Is Right To Represent A Constituency A Fundamental Right? Supreme Court Asks In Lakshadweep MP Mohammed Faizal's Plea

Is the right to represent a constituency a fundamental right, the Supreme Court asked on Tuesday, while considering a petition filed by Lakshadweep MP PP Mohammed Faizal's petition challenging the Lok Sabha Secretariat's refusal to revoke his disqualification despite the High Court staying his conviction in a criminal case.

The petition was listed before a bench comprising Justices KM Joseph and BV Nagarathna. As the petition was unlikely to be taken up today, Senior Advocate Ritin Rai, the counsel for the petitioner, mentioned the matter before the bench when it assembled after the post-lunch recess for listing tomorrow.

When the senior counsel explained the matter, the bench pointed out that a petition under Article 32 of the Constitution is maintainable only if a fundamental right is violated.

"What is the fundamental right that is violated?", Justice Joseph asked.

"His right to represent the constituency", replied the counsel.

"Is that a fundamental right?", Justice Joseph asked.

The counsel replied that the refusal to revoke the disqualification, even after the conviction of the MP was stayed, is highly arbitrary. Justice Joseph then asked why can't the petitioner move the High Court under Article 226 of the Constitution. 

The counsel pointed out that since the Supreme Court is already seized of the petition filed by the Lakshadweep Administration's petition against the High Court's stay on conviction, the petitioner thought it fit to move the Supreme Court seeking reinstatement of his Lok Sabha membership.  The bench agreed to hear the matter tomorrow.

The NCP MP has filed the latest petition challenging the refusal of the Lok Sabha Secretariat to withdraw the decision to disqualify him, even after his conviction has been stayed by the High Court.  

Yesterday, Senior Advocate Dr.Abhishek Manu Singhvi mentioned the matter before Chief Justice of India DY Chandrachud seeking urgent listing. 

It was on January 11, 2023 that a Sessions Court in Lakshadweep convicted the NCP MP and three others to ten years imprisonment in an attempt to murder case relating to an incident of 2009. Following the conviction, Faizal, a two-time MP from the island, was disqualified and the Election Commission of India announced bye-polls.

On January 25, a single bench of the Kerala High Court suspended Faizal's conviction. While suspending the NCP leader's conviction, Justice Bechu Kurian Thomas of the High Court expressed concerns about the wasteful expenditure of a bye-poll, especially when the term of the Lok Sabha is set to expire within one and a half year. Justice Thomas also noted that no dangerous weapons were found to have been used by the accused in the case and that the wound certificates did not indicate any serious injuries.

Following the suspension of conviction, the Election Commission decided to not act in furtherance of the press note for bye-elections. Though the Lakshadweep administration approached the Supreme Court, a bench comprising Justices KM Joseph and BV Nagarathna refused to stay the High Court's order on February 20. In the latest petition, Faizal has contended that the refusal of the Lok Sabha to reinstate him is contrary to the Supreme Court's decision in Lok Prahari case which holds that once the conviction is stayed, the disqualification will also get suspended.

"The petitioner is constrained to invoke the extraordinary jurisdiction of this court under Article 32 of the Constitution of India, against the unlawful inaction on the part of the respondent, Secretary General of the Lok Sabha Secretariat in not withdrawing the notification dated January 13, 2023, whereby the petitioner was disqualified from his membership of Parliament from the Lakshadweep parliamentary constituency," the plea said.

[Case Title: UT Administration of Lakshadweep v. Mohammed Faizal And Ors. SLP(Crl) No. 1644/2023 and Mohammed Faizal PP v. Secy General WP(C) No. 405/2023]