Taslima Case Accountability of Elected Representatives

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Economic and Political Weekly September 8, 20073606

that should engage our attention in theseand other such events is the criminalintimidation against the artists or writers,which must be judged in terms of theliberal values the Constitution incorporates.By the Constitution we have entrusted tothe state limited powers, the transgressionof which enables us to act politically andalso legally. Without dwelling at length

on the effectiveness of the existing avenuesof redress against the state at this point,it is important to acknowledge that freespeech, freedom of association andassembly enable us to act politically againstarbitrary actions by the state, even whileseeking legal redress through courts, den-ing rights more precisely in the process.

What should be done when sittingmembers of the legislature or Parliamentdirect a mob to phyically attack a writer,an artist or any other person? What stepsare open to citizens to check such obnox-

ious conduct of elected representatives?One way of course is to accept it as proofthat people get the representatives theydeserve. The more constructive way oflooking at these problems is to take

measures to rebuild institutions. The courtsmay be persuaded to drop their abbyliberal rhetoric and to rm up the juris-

prudence on free speech and other rightsrelated concepts. How shall we deal withthe political maa or bandits who getelected to representative institutions atvarious levels in the state? The challengeis now before the courts to innovatively

craft a jurisprudence just as they did inthe case of the executive in the 1970swith the doctrine of prospective overrulingand the concept of basic structure of theConstitution.

Interesting Steps

In this connection the steps taken byAsmita Collective and Womens WorldIndia to experiment in courts are interest-ing and worth debating.1 These steps ifsuccessful hold the possibility of mould-

ing a political culture and disciplining theconduct of elected representatives. Thesetwo groups have led a petition in theAndhra Pradesh High Court underArticle 226 to issue a writ of quo warranto

seeking the removal of the four legislatorsand the cancellation of the registrationof the AIMIM party by the ElectionCommission.

This incident raises several very seriousconcerns for human dignity, the right of

persons to life and liberty, freedom ofmovement and free speech, besides raisingquestions related to the conduct of

elected representatives arising from theirunrestrained use of hate speech, physicalassault and death threats. Assaulting aforeign national with a valid visa andforcing her to leave the city is against allnorms of democratic functioning andinternational relations besides beingdirectly in violation of the protectionsavailable to foreigners under Article 21of the Constitution of India especially aslaid down in Chandrima Das (2000 AIR(SC)988). The afrmation of the rights to life,

personal liberty, freedom of movement

and freedom of expression have been wellenunciated in the Indian Constitution and

protected by courts over several years.The primary issue raised in the peti-

tion is the public conduct of elected

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Economic and Political Weekly September 8, 2007 3607

representatives: members of the AP legis-lative assembly. Election law in India

prescribes procedure for disqualicationof candidates during elections in theRepresentation of Peoples Act (RPA),1951 and of elected members on vespecically stated grounds under Article191 and under Schedule X of the Con-stitution. The RPA under Section 8

prescribes grounds for disqualication ofpersons convicted for certain offencesfrom membership of Parliament and statelegislature. Schedule X of the Constitutiondetails the procedure for disqualicationon grounds of defection. Article 191 alsosets out the ground for disqualication ofmembers, but the court has also held thatArticle 191 does not exhaust the groundsof disqualication of members. Publicmisdemeanour, which includes rioting,criminal intimidation with deadly weaponsand death threats do not nd mention as

explicit grounds of disqualication, butcan be argued into the framework of ac-countability in wider terms.

There is generally no code of conductprescribed for elected representativesduring their term of office. The onlyregulation is the oath taken by them beforeentering ofce. The prescribed oath forthe legislator is found in the Third Sched-ule and we are of the view that weightshould be attached to the oath taken.Legislators solemnly afrm true faith andallegiance to the Constitution and under-

take to work for the integrity of the nation.Therefore their conduct, while in ofce,should abide by the oath. The only pun-ishment for perjury of the constitutionaloath in our view is immediate loss ofofce. The oath of ofce insisted uponunder the Constitution is the prescriptionof a fundamental code of conduct in thedischarge of the duties of these highofces. The oath binds the person through-out his tenure in that ofce, and he ex-tricates himself from the bonds of theoath only when he frees himself from the

ofce he holds. Breach of this fundamentalconduct of good behaviour may result inthe deprivation of the very ofce he holds(K C Chandy vs Balakrishna Pillai, 1986AIR(KER) 116).

