Sunday, July 14, 2013

Disqualification of Jailed Persons from Contesting Elections: A Case of Judicial Overreach?

            When I read the news reports about Supreme Court of India passing an Order that prevents persons in police custody from contesting elections, even if they are not convicted of any crime yet, I could not believe my ears. This disbelief and shock was not a result of any sympathy towards criminal politicians. It shocked me for it went against the ideas of principles of natural justice and the law as I understood it. I was also concerned about the fall out of such a decision, on our electoral politics and democracy. 

            When I reacted on Twitter about this news, I used a caveat “IF this news is true’ for I still hoped that it was a case of misreporting. However, all my hope was in vain. When I finally read the Order in Civil Appeal Nos. 3040-3041 of 2004, issues by a Bench of J. A K Patnaik and J. Sudhansu Jyoti Mukhopadhaya, dated July 10, 2013, news reports were proved right, and my faith in the wisdom of our highest Court, wrong.  An Order containing just 884 words, has indeed caused a situation that can turn dangerous for our democracy. Court was dealing with a decision that can have serious implications for our democracy, which is one of the basic features of our Constitution, yet the Order is not a speaking order when it came to the most important part of it. I say this with lot of pain as I have tremendous respect for the apex Court of this country. Let me explain.

In this Appeal, the Supreme Court upheld an earlier order of Patna High Court. The gist of the Order is that a person who has lost the right to vote in election is not an ‘elector’, and, therefore, can neither vote, nor contest in an election.

            The Supreme Court Order supports the above finding on the basis of a reading of the Representation of the People Act, 1950 and the Representation of the People Act, 1951, as follows:

(1)       According to Section 4 and 5 or of the 1951 Act, for membership of Loksabha and state legislative assemblies respectively, a person must be an ‘elector’.  

(2)      The term ‘elector’ is defined in the 1951 Act as “a person whose name is entered in electoral rolls of the constituency for the time being in force and who is not subject to any of the disqualifications mentioned in Section 16 of the 1950 Act”.

(3)       “Section 16(1)(c) of the 1950 Act provides that a person shall be disqualified for registration in an electoral roll if he is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections”.  

(4)       Section 62 of the 1951 Act is titled "Right to vote" and it provides in sub- section (5) that no person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police.

Problem is that the Order does not state how Section 62 that deals with “Right to vote” affects either the definition of ‘elector’, or Section 4 or 5 of the 1951 Act, dealing with qualification for contesting elections. The Supreme Court was clearly reading an independent section that deals with Right to vote into another independent clause that defines ‘elector’, to deny those people in police custody their legitimate right to contest elections. It is also unfortunate that the Court did not find it necessary to explain the logic or principles of interpretation behind this combined reading of two independent provisions. That, in my humble opinion, is not only bad in law, but also a sure case of judicial overreach.

There are two rights involved in an election. First is the right to vote, and the second is right to contest. Laws passed by the Parliament are very clear in its intention to keep the two rights different.  Let us elaborate the laws further.

Right to Vote: Section 62 of the 1951 Acts deals with the Right to vote in elections: This relevant provisions of the section reads as follows:

62. Right to vote.—

(1)       No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of by any constituency shall be entitled to vote in that constituency.

(2)       No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).

(5)       No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:

Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force.

A reading of the above sub-sections clearly shows the intention of the Parliament in passing the law. It is to disqualify person from voting if (i) the person is not on the electoral rolls, (ii) the person is suffering from any disqualification under Section 16 of the 1950 Act, or (iii) the person is confined in a prison, under whatever circumstances other than a preventive detention.

            Right to Contest Elections: Law is silent about the right to contest elections. It only prescribes qualifications and disqualifications for becoming a member of Parliament or Legislative Assemblies.  Barring certain special clauses that deals with reserved constituencies, the relevant clauses from 1951 Act, on qualifications are as follows:

4.     Qualifications for membership of the House of the People- A person shall not be qualified to be chosen to fill a seat in the House of the People, unless—

(d) in the case of any other seat, he is an elector for any Parliamentary constituency

5.    Qualifications for membership of a Legislative Assembly.—A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless—  

(c) in the case of any other seat, he is an elector for any Assembly constituency in that State

So the essential qualification in both cases is the necessity of being an ‘elector’ within the respective jurisdiction.

