Disqualification of Politicians

On January 13, the Lok Sabha announced the disqualification of politicians with effect from the date of conviction.

Nationalist Congress Party leader was convicted by the Kavaratti sessions court(Kerala) on January 11 for an attempt to murder and sentenced to 10 years imprisonment.
The ECI set February 27 as the date for the by-election to that constituency on January 18, with the formal notification to be issued on January 31.

Article 102 of the Constitution
- Firstly, Article 102 of the Constitution contains a provision for disqualification.
- It states that under certain conditions, a person cannot run for office or be a Member of Parliament.
- The conditions include;
  - Holding an office of profit.
  - Being of unsound mind or insolvent.
  - Not being a citizen of India.
- It also empowers Parliament to enact legislation governing the conditions of disqualification.
- Furthermore, members of state legislatures have similar protections.
The Representation of the People Act, 1951
- The Representation of the People Act of 1951 states that a person is disqualified if convicted and sentenced to two years or more in jail.
- The person is ineligible for the duration of incarceration and another six years.
- There is an exception for sitting members;
  - They have been given three months from the date of conviction to appeal
  - The disqualification will not be applied until the appeal is resolved.

The Supreme Court has the authority to delay a person’s sentence and their conviction.
In rare situations, convictions have been stayed to allow the appellant to run for office.
Yet, the Supreme Court has stated that such a stay should be granted only in exceptional circumstances.
The RPA itself provides a remedy through the Election Commission.
Additionally, the EC may record reasons and either remove or shorten the time of a person’s disqualification under Section 11 of the Act.

Articles 102 and 191
- The basic disqualification criteria for an MP are outlined in Article 102 of the Constitution, while those for an MLA are outlined in Article 191.
Grounds for disqualification under Constitution
- Firstly, holding an office of profit under the government of India or state government.
- In addition, being of unsound mind.
- Being an undischarged insolvent.
- Furthermore, not being an Indian citizen or acquiring citizenship of another country.

Lily Thomas vs Union of India(2013)
- In 2013, a two-judge Bench of the Supreme Court declared that Article 102 authorises Parliament.
- It is to create a law regarding the disqualification of a person “for being chosen as, and for being, a member of either House of Parliament”.
- In addition, The Court took this language to suggest that Parliament could set disqualification criteria.
- And those criteria would apply equally to candidates and serving members.
- As a result, the provision made for sitting members was unlawful.
- The judgement further noted Article 101 that if a Member of Parliament was disqualified under Article 102, “his seat shall thereupon become vacant”.
- As a result, if the prerequisites of Article 102 were met, the disqualification was automatic and took effect immediately.

The Lily Thomas decision (2013) mandates that the seat be resigned immediately upon disqualification.
However, the stay in the instance of P.P. Mohammed Faizal attempts to guarantee that the MP holds the position until the appeal is decided.
Ideally, the Supreme Court will dismiss the case since it will have ramifications for other cases.

Pic Courtesy: Telegraph India

Content Source: The Hindu