Wednesday, October 02, 2013

Rebutting Mr. K. Parasaran's claims of unconstitutionality in Bill LXII of 2013

As I have written before, I believe the Ordinance/Bill to suspend disqualification of legislators until their appeal is heard by a High Court is both constitutional and morally the right thing to do. Reading a learned lawyer like Mr. K. Parasaran's weak claims of unconstitutionality, further vindicates my support for the Ordinance/Bill.

My rebuttal of Mr. K. Parasaran's claims made here:

1. K.M. Nanavati vs State of Bombay (AIR 1961 SC 112):

The Order of the Governor to suspend the sentence and allow the officer to continue serving in the Navy, is not at all comparable to this ordinance. A convicted legislator starts serving his/her sentence and any relief in terms of bail or stay of conviction/sentence is entirely up to the trial or high court judges. In fact this ordinance stops a convicted legislator from taking part in parliament debates or drawing salary. Both these restrictions are in addition to the sentence imposed by a trial court. The convicted legislator cannot attend parliament unless the trial or appeal's court allows the prisoner to do so. To say that the Speaker should also disqualify the legislator, and render a constituency unrepresented in parliament, all before his/her appeal is heard, is arbitrary and judicial overreach. Mr. Parasaran's claim that this ordinance/bill interferes with the judge's power to set conditions while on appeal is totally false.
2. Indira Nehru Gandhi vs Raj Narain (AIR 1975 SC 1590):

The case against Ms. Indira Gandhi was about her election to Parliament. If the court rules her election void, she obviously is disqualified from being a legislator. This case cannot be compared to conviction of legislators in cases unrelated to their election or work in parliament. If the trial court doesn't even have the power to disqualify a convict from being a elector (only temporary inability to vote because of being in jail), how does it have the power to disqualify a serving legislator and render his/her constituency unrepresented in Parliament?

To summarize, no judge has the right to dictate to the Speaker/Chairman of an elected body on whether or not to admit a elected legislator from participating in the proceedings of Parliament. The court's right to impose punishments or restrictions on the movement of a convicted person remains unaffected. If the High court in Ranchi rules that the bail condition for Mr. Laloo Yadav while hearing his appeal is for him to stay in Ranchi, he cannot attend Parliament irrespective of what the Ordinance/Bill proposes to do.

I'm sending this post to Mr. Parasaran at his official mail id as a Rajya Sabha member:
My earlier post on why I support the above discussed bill/ordinance:

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