A lawmaker stands disqualified if conviction not stayed: Supreme Court

​New Delhi: The Supreme Court on Monday said that a lawmaker, whose conviction in a criminal case has not been stayed by an appellate court, would stand disqualified from the membership of the House.

A bench headed by Chief Justice Dipak Misra also reserved its verdict on a plea filed by NGO 'Lok Prahari', which alleged that the 2013 verdict of the apex court in the Lilly Thomas case was being flouted by the Members of Parliament, MLAs and MLCs, who continue to hold their memberships even after their convictions in criminal cases.

The apex court, on July 10, 2013, had struck down section 8(4) of the Representation of the People Act (RPA) that gave a convicted lawmaker the power to remain in office on the ground that appeals have been filed within three months of conviction. "The only question is about the vires of section 8(4) of the Representation of the People Act (RPA) and we hold that it is ultra vires and that the disqualification takes place from the date of conviction," the court had said.

The NGO, in its fresh plea filed through its secretary S N Shukla, said the disqualification of a lawmaker takes place immediately after the conviction and the membership cannot be revived with retrospective effect by an appellate court by staying the conviction. Shukla, the former chief secretary of Uttar Pradesh, told the bench, which also comprised Justices A M Khanwilkar and D Y Chandrachud, that the 2013 verdict barred the appellate courts from staying the conviction of a lawmaker.

"Please show us the passages (in the judgement) where it is said that no stay will be granted on the petition against the conviction," the bench said. "The law is clear that a person, who has been convicted and has not got a stay on the conviction, his or her membership will go," it said, adding that appellate courts are not barred from granting stay on convictions.

"If stay is there then he or she (lawmaker) can participate in the House proceedings. If there was no stay then he or she is disqualified," the bench said. It also said that appellate courts rarely stay the conviction of the lawmakers in criminal cases.

The apex court had held that chargesheeted MPs and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months' time for appeal, as was the case earlier.

The court, however, had then said that its decision would not apply to convicted MPs and MLAs or MLCs who have already filed their appeals in higher courts before pronouncement of the verdict. The verdict had removed the discrimination between an ordinary individual and an elected lawmaker, who enjoyed protection under the RP Act.

Under Sec 8(3) of the RPA, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that period and a further six years after release. But Section 8(4) said a lawmaker cannot be disqualified for three months from the conviction if in that period he or she files an appeal against till its disposal by a higher court.

The apex court's verdict had come on petitions filed by a lawyer Lily Thomas and NGO Lok Prahari which had sought striking down of provisions of RPA on the ground that they violate certain constitutional provisions which, among other things, expressly put a bar on criminals getting registered as voters or becoming MPs or MLAs.

The PILs had said that certain sections of RPA allow convicted lawmakers to continue in office while their appeals are pending and thus those provisions are "discriminatory and encourage criminalisation of politics".