Ironically, the law in this regard i.e. the Representation of People Act and Article 105 read with Article 194 of the Constitution of India seek to give some protection to the dubious persons. The law appears to me as a protector rather then inhibitor of criminals. It is indeed absurd to see such a law which in fact promotes criminalization rather then supressing it.
I have had an occasion to examine the law when there were serious allegations against a minster of Gujarat. The allegations and the trial where the Minister is "Wanted" is for an offense u/s.302 of Indian Penal Code i.e. Murder. The point was whether person with a known shady background, facing criminal trials and declared "Wanted" by law can be permitted to be a minister of a big state like Gujarat? How protected are people of this land where their ministers are people with dubious backgrounds and where law comes to their rescue.
I have analyzed the law to find out if some Public Interest Litigations could be instituted to remove them from the high responsibilities they held. Unfortunately the search yielded results which we don't like to see. But that is what is law andwe can do little but to watch it as a silent spectator. The brief summary is hereunder.
MAIN QUESTION INVOLVED:
WHETHER MP / MLA CONVICTED OF A CRIMINAL OFFENSE CAN BE DISQUALIFIED / EXPELLED BY THE SUPREME COURT UPON A PUBLIC INTEREST LITIGATION – PIL?
17/09/2007
Question under consideration:
1. Whether Supreme Court / High Court (Judiciary) can debar / disqualify an MLA / MP from the House, if the MP / MLA is convicted of an offense?
(Here contrary to our case, we are proceeding on an assumption that concerned MP / MLA has been tried by a Criminal Court. MP /MLA is convicted (punished). After punishment the question is whether a court can disallow him to continue as a minister or a Member of the Legislative Assembly or Indian Parliament).
We are not dealing with a case of mere accusations. "Mere accusations" means a criminal case where only criminal trials are in progress and no outcome has yet come. The under-trials may be on pre-conviction bail or even in jail. Legally mere accusations are much lighter then convictions (punishment). Because in conviction, the offense is proved, after following a due process of law. However in accusations (legally called "charges"), the guilt is not proved. Therefore, accusation is lighter (as in our contention) then the cases where the convictions have taken place.
2. What is the law as far as convictions (punishment) for criminal offenses and holding the post of minister / MP / MLA? Will this law extend to cases where a Minister / MP / MLA is being tried by concerned criminal court?
3. What is the scope of Judicial Intervention?
4. What are the judicial verdicts in this regard?
The above questions are important. These are questions of law. Law will govern the facts.
Facts certainly influence law, so we take an assumption that Mr. X who is a minister committed a crime of murder. Mr. X was tried by Sessions Court. Mr. X was found guilty. Now the question is whether Mr. X can continue as an MP / MLA (ofcourse, if Mr. X can continue as an MP / MLA there should be no problem to continue as a minister). Alternatively, if Mr. X cannot continue as an MP / MLA (after he committed a murder and was proved guilty of doing so), then naturally he has no right to continue as a minister.
Another facet of our story: If pre-conviction (before being convicted), Mr. X can continue as MP/MLA, naturally he can always continue as a minister when he is yet being tried by a criminal court. Alternatively, can we say that Mr. X cannot continue as a Minister / MP / MLA, when he is being tried, while his offenses have not been proved before the Court of Law?
What does law say?
Let us see some judicial views on this to understand the fate of our own case where we Say that Mr. X is absconding a criminal trial. He is declared wanted by concerned court. When we say that Mr. X is absconding, it just means that he is "absconding" (running away). We are not saying that he has been found guilty. Running away from court, causing delay etc. are one thing and being held guilty for committing a crime is another thing. These two are different and must be clearly understood to see the difference in position of law when there is "conviction" and where there is "trial" / accusations.
To deal with the issue, let us first of all consider the provisions of law. First of all, let us refer to relevant provisions of Section 7 and 8 of the Representation of Peoples' Act, 1951.
Section 7(b) and Sub- sections (3) and (4) of Section 8 of the Representation of People Act, 1951, which have a bearing on controversy in hand read as under:-
Section 7(b):
"7(b) "disqualified" means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State."
Section 8(3):
"8(3) A person convicted of any offence and sentenced to imprisonment for not less than two years (other than any offence referred to in sub-section (1) or sub-section (2)) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub- section (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."
The law as cited above is fairly clear. The Law says that a person, if convicted becomes disqualified to act as MP / MLA. However it also says that such a disqualification remains suspended for 3 months and meanwhile if an appeal / revision / application is filed then in such a case the disqualification remains suspended until the appeal / revision / application is disposed off. What does this mean?