            Before we consider the disqualifications, let us look at this key term ‘elector’ as defined in 1951 Act:  

            2. Interpretation.—(1) In this Act, unless the context otherwise requires,—
(e) "elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950).

The highlighted portions clearly indicates that the only conditions to be met, to become an elector are- name in the electoral roll, and no disqualification under section 16 of 1950 Act. Please note, there is no reference to Section 62 or right to vote.

That takes us to Section 16 and 19 of the 1950 Act, which read as follows:

19. Conditions of registration- Subject to the foregoing provisions of this Part, every person who —

(a) is not less than eighteen years of age on the qualifying date, and
(b) is ordinarily resident in a constituency,

shall be entitled to be registered in the electoral roll for that constituency
16. Disqualifications for registration in an electoral roll.—

(1)       A person shall be disqualified for registration in an electoral roll if he—
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections.

(2)       The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:

Provided that the name of any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be re-instated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorising such removal.

A plain reading of the above provisions shows that the Parliament had considered disqualifying from the electoral rolls, those who are disqualified from voting, and in its wisdom (and rightly so), decided to restrict such disqualifications to only two cases mentioned in Section 16 (1) (c):

(i)                under the provisions of any law relating to corrupt practices
(ii)             other offences in connection with elections

It may also be noted that the Parliament had expressly included additional disqualifications for membership of Parliament and State Legislatures under Sections 8 to 10A of Chapter III of 1951 Act.

Clearly, Parliament did not consider it necessary or prudent to apply Section 62 disqualifications on right to vote, to Section 16 disqualifications on right to registration in electoral rolls. It cannot even be said that Parliament omitted to consider it, since they have though it fit to add two specific disqualifications mentioned under Section 16 (2) (c), apart from those disqualifications under Chapter III.

            The above provisions clearly establish that reading of Section 62 with Section 4 or 5, and section 2 (e) of the Act is not valid under any principles of interpretation.  In fact, Parliament wanted clause 2 (e) to be read with Section 62, and not the other way round as Section 62 (1) incorporates being an ‘elector’ as a necessary condition for getting the right to vote. Hence, the right to vote and right to contest elections are two distinct rights, with different implications.  However, Supreme Court chose to incorporate Section 62 into the definition of ‘elector’, without giving the logic behind doing so.

Therefore, a reading of law, “a person, who is confined in prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police is …. not an "elector" and is, therefore, not qualified to contest elections to the House of People or the Legislative Assembly of a State because of the provisions in Sections 4 and 5 of the 1951” has no sanction in statute.

            If the Supreme Court wanted to make a new law to this effect, it should have clearly said so. It cannot use the power to make laws based on a wrong reading of express provisions in a statue.

            Before concluding, let me state why this Order can be dangerous to our democracy. We have a multiparty system under which we have seen many a maverick leaders assuming power. Every State Govt, the Central Govt, Police officers and Judges- all have the power to get someone in police custody on some cooked up charges, at least for some time.  Bogus criminal cases against political opponents are as common as criminal politicians, in our country. If a government, or any of the other powers mentioned above wants to ensure that a particular leader or party is to be defeated in elections, they only have to ensure police custody of the concerned person or persons, for a short period when election process is on. By the time the person manages to get free from the police custody, it might be too late, and people might be cheated out of the democratic right of electing their choices. Think of the election that took place just after the emergency when lot of opposition leaders were still in jail.  

            Another problems with this Order is in the presumption of guilt and criminality even before the persons are charged by a court. Principle of natural justice that declares a person innocent until proven guilty is given a burial, for no reason. Until now, political challengers had the protection of courts and law of the land when those in power misuse their position to stop the former. Now, they have lost that protection, at the very hands of the protector of last resort!

            If political challengers are not given a level playing field and are left at the mercy of those in power, democracy will be in danger. Those who are opposed to ruling regime will be in police custody, elections reduced to a farce, and people left with no option other than that we are now witnessing in countries like Egypt and Syria. When we make a law, we must also consider its potential misuses, especially those with grave consequences. Therefore, with all due respect, I still hope the Supreme Court will realize the folly, and the danger, and review this Order in the larger interest of Democracy, Rule of Law, and Natural justice.

P.S: This post is prepared I good faith, and out of my own concerns and respect for Democracy, Rule of Law, and Natural justice. There is no intention whatsoever, to disrespect the judiciary. I will be happy to receive corrections, if any, on the letter or spirit of the Order or concerned provisions of law.

