The curious case of the disqualification of a politician
26-08-2023
11:34 AM
1 min read
Why in News?
- Recently Kerala High Court suspended the conviction and sentence of a Lakshadweep MP (P.P. Mohammed Faizal) in a case of attempt to murder.
- The article analyses whether the disqualification of politicians after conviction in the court of law is final or it can be revoked.
The Background of the Case
- P.P. Mohammed Faizal was convicted by the Kavaratti sessions court in January 2023 on attempt-to-murder charge and sentenced to 10 years rigorous imprisonment.
- Few days after, the Lower House announced that he was disqualified as an MP with effect from the date of conviction.
- The Election Commission of India (ECI) then issued a formal notification for by-election to that constituency.
- Faizal appealed to the Kerala HC for a stay on his conviction and sentence.
- The HC suspended his conviction until disposal of the appeal citing following exceptional and irreversible consequences owing to his disqualification:
- The HC highlighted the drastic consequence of not suspending the conviction as the huge cost of a parliamentary election would have to be borne by the nation.
- Also, the developmental activities in Lakshadweep will also stop for a few weeks and the elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha.
- Faizal then challenged the ECI’s announcement declaring Lakshadweep seat as vacant in the Supreme Court of India following which ECI deferred byelection to Lakshadweep Lok Sabha seat.
Union Government Stand on the Issue
- The Union government contended that disqualification takes effect immediately on conviction of the candidate and that the Parliament membership cannot be revived even if the court issues a stay.
- The Kerala HC however did not agree to this remark while citing a 2018 decision of the SC (Lok Prahari vs Election Commission of India and Others), which noted that while an appellate court stays the conviction, disqualification will cease to operate.
What are specific provisions related to MPs disqualification in Lok Sabha?
- Article 102 of the Constitution: It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
- These include holding an office of profit, being of unsound mind or insolvent, or not being a citizen of India.
- It also authorises Parliament to make law determining conditions of disqualifications.
- Representation of the Peoples Act 1951: Section 8(4) of the Act provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more.
- The person is disqualified for the period of imprisonment and a further six years.
- However, there is an exception for sitting members, i.e., they have been provided a period of three months from the date of conviction to appeal and the disqualification will not be applicable until the appeal is decided.
What are the Court Observations Related to Disqualification?
- K. Prabhakaran vs P. Jayarajan Case, 2005: The differential treatment of candidates who are standing for elections and sitting members was challenged under Article 14 (right to equality) in the Constitution Bench of the SC.
- The bench ruled that disqualifying a sitting member may change the strength of the party in the legislature and could have an adverse impact if a government had a thin majority and may also trigger a by-election.
- Hence, SC ruled that the consequences of disqualifying a contestant and a sitting member were different and therefore, it was reasonable to treat the two categories differently.
- The Court also considered whether a candidate's disqualification might be lifted retroactively in the event that they were later found not guilty.
- It was said that this was not possible because doing so would call for the annulment of the election results. As a result, eliminating disqualification would apply to current and upcoming elections.
- Lily Thomas vs Union of India Case 2013: The SC declared Section 8(4) of the Representation of the People Act 1951 invalid.
- Therefore, the disqualification was automatic and had immediate effect if the conditions of Article 102 were met.
- The SC also clarified that a person could be reinstated as MP if a higher court suspends the lower court's order to punish a Parliamentarian.
What Questions Needs to be Pondered upon by the Recent Episode?
- Whether Lok Sabha MP (Mr. Faizal) will automatically resume his membership of the Lok Sabha hence avoiding by-elections.
- Whether the cancellation of disqualification takes effect from the MPs date of conviction and disqualification in Lok Sabha.
- Whether the disqualification is removed from the date of the stay order, when HC suspended the conviction and, therefore, the vacated seat be filled only through a by-election.
- This conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification whereas the Kerala HC stay tries to ensure that the MP retains the seat until the appeal is decided.
- Though ECI, after the stay order, announced deferring the by-election, but the Lok Sabha has kept the seat vacant and has not yet re-instated the MP.
- It remains to be seen how the apex court will deal with this dilemma of immediate vacancy after disqualification and retaining seat till appeal is decided as the answer will also have implications for similar cases in the future.
Q1) What is the eligibility criteria to become a Member of Lok Sabha?
He should be a citizen of India, not less than 25 years of age and possess such other qualifications as may be prescribed by or under any law made by Parliament [Art. 84]
Q2) What are the constitutional provisions related to appointment of District Judges?
The Governor of the State, in consultation with the High Court, appoints, posts, and promotes district judges in the State (Article 233).
Source: The Hindu
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