Public representatives superior to public?

Public representative superior to public?

By Amba Charan Vashishth

The Hon’ble Supreme Court of India was more than generous when it “drew a clear distinction between an MP and a common man and said elected representatives cannot be denied the right to vote in the presidential election even if they are serving a sentence in criminal cases or lodged in prison as undertrials.”

But the verdict raises more questions than it answers. Article 14 of the Constitution stipulates: The State shall not deny to any person equality before law or the equal protection of the laws within the territory of India”. And Article 15 prohibits the State to “discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them”. Obviously, it also implies that no person can be favoured or disfavoured on grounds of his position “as an elected representative of the people” because laws of the country are equal to all – ordinary citizens or elected representatives who, in turn are, citizens first and elected representatives afterwards. Representatives are elected for a term of 5 years but citizens are so for the whole of their life.



Further, as per law a member of the legislature (MP or MLA) ceases to be so on being convicted for a criminal offence for a term of more than two years by a court of law.

In the instant cases, the MPs like Shibbo Soren, continue to be in jail because their conviction and sentence have not been stayed by the superior court, although it equally is a fact that the highest court of the country, the Supreme Court, has as yet not given its final verdict. It is a travesty of our judicial and legislative system and, perhaps, because of flaw or weakness of our law that on the pretext of a final word not having yet been said by the highest court, jails seem to have been converted into working offices of our honourable representatives of the people undergoing their punishment of life sentence or other rigorous imprisonments for heinous crimes. They continue to enjoy their pay, perks, privileges and disburse discretionary development funds at their disposal, although they are not performing any of the functions for which they have been elected by the people. In other words, they will continue to be MPs and MLAs for a full term for all intents and purposes even if convicted and in jail, courtesy our courts.

Therefore, it is unreasonable – even against the letter and spirit of law and the Constitution -- to draw a clear distinction between an MP and a common man, as the Supreme Court did when it said “elected representatives cannot be denied the right to vote in the presidential election even if they are serving a sentence in criminal cases or lodged in prison as undertrials” when it said MPs represent a constituency and the entire population of the constituency cannot be debarred from the indirect method of elections.

When the Election Commission announced the schedule for election to the posts of President and Vice-President, a number of seats in Parliament and in State assemblies were vacant for various reasons. It clearly meant that “the entire population” of these constituencies stood “debarred from the indirect method of elections.”

On that analogy, no election to the office of the President or Vice-President should be held till there is no vacancy in either houses of Central and State legislatures because otherwise doing so will amount to “debarring the entire population of these constituencies” from the “indirect method of elections”. You cannot take one stand in the case of constituencies represented by elected representatives convicted by courts for heinous crimes and those who have lost their representatives for reasons beyond the control of the electorate.

All MPs and MLAs did not cast their vote in the election. In other words, while the Supreme Court felt it could not debar “the entire population of the constituency…… from the indirect method of elections”, the respective public representatives did exercise their unchallenged discretion to deny or debar “the entire population of these constituencies” from the “indirect method of elections”. What the Supreme Court thought it fit to abjure, the elected representatives considered it their privilege to endure. Should the right of our elected representatives not also be his “duty” to the people?

As per law, the individual out of the two contestants, who received a point more than 50 percent of the votes polled (5,47,600 out of 10,95,194 votes) would have been declared a winner.

It is hazardous to presume that the conviction of all the MPs and MLAs will, ultimately, stand in the Supreme Court. Taking a hypothetical view, supposing if it does, that means the candidate who won would stand to lose the votes the convicted MPs and MLAs cast, upsetting the apple-cart of the winning candidate if the victory margin was a wafer thin one.

Some may argue that the day they cast their vote, they were eligible to exercise their right to franchise. But equally true is the fact that the day they cast their vote, they stood convicted and their conviction had not been suspended. Therefore, they were not legally eligible to vote on that day. ***