It was a near-miss of sorts. On Jan 18, 2023, the Election Commission of India (ECI) announced a bypoll for the Lakshadweep parliamentary constituency, with Feb 27 set as the polling date. This decision arose from the conviction of the island’s incumbent MP, Mohammad Faizal, in an attempt to murder case, with a 10-year jail sentence imposed by a Kavaratti court. Thankfully, the poll notification had to be scrapped as the high court issued a stay on his sentence as well as halted his conviction.
Faizal got disqualified again in Oct 2023, only to make another comeback the same month after the Supreme Court stayed his conviction. While he has now peacefully completed his MP term in the 17th parliament, his appeals are pending. So what is the near-miss here? What, do you think, would have happened had the ECI held by-elections to Lakshadweep constituency, as scheduled on Feb 27, 2023? By the time Faizal got the reprieve from the courts and got reinstated as MP, there could have been another MP occupying the seat. Lakshadweep and Parliament would have been staring at an unconstitutional situation of one constituency having two elected representatives.
The case of Congress leader Rahul Gandhi too was similar but did not reach the bypoll notification stage. On March 23, 2023, a court in Surat convicted the Congress leader in a criminal defamation case and imposed a two-year jail term. The next day, the Lok Sabha secretariat notified his disqualification as an MP by invoking Section 8 of the Representation of the People Act, 1951. After a sessions court and the Gujarat high court declined to stay his conviction in April and July 2023, the Supreme Court stayed his conviction on Aug 4 of that year, pending appeals. Three days later, the Lok Sabha Secretariat reinstated Rahul Gandhi as Wayanad MP. He too has now completed his term while his appeals are pending.
The third near-miss is that of DMK strongman and former minister K Ponmudy, who lost his ministership and MLA post on Dec 21, 2023, when the Madras high court imposed a three-year jail term and `50 lakh fine on him in a disproportionate assets case. Irrespective of the length of his sentence, he attracted instant disqualification as it was for offences punishable under the Prevention of Corruption Act. On Jan 11, the Supreme Court stayed his conviction and sentence, prompting the ruling DMK to write to the Tamil Nadu governor recommending Ponmudy’s reinduction to the state cabinet. Meanwhile, state assembly Speaker has recommended that his Thirukovilur assembly constituency be declared vacant. The recommendation has since been recalled by the Speaker.
If three such cases in a year are too much, the involvement of courts, the Election Commission of India, and the parliamentary or assembly secretariat in these cases is too dangerous if left unaddressed. Convicted public servants incur disqualification under Article 102(I)(e) of the Constitution and Section 8 of the Representation of the People Act, 1951, if the sentence is two years or more. In the case of conviction in a Prevention of Corruption Act, the length of the sentence does not matter. A mere conviction is followed by disqualification.
These near-misses are due to a court-made grey area. Staying conviction was neither the norm nor normal — at least not this frequently — till the Mohammad Faizal case. In criminal jurisprudence, a suspect is treated as innocent till proven otherwise. Also, when the convict goes on appeal, higher courts suspend the sentence as a rule because they want to ensure that a person does not end up spending much of his sentence in jail before a final word is said in the case. But that was the sentence part. Stay of conviction was a rarity both for public servants and govt employees who suffered reverses in trial courts. Once the conviction too is stayed, the trial court verdict is suspended in its entirety, prompting the convict concerned to seek reversal of the disqualification.
So, courts, assembly/ parliamentary secretariat, and the ECI must make haste slowly. They have to strike a balance between enabling a convicted public servant to reoccupy their office pending appeals and declaring the seats vacant, risking two elected representatives for the same constituency. When should the vacancy be notified and how should the pending appeals be handled?
While disqualification from contesting elections or holding public positions could be instant post an order of conviction and requisite sentence, notifying the seat as vacant and proceeding to hold a bypoll should await final orders from the Supreme Court, no less. Otherwise, sooner or later a constitutionally awkward situation will arise where a constituency will have two elected representatives.
It is not just a theoretical possibility. Lakshadweep came close to that situation a year ago. And since then two more cases — that of Rahul Gandhi and Ponmudy — traveled a bit in the same direction. While the Supreme Court cannot afford to delay giving finality to appeals once it stays the conviction and allows the politician to reoccupy his elected post, the ECI has to await a final verdict from the Supreme Court to notify bypolls to seats that fall vacant due to disqualification arising out of conviction.
