An Article 14 Examination of Section 8A of the Representation of the People Act, 1951
Authored by Eiha Verma, a 3rd-year law student at National Law University, Odisha
Abstract
This article critically analyses the differential treatment of elected representatives convicted of offences under Section 8 and corrupt practices under Section 123. The Supreme Court in the case of Lily Thomas v. Union of India (2013), pronounced that the three-month time period provided to Members of Parliament and Members of Legislative Assembly after being convicted of criminal offences which are mentioned under Section 8 is against the Constitution's basic ideals, but the same still exists for elected representatives convicted of corrupt practices. However, this classification does not pass the test of rationality.
Introduction
In the 18th Lok Sabha (2024), out of the total candidates contesting in the election, 46% of the winning candidates had criminal cases pending against them. This has been a persistent trend since the inception of democratic India. The matter of grave concern is the rising number of people voting in favour of these candidates and the increasing presence of individuals with criminal backgrounds in Parliament. According to a report published by the Association for Democratic Reforms (ADR) following the 2024 General Elections, a total of 46% of the sitting Members of Parliament or Legislative Assembly (hereinafter, 'MP' is used for both MPs and MLAs) had criminal charges and out of this 31% faced charges of grave offences like murder, rape, etc. These representatives can be disqualified by or under any law made by the Parliament under Article 102(1)(e) of the Constitution. One of these laws is The Representation of the People Act, 1951. Section 8 of this Act lays down certain grounds for disqualification. However, prior to 2013 this disqualification did not come into effect till 3 months. During this time, according to Section 8(4) of The Representation of the People Act, 1951, these convicted MPs could file an appeal against the order of conviction and the disqualification would be delayed till the matter was adjudicated by the Court. This particular provision was declared ultra vires by the Hon'ble Supreme Court of India in Lily Thomas v. Union of India (2013).
Constitutional Background
Before examining the constitutional validity of section 8A, it is imperative to understand the reasoning adopted by the Hon'ble Supreme Court of India in Lily Thomas v. Union of India since that constitutes the premise of the present argument. The Court adjudicated on two main issues: first, whether the Parliament had any authority to legislate such a provision; and second, whether the provision was constitutionally valid. The Court held that the Parliament lacked the authority to postpone the disqualification as
Regarding the first issue, it was held that Article 102(1)(e) of the Constitution only bestows the Parliament with law-making powers with respect to grounds for disqualification, it does not endow the Parliament with powers to delay the disqualification. The Court favoured the arguments of the petitioner. Article 101(3) of the Constitution states that the seat of a disqualified MP becomes vacant thereupon his disqualification. The court interpreted the use of ‘thereupon’ as immediately after conviction and also stated that any delay would defy constitutional provisions. Additionally, the convicted MP retains the remedy to file an appeal under Section 430(1) of the Bharatiya Nagarik Suraksha Sanhita, 2023 against the conviction order. The Court decided in favour of the petitioner, declaring Section 8(4) unconstitutional.
Article 101 (3) applies to disqualifications arising under Article 102. Article 102 (1)(e) clearly states that disqualification includes any person disqualified under any law made by the Parliament. The reasoning stated by the Supreme Court should apply to MPs disqualified for being guilty of corrupt practices as well. However, these MPs are shielded from swift disqualifications as section 8A provides for an elaborate process unlike section 8.
Section 8A is a result of the Election Laws (Amendment) Act 1975 which replaced the earlier provision governing disqualification for corrupt practices. It was brought after the judgment of Indira Nehru Gandhi v. Raj Narain (1975) to combat corrupt practices during elections. The Parliament has acknowledged that simplification of the procedure for disqualification of a person guilty of corrupt practices is needed. However only introducing a time limit does not simplify the procedure. The possible legislative intent behind the introduction of a separate and elaborate process for disqualification of a person guilty of corrupt practices might have been done due to the difference in the procedure of election petitions and criminal offences. While examining the provision from this angle, it must be noted that disqualification only happens when the court hold the person guilty of such offence so the fact that FIRs are to be filed in criminal cases which are investigated by police and election petitions can be filed straight up does not affect the judgment given by the Court. Under sec 8A the disqualified person can also apply before the President for revocation of such disqualification. Sec 8 does not give convicted persons such opportunity.
Dissecting Sections 8a & 8(4)
The Supreme Court had upheld Section 8(4) in the K. Prabhakaran v. P. Jayaranjan judgment in the same year, prior to the Lily Thomas case. The Hon'ble Court held that the immediate disqualification of an MP could lead to a paper-thin majority, resulting in an unstable government. Additionally, upon disqualification, a by-poll has to be conducted within 6 months of the vacancy, as per Section 151A of the Act, subject to exceptional circumstances. Where the conviction order is overturned or a stay is granted, such a by-poll would render itself nugatory.
The constitutional concern that persists, even after Lily Thomas, is the unequal treatment afforded to acts committed under Section 8 and Section 8A. Any MP found guilty of corrupt practices by the High Court is not immediately disqualified as is the case under Section 8. The court order shall be forwarded to the President 'within a period of 3 months' whereby the President, on the advice of the Election Commission, shall decide upon the disqualification. The President also retains discretion as to whether the person shall be disqualified at all. This is structurally analogous to the provision of Section 8(4) which was struck down. Disqualification under Section 8A is discretionary, unlike under Section 8 where disqualification is mandatory and automatic upon conviction. This gives a clear implication that corrupt practices recognised under Section 123 are treated as inferior offences compared to those recognised under Section 8 that constitutes a clear violation of Article 14.
