In above noted matter being Writ
Petition (Civil) No. 490 of 2005, hon’ble bench of Supreme Court of India
comprising of Mr. A. K. Patnaik J. and Mr. Sudhanshu Jyoti Mukhopadhaya J. has
allowed the petition by order/ judgement dated 10th July, 2013 to declare sub-section (4) of section 8 of the
Representation of People Act, 1951 as utra vires the Constitution and hence membership of
Parliament or the State Legislature, as the case may be, will not be saved by
said sub-section and the same will terminate immediately after conviction as
mentioned in sub-section (1), (2) and (3) of section 8.
While argument
on the issue on behalf of petitioner, attention of court was drawn to the debates of the Constituent Assembly on Article 83 of the Draft
Constitution, which corresponds to Article 102 of the Constitution of India. In
these debates, Mr. Shibban Lal Saksena, a member of the Constituent Assembly
moved an Amendment No. 1590 on 19.05.1949 to provide that when a person who, by
virtue of conviction becomes disqualified and is on the date of disqualification
a member of Parliament, his seat shall, notwithstanding anything in this
Article, not become vacant by reason of the disqualification until three months
have elapsed from the date thereof or, if within those three months an appeal
or petition for revision is brought in respect of the conviction or the
sentence, until that appeal or petition is disposed of, but during any period
during which his membership is preserved by this provision, he shall not sit or
vote. But this amendment to Article 83 of the Draft Constitution was not adopted
in the Constituent Assembly. Despite this fact similar provision was enacted
through sub-section (4) of Section 8 of the Representation of People Act, 1951.
Hon’ble Supreme Court further observed that a disqualification of a
person not to be chosen as a member of Parliament or of State Legislature
remains same for his continuance as a member of Parliament or of the State
Legislature. This is so because the language of Articles 102(1)(e) and
191(1)(e) of the Constitution is such that the disqualification for both a person
to be chosen as a member of a House of Parliament or the State Legislature or
for a person to continue as a member of Parliament or the State Legislature has
to be the same.
Accordingly, Supreme Court has held in its judgement that sub-section
(4) of Section 8 of the said Act which carves out a saving in the case of
sitting members of Parliament or State Legislature from the disqualifications under
sub-sections (1), (2) and (3) of Section 8 of the Act by deferring the date on
which the disqualification will take effect, is beyond the powers conferred on Parliament
by the Constitution and hence the same was declared ultra vires the
Constitution.
In consequence there will not be blanket suspension of disqualification of membership of Parliament or of State Legislature after pronouncement of order of conviction by trial court and said membership would terminate immediately forthwith.
Author’s View:
However, In case a sitting member of Parliament or State Legislature feels
aggrieved by the conviction and wants to continue as a member notwithstanding
the conviction, his remedy is to move the Appellate Court for stay of the order
of conviction. This view is supported by Navjot Singh Sidhu v. State of
Punjab and Another[(2007) 2 SCC 574] in which Supreme Court has
clarified that under sub-section (1) of Section 389 of the Code of Criminal
Procedure, 1973 power has been conferred on the Appellate Court not only to
suspend the execution of the sentence and to grant bail, but also to suspend
the operation of the order appealed against, which means the order of
conviction. Hence, in appropriate cases, the Appellate Court may stay the order
of conviction of a sitting member of Parliament or State Legislature and allow him
to continue as a member notwithstanding the conviction by the trial court.
