The Supreme Court on Wednesday refused to review its verdict that an MP or MLA convicted of any criminal offence attracting a punishment of two years and above will be disqualified immediately but agreed to re-look its other judgment debarring arrested persons from contesting polls.
The apex court, however, said that Parliament is free to amend law if it does not agree with interpretation of law given by the Supreme Court. A bench of justices A K Patnaik and S J Mukhopadhyay said that it would hear review plea on the limited ground whether disqualification mentioned in the constitution bars an arrested person from contesting election or not.
It also raised a question on why the Centre preferred not to argue the case when the matter was being heard. It also said that the Representation of People's Act is "clumsy" which caused the confusion and said, "The object of the provision was to keep the person with criminal background away from election." "Parliament frames laws in the manner they like. If we make interpretation of law and if it is not accepted by it (Parliament), it’s again for Parliament to enact a law," it said.
Referring to its July 10 judgment that convicted legislatures would be disqualified as members of the House, the bench said, "There is no error on the face of the law but there can be on interpretation. We found that there are lacunae in law in this regard which can be considered by the legislatures." It said since there was no error in its verdict. Parliament accepted it and came out with the Amendment Bill in the RPA, which was passed by Rajya Sabha.
"We are not inclined. It is a well-considered judgment. Everybody should accept it. We are glad that Parliament has accepted," it said, adding, "We don't find any error apparent in the judgment of July 10. Hence, it (review petition) is dismissed."
The bench also said that Parliament can go ahead with the amendment saying "We don't want to stall the legislators who have come out with the bill."
While agreeing to have a fresh look at the issue of arrested persons prohibited from entering the electoral fray, the bench said this matter was not argued well keeping in view the Constitutional provision.
It said it will consider the issue of disqualification by taking into account Article 102 of the Constitution which deals with disqualification of membership as well as the provisions contained in the electoral law.
The Centre contended that protecting convicted MPs and MLAs from disqualification during pendency of appeal is necessary "to protect the House and to ensure that governance is not adversely impacted".
The apex court had on July 10 held that an MP or MLA convicted of any criminal offence attracting a punishment of two years and above will be disqualified immediately and a person, who is in jail or in police custody, cannot contest election to legislative bodies. It had declared as unconstitutional a provision in the Section 8(4) of Representation of the People Act that says a convicted legislator can continue in office if he or she appeals in a higher court within three months of the conviction. The verdicts have been widely opposed by politicians cutting across party lines.
Interestingly, the government justified the protective provision for elected member on the ground that the rate of acquittal in Indian judicial system is high and if the elected member is once disqualified on being convicted then his membership of the House cannot be restored after his acquittal.
It had said Parliament has exceeded its powers by enacting the provision (Section 8(4) of the Representation of Peoples Act) that gives a convicted lawmaker the power to remain in office on the ground that appeals have been filed and pending. It had also said that a person, who is in jail or in police custody, cannot contest election to legislative bodies, bringing to an end an era of under-trial politicians fighting polls from behind bars.