Column| Disqualification Of Elected Representative: Ipso Jure
“The Representations of the People Act, 1951” is a comprehensive Law, relating to election matters. Notwithstanding the term or tenure of elected members of Houses of Parliament and State Legislature, and the assurance of Law that they shall hold the office for full term, there could be certain events which would cut short such tenure of office in terms of the Representation of the People Act, 1951 (R.P. Act) as well as the Constitution of India.
Accountability of the elected members and social audit of their work/performance, as elected members is more than assured, in that people can reject them in the next election, by reason of failure in performance of their duties. This is one aspect of democracy that earns respect from the people of India. Periodical elections itself is a measure or check to insist on due performance of elected members and ushering in accountability on the part of the elected members.
The assured term of the elected representative may be cut short by other means as well. First of them being illegal/defective filing of nomination /candidature, in view of certain inhibiting circumstances. This is the initial disqualification for a candidate to get elected. The second disqualification is on account of certain acts traceable to elected representatives during the tenure of office. This aspect includes “incurred disqualification” under Schedule X appended to the Constitution.
The next category of disqualification is traceable to Sections 8 and 7(b) of R.P. Act, 1951 R/w Article 1919(1)( e) of the Constitution of India. The authentic manner in which Section 8 is drafted, amended and put in the present form, is worthy of admiration beyond measure. Articles 102(1)(e) and 191 (1)( e) R/w Articles 101 (3) (a) and 190(3)(a) of the Constitution, inhibit and take away the power of the Parliament to make any law which could defer the date on which the disqualification under 8 will have effect or in the matter of electoral relief to the disqualified representative.
Recent events in Indian Democracy, which is the largest in the World, has raked up the issue as to whether the ultimate effect of disqualification of an elected member can be brought about at the clap of hands or wink of an eye. Disqualification defined in Section 7(b) of the R.P. Act would mean disqualified for being chosen and for continuing as a Member of either House of Parliament or Legislative Assembly or Council of States.
Regime of Law
Other provisions of the Constitution and the R.P. Act, dwelling on matters of election and related issues are:- Article 101 dwells on vacation of seats in both the Houses of Parliament; Article 102 deals with disqualifications for membership for being chosen or for continuing as member of either House of Parliament; Article 103 deals with decisions on questions as to disqualification of members; Article 190 deals with vacation of seat by a member of both the houses of State Legislature; Article 191 deals with disqualification of membership for being chosen or for being continuing as member of State Assembly or Council. Article 192 would deal with decision on question as to disqualification of members.
Tenth schedule appended to the Constitution, in terms of Constitution 52nd Amendment Act 1955, ( former X schedule was omitted by 36th Amendment of Constitution Act 1975) contains paras 2, 4 and 5 which deal with disqualification on the ground of defection, while para 6 deals with decision on question as to disqualification on the ground of defection. Para 7 would exclude the jurisdiction of courts. In KihotoHollohon V/s Zachillou, (1992) 1 SCC 309, Hon’ble Supreme Court has declared that para 7 is invalid, for want of ratification in accordance with Article 368(2).
R.P. Act 1951 is a self- contained code and is enacted by the Parliament subject to provisions of the Constitution of India.
Section 7 (b) defines the term ‘disqualified’
The material, potential and all powerful Section 8 would deal with disqualification, on conviction, for certain offences.
Section 8(1) deals with certain offences, set out in various enactments, which would spell out an offence in the event of crossing swords with sensitive enactments. If an elected MP/MLA commits offences set out in 8(1) and convicted, he would be disqualified from being MP or member of Assembly.
Under Section 8(2),if an elected member is convicted for the contravention of law of prevention of hording or profiteering or any other law relating to adulteration of food or provisions of Dowry Prohibition Act and sentenced for not less than six months, he shall be disqualified, from the date of such conviction and shall continue to be disqualified for a further period of 6 years, since his release.
Section 8 (3) mandates that if a person is convicted for any offence and sentenced to imprisonment for not less than 2 years other than any offence referred to in Section 8(1) or 8(2), shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of 6 years from the date of his release. Section 8( 3) deals with offences committed under criminal law of the country in general and for certain other offencesPari- Materia with criminal law of India.
