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Convicted MPs, MLAs debarred from contesting poll
Legal Correspondent

New Delhi, January 12
In a major judgement aimed at cleansing country’s politics of criminals, a Constitution Bench of the Supreme Court has ruled that a legislator who has been awarded more than two years’ sentence in a case will be disqualified from contesting election for six years after completing the jail term.

The immunity against his immediate disqualification from the House on conviction and award of more than two years' jail term in a criminal case, as provided under Section 8(4) of the Representation of People Act(RPA) “would cease to apply no sooner than the House is dissolved, or the person has ceased to be a member of that House” a five-judge Constitution Bench, headed by Chief Justice R. C. Lahoti said.

The Bench having Mr Justice Shivaraj V. Patial, Mr Justice K. G. Balakrashanan, Mr Justice B. N. Srikrishna and Mr Justice G. P. Mathur as the other judges, said any other interpretation would render Sub-Section 4 of Section 8 of the RPA liable to be annulled as unconstitutional.

The court said the purpose of enacting the provision of disqualification from contesting election for six years under Section 8(3) of the RPA upon conviction and award of more than two years' sentence had been made in the law to “prevent criminalisation of politics”.

“Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with a criminal background from entering politics, and the House, a powerful wing of governance. Persons with a criminal background do pollute the process of election as they have no reservation from indulging in criminality to win,” the court said.

It said the provision of disqualification was aimed at “promoting freedom and fairness of elections as also maintaining the law and order during the poll”.

“The applicability of the sentence to imprisonment for not less than two years would be decided by calculating the total term of imprisonment for which the person has been sentenced,” it ruled.

However, Mr Justice K. G. Balakrishnan disagreed with the other four judges on the question of accounting concurring sentence as a total sentence for disqualification under Section 8(3) of the RPA. He agreed with the Bench that the benefit of exemption from disqualification could not be carried to the next House.

The benefit against immediate disqualification under Section 8(4) to a convicted member of the House and giving him a breather of three months, was only made for the purpose of enabling him to file appeal in a superior court, the Bench said. If the appeal had been filed against the conviction, which was the foundation of disqualification, then the applicability of the disqualification shall stand deferred until the appeal was disposed of, the court held.

The judgement came on twin appeals challenging the election of Haryana’s sitting MLA Nafe Singh of the INLD and Kerala’s CPM MLA P. Jayarajan who at the time of filing nominations were convicted and sentenced to more than two years' imprisonment. Nafe Singh was sentenced to life imprisonment in a murder case and the Kerala legislator was sentenced to a total term of two years and five months on six counts in a riot case.

Setting aside their elections, the court said: “once the House has been dissolved and the person has ceased to be a member on the date of filing the nomination, there is no difference between him and any other candidate who was not such a member. Treating such two persons differently would be arbitrary and discriminatory and against Article 14 of the Constitution.”

“The correct position of law is that the nomination of a person disqualified within the meaning of Sub-Section(3) of Section 8 on the date of the scrutiny of nominations under Section 36(2) of the RPA shall be liable to be rejected as invalid and such a decision of the returning officer cannot be held to be illegal merely because the conviction is set aside or so altered as to go out of the ambit of Section 8(3) of the RPA consequent upon a decision of a subsequent date in a criminal appeal,” the court said.

“What is relevant is the actual period of imprisonment which any person convicted shall have to undergo, or would have undergone consequent upon the sentence pronounced by the trial court and that has to be seen in reference to the date of scrutiny of nominations or the date of election. All other factors are irrelevant,” it ruled.

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