SECTION 8 OF REPRESENTATION OF PEOPLE’S ACT 1951: THE NEXT BATTLEGROUND

Election season is here and so is the season of disqualifications. From Rahul Gandhi’s victory in Supreme Court to the close shave of BJP MP Ram Shankar Katheria from disqualification post stay of his conviction for assault and rioting, the news cycle is heavy on this issue. Not to mention that the list of disqualified MPs and MLAs in India have quite illustrious names including Lalu Yadav, Azam Khan, J Jayalalithaa and Rasheed Masood. Thus, it is necessary to take a step back and investigate the law on ‘Disqualification.’

Many people believe that being the world’s largest democracy, the right to vote as well as right to contest elections in India is a Fundamental Right. But it is not so as held by the Supreme Court of India in Javed v. State of Haryana, (2003) 8 SCC 369 wherein, the Parliament was allowed to impose restrictions.

In the Constitution of India, Article 102 and 191 prescribe various occasions when a person is disqualified to become a Member of Parliament and State Legislatures. The power lies mostly with the Speaker of the Legislature in these Articles, but it is sub clause (E) which allowed for separate law by the Parliament. Resultantly, section 8 of the Representation of People’s Act 1951 came into picture which prescribes for various instances of disqualification including for a punishment of 2 or more years of imprisonment. It is this section which struck both Rahul Gandhi and Ram Shankar Katheria.

Section 8(3) further provides for 6 years disqualification from contesting elections post completion of sentence. Lalu Yadav is a prominent example of the application of this section. He was convicted in the fodder scam in September of 2013 and stands disqualified for a total period of 11 years (5 years imprisonment plus 6 years disqualification period).

However, section 8(3) is inflicted with various issues, the largest being the uniform disqualification period for different degree of crimes. For examples, in event a person is convicted in a heinous offence like attempt to murder, kidnapping or assault but sentence is for less than 2 years, then the disqualification would not be attracted.

Similarly, what if a person is convicted for more than two years and his prison time is eventually decreased? Will then he be disqualified under Section 8(3)? This was answered by a Constitution Bench of Supreme Court in Sarat Chandra Rabha v. Khagendranath Nath AIR 1961 SC 334 by holding that remission of sentence will save from incurring disqualification. But remission is wholly an executive action by the ruling Government. Thus, opposition members will find it hard to avail such benefit.

This blanket disqualification under section 8(3) possesses neither any reasonable classification nor an “intelligible differentia” which goes against Equality before Law under Article 14 of the Constitution. Supreme Court has time and again held that any classification in law ought to possess these two requisites to meet the threshold of Article 14 which is absent here.

This argument of reasonableness is further fortified by the fact that Section 8(1) again provides for disqualification for 6 years for different degrees of punishments being from fine to death penalty.

On the other hand, the proponents of blanket disqualification argue that the piety of the job of law maker is such that not an iota of immorality can exist. This argument is supported from the fact that any candidate for Judiciary, Police, Army or Bureaucracy stands disqualified even on acquittal in offences having less then 2 years of punishments. The Supreme Court in State of Madhya Pradesh & Anr’s V/s Abhijeet Singh Pawar, 2018 18 SCC 733 observed that “Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be examined to see whether he has been completely exonerated in the case because even a possibility of his taking to the life of crimes poses a threat to the discipline of the police force..” Why not the same standard for Legislatures who make our laws?

Issues also creep up on the implementation of the section. The powers to enforce the disqualification herein lies with the Election Commission of India which is having a perception problem of being partisan lately. The recent news of Center’s New Bill on appointment of Election Commissioners in which the Chief Justice of India is excluded only strengthens that perception.

Perhaps it is time to revisit the 2014 judgment of the Hon’ble Supreme Court of India in Manoj Narula V/s Union of India (2014) 9 SCC 1 which noted such delinquencies of the section but left it to the Parliament to take remedial measures. Post the disqualification (now stayed) of Rahul Gandhi, various pleas were moved in Supreme Court challenging the constitutional validity of section 8 of RPA 1951. Hopefully, Supreme Court will seize the opportunity to clarify and rectify the section before the next general elections.

THE VIEWS EXPRESSED BY THE AUTHOR ARE PERSONAL

Vidhan Vyas The Writer is Counsel for State of Rajasthan in Supreme Court of India & Ex-Standing Counsel, Election Commission of India