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Tuesday, July 16, 2019

'Constitutionality of Section 8(4) has been upheld by a larger bench'


Former Chief Justice of India K G Balakrishnan was part of a Constitutional bench that had upheld Section 8(4) of the RP Act. In conversation with Parimal Peeyush & K S Narayanan, the NHRC chairman discusses intricacies of the recent apex court judgments.
PARIMAL PEEYUSH AND K S NARAYANAN | Issue Dated: July 28, 2013, New Delhi
Tags : K G Balakrishnan | Tainted MPs | Criminalisation of politics | Criminal politicians |

Do you think the two recent judgments set a good precedent in terms of removing criminals from politics?
Decriminalisation of politics is required and that has been the intent of the court. A lot of MPs and MLAs are involved in serious crimes. So, some provision should be there. But whether this judgment itself is going to do that, I dont think it will happen. The problem is this. Suppose he loses to be an MP or an MLA, in that area, the people are not represented in the Assembly or in Parliament. There cannot be any bye-election because the politician files an appeal. To avoid these controversies, Section 8(4) was enacted in that fashion.

The second judgment says that only an elector who is in jail shall not contest an election, nor shall he exercise his franchise. Your opinion on this judgment.
The problem here is that some people can file a false case against anybody and he is jailed. The police can also be made use of for arresting somebody. Then you cannot exercise your franchise or contest elections. In our days, the courts are exercising bail provisions very strictly. We have about 1,300 jails in the country and over 63 per cent of the inmates in jails are under trial prisoners.

Are we likely to see some cleansing of politics happening after these judgments?
National political parties should decide that we shall not allow those who are involved in serious crimes to contest elections. Parties, however, are only concerned with the potential winnability of the candidates. In many areas, criminals are considered heroes and heroes get elected.

Do you believe that these judgments are trying to bring equality of laws that apply to a politician and other citizens of the nation?
One principle based on equality is that there cannot be a separate law for sitting Mps and MLAs. From the perspective of Article 14, Section 8(4) was earlier considered in Jayaraj's case. That is why the case should have been given to a larger bench. Whether the Parliament has the power to legislate was not considered in Jayaraj's case, that is what the SC has said. But when the constitutionality of a provision is upheld by the SC, then it is deemed that the bench has considered all aspects. We cannot then pursue a case saying that some plea was not raised in the earlier case.

There have been reports that the government could appeal against the verdict to a larger bench. Is there a possibility that this decision could be overturned ?
There cannot be an appeal against the judgment of the Supreme Court. The possibility is that they can make an appeal to the Chief Justice of India saying that there is an earlier decision which is in variance with the later decisions. They can make a request to place the matter with a larger bench. One remedy is that they can file a review petition.

There have also been demands for a Constitutional amendment.
It is possible. The SC decision cannot be set aside by the Parliament, but the basis on which the decision has been rendered can be amended. There is a series of incidents where the basis for a decision was changed by bringing a Constitutional amendment.   

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Issue Dated: Feb 5, 2017