Current Affairs

UPSC Disqualification of an MP/MLA - English

Context:

• Kerala High Court refuses to stay 10-year imprisonment against Lakshadweep Member of Parliament in an attempt to murder case.

Background:

• Earlier, the Kavaratti Sessions Court had convicted four persons, including Mohammed Faizal P.P. then sitting Member of Parliament (MP) of Lakshadweep for committing offences punishable under Indian Penal Code (IPC) and sentenced to undergo 10 years of rigorous imprisonment.
• On January 13, the Lok Sabha announced the disqualification of Faizal as an MP with effect from the date of conviction.
• On January 18, the Election Commission of India (ECI) fixed February 27 as the date for by-election to that constituency.
• An appeal in Kerala High Court  suspended his conviction and sentence on January 25.
• The High Court suspended his conviction until disposal of the appeal.
• Mr. Faizal also challenged the ECI’s announcement in the Supreme Court of India due to which the ECI deferred  the election.
• The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha.

Provision for disqualification:

• In case an MP is convicted of any criminal offence, there are provisions in place for their disqualification from the parliament.
• Article 102 of the Indian Constitution lays down the provisions for the disqualification of a Member of Parliament. According to this article, an MP can be disqualified on the following grounds:
• If he/she holds an office of profit under the government of India or the government of any state, other than an office declared by Parliament by law not to disqualify its holder;
• If he/she is of unsound mind and stands so declared by a competent court;
• If he/she is an undischarged insolvent;
• If he/she is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
• If he/she is so disqualified by or under any law made by Parliament.
• It means that Parliament can make laws to disqualify MPs on any other ground as well.
• Section 8 of 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.

Differential Treatment:

• There is an exception for sitting members under Representation of the People Act, 1951
• Sitting members 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.
• The differential treatment of candidates for elections and sitting members was challenged under Article 14.
• The Supreme Court in K. Prabhakaran vs P. Jayarajan 2005 case, validated the differential treatment as the consequences of disqualifying a contestant and a sitting member were different.
• The disqualification of an MP or MLA has several implications for the functioning of the House and the political party to which the member belongs.
• The disqualification of an MP or MLA leads to a by-election in the constituency represented by the disqualified member. This not only entails additional expenditure for the government but also affects the political balance in the House.
• The Court also held that the removal of disqualification in case of acquittal of a candidate would be prospective and for future elections and not with retrospective effect as this would require the results of the election to be cancelled.
• However, in 2013, a two-judge Bench of the Supreme Court in the Lily Thomas vs Union of India case  stated that the conditions for disqualification would apply equally to candidates and sitting members. Therefore, the exception carved out for sitting members was unconstitutional.
• The judgement  cited Article 101 that if a Member of Parliament was disqualified under Article 102, “his seat shall thereupon become vacant”. Therefore, the disqualification was automatic and had immediate effect if the conditions of Article 102 were met.
• The judgement also stated that a disqualified person may obtain a stay on his conviction, and the disqualification would be removed from the date of the stay order.

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