Disqualification of MPs/MLAs

Why in news?

• Recently Congress leader Rahul Gandhi has been disqualified as Lok Sabha M.P after his conviction in a case.

Legal framework of disqualification of MPs, MLAs:

• Disqualification of a lawmaker is prescribed in three situations.
  • 1. Articles 102(1) and 191(1) for disqualification of a Member of Parliament and a member of the Legislative Assembly respectively.
    • The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
  • 2. Disqualification is in the Tenth Schedule of the Constitution.
    • This provides for the disqualification of the members on grounds of defection.
  • 3. The Representation of the People Act (RPA), 1951.
    • This law provides for disqualification for conviction in certain offences.

Provisions that deal with disqualification under the RPA:

• Section 8 of the RPA deals with disqualification for conviction of certain offences.
  • Section 8(1A): A person convicted of an offence punishable under the below Acts are disqualified for a period of six years:
    • Section 153A (promoting enmity between different groups), section 376 (rape), section 505 (making statement creating enmity, hatred or ill-will between classes) of IPC
    • Protection of Civil Rights Act, 1955
    • Foreign Exchange (Regulation) Act, 1973
    • Commission of Sati (Prevention) Act, 1987
    • Prevention of Corruption Act
  • Section 8(2A)
    • It lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
  • Section 8(3A)
    • Disqualifies a convicted person who has been sentenced to imprisonment for not less than two years.
    • He is disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
• Section 8A: Disqualification on ground of corrupt practices:
  • Person found guilty of a corrupt practice shall be disqualified
• Section 9: Disqualification for dismissal for corruption or disloyalty
  • A govt servant  dismissed for corruption or for disloyalty to the State shall be disqualified for a period of five years
• Section 9A: Disqualification for Government contracts, etc
• Section 10: Disqualification for office under Government company
• Section 10A: Disqualification for failure to lodge account of election expenses
• Section 11: The power for  removal or reduction of period of disqualification rests with the Election Commission

How does the disqualification operate?

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
• In 2018, in ‘Lok Prahari v Union of India’ case, the SC clarified that the disqualification will not operate from the date of the stay of conviction by the appellate court.
• Here, it should be noted that the stay cannot merely be a suspension of sentence, but a stay of conviction.
• Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending.
• This is akin to releasing the appellant on bail.

About appeal against the conviction impact disqualification:

• Section 8(4) of the RPA stated that the disqualification takes effect only after three months have elapsed from the date of conviction.
• Within that period, a person can file an appeal against the sentence before the higher Court.
• Earlier, the law had provided for a pause on disqualification if an appeal against the conviction was filed before a higher court.
• However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
• “This means that simply filing an appeal will not be enough to prevent disqualification.”
• The convicted MP must secure a specific order of stay against the conviction of the trial court.

PRACTICE QUESTION

Which of the following are conditions under which a member of legislature is disqualified from his office?

1.If he/she  is sentenced to imprisonment for not less than two years

2.If he/she fails to lodge account of election expenses

3. If he/she is convicted under Prevention of Corruption Act

Select the correct answer using the code given below:

(a) 1 and 2 only

(b) 2 and 3 only

(c) 3 only

(d) 1,2 and 3

Answer