‘Unequal’ under the law

While appearing on behalf of petitioner Lily Thomas in the Supreme Court (SC) on January 10, 2013, constitutional expert Fali Nariman argued that Section 8(4) of the Representation of the People Act (RPA) was discriminatory because it allows sitting Members of Parliament (MPs) or Members of the Legislative Assembly (MLAs) convicted of heinous crimes to be treated differently from common citizens held guilty by courts on similar grounds. The Times of India (TOI) of January 11, 2013 reported that Nariman said Parliament could not act on its own as a majority of members of the Lok Sabha — 274 out of 547 MPs — were facing legal action for serious offences. The slim majority that governments have in coalitions, like the one ruling the country today, leaves them no room for such action.
The RPA debars persons convicted of any of the serious offences listed under Section 8 and sentenced to imprisonment for two years or more from contesting elections, with the disqualification remaining in force from the date of conviction and until six years after their release from prison. However, Section 8(4) exempts sitting MPs and MLAs from disqualification for three months and not until the final disposal of their appeals filed within the 90-day window, mentions TOI. This conflicts with the principle of equality under the law guaranteed under the Constitution of India.
Following Nariman’s arguments, the SC put the question to the central government on January 10, 2013, seeking a detailed response to the constitutional validity of Section 8(4) of the RPA which allows for special treatment for MPs and MLAs. Nariman maintained that this Section is the first hurdle in the fight against criminalization of politics and needed to be struck down.