Election Commission of India

This article is written by Soumya Lenka. The article discusses the background, pertinent facts, arguments of both the sides and the court’s reasoning while delivering the verdict. The case deals with a Lok Prahari society who is the petitioner in the present case. A public interest litigation was filed against the Election Commission of India primarily contending that a stay order against the conviction of a member of Parliament and that of a State Legislature on ground of any offence must not dissolve the effect of the prior disqualification and that the disqualification of the member should not be revived in a retrospective manner.   

Introduction 

The case deals with the disqualification of a Member of Parliament (MP) and that of a State Legislature on the grounds mentioned under Section 8 of the Representation of the People Act, 1951 (hereinafter mentioned as ‘the Act’). This case sheds light on the stay of conviction on the disqualification of an elected member. The Petitioner in the impugned case is a society which has filed a public interest litigation mainly to cement a loophole in the scheme of Articles 101 and 190 of the Indian Constitution and Section 8 of the Act. The loophole here being addressed is that of legislative imprudence and notoriety. 

The case is based on a peculiar situation when a MP or MLA (Member of Legislative Assembly) is convicted of any offence under Section 8 of the Act. On such conviction, he is subjected to disqualification under Section 8 of the Act. In that case, if on an appeal by the so convicted member, a stay order is passed, then what will its effect on the prior disqualification is the subject matter of the case.. The Petitioner prays to declare that in case of any such situation, the disqualification should continue and ought not to be revoked on the ground of this loophole in the scheme of the provisions. 

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Details of the case

  • Case name: Lok Prahari vs. Election Commission of India
  • Petitioner: Lok Prahari, through its General Secretary SN Shukla
  • Respondents: Election Commission of India
  • Case type: Writ Petition (Civil)
  • Court: Supreme Court of India
  • Bench: Hon’ble Justice Dhananjaya Y Chandrachud, A M Khanwilkar, Dipak Misra
  • Author of the Judgement: Dhananjaya Y Chandrachud
  • Date of judgement: 26.09.2018
  • Citation: (2018) 18 SCC 114

Facts of the case

The case concerns itself with a Public Interest Litigation (PIL) filed by Lok Prahari, an organisation registered under the Societies Registration Act, 1860. The organisation has prayed primarily that in case of a stay order being issued, conviction of any MP or State Legislature, in case of any proceedings, then the same should not have any effect on the prior disqualification of the members. The inception of this case lies in a prior stay order issued by the Ld. District and Sessions Court of Lucknow. 

One member of the State Legislature of Uttar Pradesh was convicted of offences under Sections 353, 504 and 506 of The Indian Penal Code (IPC), 1860 (now Sections 132, 352 and 351 of Bharatiya Nyaya Sanhita, 2023) and was sentenced to imprisonment by the Ld. Trial Court of Lucknow. As envisaged under Section 8 of the Act, the said member was subject to disqualification as he was convicted by the Trial Court. On an appeal by the convicted in the District and Sessions Court of Lucknow, the Ld. District Court, after a strict perusal of the facts and circumstances of the case, stayed the conviction order of the convicted appellant. 

In furtherance of which, the Petitioner, Lok Prahari, organisation filed a Public Interest Litigation (PIL) under Article 226 of the Indian Constitution in the Lucknow Bench of the Allahabad High Court. The Petitioner argued that the stay order passed by the Ld. District and Sessions Court of Lucknow has nothing to do with the disqualification of the convict member and hence, the disqualification must continue irrespective of the said stay order passed by the Ld. District Court. The PIL was dismissed by the Hon’ble High Court of Allahabad on the ground that the stay order cannot be ignored while considering whether a member of the house is to be disqualified or not. In case, a stay order has been passed by the Ld. District Court of Lucknow, the Hon’ble High Court held that the same negates the effect of prior disqualification and hence the disqualification ceases to operate from the day the stay order was passed. 

