As of now, even when an MP or MLA is convicted by the
trial court for offence under provisions of the law of the land, he or she
retains his or her Membership of the House pending review of the judgment in
the higher courts.
There are instances when Members of Parliament or State
Legislature have been charged with murder and convicted by the trial court.
Such convicts go in for appeal in the High Court first for adjudication of the
verdict against them in review petition. It takes long time, many years before
the High Court decides the case. In case the High Court upholds the verdict of
the trial court, the accused MP or MLA goes in appeal before the Supreme Court
of India.
More often than not, the convicted MP or MLA enjoys the
perks and privileges of the House to which he was elected for full term of 5
years and full term of 6 years in case of Member of the Rajya Sabha because the
appeal remains pending in the higher judiciary.
There are many ways to delay the trial and proceedings.
Who else, intelligent lawyers help the convict as their defense counsel to
delay the proceedings and buy time for their clients.
A bench of Justice A K Patnaik and Justice S J
Mukhopadhyay of the Supreme Court looked at the Representation of the People
Act and Article 101 and 190 of the Constitution of India on disqualification of
Members of Parliament and Members of State Legislature (MLA & MLC) and came
to the conclusion that in case of conviction of elected Members by the trial
court, the Members concerned would cease to be Member of the House to which he
or she was elected. The judgment would not be in force retrospective. For
instance if ‘X’ is an MP or an MLA/MLC who is convicted by the trial court but
has gone in for appeal in higher judiciary prior to this judgment ’X’ would not
lose his membership of the House he was elected to.
What is wrong in the judgment? Here is the opportunity
for the political class to come forward and support the judgment to cleanse the
system.
It is more than 12 years when the Election Commission
of India had sought the opinion of all the political parties on how to deal
with the growing criminalization of politics after it discovered that large
number of people who are elected to Parliament or State Assemblies have
criminal antecedents. Many MPs and MLAs are convicted by the trial court. But
all the political parties adopted an evasive attitude to the problem.
First it was said that Political Parties should not
give tickets to criminals to contest polls. In principle it sounds good. But
when it came to fielding candidates in the elections all parties gave tickets
to many criminal elements for one reason or the other.
India is now in the age of coalition era where number
matters. Given the political situation prevailing now, it is highly unlikely to
expect political parties to deny tickets to criminals. If one party fields a
criminal to contest the polls, its rival would also nominate criminal. If this
is the scene, then it is high time the government of the day or the government
of the future should not challenge the verdict of the Supreme Court before a
full Constitution Bench. Any such move would be self defeating.
~R. K. Sinha
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