by Tanuj Agarwal, 3rd year (Batch 2017-2022) B.Com. LL.B. (Hons.), Institute of Law Nirma University, Ahmedabad
Subtitle: Section 8 of Representation of the People Act, 1951 aims to discard candidates convicted of certain offences from contesting an election. However, it raises important concern pertaining to the right to contest election when such a conviction is stayed by the appellate court.
The Representation of the People Act, 1951 (hereinafter “RPA, 1951”) is an act enacted by the Indian Parliament to impart the administration of the election of Centre and State legislatures. It lays down disqualifications and qualifications of members for affiliation of those Houses. Further, the act also enunciates corrupt practices and different offences at or regarding elections.
Specifically, Section 8 of RPA, 1951 states the grounds for disqualification on conviction of certain offences pursuant to Section 8 of RPA, 1951, in case the candidate is convicted of certain offences specified under sub-section (1) (2) (3) of Sec. 8 and sentenced to indicated fine or imprisonment, then such a candidate is disqualified from being a member of either house of Parliament or State Legislature from the date of such conviction till the stated time.
Identification of lacuna under section 8 of RPA, 1951
Section 8 of RPA, 1951 indisputably extends to the cases in which the court has convicted a person of certain offence where the sentence of fine or imprisonment has been passed and thereby disqualified him from being a member of the legislature. However, Section 8 of RPA, 1951 does not deal with the condition where there is a stay on the order of conviction by the appellate court. Section 482 of Criminal Procedure Code, 1973 empowers the High Court to order a stay on conviction in exceptional cases. Moreover, in the case of Rama Narang v Ramesh Narang, the court held that section 389 (1) of Cr.P.C also empowers the appellate court to stay the conviction. Thereby, it is undeniable that the court has the power to put the stay on the execution of sentence as well as to stay the order of conviction itself. In the case of Manpreet Kaur and others v. State of Punjab, it is stated that such an order of stay of conviction renders the conviction “non-operative”. The conviction order which is non-operative in nature does not come within the ambit of Section 8 of RPA, 1951 since it only extends to the persons who are convicted and sentenced to prescribed fine or imprisonment. Consequently, Section 8 of RPA, 1951 does not give effect to subsequent order by the appellate court to put a stay on the order of conviction passed by the lower court. Such subsequent order of stay on conviction restores a presumption of innocence in favour of a candidate which consequently directs the case outside the preview of Section 8 of RPA, 1951. Therefore, there is a lacuna under Section 8 of RPA, 1951 that leads to such a case being in-effectuated by the prescribed disqualifications.
Filling the lacuna under section 8 of RPA, 1951
Since there is a lacuna in RPA, 1951 regarding subsequent order of stay of conviction by the appellate court in case of disqualifications mentioned under Section 8 of the Act, the pertinent concern is as to the effect of a prior order of conviction by the lower court. Whether such an order of stay of conviction applies prospectively or retrospectively from the date of order of conviction. If the subsequent order is applicable prospectively, then the candidate is only eligible to participate in the further election after such an order passed. In the same way, it will disqualify such an elected candidate who is elected after the conviction order passed by the lower court but before such order subsequently stayed by the appellate court.
To resolve such a concern there is a need to deliberate upon the effects of stay of conviction by the appellate court. With that regard, the Supreme Court in the case of Navjot Singh Sidhu v State of Punjab held that:
“The legal position is, therefore, clear that an appellate Court can suspend or grant stay of order of conviction. But the person seeking stay of conviction should specifically draw the attention of the appellate Court to the consequences that may arise if the conviction is not stayed. Unless the attention of the Court is drawn to the specific consequences that would follow on account of the conviction, the person convicted cannot obtain an order of stay of conviction. Further, grant of stay of conviction can be resorted to in rare cases depending upon the special facts of the case.”
Consequently, if the appellate court orders a stay of conviction, there must be special facts in a case. Moreover, in the case of Ravikant S Patil v Sarvabhouma S Bagali, the Supreme Court stated that where there is an order of stay of conviction, the High court has a special reason to believe the innocence of previously convicted candidate. Thereby, the disqualification on the grounds of conviction mentioned under sub-section (1), (2) or (3) of Section 8 of the RPA, 1951 will not operate if the appellate court has passed the order of stay of conviction under Section 389 or Section 482 of Criminal Procedure Code.
As the disqualification is inoperative by way of stay on order of conviction, such an effect should be followed retrospectively from the date of order of conviction by the lower court. In this regard, the Supreme Court in the case of Lok Prahari v. Election Commission of India, held that where there is an order of stay of conviction itself as against a stay of execution of the sentence, the disqualification under Section 8 of the Act becomes “retrospectively inoperative”. Such stay of conviction ensures that conviction on untenable or frivolous grounds cannot cause serious prejudice to the candidate as has been deliberated in the case of Lily Thomas v. Union of India. In the case of Jyoti Basu v. Debi Ghosal, the Right to Contest an Election is recognized as a statutory right in the Indian regime. Moreover, the election procedure must be fair, impartial & fearless. Thereby, frivolous conviction should not cause prejudice by not sanctioning a candidate to contest the election. In case a candidate is held disqualified even if there is a stay on conviction, there will be an evident violation of right to contest election if the conviction came out as frivolous. Therefore, the disqualification under Section 8 of the Act shall be applied retrospectively and cease to operate after the order of stay of conviction.