Supreme Court strikes down S.8(4) of Representation of People Act; Says sitting MPs/MLAs to be disqualified from date of conviction

A Bench of Justices AK Patnaik and SJ Mukhopadhaya struck down the constitutional vires of S. 8(4) of the Representation of People Act, 1951 which provides sitting MPs and MLAs an additional layer of protection from disqualification in case s/he is convicted of certain offences. (Lily Thomas vs Union of India, Lok Prahari vs Union of India).The provision provided for a period of 3 months within which the convicted sitting MP/MLA cannot be disqualified. Furthermore, if the sitting MP/MLA were to file an appeal or revision within these three months from the date of conviction, s/he could not be disqualified until the appeal or revision were disposed..This protection (of three months from date of conviction) is not available to individuals who are running for elections to either State or Central Parliaments. In its judgment, the court made three crucial findings, namely:.1. There cannot be different conditions for disqualification from being selected as an MP/MLA and for continuing as an MP/MLA.The Court held that,.“[If] because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same..2. Removal of Section 8(4) will not cause unnecessary hardship to sitting MPs/MLAs.Rejecting the argument that without the protection of Section 8(4), the concerned individual would suffer “immense hardship” and be left “remediless”, the Court placed reliance on the earlier decision in Ravikant Patil v Sarvabhouma S Bagali [2007] 1 SCC 673 wherein it was held that,.Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative…..Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction..Hence it was the Court’s observation that the convicted individual could always avail of the remedy of a stay of the conviction since,.[T]he disqualification under sub- section (1), (2) or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the Code or the High Court under Section 482 of the Code..In conclusion, the Court observed that,.Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution..3. Applicability of the judgment.The Court observed that the judgment would only be applied prospectively since,.“[T]he knowledge that sitting members of Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court.”.The entire text of the judgment can be read below: