Set up machinery to expedite disqualification procedure of convicted legislators: Bombay HC [Read Judgment]

The Bombay High Court, declining to disqualify MLA of Umred Constituency, directed Maharashtra government and Election Commission of India (ECI), to set up a mechanism to quickly start disqualification procedure in cases where any sitting Legislators are convicted in any offence where punishment is over two years.

Sudhir Laxmanrao Parwe, was elected as MLA from Umred Constituency. In April 2015, he was convicted by a Magistrate Court and was sentenced to imprisonment of two years. The Sessions Court in October 2015, on appeal, reduced the sentence to 3 months imprisonment. In December 2015, The High Court permitted the matter to be compounded. But the MLA was allowed to participate in the Monsoon session (August) of the Assembly.

According to the petitioner who prayed for disqualification of the MLA, the Government and Election Commission have permitted the MLAto continue to function despite his disqualification, and did not hold any election to fill in his vacancy and did not make any provision to have any machinery in place to curb such instances.

Refusing the prayer of petitioner to disqualify the legislator, the Court observed “disqualification is not only for the current tenure but also for a period of six years after his release from prison. It is, therefore, a single or composite disqualification which with its two wings covers existing tenure and also period of six years after release. In view of reduction in sentence of Respondent No. 7 on 13.10.2015, it is apparent that later field of disqualification i.e. its continuation for a period of six years after his release from prison does not spring into life. He was never put in prison because of suspension of his sentence by the appellate Court on 11.05.2015. Hence, he cannot be subjected at all to later part of disqualification i.e. to continuation of disqualification. As the disqualification is composite i.e. single, it cannot be subdivided & only one of its wings cannot operate. Since respondent no. 7 is not expected to suffer its later part, it is more than obvious that he also cannot be subjected to its earlier part. Disqualification has to operate either entirely or then, not at all. The conclusion is, therefore, after 13.10.2015, it is not possible legally to view Respondent No. 7 as a legislator who was disqualified at any time in past.”

The Court directing the Government and Election Commissionto set up a mechanism to quickly start disqualification procedure, observed “However, between 24.04.2015 and 13.10.2015, in the light of law as explained by the Hon'ble Apex Court, Respondent No. 7 had automatically stood disqualified. He could not have functioned as a Member of Legislative Assembly between these two dates. Had the machinery expected by the communications/ letters dated 07.08.2013 and 13.10.2015 been in place, the situation could have been otherwise. Hence, it is absolutely necessary in public interest to direct respondent Nos. 1 to 4 to provide the necessary machinery so that the purity of democracy and administration is never polluted.”

Read the Judgment here.