The oath stipulated for the members ofthe legislature shows that they are expectedto owe total allegiance to the Constitutionand abide by the laws of the land. In 1963,Parliament brought forward the SixteenthConstitutional Amendment Act, throughwhich it introduced amendments to thesub-clauses that it would be reasonable

restriction to legislate on the freedoms ifit is made in the interests of the sovereigntyand integrity of India. A correspondingamendment was introduced in Article 84and Article 173 and the Third Scheduleto the Constitution and the oath asamended read I solemnly afrm and beartrue faith and allegiance to the Constitutionas by law established and that I will uphold

the sovereignty and integrity of India.The right to vote has been recognised

as a fundamental right under Article 19(1)of the Constitution. The Supreme Court inPeoples Union for Civil Liberties (PUCL)and another Petitioners with Lok Sattaand others and Association for DemocraticReforms vs Union of India and another(2003 AIR (SC) 2363), delineated thisright as follows: The right to vote at theelections to the House of People orLegislative Assembly is a constitutional right

but not merely a statutory right; freedom

of votingis a facet of the fundamentalright enshrined in Article 19(1)(a). Everyfundamental right has implicit in it aremedy. Implicit in the right to vote, bythat token, is the remedy of recall ofelected representatives. The conditions ofrecall do not necessarily have to be con-ned to the grounds of disqualicationstated in the Constitution or the RPA,1951. Recall is a remedy that invokes notmere disqualication but forfeiture ofofce for not satisfying the grounds forcontinuance.

English law provided a proceeding toforfeit the ofce by a writ of scire facias(which was replaced by quo warranto),an established medium for the determina-tion that an ofce held during good

behaviour was terminated by mis-behaviour: When the framers employedgood behaviour, a common law term ofascertainable meaning, with no indicationthat they were employing it in a new anddifferent sense, it might be presumed thatthey implicitly adopted the judicial en-forcement machinery that traditionally

went with it [Berger2002: 131].The Supreme Court has observed that

The trite saying that democracy is for thepeople, of the people and by the peoplehas to be remembered for ever. In a demo-cratic republic, it is the will of the peoplethat is paramount and becomes the basis ofthe authority of the government. The willis expressed in periodic elections basedon universal adult suffrageThe momentthey put in papers for contesting the election,they are subjected to public gaze and publicscrutiny (Para 15, 2003 AIR (SC) 2363).

By this token elected representativesbecome the link between the governmentand the people and are accountable to the

people. In the event of such representativesfailing the test of good behaviour duringtheir term the fact of public scrutiny andaccountability must lead to forfeiture ofoffice. The law as it stands does notspecify procedure to enforce account-

ability during the incumbents tenure inelected ofce, particularly with respect to

public misbehaviour. Given this lacuna inthe law, the petitioners felt it was neces-sary to request the court to lay down thelaw constructively in this particular case,which will also serve as an important

precedent for future recourse to remedyshould the unfortunate need arise.

Condition o Behaviour

Rioting with deadly weapons, volun-

tarily causing hurt, mischief causingdamage to property, trespass after prepa-ration for hurt, assault and wrongful restraintand criminal intimidation come within themeaning of grave misbehaviour and con-stitute failure of the public scrutiny test.Since the claim to enjoyment of publicofce with undiminished perquisites and

privileges is on the implicit condition ofgood behaviour, the petitioners have soughtthe issue of the writ ofquo warranto ongrounds that the claim to ofce has now

been forfeited through the aforementioned

acts of misdemeanour.The presumption in the holding of

elected ofce is that the tenure is one thatis limited by good behaviour, meaningthereby that whatever the period stipu-lated in law, it does also imply that theofce can be forfeited on misbehaviourwhether the term is over or not, and thesubsequent criminal processes followingsuch forfeiture may follow. That there isno express provision for terminationshould not become an insurmountableobstacle because the law has recognised

time and again that where the end is re-quired the means are authorised, even ifnot expressly stated. It is also true thatthe disqualifications specified are notexhaustive. To quote the classic expressionof Marshall, CJ: Let the end be legitimate,let it be within the scope of the consti-tution, and all means which are appropriate,which are plainly adapted to that end,which are not prohibited, but consist withthe letter and spirit of the constitution, areconstitutional (Mc Culloch vs Maryland,4 Wheat (17 US) 316, 421(1819)).


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Economic and Political Weekly September 8, 20073608

It is the petitioners belief that thelegislators have morally forfeited theirright to hold ofce and the decision ofthe court in this regard is awaited.

Email: [email protected]

Note

1 Asmita Resource Centre for Women is committedto the securing of equal rights for women underthe constitutional scheme and has campaignedfor the past 16 years on womens right to freespeech and their right against censorship bystate and private actors. It has provided coun-selling and legal aid to women victims ofviolence; provided training to organisations inrural areas in Andhra on designing and imple-menting programmes that are gender sensitive;supported networks of persons with disabilitiesin the state; organised women writers, publishedanthologies of creative writing by women,

dalit and Muslim writers, and has initiatedcampaigns on secularism and diversity.Womens World (India) is part of a world-wide network of women writers thatworks to counter censorship and protectsthe right to free speech. Formally launchedin 2003 it has more than 200 membersand was one of the rst to protest againstthe smear campaign against actor Khushbooin Tamil Nadu. It also protested againstthe ban by the West Bengal government

on Taslima Nasreens autobiography andoffered her protection and support after theinitial fatwa was taken up by WomensWorld (International). Writers like NabaneetaDev Sen, Jeelani Bano, Mridula Garg,Rukmini Bhaya Nair, Abburi Chaya Devi,Bama are members of the network.

Reference

Berger, Raoul (2002): Impeachment: TheConstitutional Problems, Harvard Univer-sity Press.

EPW

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Taslima Case Accountability of Elected Representatives