New Delhi: In a landmark judgement that could cleanse Parliament and Assemblies of criminals, the Supreme Court on Wednesday struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.
"The only question is about the vires of section 8(4) of the Representation of the People Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction," a bench of justices A.K. Patnaik and S.J. Mukhopadhaya said.
The court, however, said that its decision will not apply to convicted MPs and MLAs who have filed their appeals in the higher courts before the pronouncement of this verdict.
The verdict seeks to remove the discrimination between an ordinary individual and an elected law maker who enjoys protection under the RP Act.
Under Sec 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that and a further six years after release. The following sub-section 8(4) says a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.
The Election Commission, has in its reports from time to time, has been seeking amendment of the law for removal of the incumbent advantage to elected MPs and MLAs convicted of various offences.
But political parties have been resisting change on the ground that ruling dispensations bring false charges out of political vendetta to keep rivals out of election process.
According to findings of ADR, an NGO, 162 sitting MPs face criminal charges in various cases of which 76 involve offences punishable with imprisonment of more than five years. Similarly, a total of 1,460 MLAs face criminal charges in various courts. 30 per cent of these are punishable with more than five years' imprisonment.
Political parties were cautious in their reaction to the judgement. Law Minister Kapil Sibal and BJP spokesperson Ravi Shankar Prasad, both lawyers, said they would go through the judgement and only then come out with their reaction as it has wider legal implications.
Sibal parried a question whether the government would seek a review of the judgement while Prasad said BJP would be supportive of any initiative for purifying the political process.
CPI leader D Raja said the judgement was quite significant and one would have to wait how the political parties and the Election Commission handle the issue. The apex court's verdict came on petitions filed by a lawyer Lily Thomas and NGO Lok Prahari through its secretary S N Shukla who had sought striking down of provisions of RPA on the ground that they violate certain constitutional provisions which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs. The PILs had said that certain sections of RPA allow convicted lawmakers to continue in office while their appeals are pending and thus those provisions are "discriminatory and encourage criminalisation of politics".