Section 8 of the RP act lists down the conditions when the people's representative can be disqualified. Sub section 1 & 2 the representative can be disqualified for a period of 6 years even if the punishment is fine for certain offences like rape, sati, untouchability, etc. Sub section 3 talks about conviction for other crimes and when the representative is punished for 2 years at least. The sub section 4 talks about the exceptions to the above three sub sections. Basically all that the representative has to do is appeal against the judgement within a period of 3 months. This applies only for a sitting MP/MLA. The section 8(4) clearly distinguishes between a sitting MP/MLA and a contesting MP/MLA.
The Constitution bench of the Supreme court in a case in January 2005 clearly said section 8(4) is an exception and was held that the provision was not unreasonable. The division bench of the Supreme court in its ruling in July this year held that the section 8(4) is unconstitutional. Not sure if it is right for a division bench to override the constitution bench's verdict.
The government moved a bill in the parliament to change the section 8(4) and the changes were convicted MP/MLA can continue to be a representative as long he appeals and gets a stay on the verdict. However, they cannot vote on any legislature or draw any salary. This is contradiction to the constitution as the constitution gives the right to the MP/MLA to draw salary and vote on legislatures. The Rajya sabha has sent this bill to the standing commission where it is supposed to be discussed in detail before reintroduced.
In the interim the government moved a review petition in the Supreme court to reconsider the decision but the same has been rejected. The government moved an ordinance (basically an interim law which will hold good for 90 days till it is either approved/rejected in the parliament). The ordinance had the same language as the bill which is in the standing commission now.
Many parties reached out to the President asking him not to sign the ordinance (every law has to be signed by the President before it gets into effect, even after they are passed by the Parliament). President has asked for clarifications wanting to know what is the urgency for moving an ordinance.
Last Friday Rahul Gandhi came to a congress press conference and said that what the government is doing is wrong and the ordinance is utter nonsense and has to be thrown away. The cabinet is likely to discuss the ordinance and the fall out of Rahul Gandhi's outburst.
Questions
1) Can the division bench override what was already approved by the constitution bench?
2) What is the urgency to move the ordinance?
3) Even if government wants to negate the ruling of the Supreme court, it has to amend the constitution. There is no way the government could have passed the constitution amendment with their current number of MPs. That being the case couldn't the opposition, which is claiming that it is not right for the government to try and override the Supreme Court, defeated the constitution amendment? What is the necessity to send this to standing commission?
4) Going by the SC verdict, when a lower court convicts a representative they will be disqualified. What will happen if the conviction is overturned in the higher court?
5) Agreed that the courts in this country are independent. When the government can change the Public prosecutor isn't the government circumventing the independence?
There is a sub-plot, on the July 11th the Supreme court also ruled that the people who are in jail(not necessarily convicted) cannot contest polls. The reasoning was that only people who can vote, can be elected. People in jail cannot vote and hence cannot contest elections. The government filed a review petition in the Supreme court. Without waiting for the review petition to be heard government moved an amendment to allow people in jails to contest polls. This has been passed in the parliament and approved by the President also. The amendment was the right thing to do, as there are many instances where cases are filed against opposition party members and arrest are made.
The Constitution bench of the Supreme court in a case in January 2005 clearly said section 8(4) is an exception and was held that the provision was not unreasonable. The division bench of the Supreme court in its ruling in July this year held that the section 8(4) is unconstitutional. Not sure if it is right for a division bench to override the constitution bench's verdict.
The government moved a bill in the parliament to change the section 8(4) and the changes were convicted MP/MLA can continue to be a representative as long he appeals and gets a stay on the verdict. However, they cannot vote on any legislature or draw any salary. This is contradiction to the constitution as the constitution gives the right to the MP/MLA to draw salary and vote on legislatures. The Rajya sabha has sent this bill to the standing commission where it is supposed to be discussed in detail before reintroduced.
In the interim the government moved a review petition in the Supreme court to reconsider the decision but the same has been rejected. The government moved an ordinance (basically an interim law which will hold good for 90 days till it is either approved/rejected in the parliament). The ordinance had the same language as the bill which is in the standing commission now.
Many parties reached out to the President asking him not to sign the ordinance (every law has to be signed by the President before it gets into effect, even after they are passed by the Parliament). President has asked for clarifications wanting to know what is the urgency for moving an ordinance.
Last Friday Rahul Gandhi came to a congress press conference and said that what the government is doing is wrong and the ordinance is utter nonsense and has to be thrown away. The cabinet is likely to discuss the ordinance and the fall out of Rahul Gandhi's outburst.
Questions
1) Can the division bench override what was already approved by the constitution bench?
2) What is the urgency to move the ordinance?
3) Even if government wants to negate the ruling of the Supreme court, it has to amend the constitution. There is no way the government could have passed the constitution amendment with their current number of MPs. That being the case couldn't the opposition, which is claiming that it is not right for the government to try and override the Supreme Court, defeated the constitution amendment? What is the necessity to send this to standing commission?
4) Going by the SC verdict, when a lower court convicts a representative they will be disqualified. What will happen if the conviction is overturned in the higher court?
5) Agreed that the courts in this country are independent. When the government can change the Public prosecutor isn't the government circumventing the independence?
There is a sub-plot, on the July 11th the Supreme court also ruled that the people who are in jail(not necessarily convicted) cannot contest polls. The reasoning was that only people who can vote, can be elected. People in jail cannot vote and hence cannot contest elections. The government filed a review petition in the Supreme court. Without waiting for the review petition to be heard government moved an amendment to allow people in jails to contest polls. This has been passed in the parliament and approved by the President also. The amendment was the right thing to do, as there are many instances where cases are filed against opposition party members and arrest are made.
Politicians vs. People.... Politicians always win.
ReplyDeleteWe win once every 5 years Ramesh
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