GS2 PYQ (Mains Answer Writing): RPI 1951 | Indian Polity for UPSC CSE PDF Download

On what grounds a people's representative can be disqualified under the representation of people act, 1951? Also, mention the remedies available to such person against his disqualification. (UPSC GS2 Mains)

Introduction
The act is pivotal in preventing criminals from being elected as representatives, is always quoted by Supreme Court and High Court in various judgments. Sections 7 to 11 of the act deal with the disqualification of representatives.
A person can be disqualified on below grounds: 

• Disqualification on conviction for certain election offences and corrupt practices in the election. (Section 8) 
• Disqualification on conviction for certain offences. 
• Disqualification on ground of corrupt practices. (Section 8A). 
• Disqualification for dismissal for corruption or disloyalty. (Section 9). 
• Disqualification for Government contracts, etc. (Section 9A) 
• Disqualification for office under Government company (Section 10) 
• Disqualification for failure to lodge account of election expenses. (Section 10 A) Section 8 of the Representation of Peoples Act 1951: Section 8 deals with the Disqualification of representatives on conviction for certain offences.

This section states that: 

• 1 A person convicted of an offence punishable under certain acts of Indian Penal Code, Protection of Civil Rights Act 1955, Unlawful Activities (Prevention) Act 1967, Prevention of Corruption Act 1988, Prevention of Terrorism Act 2002 etc. shall be disqualified, where the convicted person is sentenced to — (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. 
• 2 A person convicted for the contravention of—(a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961. 
• 3 A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release. 
• The controversial Section 8(4) clause of the Representation of Peoples Act which was struck down by the Supreme Court calling the Act ultra-vires of the Constitution and providing for disqualification of MPs/MLAs on the day of their convictionIn July 2013: SC upholds Patna high court judgment debarring persons in judicial and police custody from contesting elections (section 62 (5) of the representation of the people act 1951). 
• Convicted or not, rule applies to those in jail and police custody; not applicable to those out on bail. The Bench said: “We have heard counsel for the political parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of Section 62 (5) of the Representation of the People Act 1951 is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State. 
• The remedies available to such person against his disqualification: The Representation of the People Act, 1951 specifies the qualifications and the disqualifications of Members of Parliament and state legislatures. In particular, the first three subsections of Section 8 list various offences, and state that anyone who has been convicted of these offences is disqualified. 
• The remedies lie in the appeal to court but it has also two issues involved: Subsection (4) carves out an exception for sitting legislators: it states that the disqualification for sitting legislators will not take effect for three months from the date of conviction, and if the convicted person files an appeal within this period, the disqualification will not be effective until the superior court decides the appeal. In effect, if a person is not a legislator, then he is immediately disqualified from contesting elections. 
• On the other hand, if he is a sitting legislator, his disqualification kicks in with a lag, which could be as long as the court takes to decide his appeal. 

Conclusion

• There have been various objections to this differential treatment. In January 2005, while examining a different issue related to this Section, a five-judge Constitution Bench of the Supreme Court also looked into the question of whether this non-uniform treatment violated Article 14 of the Constitution, which guarantees equality before law.
• The Court said that the objective of including this provision was not to protect the rights of a sitting member but to protect the “very existence and continuity of a House democratically constituted”. They pointed out two undesirable consequences if a sitting member were to be disqualified immediately on conviction and sentencing. If the government had a “razor-edge thin majority”, a disqualification could “have a deleterious effect on the functioning of the government”. 
• Also, the disqualification may lead to a bye-election, which may be a futile exercise if the convicted member is acquitted by a superior court. They said that it was legitimate for the legislature to make two classes for the purpose of disqualification, if had nexus with a public purpose that was sought  to be achieved. Therefore, such classification could not be judged as impermissible under Article 14.

Topics covered - RPI Act 1951