After Rahul Gandhi's Disqualification, Plea In SC Challenges Automatic Disqualification Of Elected Members Upon Conviction Of 2 Years

A plea challenging the automatic disqualification of representatives of elected legislative bodies, upon being convicted of any offence and sentenced to imprisonment for not less than two years as per Section 8 (3) of the Representatives of the People Act, 1951 (1951 Act) has been filed before the Supreme Court of India. While stating that the immediate reason for approaching the Court is the recent development of Rahul Gandhi’s disqualification, the petition argues that a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences is against the principles of natural justice.

Section 8(3) Self Contradictory, Creates Ambiguity

At the outset, the petition argues that Section 8 (3) of the 1951 Act is ultra vires of the Constitution of India as it is in stark contradiction to Section 8(1), Section 8A, 9, 9A, 10, 10A, and 11 of the 1951 Act. The petition states that Section 8(3) restrains the members from freely discharging their duties casted upon them by the voter’s of their respective constituency, which is against the principles of democracy.

It adds that Section 8(1) of the 1951 Act clearly categorizes the offences, keeping in view the nature of offences, for disqualification of members of Parliament. However, Section 8(3) provides for a blanket automatic disqualification, on the basis of the quantum of sentencing and imprisonment, which is self-contradictory and creates ambiguity as to the proper procedure for disqualification.

It argues that the intent of the legislature while laying down the said 1951 Act was to disqualify convicted elected members who had committed serious or heinous offences.

Grounds of Disqualification need to be Specific

The petition also highlights that the Code for Criminal Procedure, 1973 (CrPC) distinguishes the “Classification of Offences” and categorises offences into cognizable and non-cognizable and bailable and non-bailable. Thus, it states that under such circumstances, the grounds for disqualification must be specific with the nature of offences as specified under the CrPC and not in a blanket form. 

The petition adds–

"The present scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences, allegedly against the concerned Member, and provides for an “automatic” disqualification, which is against the principles of Natural Justices, since various convictions are reversed at the appellate stage, and under such circumstances, the valuable time of a member, who is discharging his duties towards the public at large, shall be rendered futile."

Disqualification will have a 'Chilling Effect'

Highlighting that the Members of Parliament are the "voice of the people", the petition argues that a Member's representation is the right of freedom of speech and expression of millions of supporters who have elected the member in that constituency and voters who have voted for the political party. It argues–

"Right under Article 19(1)(a) enjoyed by the Member of the Parliament is an extension of the voice of millions of his supporters. If the offence under Section 499 and 500 of the IPC, which just technically has a maximum punishment of 2 years is not removed singularly from the sweeping effect of the judgement in Lily Thomas, it will have a chilling effect on the right of representation of the citizens."