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- Mains – GS 2 (Polity and Governance)
Context: Recently, the debate has surrounded whether disqualification for conviction is final or whether it can be revoked.
- 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.
About Disqualification on Ground of Defection:
- 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.
Important Supreme Court Judgements:
- 2002– Union of India (UOI) v. Association for Democratic Reforms: The SC held that every candidate, contesting an election to the Parliament, State Legislatures, or Municipal Corporation, has to declare their criminal records, financial records, and educational qualifications along with their nomination paper.
- 2005- Ramesh Dalal vs. Union of India: The SC held that a sitting MP or MLA shall also be subject to disqualification from contesting elections if he is convicted and sentenced to not less than 2 years of imprisonment by a court of law.
- 2013- In Lily Thomas v. Union of India: The SC held that Section 8(4) of The Representation of the People Act, 1951 is unconstitutional which allows MPs and MLAs who are convicted to continue in office till an appeal against such conviction is disposed of.
- The court held that MP/MLA convicted for two years or above would be disqualified immediately.
- 2015 – Krishnamurthy v. Sivakumar & Ors: The SC held that disclosure of criminal antecedents (especially heinous crimes) of a candidate at the time of filing of nomination paper as mandated by law was a categorically imperative.
Can the disqualification be removed?
- Yes, the Supreme Court has the power to stay not only the sentence but also the conviction of a person.
- In some rare cases, conviction has been stayed to enable the appellant to contest an election.
- But the Supreme Court has made it clear that such a stay should be very rare and for special reasons.
- The RPA itself provides a remedy through the Election Commission.
- Under Sec. 11 of the Act, the EC may record reasons and either remove or reduce the period of, a person’s disqualification.
- The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a byelection and remain in office.
Is there legal protection for legislators against disqualification?
- Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013.
- Section 8(4) allowed convicted MPs, MLAs, and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court.
- In other words, the mere filing of an appeal against conviction will operate as a stay against disqualification.
- But in Lily Thomas vs. Union of India, the Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires, and held that the disqualification takes place from the date of conviction.
The introduction of the tenth schedule in the Indian Constitution was aimed at curbing political defections. Though the law has succeeded in a reasonable way but due to some of its loopholes, it has not been able to achieve the best it can.
Source: Indian Express
Previous Year Questions
Q.1) With reference to anti-defection law in India, consider the following statements:
- The law specifies that a nominated legislator cannot join any political party within six months of being appointed to the House.
- The law does not provide any time-frame within which the presiding officer has to decide a defection case.
Which of the statements given above is/are correct? (2022)
- 1 only
- 2 only
- Both 1 and 2
- Neither 1 nor 2
Q.2) Which one of the following Schedules of the Constitution of India contains provisions regarding anti-defection? (2014)
- Second Schedule
- Fifth Schedule
- Eighth Schedule
- Tenth Schedule