Date: 21/02/2023

Relevance: GS-2: Parliament and State Legislatures - Structure, Functioning, Conduct of Business, Powers & Privileges and Issues Arising out of these.

Key Phrases: disqualification of Member of Parliament (MP), Article 102 of the Constitution, Representation of the People Act, 1951, Prabhakaran vs P. Jayarajan (2005, Lily Thomas vs Union of India (2013) case.

Why in News?

• The recent instance where the Kerala High Court suspended the verdict passed by the Kavaratti District and Sessions Court on an attempt to murder case, in which the then sitting Member of Parliament (MP) of Lakshadweep and Nationalist Congress Party leader P.P. Mohammed Faizal was sentenced to 10 years in jail, has raised interesting questions on his disqualification.

The Background

• Mr. Faizal was convicted by the Kavaratti sessions court on January 11 for an attempt to murder, and sentenced to 10 years imprisonment.
• On January 13, the Lok Sabha announced that he was disqualified 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 the by-election to that constituency, with the formal notification to be issued on January 31.
• Mr. Faizal appealed to the Kerala High Court for a stay on his conviction and sentence, which the High Court suspended on January 25. The High Court suspended his conviction until the disposal of the appeal.
• Mr. Faizal challenged the ECI’s announcement in the Supreme Court of India, and on January 30, the ECI said it was deferring the election.

The Provision for Disqualification

• Article 102:
  • The provision for disqualification is given in Article 102 of the Constitution, which specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
  • These include holding an office of profit, being of unsound mind or insolvent, or not being a citizen of India.
  • It also authorizes Parliament to make laws determining conditions of disqualifications. There are analogous provisions for members of state legislatures.
• Representation of the People Act, 1951:
  • It provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more. The person is disqualified for a period of imprisonment and a further six years.
• Exception:
  • There is an exception for sitting members; they 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.
    Judgments related to Disqualification
• Prabhakaran vs P. Jayarajan (2005):
  • The differential treatment of candidates for elections and sitting members were challenged under Article 14 (right to equality).
  • The court decided that the consequences of disqualifying a contestant and a sitting member were different.
  • The court considered whether, in the case of a disqualified candidate who is later acquitted, the disqualification would be removed with retrospective effect.
  • It stated that this could not be done as this would require the results of the election to be cancelled. Therefore, the removal of disqualification would be prospective for future elections.
• Lily Thomas vs Union of India (2013) case:
  • It was stated that Article 102 empowers Parliament to make law regarding the disqualification of a person “for being chosen as, and for being, a member of either House of Parliament”.
  • The judgment cited Article 101, which provides that if an MP was disqualified under Article 102, “his seat shall thereupon become vacant”.
  • The disqualification was automatic and had an immediate effect if the conditions of Article 102 were met.

What happens if the conviction is suspended?

• If the conviction is suspended, the disqualification may be removed until the appeal is decided.
• This was seen in the case of Navjot Singh Sidhu, who was convicted and sentenced to three years imprisonment when he was an MP.
• He resigned his seat but wanted to contest the election, and appealed for a stay on his conviction.
• The Supreme Court stayed his conviction in 2007, which removed the disqualification until the appeal was decided. This decision allowed him to contest the election.

What happens now?

• The Lakshadweep seat was declared vacant but the ECI, after the stay order, announced deferring the by-election. The Lok Sabha has kept the seat vacant and has not yet reinstated the MP.
• The reason the High Court granted the stay was to avoid an expensive election. The question is whether the removal of disqualification can be back-dated as if it never happened and the election avoided. Or whether the disqualification is removed only from the date of the stay order, and, therefore, the vacated seat be filled only through a by-election.
• This conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification whereas the Kerala High Court stay tries to ensure that the MP retains the seat until the appeal is decided.
• The answer will also have implications for similar cases in the future.

Source: The Hindu

Mains Question:

Q. What steps can be taken to ensure the effective implementation of the grounds for disqualification of a member of parliament in India, and to prevent individuals with disqualifying characteristics from contesting in elections?