Power to you

Section 8 of the Representation of the People Act, 1951, states that politicians and electoral candidates convicted for a crime shall be disqualified from the date of conviction till six years after their release. However, subsection 4 of Section 8 says that if the convicted person is already an MP or MLA, he or she will not be disqualified until three months from the date of conviction. Therefore, if an appeal is filed within these three months, the hearing could be delayed for years. The politician would thus be in power till the court disposes off the case.

In 2005, lawyer Lily Thomas and former IAS officer S. N. Shukla filed a public interest litigation asking the court to set aside Section 8 (4) of the Representation of the People Act because it allowed sitting MPs and MLAs to continue to be elected representatives even when convicted in a court of law. The petition appealed that this special protection was unconstitutional and hence should be struck down. This means that any convicted MP or MLA would be immediately disqualified and the seat made vacant.

Read the public interest litigation here.

The Supreme Court ordered that upon conviction, chargesheeted MPs and MLAs would be disqualified with immediate effect from holding membership of the House without being given three months to appeal. However, the Court exempted those who had already filed appeals in various High Courts or the Supreme Court. With the striking down of Section 8 (4), Rajya Sabha member Rasheed Masood and Lok Sabha member Lalu Prasad Yadav were disqualified from their seats after their conviction by a trial court.

The Central Government tried to nullify this Supreme Court judgement by passing a bill to amend the relevant sections of the Representation of the People Act, 1951. Since the monsoon session of Parliament ended without the bill being taken up, the Cabinet approved an ordinance to implement the same. The ordinance was subsequently withdrawn by the government after criticism from within the ruling party itself.

In a response to a public interest litigation filed by Public Interest Foundation, the Supreme Court asked the Law Commission of India to submit a report on the framing of false charges and submission of false affidavits. The Law Commission recommended the disqualification of politicians from contesting elections charged with an offence punishable by imprisonment of five years or more. It also said that for cases against sitting MPs and MLAs, trials must be expedited through day-to-day hearings and completed within one year.

The Supreme Court partially accepted the recommendations of the Law Commission and passed an order directing that trials against sitting MPs and MLAs must be concluded within a year of charges being framed and that they should be conducted on a day-to-day basis. The Court also said that if a lower court is unable to complete the trial within a year, it will have to submit an explanation in writing and seek an extension from the Chief Justice of the concerned High Court.

The 2014 Supreme Court order offers a ray of hope because if politicians with criminal records are elected in the forthcoming general elections, they could be disqualified as early as May 2015 if convicted.