Say a murder is committed by Mr. X. On 01/01/2007, the court pronounces a judgment holding Mr. X guilty of committing a murder. Mr. X happens to be an M.P. In spite of committing a murder, Mr. X can continue as an MP from 01/01/2007 to 31/03/2007 (3 months)(Section 8(4) - Supra of the Act says this). Before 31/03/2007 Mr. X files an appeal in High Court. His appeal is admitted and sentence suspended. In that case, Mr. X can continue as an MP so long as his appeal is not disposed off by High Court. After appeal is disposed off, High Court finds him guilty of murder. Then Mr. X can file an appeal to Supreme Court and continue as an MP so long as Supreme Court does not hold him guilty. Same holds true for any offense punishable with imprisonment of a term exceeding 2 years.
This position of law was explained by Supreme Court in Re. Navjot Singh Siddhu Versus State of Punjab and Others. The Supreme Court held:
"The appellant Navjot Singh Sidhu along with co-accused Rupinder Singh Sandhu was tried for charges under Section 302 Indian Penal Code, 1860 and Section 323 read with Section 34 Indian Penal Code, 1860.....appeal in the High Court..has been allowed and the appellant has been convicted under Section 304 Part II Indian Penal Code, 1860 and has been sentenced to 3 years R.I. and a fine of rupees one lakh....appellant filed special leave petition in this Court in which leave has been granted on 12.1.2007 and he has been released on bail and thus the execution of the sentence imposed upon him has been suspended.....Since the appellant was a sitting Member of Parliament, he would not have incurred the disqualification as provided in Sub-section (3) of Section 8 of the Act, for a period of 3 months and if within that period he had filed an appeal until the decision of the appeal. Therefore, the appellant could have easily avoided the incurring of the disqualification by filing an appeal within three months from the date of his conviction by the High Court....In a fit case if the High Court feels satisfied that the order of conviction needs to be suspended or stayed so that the convicted person does not suffer from a certain disqualification provided for in any other statute, it may exercise the power because otherwise the damage done cannot be undone"
In short, the Supreme Court in Re. Navjot Singh Siddhu's case clearly held that a convicted person can continue to be an MP / MLA. However, he must file an appeal and get his sentense suspended under Section 389 of the Code of Criminal Procedure. We will not go into the details of Section 389 because they are not relevant here for our context. (Here it is pertinent to point out that our discussion is regarding sitting MP / MLA i.e. Mr. X). Siddhu’s case is placed at ANNEXURE – 1.
The logic is that even if a person is convicted, proved guilty, punishment directed, he still has a right to file an appeal. So long as the judicial recourses are available, the sentence can be suspended. As long as the sentence is suspended, person cannot be said to have committed an offense. His case is pending. So long his case is pending, he is not guilty. His case is under judicial scrutiny by way of trial, appeal etc. So he can continue to be a Member of Parliament or Legislative assembly.
It is like this: If we accuse that Mr. X is guilty, we got to prove it. Till we prove it, Mr. X in the eyes of law is innocent no matter how hard we accuse or how strong our case.
Similar issues came up before the Supreme Court in Re. Narasimha Rao Versus State (CBI/SPE). Brief facts of this case are: Mr. PV Narasimha Rao was Prime Minister in 1993.
A motion of No Confidence was moved. This motion was defeated with 251 members supporting the motion while 265 members opposing the motion. The accusation was that 14 out of 265 members accepted bribes given by Narasimha Rao. Therefore there were various offenses u/s. 7 of the Prevention of Corruption Act and other laws. The Special Judge, Delhi took cognizance of the case. He charged Mr. Narasimha Rao with various offenses of corruption, conspiracy etc. By Considering about 53 previous judgments and allied law, the Supreme Court considered the question of privileges which are governed by Article 105 of the Constitution of India. Analogous provisions for Legislative Assembly can be found in Article 194 of the Constitution.
Supreme Court juxtaposed Article 105 / 194 with Artile 19 of Constitution of India. These issues have been dealt with in Re. Narasimha Rao’s case as also in Re. Raja Ram Pal’s case from historical perspective reaching back to house of commons, Government of India Act, the parliamentarian debates during independence and post independence and the genesis of the Parliamentary privileges, their development and slowly their dilutions. We will not get into those details. All that we need to understand is that when we file a PIL in the Supreme Court or the High Court, we do so under the protection given to us vide Part III of the Constitution of India and particularly Article 14, 19, 21.
Now considering Article 19 juxtaposed with Article 105 or Article 194, it is pertinent to point out that Article 105 is a manifestation of the Constitution just as Article 19 is. Therefore, 105 / 194 have independent scope and Article 19 has no application. Under such circumstances, we are not likely to succeed in filing PIL claiming any remedy under Part III – fundamental rights before the Supreme Court of India.