Wednesday, July 10, 2013

Fake Encounters: Myths and the Reality

In this post, I will try to summarize the arguments that I get to read on the issue of fake encounters, in the context of Isharat Jahan case.  I consider most of these arguments as mere myths generated either to protect the involved people or due to a genuine ignorance of rule of law and natural justice principles. I will record my counterarguments against each of these myths, under the heading reality.  Of course, the reality as I perceive it and, therefore, readers are free to disagree with them. Also, this is not a comprehensive list of issues concerning the subject.
I would not comment on the guilt or innocence of either the victims or the accused police officers as I genuinely believe, it is for the courts to decide after appreciating all the evidences and arguments presented.  What I am stating here are only those generic points that would apply to any case of alleged fake encounter. Ishrat Jahan case is only acts as a context for the discussion.
Finally, this post is not to support or defend any groups or terrorists, but to ensure that our nation remains morally and legally superior to all such evil forces.

All those who question fake encounters are traitors and anti-nationalists
Nation is not a piece of real estate, but its people. If those people are killed other than through due process of law, every true loyalist of the nation will question it.

At least some loyalists would like to see the State behaving in a better manner, and adhering to better values than terrorists who are out to destroy the nation.

Fake encounters happen throughout India
All the more reason to pursue cases that manage to reach the stage of investigation or prosecution, to its logical conclusion.  No civilized nation can treat fake encounter murders as an acceptable practice.

The argument that guilty escaped prosecution in many cases is not a valid defense in any other case. If one knows details of other such cases they should pursue those cases as well, and ensure punishment to the guilty instead of using that knowledge to defend the accused elsewhere.

Ishrat was a terrorist.
Whether she was a terrorist or not is irrelevant in a case of fake encounter. Indian Laws do not permit custodial murders of even hard core terrorists.

There is no evidence to that effect other than unverified statements and alleged intelligence inputs. No cases were filed against her. No look out notice or rewards were declared on her.

Even if there were credible evidences suggesting that she was involved in terror activities:
    1.   She should have been interrogated by various agencies to find more about the terror nexus
    2.  She should have been given an opportunity to defend the charges and prove her innocence

Ishrat was in the company of two Pakistani terrorists
Again irrelevant, as far as the charge of custodial murders are concerned. It would have been relevant if Ishrat herself was on trial for her alleged terror links.

There are counter allegations that these two alleged Pakistanis were in the custody of same accused police officers for much longer period and, therefore, Ishrat could not have been with them.

In any case, these are circumstantial facts that investigators have to convince the court. Why prejudge and object the very investigation?

Ishrat Jahan case is given importance because of Narendra Modi’s involvement.
As of now, investigating agencies have not named NaMo of anyone in his Govt. If they find evidence of their involvement, they should not be exempted from the law of the land.

There is nothing wrong in politicizing illegal acts of Govts. Nation cannot afford mutual protection by political parties. If rulers from one party commit a mistake, the opposition must take it up and ensure justice done. Similarly, if a party in power commit crimes the Govt that succeed must not help in pushing them under the carpets but ensure prompt prosecution.

Narendra Modi is being projected as the principal opposition BJP’s PM candidate. So, it is natural for media and people to look at how his Govt is dealing with such investigations and allegations so that everyone knows what alternative we are likely to have if the present rulers are voted out.

This case is a CBI and Congress conspiracy
CBI did not get involved in this case suo moto. They were asked to investigate by the High Court of Gujarat, at the suggestion of Gujarat Govt itself.

Again, it was not Central Govt that pursued the matter. In fact, they are alleged to have stone walled initial inquiries to protect the involved IB officer. It was only when Judiciary acted on the complaints, everyone was forced to act.

Ishrat case gets publicity only because she is a Muslim
Only such people who consider Ishrat a terrorist only because she is a Muslim, can advance such an argument.

There were enough cases and convictions in the past involving Hindu/other victims. Difference was that in no such cases there was so much noise being made in favour of accused murderers.

Questioning fake encounters affect morale of the forces.
Morale cannot be based on license to commit murders. Men in uniform were punished in many false encounter cases in the past. If those instances did not affect the morale, one more such case will not affect it.

Threat to life of our own citizens is a not a price that we can afford to pay for keeping high morale of misguided people in forces.

