A strong case to restore Section 8(4) of the RP Act

Table of Contents

Context: The article is discussing a legal situation related to the disqualification of sitting legislators in India. It focuses on the impact of the Supreme Court’s judgement in the Lily Thomas vs Union of India (2013) case on the disqualification process for sitting members of the legislature who have been convicted and sentenced in criminal cases.The article expresses concern that the change in the law, brought about by the Lily Thomas judgement, could have significant implications for the political careers of sitting legislators.

Background

Prior to the Lily Thomas judgement, there was a provision (Section 8(4) of the Representation of People Act 1951) that allowed a three-month period within which a sitting legislator could appeal against their conviction and sentence.
During this three-month period, disqualification would not take effect, and disqualification would only occur if the appeal was admitted and the final outcome of the appeal was unfavourable.
However, the Lily Thomas case resulted in the Supreme Court invalidating this provision (Section 8(4)) of the Representation of People Act.
- The court’s judgement stated that Article 102(1) of the Indian Constitution does not differentiate between sitting members of the legislature and candidates when it comes to disqualification.
- In other words, there should be no distinction between the disqualification criteria for sitting members and those for candidates seeking election.
- The court’s decision effectively removed the provision and therefore, once a court orders conviction and sentence under Section 8(3) of the Representation of People Act, a sitting legislator can now be disqualified instantly without any grace period.

Decoding the Editorial

The article discusses the interpretation and legal basis for the disqualification of sitting legislators in India, specifically in relation to Section 8(3) of the Representation of People Act and its connection to Article 103 of the Indian Constitution.

Section 8(3) of the RPA:
- This section states that a person who is convicted of an offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction.
- The section does not explicitly state that the person is disqualified from the moment the court pronounces them guilty.
- Instead, it means that the disqualification takes effect from the date of conviction.
Authority to Declare Disqualification:
- The article argues that the instant disqualification of a sitting legislator, like Rahul Gandhi for example, might not have a solid legal basis.
- It suggests that the authority to officially declare a sitting legislator disqualified could be the President of India, exercising this power under Article 103 of the Constitution.
- This interpretation is based on the idea that the words “He shall be disqualified” in Section 8(3) imply that some official authority needs to declare the disqualification.
Reference to Legal Precedent:
- The article refers to a legal precedent, the case of “Consumer Education & Research vs Union Of India & Ors (2009),” in which a three-judge Bench held that a declaration by the President under Article 103 that a sitting member has incurred disqualification is necessary.
- This suggests that the President’s involvement is crucial in the process of declaring disqualification.
Role of the President and Secretariat:
- Section 8(3) states that when a sitting member is convicted and sentenced to imprisonment for two years or more, they shall be disqualified from the date of conviction.
- The President has the authority to disqualify the member under Article 103.
- The Secretariat of the House to which the member belongs does not have the recognizable authority to declare immediate disqualification upon conviction.

The article focuses on the question of whether the stay of only the sentence or the stay of conviction is necessary to lift the disqualification of a legislator who has been convicted and sentenced to imprisonment for two or more years.

Different Views on Stay of Sentence vs. Stay of Conviction:
- The article mentions that there has been a debate over whether a stay of only the sentence (imprisonment) is sufficient to lift the disqualification of a convicted legislator, or if a stay of the conviction itself is necessary.
- Some High Courts, such as the Allahabad High Court and Himachal High Court, held the view that disqualification remains even if only the sentence is stayed.
- However, the Madras High Court took a different stance, suggesting that if the sentence is stayed, the conviction should be considered suspended as well.
Rahul Gandhi’s Case and Supreme Court’s Position: In Rahul Gandhi’s case, the Supreme Court stayed his conviction but did not explicitly address whether a stay of conviction is also required to suspend disqualification. The statement points out that the issue remains unresolved.
Disqualification Relating to Sentence, Not Conviction: The article emphasizes that disqualification arises only when the sentence is imprisonment for two years or more. The duration of the sentence, not just the conviction, is what triggers the disqualification.
Impact on Legislative Careers: The article expresses concern that instant disqualification upon conviction and sentence could have a significant impact on the careers of legislators.
- The judicial system’s pace in dealing with appeals and revisions is often slow, which could result in legislators losing their seats before their appeals are resolved.
Rare Exception of Agra Court: The article mentions an exceptional case where a court in Agra stayed the conviction of a legislator within 24 hours of conviction, thereby saving their membership in the legislative body.
Addressing Instant Disqualification: The article calls for urgent attention to the issue of instant disqualification, suggesting that it could negatively affect legislators’ careers. It suggests that Article 103 of the Indian Constitution could allow for differentiation in cases of disqualification and proposes a potential amendment to Article 102 to restore the invalidated Section 8(4) of the Representation of People Act.

The article therefore conveys the idea that restoring Section 8(4) is necessary to safeguard the political careers of legislators. It suggests that sudden and disruptive disqualifications resulting from court orders issued “without any application of mind” can be avoided if this provision is in place.