14 Dec 2023 3:56 PM GMT
The Supreme Court, by 2:1 majority, on Thursday(December 14) suspended the conviction of BSP MP Afzal Ansari in a case under the UP Gangster Act case, paving the way for the restoration of his membership in the Lok Sabha. Though, the Court held that legislator from Ghazipur constituency can attend the House proceedings, he will not be able to cast his votes or draw perks or monetary benefits.
The Court further clarified that Ansari shall not be disqualified to contest future election(s) during the pendency of his criminal appeal before the High Court and if he is elected, such election will be subject to outcome of the First Criminal Appeal. It also asked the Allahabad High Court to decide his criminal appeal expeditiously before 30.06.2024.
The Lok Sabha issued a notification on May 1 disqualifying Ansari following his conviction in the case.
While Justices Surya Kant and Ujjal Bhuyan agreed to suspend Ansari's conviction, Justice Dipankar Datta wrote a separate judgment expressing dissent.
To suspend the conviction, the majority cited the following reasons :
Firstly, the High Court order(which refused to suspend his conviction but stayed the sentence) suggested that there is no cogent evidence to establish that the Appellant has been indulging in anti-social activities and crimes such as murder or ransom.
Secondly, the old FIR, which was the reference point for the case under the Gangster Act, has resulted in his acquittal.
Thirdly, the impugned judgment also indicates the absence of corroborative evidence supporting the contention that the Appellant had been responsible for influencing witnesses in retracting their statements.
Lastly, the High Court in its impugned order has meticulously highlighted that in the various FIRs that had been registered against the Appellant, either he was not chargesheeted or the investigating agencies had exonerated him.
When refusal to stay conviction leads to irreparable damages, it is an exceptional circumstance to stay conviction
The majority judgment stated that stay of conviction is to be granted only in exceptional circumstances. "However, where conviction", the judgment stated, "if allowed to operate would lead to irreparable damage and where the convict cannot be compensated in any monetary terms or otherwise, if he is acquitted later on, that by itself carves out an exceptional situation."
The judgment referred to the potential impact on the electorate if the conviction is not stayed.
"We say so primarily for the reason that the potential ramifications of declining to suspend such a conviction are multifaceted. On the one hand, it would deprive the Appellant's constituency of its legitimate representation in the Legislature, since a bye-election may not be held given the remainder tenure of the current Lok Sabha. Conversely, it would also impede the Appellant's ability to represent his constituency based on the allegations, the veracity whereof is to be scrutinised on a re-appraisal of the entire evidence in the First Criminal Appeal pending before the High Court."
The Court also said that the conviction will prevent the appellant from contesting elections for ten years.
On moral turpitude
Regarding the point of 'moral turpitude' and the issue of criminalisation of politics, the Court said that there were substantial doubts cast on the criminal antecedents of the petitioner.
The Court added that it has to go strictly by the law.
"Although 'moral turpitude' may carry relevance within the context of elected representatives, the courts are bound to construe the law in its extant state and confine their deliberations to those facets explicitly outlined, rather than delving into considerations pertaining to the moral rectitude or ethical character of actions. This is especially true when it is solely motivated by the convicted individual's status as a political representative, with the aim of disqualification pursuant to the Representation of Peoples Act"
Justice Datta disssents
In his dissenting judgment, Justice Dipankar Datta said that the consequences falling on the legislative constituency cannot be a ground to suspend the conviction of a legislator.
"One cannot be oblivious that the parliamentarians themselves are instrumental in enacting the central laws, including the RoP Act. Once they have laid down a standard under the RoP Act by which an individual parliamentarian's actions are to be judged, those standards ought not to be relaxed simply on the consideration that the electorate would stand deprived of its representation in the Parliament."
Justice Datta said that no preferential treatment can be given to politicians.
"The fact that the court is approached by a parliamentarian/legislator, by itself, should not be viewed with such importance and indispensability that his status should tilt the scales in his favour. Would it be fair that a convict, no matter how mighty he is and whatever position he holds, gets a preferential treatment as compared to an under-trial? Should the courts go out of the way to stay the conviction or suspend execution of the order under appeal when no Fundamental or other Constitutional right of the convict would be abrogated if a stay were not granted? To our mind, the answers, as traced through the aforesaid legal and constitutional framework, would unerringly be in the negative."
Justice Datta advocated a higher stand to be applied against a Parliamentarian as allowing a convict to attend the Parliament is derogatory to the dignity of the Parliament. He said that none can claim a right to represent an electorate.
Case Title : Afjal Ansari v. State of UP
Citation : 2023 LiveLaw (SC) 1055