Disqualified lawmaker's House membership to be revived if conviction is stayed: SC

If an appellate court stays the conviction of a disqualified lawmaker, his or her membership of a House will be revived, the Supreme Court held Wednesday.

A three-bench headed by Chief Justice Dipak Misra, while dismissing a petition filed by NGO 'Lok Prahari', said once the conviction has been stayed, the disqualification which operates as a consequence of the conviction in a criminal offence cannot take effect.

"Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect," the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, said.

 

The apex court dismissed the NGO's submission that the appellate court does not have the power to stay the conviction.

The bench also said it cannot be maintained that the disqualification from conviction will continue despite a stay from the appellate court.

The NGO had alleged that the 2013 verdict of the apex court in the Lily Thomas case was being flouted by the Members of Parliament, MLAs and MLCs, who continue to hold their membership even after their conviction in criminal cases.

It had also said that the 2013 verdict barred the appellate courts from staying the conviction of a lawmaker.

The plea had said the disqualification of a lawmaker takes place immediately after the conviction and the membership cannot be revived with retrospective effect by an appellate court by staying the conviction.

The bench said "there is no merit in the submission that the power conferred on the appellate court under Section 389 (suspension of sentence pending the appeal; release of appellant on bail) does not include the power, in an appropriate case, to stay the conviction."

"It is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice," it said.

The top court, on July 10, 2013, had struck down section 8(4) of the Representation of the People Act (RPA) that gave a convicted lawmaker the power to remain in office on the ground that appeals have been filed within three months of conviction.

It had held that chargesheeted MPs 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 earlier.

The court, however, had then said its decision would not apply to the convicted MPs and MLAs or MLCs who have already filed their appeals in higher courts before pronouncement of the verdict.

The verdict had removed the discrimination between an ordinary individual and an elected lawmaker, who enjoyed protection under the RP Act.

Under Section 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that period and a further six years after release. But Section 8(4) said a lawmaker cannot be disqualified for three months from the conviction if in that period he or she files an appeal against till its disposal by a higher court.

The apex court's 2013 verdict had come on petitions filed by a lawyer Lily Thomas and the NGO Lok Prahari seeking striking down of provisions of RPA on the ground that they violated certain constitutional provisions which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.

The PILs had said that certain sections of RPA allow convicted lawmakers to continue in office while their appeals are pending and thus those provisions are "discriminatory and encourage criminalisation of politics".

Yesterday, in another verdict, the apex court had held that all candidates will have to declare their criminal antecedents to the Election Commission before contesting polls, and termed as "unsettling" the criminalisation of politics in the world's largest democracy.

The apex court said that informed choice is the cornerstone of democracy and asked the legislature to consider framing a law to ensure decriminalisation of politics.