Aggrieved by this decision of the Hon’ble High Court of Allahabad, the petitioner, Lok Prahari, approached the Hon’ble Apex Court by invoking its writ jurisdiction (under Article 32 of the Indian Constitution). The petitioner has primarily prayed for three things-

  • At first, the petitioner prayed that the Ld. District Court as well as the Hon’ble Allahabad High Court had erred in correlating the stay order and its negating effect on the disqualification of the member. The Petitioner prayed that Section 8 of the Act, read with Articles 101(3)(a) and 190(3)(a) leaves no scope for a stay order in case of conviction of a appellant and in case, there is a stay order, the same has no effect on the disqualification of the member and the member shall stand disqualified from the date of his or her conviction irrespective of a stay order.  
  • Further, the petitioner prayed that as the member is disqualified as per the postulations so provided under Section 8 of the Act, he or she shall be liable for penalty under Articles 104 and 193 of the Indian Constitution as per the case may be. In this case also, it was prayed that a stay order should not have any bearing on this penalty obligation by the convicted member. 
  • Further, the petitioner prayed that a writ or order or direction must be issued stating that the convict member of the State Assembly should vacate his or her seat under Section 151 of the Act, and any order or direction of any Revisional Court or Appellate Court would not have any bearing on the same.

Issues raised in the case

  • Whether the Ld. District and Sessions Court of Lucknow erred in staying the disqualification of the convict member of the Uttar Pradesh State Assembly subsequent to the stay order on conviction passed by the Ld. Court ?
  • Whether the Ld. High Court of Allahabad erred in upholding the stay on the disqualification of the convict member of the UP State Assembly subsequent to the stay order passed by Ld. District and Sessions Court, Lucknow?
  • Whether a stay order retrospectively dilutes the disqualification of a convict member?

Arguments of the parties

Petitioner

The petitioner, Lok Prahari organisation, contended that the seat held by a MP or the State Legislature should become vacant after a disqualification under Article 102 or Article 191 of the Indian Constitution. The petitioner contended that prima facie, if the ingredients under Section 8 of the Act are satisfied, then a member of the Parliament or that of the State Legislature is to vacate his or her seat in accordance with Articles 102 and 191 of the Constitution. He or she is no longer eligible to hold a seat in the house.

The petitioner contended that on a disqualification incurred under Section 8 of the Act, the convict member is no longer eligible to hold a seat in the house from the date of his or her conviction and there is no explicit or implicit clause whatsoever in the Articles 102 or 191 as well as that of Section 8 of the Act, which leaves any scope in future that the disqualification so incurred after conviction might to be subject to revocation in case of a judicial proceeding or appeal. 

Relying on the landmark verdict of the Hon’ble Supreme Court in B.R. Kapoor vs. State of Tamil Nadu (2001), wherein the Hon’ble Apex Court explicitly held that as envisaged under Section 389 of Code of Criminal Procedure (hereinafter referred to as CrPC) [now Section 430 of Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)] any Appellate Court does not have the authority or power to stay the order of conviction passed by the lower court/Trial Court. The only power conferred upon the Appellate Court is to stay the execution of the sentence so passed by the Trial Court till the proceedings come to a conclusion, and a verdict to that effect is passed by the Appellate Court after adjudication of the matter.  

The Ld. petitioner further submitted that the revival of membership in a retrospective manner, as has been done in the impugned case by the Ld. District and Sessions Court of Lucknow opens a huge loophole for all the convicted MPs and MLAs to escape the disqualification. The petitioner further substantiating its claim submitted that this loophole will completely dilute the sanctity of electorate or representative democracy. 

It was submitted that in case, a member of the Parliament or member of any State Legislature as is in the present case is convicted of any act mentioned under Section 8 of the Act, which makes him or her disqualified from holding any position of the house, he or she can use this floodgate or loophole to approach the Appellate Court and get a stay order on the conviction. Thereby, he or she is eligible to continue as a member of the State Legislature or Parliament by retrospectively revoking the prior disqualification. This is nothing but an absolute mockery of parliamentary democracy as well as of the judiciary.  

