The Centre said to the Supreme Court that he convicted MPs and MLAs get disqualified only after exhausting all legal remedies and it is based on a legislative policy to “ensure existence and continuity” of an elected House.
“It is submitted that the object of enacting section 8(4) of the Representation of the People Act (RPA) was not merely on the right of an individual to contest an election or to continue as a member of a House, but to ensure very existence and continuity of a House democratically constituted,” an affidavit, filed by an official of Ministry of Law and Justice, said.
The affidavit, filed before a bench of justices A K Patnaik and Gyan Sudha Misra, also said, “…The Parliament had even earlier followed the legislative policy of effecting a disqualification only after the conviction had been upheld at all appellate stages.”
The court was hearing two PILs, filed by Lily Thomas and NGO Lok Prahari through its secretary S N Shukla, seeking striking down sections 8, 9 and 11-A of the RPA on the ground they violate certain Constitutional provisions which among other things expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.
After taking the Centre’s reply into records, the court fixed the matter for hearing on February 19 and asked Thomas to file her response by then.
The reply of the Ministry came in response to the apex court’s query as to why MPs and MLAs should be treated as “special class” in having different laws where persons with criminal antecedents are allowed to continue as member of House despite conviction.
The affidavit, filed by Jose Thomas, a Deputy Secretary in the Ministry of Law and Justice, also said that removing an elected representative on his conviction would affect the rights of the electorate.
“It is further submitted that it also affects the right of the electorate who votes for a certain candidate keeping in mind that the said candidate shares the same views and ideology as the electorate.
“In the light of the aforementioned, stated section 8(4) of RPA not only protects the House from being disrupted but also the Constitutional right of the electorate…,” it said.
The PILs said that certain provisions of the RP Act allow convicted lawmakers to continue in office while their appeals are pending and they also permit such persons to be registered as voters and be candidates for elections after six years of conviction/release from jail.
Questioning the provisions, the bench had earlier said that special laws can be allowed if they pertain to their functioning in the Parliament but they should not be allowed in other criminal cases.
Seeking dismissal of the PILs, the Centre said, “RPA is a complete code specially legislated to deal with the election related matters and will work on the settled principles of special law and will prevail over the general law. In light of the aforesaid settled principle of law, the provisions of RPA will prevail over the section 389 (suspension of sentence pending the appeal; release of appellant on bail) of CrPC.
“The petitioner does not even whisper about number of alleged convicts in the House or about the number of sitting members who have availed the benefit of section 8(4) of RPA and as to what was the eventual fate of the appeals that were filed by them.
“… Thus the plea about criminalisation of politics based on the factual statement that a large number of sitting MPs are convicts is unsubstantiated,” the Centre said.
On the last date of hearing, senior advocate Fali S Nariman, appearing for the petitioner had submitted that 274 MPs are facing various criminal charges and the government has not done anything to check criminalisation of politics.
section 8(4) of the Representation of the People Act (RPA)