Please consider some of the following dicta given in the Supreme Court in Re. Narasimha Rao’s case which will elucidate the topic:
“Our conclusion is that the alleged bribe takers, other than Ajit Singh, have the protection of Article 105(2) and are not answerable in a court of law for the alleged conspiracy and agreement. The charges against them must fail.”
“Those who have conspired with the member of Parliament in the commission of that offence have no such immunity. They can, therefore, be prosecuted for it.”
“The judgment of the Delhi High Court under appeal noted that it was not disputed that there was no authority competent to remove members of Parliament from their office.”
That the relevant law contained under Article 101 – 105 is reproduced for ready reference. Provisions of Presidential reference given under Article 103 may please be noted in particular.
101. Vacation of seats, - (1) No person shall be a member of both Houses of Parliament and provision shall be made by Parliament by law for the vacation by a person who is chosen a member of both Houses of his seat in one House or the other.
(2) No person shall be a member both of Parliament and of a House of the Legislature of a State and if a person chosen a member both o f Parliament and of a House of the Legislature of a State, then, at the expiration of such period as may be specified in rules made by the President, that person's seat in Parliament shall become vacant, unless he has previously resigned his seat in the Legislature of the State.(3) If a member of either House of Parliament -(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of article 102 or(b) resigns his seat by writing under his hand addressed to the Chairman or the Speaker as the case may be, and his resignation is accepted by the Chairman or the Speaker, as the case may be,his seat shall thereupon become vacant:Provided that in the case of any resignation to in sub-clause (b), in from information received or otherwise and after making such inquiry as he thinks fit; the Chairman or the Speaker, as the case may be, is satisfied that such resignation is not voluntary of genuine, he shall not accept such resignation.(4) If for a period of sixty days a member of either House of Parliament is without permission of the House absent from all meetings thereof, the House may declare his seat vacant:Provided that in computing the said periods of sixty days no account shall be taken of any period during which the House is prorogued or is adjourned for more than four consecutive days.102. Disqualifications for membership. - (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament -(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;(b) if he is of an unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;(e) if he is so disqualified by or under any law made by Parliament.
Explanation - For the purpose of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
(2)A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth schedule.103. Decision on questions as to disqualifications of members. -(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 10 2, the question shall be referred for the decision of the President and his decision shall be final.(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.
Supreme Court’s dicta in Re. Narasima Rao’s regarding disqualification is as hereunder:
“The removal of a member of Parliament is occasioned by operation of law and is self operative. Reference to the President under Article 103 is required only if a question arises as to whether a member of Parliament has earned such disqualification; that is to say, if it is disputed. The President would then have to decide whether the member of Parliament had become subject to the automatic disqualification contemplated by Article 101. His order would not remove the member of Parliament from his seat or office but would declare that he stood disqualified. It would operate not with effect from the date upon which it was made but would relate back to the date upon which the disqualification was earned.”
Now let us give, pin point answer to our questions we first raised (after considering the above position of law):
QUESTION NO. 1:
Whether Supreme Court / High Court (Judiciary) can debar / disqualify an MLA / MP from the House, if the MP / MLA is convicted of an offense?
Answer:
Presuming a person is finally convicted and no appeals remain, the court may direct a Presidential reference. It may ask to government to decide the question on such a reference. Other then this narrow scope, the Supreme Court cannot start debarring MPs and MLAs even if they are convicted.
QUESTION NO. 2:
What is the law as far as convictions (punishment) for criminal offenses and holding the post of minister / MP / MLA? Will this law extend to cases where a Minister / MP / MLA is being tried by concerned criminal court?
ANSWER:
The law is as contained under the Representation of Peoples Act. It says that a person pending appeal or revision may continue as an MP / MLA even if convicted. Mere accusations are useless to attract disqualification / cause expulsion. For understanding meaning and differences between disqualification, expulsion and cessation of Membership from Legislative Assembly / Parliament, please refer to Raja Ram Pal’s case (Supra).
QUESTION NO. 3:
What is the scope of Judicial Intervention?
ANSWER:
The scope is narrow. Crimes perpetrated by MP-MLA can be tried. However their expulsion from membership is not governed by criminal law. It is governed by parliamentary privileges as enshrined by Indian Constitution and the provisions of Representation of People Act.
QUESTION NO. 4:
What are the judicial verdicts in this regard?
ANSWER:
Following cases have been referred to during discussion:
Navjot Singh Siddhu’s case;
Narasimha Rao’s Case;
Raja Ram Pal’s case.
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