The Hon’ble Supreme Court through its judicial activism and judgements concerning The Representation of the People Act, 1951 (Hereinafter referred to as ‘The Act’) has altered the operation and dynamics of Indian Polity. Owing to an expansive interpretation of Section 389(1) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘The Code’), a disqualification of a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State, upon being convicted for any offence as enumerated under Section 8 of The Act, is eligible to be stayed/suspended. The purpose of this article is to provide an insight into Section 389(1) of The Code and its relationship/overlapping effect on the disqualifications originating from application of Section 8 of The Act.
Up until 2013, Section 8(4) of The Act provided a luxury of a three-month cushion to elected members against an immediate disqualification upon a conviction, as it stated that no disqualification shall take effect until three months have elapsed from that date of conviction. However, Supreme Court in 2013 vide its judgement, ‘Lily Thomas v Union of India’ [i] struck down the self-awarded ‘saving-grace’ of Section 8(4) of the Act and at the same time widened the applicability of Section 389(1) of the Code when deciding the fate of continuation of any such disqualification.
The relation between Suspension of Disqualification & Stay of conviction.
There exists a direct/proportional relationship between continuance of disqualification and continued operation of a conviction. The same can be understood as disqualification of an elected member is solely consequential to the conviction of the said member for an offence enumerated under Section 8 of The Act i.e., as long as the order of the conviction is in operation, the disqualification will continue.
Authority Of Appellate Court To Stay An Order Of Conviction Under S. 389(1) Of the Code
Section 389 of the Code provides for a remedy to the convicted person as it states that an Appellate Court has the power to suspend the sentence of a person who has preferred an appeal under the Code by staying the operation of the effect of their conviction. It is imperative to understand that an appeal under Section 374 of the Code can be preferred against an order for their conviction and the Appellate Court while entertaining such an appeal under Section 374 of the Code, also possess the power to stay the operation of such conviction under Section 389(1) of the Code. A Position settled by a 3-Judge Bench of the Hon’ble Supreme Court wherein it was noted that ‘an appeal under Section 374 of CrPC is essentially against the order of conviction and the order of sentence is merely consequential; Therefore, when an appeal is preferred under Section 374 of the Code the appeal is against both the conviction and sentence, similarly, we see no reason to place a narrow interpretation on Section 389(1) of the Code not to extend it to an order of conviction.’ [ii]
Parameters upon which Appellate Court shall choose to stay an Order of conviction.
Section 8(1), (2), (3) of The Act draws its power from Articles 102(1)(e) & 191(1)(e) of the Indian Constitution which entails that on the date of Conviction, an elected members shall become disqualified to be a member of either House of Parliament or of Legislative Assembly or Legislative Council of a State. Therefore, it is imperative for the Court to thoroughly evaluate the consequences, while adjudicating upon the question, whether a conviction can be stayed.
The Supreme Court held that “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.” [iii] The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction were not to be stayed.
Consequence of granting stay on conviction – Suspension of disqualification.
The implications of an order of stay of conviction granted under Section 389(1) of the Code is that any disqualification which came into existence as on date of conviction, cease to exist. The technical position postulates, upon the stay of a conviction under Section 389 of the Code, the disqualification under Section 8 will not operate. Once the conviction is stayed during the pendency of an appeal, the disqualification which becomes effective because of the conviction cannot take or remain in effect. [iv]
In light of the discussions made, it becomes important to note that the Appellate Courts have now become a crucial facet in granting haven to the elected and later disqualified members from the clutches of disqualification. While the Appellate Courts do not grant the stay of disqualification directly, the same is automatically triggered by the exercise of the powers under Section 389(1) of the Code. Therefore, despite the fact that the ‘escape-clause’ in the form of Section 8(4) of The Act was struck down, the Elected members can reap the benefits that arise as a consequence of stay of conviction under of Section 389(1) of CrPC.
“It deserves to be clarified that an order granting stay of conviction is not the rule but is an exception to be resorted to in rare cases depending upon the facts of a case. Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay. An order of stay, of course, does not render the conviction non-existent, but only non-operative. Be that as it may. Insofar as the present case is concerned, an application was filed specifically seeking stay of the order of conviction specifying the consequences if conviction was not stayed, that is, the appellant would incur disqualification to contest the election. The High Court after considering the special reason, granted the order staying the conviction. As the conviction itself is stayed in contrast to a stay of execution of the sentence, it is not possible to accept the contention of the respondent that the disqualification arising out of conviction continues to operate even after stay of conviction.” [v]
[i] Lily Thomas v. Union of India, (2013) 7 SCC 653
[ii] Rama Narang v. Ramesh Narang [Rama Narang v. Ramesh Narang, (1995) 2 SCC 513] (SCC p. 527, para 19
[iii] Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574 :(SCC pp. 581-82, para 6)
[iv] Rama Narang v. Ramesh Narang, (1995) 2 SCC 513
[v] Ravikant S. Patil v. Sarvabhouma S. Bagali (2007) 1 SCC 673: (SCC p. 679, para 15)