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The Supreme had recently questioned Lakshadweep MP Mohammed Faizal as to what fundamental right of his was violated, while hearing his plea seeking permission to attend the Lok Sabha as his conviction in a murder case has been stayed.
A Lawyer has approached the Supreme Court seeking quashing of the order passed by Speaker of Lok Sabha on March 29, 2023 through which the lost membership of Mohammad Faizal Khan, the member of Lok Sabha from Lakshadweep, was restored.
Khan's membership was restored after the Kerala High Court had stayed his conviction in an attempt to murder case.
In the instant plea, moved by Lucknow based lawyer Ashok Pandey, a reference is made to the judgment of BR Kapoor vs. State of Tamil Nadu and another, wherein it was held that the disqualification based on conviction and sentence will continue to operate till it is set aside in appeal.
Court has been further told that provisions of the section 389 of CrPC permits the court of appeal hearing an appeal against conviction and sentence, to suspend the sentence and release the appellant on bail but not to suspend the conviction.
"Mohammad Faizal Khan is usurping a public office created by the constitution without being qualified for the same and so the writ of quo warranto lies against him", the plea adds.
Relying on Section 8 (3) of the Representation of the People's Act, 1951, Court has been told that a person convicted for any offence and sentenced for imprisonment for two years or more, is disqualified from the date of such conviction.
As per the law laid by the Constitution bench in the matter of BR Kapoor, the disqualification shall continue to operate in its all rigor till it is set aside in appeal and as such a convict which has attracted disqualification on basis of an order of conviction, will continue with his disqualification for being chosen as or from being, a member of Parliament/ State legislature till his conviction is set aside in appeal or a lesser sentence means sentence less than two years is awarded by the appellate court, the plea submits.
A further prayer has been made for the Supreme Court to take cognizance of the submissions made by the ex-Attorney General and Senior Advocate Mukul Rohtagi and Senior Advocate Abhishek Manu Singhvi and some other advocates that if conviction is stayed by the appellate court, the lost membership of legislator can be restored.
"The petitioner is submitting so as the senior Advocates who are designated as such due to their expertise in the field of law, should not make a statement which is against the law laid down by the apex court as their such statements created confusion amongst the judges, government, lawyers and common man regarding the proper knowledge of law on the subject", the lucknow based lawyer submits.
On January 11, 2023 a Sessions Court in Lakshadweep had convicted the NCP MP and three others in an attempt to murder case relating to an incident of 2009. Following the conviction, Faizal, was disqualified.
Later that month, a single bench of the Kerala High Court suspended Faizal's conviction in an attempt to murder case relating to 2009 wherein he was sentenced to three years of imprisonment.
Following this, Khan had moved the Supreme Court seeking permission to attend the Lok Sabha as his conviction in the murder case had been stayed.
Case Title: Ashok Pandey vs. The Speaker of Lok Sabha and Ors.
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