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The curious case of the disqualification of a politician

Posted on February 20, 2023 by admin1  2135

In Context

  • Recently, the debate has surrounded whether disqualification for conviction is final or whether it can be revoked.

About disqualification

  • Constitutional provisions:
    • The provision for disqualification is given in Article 102 of the Constitution. 
    • It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
      • If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).
      • If he is of unsound mind and stands so declared by a court.
      • If he is an undischarged insolvent.
      • If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and
      • If he is so disqualified under any law made by Parliament.
    • Article 102 also authorises Parliament to make laws determining conditions of disqualifications. 
      • There are analogous provisions for members of state legislatures.
  • The Representation of the People Act, 1951: 
    • Disqualification on imprisonment:
      • The 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.
    • Exception for sitting members:
      • 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.

What if a disqualified person is elected to the Parliament?

  • If a disqualified person is elected to the Parliament, the Constitution lays down no procedure to declare the election void. 
  • This matter is dealt by the Representation of the People Act (1951), which enables the high court to declare an election void if a disqualified candidate is elected. 
    • The aggrieved party can appeal to the Supreme Court against the order of the high court in this regard.

Issue of Lakshadweep legislator

  • About:
    • Recently the Lok Sabha MP was convicted by the Kavaratti sessions court for the attempt to murder, and sentenced to 10 years imprisonment. 
    • After this, the Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction. 
    • The Election Commission of India (ECI) also fixed the date for the by-election to that constituency.
  • Stay:
    • But now, Kerala High Court suspended the verdict passed by the Kavaratti District and Sessions Court (in an attempt to murder case).
    • Lily Thomas judgment (2013):
      • The judgment stated that a disqualified person may obtain a stay on his conviction & the disqualification would be removed from the date of the stay order.
  • Significance of the stay:
    • The cost of a parliamentary election would have to be borne by the nation 
    • Developmental activities in Lakshadweep will also stop for a few weeks. 
    • The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha. 
      • Given these exceptional and irreversible consequences, the Kerala HC suspended the concerned MP’s conviction until the disposal of the appeal.

By-election

  • A vacancy may arise as a result of 
    • An legislator dying or resigning, or 
    • When the legislator becomes ineligible to continue in office or 
    • When voting irregularities invalidate an election.
  • When elections are held in one or a few constituencies to fill vacancies that arise due to any of the reasons cited above, it is called as a by-election.
  • It can also be held if an elected member gets disqualified under parliamentary law.
    • A by-election is only open to voters who are enrolled in the electorate.

Way ahead

  • Current status:
    • 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.
  • Issue:
    • The issue is whether disqualification for conviction is final or whether it can be revoked. 
    • The question now is also whether the concerned MP will automatically resume his membership of the Lok Sabha. 
  • Deciding authority:
    • On the question, whether a member is subject to any of the disqualifications, the President’s decision is final. However, he should obtain the opinion of the election commission and act accordingly.

Disqualification on Ground of Defection: 

  • About:
    • The Constitution also lays down that a person shall be disqualified from being a member of Parliament if he is so disqualified on the ground of defection under the provisions of the Tenth Schedule. 
    • A member incurs disqualification under the defection law:
      • If he voluntarily gives up the membership of the political party on whose ticket he is elected to the House;
      • If he votes or abstains from voting in the House contrary to any direction given by his political party;
      • If any independently elected member joins any political party; and
      • If any nominated member joins any political party after the expiry of six months.
  • Decision of Presiding officer:
    • The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and Speaker in the case of Lok Sabha (and not by the president of India). 
    • In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

 

Daily Mains Question

[Q] What are the constitutional provisions for disqualifications of members of Parliament? Is the Indian democracy going into the hands of criminals, thugs and law-breakers? Analyse.
 
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