Supreme Court clarifies effect of stay on conviction in disqualification of legislators: Lok Prahari vs. Election Commission of India (26 September 2018)

Date of the Judgment: 26 September 2018

Citation: Not Available in the document

Judges: Dipak Misra, CJI, A.M. Khanwilkar, J, Dr. Dhananjaya Y Chandrachud, J

Can a legislator continue in office if their conviction is stayed by a higher court? This question was at the heart of a Public Interest Litigation (PIL) before the Supreme Court of India. The petitioner, Lok Prahari, argued that a stay of conviction should not remove the disqualification of a legislator, while the Election Commission of India supported the view that a stay of conviction renders disqualification inoperative. The Supreme Court, in this judgment, clarified the legal position regarding the effect of a stay of conviction on the disqualification of a legislator.

Case Background

The petitioner, Lok Prahari, a society focused on public governance, filed a PIL seeking clarification on the disqualification of legislators upon conviction for certain offenses. The case arose from a situation where a Member of the Legislative Assembly (MLA) in Uttar Pradesh was convicted under Sections 353, 504, and 506 of the Indian Penal Code and sentenced to imprisonment. Subsequently, the District Court stayed both the execution of the sentence and the conviction. This led to the core question of whether the MLA’s disqualification was still in effect despite the stay.

Timeline:

Course of Proceedings

The petitioner, Lok Prahari, initially filed a Public Interest Litigation (PIL) before the Lucknow Bench of the High Court of Allahabad. The PIL sought a declaration that the MLA stood disqualified despite the stay order by the Sessions Judge. The High Court dismissed the PIL, reasoning that the stay of conviction by the appellate court meant the disqualification would not apply from the date of the stay. Aggrieved by this decision, the petitioner approached the Supreme Court.

Legal Framework

The Supreme Court considered the following key legal provisions:

• Article 102 of the Constitution of India: This article specifies the grounds for disqualification of a person from being a Member of Parliament. Specifically, Article 102(1)(e) states that a person shall be disqualified if they are so disqualified by or under any law made by Parliament.
• Article 191 of the Constitution of India: This article mirrors Article 102, but applies to the disqualification of members of a State Legislative Assembly or Legislative Council. Article 191(1)(e) states that a person shall be disqualified if they are so disqualified by or under any law made by Parliament.
• Section 8 of the Representation of the People Act, 1951: This section outlines the disqualifications for conviction of certain offenses. It specifies that a person convicted of certain offenses and sentenced to imprisonment shall be disqualified from the date of such conviction.
  
  “8. Disqualification on conviction for certain offences.—
  [(1) A person convicted of an offence punishable under —
  (a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony) or section 171E (offence of bribery) or section 171F (offence of undue influence or personation at an election) or sub-section (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian Penal Code (45 of 1860); or
  (b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or
  (c) section 11 (offence of importing or exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or
  (d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
  (e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
  (f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
  (g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
  (h) section 7 (offence of contravention of the provisions of section 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
  (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of ballot papers from polling stations) or section 135A (offence of booth capturing) or clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; 1 [or]
  [(j) section 6 (offence of conversion of a place or worship) of the Places of Worship (Special Provisions) Act 1991], [or]
  [(k) section 2 (offence of insulting the Indian National Flag or the Constitution of India) or section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to National Honour Act, 1971 (69 of 1971) 4 [or];]
  [(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
  (m) the Prevention of Corruption Act, 1988 (49 of 1988); or
  (n) the Prevention of Terrorism Act, 2002 (15 of 2002),]
  [shall be disqualified, where the convicted person is sentenced to —
  (i) only fine, for a period of six years from the date of such conviction;
  (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
  (2) A person convicted for the contravention of —
  (a) any law providing for the prevention of hoarding or profiteering; or
  (b) any law relating to the adulteration of food or drugs; or
  (c) any provisions of the Dowry Prohibition Act, 6 [1961 (28 of 1961);],
  and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. ]
  (3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]”
• Section 389 of the Code of Criminal Procedure, 1973: This section empowers the appellate court to suspend the execution of a sentence or order appealed against.
  
  “Suspension of sentence pending the appeal; release of appellant on bail.
  (1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
  (2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
  (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall, –
  (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
  (ii) where the offence of which such person has been convicted is a bailable one, and he is on bail,
  order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub – section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
  (4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced.”

The interplay between these provisions determines whether a legislator’s disqualification is triggered by a conviction and whether a stay of conviction by an appellate court can nullify that disqualification.

Arguments

Petitioner’s Arguments (Lok Prahari):

• The petitioner argued that once a legislator is disqualified under Section 8 of the Representation of the People Act, 1951, read with Article 102(1)(e) or Article 191(1)(e) of the Constitution, the seat becomes vacant from the date of conviction.
• They contended that a subsequent stay of conviction by an appellate court does not retrospectively wipe out the disqualification or revive the membership, as there is no such provision in the Constitution or the Representation of the People Act, 1951.
• The petitioner relied on the decision in B R Kapur v State of Tamil Nadu (2001) 7 SCC 231, arguing that under Section 389 of Cr.P.C., an appellate court can only stay the execution of sentence, not the conviction itself.
• They also argued that allowing a stay of conviction to revive membership would open a floodgate for convicted legislators to seek stays, undermining the purpose of disqualification.

