The Supreme Court on
Wednesday 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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