In 2017, the law ministry submitted an affidavit before the Supreme Court arguing that it was legally untenable that the disqualification which ensues from a conviction would continue despite a court having granted a stay of the conviction.

The Centre was responding to a writ petition by Lucknow-based NGO Lok Prahari, which argued that even in case of a stay of conviction – for an offence attracting disqualification under Section 8 of the Representation of the People Act, 1951 – it should not automatically lead to “wiping out” the disqualification and reviving the membership with retrospective effect and consequently, the seat of the concerned member which had been declared vacant.

Lok Prahari’s contention was that convicted legislators often misused the provision of stay. It further argued that the law did not provide for undoing disqualification and revival of membership of House and seat after a stay of conviction.

The government opposed the petition.

The Centre’s affidavit – accessed by ET – pointed to the Lily Thomas Vs Union of India (2013), Ravikant S Patil Vs Savabhouma S Bagali (2007) and Rama Narang Vs Ramesh Narang (1995) cases – to underline that an appellate court could stay a conviction and consequently, a disqualification that was caused due to conviction would also “cease to operate”.

The affidavit cited the Ravikant S Patil Vs Sarvabhouma S Bagali case where the appellant was disqualified from contesting assembly polls due to conviction for an offence punishable under Sections 366 and 376 of the penal code.

The Centre’s affidavit pointed out that in the case, “it was held by a three-judge bench (of the Supreme Court) that as the high court for special reasons had passed an order staying the conviction, the disqualification arising out of the conviction ceased to operate after the stay of the conviction”.”Therefore, the disqualification under sub sections (1), (2) or (3) of Section 8 of the Act will not operate from the date of order of stay of conviction passed by the appellate court,” the affidavit said.

It said the law in this regard was “well settled” and relevant constitutional and statutory provisions made in this regard were “unambiguous and clear”.

“After Section 8(4) of the RP Act, 1951 was struck down by the Hon’ble Court in Lily Thomas’s case, the protection available to the sitting MPs/MLA has virtually come to an end. The stay of conviction is the subject matter of criminal jurisprudence. If it is at all permissible, then the remedy arising out of this eventuality would ultimately be as per law…. ” the Centre submitted.