Sample: Representation of People Act

                                                              INTRODUCTION

We, the people of India, constituted India into a democratic republic on 26^th November 1949.

Elections are the bulwark of a democratic republic. Article 324 of the Constitution entrusts this work of elections to the Election Commission.

This work comprises of 2 essential components:

1. Preparation and revision of electoral rolls
2. Conduct of elections

To facilitate and regulate this work, Parliament has enacted two laws by the same name. Thus we have not one but two different Representation of the People Acts, one enacted in 1950 and the other in 1951. While the 1950 Act deals with preparation and revision of electoral rolls, the 1951 Act deals with actual conduct of elections.

A very significant salient feature of the 1951 Act concerns itself with disqualification of members of Parliament and State Legislatures. The Act prescribes 6 different types of disqualifications.

 

                                            REPRESENTATION   OF   THE   PEOPLE   ACT   1951

                                                                       SALIENT  FEATURES

 Disqualifications  for  Members of  Parliament  and  State Legislatures

Note:

• These disqualifications have been prescribed by the Parliament
  • under authority of Articles 102 and 191 of the Constitution of India
• Article 102 empowers Parliament
  • to prescribe disqualifications for members of Parliament
• Article 191 empowers Parliament
  • to prescribe disqualifications for members of State Legislatures

 

Disqualifications for conviction under IPC, RPA and other laws:

Categories of convictions-

There are three categories of convictions:

(1)

• Offences of serious nature,
  • where even fine without imprisonment
  • is enough to cause disqualification
• These offences are specified in Section 8(1)

(2)

• Offences of less serious nature
  • where disqualification would be incurred
  • only if imprisonment of 6 months or more is awarded
• These offences are specified in Sec 8(2)

(3)

• All other offences:
• Disqualification would be incurred
  • only if imprisonment of 2 years or more is awarded.
• These offences are specified in Sec 8(3)

 

Applicability of  disqualifications

These disqualifications apply to four different categories of persons:

(1)        Those who want to contest elections for Parliament

(2)       Those who are already members of Parliament

(3)       Those who want to contest elections for State Legislatures

(4)       Those who are already members of State Legislatures

Special treatment

Special treatment for existing members of Parliament and State Legislature has been specified in Sec 8(4).

This special treatment has now been struck off by the Supreme Court in 2013 in Lily Thomas v. Union of India and Lok Prahari v. Union of India, being discriminatory, and thus unconstitutional.

 

Statutory provisions in detail

Section 8 (1)

• A person convicted of
• certain offences under IPC relating to
  • women [rape, cruelty]
  • elections [bribery, undue influence]
  • and social harmony [promoting enmity between different groups]…

• A person convicted
• of an offence under specified sections of
  • Protection of Civil Rights Act
  • Unlawful Activities (Prevention) Act
  • Narcotic Drugs and Psychotropic Substances Act…

• A person convicted of an offence under
  • Sections 125, 135, 135A or 136 of this Act [ promoting enmity between classes , removal of ballot papers, booth capturing]
  • Commission of Sati (Prevention) Act
  • Prevention of Corruption Act…

• shall be disqualified
  • for six years from the date of such conviction
    • where he is sentenced to only fine
  • from the date of such conviction till six years since his release
    • where he is sentenced to imprisonment

• “disqualified” means
• disqualified for being chosen as, and for being
• a member of either House of Parliament or Legislature of a State

Section 8(2)

• A person convicted for contravention of
  • any law for prevention of hoarding or profiteering
  • any law relating to adulteration of food or drugs
  • any provision of Dowry Prohibition Act 1961
• and sentenced to
  • imprisonment for 6 months or more
• shall be disqualified
  • from the date of such conviction and
  • shall continue to be disqualified till six years since his release

Section 8(3)

• Where sub-section (1) or (2) is not applicable:
• A person
  • convicted of any offence and
  • sentenced to imprisonment for two years or more
• shall be disqualified
  • from the date of such conviction and
  • shall continue to be disqualified till six years since his release

Section 8(4)

