Ojaank IAS Academy

OJAANK IAS ACADEMY

๐ˆ๐๐๐Ž๐•๐€๐“๐ˆ๐Ž๐ ๐ˆ๐ ๐„๐ƒ๐”๐‚๐€๐“๐ˆ๐Ž๐

OJAANK IAS ACADEMY

Disqualification of a MP

Share with

The many offences that result in a legislator’s disqualification are listed in Section 8 of the Representation of the People Act, 1951 (RP Act). In accordance with clause (3) of this section, anybody convicted of an offence other than those listed in the other two clauses and given a sentence of at least two years is barred from voting for two years following the conviction. But, clause (4) has granted sitting members a three-month reprieve from immediate disqualification so they can challenge the conviction.A two-judge Supreme Court panel invalidated this article on the grounds that Parliament lacks the authority to adopt such an exception for lawmakers who are already in office (Lily Thomas vs Union of India, 2013). As a result of this decision, a sitting legislator is immediately disqualified as soon as he is found guilty. The Court made it plain that the disqualification would be withdrawn and his membership would be reinstated in the event that the appeal Court upheld the conviction and penalty.

Courts have interpreted Section 8(3) of the RP Act, which allows for disqualification upon conviction, in a number of situations. According to a superficial reading of this clause, the legislator will be ineligible as soon as the trial court announces a conviction and punishment. Following such disqualification, his legislative seat shall become vacant in accordance with Article 101(3). (a). Yet, a deeper examination will show that the phrase “must be disqualified” does not refer to immediate disqualification. If language like “shall stand disqualified” had been used in this clause, it would have meant immediate disqualification without the need for outside intervention.

This clause’s usage of the passive voice suggests that the subject will be declared ineligible by a higher authority. Who may be that authority? The Constitution does not grant such authority to the Secretary General of a House of Parliament or the Secretary of a state legislature, hence they are ineligible. According to Article 103, the President of India has the right to determine whether a sitting member is now susceptible to disqualification in all circumstances covered by Article 102. (1). All situations of disqualification under the RP Act 1951, including disqualification upon conviction and punishment under Section 8(3) of the Act, are covered by Subclause (e) of this Article.

There are divergent views on the applicability of Article 103, which states that the President will have the last word if there is any doubt as to whether a sitting Member has been subject to any of the disqualifications listed in Article 102(1).

According to one theory, this Article can only be used to resolve a disagreement on the actual grounds for disqualification. The disqualification resulting from conviction for certain offences under Section 8 of the RP Act 1951, however, is covered by this article. Where is the disagreement in a case of conviction under this section? This would imply that it is a requirement of the Constitution to refer the matter of the disqualification of a sitting Member who has been found guilty of an offence mentioned by Section 8 to the President. In Consumer Education and Research Society v. Government of India (2009), the Supreme Court endorses this stance. According to this ruling, the President serves as both an adjudicator and a declarator in this situation.

The President may only proclaim that the incumbent Member is now disqualified in situations where adjudication is not necessary. Nonetheless, even in situations where a sitting member has been found guilty and the disqualification is due to take effect as of the date of conviction, the President’s involvement is required under Article 103. The RP Act’s Section 8(3) does not provide that a sitting Member’s disqualification begins the moment the conviction is made public. “Will be disqualified” expresses this meaning.

There are several issues with Lily Thomas’ judgement. It states that Parliament is not permitted to create a temporary exception in support of incumbent legislators. Yet, Article 103 itself stipulates that the President must make the decision about a member’s disqualification in the case of a sitting member. As a result, the Constitution clearly distinguishes between candidates and current Members. The court’s ruling disregarded this and invalidated the three-month opportunity provided for the sitting members to appeal their conviction.Therefore, it is a reasonable condition to grant sitting legislators such a short exemption. They are not put in a position where they would be a contender. In addition to the constituency losing its delegate, a sudden disqualification will result in significant disruption.

In order to address just this kind of circumstance, Section 8(4) was passed. A notification stating that Mr. Gandhi is ineligible was released by the Lok Sabha Secretariat on March 24, 2023, in the absence of a clause like clause 4 of Section 8 of the Constitution. This notification has likely been sent out in response to the Lily Thomas case ruling. Yet, Section 8 (3) utilises the phrase “must be disqualified” without mentioning which authority is responsible for Mr. Gandhi’s disqualification. As a result, the Lok Sabha Secretariat could be unable to declare him ineligible without first bringing the matter to the President for a declaration under Article 103, which is the customary process there.Neither the Constitution nor the RP Act of 1951 provide the Lok Sabha Secretariat the power to declare a sitting Member ineligible based on the Court’s ruling. According to Article 103, the President has that authority. Due to his conviction and two-year jail sentence, the sitting member is disqualified. Nonetheless, he “will be disqualified” as a result of a presidential decision. This ratio appears to be the Consumer Society Case ratio (supra).

There is a pressing need to revise the criminal defamation statute. Many nations have done away with it, including the US and the UK. Sri Lanka, a neighbour of India, has also eliminated it. Senior political figures being imprisoned for joking about or impromptu statements during campaign rallies is quite strange.The Supreme Court had called for the court system to adopt a liberal perspective on the use of dramatic, hyperbolic, or metaphorical phrases by politicians in their campaign speeches in 1965. The court stated that “…the environment is typically surcharged with partisan thoughts and emotions and the adoption of metaphors, extravagance or speech in assaulting one another are all part of the game. Hence, when the subject is discussed in the formal setting of a courtroom, some accommodations must be made, and the challenged utterances must be interpreted accordingly. Kultar Singh v. Mukhtiar Singh (1965).

Every political party in our multi-party democracy has the potential to become the dominant force. So, any political figure faces the risk of being accused of defamation and barred from running for office for many years. Citizens in established democracies must be allowed to laugh freely. Humans must develop the ability to mock themselves. Otherwise, we’d be stuck locking folks up all the time.


Share with

Leave a Comment


เคนเคฟเค‚เคฆเฅ€ เคฎเฅ‡เค‚ เคฆเฅ‡เค–เฅ‡เค‚


Videos


Register

Whatsapp

error: Content is protected !!