The Supreme Court on Monday issued notice to the Centre, asking whether the Election Commission of India can be authorised to declare a seat vacant after a lawmaker is convicted for criminal offence.
A lawmaker, upon conviction in a criminal case, attracts immediate disqualification, as the Supreme Court by its order of July 10, 2013, took away the three - month period during which he could approach a higher court to seek both conviction and sentence to be put on hold.
The three - month period was provided under Sub - section 4 of Section 8 of the Representation of the People Act, which was held unconstitutional by the apex court on July 10, 2013.
An apex court bench of Chief Justice T. S. Thakur, Justice D. Y. Chandachud and Justice L. Nageswara Rao sought the government response as senior counsel Meenakshi Arora, appearing for the Election Commission, said the panel cannot step in for holding election till the Principal Secretary in the Secretariat of the legislature concerned does not declare the seat vacant.
During the course of the hearing, the bench inquired why should the court pronouncing a lawmaker guilty not directly send the verdict to the Election Commission for further action.
However, Arora persisted that under procedural rules, it was only the Secretariat of Parliament or the state assembly, as the case may be, which can declare a seat vacant.
The court notice to the Centre came on a plea by NGO Lok Prahari, which contested the point that the Election Commission could come into picture only after the seat has been decreed vacant by the Secretariat of the elected house.
Appearing for the non - governmental organisation, its General Secretary S. N. Shukla wanted to know which provision (of the rules of procedure) said that unless a seat was declared vacant by the Secretariat concerned, the EC cannot hold election to that seat.
Lok Prahari has moved the court to draw its attention to Uttar Pradesh where it said the convicted lawmakers were continuing to function as assembly members after obtaining stay on their conviction from the sessions courts.
Shukla contended that in the first instance, no court other than the Supreme Court and the High Court can put the conviction in suspension or on the hold.
He contended that even if a court lower than the Supreme Court or the High Court, for some reasons, put on hold the conviction, it would be effective from the date it was put on hold and not retrospectively.
He said there was no way a convicted lawmaker could escape disqualification under Section 8 of the Representation of the People Act after being pronounced guilty of a criminal offence.
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