The above are the principal provisions of the R.P. Act which would disqualify an elected member of Parliament/State Legislature and would cost him the seat, from the moment the order of conviction/sentence is pronounced.
Under Section 389 of Cr.P.C. sentence can be stayed but not the conviction, unless under exceptional circumstances where appellate court is made aware of the consequence that ensues if the convict in is not stayed. Exercise of such power ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. One such exceptional circumstance is that of Navajoth Singh Siddhu
It means “by the law itself: by operation of law
‘Ipso Jure’ means ‘by the act of the law itself’, or ‘by mere operation of law’, as explained in the ‘A Law Dictionary’, adapted to the Constitution and Laws of United States by John Bouvier, Published in 1856.
Failed attempt to neutralise Section 8 (3) of R.P. Act
Parliament amended R.P. Act by adding Clause (4) to Section 8 with a view to diluting the effect of Ipso Jure disqualification, the moment a sitting member of Parliament or State Legislature is convicted and sentenced for a period not less than two years. Proposed amendment was bad in content, concept and context of Article 191(1)( e) of the Constitution of India. Validity and competence of Parliament to enact Section 8(4) of the Act was called in question by Litty Thomas. Hon’ble Supreme Court has held in the decision reported in AIR 2013 SC 2662 = (2013) 7 SCC 653, as follows;-
“Parliament cannot make a provision to defer the date on which disqualification of a sitting MP/MLA/MLC would become effective and or to prevent the seat becoming vacant, on account of disqualification”.
Section 8(4) is held to be ultra-vires the Constitution. Besides, it is inconsistent with and contrary to the basic concept of Democratic principles of Constitution in terms of Article 191 and related Articles.
Analysis And Deductions
Hon’ble Supreme Court considered scope of Section 8(3) and 81 (1) of R.P. Act and has laid down law which holds the field today. Hon’ble Supreme Court has also considered the aspect of Ipso Jure and the resultant fiction of seat held by MP/MLA/MLC becoming vacant on his conviction. In rare cases it is held by Supreme Court that not only sentence but also conviction can be stayed and the parameters for staying conviction are laid down in cases like that of Navajodh Singh Siddu V/s State of Punjab (2007) 2 SCC 574= AIR 2007 SC 1003, Lok Prahari V/s Election Commission of India (2018) 18 SCC 114 and in Lok Prahari V/s Election Commission, 2023 SCC Online SC 351 (Civil Appeal 1141/2020decided on 27-3-2023). It is categorically held that power has to be exercised only in rare cases, depending on facts of the case.
Supreme court has also considered and laid down, authoritatively, in Saritha S Nair V/s Hibi Eden in SLP (Civil) 10678/2020 decided on December 9, 2020 which is fully endorsed, with additional reasons, in Pradeep Kumar Sonthalia V/s Dhiraj Prasad Sahu reported in (2021) 6 SCC 523. The Resultant situation is that Article 191 covers both a contest in an election held for the office of MP/MLA/MLC as well as continuance of the elected person. If a person, being an MLA suffers disqualification in terms of Article 191(1)( e) of Constitution R/w Section 8(3) of R.P Act, on his conviction by criminal court, his seat becomes vacant and his name is liable to be deleted from the list of MLAs maintained under Section 152 of R.P. Act. He thus ceases to be a voter in an election by MLAs and cannot cast his vote in such election.
In Sonthalia, bench of three Judges, had occasion to hold that the moment criminal court convicts and sentences him for imprisonment for two years, MP/MLA/MLC is disqualified and he loses right to vote or right to present an election petition and his office/seat would become vacant. In Rama Narang V/s Ramesh Narang (1995) 2 SCC 513, a bench of three Judges examined the issue as to whether the court has power to suspend conviction under Section 389 and held that it was permissible to invoke the power under Section 389(1) to stay the conviction.
Disqualification incurred under Sections 8 (1) or,(2) or (3) of R.P. Act R/w Article 191(1)( e) of the Constitution of India, would operate Ipso Jure, without any court or agency seeking to implement the order of conviction. In exceptional/rare cases stay of conviction is granted as held in (2018)18 CC 114( 3 Judges).
The Author is a Senior Advocate.
[The opinions expressed in this article are those of the author. Verdictum does not assume any responsibility or liability for the contents of the article.]