[Solved] 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 GS-2 Mains 2019)

The act is pivotal in preventing criminals 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 disqualification of representatives.The Representation of the People Act, 1951 is an act of Parliament of India to provide for the conduct of election of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections.

 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.(section8A).

 • Disqualification for dismissal for corruption or disloyalty.(Section9).

 • Disqualification for Government contracts, etc.(Section9A)

 • Disqualification for office under Government company(section10)

 • Disqualification for failure to lodge account of election expenses.(section 10 A) Section 8 of Representation of Peoples Act 1951: Section 8 deals with 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 conviction.

 Section 8 deals with Disqualification of representatives on conviction for certain offences. This section states that:

 ● 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.

 ● 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.

 ● 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.

 ● 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 conviction.

 ● Section 10 provides for disqualification for office under Government Company: A person shall be disqualified if, and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a cooperative society) in the capital of which the appropriate Government has not less than twenty-five per cent share.

 ● Section 10A: disqualification for failure to lodge account of election expenses.

 Remedies available to such person against his disqualification:

 ● The court has been tightening its grip on corruption in politics from 2013 when it first held that legislators, on conviction, would be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before. Before this verdict, convicted lawmakers would file an appeal in the higher court and continue in the House.

 ● In Lily Thomas v. Union of India, the Supreme Court declared Section 8 (4) of the Representation of the People Act, 1951, (RPA) which allowed legislators a three-month window to appeal against their conviction — effectively delaying their disqualification until such appeals were exhausted — as unconstitutional.

 ● 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).

 ● the Supreme Court recently decided to lay down the law on whether the country should even wait until a corrupt legislator is convicted to have him disqualified from Parliament or Assembly or should be disqualified at the very stage of framing of charges against him by the trial court.

 ● However, it is mentioned in section 11 of RPA, 1951 that election commission may, for the reason to be recorded, remove any of the above disqualification except under section 8A or reduce the period of any such disqualification.

 In 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.

 Elections are the life blood of any democracy. The robustness of electoral processes determines the fate of the nation. The timely reforms to the electoral process by ECI, according to the changing needs of the society and the strong review of the judiciary have helped in conduction of free and fair elections till date.

 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”.

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