Supreme Court’s August 2001 ruling in K.C. Sareen versus CBI will stand in the way

Rashtriya Janata Dal leader Lalu Prasad, who has been sentenced to five years in jail in a corruption case, can contest the 2014 Lok Sabha elections only if the Jharkhand High Court or the Supreme Court stays his conviction and sentence while granting him bail.

In January 2007, the Supreme Court stayed the conviction and sentencing of cricketer-turned-politician Navjot Singh Sidhu in a criminal case, paving the way for him to contest the Amritsar Lok Sabha by-election.

However, since Mr. Prasad has been charged under the Prevention of Corruption Act, the possibility of higher courts staying his conviction is remote, given the law laid down by the Supreme Court in K.C. Sareen versus CBI.

In August 2001, a Bench, headed by Justice K.T. Thomas, said that when a public servant was convicted on a corruption charge, “…the appellate court or the revisional court should not suspend the order of conviction during the pendency of appeal even if the sentence of imprisonment is suspended.”

The court said though the power to suspend an order of conviction or sentence was not alien to Section 389 (1) of the Cr.PC, its exercise should be limited to very exceptional cases. “Merely because the convicted person files an appeal… the court should not suspend the order of conviction.”

The Bench said: “Corruption by public servants has now reached a monstrous dimension… Its tentacles have started grappling even the institutions created for the protection of the republic. Unless those tentacles are intercepted and impeded from gripping the normal and orderly functioning of public offices, through strong legislative, executive as well as judicial exercises, the corrupt public servants could even paralyse the functioning of such institutions and thereby hinder the democratic polity.”

The court noted, “When a public servant was found guilty of corruption… by a court of law, judiciousness demands that he be treated as corrupt until he is exonerated by a superior court. The mere fact that an appellate or revisional forum has decided to entertain his challenge should not even temporarily absolve him from such findings. If such a public servant becomes entitled to hold public office and continue to do official acts until he is judicially absolved from such findings by reason of suspension of the… conviction, it is the public interest which suffers, and sometimes even irreparably. Hence it is necessary that the court should not aid the public servant who stands convicted for corruption charges to hold public office until he is exonerated after conducting a judicial adjudication at the appellate or revisional level.”

Mr. Prasad stands disqualified forthwith under a July 10 judgment that struck down as unconstitutional Section 8 (4) of the Representation of the People Act, which allowed convicted lawmakers a three-month period to appeal to a higher court to get their conviction and sentence stayed.

The Centre argued that disqualification would not take effect until a decision was taken by the President or the Governor on whether a Member of Parliament or the State legislature was subject to any of the disqualifications mentioned in Articles 102 (1) and 191. The July 10 judgment says: “We cannot accept this submission.” Hence, the seat of a member who becomes subject to any of the disqualifications will fall vacant the day he incurs the disqualification.

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