Explained | Can convicted legislators be disqualified from the Assembly?

Source: The post is based on the article “Explained | Can convicted legislators be disqualified from the Assembly?” published in The Hindu on 3rd November 2022. 

What is the News? 

Two legislators from Uttar Pradesh were convicted of criminal charges and one of them has been disqualified from the state assembly. 

When does conviction attract disqualification? 

Section 8 of the Representation of the People Act (RPA),1951 contains provisions to decriminalize electoral politics. 

There are two categories of criminal cases that attract disqualification upon conviction: 

Category 1 – Disqualification for 6 years upon any conviction. If the punishment is fine, the 6-year period will start from the date of conviction, but if there is a prison sentence, the disqualification will start on the date of conviction and will continue up to the completion of 6 years after the date of release from jail. 

Major IPC offences included under this category are: making speeches that cause enmity between groups (Sec.153A), bribery and personation during elections and offences relating to rape and cruelty to women by husband and latter’s relatives.  

– Besides, serious provisions of special laws such as the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act are among the category of offenses that entail disqualification regardless of the quantum of punishment.  

– Laws for the prevention of Sati, corruption, terrorism and insult to the national flag and national anthem are also part of this group. 

Category 2: All other criminal provisions fall in the 2nd category under which at least 2 years in prison is needed for disqualification. 

Is there legal protection for legislators against disqualification? 

Under Section 8(4) of the RPA, legislators could avoid immediate disqualification until 2013. 

The provision said that with respect to a Member of Parliament or a State legislator the disqualification will not take effect for three months. If within that period, the convicted legislator files an appeal or revision application, it will not take effect until the disposal of the appeal or application. In other words, the mere filing of an appeal against conviction will operate as a stay against disqualification. 

However, in Lily Thomas vs. Union of India, the Supreme Court struck down clause (4) as unconstitutional, thus removing the protection enjoyed by lawmakers. 

Can the disqualification be removed? 

The Supreme Court has the power to stay not only the sentence but also the conviction of a person. In some rare cases, conviction has been stayed to enable the appellant to contest an election. However, the SC has made it clear that such a stay should be very rare and for special reasons. 

The RPA also provides a remedy through the Election Commission. Under Section 11 of the Act, the EC may record reasons and either remove or reduce the period of a person’s disqualification. 

The EC exercised this power for Sikkim Chief Minister P.S. Tamang who served a one-year sentence for corruption and reduced his disqualification so as to contest a byelection and remain in office.