The curious case of the disqualification of a politician

In Context

• Recently, the debate has surrounded whether disqualification for conviction is final or whether it can be revoked.

About disqualification

• Constitutional provisions:
  • The provision for disqualification is given in Article 102 of the Constitution. 
  • It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
    • If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).
    • If he is of unsound mind and stands so declared by a court.
    • If he is an undischarged insolvent.
    • If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state; and
    • If he is so disqualified under any law made by Parliament.
  • Article 102 also authorises Parliament to make laws determining conditions of disqualifications. 
    • There are analogous provisions for members of state legislatures.

• The Representation of the People Act, 1951: 
  • Disqualification on imprisonment:
    • The Representation of the People Act, 1951 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:
    • There is an 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.

Issue of Lakshadweep legislator

• About:
  • Recently the Lok Sabha MP was convicted by the Kavaratti sessions court for the attempt to murder, and sentenced to 10 years imprisonment. 
  • After this, the Lok Sabha announced that he was disqualified as an MP with effect from the date of conviction. 
  • The Election Commission of India (ECI) also fixed the date for the by-election to that constituency.
• Stay:
  • But now, Kerala High Court suspended the verdict passed by the Kavaratti District and Sessions Court (in an attempt to murder case).
  • Lily Thomas judgment (2013):
    • The judgment stated that a disqualified person may obtain a stay on his conviction & the disqualification would be removed from the date of the stay order.
• Significance of the stay:
  • The cost of a parliamentary election would have to be borne by the nation 
  • Developmental activities in Lakshadweep will also stop for a few weeks. 
  • The elected candidate will have just 15 months to function till the end of the term of the current Lok Sabha. 
    • Given these exceptional and irreversible consequences, the Kerala HC suspended the concerned MP’s conviction until the disposal of the appeal.

Way ahead

• Current status:
  • The Lok Sabha has kept the seat vacant and has not yet reinstated the MP. 
    • The reason the High Court granted the stay was to avoid an expensive election.
• Issue:
  • The issue is whether disqualification for conviction is final or whether it can be revoked. 
  • The question now is also whether the concerned MP will automatically resume his membership of the Lok Sabha. 
• Deciding authority:
  • On the question, whether a member is subject to any of the disqualifications, the President’s decision is final. However, he should obtain the opinion of the election commission and act accordingly.