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EDITORIAL ANALYSIS : The curious case of the disqualification of a politician

 

 

Source: The Hindu

  • Prelims: Parliamentary democracy, functions of whip, house rules, article 105, rule 353(Lok Sabha), parliamentary committees etc
  • Mains GS Paper II: Parliament-Structure, organization, functioning and conduct of business etc

 

ARTICLE HIGHLIGHTS

  • Kerala High Court, in January suspended the verdict passed by the Kavaratti District and Sessions Court (in an attempt to murder case).
    • Then sitting Member of Parliament (MP) of Lakshadweep Mohammed Faizal was sentenced to 10 years in jail, which raised questions on his disqualification.

 

INSIGHTS ON THE ISSUE

Context

Parliament:

  • Parliament is the most important symbol of Indian democracy.
  • It is through summoning the House and calling MPs to participate in legislative and other business through:
    • discussion, debates, committee dispensations, and other mechanisms
  • Parliament enables the citizens of the country: through their representatives, to participate in decision-making and hold the government to account.

 

What is the Issue?

  • Faizal was convicted by the Kavaratti sessions court on January 11 for attempted murder, and sentenced to 10 years imprisonment.
  • The Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction.
  • The Election Commission of India (ECI) fixed February 27 as the date for by-election to that constituency, with the formal notification to be issued.
  • Faizal appealed to the Kerala High Court for a stay on his conviction and sentence, which the High Court suspended on January 25.
  • Faizal challenged the ECI’s announcement in the Supreme Court of India.
    • On January 30, the ECI said it was deferring the election.

 

Judicial stand:

  • The High Court said: consequence of not suspending the conviction is drastic not just for Mr. Faizal but also for the nation.
  • Under exceptional and irreversible consequences, it suspended his conviction until disposal of the appeal.

 

Laws related to disqualification;

  • Article 102: It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
    • These include:
      • holding an office of profit
      • being of unsound mind or insolvent
      • not being a citizen of India.
    • It also authorizes Parliament to make law determining conditions of disqualifications.
    • There are analogous provisions for members of state legislatures.

 

  • The Representation of the People Act, 1951: It provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more.
    • The person is disqualified for the period of imprisonment and a further six years.
    • exception for sitting members
      • they have been provided a period of three months from the date of conviction to appeal
      • The disqualification will not be applicable until the appeal is decided.

 

Judgements related to Disqualification:

  1. Prabhakaran vs P. Jayarajan(2005)
  • The differential treatment of candidates for elections and sitting members was challenged under Article 14 (right to equality)
  • It decided that the consequences of disqualifying a contestant and a sitting member were different.
  • The Court considered whether in case of a disqualified candidate who is later acquitted, the disqualification would be removed with retrospective effect.
  • It stated that this could not be done as this would require the results of the election to be canceled.
    • Therefore, the removal of disqualification would be prospective and for future elections.

Lily Thomas vs Union of India(2013):

  • It stated that Article 102 empowers Parliament to make law regarding disqualification of a person “for being chosen as, and for being, a member of either House of Parliament”.
  • The judgment cited Article 101: A MP was disqualified under Article 102, “his seat shall thereupon become vacant”.
  • The disqualification was automatic and had immediate effect if the conditions of Article 102 were met.

 

Way Forward

  • Lily Thomas judgment (2013): The judgment stated that a disqualified person may obtain a stay on his conviction, and cited an earlier 2007 judgment that the disqualification would be removed from the date of the stay order.
  • The conundrum arises because the Lily Thomas judgment requires the seat to be vacated immediately upon disqualification whereas the Kerala High Court stay tries to ensure that the MP retains the seat until the appeal is decided.
    • The answer will also have implications for similar cases in the future.

 

QUESTION FOR PRACTICE

To what extent, in your view, the Parliament is able to ensure accountability of the executive in India?(UPSC 2021) (200 WORDS, 10 MARKS)