MP, not MP & now MP again — many twists & turns in case against Lakshadweep legislator Faizal

New Delhi: The Supreme Court Monday restored the membership of Lakshadweep Member of Parliament (MP) and Nationalist Congress Party (NCP) leader P.P. Mohammed Faizal who was disqualified by Lok Sabha Secretariat earlier this year after the Kerala High Court refused to stay his conviction in a criminal case.

On 11 January, Faizal was convicted for attempting to kill Mohammed Salih, son-in-law of late Congress leader and former Union minister P.M. Sayeed, during the 2009 Lok Sabha polls.

The incident dates back to April 2009. According to the prosecution, Faizal, along with the other accused, armed with deadly weapons, committed the offence of rioting and voluntarily caused hurt to Salih after wrongfully confining him and his friend Mohammed Kassim at a place on Andrott island. 

Of the 37 people tried as accused, the sessions court found four, including Faizal, guilty, and the others were acquitted. They were found guilty under various provisions of the Indian Penal Code (IPC), including Section 143 (unlawful assembly), 147 (rioting), 148 (rioting, armed with deadly weapon), 448 (house-trespass), 324 (voluntarily causing hurt by dangerous weapons), 342 (wrongful confinement), 307 (attempt to murder) and 506 (criminal intimidation) read with section 149 (every member of unlawful assembly guilty of offence committed in prosecution of common object).

They were sentenced to 10 years rigorous imprisonment and fined Rs 1 lakh each by a sessions court in Kavaratti in Lakshadweep. 

Section 8 of the Representation of the People Act, 1951, provides for disqualification of a lawmaker for conviction in certain offences. It says that a person sentenced to imprisonment of two years or more shall be disqualified “from the date of such conviction” and remain disqualified for another six years after serving time. However, the Supreme Court, in 2018, had clarified that disqualification triggered by a conviction will be reversed if the conviction is stayed by a court. 

It had observed, “Once the conviction has been stayed during the pendency of an appeal, the disqualification, which operates as a consequence of the conviction, cannot take or remain in effect.” 

Since Faizal’s conviction, the matter has flitted between the Kerala High Court and the Supreme Court over whether he should be allowed to continue as an MP while his appeal challenging the conviction remains pending. What have the two courts said so far? ThePrint explains. 

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‘Ramifications are enormous’

Right after the conviction, all four accused approached Kerala HC challenging their conviction on 12 January. They also filed an application seeking to suspend the conviction and sentence imposed on them while the appeal remains pending. Among other things, Faizal pointed out that on the date of the judgment, he was an MP from the Union Territory of Lakshadweep. He was elected as an MP in 2014 and again in 2019. He pointed out that if his conviction is not suspended, the consequence will be his disqualification as an MP, “resulting in serious implications,” according to the high court order which later stayed his conviction.

While this application was pending in HC, Faizal was disqualified by a notification by the Lok Sabha secretariat passed on 13 January, and a press note was issued on 18 January calling for elections to his constituency.

In its order dated 25 January, the high court noted that the incident occurred 13 years ago, when Faizal was not an MP. It further noted that the next general election to the parliamentary constituencies in India is to be held in 2024, and if the election to the constituency of Lakshadweep is held immediately because of Faizal’s disqualification, “the financial burden upon the government and indirectly upon the people is immense.”

Even after incurring enormous expenditure for the election, the elected candidate will have a term of less than 15 months, it added. The court further said that not suspending his conviction “is drastic not only for the second petitioner but even for the nation”.

It acknowledged the fact that decriminalisation of politics is an essential requirement of every democracy and emphasised on maintaining “purity in politics”. However, it asserted that the “societal interest” to avert an expensive election when the elected candidate can only continue for a limited period will have to be balanced with the need to have purity in politics.

The high court, therefore, suspended his conviction and sentence, till his appeal is decided, opining that Faizal’s case “falls within the category of rare and exceptional circumstances” and that “the ramifications of not suspending the conviction are enormous”.

In view of the high court order, his Lok Sabha membership was restored in March this year. 

However, the Union Territory administration challenged the high court order through a petition filed in the apex court on 27 January this year. Appearing for the UT, Additional Solicitor General K.M. Nataraj told the SC that the high court got “carried away” by the fact that Faizal is an elected MP, and “lost sight of the fact that he has been convicted of serious offences by the sessions court,” according to an apex court order of 22 August

In its order, the Supreme Court felt that the high court “has considered only one aspect of the matter” — about Faizal being an MP and the suspension of his membership resulting in fresh elections that would involve enormous expenditure.

“We find that the high court ought to have considered the application seeking the suspension of conviction in its proper perspective covering all aspects bearing in mind the relevant judgments rendered by this court and in accordance with law,” the SC observed. 

It therefore set aside the high court’s 25 January order and asked the latter to reconsider his application afresh. However, the court noted that since 25 January, Faizal continued to remain an MP and was discharging all his duties. It, therefore, temporarily protected the status of Faizal as an MP, saying the benefit of the high court’s order staying the suspension will remain in operation during the period, keeping in mind that there should not be any “vacuum” with regard to representation of the Lakshadweep Lok Sabha constituency in Parliament. 

The matter, therefore, reached the high court again. 

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‘Sends wrong signal to public’

On 3 October, the Kerala High Court refused to stay Faizal’s conviction, noting that “there are materials prima facie evidencing the criminal acts on the part of the accused”. 

In doing so, Justice N. Nagaresh asserted that “criminalisation of (the) election process is of grave concern in our democratic polity”.

“If persons with criminal antecedents are permitted to continue as Members of Parliament/ Legislatures even after conviction by a competent court, that would only send wrong signals to (the) public at large,” it added. 

The court noted that the accused hit Salih on the back of his head with a chopper and with an iron rod. After the incident, Salih had to be airlifted to Specialist Hospital, Ernakulam, where he was in ICU and was an in-patient for 14 days, it said. 

Therefore, Faizal’s membership was suspended once again, after the high court order. 

However, Faizal approached the Supreme Court on 4 October. In an order passed on 9 October, a Supreme Court bench comprising Justice Hrishikesh Roy and Sanjay Karol issued a notice on his appeal. 

“In the meantime, the operation of the impugned order dated 03.10.2023…is stayed. In other words, this court’s earlier interim order dated 22.8.2023 will operate and there shall be suspension of petitioner’s conviction,” the court observed, clarifying that Faizal’s conviction will remain suspended in the meantime. 

(Edited by Smriti Sinha)

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