Disqualification of legislators
- November 3, 2022
- Posted by: OptimizeIAS Team
- Category: DPN Topics
Disqualification of legislators:
Subject : Polity
- Recently two legislators from Uttar Pradesh were convicted of criminal charges and one of them has been disqualified from the state assembly.
When does conviction attract disqualification:
- Section 8 of the Representation of the People Act (RPA), 1951, contains provisions to decriminalize electoral politics.
- There are two categories of criminal cases that attract disqualification upon conviction.
- Category 1 – Disqualification for 6 years upon any conviction.
- If the punishment is fine, the 6-year period will start from the date of conviction, but if there is a prison sentence, the disqualification will start on the date of conviction and will continue up to the completion of 6 years after the date of release from jail.
- Major offences under this category:
- Making speeches that cause enmity between groups.
- Bribery during elections and other electoral offences.
- Offences relating to rape and cruelty to women by husbands and relatives.
- Special laws such as the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act, Laws for prevention of Sati, corruption, terrorism and insult to the national flag and national anthem etc, are among the category of offences that entail disqualification regardless of the period of punishment.
- All other criminal provisions fall in the 2nd category under which at least 2 years in prison is needed for disqualification.
Is there legal protection for legislators against disqualification:
- Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013.
- The provision said that with respect to a Member of Parliament or a State legislator the disqualification will not take effect for three months. If within that period, the convicted legislator files an appeal or revision application, it will not take effect until the disposal of the appeal or application. In other words, the mere filing of an appeal against conviction will operate as a stay against disqualification.
- In Lily Thomas vs. Union of India, the Supreme Court struck down clause (4) as unconstitutional, thus removing the protection enjoyed by lawmakers.
Can the disqualification be removed:
- The Supreme Court has the power to stay not only the sentence, but also the conviction of a person.
- In some rare cases, conviction has been stayed to enable the appellant to contest an election. However, the SC has made it clear that such a stay should be very rare and for special reasons.
- The RPA itself provides a remedy through the Election Commission. Under 11 of the Act, the EC may record reasons and either remove, or reduce the period of, a person’s disqualification. The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a byelection and remain in office
Some of Supreme Court Judgments to decriminalize Politics:
- In Association for Democratic Reforms (ADR) vs. Union of India in 2002 SC mandated the disclosure of information relating to criminal antecedents, educational qualification, and personal assets of a candidate contesting elections.
- In Lily Thomas vs Union of India 2013 SC ruled that any MP, MLA, or MLC who is convicted of a crime and sentenced to a minimum of two years in jail loses their membership in the house immediately and also declared Section 8(4) of the Representation of the People Act 1951 invalid
- In Public Interest Foundation and Ors. vs Union of India 2014 the Supreme Court directed that trials of sitting MPs and MLAs be completed within a year of charges being filed against them.
- In Rambabu Singh Thakur v Sunil Arora 2020 Supreme Court stated that all candidates contesting election should make their criminal records public if they wish to run for office.