Conviction stayed! Disqualified or not?

Sridhruti Chitrapu | 22nd November 2019

Lok Prahari (through its general secretary, S.N. Shukla) vs Election Commission of India and others

Introduction 

In cases where there is a criminal charge against an elected representative, and he is found to be guilty under such charges his post may be disqualified under the provisions given under the Representation of Peoples Act and the Indian Constitution. The question as to when does the disqualification operate and the effect of pendency of an appeal have ignited many debates and discussions through various cases in the recent past. 

Facts

The petitioner, Lok Prahari is a society registered under the Societies Registration Act, 1860 with an object regarding the public governance and administration. It has invoked Article 32 in the instant Public Interest litigation to seek the following reliefs:

1. Even in case of a stay of conviction by an appellate court for an offence attracting disqualification under Section 8 of the Representation of the people act, 1951, the seat of the member is deemed to have become vacant with effect from the date of conviction.
2. Any person subject to disqualification as mention above shall be liable to pay penalty not withstanding any orders by the appellate court purporting to stay his conviction.
3. Issue a writ, order or a direction in the nature of a mandamus to the respondent to issue a certified copy of the judgement and ensure action for filling the vacancy. 

This petition was brought forth after an erstwhile member of the Legislative Assembly in the State of Uttar Pradesh was accused and convicted under the Sections 353, 504 and 506 of the Indian Penal Code. The District court stayed the execution of the sentence. The High Court of the State dismissed the petition on the grounds that the disqualification would not be attracted since the conviction had been stayed. According to the contentions of the petitioners, the seat becomes vacant upon disqualification under Article 102 or Article 191 and also contended that the appellate court cannot stay the conviction it can only stay the execution of a sentence. 

Held 

It was held by Honourable Court that upon stay of conviction, disqualification will not operate. It has been settled that the appellate court has the authority to stay convictions in appropriate cases. This power comes by the way of an exception. Before granting such a stay the appellate court must be made aware of the consequences which will arise upon not granting such a stay. It was further held that no such order or direction or a writ in the nature of a mandamus can be issued by the court. And no certificate copy of the order would be given since the judgements are made available online with the help of the e-court project. It was held that the Election Commission is sufficiently empowered to take appropriate steps in accordance with law so no further directions in this regard are deemed necessary.