New Delhi, Jul 10 (IANS): In a landmark judgment, the Supreme Court Wednesday declared unconstitutional the provision of the Representation of the People Act that allows elected representatives to continue as members of the elected bodies even after conviction in criminal cases.
"If because of a disqualification a person cannot be chosen as a member of parliament or state legislature, for the same disqualification, he cannot continue as a member of parliament or the state legislature," the court said.
"Parliament does not have the power under Articles 102(1)(e) and 191(1)(e) of the constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of parliament or the state legislature," said the apex court bench of Justice A.K. Patnaik and Justice S.J. Mukhopadhaya.
"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 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."
The judgment would come into effect from Wednesday.
Justice Patnaik said: "Sitting members of parliament and state legislature who have already been convicted for any of the offences... (and) saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment."
"This is because the knowledge that sitting members of parliament or state legislatures will no longer be protected by sub-section (4) of Section 8 of the act will be acquired by all concerned only on the date this judgment is pronounced by this court," the court said.
"...if any sitting member of parliament or a state legislature is convicted of any of the offence and by virtue of such conviction and/or sentence suffers the disqualifications after the pronouncement of this judgment, his membership of parliament or the state legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the act which we have by this judgment declared as ultra vires the constitution", the court said.
Subsection 4 of Section 8 of the Representation of the People Act permits an elected representative to continue in the legislature or parliament even after he or she has been convicted of a criminal offence, provided he or she gets a stay on the conviction and sentencing by a higher court.
Under this provision of the Act, such a person can even contest elections after the existing house has been dissolved. However, a similar right to contest an election is not available to a convict who is not a member of a state legislature or parliament.
The court said this while allowing two public interest litigations Lily Thomas and NGO Lok Prahari.
The petitioners said subsection 4 of Section 8 of the Act shielded elected representative with criminal antecedents.
30 percent Indian lawmakers have criminal cases against them
An analysis of affidavits declared by MPs and legislators shows that around 30 percent of 4,807 lawmakers have criminal cases against them, said a think-tank.
The Association for Democratic Reforms (ADR) and National Election Watch (NEW), in an analysis of the affidavits provided by candidates to the Election Commission of India before contesting an election, also found that 14 percent of the current MPs and legislators have "serious criminal cases" against them.
According to analysis of data, 162 or 30 percent of the 543 Lok Sabha MPs have declared criminal cases against themselves, while 14 percent of the Lok Sabha MPs have declared serious criminal cases against themselves, said the think-tank in a statement here.
It said 1,258 - or 31 percent - of the 4,032 sitting legislators from all state assemblies have declared criminal cases, while 15 percent of the current legislators from all state assemblies have declared serious criminal cases against themselves.
The Jharkhand 2009 assembly has the highest percentage of elected representatives, 74 percent, who had declared criminal cases against themselves.
The Bihar 2010 assembly has 58 percent legislators with criminal cases, while the Uttar Pradesh 2012 assembly has 47 percent.
None of the legislators of the Manipur 2012 assembly have declared criminal cases against themselves.
Among parties, the Jharkhand Mukti Morcha has the highest number of lawmakers - 82 percent of MPs and legislators - who have declared criminal cases against themselves. The Rashtriya Janata Dal follows with 64 percent, and the Samajwadi Party with 48 percent.
The Bharatiya Janata Party follows with 31 percent of MPs and legislators with criminal cases against them, while the Congress follows with 21 percent. Elaborating the numbers, it says of the 1,017 MPs and legislators from the BJP, 313 have declared criminal cases against themselves, while of the 1,433 elected representatives from the Indian National Congress, 305 have criminal cases against themselves, the statement said.