What is the ordinance really all about ?

Court had ruled even an ordinary citizen is barred from contesting elections if he stands convicted on date of polling

On July 10, 2013, the Supreme Court of India held Section 8 (4) of the Representation of People Act unconstitutional.
The court order said that an MP or MLA must be immediately disqualified if convicted by a court in a criminal offence with a jail sentence of two years or more.

Section 8 (4) of the Representation of the People Act, 1951, protects convicted legislators from disqualification if they appeal before a higher court within three months. This, the apex court said was unconstitutional.

Holding that Parliament had exceeded its powers in providing such an immunity, the court ruled that Parliament lacked legislative competence to enact this provision since it was in direct conflict with Articles 101 and 102, which stipulate the principles for those who want to contest elections as well as those who have been elected.

The court had ruled that no relaxation could be given to a sitting MP or an MLA when an ordinary citizen is barred from contesting elections if he stands convicted on the date of polling.

According to the government, when this matter came up in an all party meeting, the unanimous view – including that of the BJP’s – was that in their political life, public persons do come in conflict with the law. Sometimes, they are even convicted on criminal charges. Their rivals can institute cases against them. They must have as much right to be heard and to appeal against their conviction as anyone else.

Armed with this defence, the government decided criminal persons who are elected MPs or MLAs must be given the chance to retain their seat (subject to truncated powers and privileges) till they appeal against their conviction.

Accordingly an ordinance was drawn up and cleared by Cabinet.

And even as senior ministers, including Finance Minister P Chidambaram, Law Minister Kapil Sibal and others were defending the ordinance, it appears that the leadership of the BJP developed cold feet.

The top leadership of the BJP denies it ever agreed to an ordinance. It says at the all party meeting, it merely said that the legislation should go to the Standing Committee. But those from the government who were present at the meeting contest this.