The Centre on Monday moved the Supreme Court seeking a relook on its two landmark judgements disqualifying MPs and MLAs on being convicted and debarring arrested persons from contesting polls.
The Centre contended that protecting convicted MPs and MLAs from disqualification during pendency of appeal is necessary “to protect the House and to ensure that governance is not adversely impacted”.
The apex court had on July 10 held that an MP or MLA convicted of any criminal offence attracting a punishment of two years and above will be disqualified immediately and a person, who is in jail or in police custody, cannot contest election to legislative bodies.
It had declared as unconstitutional a provision in the Section 8(4) of Representation of the People Act that says a convicted legislator can continue in office if he or she appeals in a higher court within three months of the conviction. The verdicts have been widely opposed by politicians cutting across party lines.
Interestingly, the government justified the protective provision for elected member on the ground that the rate of acquittal in India judicial system is high and if the elected member is once disqualified on being convicted then his membership of the House cannot be restored after his acquittal.
“This court ought to have appreciated that the impact of the decision in the reality of the Indian judicial system is that the rate of acquittal in the appellate court is high and keeping in view the time taken to dispose of the criminal appeals, Section 8(4) was enacted to protect the House and ensure that governance is not adversely impacted,” it said.
“In the absence of Section 8(4) of the Act, a member would be remediless since the disqualification would not be wiped out from the date of conviction, even when the conviction is reversed and he would not be entitled to restoration of his membership and disqualification of the House,” the petition said.
The Centre further said that the Supreme Court’s two-judge bench erred in passing verdict on constitutional matters and the issues must be heard by a larger Constitution bench.
“The foremost ground for seeking review is that the judgement ought not to have been passed in view of the judgement in a case decided by the Constitution bench of this court. These cases ought to have been referred to larger Constitution bench,” it said.
“Failure to refer the petitions for hearing before the Constitution bench militates against the jurisdiction and constitutes an error apparent on the face of the record,” it said while referring to a Constitution bench verdict on similar issue.
The review petition also challenged the Supreme Court verdict for debarring a person, who is in jail or in police custody, from contesting election, but it has not been elaborately raised in the petition.
The Centre contended that “the Constitution not having specified as to when a person would become subject to disqualification, Parliament was competent to legislate on that issue and define as to when such a disqualification would take effect.
“This court failed to appreciate that Article 102 (1)(e) (disqualification of MPs) of the Constitution itself provides for distinct treatment for members of Parliament alone and that the effect of the interpretation by it would be divesting the Parliament of its power to provide for additional disqualifications for MPs to the extent that they are so warranted in the interest of continuity and continuation of the House.
“When a substantial question of law as to a provision of the Constitution arose, the question of law ought to have been referred to a Constitution bench and the matter could not have been heard by a bench of two judges and the bench in doing so committed as error of jurisdiction.”
It said that the purpose of the provision is not to confer an advantage on sitting members of Parliament or the state Legislature but to protect the House/Legislature.