Mohammad Faizal’s disqualification from Lok Sabha revoked, but Supreme Court adds a new twist

New Delhi: The Lok Sabha secretariat on Wednesday restored the membership of Lakshadweep’s Member of Parliament (MP) Mohammad Faizal on the basis of a Kerala high court order staying his conviction in a criminal case. But hours later, the Supreme Court decided to examine the correctness of the stay order, making observations that added a new twist to the saga.

Faizal, a Nationalist Congress Party (NCP) leader, was sentenced to 10 years in jail by a trial court on January 11 in a 2009 attempt to murder case involving Mohammad Salih, the son-in-law of former Union minister and late Congress leader PM Sayeed.

But on January 25, the Kerala high court stayed the conviction on the grounds that it will force yet another election and unnecessarily burden the exchequer.

On Wednesday, a Supreme Court bench of justices KM Joseph and BV Nagarathna, however, stressed that the high court order will require a deeper examination on whether the evidence and nature of injuries was looked into by the high court as the victim suffered 16 injuries and that too by sharp-edged weapons and iron rods. “The high court saying election expenditure will be increased has nothing to do with the issue,” it added.

The bench also wondered if rules should be different between common people and lawmakers. “It is only in exceptional cases that a court should stay conviction. This should not be a run of the mill case where you ask and get a stay… There cannot be different rules for an MP or an MLA and a common man,” it said.

Hours before his petition was to be heard, the Lok Sabha Secretary General Utpal Kumar Singh issued an order setting aside Faizal’s disqualification. “In view of the order dated January 25 of the high court of Kerala, the disqualification of Mohammad Faizal P.P notified vide Gazette notification dated January 13 in terms of the provision of Article 102(1)(e) of the Constitution of India read with Section 8 of the Representation of Peoples Act, 1951 has ceased to operate subject to further judicial pronouncement.”

Under relevant provisions in the Constitution and the Representation of the People Act, a stay on the conviction in a case where the sentence is more than two years in jail renders the disqualification inoperative. However, if the top court vacates the stay, the lawmaker stands disqualified again.

The episode has assumed greater signifiance since it comes at a time when Congress leader Rahul Gandhi stands disqualified from Parliament following a conviction order by a Surat court, sentencing him to two years’ imprisonment in a defamation case. While the trial court stayed Gandhi’s jail term to enable him file an appeal, the Wayanad MP is yet to seek a stay on conviction from a sessions court for revocation of his disqualification, issued by the Lok Sabha Secretariat on March 24 — a day after his conviction.

The top court bench, when it took up the case, said that it would examine the evidence in the 2009 case to judge whether the Kerala high court was right in putting the Nationalist Congress Party (NCP) leader’s conviction in abeyance on January 25 even as the MP argued that the effect on a lawmaker was irreversible if the stay was not granted.

“Unless an appellate court finds that prima facie it’s a case of acquittal, a stay on conviction cannot be given. Just because there is a disqualification, different rules cannot kick in,” retorted the bench, as it directed the Lakshadweep Administration to produce the deposition of witnesses in the case on April 24. The UT administration has filed an appeal against the stay order.

More than two months have elapsed since Faizal obtained the stay on his conviction from Kerala high court. On March 27, hefiled a separate writ petition in the Supreme Court questioning the inaction of the Lok Sabha secretariat to acknowledge the high court order and restore his membership.

On going through the order, the top court bench disposed of Faizal’s petition while keeping the question open about whether a member of Parliament or Assembly can claim violation of fundamental right in being denied to represent their constituency. The court also kept open the question of maintainability of the petition on this ground.

Solicitor General (SG) Tushar Mehta, appearing with ASG Nataraj for Lakshadweep, initially sought to argue the matter another day, but taking cue from the court’s observations, agreed to a hearing without seeking an adjournment.

Senior advocate Abhishek Manu Singhvi, appearing for Faizal, told the court that the decision on the appeal will have a bearing on his disqualification too. He said, “The balance of law is that the Court should give stay of conviction where it is satisfied. This is not such a bad case that a person should be given stay of conviction.”

While stay of conviction is to be granted in exceptional circumstances, Singhvi said: “The consequences of not staying the conviction are serious as it leads to disqualification which is irreversible.”

“What is irreversible then for a non-MP/MLA?” the bench asked Singhvi, who replied that disqualification even attaches to an ordinary citizen under Companies Act upon a conviction and such cases have been considered by the Supreme Court in the past while granting stay of conviction.

Later in the day, NCP MP Supriya Sule and Faizal called on Lok Sabha Speaker Om Birla. “Met Lok Sabha Speaker Hon. Om Birla Ji today along with Faizal. Happy that he would back in the Parliament. Grateful for the support and solidarity of everyone who stood with us,” she tweeted.