Thursday, July 25, 2013

Editorial: "Electoral Rights: Apex Blunders" in LAW ANIMATED WORLD, 15 July 2013, Vol. 9, Part 2, No. 13 issue.


No hesitation we have to say that our Supreme Court has seriously blundered in two recent decisions – 1. a judgment against the statutory right of elected representatives to continue in post till their appeals against convictions have been disposed of and 2. an order against not only statutory but also  basic rights of prisoners, convicts or under-trials – as regards their electoral rights, thus upsetting the longstanding right enjoyed by prisoners to contest elections from prisons and thus actively participate in the democratic political process. The former, praised by several persons including civil rights activists, on the mistaken belief that the Apex Court has acted as a democratic cleanser in denying undue privileges accorded to undeserving MLAs/MPs by Parliament, may be rejected on the simple ground that when a constitution bench of the Court had earlier given detailed reasons to support, if not technically rule on the validity of, the provision and explained the need for such a right, it was not proper for the learned two judges to interfere in the matter, and they should have, in all humility, left it to another constitution bench for final decision. But the second order, very cryptic, is more lamentable, devoid of any proper discussion and extends the bar of electoral rights to even under-trials who are to be presumed innocent till proven guilty. The Court failed to note that great national leaders were elected from prisons when they were convicts/under-trials; in fact the strategy of the Irish Sinn Féin movement was to ‘vote them in, to get them out’; Netaji was elected to Calcutta Mayoralty in 1930 when he was a convict prisoner; and many such elections of jailed leaders post-independence. Also convicts are granted electoral rights in many developed democracies – “In Canada and South Africa, the courts have struck down legislation disenfranchising prisoners and thus there are no current restrictions on a prisoner’s right to vote ... In Europe … 18 countries allow prisoners to vote without restriction …” The ECtHR decision published in this issue clarifies that even convict prisoners should have voting rights, which of course could be limited by law but only in a manner proportionate and fair. As such we very much regret this unwise decision pronounced without a detailed study and discussion of various aspects of law and fact and history, and we hope both these constrictive and harmful-to-democracy decisions would be forthwith stayed and then overruled by a constitution bench on review or the Government of India itself proceed to make necessary statutory/constitutional changes to assert the electoral rights of prisoners and of legislators as regards their appealed convictions §§§

Co Nara Bahadur Karmacharya Died 2070 4 9 [24-07-2013] - Our glowing tributes to him.