The Supreme Court held that
chargesheeted Members of Parliament and MLAs, on conviction for offences, will
be immediately disqualified from holding membership of the House without being
given three months’ time for appeal, as was the case before. A Bench of
Justices A.K. Patnaik and S.J. Mukhopadhaya struck down as unconstitutional
Section 8 (4) of the Representation of the People Act that allows convicted
lawmakers a three-month period for filing appeal to the higher court and to get
a stay of the conviction and sentence. The Bench, however, made it clear that
the ruling will be prospective and those who had already filed appeals in
various High Courts or the Supreme Court against their convictions would be
exempt from it.
Section 8 of the RP Act deals
with disqualification on conviction for certain offences: A person convicted of
any offence and sentenced to imprisonment for varying terms under Sections 8
(1) (2) and (3) shall be disqualified from the date of conviction and shall
continue to be disqualified for a further period of six years since his
release. But Section 8 (4) of the RP Act gives protection to MPs and MLAs as
they can continue in office even after conviction if an appeal is filed within
three months.
The Bench found it
unconstitutional that convicted persons could be disqualified from contesting
elections but could continue to be Members of Parliament and State Legislatures
once elected.
Allowing two writ petitions
filed by advocate Lily Thomas and Lok Prahari, through its General Secretary S.
N. Shukla, the Bench said: “A reading of the two provisions in Articles 102(1)
(e) and 191(1) (e) of the Constitution would make it abundantly clear that
Parliament is to make one law for a person to be disqualified for being chosen
as, and for being, a Member of either House of Parliament or Legislative
Assembly or Legislative Council of the State. Parliament thus does not have the
power under Articles 102(1)(e) and 191(1)(e) 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.”
Writing the judgment, Justice
Patnaik said: “The language of Articles 102(1) (e) and 191(1) (e) of the
Constitution is such that the disqualification for both a person to be chosen
as a member of a House of Parliament or the State Legislature and for a person
to continue as a member of Parliament or the State Legislature has to be the
same.”
The Bench said: “Section 8
(4) 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.”
The Bench held: “Looking at the affirmative
terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that
Parliament has been vested with the powers to make law laying down the same
disqualifications for person to be chosen as a member of Parliament or a State
Legislature and for a sitting member of a House of Parliament or a House of a
State Legislature. We also hold that the provisions of Article 101(3) (a) and
190(3) (a) of the Constitution expressly prohibit Parliament to defer the date
from which the disqualification will come into effect in case of a sitting
member of Parliament or a State Legislature. Parliament, therefore, has
exceeded its powers conferred by the Constitution in enacting sub-section (4)
of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act
is ultra vires the Constitution.”
The Bench said: “Under
Section 8 (1) (2) and (3) of the Act, the disqualification takes effect from
the date of conviction. Thus, there may be several sitting members of
Parliament and State Legislatures who have already incurred disqualification by
virtue of a conviction covered under Section 8 (1) (2) or (3) of the Act.
Sitting members of Parliament and State Legislature who have already been
convicted of any of the offences mentioned in sub-section (1), (2) and (3) of
Section 8 of the Act and who have filed appeals or revisions which are pending
and are accordingly saved from the disqualifications by virtue of sub-section
(4) of Section 8 of the Act should not, in our considered opinion, be affected
by the declaration now made by us in this judgment. This is because the
knowledge that sitting members of Parliament or State Legislatures will no
longer be protected by sub-section (4) of Section 8 of the Act will be acquired
by all concerned only on the date this judgment is pronounced by this Court.”
However, the Bench said: “If
any sitting member of Parliament or a State Legislature is convicted of any of
the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act
and by virtue of such conviction and/or sentence suffers the disqualifications
mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the
pronouncement of this judgment, his membership of Parliament or the State
Legislature, as the case may be, will not be saved by subsection (4) of Section
8 of the Act which we have by this judgment declared as ultra vires the
Constitution notwithstanding that he files the appeal or revision against the
conviction and /or sentence.”
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