Madras HC declares election of Theni MP as null and void

Subject : Polity

Section: Elections

Concept :

The Madras High Court on Thursday declared as “null and void”, the 2019 election of expelled AIADMK member O P Ravindhranath from Tamil Nadu’s Theni parliamentary constituency while allowing an election petition filed against him.

Election Petition

Election petition means a method for challenging the legitimacy of the results of parliamentary or local government elections.
In other words, it is a legal way of contesting a candidate’s election in a Parliamentary, Assembly, or local election.
The “High Court” shall be the authority for presenting election petitions under Article 329(b) of the Constitution, according to Section 80-A of the Representation of the People Act, 1951.

Concept of Election Petition

An election petition is a legal remedy accessible to a voter or a candidate who feels there has been electoral malpractice.
Election petitions are heard by the High Court of the state in question, and if upheld, the election in that constituency may be rescheduled.
A petition of this nature must be filed within 45 days after the date of the poll results; anything filed beyond that is not considered by the courts.
Although the Representative of the People Act (RP Act) of 1951 requires the High Court to try to complete the trial within six months, it generally takes considerably longer, even years.
The High Court should notify the Election Commission of India and the Speaker of the House or the Chairman of the State Legislature of the content of its judgement as soon as possible after the end of the trial of an election petition.
The High Court must also provide the ECI an authorised copy of the ruling.
If the ruling on an election petition is in favour of the petitioner, the court may order a new election or declare a new winner.
Every decision made by a High Court is subject to an appeal to the Supreme Court on any matter.

Grounds of Election petition

Section 100 of the Representation of the People Act, 1951, allows the election of a certain candidate to be ruled null and invalid.
An election petition can be filed on one or more of the following grounds:
On the day of his election, a returning candidate was ineligible or disqualified to fill the seat.
A returned candidate or his election agent, or any other person with the approval of a returned candidate or his election agent, has engaged in any corrupt activity (as defined below).
Improper acceptance of any nomination.
By improperly receiving, refusing, or rejecting any vote, or receiving an invalid vote.
Any violation of the provisions of the Constitution or RPA, or any rules or directives issued under this act.

Corrupt practices

The following are considered corrupt acts under Section 123 of the Representation of the People Act, 1951:
Bribery (any gift, offer, promise, or pleasure of any kind made by the candidate or his/her agent to the voter or another candidate running for office)
Undue influence: direct or indirect influence exercised by the candidate or his/her agent; includes threats, efforts to convince voters or other candidates, statement of public policy or action, or the simple exercise of a legal right, among other things.
A candidate or his election agent requests that voters refrain from voting on the basis of religion, race, caste, community, or language.
Use of national symbols, national emblems, and national flags to advance the candidate’s election prospects or to negatively impact the election of any other candidate.
False statements made by the candidate or his election agent. A remark of this type can also include one that is reasonably designed to harm the chances of that candidate’s election.
Making incorrect statements about election expenditure.
Attempting to gain the services of government employees in order to advance electoral prospects. These government employees may include gazetted officers, magistrates, members of the armed forces, police officers, excise officers, revenue officers, and others.
Booth capturing by the candidate of election agent.

Legal provisions regarding the disqualification of MPs/MLAs

Disqualification of a lawmaker is prescribed in three situations.
First is through the Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively.
The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
The second prescription of disqualification is in the Tenth Schedule of the Constitution.
This provides for the disqualification of the members on grounds of defection.
The third prescription is under The Representation of The People Act (RPA), 1951.
This law provides for disqualification for conviction in criminal cases.

Under Representation of The People Act, 1951

There are several provisions that deal with disqualification under the RPA.
Section 8 of the RPA deals with disqualification for conviction of offences.
Section 8(1) of the act includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
Section 8(2) lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
Section 8(3) disqualifies a convicted person who has been sentenced to imprisonment for not less than two years.
He is disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
Section 10 deals with disqualification for failure to lodge an account of election expenses.
Section 11 of the act deals with disqualification for corrupt practices.

How does the disqualification operate?

The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted
In 2018, in ‘Lok Prahari v Union of India’ case, the SC clarified that the disqualification will not operate from the date of the stay of conviction by the appellate court.
Here, it should be noted that the stay cannot merely be a suspension of sentence, but a stay of conviction.
Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending.
This is akin to releasing the appellant on bail.

How does an appeal against the conviction impact disqualification?

Section 8(4) of the RPA stated that the disqualification takes effect only after three months have elapsed from the date of conviction.
Within that period, a person can file an appeal against the sentence before the higher Court.
Earlier, the law had provided for a pause on disqualification if an appeal against the conviction was filed before a higher court.
However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
This means that simply filing an appeal will not be enough to prevent disqualification.
The convicted MP must secure a specific order of stay against the conviction of the trial court.