Police has a right to conduct encounters and kill terrorists to protect innocent citizens
It is true that police has the right to shoot and kill in an armed conflict with terror suspects. However, that power is very limited and not a license to murder at will. Good faith and justification for shooting must be established by the concerned officers.

This case will destroy our intelligence gathering
That is a very poor opinion on our intelligence agencies. Merely because one of their officers is accused (not yet done) of taking part in a deliberate conspiracy to murder some innocents, for whatever reason, our intelligence officers will not change their allegiance and loyalty towards the nation and its people.

Police acted on the intelligence inputs to protect the CM
Intelligence inputs are not sacrosanct evidences. They are mere inputs (often received from questionable sources) for the police to verify and proceed further.

Reader may consider that in most cases where terror attacks really took place, intelligence inputs were not enough to pin point the suspects as to prevent the attack itself. The inputs in all those cases were mostly generic in nature. Only in those different cases where alleged terrorists were on their way to kill Gujarat CM Narendra Modi, the inputs were so precise that Gujarat encounter teams could intercept and eliminate them well in advance. Isn’t something fishy?

Also, please note that the intelligence inputs and encounters stopped abruptly after the so called encounter team ended up in jail. Logically, shouldn’t terrorists be increasing their efforts since these brilliant encounter specialists are either absconding or in jail? Instead, they just stopped their attempts.  Again, something very fishy?!

Encounters and Fake encounters are same
These two are as different as it can get.  Encounter comes under genuine use of force to counter an attack on the police or to take custody of suspects.

However, fake encounters are nothing but custodial murders of suspects, already in custody. This is what our Supreme Court had to say on such killings :

Fake encounter killings by cops are nothing but cold-blooded brutal murder which should be treated as the rarest of rare offence and police personnel responsible for it should be awarded death sentence. They should be hanged

Our judicial system is lenient to the terror suspects
I agree there is a delay in our judicial process, primarily because, unlike people on the street judiciary cannot arrive at judgments without appreciating all available evidences and arguments.  

Once a person is caught and put on trial, that person’s ability to do any further damage is nil. At the same time that person can be a source for much more information about the terror networks. Killing them deprives us such insights.

The difference between a terrorist and a police officer is that the latter is here to protect our people and systems while the former is here to try and destroy both. If our police officers indulge in destroying our rule of law and justice systems that will only further the objectives of terrorists who are out to prove our nation as a failure!

If you question these officers how do you justify anti-Naxal operations and anti-terror operations in North-East or J&K?
Again, the comparison is out of sheer ignorance of military operations. In any genuine encounter, our soldiers operate under the risk of getting killed from a counter attack. It is this assumption of risk to one’s own life that makes such encounters legal and an act of bravery.

If some soldiers or policemen commit murder of people already in their custody, there is no risk or bravery involved.  So, such a comparison is insulting to a true soldier.

Pease note that even in our Army, there were cases of fake encounters, allegedly conducted for medals and glory. The fact that our Army did not protect its officers in such cases must say something to the protectors of Police officers who are accused of custodial murders.

Those who indulge in terror cannot claim right to fair trial.
Such an argument may suit lynching and mob-justice, but definitely not to the rule of law.

We have seen cases (latest is a Mumbai court verdict sentencing as many as 13 policemen in a case where they apparently undertook a contract killing in the name of encounter of an underworld member) where policemen are accused of implicating innocent persons to please their political masters or bribe givers.  Nobody can say our police forces consist only of angels that they will never accuse any innocent person, of any crime. Therefore, if a person is accused of any crime, that person must get the right to defend his innocence, before a court.

Why should I worry about fake encounters since I do not indulge in any illegal activities?
That question comes from the presumption that police is always right when they charge any person of crime. As explained above, there are black sheep even among policemen.

What if, tomorrow you cross the path of an evil policeman or politician and he uses his contacts to create some flimsy evidence against you, and eliminate you? 

If you still think it will never happen to you since you will never cross the path of policemen of politicians, you may read about a shocking incident that occurred in the heart of New Delhi, on 31st March 1997, when some overzealous policemen did not think twice before shooting to death two unarmed businessmen on mere suspicion that one of them might be a dreaded criminal on the run.  Police did not even consider it necessary to verify the identities of the suspects, in spite of following them for almost whole day. Supreme Court observed, “The possibility of a hefty cash reward and accelerated promotion acted as a catalyst and spurred the police party to rash and hasty action”.

Please think before it becomes too late!