It was submitted that this will open a floodgate, which will enable the MLAs or MPs already convicted by the Trial Courts under Section 8 of Act, to override the protection conferred under Section 8(4) of the Act, by approaching the Revisional Court relying a stay on the conviction order so passed by the Ld. Trial Courts. If they manage to get a stay on the conviction order by the Appellate Courts, then this will retrospectively dilute their disqualification and will render Section 8 of the Act, redundant.

The petitioner further contends that Section 389 of CrPC empowers the Revisional or Appellate Court to suspend or put a stay order on the execution of a conviction. It was submitted that it in no way authorises the Ld. Appellate Courts to put a stay on the entire conviction sentence passed by the Ld. Trial Courts. Hence, relying on this provision, the petitioner contended that the Ld. District Court has arbitrarily put a stay order on the conviction beyond its adjudicating scope, and hence even the stay order passed by the Ld. District Court is devoid of any merits and lacks the sanction of law.

It was further submitted by the petitioner in a rejoinder that the role of the Election Commission starts immediately with the conviction order or decree of a said MP or any State Assembly. The Election Commission is authorised as well as obliged to act immediately after such a conviction decree has been passed. The Election Commission should vacate the seat of the convicted member immediately after such conviction order as it is an independent body and there is no requirement of waiting for any receipt of a notification or directive from the Secretariat of the Legislature in any way.

Further, the petitioner contends that there is no requirement of any notification from the secretariat. To assert this position, the petitioner submitted that such a postulation or requirement is found nowhere within the schemes of Article 101 (3) (2) and Article 190 (3) (a) of the Indian Constitution. Hence, the Election Commission in the impugned case by awaiting a notification by the Secretariat of the Uttar Pradesh Assembly, has acted beyond the contours of law. Thereby, it was contended that a writ of mandamus may be issued to the Election Commission to initiate action as soon as possible in furtherance of the vacation of the seat of the convicted member.

Respondent

In response to the allegations made by the Ld. petitioner, the Election Commission reacting in a positive manner has agreed to some of the contentions of the Petitioner. The Election Commission has issued instructions to that effect and has held in a counter affidavit that the seat of the so convicted member should be vacated within seven days of such order or decree by the Trial Court. 

Further, the Election Commission has emphasised on the decision of Lily Thomas vs. Union of India & Ors (2013). In this case the Hon’ble Supreme Court has held that there is an automatic disqualification in case a member of the Parliament or that of the State Legislatures is convicted under any of the offences mentioned under Section 8 of the Act. Hence, upholding the contention of the petitioner that the stay order has no effect on such disqualification, the election commission admitted that there is no ground or provision whatsoever which provides for postponing the disqualification of the said convict member. Hence, it was of the opinion that an appeal and a subsequent stay order on conviction could not dilute the disqualification of the member in a retrospective manner.

The Election Commission submitted that there is no requirement under Articles 103 and 192 of the Indian Constitution that an order or directive from the Governor or the President is to be required to give effect to the disqualification of the member who is convicted and vacation of the seat and that the same becomes operative immediately after the order by the Trial Court.

The Election Commission of India emphasised on the landmark decision of P.V Narasimha Rao vs. State (CBI/SPE) (1998), wherein it was held that no decision or directive of the President or Governor is required whatsoever in case of disqualification of a member of a legislature on any grounds envisaged under Section 8 of the Act.

The respondents were primarily represented by the Attorney General of India. The Union submitted that the issues and contentions of the petitioner have already been considered by the Hon’ble Supreme Court while adjudicating on the landmark case of Lily Thomas vs. Union of India & Ors. Hence, it was submitted that the issues raised by the petitioner would just be a waste of the valuable time of the judiciary as the same have already been considered, and hence the petition is liable to be dismissed. 

