IN THE SUPREME COURT OF INDIA
WRIT PETITION (CIVIL) NO. 330 OF 2016.
Election Commission of India
Date of Judgement
26th September, 2018
Hon'ble CJI Dipak Misra; Hon'ble Mr. Justice A.M. Khanwilkar; Hon'ble Dr. Justice D.Y. Chandrachud.
Elections being the nerve center of democratic politics bestow power on individuals charged with representing the will of the people in the legislature. The question then arises as to whether an individual of questionable integrity, charged with criminal cases, be given the opportunity to represent the interest of the citizens. Whether such can be allowed to determine the political outcome of democracy?
Background of the study:
The Democratic Reform Association (ADR) Report of September 25, 2018, 115 parliamentarians of Lok Sabha (21% of the total) and 20 parliamentarians of Rajya Sabha (9%) face serious criminal cases. Many are charged with multiple offenses.
The specific danger that elected representatives represent for democratic processes is their ability to use their power to influence legislators, public officials and institutions such as the police and investigative agencies to their advantage. Without a doubt, there is a fundamental flaw in the use of the confrontation doctrine (that is, a person is innocent until proven guilty) in the political context. This is mainly because a candidate accused of heinous crimes takes advantage of the “presumption of innocence” to challenge the elections and then takes an oath of allegiance to the Constitution and the law as members of the legislature and ministers. It is nothing more than a fraud in the Constitution.
The Supreme Court, in 2002, in Association for Democratic Reforms (ADR) v. Union of India, ordered the disclosure of information related to criminal records, educational qualification and personal property of a candidate who contests the elections. In the past, in Lily Thomas v Union of India (2013), the Supreme Court strengthened the qualification parameters by declaring Section 8 (4) of the People’s Representation Act of 1951 as ultra vires of the Constitution. The main court proactively held that any legislator/ parliamentarian convicted of a crime and with a minimum of two years in prison loses the membership of the house with immediate effect and a person, who is in jail or in police custody, cannot challenge the election to legislative bodies.
Consequently, a legitimate expectation was concocted in Public Interest Foundation v Union of India, which purported that when a person has been accused with serious criminal charges and where the Court is satisfied with their participation in the crime and, in consequence, the charges have been framed against that person, so in such cases, keeping the person out of the electoral arena would function as a reasonable restriction in the wider public interest.
However, the bench missed this opportunity with a little pragmatic hope that the legislature, in its wisdom, will take appropriate measures in accordance with Article 102 (1) (e). The Court considered that the language used in Section 7 (b) read with Sections 8 through 10A of the 1951 Act, is unambiguous and complete. Therefore, no intervention by the judiciary was required.
Constitution and Statutory Provisions Discussed:
- Articles 32, 101,102, 103, 104, 190, 191, 192 and 193 of the Constitution of India.
- Sections 8 & 151 of Representation of People’s Act, 1951.
- Sections 353, 504 and 506 of the Indian Penal Code (IPC).
- Section 389 of the Code of Criminal Procedure (CrPC).
The case is in subsistence by invoking the jurisdiction of the Supreme Court under Article 32 of the Indian Constitution by the Petitioner, Lok Prahari, in the present PIL. The petitioner is a society registered under the Societies’ Registration Act 1860. A member of the Legislative Assembly in the State of Uttar Pradesh was convicted of the offenses under Sections 353, 504 and 506 of IPC and was sentenced to imprisonment. However, in appeal before the District Court, the conviction and execution of the sentence stayed. To which the petitioner instituted PIL before Lucknow Bench of Allahabad High Court, seeking a declaration that the MLA stood disqualified notwithstanding the stay granted by the Sessions Judge. The PIL was dismissed by the bench on the ground that disqualification would not operate from the date on which the conviction has stayed.
The petitioner instituted a Public Interest Litigation before the Lucknow Bench of the Allahabad High Court, requesting a statement that the MLA remained disqualified despite the suspension granted by the Judge of Sessions. The Superior Court dismissed the PIL because, since the appeallate court suspended the conviction, the disqualification, which would otherwise be attracted, would not work from the date the sentence was suspended.
- Whether the legislators are disqualified from contesting elections if the conviction stays?
Contentions of Petitioners:
- Once the disqualification is incurred under Section 8 of the Representation of the People Act 1951 read with Article 102(1) (e) or Article 191(1) (e), the seat becomes vacant effective from the date of conviction.
