The petition assumed significance in light of the fact that it was filed at a time when Congress leader Rahul Gandhi has been disqualified from the Lok Sabha after a Surat court verdict which held him guilty of criminal defamation and sentenced him to two years in prison.
The plea by Ph.D. scholar and social activist Aabha Muralidharan said that Section 8(3) is ultra vires of the Constitution since it curtails free speech of an elected Member of Parliament (MP) or Member of Legislative Assembly (MLA) and restrains law makers from freely discharging their duties cast upon them by the voters of their respective constituency.
Section 8(3) of the 1951 Act, reads as follows:
(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.
The plea filed through advocate Deepak Prakash and drawn by advocate Sriram Parakkat said Section 8(3) is in stark contradiction to sub-section (1) of the Section 8, Section 8A, 9, 9A, 10 and 10A and 11 of the 1951 Act.
The petitioner stated that factors such as nature, gravity, role, moral turpitude and the role of the accused, ought to be examined while considering disqualification under Chapter III of the 1951 Act.
The plea highlighted that sub clause (1) of section 8 of the 1951 Act clearly categorizes the offences, keeping in view the nature of offences, for disqualification of MPs.
However, sub-clause (3) of the same section, provides for a blanket automatic disqualification, on the basis of the quantum of sentencing and imprisonment, which is self-contradictory and creates ambiguity as to the proper procedure for disqualification, the petitioner contended.
“Moreover, the 1951 Act further categorizes the nature of cases wherein disqualification is permissible as enumerated u/s 8A, 9, 9A, 10 and 10A, which again specify the nature of the offences, for disqualifying a member and is in contradiction with sub-clause (3) of Section 8 of the 1951 Act,” the plea said.
The petitioner submitted that the intent of the legislature while laying down the said Act of 1951 was to disqualify the elected members who upon commission of a serious/ heinous offences are convicted by the courts and hence are liable to be disqualified.
Muralidharan further contended that the Lily Thomas judgment of the Supreme Court which struck down Section 8(4) of the Act, is being misused.
Section 8(4) provided a three-month window to convicted legislators to appeal against a conviction, thereby halting immediate disqualification.
“The operations of Lily Thomas are being blatantly misused for wreaking personal vengeance in political parties and the present scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences, allegedly against the concerned Member, and provides for an “automatic” disqualification, which is against the principles of Natural Justices, since various convictions are reversed at the appellate stage, and under such circumstances, the valuable time of a member, who is discharging his duties towards the public at large, shall be rendered futile,” the petition stated.
The plea also said that Section 8(3) does not include the words “shall stand” or “forthwith” and in the absence of the same, there can not be an automatic disqualification.
The plea, therefore, asked the Court to declare that there does not exist any automatic disqualification under Section 8(3) and in cases of automatic disqualification under Section 8(3) the same be declared as ultravires of the Constitution for being arbitrary and illegal.
Source: Barandbench
