Immediate Disqualification of Convicted MPs and MLAs

In 2013,35 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.

The concerned Bench of the Court struck down as unconstitutional Section 8 (4) of the Representation of the People Act (1951) 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.

The Bench said: "A reading of the two provisions in Articles 102 and 191 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 and 191 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.”

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 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 and 191 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 and 190 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 Constitution36 .”

In order to nullify the above ruling of the Supreme Court, the Representation of the People (Second Amendment and Validation) Bill, 2013 was introduced in the Parliament. However, the Bill was later withdrawn by the Government.