Thursday, July 11, 2013

MPs, MLAs will be disqualified as soon as they are convicted: SC

In a big leap towards cleaning up Indian politics, the Supreme Court on Wednesday ruled that MPs and MLAs will be immediately disqualified if they are convicted in a criminal case by a trial court. The court struck down Section 8 (4) of the Representation of the People Act, 1951, which protects convicted MPs and MLAs from disqualification if they appeal before a higher court within three months, on the ground of pendency of appeal.
The court, however, said its order will not apply to sitting MPs and MLAs who have filed appeals against their convictions in higher courts. But those convicted after this verdict will not be saved by this provision, said the court, adding that Parliament had exceeded its powers in providing this immunity.

Discarding the Centre''s argument, the bench of Justices A K Patnaik and S J Mukhopadhaya 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 ruled that no relaxation could be given to a sitting MP or a MLA when an ordinary citizen is barred from contesting elections if he stands convicted on the date of polling. "If, because of a disqualification, a person cannot be chosen as a member of parliament or state legislature, for the same disqualification, he cannot continue as a member of parliament or the state legislature," it said.

The bench also rejected the Centre''s argument that the disqualification of a convicted MP or MLA was only "deferred" and not rendered ineffective. It held that the constitutional provisions "expressly prohibit" parliament from deferring the date from which disqualification will "come into effect" and so Section 8 (4) of the Representation of the People Act is "ultra vires".

"Once a person, who was a member of either house of parliament or state legislature becomes disqualified by or under any law made by parliament under Articles 102(1)(e) and 191(1)(e) of the constitution, his seat automatically falls vacant and parliament cannot make a provision to defer the date on which the disqualification of a sitting member will have effect," it said.

The court accepted the argument of senior advocate Fali S Nariman, who was appearing for PIL petitioner Lily Thomas, and another petitioner S N Shukla, that the constitutional provisions provide for immediate disqualification on conviction under different charges including corruption, violence against women and sexual offences, customs violation, illegal use of drugs and inciting communal hatred.

The bench rejected the Centre''s argument that the lawmakers will be left with no remedy in case of "frivolous convictions" that may later be set aside. The bench said appellate courts have the powers to stay the convictions under Section 389(1) of the Criminal Procedure Code. The lawmakers will not be disqualified in such cases, it said.

Representation of The people act

* SECTION 8(4) of the Representation of the People Act says a sitting MP or MLA "shall not" be disqualified till the appellate court decides on his appeal against the first conviction, filed within three months.

* IN 2005, a 5-judge SC bench upheld Section 8(4) as a reasonable classification that does not violate Article 14 of the Constitution.

* ACCORDING to APDR, an NGO, 162 sitting Lok Sabha members have criminal cases pending against them.

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