The respondents submitted that the issues and contentions of the petitioner in no way challenges any provision of any Act or rules whatsoever in particular. Hence, the same is a baseless petition and shall not be considered as a Public Interest Litigation. Furthermore, the respondent submitted that the petitioner has only relied on the provisions of law and on judicial pronouncements on the subject of disqualification on conviction and no such reasoning can be deduced from the said judicial pronouncements that a stay on conviction of a member of the house does not affect the prior disqualification of the convict member. It was submitted that the contentions of the petitioner are prima facie flawed and should be hereby dismissed.

Laws involved in Lok Prahari vs. Election Commission of India (2018)

Article 101 of the Indian Constitution 

The case deals with the disqualification of a member of the Uttar Pradesh State Assembly, and hence, this provision of the Indian Constitution holds pivotal importance in the case. Article 101 of the Indian Constitution provides for vacation of seats in case of disqualification of members. The pertinent clause 3 of the Article 101 has been invoked primarily in the present case. It provides that a member is subject to vacation of seats in case of disqualification on the grounds mentioned under Article 102 (1) and (2) of the Indian Constitution.

Article 102 of the Indian Constitution

Article 102 of the Indian Constitution provides for disqualification of membership. It postulates several grounds on which a MP or that of a State Assembly is subject to disqualification. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament–

  • If the member holds any office of profit under the Government of India or the Government of any State;
  • If the member is of unsound mind; 
  • If the member has been declared insolvent;
  • If the member is not a citizen of India or has accepted the citizenship of any other country;
  • If the member is so disqualified to be a part of the Parliament under any law made by it; 
  • Further the member shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule. 

The same finds mention in the present case as the convict respondent No. 2 (the convicted member of the U.P State Assembly) was disqualified (before the stay order on conviction) under Article 102(1)(e) of the Constitution on the ground that he has been convicted of an offence under Representation of Peoples Act, 1951.

Section 8 of the Representation of People’s Act, 1951   

Section 8 of the Act, provides for offences under which a member of the Parliament or that of a state assembly, if convicted, will be subject to disqualification under Article 102(1)(e) of the Indian Constitution. There are offences under which if a member is convicted, he or she will be subject to disqualification under this Section.

The offences under the said provision includes-

The impugned case deals with the three provisions under which the respondent No. 2 was convicted. He was convicted under Sections 353, 504 and 506 of the Indian Penal Code, 1860. The convicted member falls under Section 8 (3) and hence is liable to be disqualified. In a major turn of events, the conviction was subsequently stayed by the Appellate Courts and a PIL was filed in the Apex Court for the final hearing. 

Judgement of the case

The bench consisted of  Hon’ble Justices Dhananjaya Y. Chandrachud, A M Khanwilkar, and Dipak Misra. The verdict was a unanimous one wherein it was held that a  disqualification under sub-section (1), (2), or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the CrPC  or the High Court under Section 482 of the CrPC .

The court held that there is no merit in the contention of the petitioner that Section 389 of CrPC doesn’t explicitly confer the power on the Appellate Court to order a stay on conviction. The court relying on the landmark judgement of Ram Narang vs. Ramesh Narang (1995) held that it is well settled that Section 389 is quite wide in its ambit and scope and confers the power to order a stay on conviction as well as execution on the sentence of a Trial Court. The court, hence, held that the case of the Petitioner is devoid of any merits and shall be thereby disposed of.

Rationale behind the judgement

The court adjudicating on the power and authority of the Appellate Court relied on the landmark decision of Rama Narang vs. Ramesh Narang (1995). Further, in the impugned case, it was held that an order of conviction does not ensure execution of the same. In other words, an order or decree of conviction is not by itself capable of execution under the provisions of CrPC. But in the same case, the court held that only in certain circumstances, the conviction order or decree is executable. If the same reasoning is applied to the present case, the court held that the conviction order in the present case is prima facie executable, then that would lead to immediate disqualification of the convict respondent No. 2.  

