Law breakers cannot be Law makers anymore; Supreme Court declares Section 8(4) of the Representation of the People Act Unconstitutional

Law breakers cannot be Law makers anymore; Supreme Court declares Section 8(4) of the Representation of the People Act Unconstitutional

The Supreme Court today struck down sub section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution. This particular section protects convicted legislators against disqualification on the ground of pendency of appeal against their conviction in the higher courts.

The section read as follows:

8. Disqualification on conviction for certain offences:-

(4)Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3)], a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.


A two judge Bench comprising of Justices A K Patnaik and Sudhansu Jyoti Mukhopadhaya said, “Once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution.”

The Court further said, “Sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.”

Fali S Nariman, was the Senior Counsel appearing for the petitioners, while Additional Solicitor General, Siddharth Luthra appeared for the Government of India.

Live Law had earlier reported that the Law Commission of India has sought views of the political parties, civil society, experts and other stakeholders on Electoral Reforms; and the main area of concern is criminalisation of politics. As per the National Election Watch and Association For Democratic Reforms (ADR) “Report on criminal and financial details of the MPs of 15th Lok Sabha (2009)”, there were 450 tainted constituencies where at least one tainted candidate (candidate having criminal background) contested the elections.