Sunday March 4 2007 00:00 IST
NEW DELHI: The Supreme Court has held that prima facie, Section 8(4) of the Representation of the People Act which permits a convicted person to continue as member of Parliament or the state Assembly for three months was unconstitutional and ultra virus.
This observation was made by a Bench comprising Justice C.K. Thakker and Justice V.S. Sirpurkar which granted two weeks’ time to the petitioner, Basant Kumar Chaudhary, to respond to the stand taken by the Government defending the impugned provision.
The Government, relying on a five-judge Constitution Bench judgment of the apex court in 2005, known as K.Prabhakaran’s case, has contended in its counter affidavit filed in the court on Friday that the constitutional validity of the impugned Section 8(4) of R P Act which grants three months time to enable the convicted person to go for appeal and get his or her conviction stayed by the superior court to continue as MP or MLA, has been upheld by this court in the aforesaid judgment of the Constitution Bench.
The Government has also contended that sometimes immediate disqualification of an elected representative who has been convicted in a criminal case may lead to political instability in the country or the state, as the case may be, if the government is surviving with a razor thin majority. This is, however, in exceptional circumstances.
Moreover, the law says the conviction attains finality only after it has been upheld by the highest court of the land, and if the accused is acquitted by the Superior Court it may lead to a situation which cannot be remedied if by-elections to the seat have already been held and the new member has been elected.
It was also held by the Constitution Bench that the stability of an elected government was more important than an individual.
Section 8(4) of R P Act permits a convicted member to continue for three months and also permits him or her to recontest if the conviction has been specifically stayed by the superior court.
Recent example is of former cricketer Navjot Singh Sidhu who recontested the Lok Sabha seat from Amritsar on BJP ticket, after his conviction was stayed by the apex court. The seat had fallen vacant after Sidhu resigned following his conviction by the High Court in a road rage case.
Jharkhand Mukti Morcha chief and former Union Minister Shibu Soren is also continuing as member of the Lok Sabha following admission of his appeal by the Delhi HC in a murder case.
The New Indian Express