Further, the court held that before adjudicating on the scope and ambit of the powers conferred on the Appellate Courts, it is pertinent to delve deeper into the actual meaning and scope of Section 389 (1) of the CrPC. The court after a strict perusal of the scope and ambit of the impugned provision held that the Appellate Courts are conferred with the power to stay the conviction under the said provision. 

The court contemplating on the contention of the petitioner that the scope of Section 389(1) is very narrow and that the stay of conviction does not have any diluting effect on the disqualification of the member held that the same is flawed and is devoid of any merits. The court held that the Section 389(1) read with Section 374 of the CrPC confers powers in the Appellate Courts to reverse the decision of the Trial Courts as well as stay the conviction and the execution of the sentence. Therefore, to construe that the stay of conviction does not have any effect on the order of conviction issued beforehand by the Trial Court will be a contempt of the very procedure ingrained within the Criminal Procedure Code.

The court further relied on the landmark verdict of Navjot Singh Sidhu vs. State of Punjab (2007). The court, hence, held that under Section  389 of CrPC, the Appellate Court is well within its contours to order for a stay on the conviction but condition applied that the convict appellant needs to satisfy the court of the consequences that may follow against him or her if such a stay order is not passed thereof. 

The court stated that it is true that a stay of conviction should be granted in special cases, and this is not the rule and is to be used in rare cases where the situation so requires or demands. The Hon’ble Bench held that the impugned case is such a rare one in which the District and Sessions Court of Lucknow as well as the High Court of Allahabad has not only stayed the execution of sentence but has also put a stay on the conviction order of the convict respondent No. 2. The bench held that as the conviction itself is stayed by the Appellate Courts after due consideration of material facts and circumstances of the case the same dilutes the disqualification of the convict respondent. 

Adjudicating on whether a stay order has any effect on the prior disqualification of a member or not, the court relied on the decision of Ravikant S. Patil vs. Sarvabhouma S. Bagali (2006). The bench held that when a stay order is passed on conviction, the same has an effect on the disqualification of the member so convicted. It held that the stay order basically dilutes the prior disqualification based on the conviction. It was held that the convict respondent and his disqualifications ceased to operate when the District and Sessions Court of Lucknow, considering the special circumstances, granted a stay on the conviction. Further, the same was held by the High Court of Allahabad, and hence, the disqualification for the time is diluted and the member is not obliged to vacate his seat. He has all the right as a respected member of the Uttar Pradesh State Assembly to continue as its member unless and until the stay order is revoked.

Therefore, the disqualification under sub-sections (1), (2), or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the CrPC (powers conferred on the District and Sessions Court) or the High Court under Section 482 (appellate jurisdiction of the High Court in case of criminal matters) of the CrPC . 

Relevant judgements referred in the case

B.R. Kapoor vs. State Of Tamil Nadu And Anr (2001)

In this impugned case, it was opined by the Hon’ble Supreme Court that under Section 389 of CrPC, the Appellate Courts have the power to stay the execution of a sentence of the Lower/Trial Court. This decision has been relied upon by the petitioner to substantiate its claim that the Appellate Courts do not have the power to order a stay on conviction and the power is rather confined to order a stay only on the execution of the sentence.

Rama Narang vs. Ramesh Narang (1995)

In this impugned case, the Hon’ble Supreme Court had held that the Appellate Courts nevertheless have the power to order a stay on the execution as well as that of the conviction. But the latter is to be used or passed by the Appellate Courts in rare cases where the convict appellant may face serious repercussions if a stay order to that effect is not passed. This Case was relied upon by the Hon’ble Bench in the present case to determine the scope and ambit of Section 389 of the CrPC.

Navjot Singh Sidhu vs. State Of Punjab & Anr (2007)

In this case, a two judge bench of the Supreme Court held that a stay order on conviction shall be resorted to by the Appellate Courts only in rare cases where the repercussions of not passing a stay order will be adversarial to the convict appellant. This Case was referred to by the Hon’ble Bench in the present case to adjudicate on the validity of the stay order passed by the District and Sessions Court Lucknow under Section 389 of the CrPC.

