26 April 2023 9:27 AM GMT
A plea has been moved in the Supreme Court challenging the restoration of Lakshadweep MP Mohammed Faizal Khan's Lok Sabha Membership. His membership was restored last month in view of the Kerala High Court suspending his conviction, on January 25, in an attempt to murder case.The plea moved by Lucknow-based Advocate Ashok Pandey contends that once a member of Parliament or of a state...
A plea has been moved in the Supreme Court challenging the restoration of Lakshadweep MP Mohammed Faizal Khan's Lok Sabha Membership. His membership was restored last month in view of the Kerala High Court suspending his conviction, on January 25, in an attempt to murder case.
The plea moved by Lucknow-based Advocate Ashok Pandey contends that once a member of Parliament or of a state legislature loses his office by operation of Law in Article 102, 191 of the Constitution r/w section 8 (3) of the Representation of People Act 1951, he will continue to be disqualified till he is acquitted from the charges levelled against him by some higher court.
Against this backdrop, the plea argues that once MP Faizal Khan lost his Lok Sabha membership, after being convicted under section 307 IPC (attempt to murder) and was awarded ten years sentence, the Speaker of the Lok Sabha was not right in restoring back his lost membership.
Importantly, the petition also seeks issuance of a writ of quo warranto thereby asking Mohammad Faizal Khan, as to under what authority of law he is holding the office of Membership of the Lok Sabha in spite of being disqualified for being chosen as or for being, a member of Parliament in view of provisions contained in article 102 r/w section 8 (3)of the Representation of People Act 1951.
The petition also pleads that the Supreme Court should to decide the issue as to whether the conviction of an accused can be stayed by the court of appeal and whether on the basis of such a stay on conviction, a person who has suffered disqualification, will become qualified to choose as or for being a member of Parliament or State legislature.
The plea argues that Section 389 of CrPC only permits the court of appeal hearing an appeal against conviction and sentence to suspend the sentence and release the appellant on bail, but, it doesn't permit the court of appeal to suspend the conviction.
"MP Mohammed Faizal was disqualified by operation of law from the date on which he suffered conviction under section 307 IPC and was sentenced to ten years RI. The order of the Speaker was merely a formal order through which the vacancy of the office of membership of Mohammad Faizal Khan from the office Lok sabha was notified Mohammad Faizal Khan is disqualified from being chosen as or from being a member of Parliament and state legislature till his conviction is not set aside by the court of appeal and so to restore his membership and to permit him to continue to work as Member of Parliament is in clear violation of article 102 r/w section 8 (3) of the R P Act 1951," the plea submits.
Here, it is important for our readers to note that as per the Supreme Court's ruling in the case of Lok Prahari vs. Election Commission of India and others (2018), once the conviction of an MP or MLA has been stayed by the appellate court under section 389 of the CrPC, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People’s Act, 1951 will not operate.
In this case, it was specifically held that once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction, cannot take or remain in effect.
It may be noted that MP Faizal was convicted by a sessions court in Kavaratti and sentenced to 10 years in prison for attempted murder. Following his conviction, he was disqualified by the Lok Sabha Secretariat from the Lower House of Parliament.
The disqualification was in terms of Article 102 (1) (e) of the Constitution of India read with Section 8 of the Representation of the People Act 1951. The 1951 Act provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more and shall continue to be disqualified for a further period of six years after his release.
Thereafter, challenging his conviction MP Faizal moved the Kerala HC, wherein his conviction was suspended. However, since his suspension was not revoked by the Lok Sabha, MP Faizal filed a petition in the Supreme Court challenging the refusal of the Lok Sabha Secretariat to withdraw the decision to disqualify him, even after his conviction has been stayed by the High Court. Following this, his membership was restored by the Lok Sabha Secretariat on March 29 ahead of the hearing of his case before the Supreme Court.
A petition filed by the Union Territory of Lakshadweep Administration challenging the High Court's order suspending Faizal's conviction in an attempt to murder case is pending before the Supreme Court.