Friday, September 27, 2013

BJP creates infantile ruckus over the ordinance on immediate disqualification of MPs, MLAs after the Patna High Court judgment and the Supreme Court Order of July 10, 2013. Rahul Gandhi joins BJP bandwagon

It is the Patna High Court's common order of April 30, 2004 that is at issue. When an appeal came before the Supreme Court, Justice A.K.Patnaik found no infirmity in the high court's interpretation. He cited the argument of the high court order: "A right to vote is a statutory right, the Law gives it, the Law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The Law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away.” On the face of it, it has the tone of arbitrariness, which was in need of being contested. It had no qualifications, no nuances, and no room for challenging the conviction of a lower court before a higher court. It does not take into account "unlawful custody". It assumes that all detentions are "lawful custody". There was need for amendment to the law to remedy the arbitrariness of the Patna high court which the Supreme Court refused to remedy. The BJP like the habitual opposition party it is has been quibbling about the amendment without challenging the basic idea behind the amendment. The BJP was enraged by the ordinance that the government had issued. It was politics as usual both for the government and for the opposition parties including the BJP. The ordinance can be misused and all governments, including BJP-led NDA have indulged in it. But this does not of course disqualify the BJP from challenging the misuse of the powers of issuing an ordinance by the Congress-led UPA. There was not much legal merit in the BJP's objection though it was a politically valid objection. There are two issues involved here. If a person is under arrest, which the Patna high court order referred to as "lawful custody" then he or she loses the right to vote, of being an elector. In India, if your name is not on the electoral list, you lose the right to contest an election, either for the state assembly or the Lok Sabha. All the political parties, including the BJP, agreed at an all-party meeting during the Monsoon Session of parliament that that there was a need to bring an amendment to the Representation of People Act (RPA. The amendment came in the form of two bills. The first bill amending the RPA with regard to losing your right to vote if you are in prison has been passed. The second bill amending the RPA with regard to allowing for convicted MPs and MLAs the time and opportunity to go in appeal to the higher court within the specified period but with qualifications was brought in. It was decided to take away the right of the legislator to vote and to draw his emoluments when appealing the lower court's verdict. This was a sensible argument. The BJP wanted changes in detail. It did not oppose the amendment in principle. There was a hue and cry among the urban middle classes -- the chattering classes -- and their echo chambers in the English language TV news channels that this was a vile attempt to protect the "criminal" politicians, and that if allowed to stand the Patna high court order upheld by the Supreme Court would check the criminal elements in politics. It was a puerile argument at the best of times without allowing for the due process of law to be played out. What these people should have wanted is a speedy disposal of cases so that the litigation does not last for ever and the criminal elements among the politicians do not escape the law. But the honesty zealots in India are anti-democratic and undemocratic when it comes to preaching and imposing their ill-conceived public morality. The BJP has been an unthinking opposition party. It feels a compulsion to jump at every move of the government and it feels that it is duty-bound to do so as an alert and responsible national party in opposition. But it has been playing truant in this issue by not stating whether it agrees with the Patna high court order and its endorsement by the Supreme Court. The utterly immature and even irresponsible Congress vice-president Rahul Gandhi, who lives in his world naive and flawed idealism seemed to have felt that the BJP was stealing a march over the discredited Manmohan Singh government, and he thought that he should join the moral chorus. He joined the BJP bandwagon on the basis of principle, and he was careful to say that he was stating his personal opinion. Given the vassalage of Congress to Sonia Gandhi-Rahul Gandhi, party communication chief Ajay Maken had no option but to say that the view of Rahul Gandhi was the view of the Congress party. Rahul Gandhi did not mean to challenge the government, he did not intend to insult prime minister Manmohan Singh or embarrass the Congress party. He felt morally obliged to state his personal view. Moral views of unthinking people are no moral views in the deeper sense of the term. Perhaps BJP leaders and Rahul Gandhi should take lessons in Kantian ethics. That is the only way they can redeem themselves and they can emerge as sensible political players in a maturing democracy like that of India.

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