NCP MP Mohd Faizal Disqualification: Stay of conviction not a norm; election expense a separate issue – Supreme Court

On March 29, the Supreme Court (SC) remarked that there could not be a separate rule for an elected representative and common people for suspension of conviction and sentence in a criminal case while hearing a plea concerning Nationalist Congress Party (NCP) leader and Lakshadweep MP Mohammad Faizal’s conviction and disqualification from Lok Sabha.

The SC said, “Unless an appellate court finds that prima facie it’s a case of acquittal, a stay on conviction cannot be given. Just because there is a disqualification, different rules cannot kick in.”

The SC made these observations on Kerala High Court’s order which took into account that Faizal’s seat will be vacant and the polls would cost the exchequer as he is an elected representative while granting him a stay on conviction. The SC said, “The High Court saying that election expenditure will be increased is totally irrelevant; extraneous; nothing to do with the issue.” Furthermore, it added, “it is only in exceptional cases that a court should stay conviction. This should not be a run of the mill case where you ask and get a stay.”

On January 25, the Kerala High Court suspended Faizal’s conviction and sentence for an attempt to murder after he challenged the trial court’s verdict convicting him u/s 143, 147, 148, 307, 324, 342, 448, 427, 506 read with 149 of the Indian Penal Code (IPC) relating to offences relating to rioting, attempt to murder, violence and kidnapping. The trial court sentenced Faizal and three others to ten years of rigorous imprisonment on January 11.

The Kerala High Court observed, “The societal interest in averting an expensive election that too, when the elected candidate can continue for a limited period alone if the fresh election is conducted, cannot be brushed aside by this court. The societal interest and the need to have purity in politics and elections will have to be balanced.”

The Kerala High Court suspended the conviction and the sentence for Faizal, it merely suspended the sentence for the other three accused. It is pertinent to note that the Kerala High Court stated, “The societal interest in averting an expensive election that too, when the elected candidate can continue for a limited period alone if the fresh election is conducted, cannot be brushed aside by this court,” while suspending Faizal’s conviction.

Thereafter, the UT Administration of Lakshadweep challenged the Kerala High Court’s order suspending Faizal’s conviction before the SC. The SC noted that the Kerala High Court’s order requires a deeper examination taking into account the evidence and nature of injuries considering that the victim suffered 16 injuries including injuries from sharp-edged weapons and iron rods. Faizal and three other persons were convicted for attempting to murder Padanath Salih, the son-in-law of former Union minister and Congress leader PM Sayeed.

The UT Administration of Lakshadweep stated in their plea that the consequence of the trial court convicting Faizal of 10 years of rigorous imprisonment was that by operation of Article 102(1)(e) of the Constitution read with Section 8(3) of the Representation of the People Act, 1951, the respondent, who was an elected Member of Parliament from Lakshadweep Constituency, stood disqualified by the operation of law from the date of conviction and the Lok Sabha Constituency of Lakshadweep stood vacated.

The UT argued that “Section 389 CrPC for the purposes of suspension of conviction does not envisage the ground that was referred by the High Court while passing the impugned interim order.” Furthermore, it said that the principles of democracy, purity of elections and decriminalisation of politics have all been accepted and acknowledged by the High Court but ignored by the High Court while passing the interim impugned order.

It submitted that the Kerala High Court has ignored the object and spirit of Section 8(3) of the Representation of the People Act, 1951 and Article 102(1)(e) of the Constitution. In the entire impugned interim order, there is no iota of discussion on the suspension of sentence, especially when the accused persons have been convicted u/s 307 IPC.

Following Faizal’s conviction, the Lok Sabha Secretariat had issued a Notification dated January 13, 2023, to the same effect in terms of Article 102(1)(e) of the Constitution of India read with Section 8, of the Representation of the People Act, 1951, i.e. by virtue of conviction of the Faizal, stood disqualified as a member of Lok Sabha representing Lakshadweep Parliamentary Constituency of the Union Territory of Lakshadweep.

Pursuant to this disqualification, the Election Commission of India issued a press note dated January 18, 2023, deciding to hold bye-elections to fill the vacancy in the Parliamentary Constituency of Lakshadweep on February 27, 2023.

It is pertinent to note that the Lok Sabha Secretariat revoked Faizal’s disqualification in accordance with the Kerala High Court’s order suspending his conviction on March 29, ahead of SC’s hearing on Faizal’s plea concerning his conviction and disqualification from Lok Sabha.

Rahul Gandhi’s disqualification

The Supreme Court’s observations hold greater significance as former Congress MP Rahul Gandhi is another elected representative is seeking to appeal his conviction to obtain a stay to be reinstated to the Lok Sabha. He was disqualified from the Lok Sabha following his conviction in the ‘Modi’ surname defamation case on March 23 after a Surat District Court sentenced him to 2 years imprisonment.

On March 24, the Lok Sabha Secretariat issued the notice for Rahul Gandhi’s disqualification stating, “Consequent upon his conviction by the Court of Chief Judicial Magistrate, Surat in C.C./18712/2019, Shri Rahul Gandhi, Member of Lok Sabha representing the Wayanad Parliamentary Constituency of Kerala stands disqualified from the membership of Lok Sabha from the date of his conviction i.e. 23 March 2023.”

UPA Government’s Ordinance

On July 10, the Supreme Court held that section 8(4) of the Representation of the People Act, which granted an automatic stay on conviction of three month period for an MP/MLA to file an appeal against their conviction, was ultra vires to the Constitution of India. The Supreme Court said, “Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”

The Court held that if an MP/MLA is convicted for offences u/s 8(1), 8(2) or 8(3) of the Act and suffers disqualification from the same then “after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.”

However, the UPA Government introduced the Representation of the People (Second Amendment and Validation) Bill, 2013 in an attempt to overturn the Supreme Court’s decision to strike down section 8(4) of the Representation of the People Act, 1951, proposing that the convicted representatives would not be disqualified immediately after conviction.

On September 24, 2013, the UPA Government attempted to bring the amendment into effect as an Ordinance before the verdict in Congress ally and RJD supremo Lalu Yadav’s fodder scam case. However, Rahul Gandhi called the Ordinance “complete nonsense that should be torn up and thrown away,” and tore the Ordinance during the press conference. Thereafter, the UPA Government withdrew the Ordinance and the Bill.