Convicted MPs,MLAs and MLCs Will Be Disqualified – Supreme Court of India

In India, according to data provided by the “Association for Democratic Reforms” / ADR and

 “National Election Watch”/ NEW:

  • 62 of the 543 Lok Sabha Members  and
  • 1258 of the 4032 MLAs in Assemblies,
which is around 30 per cent of elected representatives, have declared criminal cases against them. These are at various stages of trial, and any conviction would halt the MP’s or the MLA’s parliamentary and electoral career.

Under Section 8 (1),(2) and (3)  of “The Representation of the People Act -1951“, a person convicted for the criminal offences will be disqualifed from being the representative of the people (M.P.’s,  M.L.A.’s and M.L.C.s).

Given Below are Sections 8 (1),(2) and (3) of the Representation of the People Act-1951/R.P.Act-1951:-
Section 8.-  Disqualification on conviction for certain offences.
Section 8(1)-
A person convicted of an offence punishable under:

(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub- section (1) or sub- section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub- section (2) or sub- section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill- will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code; or

(b) the Protection of Civil Rights Act, 1955 which provides for punishment for the preaching and practice of” untouchability”, and for the enforcement of any disability arising therefrom; or

(c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962 ); or

(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967 ); or

(e) the Foreign Exchange (Regulation) Act, 1973 (76 of 1973 )/FERA; or

(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985 ); or

(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987 ); or

(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988 ); or

(i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of sub- section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act;[ or]

(j)  section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991 ,”][ or]

(k)  section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Antham) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971 );

shall be disqualified for a period of six years from the date of such conviction.

Section 8 (2):

A person convicted for the contravention of:

(a) any law providing for the prevention of hoarding or profiteering; or

(b) any law relating to the adulteration of food or drugs; or

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961 ); or

(d) any provisions of the Commission of Sati (Prevention) Act. 1987 (3 of 1988 ),

and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Section 8(3)

A person convicted of any offence and sentenced to imprisonment for not less than two years [ other than any offence referred to in sub- section (1) or sub- section (2)] shall be disqualified form the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

At present, as per the above, “The Representation of People  Act 1951”, in cases relating to:

  • Dacoity,
  • FERA,
  • Rape,
  • Dowry,
  • NDPS Act (Narcotic Drugs and Psychotropic Substances Act),
  • POTA (Prevention of Terrorism Act) and
  • Bribery,
mere conviction would disqualify a person from contesting any election. 
This is applicable even if the person is on bail after the conviction and his appeal is pending for disposal in the higher court.

And a person, who has been convicted and sentenced to 2 years’ imprisonment or more, in all other cases excluding the above, cannot contest any poll to Parliament, Legislative Assembly and Legislative Council.

However, until now, in all the above cases of conviction, the existing MPs, MLAs and MLCs,  so convicted  make use of the following, Section 8 (4) of “The Representartion of the People Act – 1951”, and escape from the disqualification to  continue tobe the Representation of the People, whether M.P. ,  M.L.A., or M.L.C., by filing appeal at the next higher court of law,  and deferring the conviction thereof ,within the stipulated 3 months’ time.

Section 8 (4) of  the Representation of the People Act 1951/RP Act 1951, reads as follows:
“Notwithstanding anything in sub- section (1), sub- section (2), or sub- section (3)] a disqualification under either sub- section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed.”

An Advocate Ms. Lily Thomas and “Lok Prahari”, a Registered Society, with the objective of contributing to Good Governance,  

through its General Secretary, S. N. Shukla, had filed 2 separate writ petitions/Public Interest Litigation Petitions/PILs, challenging the constitutional validity of certain provisions of “The Representation of the People Act -1951”, allowing  convicted persons to contest elections to Parliament and the State Legislatures, 6  years after release from jail.

The Supreme Court Bench, allowed the above 2 PILs and has directed the Central Government of India to file its response to the petitions.

The Views of the Surpeme Court Bench on Disqualification of Convicted Persons from MPs, MLAs and MLCs are as given below:
The Parliament of India is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State. 

The Parliament, thus does not have the power  to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.

The Supreme Court Bench has struck down Section 8 (4)  of the Representataion of the People  Act 1951, which  allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence, as unconstitutional. 

The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempted from it.

The Central Government of India through “The Election Commission of India”/ECI,

will have to respond to the ‘PIL’s and the observations of the Supreme Court of India on the above issue on 12th February 2014, the date of the furter hearing on the PILs.

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