Deceptive Disqualifications

India is a democratic republic. Taking the number of people involved, it is the biggest democracy in the world. Commensurate with it, India also has the largest constitution. Elections define the democratic nature of the government.  It is the rule of majority. No better alternative is devised over the centuries. The legislatures – both the parliament and state legislatures – are supposed to be constituted with representatives of the people elected periodically. The nature and efficiency of the legislatures depends on the nature and efficiency of the representatives sent by the people.  The framers of the constitution made a declaration on behalf of the people that they are sovereign and has the right to rule themselves as they wish. In a democracy it is the representatives of the people that rule the country. Naturally people get the government they deserve. That is the basic merit of democracy. The government is as good or as bad as the people are. But it could not be left entirely to the people. Laws had to be made to ensure that the body politic and society are kept clean and progressive.

The right to elect representatives is naturally restricted to the citizens of the country. At the same time the citizens do not get that right automatically by virtue of being citizens. The right to participate in voting or to contest the elections is not a fundamental right. There is no such right even in the common law. It is a privilege given by the statute and so defined by the statute. The constitution has provided certain guidelines in the form of qualifications and disqualifications for people to vote and to contest in elections. The qualifications prescribed for election to parliament under Art.84 and for state legislatures under Art. 173 are almost similar and they are very general. The contestant must be a citizen of India and must have attained the prescribed age by the time he contests. The contestant has also to take an oath undertaking to “bear true faith and allegiance to the constitution of India as by law established and to uphold the sovereignty and integrity of India”.  In addition, the parliament is also authorized to prescribe any other qualifications for the candidates to contest elections.

When it comes to the question of disqualifications similar disqualifications are prescribed for parliament and state legislatures under Art.102 and 191 respectively.  The Articles run stating that the “person shall be disqualified for being chosen and for being a member of” parliament or of state legislature. The disqualifications also are the same verbatim in both cases. It is clear that if the disqualification arises after the person is elected to any of the legislatures, the membership becomes invalid with immediate effect. That is clear by the words used “for being chosen as and for being a member” in both the Articles. But the Representation of Peoples Act passed by the parliament and the rules made thereunder allowed a time of three months for the disqualified member to appeal the decision of the court and to continue until that appeal is finally disposed. There is every possibility that the disqualification would be confirmed by the final order. The judicial process runs so slow that the disqualified person may be experiencing the benefits of membership and also the ministerial berths before the case is finally disposed. What all the member has done during that period cannot be questioned as it upsets the system.

The Representation of Peoples Act enumerates so many legislations under which the person might be committing offences that would attract disqualification. But all that is of less practical significance as the disqualification does not attach until the person is convicted by a court of law. As we know the due process of law takes years or even decades to result in conviction. The Supreme Court struck down the provision that enabled the convicted member to continue for three months to appeal and to continue until finalization of appeal.    

It is obvious that these disqualifications are ineffective. On the other hand they are also deceptive as they make us complacent and rest depending on those provisions to keep the legislature clean and efficient. But we now see that at least one third of the members elected to the legislatures are rubbing against provisions of criminal law. It is but natural that those members try to make laws safe for them and detrimental to society. Still we are searching for a way to prevent such persons from entering the legislatures.

No doubt there is possibility of the person alleged,being found innocent finally. But that is only a possibility with less probability. “Let a hundred culprits go free but even one innocent person shall not be punished.” That is the golden rule of law. Great! But what is meant by punishment? When do you say that a person is punished? The Attorney General was generous enough to point out the possibility of the convicted person being found innocent after appeal. If the disqualification is made to attach immediately after allegation, it amounts to an undue injustice to the person, he said. In fact the proposal to make the disqualification effective immediately came before the courts many times earlier and it was turned down only on this spurious argument. The constitution only stated that “a person shall be disqualified for being chosen” as a member of legislature and goes on describing the disqualifications. While stating that holding office of profit, being of unsound mind and undischarged insolvent amount disqualification, the Articles also state that the Parliament can prescribe any other basis for disqualification.  Accordingly the Representation of Peoples Act was passed prescribing offences under so many legislations. But added one condition that disqualification attaches only after the person is convicted under any of those acts. That has nullified the effect of those prescriptions.

The question of injustice arises only when a person is prohibited from availing a right that he has or when he is subjected to any hardship prescribing some responsibilities and restrictions on him. By preventing a person under cloud from contesting elections there is no breach of any of his rights and he is not asked to bear any burden because of that.  In this case it is an accepted fact that the person has no right to contest elections. Right to vote and right to contest are privileges granted by statute and available only subject to statute. Even fundamental rights are circumscribed to a large extent. The privilege can be restricted or even denied by statute. The respected Attorney General cannot be unaware of this condition when he made a generous suggestion that any restriction would amount to injustice. By saying that, he is only reflecting the general impression that getting elected to legislature is an opportunity carrying with it many temporal benefits like status, authority and with all that an opportunity to earn a lot.  If you say that the intention in contesting elections is to serve the public even the illiterate villager would laugh in his sleeves if not on your face. Politics in India is the most lucrative business without the least risk if only this first step of getting elected is surmounted. The Attorney General is part of the executive and has to serve the interests of the government, which is obviously run by a political party. No party is willing to put such disqualifications on the contestants. Those who are on the brink of law or stepping over its limits are the aggressive and robust persons who are more likely to win elections and it is no surprise that such persons find  honorable place even in cabinets of governments.

The question raised is how to brand a person as disqualified when there is no conviction. The fallacy of it can be seen when we find that even after conviction attempts are made to continue the member on some pretext or other, stating that the conviction is not final and can be revised on appeal. It is a normal feature in our legal system that the evidence produced by the prosecution satisfies the judge in the lower court but the same evidence would be found inadequate by the judge in upper court. Taking advantage of it the member continues to enjoy the benefits and pollutes the fountain of legislation and governance. According to the procedure prescribed when a complaint is received by the police about a crime an investigation is undertaken and a FIR is filed when prima facie evidence is found. That stage can be taken as the basis to attach disqualification. The police would not make a FIR in the absence of credible evidence.  There are complaints about the police that they do not register cases even after receiving complaints from ordinary people. But the situations where they filed FIR without proper evidence are very rare. The possibility of filing spurious FIR is too small. Any frivolous complaints can be denied at the investigation stage itself and also by making stringent punishments for frivolous complaints and baseless FIRs.

The trouble with our attitude is not that we are not aware of the defects in the system but we are not serious about improving the same. We try to avoid it, sweep it under the carpet and allow the defect continue to enable unscrupulous elements take advantage of the same. We are more serious about protecting non-existing rights than to fulfil constitutional duties. Our priorities are deliberately wrong. Political systems are dominated by criminals to an extent that they can prevent any improvement by obstructing genuine legislations. Legislators ceased to represent people. They are representatives of political parties and it is constitutionally strengthened by the tenth schedule.

There is no use of approaching the Supreme Court for it. It has become so easy for everyone to call on the Honorable court for everything that has to be done by the legislature because legislators are beyond reach and immune to representations of people. Courts give judgments according to law. When the law says the disqualification attaches only after conviction, the court cannot say that it should attach on filing of FIR. They cannot change the law. It is for the parliament to do that. We know law is an ass that can kick with all four legs. It is for us to choose how to be kicked – with fore legs or with hind legs.