it doesn’t give power to Parliament to Protect and Preserve the membership of the candidate if he/she is convicted of a crime.
Arguments of Union of India:
The legislative competence of Parliament doesn’t come from Articles 102 and 191, but from Article 246 read with entry 97 of the Union list under Schedule 7, which says Parliament is competent to make laws under Residuary Subjects.
The GOI, without waiting for the review by SC introduced Representation of People (First Amendment and Validation Bill, 2013 and it was passed with speed of sound by Rajya Sabha and it got President assent to become RPA (First Amendment and Validation) Act, 2013.
As per this act, a person whose name has been entered in the electoral roll shall not cease to be an elector.
The GOI again rushed for RPA(Second Amendment and Validation) Bill, 2013 against Lily Thomas case and even introduced an Ordinance but due to stringent opposition (and some mocking incidence of Rahul Gandhi ), the Ordinance was pulled back with the same speed.