Disqualification Of a Politician

Disqualification Of a Politician

Subject : Polity

Section :Parliament

Concept :

• Kerala High Court refuses to stay 10-year imprisonment against Lakshadweep Member of Parliament in an attempt to murder case.

Background:

• Earlier, the Kavaratti Sessions Court had convicted four persons, including Mohammed Faizal P.P. then sitting Member of Parliament (MP) of Lakshadweep for committing offences punishable under Indian Penal Code (IPC) and sentenced to undergo 10 years of rigorous imprisonment.
• On January 13, the Lok Sabha announced the disqualification of Faizal as an MP with effect from the date of conviction.
• On January 18, the Election Commission of India (ECI) fixed February 27 as the date for by-election to that constituency.
• An appeal in Kerala High Court suspended his conviction and sentence on January 25.
• The High Court suspended his conviction until disposal of the appeal.
• Faizal also challenged the ECI’s announcement in the Supreme Court of India due to which the ECI deferred the election.
• The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha.

Parliamentary Provisions for Disqualification of MPs

• In case an MP is convicted of any criminal offence, there are provisions in place for their disqualification from the parliament.
• Section 8 of Representation of the People Act, 1951 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.

Other Parliamentary Provisions as per RPA Act, 1951 :

• He must not have been found guilty of certain election offences or corrupt practices in the elections.
• He must not have been convicted for any offence resulting in imprisonment for two or more years.
• But, the detention of a person under a preventive detention law is not a disqualification.
• He must not have failed to lodge an account of his election expenses within the time.
• He must not have any interest in government contracts, works or services.
• He must not be a director or managing agent nor hold an office of profit in a corporation in which the government has at least 25 per cent share.
• He must not have been dismissed from government service for corruption or disloyalty to the state.
• He must not have been convicted for promoting enmity between different groups or for the offence of bribery.
• He must not have been punished for preaching and practicing social crimes such as untouchability, dowry and sati.
• Note : President’s decision is final regarding the disqualification of a member of either house of the Parliament.
• However the President does take the opinion of the Election Commission before taking a decision on disqualification and act accordingly.

Differential Treatment for sitting members:

• There is an exception for sitting members under Representation of the People Act, 1951
• Sitting members have been provided a period of three months from the date of conviction to appeal; the disqualification will not be applicable until the appeal is decided.
• The differential treatment of candidates for elections and sitting members was challenged under Article 14.
• The Supreme Court in K. Prabhakaran vs P. Jayarajan 2005 case, validated the differential treatment as the consequences of disqualifying a contestant and a sitting member were different.
• The disqualification of an MP or MLA has several implications for the functioning of the House and the political party to which the member belongs.
• The disqualification of an MP or MLA leads to a by-election in the constituency represented by the disqualified member. This not only entails additional expenditure for the government but also affects the political balance in the House.
• The Court also held that the removal of disqualification in case of acquittal of a candidate would be prospective and for future elections and not with retrospective effect as this would require the results of the election to be cancelled.
• However, in 2013, a two-judge Bench of the Supreme Court in the Lily Thomas vs Union of India case stated that the conditions for disqualification would apply equally to candidates and sitting members.
• Therefore, the exception carved out for sitting members was unconstitutional.
• The judgement cited Article 101 that if a Member of Parliament was disqualified under Article 102, “his seat shall thereupon become vacant”.
• Therefore, the disqualification was automatic and had immediate effect if the conditions of Article 102 were met.
• The judgement also stated that a disqualified person may obtain a stay on his conviction, and the disqualification would be removed from the date of the stay order.