The curious case of the disqualification of a politician

Source: The post is based on the article “The curious case of the disqualification of a politician” published in The Hindu on 20th February 2023. 

Syllabus: GS2- Parliament and state legislature 

Relevance: Issues related to disqualification of the legislative member. 

News: The Kerala High Court suspended the verdict passed by the District and Sessions Court in which the then-sitting MP of Lakshadweep was sentenced to 10 years in jail.  

What is the issue? 

A sitting MP of Lakshadweep was convicted by the Kavaratti sessions court on January 11.  The Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction. The Election Commission of India fixed a date for a by-election to that constituency.  

However, the Kerala High Court stayed his conviction and sentence. The High Court said that the consequence of not suspending the conviction is drastic not just for the particular person but also for the nation. The MP then challenged the ECI’s announcement in the SC of India.  

What is the question before SC? 

It is related to whether the person automatically will resume his membership of the Lok Sabha.  

The answer lies in deciding whether the cancellation of disqualification takes effect when the High Court suspended the conviction or from the date of conviction and disqualification.  

What are constitutional and legal provisions regarding the disqualification of a sitting member of Parliament? 

Article 102 of the Constitution contains provisions for disqualification. It specifies that a person shall be disqualified from contesting elections and being a Member of Parliament under certain conditions.  

These include holding an office of profit, being of unsound mind or insolvent, or not being a citizen of India.  

It also authorises Parliament to make law determining conditions of disqualifications. There are analogous provisions for members of state legislatures. 

The 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 a period of imprisonment and a further six years.  

There is an exception for sitting members. They 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.  

What are the judgements of higher courts on disqualification? 

The differential treatment of candidates for elections and sitting members were challenged under Article 14. The Supreme Court in K. Prabhakaran vs P. Jayarajan case decided that the consequences of disqualifying a contestant and a sitting member were different. 

In the case of sitting members, the strength of the party in the legislature would change. It could have an adverse impact if a government had a thin majority. It would also trigger a by-election. Therefore, it was reasonable to treat the two categories differently.  

It stated that disqualification would be removed with retrospective effect as this would require the cancellation of election results. Therefore, the removal of disqualification would be prospective and for future elections. 

Supreme Court in Lily Thomas vs Union of India case, 2013 stated that Article 102 empowers Parliament to make law regarding the disqualification of a person. If Parliament could specify conditions for disqualification, those conditions would apply equally to candidates and sitting members. 

If a Member of Parliament was disqualified under Article 102, his seat shall become vacant. Therefore, the disqualification will be automatic and have immediate effect.