MPs, MLAs to lose seat if convicted: Supreme Court

A sitting MP and MLA will lose membership of the legislature if he or she is convicted in a criminal case, as the Supreme Court on Wednesday declared illegal the privilege politicians had accorded to themselves, through an Act, which was not enjoyed by the masses.

So far, in view of the provision of Section 8(4) of the Representation of the People (RP) Act, convicted lawmakers could continue their membership of assemblies and Parliament despite they being held guilty in a criminal case, provided that they filed an appeal against such convictions within three months. But ordinary persons were debarred to contest polls if convicted in criminal cases.

In a landmark verdict which could help decriminalise politics, a bench of Justices A K Patnaik and S J Mukhopadhaya described as ultra vires the exception in law provided to all sitting MPs and MLAs by holding that Parliament exceeded its power in making such a provision.

“Parliament thus does not have the power under Articles 102(1)(e) (disqualification in case of MPs) and 191(1)(e) (disqualification in case of MLAs and MLCs) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the state legislature,” said the bench.

“To put it differently, 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 court, however, clarified that sitting MPs and state legislature who had already been convicted for offences like corruption, violence against women and sexual offences, custom violation, illegal use of drugs, inciting communal hatred as mentioned in sub-section (1), (2) and (3) of Section 8 of the R P Act and have filed appeals or revisions, which were pending, would not be affected by the judgment.

The government, on its part, refused to make categorical reaction on the verdict. “We will first read the verdict and see its impact on politics. We shall consult everybody and give our reaction,” said Law Minister Kapil Sibal.

Bharatiya Janata Party spokesperson Ravi Shankar Prasad also said that he would first like to go through the verdict, as it had wider legal implications, but emphasised that they are open to move that leads to purification of the political system.
The court’s verdict came on two separate PILs filed by advocate Lily Thomas and NGO Lok Prahari.

Senior advocate Fali S Nariman—representing Thomas, and S N Shukla, the NGO’s general secretary—submitted that as soon as a person was convicted, he became disqualified from continuing as a member of Parliament or of a state Legislature notwithstanding the fact that he filed an appeal or a revision against the conviction.
There is no legal basis for making such exception. He said the convicted MPs and MLAs had to seek stay from higher courts if they wanted to continue.

They further contended that making an exception in the case of members of Parliament or a state legislature was “arbitrary and discriminatory, besides being violative of Article 14 (equality) of the Constitution.

Agreeing with their contention, the bench said, “Sub-section (4) of Section 8 of the Act, which carves out a saving in the case of sitting members of Parliament or state legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a state legislature, is beyond the powers conferred on Parliament by the Constitution.”

Additional Solicitor Generals Siddharth Luthra and Paras Kuhad, appearing for the Centre, tried to defend the law by asserting that the exception had been made to protect the House as government at times survived on a razor-thin majority.

They further pleaded that the rate of acquittal was very high in higher courts, and striking down the provision would make MPs and MLAs at disadvantaged position. But their arguments could not convince the bench.

Striking down legal shield

-SC strikes down the legal provision that protects a lawmaker from disqualification even after conviction in a criminal case

-Lawmakers who have already filed appeals against their conviction before pronouncement of this verdict will not get affected

-Verdict seeks to remove discrimination between an ordinary individual and an elected representative