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Jul 10, 2013 at 11:36pm IST

MPs, MLAs will be ousted soon after conviction in a criminal case: SC

New Delhi: The Supreme Court in a landmark verdict on Wednesday ruled that a lawmaker convicted in a criminal case by any court will lose the membership of either Parliament or state Assembly the moment he or she gets convicted.

While giving the ruling the apex court also declared Representation of the Peoples Act Section 8(4), which allows a convicted lawmaker to remain in office till the pendency of appeal, as ultra vires. "The only question is about the vires of section 8(4) of the Representation of the Peoples Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction," a bench of justices AK Patnaik and SJ Mukhopadhaya said.

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The government, however, will likely appeal against the Supreme Court order as it feels the latest ruling will lead to a political witch-hunting, sources said.

The verdict made it clear that those who are convicted will be barred from contesting elections. The apex court also sought to remove the discrimination between an ordinary individual and an elected lawmaker who enjoys protection under the Representation of the Peoples Act.

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Under Sec 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that and a further six years after release. The following sub-section 8(4) says a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.

The Election Commission in its reports from time to time has been seeking amendment of the law for removal of the incumbent advantage to elected MPs and MLAs convicted of various offences.

The Centre had defended the RPA provision by arguing that disqualifying convicted MPs and MLAs would destabilise governments surviving on a "razor edge thin majority". Political parties, too, have been resisting change on the ground that ruling dispensations bring false charges out of political vendetta to keep rivals out of election process.

Following the verdict, parties will find it difficult to give tickets to tainted individuals and will be forced to look at the possibility of members being convicted at a later stage. Since a clear distinction between facing charge and convicted has been made, the likes of former Bihar chief minister Lalu Prasad and former Haryana chief minister OP Chautala could find the going tough if immediate legal relief is not provided to them.

According to the findings of ADR, an NGO, 162 sitting MPs face criminal charges in various cases of which 76 involve offences punishable with imprisonment of more than five years. Similarly, a total of 1,460 MLAs face criminal charges in various courts and 30 per cent of these are punishable with more than five years' imprisonment.

The apex court's verdict came on petitions filed by a lawyer Lily Thomas and NGO Lok Prahari through its secretary SN Shukla who had sought striking down of provisions of RPA on the ground that they violate certain constitutional provisions which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.

The PILs had said that certain sections of RPA allow convicted lawmakers to continue in office while their appeals are pending and thus those provisions are "discriminatory and encourage criminalisation of politics". Political parties were guarded in their response. The BJP, Congress and CPI said that such verdicts needed to be studied carefully before any comment could be made.

"If you are convicted, you cannot contest elections. However, if you are a sitting MP or MLA, and if your appeal is accepted, then you can retain the position. A lot of questions have been raised on the verdict. Many also termed it discriminatory. The party will comment on this later after studying the court verdict," said BJP spokesperson Ravi Shankar Prasad.

"We have to see the order on disqualification and decide what to do next," said Union Telecom Minister and Congress MP Kapil Sibal. On the other hand CPI leader D Raja called it a judgement that will affect the polity of the country. "Political parties need to understand this judgement. They would need to train their members accordingly. This judgement is going to have an impact on the polity of the country. This needs to be studied thoroughly. It's an important judgement and is bound to have far reaching implications," he added.

Crime & politics (Source: National Election Watch & ADR:

1448 MPs/legislators have criminal cases pending against them.

641 MPs/legislators have ongoing criminal cases like rape, murder etc against them.

6 MPs/legislators have declared rape charges in the affidavit submitted to the Election Commission.

141 MPs/legislators have declared murder charges in the affidavit submitted to the Election Commission.

352 MPs/legislators have declared attempt to murder charges in the affidavit submitted to the Election Commission.

145 MPs/legislators have declared theft charges in the affidavit submitted to the Election Commission.

90 MPs/legislators have declared kidnapping charges in the affidavit submitted to the Election Commission.

75 MPs/legislators have declared dacoity charges in the affidavit submitted to the Election Commission.

162 MPs in Lok Sabha have criminal cases pending against them.

75 MPs have serious criminal charges against them.

(With additional information from PTI)