DISQUALIFICATION OF LEGISLATORS
WHY IN NEWS?
- Recently, Former MP Rahul Gandhi is disqualified from his membership of the Lok Sabha.
MORE ABOUT THE NEWS
- Congress leader Rahul Gandhi has been disqualified from the Lok Sabha, after being convicted in a criminal defamation case filed by BJP’s Purnesh Modi in a Surat court.
- Essentially, as per Article 102(1)(e), a member of either house can be disqualified under any law made by the parliament (in this case, the Representation of the People Act.)
- As per Section 8(3) of the Act, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified.
- Further, the person will remain disqualified for a period of six years after serving his sentence.
- Disqualification, as per the Act, shall begin on the date of the conviction and continue for a period of six years after his release.
WHAT IS ARTICLE 102 OF THE CONSTITUTION?
- Article 102 deals with the disqualification of MPs from either house of the Parliament.
- Part (1) of the article lists the reasons why an MP can be disqualified.
- These include, “(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.”
HOW DOES THE DISQUALIFICATION WORK?
- The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
- Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction.
- Over the years, the law has changed when it comes to disqualification.
- Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction.
- Within that period, lawmakers could file an appeal against the sentence before the High Court.
- However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional. This is what has allowed the Lok Sabha Secretariat to immediately disqualify Rahul Gandhi.
The Lok Sabha Secretariat can issue a notice of disqualification and communicate to the Election Commission that his seat is now vacant.
- As the disqualification will continue for 6 years after his release, that would mean he will be disqualified for 8 years in total.
- Earlier, as per the provisions of Section 8(4) of the RP Act, a sitting MP or MLA, if convicted, could continue to remain in office by filing an appeal or revision application against the conviction within a period of 3 months.
- This 3-month period may, however, not be available to Rahul Gandhi, as this provision was struck down by the Supreme Court in 2013.
PROTECTION TO LEGISLATORS
- Section 8(4) of the RPA, 1951, was struck down in 2013 by the Supreme Court in a landmark verdict in Lily Thomas versus Union of India.
- Section 8(4) of the Act was declared unconstitutional on the ground that Parliament lacked the legislative competence to enact it.
- The apex Court had cited Article 102 of the Constitution (and Article 191, the corresponding article for State Assembly and Legislative Council members) to lay down that Parliament was mandated to enact a common law prescribing what sort of situation would disqualify a person for both ‘being chosen as’ and ‘being a member’ of Parliament.
- Subsection (4) of Section 8 said the disqualification will not take effect for three months for anyone who is an MP or an MLA on the date of conviction, and if during that period, an appeal is filed, the mere fact of filing the appeal will operate as a stay on disqualification until its disposal.
- The Court ruled that Parliament was not competent to have separate provisions for these two situations, as the constitutional mandate was to enact a single law.
- By creating one provision for the immediate disqualification of ordinary citizens and another one for deferred disqualification of legislators, Parliament had violated the constitutional mandate.
LEGAL REMEDIES AVAILABLE FOR DISQUALIFIED LEGISLATORS
- In Lily Thomas, it was stated in para 30 that, ‘seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution’.
- It was clarified in Lok Prahari vs Election Commission of India (2018) 18 SCC 114 that the disqualification will not operate from the date of the stay of conviction by the appellate court.
- Hence, a stay of conviction ‘would relieve the individual from suffering the consequence of a disqualification relatable under Section 8 of the Act’.
- Legislators will also have to file an application under Section 389 of the CrPC along with his appeal seeking suspension of sentence and conviction.
- They also has an option under Article 136 of the Constitution to approach the Supreme Court.
- Under article 136, the Supreme Court also has a broad appellate jurisdiction over all courts and tribunals in India.
WAY FORWARD
- The secretariat of the respective Houses should give effect to the order of stay on conviction fully, by restoring the legislator’s membership without further ado, until the appeal is disposed of.
- The secretariat should wait until the convicted member approaches higher courts for stay of conviction, and notify a vacancy only if the application is rejected.
- The President, Governor or legislators hould formally declare a person disqualified as required under Article 103 and Article 192 instead of using the ‘automatic’ disqualification route.
SOURCE : THE HINDU, INDIAN EXPRESS
SYLLABUS : MAINS, GS-2, INDIAN POLITY
