Opportunity provided by Rahul to save Democracy

 

There is a discussion going on regarding whether #Rahul is paying up for his past karma in having thrashed an amendment to the #RepresentationofPeoplesAct, sought to be brought in by his own Government to side step a judgment by the Hon’ble Supreme Court in the case of #LilyThomas.

The relevant Section of the said Act is reproduced below:

8. Disqualification on conviction for certain offences. —

(1) A person convicted of an offence punishable under—

(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or

(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment for the preaching and practice of "untouchability", and for the enforcement of any disability arising therefrom; or

(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or

(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or

(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or

(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or

(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 1 [or]

(j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991;] 2 [or

(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971),] 4 ; or

(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or

(m) the Prevention of Corruption Act, 1988 (49 of 1988); or

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),] 5

shall be disqualified, where the convicted person is sentenced to—

(i)            only fine, for a period of six years from the date of such conviction;

(ii)          imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]

(2) A person convicted for the contravention of—

(a) any law providing for the prevention of hoarding or profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961);6 *** 6 * * * * *

(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.]

(4)] Notwithstanding anything 8 [in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either subsection 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.

It is the Sub Section 4 of the Section 8 above which was struck down by the Apex Court in Lily Thomas Case.

A brief about the case and its fall out is given in https://en.wikipedia.org/wiki/Disqualification_of_convicted_representatives_in_India

The moot point here is whether persons convicted for offences, heinous as could be seen from the list given in Section 8 of the Representation of Peoples Act, could be sought to be allowed to be Law Makers by a Parliamentary Legislation. 

Whether defamation is to be a criminal case or should be only a civil case as in most of the developed countries is another point. In fact people like #Dr.SubramaniamSwamy who were all for decriminalising defamation are strangely keeping quiet now.

Questions on legal and moral matters should not be approached with what is presently favourably in mind.

In that aspect, we have to give respects to Rahul for his stand when his party headed Government sought to make the amendment to overcome the Lily Thomas verdict.

This is what he is said to have stated:

“What the Congress has done and what our government has done is wrong. People will give you political lines, but I will tell you what I personally feel about this ordinance. It is complete nonsense and should be torn apart and thrown away.”

Though Rahul never personally tore up the ordinance (as it widely said), he said trashing the ordinance “In my organisation, arguments were made that we need this ordinance because of political considerations and everyone does this - the BJP, Congress, JDU and the SP. It is time to stop this nonsense.” reports The Tribune -https://www.tribuneindia.com/news/nation/the-ordinance-rahul-gandhi-trashed-could-have-saved-him-490950

While there is every chance that Political parties would use every legal method to get their opponent party members disqualified or to create charges against them to make them join their own ranks, and even though we are seeing such episodes in rampant, to allow criminals to be law makers will not be a pleasant dispensation.

The other question that comes is whether someone could be held a criminal until they have exhausted all their appellate remedies.  From the point of view of human rights, it is correct.  But in public service, where people cannot be allowed to use their office even to subvert the process of law, it is dangerous to keep people having a case against them in positions where they can influence the decision making process.

It could be a suspension that could be resorted to when one such accused is a Government Servant.  But in representation of a constituency, such suspension and for very long time would practically have problems for the people being represented.

Now, that brings us to another point: Are the people being represented by the elected representatives or by their parties?

Obviously, it is the parties that are representing the people.  This got reinforced after the anti-defection law.

Again, whether a person holding a Public Office, elected from some other constituency could go for campaign in another constituency even while he or she enjoys the post and the expenditure which will not be counted against the expenditure of the candidate?

How far are these really helping the process of representation of the people through their representatives?

These are only some of the questions which have to come into our consciousness and for which the present generation has to find answers and methods for, if democracy has to survive in it’s true spirit.

We should thank Rahul for this opportunity.