The question of who will disqualify an elected member of legislature after conviction in a court of law and who will declare the seat vacant has presumably been settled. After RJD chief Lalu Prasad, JD(U)’s Jagdish Sharma and Congress MP Rashid Masood were sent to jail, and the ordinance brought by the government was killed at Rahul’s behest, Attorney General Vahanvati's clear opinion was that Lalu and others continue to hold their seats in the Parliament. The Supreme Court had on July 10 struck down a provision of the Representation of People Act—Section 8 (4)—that allowed legislators to retain their membership in legislatures by filing an appeal in the higher court against their conviction. The confusion over their legislative status had put a question mark on the procedure and authority involved.
Unless it is fully and finally decided who issues the notification of vacancy, crucial by-elections to vacant seats of disqualified members cannot take place. In this scenario, confused Lok Sabha and Rajya Sabha Secretariats which were not even given copies of the court order by the courts that convicted the politicians sought the Law Ministry’s clarifications. At the Ministry’s behest, the Attorney General G E Vahanvati has given the opinion that the onus of issuing the disqualification notice rests upon the two Secretariats. “The question of conviction and sentence being stayed by a higher court while hearing an appeal is not relevant at this juncture. It can be addressed separately as and when that stage arises. At the moment immediate disqualification is the law and it cannot be postponed for any reason,’’ the AG has said.
The two issues that the AG managed to clarify was that “there was no need to refer the matter to the President, unless there is a dispute over the disqualification’’ of the convicted MP; and secondly the notification declaring disqualification is to be issued by the Secretariats. But the matter hasn’t ended there. In the two-part response the AG has sent to the Secretariats, “Some clarifications are still pending which are legal and logistical in nature: who takes care of future litigation in case the disqualification is challenged in the court of law and the secretariat is made a party; what happens if a member gets a stay order on the disqualification from a higher court before a by-election (on his vacant seat) is announced?’’ Hence, high level sources said that the AG’s response has grey areas on which further clarification is required. “What we do now will be cast in stone, become precedence, so there is no scope making amends, therefore further clarification has been sought,” from the government (that is AG), a senior Lok Sabha Secretariat official said. Significantly, Lalu, who was a Lok Sabha MP from Chhapra, Bihar, has already filed an appeal against his conviction in the Ranchi High Court. In his case, the Election Commission’s legal counsel had argued that “no by-election is required as (the next) Lok Sabha elections are scheduled to be held within the next six months’’, but in case the conviction is stayed or relief from the higher court is obtained the “member has to contest again to come back to Parliament’’. The Lok Sabha and Rajya Sabha Secretariats decided not go by the EC opinion as the legislature sees “it as an overstepping’’ of the EC mandate, especially since it had jumped the gun by writing to all Chief Secretaries to convey the news of the conviction of the MLAs/MLCs to their respective presiding officers so that they can issue the necessary disqualification notifications, without waiting for the law to be properly studied by all concerned. But, the A-G’s opinion is not very different either. He has said, “Recourse, if any, which may be had by the (disqualified) member to an appellate court does not derogate from the fact that the disqualification has been incurred.’’
The legislature, which has no role to play in the process of disqualification of convicted members has been dragged into the matter. The case reference the A-G has given is that of the disqualification of 11 MPs for breach of privilege for taking money to ask questions on the floor of the house. However, the Parliament Secretariat found this inappropriate for the purpose.
“The two cannot be compared, simply, because that decision to disqualify (in the cash-for-query case) was taken by parliament and therefore notified by the Lok Sabha Secretariat. Here the Secretariat is for the first time in its history being asked to implement a decision in which Parliament has no role or say,’’ the high-level source said, not denying that the “AG’s opinion on some aspects” have indeed “brought much needed clarity on other issues”. What, however, is lost in this legal tangle is the political story. There’s a reason why UPA government showed no urgency in bringing clarity on the issue and left it to the Parliament Secretariat and the EC to find the head in the woods. When Rashid Masood’s Rajya Sabha seat from UP is declared vacant, it will most certainly be picked by Samajwadi Party and not the Congress. In a house where it is already in a minority, every single seat matters. A delay, a Congress minister-cum-manager smiling admitted, gives them time to “negotiate’’, no doubt with the SP. But with Lok Sabha elections round the corner, the ruling party of UP may not oblige.