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The
act is pivotal in preventing criminals being elected as representatives, is
always quoted by Supreme Court and High Court in various judgments. Sections 7
to 11 of the act deal with disqualification of representatives.
A person can be disqualified on below
grounds:
• Disqualification on conviction
for certain election offences and corrupt practices in the election.(Section 8)
• Disqualification on conviction
for certain offences.
• Disqualification on ground of
corrupt practices.(section8A).
• Disqualification for dismissal
for corruption or disloyalty.(Section9).
• Disqualification for Government
contracts, etc.(Section9A)
• Disqualification for office
under Government company(section10)
• Disqualification for failure to
lodge account of election expenses.(section 10 A)
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Section 8 of Representation of Peoples Act
1951: Section 8
deals with Disqualification of
representatives on conviction for certain offences.
This section states that:
• 1 A person convicted of an
offence punishable under certain acts of Indian Penal Code, Protection of Civil
Rights Act 1955, Unlawful Activities (Prevention) Act 1967, Prevention of
Corruption Act 1988, Prevention of Terrorism Act 2002 etc. shall be disqualified, where the convicted person is
sentenced to — (i) only fine, for a period of six years from the date of such
conviction; (ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years since his
release.
• 2 A person convicted for the
contravention of—(a) any law providing for the prevention of hoarding or
profiteering; or (b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961.
• 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.
• the controversial Section 8(4)
clause of the Representation of Peoples Act which was struck down by the
Supreme Court calling the Act ultra-vires of the Constitution and providing for
disqualification of MPs/MLAs on the day of their conviction. In July 2013: SC
upholds Patna high court judgment debarring persons in judicial and police
custody from contesting elections (section 62 (5) of the representation of the
people act 1951).
Convicted
or not, rule applies to those in jail and police custody; not applicable to
those out on bail. The Bench said: “We have heard counsel for the political
parties and we do not find any infirmity in the findings of the High Court in
the impugned common order that a person who has no right to vote by virtue of
the provisions of Section 62 (5) of the Representation of the People Act 1951
is not an elector and is therefore not qualified to contest the election to the
House of the People or the Legislative Assembly of a State.
The remedies available to such person
against his disqualification:
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.
The remedies lie in the appeal to court but
it has also two issues involved:
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.
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Conclusion:
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.
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