[Disqualification of convicted MPs/ MLAs] Plea before SC challenges Section 8(3) of RP Act

Read Time: 06 minutes

In light of the recent disqualification of Rahul Gandhi as a Member of Lok Sabha representing Wayanad Constituency, Kerala, a plea has been filed before the Supreme Court challenging the automatic disqualification of people’s representatives of elected legislative bodies, upon being convicted of any offence and sentenced to imprisonment for not less than two years as per Chapter III, Section 8 (3) of the Representation of the People Act, 1951.

The plea thus seeks to declare Section 8 (3) as ultra vires of the Constitution of India, 1950 since the same is in stark contradiction to sub-section (1) of the Section 8, Section 8A, 9, 9A, 10 and 10A and 11 of the 1951 Act, thereby restrains the members from freely discharging their duties casted upon them by the voter’s of their respective constituency, which is against the principles of democracy.

Two days ago, the Surat District Court held the Congress MP guilty in a defamation case over his Modi surname’ remark. In 2019, Gandhi in a poll rally at Kolar in Karnataka, said, “how come all thieves have Modi as the common surname”.

Chief Judicial Magistrate (CJM) HH Varma convicted and sentenced Gandhi to two years in jail.

A specific argument has been made by Aabha Murlidharan, a Ph.D. scholar and social activist, that factors, such as nature, gravity, role, moral turpitude and the role of the accused, ought to be examined while considering disqualification under Chapter III of the 1951 Act.

It is further argued that sub-clause (3) in Section 8 is contradictory to sub-section (1) of the same section, which clearly categorizes the offences, keeping in view the nature of offences, for disqualification of members of Parliament, as opposed to sub clause (3) which provides for a blanket automatic disqualification, on the basis of the quantum of sentencing and imprisonment, which is self-contradictory and creates ambiguity as to the proper procedure for disqualification thereof.

"Moreover, the 1951 Act further categorizes the nature of cases wherein disqualification is permissible as enumerated u/s 8A, 9, 9A, 10 and 10A, which again specify the nature of the offences, for disqualifying a member and is in contradiction with sub-clause (3) of Section 8 of the 1951 Act...", the plea adds.

The plea filed through Advocate Deepak Prakash and drawn by Advocate Sriram Parakkat also submits that the intent of the legislature while laying down the said Act of 1951 was to disqualify the elected members who upon commission of a serious/ heinous offences are convicted by the Hon’ble courts and hence are liable to be disqualified.

".... present scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences, allegedly against the concerned Member, and provides for an “automatic” disqualification, which is against the principles of Natural Justices, since various convictions are reversed at the appellate stage, and under such circumstances, the valuable time of a member, who is discharging his duties towards the public at large, shall be rendered futile...", the petition states.

Case Title: Aabha Muralidharan vs. Union of India