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LATEST NEWS UPDATES | When an elected member is convicted -Utkarsh Anand

When an elected member is convicted -Utkarsh Anand

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published Published on Mar 4, 2013   modified Modified on Mar 4, 2013
-The Indian Express

But for their status of being sitting MLAs, former Haryana chief minister Om Prakash Chautala and his son Ajay could have been staring at the end of their political careers after being sentenced for 10 years in a corruption case. Instead, father and son remain legislators after they moved the Delhi High Court, thanks to the existing provisions of 1951’s Representation of the People (RP) Act.

For a convicted person to contest an election, it is necessary to get his or her conviction stayed. Under the RP Act, however, an MP or an MLA who has gone into appeal does not require a court’s discretion to judge if the conviction should be stayed to prevent his or her disqualification.

Navjot Singh Sidhu had chosen not to exercise this option. Convicted in a culpable homicide case by the Punjab and Haryana High Court, the cricketer-turned-BJP MP had first resigned as MP, got his conviction stayed by the Supreme Court, then contested and won back the Amritsar seat. Actor Sanjay Dutt, convicted in the 1993 Mumbai blasts case, had made a similar appeal but it was turned down, preventing him from contesting the 2009 elections on a Samajawadi Party ticket from Lucknow.

This aspect of law, which grants such protection to convicted MPs and MLAs without interference from courts, will now need to pass the test of legitimacy — once again. Years ago, a five-judge constitution bench had upheld the legality of a then impugned provision in the RP Act. Now, a two-judge bench headed by Justice A K Patnaik has reserved its verdict on the question if section 8(4) of the Act is constitutionally valid and whether Parliament had the legislative competence to lay down this law.

Section 8(4) rules that disqualification of a sitting MP and MLA “shall not” take effect until his appeal, moved against the first conviction within three months, is finally decided by the appellate court. In effect, the legislator remains one until he or she has exhausted all his or her options for appeal and if each appeal has been turned down, or if the house he or she represents has been dissolved in the interim.

In its 2005 verdict on the K Prabhakaran vs P Jayarajan case, the constitution bench had upheld the validity of section 8(4) on the question whether classifying lawmakers as a category distinct from other citizens, who could not participate in the electoral process if convicted, was a reasonable classification and not violative of Article 14 (right to equality).

It held that the exception was created to prevent reduction of the strength of the house and the party the member belonged to. The judgment considered instances when the government was surviving on “a razor-edge-thin majority” and noted “disqualification of even one member may have a deleterious effect on the functioning of the government”. It also took into account the complications that would arise should a convicted member be later acquitted.

Fresh look

This time, the Supreme Court is examining Section 8(4) in the context of other constitutional provisions that call for immediate disqualification of a member is convicted of a crime entailing punishment of more than two years.

Having taken up PILs by advocate Lily Thomas and NGO Lok Prahari, the court in January asked the Centre to defend the validity of the section on two counts: if it was in conflict with Articles 101 and 102 that provide for immediate disqualification and vacation of seats on conviction; and if it was ultra vires of Article 14.

In an affidavit, the Centre reproduced the reasoning of the Prabhakaran judgment, saying this privilege was given to ensure the “very existence and continuity of the house democratically constituted” and bring in certainty when the ruling party may be surviving on a thin majority. It claimed the protection was given to the house and not to the members — again an excerpt from Prabhakaran’s verdict.

After the government brought up the Prabhakaran judgment, senior advocate Fali S Nariman, appearing for Thomas, argued that the bench should confine its deliberation only on issues not dealt with by the constitution bench. That bench, the larger one, had upheld section 8(4) as a “reasonable classification” not violative of Article 14, Nariman said; the current case brings up Articles 101 and 102.

The bench accepted this, saying it would look into the question whether Parliament could have validly enacted Section 8(4) when Articles 101 and 102 stipulate immediate disqualification.

Nariman and S N Shukla, general secretary of the NGO, asserted that the protection was not to the house since there were enough provisions in the Constitution on how and on what majority the House could function.

They cited the laws that kept even a voter involved in a crime out of the electorate process. At one stage, even the bench observed that Parliament could have this immunity for its members, but not in the form of a law and rather by way of a constitutional amendment.

Court and government

The bench asked additional solicitors-general Siddharth Luthra and Paras Kuhad what empowered Parliament to defer disqualification when constitutional provisions apparently talk about its coming into effect immediately.

When they raised the findings of the larger bench, the two-judge bench said their discussion pertained to the constitutional validity of section 8(4), which had not been argued in the Prabhakaran case.

The Centre produced data to show the rate of acquittals in India is almost twice the conviction rate; if a lawmaker is thrown out after a first conviction and is acquitted later, the government said, it would result in an irreparable loss. The bench shot down the argument. If section 8(4) works on a premise that a conviction would mean a conviction only by the final appellate court, the bench observed, then the same relief should be granted to other citizens, who cannot contest if they were convicted on the date of filing nomination.

The ASGs then said Parliament’s power to define the circumstances under which a member could be disqualified would also include the powers to lay down when and how this disqualification would take effect. The bench called this the government’s “best” defence, but made it clear: “If we think that the intention of the Constitution is to oust them (convicted MPs, MLAs), out they go. And if they want anything else, they will have to amend the Constitution.”

THE LAW& WHEN IT CAME UP

O P Chautala

He and son Ajay appeal against conviction for corruption in teachers recruitment. They automatically remain MLAs

Navjot Sidhu

Chose not to invoke law when convicted of culpable homicide. resigned as MP, appealed, earned stay, re-contested and won

Sanjay Dutt

Did not have elected members’ privilege. convicted for 1993 Mumbai serial blasts. failed to win stay, could not contest 2009 polls

Section 8(4)

Representation of the People Act section says disqualification of a sitting MP or MLA “shall not” take effect until his appeal, moved against the first conviction within three months, is finally decided by the appellate court

2005

Five-judge Supreme Court bench upholds section 8(4) as a reasonable classification that does not violate Article 14 of Constitution (right to equality).

2013

Two-judge bench examines section 8(4) in context of Constitution’s Articles 101 and 102, which provide for immediate disqualification of a convicted MP/MLA

162 MPs

In 2009 Lok Sabha have criminal cases pending against them, according to data collected from their affidavits by APDR, an NGO. This was cited in court

30% What the MPs facing cases represent in house of 543

The Indian Express, 4 March, 2013, http://www.indianexpress.com/news/when-an-elected-member-is-convicted/1082562/


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