NEW DELHI: Even earlier than Rahul Gandhi might problem his conviction and two-year sentence in a felony defamation case in addition to the resultant disqualification as member of Parliament, a social activist from Kerala moved Supreme Court, searching for to limit disqualification of MPs and MLAs to conviction in severe and heinous offences.
With the SC a decade in the past declaring Section 8(4) of the Representation of the People Act as unconstitutional, elected representatives misplaced the statutory cushion of 90 days, inside which s/he might file an enchantment in opposition to the conviction and sentence and proceed as a member of the House involved until the appellate court docket decided. The Lily Thomas ruling of 2013 resulted in automated and speedy disqualification of MPs and MLAs from the date of conviction, if sentenced to 2 years or extra.
Petitioner Aabha Muralidharan mentioned automated and speedy disqualification of elected representatives beneath Section 8(3) of RP Act is unfair and requested the court docket to quash it as unconstitutional. She sought a declaration from the SC that sentence of two years on conviction beneath felony defamation and any offence which supplied for a most two-year punishment, shouldn’t end in automated disqualification, because it violated the freedom of speech and expression of all the citizens of his constituency.
The petitioner mentioned the Lily Thomas judgment wants revisiting by the SC because the disqualification must be linked solely to heinous and severe offences. “The Lily Thomas ruling is being misused to wreak personal vengeance by political parties,” she alleged.
“All that the petitioner wishes to establish is that the right under Article 19(1)(a) enjoyed by the MP is an extension of the voice of millions of his supporters. If the offence under Section 499 (criminal defamation) and 500 (punishment for criminal defamation) of the IPC, which technically has a maximum punishment of two years, is not removed from the sweeping effect of the judgment in Lily Thomas, it will have a chilling effect on the right of representation of the citizens,” she mentioned.
Congress had argued in opposition to speedy disqualification of Rahul Gandhi and mentioned that it couldn’t have taken impact with out the nod of the President. The Lily Thomas judgment gave clear enunciation on this facet.
In that judgment, given on July 10, 2013, the SC bench had mentioned, “We cannot also accept the submission of (the then ASG Paras) Kuhad that until the decision is taken by the President or Governor on whether a Member of Parliament or State Legislature has become subject to any of the disqualifications mentioned in Article 102(1) and Article 191 of the Constitution, the seat of the member alleged to have been disqualified will not become vacant under Articles 101(3)(a) and 190(3)(a) of the Constitution.”
“Articles 101(3)(a) and 190(3)(a) of the Constitution provide that if a member of the House becomes subject to any of the disqualifications mentioned in clause (1), ‘his seat shall thereupon become vacant’. Hence, the seat of a member who becomes subject to any of the disqualifications mentioned in clause (1) will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor, as the case may be, under Articles 103 and 192, respectively of the Constitution,” it had mentioned.
However, it had clarified that “the filling of the seat which falls vacant may await the decision of the President or the Governor under Articles 103 and 192, respectively, of the Constitution and if the President or the Governor takes a view that the member has not become subject to any of the disqualifications mentioned in clause (1) of Articles 102 and 191, respectively, of the Constitution, it has to be held that the seat of the member so held not to be disqualified did not become vacant on the date on which the member was alleged to have been subject to the disqualification.”