Analysis of the case

This case serves as a landmark precedent on the powers of the Appellate Courts under the CrPC. The court has shed light and cleared the standing as far as the power of stay under Section 389 of CrPC is concerned. The court made it clear that Section 389 of the CrPC doesn’t only confer the power to stay the execution of sentence ordered by a Trial Court by the Appellate Courts but also that the provision is quite wide in its scope and ambit and provides the Appellate Courts to order a stay on the conviction in case of special/rare circumstances where the same seems necessary to protect the rights of the convict appellant. The case also sheds light on Section 8 of the Act.

It makes it clear that a member ought to be disqualified from the membership of the Parliament or that of the State Legislature in case he or she gets convicted of any offence mentioned within Section 8 of the Act. Further, the case serves as a precedent on the effect of stay. It asserts the position that when a stay order on conviction is passed by the Appellate Courts, the prior consequences which arise out of the said conviction will automatically get diluted or imperative as a matter of the stay order. In the impugned case, the same happens with the disqualification of the convict member of the U.P state assembly. His disqualification was revoked as a matter of a stay order passed by the District and Sessions Court Lucknow under Section 389 of the Criminal Procedure Code.

Conclusion

The case marks its inception with the disqualification of a member of the Uttar Pradesh State Assembly on the ground that he has been involved with offences under Sections 353, 504 and 506 of the Indian Penal Code, 1860. He further appeals in the District and Sessions Court, Lucknow being aggrieved by the decision of the lower court. After having a strict scrutiny of the facts and circumstances of the case, the District Court passes a stay order on his conviction which dilutes his disqualification from the State Assembly. Now aggrieved by this stay order and the revocation of disqualification by the District and Sessions Court Lucknow, an organisation named Lok Prahari filed a writ petition in the High Court of Allahabad to consider the decision of the District and Sessions Court. 

The High Court rejecting the petition upheld the decision of the District and Sessions Court. Aggrieved by this, the Petitioner approached the Supreme Court under Article 32 of the Constitution and filed a Public Interest Litigation contending that the Appellate Courts do not have the power to pass a stay order on conviction and that the disqualification cannot be revoked even if a stay order to that effect is passed. The Supreme Court after a close scrutiny and consideration of the material facts and circumstances of the case, upheld the decision of the Allahabad High Court and opined that the petition of the petitioner is devoid of any merits and is to be hereby dismissed. 

The case after a strict analysis makes a clear statement that provision of a statute has to be interpreted keeping in mind its scope and purpose. This case makes it clear that a stay order has wide repercussions and is generally to be granted in rare circumstances. To construe that a stay order by the Appellate Courts does not have the power of dilution of a previous conviction by the lower courts will be interfering with the statutory intent of Section 389 of the CrPC. On a concluding note, the case serves as a testament to the interpretative power of the Supreme Court and clears the ambiguity with regard to Section 389 of the CrPC. 

Frequently Asked Questions (FAQs)

What was held in the case of B.R Kapoor vs. State of Tamil Nadu (2001)?

In the landmark case of B.R Kapoor vs. State of Tamil Nadu, it was held by the Hon’ble Supreme Court that under Section 389 of the CrPC (Section 430 of BNSS), the Appellate Courts have the power to order a stay on the execution of the sentence of the convict appellant till the matter is properly adjudicated upon.

What is the scope of Section 389 of the CrPC?

Section 389 of the CrPC (Section 430 of BNSS) provides powers of suspension and stay to the Appellate Courts in case of conviction of the convict appellant. The impugned case revolves primarily around this provision of CrPC and clears certain ambiguities with regard to its scope and ambit. The bench in the impugned case holds that u/s 389 of CrPC, the Appellate Courts have the power to order stay on execution as well as on the conviction of the convict appellant. 

References

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