Turf wars between the judiciary and the legislature are as old as the Indian republic. Ever since Jawaharlal Nehru’s time as prime minister, the judiciary and the legislature have crossed swords over issues as varied as land reform and caste-based quotas.
The latest chapter in this story is the Supreme Court’s ruling on public interest litigation in July, striking down the section of the Representation of the People Act (RPA), 1951 which protects convicted MPs and MLAs from disqualification if they appeal before a higher court.
The reasoning of the two-judge bench was not without problems.
For one, a Constitution Bench in 2005 had interpreted Section 8 of the RPA which lists various grounds on which a person can be disqualified from being an MP or MLA. Then, the court did not specifically rule on the validity of Section 8(4) of the RPA, which allows sitting MPs and MLAs who are convicted to remain in office if they appeal their conviction. It, however, upheld the distinction between existing members and those standing for elections.
Incidentally the relevant section was introduced as an amendment as late as 1989.
In the recent ruling, however, the court said that Section 8(4) of the RPA was not considered by the Constitution Bench and based its judgement on Articles 101(3) and 190(3) of the Constitution, which deal with “vacation” of seats. It interpreted these articles to rule that a seat will automatically “fall vacant on the date on which the member incurs the disqualification” and that disqualification cannot be deferred. In a separate ruling, the court also said that a person in prison cannot contest elections.
Irrespective of whether one agrees with the rulings or not, the court judgements need to be located in the efforts of the Supreme Court over the past decade or so to inject transparency into the electoral process, and the tug of war that accompanied these rulings. In 2002, the court passed a landmark judgement in response to a PIL, which ordered election candidates to furnish details about their financial assets as well as criminal records if any. Subsequently, 21 political parties got together to reject the order.
The government responded by issuing an Ordinance, which was later enacted, amending the RPA to say that election candidates need not disclose any additional information besides what was specified in the original Act. The amendment too was taken to court with the Supreme Court in 2003 declaring it illegal.
Besides the back and forth between the legislature and court, the court rulings had a few other notable aspects. One was the critical role of civil society groups which filed the PILs in the first place.
The other was the role of the Election Commission (EC) which, in the 1990s, had passed an order prohibiting convicted persons from contesting elections as well as pressed for the disclosure of financial assets by candidates. In fact, the 2002 ruling strengthened the hand of the EC by saying it could “cope with situations where the field is unoccupied by issuing necessary orders.”
A similar constellation of forces is at work currently to hold the political class accountable. Like before, it’s PILs by civil society organisations that have prompted the court rulings. In addition, this time around it’s not the EC but the Central Information Commission (CIC) that has got into the act. The CIC’s recent order designating political parties as public authorities under the purview of the Right to Information (RTI) Act has brought forth a familiar response from the politicians.
The government has introduced a Right to Information (Amendment) Bill in the ongoing monsoon session, which seeks to amend the definition of public authorities to exempt all recognised and registered political parties from the ambit of the RTI Act. And this is one Bill that is unlikely to face any trouble in the House as it has support cutting across political parties. Once it is passed, though, it will most likely be challenged in court.
The courts and unelected government bodies are feeding off the middle class disenchantment with politicians. This was noted by eminent political scientists Lloyd and Susanne Rudolph more than a decade ago when they wrote: “As executives and legislature were perceived as increasingly ineffectual, unstable and corrupt, the supreme and high courts, the presidency, and the Election Commission became the object of a middle class public’s hope and aspirations.
” At the same time, these institutions have been providing the public the wherewithal to impose greater accountability on elected representatives. There are now reams of data in the public domain on the disconcertingly high number of MPs and MLAs with criminal records as well as the increase in their assets while in power.
This complicates the conventional narrative of unilateral judicial activism confronting elected representatives. It points to a much more elaborate interplay between civil society, government commissions and the courts in putting pressure on the political class. It’s another matter, though, as to what extent the pressure is influencing voter behaviour and candidate selection. Since the disclosure of criminal records and assets has come into effect, the number of MPs with criminal records actually increased in 2009 compared to the 2004 elections.
This does not, however, mean that the measures for greater transparency and accountability have been completely ineffective.
Indeed, more information about candidates and the financial details of political parties in the public domain can only be for the better. It is likely to lead to more informed voting and gradual changes in the behaviour of political parties. That is why the court, the commissions and the public need to keep up the pressure.
History shows that the political class is unlikely to reform of its own accord.
The writer is a senior research fellow with the Institute of South Asian Studies and Asia Research Institute, National University of Singapore