Experts warned govt: Ordinance on convicted MPs would be 'extremely difficult' to defend

Senior functionaries in the government had cautioned that the ordinance to undo the July 10 Supreme Court judgment, disqualifying MPs and MLAs convicted of a criminal offence, could be seen as unconstitutional, it has emerged.

The ordinance, cleared by the Cabinet on Tuesday, has been widely criticised by the opposition and activists who have said that it violates the Constitution. The BJP is meeting President Pranab Mukherjee to ask him not to sign it.

A senior government functionary told The Indian Express that during discussions on the Representation of the People Act (Amendment and Validation) Bill, 2013, legal experts had brought to the government's notice "serious lacunae" in the proposed law.

They had also cautioned that if the matter reached the court, it would be "extremely difficult" to defend the law, the functionary said.

The ordinance cleared on Tuesday is almost identical to the Bill, which was introduced in Rajya Sabha on August 30, and which is now with the standing committee on law.

Sources told The Indian Express that apart from the most important concern about the ordinance — that since the Supreme Court had held Section 8(4) of the R P Act unconstitutional, the only way forward was a constitutional amendment — the government was also "categorically told" that an ordinance would not serve the purpose since the salary and allowances of MPs and MLAs are part of the Constitution, and fixed under independent laws.

"Salaries and allowances of MPs are governed by the Salary, Allowances and Pension of Members of Parliament Act, 1954. The same Act provides for free rail travel and, in some cases, air travel, for MPs and their spouses. How can an amendment in the RP Act take away this entitlement, whatever the provocation?

"Similarly, the Constitution grants the right to vote to each MP. How can an ordinance take way this constitutional right? The government was aware of these issues but chose to overlook them. If this matter goes to court, the court may not be very charitable," said a top government functionary.

Jagdeep S Chhokar, former dean of IIM-A and one of the founders of the Association for Democratic Reforms, said: "The Supreme Court decided this issue twice — first on July 10 and then again on September 4, when it rejected the review petition filed by the Centre. Parliament is yet to take a final view on the Bill, which is before the Standing Committee. Therefore, it is clear that one pillar of the state has expressed its opinion, not once but twice, and in no uncertain terms, while the other, legislature, is yet to decide. By trying to issue the ordinance, the third pillar, executive, is overlooking and riding roughshod over the expressed will of the judiciary and legislature. This is against all norms of the system of checks and balances which is enshrined in the Constitution."

Chokkar wrote to the President on Wednesday, urging him not to give his assent to the ordinance.

"The content of the draft ordinance is also troubling. 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... To have people sitting in Parliament who are not allowed to vote, I believe, amounts to denigration of the hallowed institution of Parliament," Chokkar has written.

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