• A disqualification under this section
  • in case of a person who on the date of conviction
  • is a member of Parliament or Legislature of a State
• shall not take effect
  • until three months have elapsed from that date
• or if within that period an appeal is brought:
  • until that appeal is disposed of by the court

Note:

• This special provision [section 8(4)] for sitting MPs and MLAs
  • has been struck off by the Supreme Court in 2013
• being discriminatory, and thus unconstitutional

 

                      Disqualifications  for  corrupt  practices  in  elections

Section 8A

• The case of every person
  • found guilty of corrupt practice by High Court u/s 99
• shall be submitted to the President
• for determination
  • whether such person shall be disqualified
  • and if so, for what period

• The period for which
  • any person may be so disqualified
• shall in no case exceed six years
  • from the date on which the order u/s 99 takes effect

• Before giving his decision:
• the President
  • shall obtain opinion of the Election Commission
  • and shall act according to such opinion

 

                       Disqualification  for  corruption  or  disloyalty

Section 9

• A person who having held an office

• under Govt of India or Govt of any State
• has been dismissed
  • for corruption or for disloyalty to the State
• shall be disqualified
  • for five years from the date of such dismissal

• A certificate issued by Election Commission
  • that a person has or has not been so dismissed
  • for corruption or disloyalty to the State
• shall be conclusive proof of the fact

 

                          Disqualification  for  Govt  contracts

Section 9A

• A person shall be disqualified
  • if, and for so long as, there subsists a contract by him with appropriate Govt
• in course of his trade or business
  • for supply of goods to that Govt or
  • for execution of any works by that Govt

 

                        Disqualification  for  office  under  Govt  company

Section 10

• A person shall be disqualified
  • if, and for so long as, he is a manager or secretary
• of any company other than a cooperative society
  • in the capital of which appropriate Govt has 25% or more share

 

                      Disqualification  for  failure  to  lodge  account  of  election  expenses

Section 10A

• If Election Commission is satisfied that a person
• has failed
  • to lodge an account of election expenses
  • within the time and in the manner required by this Act and
• has no good reason or justification
  • for the failure
• the Election Commission shall
  • by order published in Official Gazette
• declare him to be disqualified
  • for three years from the date of order

 

                         Removal or reduction of disqualifications

Section 11

• The Election Commission may
  • for reasons to be recorded
• remove any disqualification
  • under this Chapter except u/s 8A or
• reduce the period of any such disqualification

 

 

                                    Extract of the Supreme Court Judgment in

            Lily Thomas v. Union of India    and   Lok Prahari v. Union of India

Date of Judgment:    10^th July 2013

These two writ petitions have been filed as Public Interest Litigations for mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution.

Articles 102(1)(e) and 191(1)(e) of the Constitution have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State.

A reading of Articles 102(1)(e) and 191(1)(e) of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State.

“The same set of disqualifications for election as well as for continuing as a member”.

Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.

Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.

                                                                   ***********

 

                           Frequently asked questions about the judgment and its effect:

Q 1.

• What is the crux of this judgment?

Ans. 1

• This judgment has declared
  • section 8(4) of the RP Act
  • as ultra vires the Constitution

Q 2.

• What is the effect of this judgment?

Ans. 2

• Earlier, as per section 8(4)
  • a sitting MP/MLA, if convicted, could continue to remain in office
  • by filing an appeal against the conviction

• Now, after the judgment
  • if a sitting MP/ MLA is convicted of an offence
  • he shall be immediately disqualified
  • and the seat shall be declared as vacant

Q 3.

• Would a member be disqualified
  • even if he is sentenced to imprisonment for less than 2 years?

Ans. 3

• A member sentenced to imprisonment
  • for less than 2 years shall be disqualified
  • only if his case is covered by sections 8(1) and 8(2)
• That means
  • if he is convicted of offences mentioned in these two subsections only
  • and not otherwise
• For other offences
  • imprisonment of 2 years or more is required to incur disqualification

Q 4.

• Will this judgment apply
  • also to those MPs and MLAs
  • who were convicted earlier?

Ans. 4

• No
• This judgment
  • shall not have retrospective effect
• It would apply only to those sitting members
  • who get convicted on and after the date of this judgment
  • e. 10th July, 2013

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