New Delhi: In a major blow to politicians and the Parliament, the Supreme Court on Wednesday refused to review a judgement that banned convicted law makers from sitting in Parliament.
In a related issue on whether a person who has been jailed should be barred against standing for election, the Supreme Court issued notice. This is a controversial clause which could be misused by political parties against rivals because even one day behind bar without being convicted could bar him or her against contesting.
In a landmark judgement that could cleanse Parliament and Assemblies of criminals, the Supreme Court had on July 10 struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.
"The only question is about the vires of section 8(4) of the Representation of the People Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction," a bench of justices A.K. Patnaik and S.J. Mukhopadhaya had said.
The court, however, said that its decision will not apply to convicted MPs and MLAs who have filed their appeals in the higher courts before the pronouncement of this verdict.
The verdict seeks to remove the discrimination between an ordinary individual and an elected law maker who enjoys protection under the RP Act.
Under Sec 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that and a further six years after release. The following sub-section 8(4) says a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.
The Election Commission, has in its reports from time to time, has been seeking amendment of the law for removal of the incumbent advantage to elected MPs and MLAs convicted of various offences.
But political parties have been resisting change on the ground that ruling dispensations bring false charges out of political vendetta to keep rivals out of election process.
According to findings of ADR, an NGO, 162 sitting MPs face criminal charges in various cases of which 76 involve offences punishable with imprisonment of more than five years. Similarly, a total of 1,460 MLAs face criminal charges in various courts. 30 per cent of these are punishable with more than five years' imprisonment.
The plea seeking a direction to the Centre to stay the proceedings to amend the electoral law to nullify its two landmark verdicts disqualifying MPs and MLAs on conviction and debarring arrested persons from contesting polls was filed by the President of Haryana Swatantra Party Ramesh Dalal.
He had submitted that the amendment should not be brought by Parliament till the apex court decides the review pleas filed by him, the Centre and other political parties against the two landmark judgements.
“The Amendment Bill is being proceeded by the Union of India without waiting for the logical end of the review petitions. With this reason, it is against the provision of the Constitution and hence the amendment proceedings in Parliament is not only unconstitutional but also an attempt to create a public opinion that there is direct conflict between the judiciary and the executive or the legislature,” the petition said.
“The Parliament cannot amend a statutory or constitutional provison till the review petition is decided on the same subject by the court,” it said. Earlier, the Supreme Court had agreed to hear review petitions in an open court on September 4 against the verdicts.
It may be recalled that an all-party meeting earlier had voiced concern over 'erosion of supremacy' of Parliament with demands being made for a change in the mechanism of higher judiciary appointments and a response to the recent Supreme Court judgements on disqualification of legislators and barring those behind bars from contesting elections.
The meeting, convened by Parliamentary Affairs Minister Kamal Nath on the eve of Monsoon Session saw leaders of all parties being critical of the Supreme Court judgements.