Government already introduced a Bill in Parliament on the issue
As Congress Rajya Sabha MP Rasheed Masood faces the threat of disqualification in view of his conviction under the Prevention of Corruption Act and other IPC sections by the Special CBI court here on Thursday vis-à-vis July 10, 2013, verdict of the Supreme Court, the government is examining whether an ordinance could be promulgated to negate the apex court verdict.
Since a Bill, already introduced in the parliament — to negate the court verdict that declared ultra vires Section 8 (4) of the Representation of the People Act, 1951, thus paving way for the immediate disqualification of convicted MPs, MLAs and MLCs — is pending for approval of the Houses, it is being examined by the Law department whether the ordinance could be issued with retrospective effect from July 10, the day when the apex court delivered the judgment.
Informed sources said the government has ample time as the CBI court has only announced the conviction and will deliver the quantum of sentence of the MP only on October 1. Only thereafter the judgment copy will be ready and sent to the Rajya Sabha Chairman for the follow-up action —,. disqualification of the member.
The Bill introduced in the parliament, states: “...A disqualification under any of the said sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislature of a state, take effect, if an appeal or application for revision is filed in respect of the conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court.”
In the Bill, a proviso has been added to sub-section (4) of section 8 of the RP Act which makes it clear that convicted member shall continue to take part in proceedings of Parliament or Legislature of a State but he or she shall neither be entitled to vote nor draw salary and allowances till the appeal or revision is finally decided by the court.
Debatable points in verdict
Former Secretary-General of Lok Sabha P.D.T. Achary said there were some debatable points in the court verdict relating to disqualification.
“It is wrong to think that as soon as the order of conviction is made by the trial court [against an MP/MLA or MLC], they will stand disqualified.”
According to Article 103, “the question whether a sitting member of the House has become subject to disqualification shall be referred to the President whose decision shall be final. Before giving his decision, the President will obtain the opinion of the Election Commission (EC) and act on that opinion.”
“There is no automatic and instant disqualification. It has to wait for the President’s decision.”
There were some grey areas in the subject which has to be addressed immediately in view of contradiction between the constitutional provisions (Article 103) and the recent SC verdict, he said.
Senior advocate R. Shanmugasundaram said the government had powers and jurisdiction to promulgate an ordinance if necessary on the issue.