No legal bar for Advani to become President due to SC verdict...

No legal bar for Advani to become President due to SC verdict on Ayodhya

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Recently, the Supreme Court ruled that Lal Krishna Advani, Murali Manohar Joshi and certain other leaders of BJP will have to face conspiracy charges in the Babri Masjid demolition case of 1992. So, these leaders will now have to face the trial in the criminal case as accused. This development has led to widespread media belief that Advani and Joshi are now completely out of the race for the President election that will take place in July 2017, and for the Vice President election that will take place in August 2017, a few months from now. It is being reported that Advani or Joshi cannot be appointed as President of India since they are now facing criminal trial as accused due to which they are said to have become ineligible for the said appointment. However, this is not correct from the legal point of view. There is no legal bar on a person who is accused of an offence from becoming President or Vice President. Of course, there may be questions of ethics and propriety. But, then, those are different questions altogether. Purely from legal point of view, there is no such bar. Let me explain it.

Article 58 of the Constitution of India lays down the qualifications for election as President. As per this, a person is eligible for election as President if he:

(a) is a citizen of India,

(b) has completed the age of thirty-five years, and

(c) is qualified for election as a member of the House of the People.

Article 58 further provides that a person shall not be eligible for election as President if he holds any office of profit under the Government of India or the Government of any State or under any local or other authority subject to the control of any of the said Governments. However, it may be clarified that being Member of the Parliament is not equivalent to holding any office of profit under the Government.

[Note: Broadly speaking, similar qualifications are laid down in Article 66 for a person to be eligible to become Vice President of India, though there are some minor variations.]

Lal Krishna AdvaniNow, in the case of Advani and Joshi, these conditions are satisfied. They are, of course, qualified for election as a member of the Lok Sabha (House of the People), and in fact, both Advani and Joshi are already sitting members of Lok Sabha. Had they been disqualified to be member of Lok Sabha, they would not have been sitting members thereof.

Nonetheless, let me examine what are the qualifications for becoming a member of Lok Sabha under the Constitution and the relevant laws.

Article 84 of the Constitution lays down qualifications for membership of Parliament. As per this, a person can become a member of the Lok Sabha if he—

  • is a citizen of India,
  • makes and subscribes an oath or affirmation according to the form prescribed in the Constitution for this purpose,
  • is not less than 25 years of age, and
  • possesses such other qualifications as may be prescribed by or under any law made by Parliament.

It may also be pointed out that Article 102 of the Constitution lays down certain disqualifications for membership of Parliament. As per this, a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

  • if he holds any office of profit under a Government, other than an office declared by Parliament by law not to disqualify its holder;
  • if he is of unsound mind and stands so declared by a competent court;
  • if he is an undischarged insolvent;
  • if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
  • if he is so disqualified by or under any law made by Parliament.

It is also provided therein that a person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule (i.e., on the grounds of defection).

Now, the Representation of the People Act, 1951, is the relevant law that has been made by the Parliament in this regard, laying down certain further qualifications and disqualifications for being member of Parliament. For a seat in Lok Sabha which is not a reserved seat for SC / ST, etc., i.e., for a general seat (not in Sikkim), the only additional qualification required under this law is that the person must be an elector or voter in any Parliamentary constituency in India.

It goes without saying that Advani and Joshi fulfil all these requirements.

Then, the above Act also lays down certain disqualifications for being member of Parliament. These disqualifications are:

  • Under Section 8 due to conviction for certain offences.
  • Under Section 8-A due to having been found guilty of corrupt practices.
  • Under Section 9 due to having been dismissed from an office under Government, etc., for corruption or disloyalty.
  • Under Section 9-A for certain Government contracts for trade or business which are subsisting.
  • Under Section 10 for holding office under certain companies in which the appropriate Government has at least 25% shareholding.
  • Under Section 10-A for failure to lodge account of election expenses.

It may be pointed that both Advani and Joshi are not disqualified under these provisions. In any case, as mentioned above, they are already sitting members of the Lok Sabha, which clearly implies that they are fully qualified to be members of Lok Sabha and are not disqualified for that purpose.

Then, there is an Act called the Presidential and Vice-Presidential Elections Act, 1952. Section 5-A of this Act lays down that any person may be nominated as a candidate for election to the office of President or Vice-President if he is qualified to be elected to that office under the Constitution. So, no new qualifications are laid down in this Act.

It is also pertinent to mention that there is no provision in any law which disqualifies a person from becoming President or Vice President or a member of the Parliament merely because he is an accused in an offence. While conviction in certain offences may disqualify a person from contesting such elections, merely the fact of being an accused in any offence (and thereby facing criminal trial) does not debar a person from contesting such elections.

In view of above detailed examination of the constitutional and legal provisions, it is thus unequivocally clear that there is no legal bar for a person to become President or Vice President of India, merely because he is an accused in a criminal case and is facing a criminal trial. Of course, in case of a conviction in certain offences, such person would become disqualified for that purpose. But, in the case of Advani and Joshi, there is no conviction which would disqualify them for these posts. Mere pendency of a criminal case is no legal bar.

As an aside, let me point out that Navjot Singh Sidhu, who has recently been elected as a member of the legislative assembly of Punjab and has been made a Minister in the Punjab Government, was convicted by the high court with imprisonment for a period of 3 years in a case of culpable homicide; however, his appeal is pending before the Supreme Court and the order of the high court has been put under suspension during pendency of his appeal. So, what we notice is that even a person convicted of a serious crime is being allowed to get elected as MLA and then even become a Minister, under the same Constitution of India. As regards a person who has not been convicted but is only facing a criminal trial, as already mentioned above, there is no legal bar for contesting election either for being a member of the Parliament or for the post of the President of India or Vice President of India.

Therefore, if Prime Minister Narendra Modi (or his party) wants to nominate Lal Krishna Advani or Murali Manohar Joshi for election as President of India (due in July 2017) or as Vice President of India (due in August 2017), there is no legal bar. Of course, as I pointed out at the beginning, there may be questions of ethics and propriety, but then those are different issues altogether. In fact, purely from political point of view, nominating them for these coveted posts may perhaps be politically beneficial for BJP in view of the politics surrounding the issue of Ram Janmabhumi and Babri Masjid dispute.

Moreover, it is also noteworthy that Article 361 of the Constitution provides immunity to the President of India from any criminal prosecution (whether new criminal proceedings or continuing old criminal proceedings) during the term of his office. Therefore, if either Advani or Joshi is appointed as President of India, the criminal prosecution against him in the Babri Masjid demolition case will have to be discontinued at least during the term of his office if so appointed (though it may be restarted after he demits the office of President). It is however germane to point out that no such immunity from criminal prosecution is available to the Vice President of India.

In view of this, the media reports and speculations are incorrect when they state that Advani and Joshi are completely out of the race for the President and Vice President elections. There is no legal bar, at least. It is up to the Prime Minister and his party to take a call in this regard, whether to respect their tallest leaders by nominating them for election to these posts. It is these leaders who had laid foundation for the success of BJP.

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