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Section 8 (4) of Representation of the People Act Is Constitutionally Invalid

Sanjeev Sirohi ,
  08 October 2021       Share Bookmark

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At the outset, I would like to make it crystal clear that I personally very strongly feel that there cannot be two different set of rules - one for the people constituting the ruled class and other for the elected elite comprising of MP and MLA constituting the ruling class. But this is the crowning irony which most unfortunately has been going on since independence till now in 2021 also. It is high time and now this open and worst discrimination favouring politicians must end once and for all!

Simply put, there should be certainly now more strict rules in place for MPs and MLAs as they are elected representatives who have to be more accountable but what we are seeing in India is just the exact opposite! MPs and MLAs misbehave in the worst possible manner and we saw how when just a short time back there was ruckus in Parliament, we witnessed the worst behavior of MPs right inside Parliament which tormented our Vice President M Venkaiah Naidu to the extent that he cried in Rajya Sabha on August 11, 2021 while presiding as Chairman! He said that, 'All sacredness of this House was destroyed yesterday when some members sat on the tables and some climbed on the tables.' Even though the House was to function till August 13 but it got adjourned earlier with no chance of functioning due to the rowdy behaviour! Most shameful and disgraceful!

It must be pertinently asked: When politicians wield maximum power then should they not be subjected to strict rules too? Why should they be given relaxation everywhere? Why should they be also not held liable for their misdeeds and barred from becoming MPs and MLAs if they are found to be involved in any wrong doing? It must also be said in simple, straightforward and suave language that, 'What an unbeatable irony that to become an army officer or judge or any other government job , there is proper police verification done and there should be no criminal pending case but to become an MP or MLA , you can murder thousands of innocents, rape as many women as you like, be named in any number of extortion or robbery or dacoity or any other case and yet the doors of Parliament and Vidhan Sabhas welcome you with folded hands! Like late Phoolan Devi and so also many others like her, you can murder scores of people and yet become an MP or MLA even while in jail! Nothing on earth can be more shameful than this!' It must be said upfront that this mockery of the worst kind that makes us a laughing stock in front of the world must end now once and for all!

But what an unbeatable irony that our political class is still just not at all prepared to say that, 'Enough is enough! No more will any person who has any serious case pending against him/her shall be allotted party ticket and the oft-repeated pernicious argument that the case is politically motivated shall not be accepted under any circumstances. Laws should be amended regarding this to expressly bar such criminals from entering politics.'

It is the worst travesty of justice and our democratic system that those accused of heinous crimes like rape and murder are made not just MPs and MLAs but ministers also and that too Cabinet ministers of important portfolios. What is this? Still not one leader in India in power since 1947 has seriously addressed this severe malaise which is corroding our nation from within!

Needless to say, it is not surprising that too very often MPs and MLAs are caught on the wrong foot by indulging in rowdy behaviour and yet nothing happens to them! Things have come to such a pass that now since last two decades or more, they have even started holding talks with terrorists like VVIPs, wield political clout to withdraw terror cases against terrorists, refuse to hang terrorists and rapists even after they are convicted by the Supreme Court and their mercy petitions keep dragging for decades as we saw in case of killers of our former PM late Rajiv Gandhi who were not hanged for decades as their mercy petition kept pending for decades and all this in the name of 'due process of law' and 'let the law take its own course'. This only reflects the worst hypocrisy and how politicians are not at all seriously interested in eliminating terrorism from our country!

Truth be told, we all know this all too well that none other than the Supreme Court itself had on January 10, 2013 posed an ineluctable question to the Centre that, 'Should a sitting MP or MLA, convicted of a heinous crime, be treated differently from a common citizen held guilty by the court on similar count?' It also sought a detailed response from it on the constitutional validity of Section 8 (4) of Representation of the People Act which permits for special treatment for elected representatives. I must disclose here that Section 8 lists serious offences and stipulates that any person convicted for any of those and sentenced to imprisonment for two years or more will be debarred from contesting elections, and that the disqualification should remain in force from the date of conviction and until six years after release from prison.

It merits no reiteration that strict rules as are applicable for joining army or police or judge or any other public service should be equally applicable to MPs and MLAs also without fail. Only then will we see a drastic improvement in the conduct of MPs and MLAs in Parliament and State Assembly which is the crying need of the hour also! But sadly this can never be possible because those having criminal cases pending against them even though are in a minority but remote control the majority and will never allow such a legislation to ever take effect even in embryonic stage. Still we must sustain hope that one day this too shall become a reality!

Let me also point out here that the Supreme Court bench comprising of the then Justices AK Patnaik and Gyan Sudha Mishra had posed the question stated above after the eminent senior lawyer and constitutional expert Fali S Nariman said the discriminatory provision was the first hurdle in the fight against criminalization of politics and ought to be struck down on the ground that it was in conflict with equality of law guaranteed under the Constitution. It also merits elaboration here that while seeking the Apex Court’s intervention, Nariman argued that Parliament could not be expected to act on its own in the matter, given that 274 out of 547 MPs in the Lok Sabha were facing criminal trials for serious offences. He also was at pains to point out that the razor - thin majority that governments enjoy in the coalition era leaves them with no room for such a move. What Nariman has stated is nothing but the gospel truth!

It goes without saying that what I find most objectionable is that Section 8 (4) of the Representation of the People’s Act makes an exception in favour of sitting MPs and MLAs, saying disqualification on conviction would not apply to sitting MPs or MLAs for three months and not until disposal of his appeal filed within the 90-day window. Fali S Nariman while appearing for the petitioner Lily Thomas slammed Section 8 (4) of the Act as discriminatory and violative of Article 14 of the Constitution. It is unfortunate in the extreme that as Nariman said: 'Section 8 (4) creates two classes of convicts - one, the common man who on conviction cannot contest elections for MPs and MLAs, and second, sitting MPs and MLAs who would continue to be treated as not convicted despite being found guilty for an offence by a court of law.' This merits prompt redressal right now. It certainly cannot be kept in abeyance any longer as already much water has flown under the bridge!

It is a no-brainer that even the Bench too also agreed fully, firmly and finally with Nariman that there has to be constitutional solution to this issue and said it would examine the constitutional validity of Section 8 (4) of the Act as prima facie it appeared to suggest that a common man remained convicted till the appellate court absolved him but an MP or MLA did not face the rigour of conviction by filing a mere appeal. The Supreme Court asked the Centre to file its response within four weeks. It was not much convinced by the contention of the Additional Solicitor General Paras Kuhad that the issue was settled in 2005 by a Constitution bench of the Supreme Court which had observed that given the razor - thin majority enjoyed by ruling dispensations, if MPs and MLAs were disqualified on their conviction during the tenure of the House, then the democratically elected government could face serious problems. This dubious double standards must now end once and for all.

It must be underscored that the MPs and MLAs whether sitting or fresh must also be subject to the same strictest parameters as we see in any other public service like in army, police, judge etc. This is the crying need of the hour also! This obviously does not suit the political class but can their interest be above national interests?

Certainly not but as they rule the nation we see no action on the ground which is an unpalatable reality which we must accept now! But that does not mean we do nothing on this score. Here is the catch: We must keep on relentlessly exercising pressure on politicians to do something tangible on this and it goes without saying that politicians have to ultimately relent when the people relentlessly demand something and don’t succumb at any point of time as we saw in case of Lokpal!

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Published in Constitutional Law
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