Criminals barred from Politics??

The Headline that made almost every citizen of our nation, that at this time is badly suffering from the epidemic of corruption, take a sigh of relief is the Hon’ble Supreme Court decisions that disqualifies convicted Politicians from continuing to hold a post in Parliament/State Legislature. This landmark judgment was delivered on 10th July 2013, by the Division Bench comprising of Mr. Justice A. K. Patnaik and Mr. Justice Sudhansu Jyoti Mukhopadhaya in the case of Lily Thomas Versus Union of India & Others.  

The main question that came up before the Hon’ble Supreme Court in this Public Interest Litigation was whether the Parliament had the legislative competence to carve out an exception namely, Section 8 (4) of the Representation of the People Act, 1951, which allows a sitting Member of Parliament/Legislative Assembly/Legislative Council to continue in their seat till the disposal of appeals from their conviction. In case the Parliament had the legislative competence to enact such a provision, the question whether the same is Constitutional or not, would have also arisen. 

The Hon’ble Supreme Court has held that the affirmative words used in Articles 102(1)(e) and 191(1)(e) of the Constitution of India, confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, the provision under question, which does the exact opposite, is beyond the powers conferred on Parliament by the Constitution. 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 Hon’ble Supreme Court has further clarified, much to the relief of already convicted sitting members of Parliament and State Legislature, who have already filed appeals or revisions which are pending; that such members are saved from the disqualification by the declaration now made by the Hon’ble Supreme Court in this judgment. 

However, 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 has been declared as ultra vires the Constitution by this judgment, notwithstanding that he files the appeal or revision against the conviction and/or sentence. 

A quick analysis of this judgment reveals that: 

• This disqualification applies only in case a member is convicted for the offences mentioned in clauses (1), (2) and (3) of Section 8 of the Representation of the People Act and punished/fined as provided thereunder.
• The offences enumerated in Section 8 of the Act are exhaustive and not indicative. Therefore, convictions of members for offences not listed in Section 8 of the Act would not necessarily mean immediate disqualification.  
• Members, who are henceforth convicted shall be immediately disqualified whether or not they prefer appeal against such conviction. Similarly, those Members who have not yet preferred Appeal/Revision shall also stand disqualified immediately. Members who have already preferred appeal (till 10th July 2013) shall not be disqualified because of this judgment.  
• Members cannot claim immunity from disqualification by getting the disqualification stayed in an appeal or revision as the disqualification shall immediately take place on the date of conviction.