Context: 

The recent order of Kerala High Court of suspending the verdict of conviction of  MP has raised an issue whether disqualification for conviction is final or whether it can be revoked. 

Background:

• The MP was convicted by the Kavaratti sessions court for attempted murder, and sentenced to 10 years imprisonment. 
• The Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction.
• The Kerala High Court suspended his conviction on appeal.
• The Election Commission of India (ECI) fixed February 27 as the date for by-­election to that constituency.
• The MP challenged the ECI’s announcement in the Supreme Court of India.

Arguments given by Kerala High Court:

• The High Court said that the consequence of not suspending the conviction is drastic not just for the MP but also for the nation. 
• The cost of a parliamentary election would have to be borne by the nation and developmental activities in Lakshadweep will also stop for a few weeks. 
• The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha.
• Given these exceptional and irreversible consequences, it suspended his conviction until disposal of the appeal.

Disqualifications of MP or MLA:

• The provision for disqualification is given in Article 102 of the Constitution.
• It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions. 
• These+ include holding:

• • an office of profit,
  • being of unsound mind or insolvent, 
  • not being a citizen of India. 
• It also authorizes Parliament to make law determining conditions of disqualifications. 

The Representation of the People Act, 1951:

• It provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more. 
• The person is disqualified for the period of imprisonment and a further six years. 

Exception under the Act:

• 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. 
• The differential treatment of candidates for elections and sitting members was challenged under Article 14 (right to equality). 

Judicial verdict

• K. Prabhakaran vs P. Jayarajan case 2005: 

• • A Constitution Bench of the Supreme Court decided that the consequences of disqualifying a contestant and a sitting member were different. 
  • In the latter case, the strength of the party in the legislature would change, and 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. 
  • The Court also considered whether in case of a disqualified candidate who is later acquitted, the disqualification would be removed with retrospective effect. 
  • It stated that this could not be done as this would require the results of the election to be cancelled. 
  • Therefore, the removal of disqualification would be prospective and for future elections. 

• Lily Thomas vs Union of India 2013: 

• • The Supreme Court again considered whether this exception was constitutionally invalid. 
  • It stated that Article 102 empowers Parliament to make law regarding disqualification of a person “for being chosen as, and for being, a member of either House of Parliament”. 
  • It interpreted this phrase to mean that whereas Parliament could specify conditions for disqualification, those conditions would apply equally to candidates and sitting members. 
  • Therefore, the exception carved out for sitting members was unconstitutional. 
  • The judgement further cited Article 101 that if a Member of Parliament was disqualified under Article 102, “his seat shall thereupon become vacant”. 
  • Therefore, the disqualification was automatic and had immediate effect if the conditions of Article 102 were met.

What happens if the conviction is suspended?

• The Supreme Court in the case of Navjot Singh Sidhu, stayed his conviction in 2007, which removed the disqualification until the appeal was decided. This decision allowed him to contest the election.
• In the Lily Thomas judgement (2013), SC stated that a disqualified person may obtain a stay on his conviction, and cited an earlier 2007 judgement that the disqualification would be removed from the date of the stay order.

Present conundrum

• The question is whether the removal of disqualification can be backdated as if it never happened and the election avoided.
•  Or whether the disqualification is removed only from the date of the stay order, and, therefore, the vacated seat be filled only through a by-election.
• This conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification whereas the Kerala High Court stay tries to ensure that the MP retains the seat until the appeal is decided. 

News Source: The Hindu