I am writing in my capacity as a concerned citizen appealing directly to the Head of State of the Republic of India because I believe the country is faced with a constitutional crisis, which is likely to land on your desk very soon. It has been widely reported that the Cabinet has approved an Ordinance to amend the Representation of People Act (RP Act) to undo the effect a recent judgment of the Supreme Court on disqualification of sitting MPs/MLAs if they are convicted by a court of law.
My appeal to you is to consider this draft Ordinance with extra care before you decide to sign it. The main reason is that the draft Ordinance is a case where one pillar of the State is attempting to undo the expressed will of the other two pillars. Let me explain why.
1. This matter was decided by the Supreme Court on July 10, 2013, when it held that Section 8(4) of the RP Act to be unconstitutional.
2. Union of India filed a review petition to the Supreme Court and the Hon’ble Court rejected the review petition on September 04, 2013.
3. Thus, the highest court in the land, the Supreme Judiciary, has expressed its considered judgment, not once but twice.
4. Overlooking the final judicial view, the Executive, in the form of the Government of India, introduced a bill in the Rajya Sabha on August 08, 2013, to amend the RP Act to undo the impact of the Supreme Court judgment.
5. The Rajya Sabha decided to refer the bill to one of its Standing Committees to study the bill in detail and make recommendations.
It should be clear from the above that one pillar of the State has expressed its opinion, not once but twice and in no uncertain terms, and the other once and also clearly that the proposal needs detailed consideration.
The Executive overlooking and riding roughshod over the expressed will of the Judiciary and the Legislature is against all norms of the system of checks and balances which is enshrined in the Constitution.
The content of the draft Ordinance is also troubling. It has a provision that a member of Parliament or the Legislature of a State, duly convicted by a court of law, who is taking advantage of the ninety days grace period to file an appeal or application for revision, “…shall neither be entitled to vote nor draw salary and allowance…” This raises a fundamental doubt about what is an MP or MLA supposed to do while s/he is in the Parliament or the Legislature of a State.
The basic purpose of any legislature is to legislate, pass or reject bills that are brought to it after due discussion and deliberation. Passing of legislation and rejection of bills happens only through the process of voting. The act of voting is thus the raison d’etre of an MP or MLA being in the Parliament or the Legislature of a State. It may not be out of place to state that a legislator who cannot vote is in effect a non-legislator. To have people sitting in Parliament who are not allowed to vote, I believe, amounts to denigration of the hallowed institution of Parliament.
And above all, as you undoubtedly know, Article 123 of the Constitution provides for an Ordinance to be issued when “the President is satisfied that circumstances exist which render if necessary for him to take immediate action…” (italics added). It is obvious that you will have to exercise your judgment that it is NECESSARY for you take such IMMEDIATE action and the whole nation can do nothing better than to leave this to your considered judgment.
To send the draft of such an Ordinance to you under the above circumstances, in a way, amounts to inviting you to be a party to doing something that goes against the norms of democratic and constitutional functioning. It is for this reason that I felt it was my duty to bring this matter to your attention.
Once again, I earnestly hope that you will take extra care in deciding on the course of action to follow on the draft Ordinance that is likely to be sent to you soon.
Jagdeep S. Chhokar
Former Professor, Dean, and Director In-charge
Indian Institute of Management, Ahmedabad (Now in New Delhi)