New Delhi, Aug. 12: The Centre today sought a review of the Supreme Court judgment that convicted lawmakers cannot continue in office simply by filing an appeal, arguing that the provision wasn’t meant to “confer an advantage but to protect legislatures”.
The plea didn’t mention a related ruling by the same bench that not only those convicted but even those in lawful custody cannot contest polls. A separate review plea is likely in a few days.
In its petition, the Centre said Justices A.K. Patnaik and S.J. Mukhopadhaya “ought to have referred the issue to a larger bench” as a Constitution bench had in 2005 upheld the validity of the immunity granted to MPs and MLAs under the Representation of People Act, 1951. The July 10 ruling was handed by a two-judge bench.
The petition follows an all-party meeting that was unanimous the judgment needed to be reviewed.
Justices Patnaik and Mukhopadhaya had struck down as “unconstitutional” Section 8 (4) of the act that allowed convicted law makers a three-month period for appeals to enable them to continue in office.
The ruling came on a PIL that said the provision was discriminatory given that in the case of a common man, he or she cannot contest elections for six years if convicted.
Today’s review plea sought an “oral hearing” in an open court. Review petitions as a rule are heard only within judges’ chambers, not open to lawyers or public. The Centre wants this option to allow arguments.
“The Constitution bench held that a byelection may have to be held (in the event of disqualification of an MP/MLA) which may prove to be futile… the government may be surviving on a razor-thin majority and the disqualification would have a deleterious effect on the functioning of the government. This is a sufficient reason for Parliament to classify the sitting members of a House into a separate category,” the review plea states.
The Centre said the Constitution bench had held that if a sitting lawmaker was disqualified on grounds of conviction, it could create a constitutional crisis leading to the fall of such a government, leading to fresh polls and huge expenses to the exchequer.
The Constitution bench had rightly held that “the stress is not merely on the right of an individual to contest an election or to continue as a member of a House but the very existence and continuity of a House democratically constituted, the Centre said.
It cited the 2005 ruling to assert that the “purpose of carving out an exception in Section 8 (4) of the act was not to confer an advantage on sitting MPs or MLAs but to protect the House/Legislature.”
The Centre argued that the rate of acquittal in appellate courts is high, the time taken to dispose of appeals is long and, therefore, the provision was enacted to protect the House and ensure governance was not adversely impacted. “Section 8 (4) of the RP Act… operates till the time a person continues to be a sitting Member of House of Legislature and on the dissolution of the House, the protection afforded by this Section ceases.”