Monday, August 05, 2013

Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result?

--> Guest Post: Vasujith Ram

Recently in Lily Thomas v Union of India, the Court held that Section 8(4) of the Representation of People Act, 1951 (RPA) was ultra vires the Constitution.

To begin with, the Court held that, from the “affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution … the Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature.” The Court added that the “provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature” (see para 20).

On the basis of the above two reasons, the Court held Section 8(4) of the RPA, which defers the date on which the disqualification of a sitting member will take effect, to be ultra vires the Constitution.
Before we proceed, it is important to note the Court’s observation that “if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature” (para 16). This is based on the semantics of Art. 102(1) and Art. 191(1), which state that “[a] person shall be disqualified for being chosen as, and for being, a member of either House of Parliament…”. This is affirmed in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.

Now let’s move on to CEC v Jan Chaukidar. The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).

In other words, according to the judgment, if a person is in police custody, for reasons stated above, he/she does not fulfil the “qualification for membership of the House of the People” under Section 4(d) and “qualifications for membership of a Legislative Assembly” under Section 5(c) of RPA. (“Disqualification on conviction for certain offences” is however laid down in S. 8 [as discussed in Lily Thomas], but those disqualifications are only for certain offences, which means, they person can be disqualified for other reasons as well). Therefore the person is disqualified from contesting elections.

Now, using both the Lily Thomas and the Jan Chaukidar logic, this means that a sitting MLA/MLC/MP is disqualified as well, if he/she is in police custody! This is because the parliament is vested with the powers to make one law, laying down the same disqualifications for sitting and contesting members. Since Jan Chaukidar held that a person in police custody does not fit the qualifications to be “chosen to fill a seat” of the House of the people or the Legislative Assembly, does this not mean that he/she cannot continue as member of Parliament or the State Legislature as well if he/she is taken in police custody? Additionally, para 16 of Lily Thomas (relevant portion quoted above), all but confirms this blog’s argument.

One must note that provisions of Art. 101(3)(a) and 190(3)(a), as expounded in Lily Thomas, only strengthens the point made in this blog post. The Parliament cannot defer the date from which disqualification will come into effect, so a sitting member in lawful custody (even if not convicted), is immediately disqualified!
- Vasujith Ram is a second year student at NUJS

2 comments:

Dilip Rao said...

Both judgments are fatally flawed. The textual reading of art.102(1)(e) and 191(1)(e) in Lily Thomas signifies a failure to carefully read and comprehend simple English. Art.102(1)(e) states:

"A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament."

If I say "Mr.X bought apples and oranges", it is the same thing as saying "Mr.X bought apples and Mr.X bought oranges". If one recalls primary school arithmetic/algebra, this is what is known as the "distributive property", viz., a * (b + c) = a * b + a * c. Accordingly, the provision 102(1)(e) can be expanded to read: "A person shall be disqualified for being chosen as a member of either House of Parliament if he is so disqualified by or under any law made by Parliament and A person shall be disqualified for being a member of either House of Parliament if he is so disqualified by or under any law made by Parliament". Note that the condition for the two is identical, viz. "if he is so disqualified by or under any law" but how that condition applies in each case might be different. Parliament may well choose to pass a law to disqualify the first group but not the second. To give another analogy, suppose an instruction manual reads, "The department secretary shall purchase pens and printing paper as sought by members of the faculty from the campus bookstore", it means the precondition for purchase is identical, viz. he/she will order pens/paper "as sought by members of the faculty" but how it applies could well differ in each instance: faculty members may have run out of only printing paper and may ask only for that. No sane person would read it to mean every time he/she orders paper, pens also should be ordered. Similarly, the clause "if he is so disqualified by or under any law" may well apply differently depending on what conditions parliament has laid down for each
category - nothing prevents it from applying requirements to one and not the other.

Jan Chaukidar is worse. s.2(1)(e), RPA, 1951 reads:

"" elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950)."

The relevant s.16(1)(c), RPA, 1950 states:

"Disqualifications for registration in an electoral roll: A person shall be disqualified for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections."

It is self-evident that so long as the person is not disqualified for an electoral offence, he/she remains an elector. A long list of other disqualifications is included in s.7-11. Right to vote under s.62 is not one of them. Thus, even a casual reading shows that the judgment has no basis. This tendency to simply make up stuff out of whole cloth is affecting the Court's credibility. It is about time the honorable judges give some thought to it.

Vasujith Ram said...

Dear Mr. Dilip Rao,

I have written this post on the assumption that the reasoning of the Court in these two cases are sound.

But I agree with you on both your arguments. I find your argument Art. 102(1)(e) and Art. 191(1)(e)to very interesting. Even when it was pointed in EC v Saka Venkata Rao that Art. 191 lays down "the same set of disqualifications for election as well as for continuing as a member", there was hardly any discussion as to why it is so. This must definitely be given some thought.

With regard to your argument about the reasoning in the Jan Chaukidar case, I am in full agreement. In fact this error has been pointed out by Mr. Anup Surendranath on this blog. Please see http://lawandotherthings.blogspot.in/2013/07/the-error-in-cec-v-jan-chaukidar.html

Regards