Thursday, Jan 13, 2005
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By J. Venkatesan
NEW DELHI, JAN. 12 . If a Member of Parliament or the Legislative Assembly is convicted by a court during his tenure, he or she cannot contest the next elections at the expiry of the term, taking advantage of the "exception" clause in the election law, the Supreme Court has held. A five-judge Constitution Bench, headed by the Chief Justice, R. C. Lahoti, gave the ruling by a majority of four to one, while allowing a petition filed by Ramesh Dalal. He had challenged the election of Nafe Singh from Bahadurgarh in Haryana. Under Section 8 (4) of the Representation of the People Act, sitting MLAs and MPs, if convicted and sentenced to more than two years imprisonment during their tenure, can continue if their appeal against the order of conviction is pending with a higher court and if the sentence has been stayed. The Bench said the object of the saving clause was to protect the strength of the House and that of the party concerned. Writing the judgment for the majority, Mr. Justice Lahoti said: "The Government in power may be surviving on a razor edge-thin majority where each member counts significantly and the disqualification of even one member may have a deleterious effect on the functioning of the Government. Secondly, byelection shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court." The Bench said that "the factum of pendency of an appeal against conviction was irrelevant and inconsequential. If, on a given date of filing nomination, the conviction existed, then a person, whether he was a sitting MLA or not, was debarred from contesting the polls. A subsequent decision in appeal or revision setting aside the conviction or sentence or reduction in sentence would not have the effect of wiping out the disqualification which did exist on the date of filing of nomination." Mr. Justice K. G. Balakrishnan rendered the dissenting judgment.
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