‘HISTORY WILL ABSOLVE ME’ said Fidel Castro, famously, in 1953, as he was arrested for the alleged attempt to overthrow the Batista regime in pre-revolutionary Cuba. Perhaps all over the world, freedom fighters who were incarcerated or were confiscated of their civil rights have made similar statements. It appears that the time has come where one has to learn to face such assaults on liberty, through arrests and deprivation of constitutional office, without trial or without verdict.
Amit Shah, the Home Minister, has recently introduced, in a brazen manner, the 130th Constitutional Amendment Bill which aims to disqualify elected ministers (including even the Prime Minister) for the only reason that they were detained in custody beyond thirty days. The home minister has gone around town parroting the question: “What is wrong in a universal morality being enshrined in a legislation?”. He also posed that the Chief Secretariates and the Director General of Police must not take orders from the central prison where the arrested chief minister, who has failed to come out on bail within thirty days, is sheltered.
The posed question may look attractive if one doesn’t see the greater malaise hidden in the proposed new law. What exactly is the motive behind the ruling regime attempting to bring such a law and passing it in haste?
To do what was originally never intended by the Constitution
More than the constitutional morality which is touted to be behind the law, the real motive appears to be entirely different. As it stands today, the right to form a cabinet headed by the Prime Minister / Chief Minister, as the case may be, solely vests on the elected members of the House — whether it be the Parliament or the State Assemblies. After the elections, the party which has the largest following in the House has a prerogative to form the ministry and the President or the Governor has to invite the leader of the majority party in the House.
Article 75(3) clearly states that the Council of Ministers shall be collectively responsible to the House of the People. Article 75(5) mandates that a minister, if not already a member of the House, must become one within six months of assuming office.
The Constitution does not prescribe any separate qualifications or disqualifications for ministers inducted into the Cabinet, for the only reason that the disqualification prescribed for a member of the House, also applies to a minister. Quite simply, one cannot be a minister without being a member of the House.
Constitutional disqualification has been provided for under Articles 102 (in case of Parliament) and 191 (in case of State Assembly) which includes that a member should not hold any office of profit, that he is not of unsound mind or that he had not become an undischarged insolvent or that he was not a citizen of India. Curiously, it was also prescribed that under Articles 102(e) and 191(e), the Parliament can prescribe, by law, any other disqualification. This is strange because, by prescription of a law, what was not originally intended by the Constitution could also be made to be a ground for disqualification.
That the Parliament can do such tricks which were not originally intended in the Constitution could be explained with the example of a few other countries, where such tricks paved the way for martial law to prevail within democratic setups. For example, in Pakistan, when the military took over the governance, the Constitution was amended to state that all existing higher court judges must retake the older oath of office (mandated by the original Constitution), along with a new oath towards the martial declaration. By this process several judges of the higher judiciary were edged out for the sole reason that they refused to take a new oath which sanctifies the martial law regime. In administrative law, this came to be known as oath politics.
India is no exception. In 1963, an innocent amendment was brought in to various oaths prescribed for different constitutional office holders by amending the appropriate provisions including Schedule III which prescribes the format of oath to be taken by the members of the Parliament and state legislatures. After the 16th constitutional amendment, the oath now stated that apart from owing allegiance to the Constitution, those taking the oath would also “uphold the sovereignty and integrity of India”.
This amendment was intended to browbeat some of the South Indian political parties, particularly DMK, which was touting for a separate Dravidian land. The message was clear: If one has to take the new oath, then one has to give up their idea of separation. Therefore, DMK quietly gave up its separate land demand and became a party which could enter the Parliament and the State legislature. This game of tinkering with the Constitution and browbeating the likely opposition parties began eight decades ago and it continues even today.
Taking advantage of the provision under Article 102 (e) and 191(e), where by law the Parliament can prescribe further disqualification, the Representation of Peoples Act,1951 (‘RP Act’) was enacted. Chapter III of the Act dealt with disqualification of members of the House. Section 8(1) dealt with conviction by court under different provisions of law - ranging from offences under the Indian Penal Code to the Dowry Prohibition Act.
Section 8(2) notes that if anyone is convicted for a period of six months, that person shall be disqualified and that disqualification would continue for six more years after the release. The other provisions from Section 9 to 10A deal with other disqualification, such as that arising out of corrupt practices in the election.
For the purpose of this article, it is enough if Section 8(3) and 8(4) is extracted: -
“Section 8(3): A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
8(4): Notwithstanding anything 2 in sub-section (1), sub-section 2 and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”
The substance of the above provision will only indicate that it is only after an investigation, trial before a judicial court, a judgment delivered by a judicial officer and conviction for a particular period, that the disqualification will start.
This means that if a person even after conviction approaches the higher court and obtains a stay of conviction or suspension of the sentence, he could still continue in the office for a full term for which he was elected.
However, Lily Thomas, an Advocate of the Supreme Court, filed a Public Interest Litigation and sought for a declaration that Section 8(4) of the RP Act travels beyond the power of disqualifications prescribed under Articles 102 (e) and 191 (e) of the Constitution. The Supreme Court, in 2013, agreed with her submission and held: -
“… sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.…..sub-section (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution.”
The reasoning for the Court to decide the aforesaid was that convicted persons who are likely to be disqualified, could still approach higher courts through appeal, revision or review, and stall the conviction from coming into effect. This process may likely last several years and by the time it concludes, the tenure as a member of the House would come to an end.
However, if anyone obtains a stay of conviction or gets the sentence suspended by the higher courts, the disqualification would not come into effect. That was how Rahul Gandhi, initially disqualified after being convicted by a Gujarat court was able to get back his seat after a stay was granted on the sentence.