Moreover, corrupt practices have a closer nexus with elections, as they prima facie indicate that the MP does not represent the people through fair means. In contrast, conviction under Section 8 bears no immediate relation to the election itself. Disqualification under Section 8 is grounded in the moral connotations of criminality, the notion that a convicted person has committed an act of such gravity as to render them incompetent to represent the people. This strikes at the concepts of constitutional morality and constitutional trust.
Dr. B.R. Ambedkar, in the Constituent Assembly Debates, recognised the necessity of the diffusion of constitutional morality for the peaceful working of a democratic constitution. The Supreme Court has time and again emphasised that constitutional morality is a foundational pillar in a constitutional democracy. In Public Interest Foundation v. Union of India (2018), the Supreme Court held that the criminalisation of politics is against the principles of constitutional morality. To distinguish between Sections 8 and 8A would therefore be arbitrary, as both involve acts of immoral nature. It cannot be argued that Section 8 carries a higher intensity of moral turpitude than Section 8A because such an argument may only hold for grave offences and not for acts like criminal defamation.
Article 14 is further violated by extending the three-month window to MPs convicted of corrupt practices while denying the same to MPs convicted of criminal charges and giving the MPs guilty of corrupt practices an opportunity to apply for revocation of disqualification. There is no rational basis for such discriminate treatment, especially when the Hon'ble Court in Election Commission of India v. Saka Venkata Subba Rao recognised that there should be no discrimination in the treatment of sitting MPs and those about to contest. To test the validity of this classification, the Court in State of West Bengal v. Anwar Ali Sarkar laid down two criteria: firstly, the classification must be founded on rational grounds; and secondly, the classification must have a relationship to the objectives of the law.
Applying The Test of Rationality
Firstly, the inequality between criminal convicts under Section 8 and convicts of corrupt practices is not intelligible, rather arbitrary in nature. Criminal convicts are viewed through a lens of predisposed assumptions, that all those who fall under this category are murderers or rapists, but the same is not true. Section 8 encompasses offences such as criminal defamation and theft. To treat theft as a valid ground to immediately disqualify an MP but corrupt practices like bribery and booth capture as insufficient is patently arbitrary. Moreover, a case of theft may be occasioned by socio-economic compulsion, whereas corrupt practices are, by definition, an outright misuse of power for electoral gain.
Secondly, this arbitrary classification does not bear a rational relationship to the purposes of the law. The objective of the statute is to minimise the criminalisation of politics. Yet the provisions run antithetical to this objective. The classification only goes on to provide more recourse to MPs under Section 8A. Section 8(4) was struck down for increasing the criminalisation of politics, yet Section 8A continues to exist in a materially similar form. Both categories of offences should attract the same consequences, or an entirely new basis of classification, one that is grounded in the gravity of the offence rather than its statutory head must be introduced.
Elected Criminals or Corruptly Elected?
Another point of contention is whether conviction amounts to an immediate forfeiture of an MP's mandate when he or she was duly elected by popular will. It is to be noted that all candidates contesting elections are mandatorily required to disclose their criminal charges, assets, and other details pursuant to Public Interest Foundation v. Union of India (2018), as reaffirmed by the Supreme Court's directions in Brajesh Singh v. Sunil Arora (2021), wherein the Court directed political parties to mandatorily publish reasons for fielding candidates with criminal antecedents. Thus, it cannot be said that electors were kept in the dark about a candidate's criminal background. In a representative democracy, the individual elected by popular will should be the one to govern the nation. MPs convicted of criminal charges are, by virtue of their election, presumed to have been chosen through fair means unless proven otherwise; whereas MPs convicted of corrupt practices are not. This goes on to be contradictory to the current provisions allowing more latitude to MPs convicted of corrupt practices over those who are criminally convicted.
It is also pertinent to note that the 2023 disqualification of Lok Sabha MP Rahul Gandhi following a conviction for criminal defamation and a sentence of two years' imprisonment cast sharp light on these legislative inconsistencies. While the conviction was subsequently stayed and the disqualification reversed, the episode underscored the manner in which the interplay of Sections 8 and 8A can produce incongruous outcomes: an MP convicted of criminal defamation faces automatic disqualification, while an MP found guilty of booth capturing or bribery enjoys a discretionary and procedurally cushioned process. The structural asymmetry this creates remains a live constitutional concern in the 18th Lok Sabha.
Conclusion
To sum up, the problem of heightened criminalisation of politics is real, but it cannot be resolved whilst discrimination in the treatment of MPs persist on the grounds of the offences they are convicted of, without any rationale. While the classification based on the term of imprisonment is a reasonable starting point, it is rendered vague by the inequality that persists between the treatment of criminal convicts and those convicted of corrupt practices. The legislation should be framed in a manner wherein disqualification is based on the nature of the offence rather than the term of imprisonment. The ADR's post-2024 election data, which records a marked increase in the number of MPs with criminal antecedents entering the 18th Lok Sabha, only lends fresh urgency to these concerns.
Law breakers cannot be law makers.
This principle must be upheld consistently, both by the policy-making of the government and the decision-making of the judiciary, without the arbitrary distinctions that currently mar the statute.
Comments