Will not review disqualification order on MPs,says Supreme Court

Those convicted,and pending appeal,will not retain position of legislator.

Written by Utkarsh Anand | New Delhi | Updated: April 8, 2014 3:09:19 pm

Censuring the government for “clumsily” drafting laws and “inviting problems”,the Supreme Court Wednesday stood by its landmark ruling that MPs and MLAs will be disqualified immediately if convicted in a criminal case by a trial court.

Related: SC bars convicted MPs,MLAs from office

A bench of Justices A K Patnaik and S J Mukhopadhaya,however,agreed to reconsider whether a person in lawful custody also stands disqualified from contesting polls.

“There is no error apparent on the face of our judgement of July 10. We are not inclined to entertain review petition. It was a well-considered judgement. Everybody should accept it. We are glad the Parliament has accepted it and brought amendments. You may say we went wrong but it is our view and we stick to it,” the bench said.

Related: MPs,MLAs to be disqualified upon conviction

Pressing for a reconsideration,Additional Solicitor General Paras Kuhad argued that the issue of convicted lawmakers had been decided by a constitution bench in 2005.

But the court shot down his arguments saying: “It has been very rightly done. It is consistent with the law and parliament now accepts our views. The proposed amendment also states that no disqualification would take place if a person gets his conviction stayed by a court. We also held it.”

The Representation of the People (Second Amendment and Validation) Bill,2013,passed by the Rajya Sabha,has sought to negate the verdict on immediate disqualification. It has provided that an MP or MLA will not be disqualified after conviction if an appellate court grants a stay on not only his sentence but also on his conviction. A stay on conviction is rarely granted.

The bench also expressed its anguish on the other review petition — to overturn its verdict that a person who cannot vote because he is jailed and is not an “elector” under the RP Act,and therefore disqualified from contesting elections.

“Legislature has created all the problems and they don’t want to admit their mistakes. Parliament is to make laws and we are here to interpret them. But when we start interpreting the laws,legislature blames us for encroaching into legislative domain. The law was very clumsily drafted. You have yourself invited all the problems,” it said.

“We found there was a lacuna in the law and we passed orders. Otherwise a voter would say the law prohibits him from casting his vote when he is inside a jail but allows another person in jail to contest. What kind of a law is this? There was an error in the legislation and you should have changed it,” it added.

The bench was also ready with copies of the amendment bill that seeks to add a proviso to sub-section (2) of Section 62 of the RP Act to state that a person cannot cease to be a voter while in detention as his or her right is only temporarily suspended and hence he can contest.

“The only remedy lay with the legislature and it has now clarified the rule. Parliament was free to enact a law and it has now done so. They have literally accepted our interpretation and introduced a proviso to Section 62. This should solve your problem,” it said.

ASG L N Rao tried to argue that an “elector” was different from a “voter” but the bench held there was no such distinction in the act. However,it guided the government to put its weight behind the contention that the provisions for disqualification were exhaustive under the constitution and certain chapters of the RP Act and hence the court required to reconsider if it could have interpreted it in the context of a right to vote and of being an elector.

“This is the only thing which we have not discussed in our previous judgement. Although your amendments also don’t mention it,we will deal with it in the review,” said the bench,admitting the Centre’s review plea. It issued notices to the Election Commission and others and said it would hear it on October 23.

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