It may seek referral to a five-member Constitutional Bench as the issue involves a constitutional matter

By striking down a safeguard provided in Section 8(4) of the Representation of the People Act, 1951 — which allowed convicted MPs, MLAs and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within three months of the date of judgment (by the trial court) — and declaring it ultra vires the Constitution, the Supreme Court has engendered a legal debate vis-à-vis Parliament’s power to enact such a legislation.

The apex court on Wednesday observed: “…Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting subsection (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution.”

Informed sources said the government was considering filing a review petition in the court, seeking referral of the matter to a five-member Constitutional Bench as it involved a constitutional matter.

The Court even stated that “ … Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”

The former secretary-general of Lok Sabha, P.D.T. Achary, told The Hindu on Thursday that for the first time in history the Supreme Court struck down a provision in the RP Act, 1951. “Since the issue involved important constitutional matter and the legislation made by Parliament has been declared ultra vires, a review petition might be filed by the government or by any other person through a PIL petition,” he said.

He made it clear that MPs/MLAs or MLCs, sentenced to less than two years in criminal cases (which are not covered by the provisions of disqualification to contest poll), can continue to enjoy their membership even after the latest SC verdict. Technically, such convicted elected representatives were not covered under Section 8 (4) of the RP Act, which was struck down by the SC, he said.

Section 8 deals with disqualification of elected representatives upon conviction for certain offences. A person convicted of any offence and sentenced to imprisonment for varying terms under Sections 8 (1), (2) and (3) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

The SC Bench found it unconstitutional that while convicted persons could be disqualified from contesting elections, they could continue as MPs/MLAs and MLCs once elected.

“A reading of the two provisions in Articles 102(1) (e) and 191(1) (e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State,” it said, and added: “Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”

“The language of Articles 102(1) (e) and 191(1) (e) of the Constitution is such,” the court observed, “that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same.”

Sources said the government might also seek clarification from the apex court on another order of the Bench, which stated that: “… persons in lawful custody, whether on conviction in a criminal case or otherwise, cannot contest elections.”

“What will happen to those candidates who get arrested after their nominations are accepted by the Returning Officer? Will this order be applicable to those in custody in relation to civil cases,” the sources asked. These, according to them, were some of the grey areas that need to be clarified.

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