New Delhi: The recent Supreme Court ruling on convicted lawmakers may lead to creation of fresh guidelines to help deal with the new scenario where MPs and MLAs stand disqualified immediately upon conviction.
While the Attorney General has made it clear that following the apex court ruling, convicted MPs and MLAs stand disqualified immediately upon their conviction, the procedure to be followed to announce the disqualification and the subsequent vacancy of seats still remains a ticklish issue for the government, the Rajya Sabha and Lok Sabha secretariats and the Election Commission.
In its July 10 judgement, the apex court had struck down a provision in the electoral law that protects a convicted lawmaker from disqualification on the ground of pendency of appeal in higher courts.
The Lok Sabha secretariat had sought the opinion of the AG following the conviction of RJD leader Lalu Prasad in the fodder scam.
While the AG explained that the disqualification would be immediate, his opinion is learnt to be silent on the procedure to be followed. He is understood to have said that issuance of notification regarding disqualification was a mere technicality.
Highly-placed sources in the Law Ministry said those dealing with disqualification of MPs want clarity on who will take a final call on disqualification and the rules to be followed.
They, however, said the emerging view is that in case of a conviction of an MP or an MLA, the trial court or the State Election Commission can send the certified copy of the judgement to the presiding officer of the concerned House or state legislature.
The presiding officer can then inform the Election Commission about the vacancy following disqualification.
The EC, on its part, can then proceed further if it wants to hold a bypoll.
"But this may need to be written in black and white as this is a new situation. It will also avoid any future confusion. The law of the land now is that a convicted lawmaker stands disqualified immediately," explained a senior government functionary.
Chief Election Commissioner VS Sampath has already made it clear that the EC will initiate steps to fill up the seats of convicted and disqualified lawmakers, including Lalu Prasad and Rasheed Masood, only after they are declared vacant.
"Regarding those MPs, the vacancy consequent to court action has to be notified by the Speaker of the House concerned. After that only further action by the Commission will arise," Sampath had said yesterday.
Prasad and Masood are two MPs who were convicted after the SC ruling. Also, the government has withdrwn an ordinance and bill which sought to negate the judgement.
The verdict seeks to remove the discrimination between an ordinary individual and an elected lawmaker who enjoys protection under the Representation of People Act.
Under Section 8(3) of the Act, a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified for that and a further six years after release.
The following sub-section 8(4) says a lawmaker cannot be disqualified for three months from the conviction and if in that period he or she files an appeal against till its disposal by a higher court.