Election Commission of India’s Arguments:

• The Election Commission of India supported the petitioner’s first prayer, agreeing that a stay of conviction does not retrospectively nullify disqualification.
• They stated that the disqualification occurs automatically upon conviction and cannot be postponed.
• They highlighted the decision in Lily Thomas v Union of India (2013) 7 SCC 653, which observed that a stay of conviction cannot retrospectively cure the disqualification.
• The Election Commission also clarified that no decision by the President or Governor is required on the question of disqualification arising out of conviction.

Union Government’s Arguments:

• The Union government argued that the issues raised in the petition had already been considered and decided in Lily Thomas (supra).
• They contended that the petitioner had not challenged any specific provision of the Act or Rules, but had only relied on existing laws and judicial pronouncements.

Submissions of the Parties:

Issues Framed by the Supreme Court

The Supreme Court did not explicitly frame issues in a numbered list. However, the core issue before the court was:

• Whether a stay of conviction by an appellate court nullifies the disqualification of a legislator under Section 8 of the Representation of the People Act, 1951, read with Article 102(1)(e) or Article 191(1)(e) of the Constitution.

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The Court relied on Rama Narang v Ramesh Narang (1995) 2 SCC 513 to establish the appellate court’s power to stay a conviction.
• The Court cited Navjot Singh Sidhu v State of Punjab AIR 2007 SC 1003 to emphasize that a stay of conviction is an exception.
• The Court followed Ravi Kant S Patil v Sarvabhouma S Bagali (2007) 1 SCC 673 and Lily Thomas v Union of India (2013) 7 SCC 653 to conclude that a stay of conviction renders the disqualification inoperative.
• The Court distinguished B R Kapur v State of Tamil Nadu (2001) 7 SCC 231, clarifying that the appellate court does have the power to stay a conviction.

What weighed in the mind of the Court?

The Supreme Court’s reasoning was primarily driven by the need to ensure that a conviction, especially if it is later found to be untenable or frivolous, does not cause serious prejudice to an individual. The court emphasized that the power of the appellate court to stay a conviction is an essential safeguard against potential injustices arising from convictions that are later overturned or stayed. The court also considered the consistent legal position established in previous judgments, particularly in Rama Narang and subsequent decisions, which upheld the appellate court’s power to stay convictions. The Court also considered that the disqualification under Section 8 of the Representation of People Act, 1951 is a consequence of the conviction, and if the conviction itself is stayed, the disqualification cannot remain in effect. The Court also noted that the Election Commission has already issued instructions to ensure that the conviction of sitting legislators is brought to the notice of the Speaker or Chairman, as the case may be, and the Chief Electoral Officer of the state, within a period of seven days of the passing of the order.

Logical Reasoning:

The Court considered and rejected the argument that the appellate court does not have the power to stay a conviction. The Court also considered and rejected the argument that the disqualification will operate despite the stay of conviction. The court reasoned that the power of the appellate court to stay a conviction is an essential safeguard against potential injustices arising from convictions that are later overturned or stayed. The court also reasoned that the disqualification under Section 8 of the Representation of People Act, 1951 is a consequence of the conviction, and if the conviction itself is stayed, the disqualification cannot remain in effect. The Court also considered that the Election Commission has already issued instructions to ensure that the conviction of sitting legislators is brought to the notice of the Speaker or Chairman, as the case may be, and the Chief Electoral Officer of the state, within a period of seven days of the passing of the order.

The Court’s decision was based on a consistent legal position established in previous judgments. The Court emphasized that the appellate court’s power to stay a conviction is an essential safeguard against potential injustices, and that the disqualification under Section 8 of the Representation of People Act, 1951 is a consequence of the conviction, and if the conviction itself is stayed, the disqualification cannot remain in effect.

The Supreme Court held that:

• “Upon the stay of a conviction under Section 389 of the Cr.P.C., the disqualification under Section 8 will not operate.”
• “The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed.”
• “Once the conviction has been stayed by the appellate court, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People Act 1951 will not operate.”

Key Takeaways

• A stay of conviction by an appellate court renders the disqualification under Section 8 of the Representation of the People Act, 1951 inoperative.
• The appellate court has the power to stay a conviction under Section 389 of the Code of Criminal Procedure, 1973, and this power is crucial to prevent potential injustices.
• Legislators who have their convictions stayed by a higher court can continue in office without being disqualified.
• The Election Commission of India is empowered to take appropriate steps in accordance with the law regarding disqualification of legislators.
• The Supreme Court has clarified that the appellate court has the power to stay the conviction itself, not just the execution of the sentence.

Directions

No specific directions were issued by the Supreme Court in this judgment.

Development of Law

The ratio decidendi of this case is that a stay of conviction by an appellate court renders the disqualification under Section 8 of the Representation of the People Act, 1951 inoperative. This judgment reinforces the position that the appellate court has the power to stay the conviction itself, not just the execution of the sentence. This clarifies the law and provides a safeguard against potential injustices arising from convictions that are later overturned or stayed. There is no change in the previous position of law, but a reiteration of the same.

Conclusion

The Supreme Court dismissed the writ petition, holding that a stay of conviction by an appellate court prevents the disqualification of a legislator under Section 8 of the Representation of the People Act, 1951. The Court reaffirmed the appellate court’s power to stay a conviction under Section 389 of the Code of Criminal Procedure, 1973, emphasizing its importance in preventing potential injustices. This judgment provides clarity on the legal position regarding the effect of a stay of conviction on the disqualification of legislators.