- The petitioner contended that under Section 389 of Cr.P.C. the Appellate Court does not have the power to suspend the sentence and can only suspend the execution of the sentence relying on the case of R. Kapur v. State of Tamil Nadu.
- There is no provision in the Constitution or in the Representation of the People Act 1951 that, following a subsequent suspension of the sentence by the Court of appeal or review, the disqualification will be canceled retrospectively and that the membership of a Member of the condemned Parliament or the Legislative Assembly or the Council will be revived despite the vacancy that has occurred since the date of the conviction.
- In the absence of any constitutional or statutory provision, stay of conviction can only operate prospectively to enable a person to contest an election again since membership of the legislature terminates instantly from the date of conviction.
- The role of the Election Commission commences immediately with the conviction of a sitting legislator and need not await the receipt of a notification regarding the disqualification and the vacancy in the seat by the Secretariat of the Legislative body.
- There exists no legal requirement of a notification regarding the vacancy in the seat under Article 101 (3) (2) and 190 (3) (a) of the Constitution that the seat becomes vacant upon conviction.
- The revival of membership retrospectively after a conviction stays, will open a floodgate with convicted MPs/MLAs/MLCs approaching the appellate/revisional court to get a stay on conviction enabling them to continue even without the protection of Section 8(4) of the RP Act, 1951.
Contentions of Respondents:
- There is an automatic disqualification upon conviction. There is no need to allow the member of the legislature to exhaust the remedy of appeal and a subsequent stay of conviction cannot retrospectively cure the disqualification.
- No decision by the President or Governor under Articles 103 and 192 is required on the question of disqualification arising out of conviction, for the purpose of filling the seat which has fallen vacant.
- The issues raised in this petition have already been considered and decided in the decision of this Court in Lily Thomas .
- It is permissible to invoke the power under Section 389 (1) to stay the conviction.
- A stay of the order of conviction by an Appellate Court is an exception, to be resorted to in a rare case after the attention of the Appellate Court is drawn to the consequences which may ensue if the conviction does not stay.
- Where the conviction itself stays, the conviction continues to operate.
- It was urged that in the absence of Section 8(4), a member of Parliament or of the State Legislature would be left without remedy even if the conviction was “frivolous”. The Court rejected the submission and opined relying on Ravi Kant Patil , disqualifications arising out of the conviction ceased to operate after the stay of conviction, for special reasons passed by the appellate court under Section 389 of the Code or the High Court under Section 482 of the Code.
- The power to stay a conviction before it is exercised, the Appellate Court must be informed of the consequences that will occur if the sentence does not stay.
- The authority conferred on the Court of appeals to suspend a conviction ensures that a conviction for unsustainable or frivolous reasons does not work to cause serious harm.
The Judgment in Lok Prahari v. Election Commission of India failed to determine the question as to whether persons charged with criminal cases are allowed to determine the political outcome of democracy. The Court reiterated that the legislators are not disqualified from elections if the conviction stays.
Citizens, seeing the fortunes granted to these favored species when they violate the norms of criminal law and place themselves in the legislature or even as ministers, lose faith in the system itself. The very concept of public power implies great trust and responsibility in a Constitutional scheme aimed at people and places the holders of public power in a different balance. The decision of the Lok Prahari case not only outrages the rule of law but also deepens the crisis of legitimacy of our democracy. The Court has to correct the inherent power imbalance between corrupt representatives and intimidated voters but at the same time, the conclusion given by the court in this case in line with the legal principles.
Edited by Parul Soni
Approved & Published – Sakshi Raje
 Afroz Alam & Yogesh Pratap, The Wire, SC Had a Chance to Decriminalise India Politics, But Failed to Grab it. https://thewire.in/law/sc-had-a-chance-to-decriminalise-indian-politics-but-failed-to-grab-it (last visited on Jan. 23, 2020, 2:30 P.M).
 Association for Democratic Reforms (ADR) v. Union of India, (2002) 5 SCC 294.
 Lily Thomas v Union of India, (2013) 7 SCC 653.
 Public Interest Foundation v Union of India, 2014 SCC 1 616.
 B R Kapur v. State of Tamil Nadu, (2001) 7 SCC 231.
 Lily Thomas v. Union of India, (2013) 7 SCC 653.
 Rama Narang v. Ramesh Narang, (1995) 2SCC 513.
 Navjot Singh Sidhu v. State of Punjab, AIR 2007 SC 1003.
 Supra note 6.
 Lok Prahari v. Election Commission of India, Writ Petition (Civil) No. 330 OF 2016.