The constitutional issues around the ‘Convicted MPs’ Bill would have led to its dismissal by the Supreme Court.

The Union Cabinet has decided to withdraw an Ordinance to amend the Representation of the People Act, 1951 (RPA, 1951) that sought to provide time to convicted legislators to file an appeal. The Cabinet has also decided to withdraw a Bill with similar provisions which was introduced in Parliament in August. I explain the constitutional issues that the Bill would have faced.

The Representation of the People Act, 1951 specifies the qualifications and the disqualifications of Members of Parliament and state legislatures. In particular, the first three subsections of Section 8 list various offences, and state that anyone who has been convicted of these offences is disqualified. Subsection (4) carves out an exception for sitting legislators:  it states that the disqualification for sitting legislators will not take effect for three months from the date of conviction, and if the convicted person files an appeal within this period, the disqualification will not be effective until the superior court decides the appeal. In effect, if a person is not a legislator, then he is immediately disqualified from contesting elections. On the other hand, if he is a sitting legislator, his disqualification kicks in with a lag, which could be as long as the court takes to decide his appeal.

There have been various objections to this differential treatment. In January 2005, while examining a different issue related to this Section, a five-judge Constitution Bench of the Supreme Court also looked into the question of whether this non-uniform treatment violated Article 14 of the Constitution, which guarantees equality before law. The Court said that the objective of including this provision was not to protect the rights of a sitting member but to protect the “very existence and continuity of a House democratically constituted”.  They pointed out two undesirable consequences if a sitting member were to be disqualified immediately on conviction and sentencing. If the government had a “razor-edge thin majority”, a disqualification could “have a deleterious effect on the functioning of the government”.  Also, the disqualification may lead to a bye-election, which may be a futile exercise if the convicted member is acquitted by a superior court. They said that it was legitimate for the legislature to make two classes for the purpose of disqualification, if had nexus with a public purpose that was sought to be achieved.  Therefore, such classification could not be judged as impermissible under Article 14.

The issue of the constitutional validity of Section 8(4) was decided by a two-judge bench of the Supreme Court in July 2013  (Lily Thomas judgement). They did not consider the Article 14 arguments. They struck down the exception made on the basis of two different Articles of the Constitution.

Article 102 of the Constitution specifies the conditions for disqualification for membership of Parliament. There is a similar provision under Article 191 for members of state legislatures. Article 102(1) lays down five clauses specifying conditions under which “a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament”.  The first four conditions are specified as holding office of profit, being of unsound mind, being declared insolvent, and not being an Indian citizen. The fifth clause states that “if he is so disqualified by or under any law made by Parliament”. In the Lily Thomas judgement, the Court stated that it was under these powers that Parliament enacted the disqualification provisions of the RPA, 1951.

The Court held that the wording of Article 102(1) indicated that there has to be the same set of disqualifications for the two groups: “for being chosen as”, and “for being” an MP. Therefore, any law made in this respect had to have uniform application for the two groups. This was a sufficient ground for stating that Section 8(4) was inconsistent with Article 102(1)(e), and had to be struck down.

They also looked at Article 101, which lays down grounds for declaring a seat vacant in Parliament. Article 190 has corresponding provisions for state legislatures. Article 101(2)(a) states that “If a Member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article 102, his seat shall thereupon become vacant”.  The Court ruled that this meant that the seat becomes vacant immediately upon a disqualification under Article 102(1), and any law made by Parliament cannot specify a later date for the disqualification to take effect.  Therefore, Section 8(4) was not in line with Article 101(2)(a).

The Bill (and the Ordinance) bring back the provisions of the old Section 8(4) with some changes. The new provisions also give three months for a member to file an appeal, and state that the disqualification will not take effect if the court stays the conviction or sentence. Until the appeal is decided, the member may participate in the proceedings of Parliament but may not vote, and shall not receive any salary or allowance.

Using the Lily Thomas case yardstick, it is evident that these provisions will also violate Articles 102(1)(e) and 101(2)(a) of the Constitution. The new provision has differentiated between “for being chosen as”, and “for being” a legislator. It also defers the date on which the disqualification comes into effect for sitting legislators.

The additional conditions – that the member may participate but cannot vote – would also negate the rationale used by the five-judge Bench to declare that the earlier provision did not violate Article 14. If the member cannot vote in case of a government with a “razor-edge thin” majority, there is no public purpose achieved by differentiating between sitting legislators and candidates for the election.

If the Ordinance had been issued or the Bill passed, it would have, in all likelihood,  been challenged in the Supreme Court. Given the Lily Thomas judgement, the Court would have only two choices:  to strike down the new law or to state that the Lily Thomas judgement was erroneous. The reader can guess which of these decisions was more likely. Thus, apart from the political issues and public pressure, it was good that the government decided to go back on its earlier decision rather than face the Court at a later date.