India Convicted Lawmakers To Lose Membership: SC

Convicted lawmakers to lose membership: SC

Can’t continue in the House even if an appeal is pending

R Sedhuraman - Legal Correspondent - Tribune India

New Delhi, July 10

In a landmark judgment that has the potential to cleanse Parliament and assemblies of criminals in a big way, the Supreme Court today held that from now on MPs, MLAs and MLCs would automatically lose their membership if sentenced to jail for not less than two years by the trial court.

The verdict would not affect the convicted MPs and MLAs who had already filed appeals in such cases, the SC clarified.

The exemption granted to those sentenced to jail terms of less than two years would not apply to cases relating to serious crimes in which mere conviction was sufficient to attract disqualification. Such serious crimes include rape, cruelty to women, acts prejudicial to maintenance of harmony, bribe, undue influence in elections and promoting enmity in society.

Terrorism, smuggling, drug trafficking, hoarding and crimes under the Unlawful Activities (Prevention) Act and Foreign Exchange (Regulation) Act would also attract disqualification, irrespective of the period of sentence.

Till now, such lawmakers were not disqualified if they appealed against their conviction in higher courts within three months. This protection continued till the disposal of their appeals and the status of their membership depended on the final judicial outcome.

A Bench comprising Justices AK Patnaik and SJ Mukhopadhya struck down Sub-Section (4) of Section 8 of the Representation of the People Act, 1951, that protected the sitting lawmakers against immediate disqualification upon conviction.

The SC verdict came on two PILs filed by Lily Thomas and Lok Prahari (NGO) that had challenged the provision saying it was discriminatory and against the Constitutional provisions under Article 102(1) relating to Parliament and Article 191(1) pertaining to legislative assemblies and councils in states.

Under the existing laws, no convicted person could contest election even if his appeal was pending in a higher court, but sitting lawmakers were allowed to continue as members.

Accepting this contention, the apex court held: “Parliament has been vested with the powers to make law laying down the same disqualifications for a person to be chosen as a member of Parliament or a state legislature and for 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 it is ultra vires the Constitution,” the SC ruled.

The Bench also pointed out that Articles 101(3)(a) and 190(3)(a) expressly prohibited Parliament to defer the date from which the disqualification would come into effect in case of sitting members.

Under the existing laws, the disqualification for being a lawmaker would be in force from the date of conviction and till the completion of six years from the date of release from jail.

According to a survey, as many as 162 sitting MPs and 1,460 MLAs are facing criminal charges.

The ruling

* Parliament has exceeded its powers conferred by the Constitution in enacting Sub-Section (4) of Section 8 of the Representation of the People Act, 1951, that protected the sitting lawmakers against immediate disqualification upon conviction

* The provision is ultra vires the Constitution as Articles 101(3)(a) and 190(3)(a) of the Constitution expressly prohibits Parliament to defer the date from which the disqualification will come into effect in case of sitting members

* MPs, MLAs and MLCs will now automatically lose their membership, if sentenced to jail for not less than two years by the trial court

* The verdict will, however, not affect convicted legislators who have already filed appeals against their conviction

source: http://www.tribuneindia.com/2013/20130711/main1.htm
 
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