Question – Under the Representation of the People Act, 1951, on what grounds a public representative can be disqualified? Also mention the provisions available to such person against his disqualification. – 14 February 2022
Answer – This act is important to prevent criminals from being selected, as it is always mentioned in various judgments by Supreme Court and High Court also.
A person may be disqualified on the following grounds:
- Disqualification on conviction for certain electoral offenses and corrupt practices in elections. (section 8)
- Disqualification on conviction for certain offences.
- Disqualification on grounds of corrupt practice. (Section 8A).
- Disqualification for dismissal for corruption or breach of trust. (Section 9).
- Disqualification for Government contracts etc. (Section 9A)
- Disqualification for office under a Government company (Section 10)
- Disqualification for failure to lodge account of election expenses.(section 10 A)
Similarly, there are many other offenses also which if committed by a candidate will disqualify him/her. For example:
- The Protection of Civil Rights Act, 1955, which provides for the teaching and practice of untouchability.
- Section 11 of the Customs Act, 1962, which deals with the offense of import and export of prohibited goods.
- Section 10 to 12 of the Unlawful Activities (Prevention) Act, 1967 i.e. offense of being a member of an unlawful association.
- Narcotic Drugs and Psychotropic Substances Act, 1985
- Prevention of Corruption Act, 1988.
Remedies available for disqualified people:
The Representation of the People Act, 1951 specifies the qualifications and the disqualifications of Members of Parliament and state legislatures. In particular, the first three subsections of Section 8 list various offences, and state that anyone who has been convicted of these offences is disqualified.
- Even if a person is out on bail, after conviction and his appeal is pending for disposal, he is ineligible to contest elections as per the guidelines issued by the Election Commission of India. On 10 July 2013, the Supreme Court of India, in its judgment in Lilly Thomas v Union of India, ruled that any Member of Parliament, MLA or MLC, who is convicted of an offense and sentenced to imprisonment of not less than two years is granted, lose the membership of the House with immediate effect.
- If an aggrieved person wishes to make a complaint about the ongoing corrupt practices at any stage of the election process, he can make a complaint to the Election Commission of India, where the office of the Chief Election Commissioner is located.
- Further, on the question of whether an MLA is subject to any disqualification, the final authority to decide lies with the President (in the case of Members of Parliament) and the Governor (in the case of members of the State Legislature). However, the President or the Governor shall act in accordance with the advice of the Election Commission of India.
- After a representative is disqualified, the Election Commission may, on certain grounds, remove any disqualification or reduce the period of any disqualification.
Election is the lifeblood of any healthy democracy. The strength of the electoral process determines the fate of the nation. Timely reforms in the electoral process as per the changing needs of the society and strong review of the judiciary have helped in conducting free and fair elections till date.
There have been various objections to this differential treatment from time to time. In January 2005, examining a separate issue relating to this section, a five-judge Constitution Bench of the Supreme Court also considered the question of whether this unequal treatment violated Article 14 of the Constitution, which guarantees equality before the law.
The Supreme Court said that the purpose of including this provision is not to protect the rights of a sitting member, but to protect the “existence and continuity of a democratically constituted House”.
The Court pointed out two undesirable consequences-
- If a sitting member were to be immediately disqualified on conviction and conviction and the government had a “descending majority”, the disqualification “could have had a detrimental effect on the functioning of the government”.
- Additionally, disqualification can lead to a “by-election”, which can be a fruitless exercise if the convicted member is acquitted by a superior court.