Recently, a plea has been filed before the Apex Court challenging the constitutional validity of Section 8(3) of the Representation of the People Act, 1951. The said section lays down the automatic disqualification of a legislator from the parliament or State assembly upon conviction in a criminal case.

Section 8(3) of the 1951 Act, said- 

(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in subsection (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 plea was submitted by PhD scholar and social activist Aabha Muralidharan. In the plea, she mentioned Section 8(3) is ultra vires of the Constitution since it curtails the free speech of an elected Member of Parliament (MP) or Member of Legislative Assembly (MLA) and restrains lawmakers from freely discharging their duties cast upon them by the voters of their respective constituency.

The plea filed through advocate Deepak Prakash says Section 8(3) is in stark contradiction to sub-section (1) of Section 8, Section 8A, 9, 9A, 10 and 10A and 11 of the 1951 Act.

In the plea, the petitioner stated that factors such as nature, gravity, role, moral turpitude and the role of the accused, ought to be examined while considering disqualification under Chapter III of the 1951 Act.

The plea highlighted that sub-clause (1) of section 8 of the 1951 Act clearly categorizes the offences, keeping in view the nature of offences, for disqualification of MPs.

However, sub-clause (3) of the same section, provides for a blanket automatic disqualification, on the basis of the quantum of sentencing and imprisonment, which is self-contradictory and creates ambiguity as to the proper procedure for disqualification, the petitioner contended.

"Moreover, the 1951 Act further categorizes the nature of cases wherein disqualification is permissible as enumerated u/s 8A, 9, 9A, 10 and 10A, which again specify the nature of the offences, for disqualifying a member and is in contradiction with sub-clause (3) of Section 8 of the 1951 Act," the plea said.

Section 8(4) provided a three-month window to convicted legislators to appeal against a conviction, thereby halting immediate disqualification. 

"The operations of Lily Thomas are being blatantly misused for wreaking personal vengeance in political parties and the present scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences, allegedly against the concerned Member, and provides for an “automatic” disqualification, which is against the principles of Natural Justices, since various convictions are reversed at the appellate stage, and under such circumstances, the valuable time of a member, who is discharging his duties towards the public at large, shall be rendered futile," the petition stated.

The plea also said that Section 8(3) does not include the words “shall stand” or “forthwith” and in the absence of the same, there can not be an automatic disqualification.

The plea further sought directions from the Court to declare that the mandate of Section 499 of IPC (which criminalises defamation) or any other offence prescribing maximum punishment of two years will not automatically disqualify any sitting member of any legislative body since it violates the freedom of speech and expression of a elected representative.