But the significance of the Lily Thomas decision is this: even if the Parliament wants to make a law on disqualification of the elected member of the House of either the Parliament or the State legislature (which includes even the ministers, chief ministers and the Prime Minister), such a law cannot travel beyond the limits prescribed by the Constitution.
At least in such convictions, there was not only investigation by the police but a trial conducted by a judicial officer and a final verdict holding the person guilty. It does not stop with conviction but also sentencing. It is after one holds a person guilty of an offence, that the judicial officer decides the question of sentence and more often the benefit of doubt goes in favour of the accused.
It is only after a judicial conviction that any disqualification of a member of the House arises and not at a period when a Station House Officer arrests a person and locks him up in the police custody and thereafter being an offence triable by a sessions court, the remand magistrate puts the person in judicial custody for a period not exceeding fifteen days. The essence of the 130th Constitution Amendment Bill is that if a person does not get bail due to any reason and a further extension of custody of another fifteen days is made by the remand magistrate (who is not a trial judge), then the person will lose the office of his ministership.
One must seriously question the jurisprudence under which the home minister has aimed to usher in such a constitutional amendment, and whether, what is being really sought is electoral reform.
Apart from the issues of morality, one should look into the constitutionality of the provision contained in the proposed Bill. Is there any rule of law by which if a person is incarcerated by executive fiat and without even a trial and conviction by a judicial officer, they should be disqualified only because he was lodged in jail for 30 days?
The logic behind the thirty day incarceration period lacks reasoning
Following the national emergency, after the electoral defeat of the Congress, the newly formed Janata government, under the premiership of Morarji Desai, came to power. When George Fernandes was sought to be inducted as Industries Minister, an objection was raised about the pending Baroda Dynamite case in which he was implicated.
Many letters were shot off to the editors of daily newspapers questioning his induction given that a serious criminal case was pending. C.G.K. Reddy wrote an editorial in The Hindu saying, “My foot, rule of law”. Reddy criticised those who were writing these letters, asking them where they and their pens were when thousands of people were being incarcerated during the Emergency and the rule of law had been suspended.
Why the new bill contravenes the Law Commission’s conclusions
One has to see what are the earlier recommendations on the issue of “tainted” ministers in the matter of electoral disqualifications.
In its 244th report, the law commission headed by Justice A.P. Shah dealt with the issue relating to disqualifying persons who are facing criminal prosecution. It totally rejected the proposal that the disqualification could happen at the stage of filing of the charge sheet by the police, noting that at such a stage, prima facie determination of the guilt of the accused by a court of law would not have taken place. Further, at the time of filing the final report, a competent court of law would not have applied its mind on the material placed, it noted. It also stated that disqualifying a person simply on the basis of something which he has had no opportunity to look into, or no knowledge of, would be against the principles of natural justice. It would also tantamount to granting the judicial determination of the question of disqualification to the police, who are a prosecuting authority.
The Law Commission suggested that the framing of the chargesheet could be considered as a disqualifying factor, and also observed that given the concern of crime among politicians in India, disqualification at the stage of charging would be justified so long, of course, as legal safeguards to prevent misuse are in place.
The proposed bill, by seeking to give the power of disqualification to a policeman, completely disregards the law commission’s report.
Right since the British days, ruling regimes have attempted to introduce the pleasure doctrine (labeled as the ‘Henry VIII clause’ by the Supreme Court)for many constitutional posts. Even though such a clause was made applicable to the government. servants as an exceptional case, in the normal process an arrest by the police and the detention in custody for more than 48 hours was the rule in which a government servant could be automatically suspended. However, government servants have the safeguard that without waiting for the further proceedings in criminal trial, they can make an appeal to the appellate authority and revisional authorities to revoke the suspension.
In fact, the competent authority has always had the power to revoke the suspension. Further, pending the suspension, a government servant is entitled for a graded subsistence allowance to keep his body and soul. As and when the criminal proceedings ends in his favour, he is entitled for all the reliefs, including restoration to service with continuity of service, and full back wages. At times, even the lost promotion will be given to him with ante-date.
But if the new bill is brought into force, a minister could be thrown out of the cabinet without any say by the ruling party which nominated him. Further, there is no guarantee that if the criminal action ends in an acquittal that the person would be restored to office
Further, in certain legislations, such as the Unlawful Activities Prevention Act (‘UAPA’), to get bail within one year, one has to prove that there was no prima facie case against him. Experiences, such as the Bhima-Koregaon cases, have shown us that it may be an uphill task to get bail even after 5 years, which is the tenure of a Parliament Member.
What is truly intended?
It has been touted that the new bill also holds the post of the Prime Minister accountable, as a means to establish the fairness of the ruling regime. This is, quite apparently, an eye-wash. Since the prime minister has complete authority over investigating agencies such as the CBI and ED, is it practicable to expect the agencies to ever file a case against a sitting Prime Minister? Further, commentators elsewhere have argued that the President exists in India’s polity, unfortunately, as a rubber stamp authority. In such a case, it is equally impracticable to expect that the President has any effective power to grant sanction for prosecution on the advise of the Council of Ministers (headed by the Prime Minister himself).
Then what exactly is the real motive of the ruling regime with this amendment proposal? Here is one possible anticipation: for long, this regime has been stuck up on the Kesavanand Bharati decision (which had introduced the basic structure doctrine by a 7:6 slender majority). Several signs have indicated that the regime has wished for a reconsideration of the decision. Perhaps, if at all such an amendment bill is to reach the Supreme Court, the nerve that will be pressed upon by this regime in Court would be throwing into debate, for the first time in decades, whether ‘parliamentary democracy’ is a part of the basic structure.
If this dangerous bill were to one day become the law, history must absolve those who may fall victim to its tenacity, for whether the Court or the Constitution would be able to, we cannot say with so much certainty anymore.