What you need to know about govt's ordinance on convicted netas

Congress Vice President Rahul Gandhi trashed the government’s ordinance to protect convicted lawmakers on Friday putting the United Progressive Alliance in a spot. So what’s this much-talked about ordinance all about? 

Here is the key difference between the old law (Representation of People’s Act 1951) and the new ordinance protecting convicted lawmakers:

Earlier, all a convicted MP or MLA to retain their seat had to appeal against the conviction within 90 days.

As per the new ordinance, they still get 90 days to appeal against their conviction and sentence, but they also need a bail from a higher court.

Please see below for a detailed explanation:

A) Representation of People’s Act:

The Representation of People’s Act of 1951 lays down certain rules for disqualification of MPs and MLAs if they are convicted:

1) Those convicted for crimes listed under Section 8 (1), (2) of the Act will be disqualified for a minimum period of six years, even if the punishment is just a fine. These crimes include rape, practicing untouchability, sati, Foreign Exchange Regulation Act violations, causing enmity over religion, language or region, electoral violations, taking drugs, importing banned goods, etc.
2) Section 8 (3) says that if an MP or MLA is convicted for any other crime and is sent to jail for at least 2 years, he or she will be disqualified for six years from the time released.

But, the Act of 1951 leaves a loophole. In subsection 8 (4) it says:

“…a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislator of a state, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court”

All a convicted MP or MLA needed to do was to appeal against their conviction to not be disqualified.

B) Supreme Court’s intervention:

On the July 10, the Supreme Court said that Section 8 (4) is unconstitutional since it distinguishes between an electoral candidate and an elected representative. It says, since the Representation of People’s Act does not allow people who are convicted to fight elections even if they have appealed against the conviction, it cannot allow MPs and MLAs who have been convicted to hold on to their seat.

The Supreme Court, therefore, provided for automatic disqualification if an MP or MLA were to be convicted under sections 8 (1), 8 (2) and 8 (3). That implies that if an MLA or MP is convicted his/her seat will automatically become vacant.

C) New ordinance:

The government has passed an ordinance now, which broadly sticks to the old Representation of People’s Act but makes one key change to Section 8 (4). Instead of giving a 90-day window for an appeal, the new ordinance says, “…a disqualification under any of the said sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislator of a state, take effect, if an appeal or application for revision is filed with respect of the conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court.”

This means a convicted MP or MLA will not only need to appeal against the conviction and sentence, but also have to (at least) get bail to hold on to their seat.