The Election Commission on Monday told the Supreme Court that it was unable to disqualify a convicted member of legislative Assembly or Parliament since the order of conviction passed by the court is never made available to it by the office of the Assembly or Parliament.
The Court asked the EC to file an affidavit stating this problem and decided to resolve the issue by passing orders in four weeks. The order came during the hearing on a PIl filed by NGO lok Prahari seeking orders from the Supreme Court to ensure that upon conviction of an elected representative, the concerned trial court or High Court must supply a copy of its order to the poll panel as well.
Appearing for the EC, senior advocate Meenakshi Arora told a bench headed by Chief Justice TS Thakur that it supported the petitioner but they cannot disqualify a candidate unless a formal decision is taken by the office of the concerned legislative Assembly or Parliament.
Since there is delay in this process, the Commission said that the convicted lawmakers continued to hold on to their posts, thus defeating the Supreme Court’s decision in lily Thomas case directing immediate disqualification upon conviction in a criminal offence punishable with two years or more of prison
term.
Only on receipt of the order from the Principal Secretary of lok Sabha or Rajya Sabha or the Assembly, the EC declares the seat as vacant and commences the process for fresh by-polls to the concerned seat.
The bench, also comprising Justices DY Chandrachud and l Nageswara Rao, asked Additional Solicito General (ASG) Maninder Singh to take instructions on this issue and asked EC to file an affidavit stating these facts. The Court even enquired from Singh about the situation where a convicted lawmaker obtains an interim stay from the higher Courts on the conviction and sentence.
ASG Singh submitted that for disqualification to stop, the convicted lawmaker must obtain a stay on conviction as a stay on sentence is not enough. The Court realized there was a grey area and asked ASG Singh to take instructions on whether an order can be passed directing automatic intimation of an order convicting a lawmaker to the EC.