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Recently, the Supreme Court of
India passed a very important verdict on the trials relating to MPs/MLAs. Here
is the Order of the Court. An analysis of this order will be presented later.
IN THE SUPREME
COURT OF INDIA
CIVIL ORIGINAL
JURISDICTION
WRIT PETITION
(CIVIL) NO. 536 OF 2011
PUBLIC INTEREST
FOUNDATION & ORS………….………...….Petitioner(s)
VERSUS
UNION OF INDIA
& ANR………………………………………………Respondent(s)
ORDER
1. On 16.12.2013, this Court
requested the Law Commission of India (for short, ‘Law Commission’) to
expedite consideration of the two issues, namely, (1) whether
disqualification should be triggered upon conviction as it exists today
or upon framing of charges by the court or upon the presentation of the
report by the
Investigating Officer under Section 173 of the Code of Criminal
Procedure [Issue No. 3.1(ii) of the
Consultation Paper] and (2) whether filing of false affidavits under Section
125A of the Representation of People Act, 1951 should be a ground of
disqualification? And, if yes, what mode and mechanism needs to be provided for
adjudication on the veracity of the affidavit? [Issue No. 3.5 of the
Consultation Paper].
2. In pursuance of the above
order, the Law
Commission has prepared its recommendation in
the form of
244th Report titled ‘Electoral Disqualifications’. The report was forwarded by the Chairman, Law Commission to the Minister
for Law and Justice. A copy of the same
has been placed on record.
3. At the outset, we record our
appreciation for the excellent work done by the Law Commission in the short
time. The 244th Report shall be of
significant use at the time of consideration of the above two questions.
4. Insofar as
the first question
is concerned, the
Law Commission has observed that
disqualification upon conviction
has proved to be incapable
of curbing the growing criminalisation of politics, owing to long delays in trials
and rare convictions. The law needs to evolve to pose an effective deterrence, and
to prevent subversion of the process of justice. In
the opinion of the Law Commission, the filing of the police
report under Section 173 of the Code of Criminal Procedure is not an
appropriate stage to
introduce electoral
disqualifications owing to
the lack of
sufficient application of judicial mind at this stage. The stage of
framing of charges is
based on adequate
levels of judicial
scrutiny, and disqualification at
the stage of
charging, if accompanied
by substantial attendant
legal safeguards to
prevent misuse, has significant potential in curbing the
spread of criminalisation of politics.
Having regard to all this, the Law Commission has suggested that the following
safeguards must be incorporated into
the disqualification:
(i) Only offences which have a
maximum punishment of five years or above
ought to be
included within the
remit of this provision.
(ii) Charges filed up to one year
before the date of scrutiny of
nominations for an
election will not lead to disqualification.
(iii) The disqualification will
operate till an acquittal by the trial court, or for a period of six years,
whichever is earlier. (iv) For charges
framed against sitting MPs/MLAs,
the trials must be expedited so
that they are conducted on
a day-to-day basis and
concluded within a
1 year period.
If trial not concluded within a one year period then one of the
following consequences ought to ensure:
• The MP/MLA may be disqualified
at the expiry of the one year period, or
• The MP/MLA’s right to vote in
the House as
a member, remuneration and other
perquisites attaching to
their office shall be suspended at the expiry of the
one year period.
5. It is suggested by the Law
Commission that disqualification in the above manner must apply retroactively
as well.
6. As regards the second
question, the Law Commission has observed that there is large scale violation
of the laws on candidate affidavits owing to lack of sufficient legal
consequences. The Law Commission has suggested that the following changes
should be made in The Representation of the People Act, 1951 (for short, ‘RP
Act’):-
(i) Introduce enhanced sentence
of a minimum of two years under
Section 125A of the RP
Act on offence
of filing false affidavits.
(ii) Include conviction under
Section 125A as a ground
of disqualification under Section 8(1) of the RP Act, and (iii) Include the offence of
filing false affidavits
as a corrupt practice under
Section 123 of the RP Act.
7. It is
recommended by the
Law Commission that
since conviction under Section 125A is necessary for
disqualification under Section 8 to be
triggered, the Supreme Court may order that
in all trials under Section 125A,
the relevant court conducts the trial on
a day-to-day basis. It is further recommended that a gap of one week
should be introduced between the last date of filing nomination papers and the
date of scrutiny, to give adequate time for the filing of objections to
nomination papers.
8. The Law Commission has
proposed legislative reforms by amendments in the various provisions of the RP
Act as well.
9. The issues raised in the Writ
Petition would require detailed and elaborate hearing particularly in light of
the constitutional provisions viz., Articles 84 and 102 of the Constitution of
India for the Members of Parliament and Articles 173 and 191 for the Members of
Legislative Assemblies.
10. One of the questions of
constitutional importance that may also require consideration is:
Whether disqualification for
membership can be laid down by the Court beyond Article 102(a) to (d) and the
law made by Parliament under Article 102(e)?
11. Presently, we feel that
a direction may
be issued in respect
of MPs/MLAs who
have charges framed
against them for conclusion of the trial expeditiously
to ensure the
maintenance of probity of public
office.
12. We, accordingly, direct
that in relation to sitting MPs and MLAs who have charges framed against them
for the offences which are specified in Section 8(1), 8(2) and 8(3)
of the
RP Act, the
trial shall be concluded as speedily and expeditiously as may
be possible and in no case later
than one year from the date of the
framing of charge(s). In such
cases, as far as possible, the trial shall be conducted on a day-to-day basis. If
for some extraordinary
circumstances the concerned court is being not
able to conclude the trial
within one year
from the date
of framing of charge(s), such court would submit the
report to the Chief Justice of the
respective High Court indicating special reasons for not adhering to the above time limit and delay in
conclusion of the trial. In such
situation, the Chief Justice may issue appropriate directions to the concerned
court extending the time for conclusion of the trial.
13. List the matter after six
months.
.......................J. ( R.M. LODHA )
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