Legislators and Election Law

ONE LAW FOR Mr. Balakrishna Pillai. Another for Ms. Jayalalitha. The disparate manner in which electoral law treats sitting MPs/MLAs and non-members of a legislature has been driven home by the acceptance of the former's nomination papers and the rejection of the latter's. The material circumstances are similar: both the sitting Kerala MLA and the AIADMK chief have been convicted of corruption, have been sentenced to more than two years of imprisonment and have pending appeals against their convictions. But while Ms. Jayalalitha is disqualified from contesting the Tamil Nadu Assembly election for falling foul of Section 8 (3) of the Representation of the People Act (RPA), Mr. Pillai's candidature is approved because he attracts Section 8 (4) of the same Act which specifically exempts legislators from the disqualification process that governs non-members.

In permitting the former Kerala Minister, Mr. Balakrishna Pillai, to contest the election in Kottarakara, the Returning Officer was only going by the letter of the law. His decision had at least one precedent. In West Bengal, a nominee of the CPI(M) who was convicted by a sessions court for murder and later released on bail was permitted to contest the 1996 Assembly election on the ground that he was already a sitting MLA. After hearing a petition which sought a declaration that the MLA's re-election was illegal and void, the Calcutta High Court dismissed it on the ground that Section 8 (4) of the RPA was enacted specifically for the ``benefit'' of legislators and that the MLA was entitled to avail of it. The court, while refusing to declare the provision ultra vires, held that convicted legislators could avail of it to retain their membership of the House as well as to contest further elections.

Nevertheless, the Balakrishna Pillai episode throws up a larger and disturbing issue - one that deserves serious attention. The larger objective of any election law pertaining to disqualification should be to prevent the criminalisation of politics and foster probity in elections. And there is something dreadfully wrong about a legal provision which permits convicted legislators to remain in the legislature as well as fight fresh elections. In an oblique reference to the ``leniency shown to sitting parliamentarians and members of the legislature'' in the RPA, the Madras High Court (while dismissing Ms. Jayalalitha's plea that her conviction be suspended) recently suggested that this aspect be placed before the Election Commission. Apart from being discriminatory, Section 8 (4) of the RPA deserves to be questioned on the ground that such a provision will only foster rather than prevent the criminalisation of politics. It would appear that the Supreme Court is the appropriate forum to challenge the validity of this sub-section.

At a political level, the approval of Mr. Balakrishna Pillai's nomination has given Ms. Jayalalitha another handle to portray herself as a ``victim of injustice'' and repeat her unfounded allegation that her disqualification was a result of political pressure and manipulation. Her supporters are correct in claiming that the electoral law should not discriminate between Mr. Pillai and herself. But the conclusion they have sought to draw - namely, that Ms. Jayalalitha should have been allowed to contest too - is hardly the appropriate one. The real lesson that emerges from the Balakrishna Pillai episode lies in questioning why a legislator convicted for corruption and sentenced to five years of imprisonment should be allowed to contest an election. And any answer to such a question should involve an honest scrutiny of Section 8 (4) and whether our legislators really deserve the immunity offered by it.

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Section  : Opinion
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