Paragraph numbers below are the court’s original numbering, recovered from the source text.
42. In such a context, the unequivocal provision within the RoP Act that mandates automatic disqualifi cation upon the recording of a conviction vividly refl ects the deliberate legislative intent of the Parliament to keep away any tainted parliamentarian from continuing in offi ce until, of course, he secures a stay of the conviction under the governing procedural law. In the light of the foregoing discussion, it may not be proper for the Courts to deviate from this straightforward course set up by the Parliament and grant a stay of the conviction as a matter of routine, thereby paving the way for the parliamentarian/legislator to represent his constituency till such time his appeal is decided.
43. 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. In fact, it is expected of a parliamentarian to meet a higher standard due to the position of trust and responsibility held by him. The integrity of this process hinges on the consistent application of the law, ensuring that no one, not even the architects of the statute themselves, can alter the measuring stick once it has been chosen. This steadfast adherence to standards upholds the principles of justice, accountability, and the rule of law, which are the cornerstones of a just and democratic society.
44. Looked at through an altogether diff erent lens, what is found from diff erent central enactments is this. The Chairperson/members of the National Green Tribunal constituted under the National Green Tribunal Act, 2010 (“the NGT Act”, hereafter), the Chairperson/members of the National and State Human Rights Commissions constituted under the Protection of Human Rights Act, 1993 (“the Human Rights Act”, hereafter), and advocates enrolled in terms of the Advocates Act, 1961, stand the risk of being removed from public offi ces held by them or removed from the rolls of advocates upon conviction being recorded on a criminal charge involving moral turpitude. The precedents of this Court, to which reference has been made in course of the foregoing discussion, do lay down the principle that the likelihood of losing his livelihood (a facet of the Fundamental Right to Life) by the appealing convict if the conviction were not stayed during the pendency of the appeal is not a good enough ground for obtaining such relief. It could be so that upon the conviction being set aside, status quo ante may be restored, however, this might not be acceptable to those principled few who put their reputation at a pedestal higher than pecuniary gains and rue the days of survival with the social stigma attached to such a removal. Restoring the status quo ante in all cases, therefore, may not be the best available solution.
45. How can one forget the second proviso to clause (2) of Article 311 of the Constitution ordaining dismissal/removal/reduction in rank of a person who is a member of a civil service or is a civil post holder if his conduct has led to his conviction on a criminal charge? He would be facing the same consequence as noted above.
46. There also exist recruitment rules framed by public authorities prohibiting consideration of the candidature of any selectee, howsoever high he might have ranked in the merit list, for an appointment if he is an accused in a criminal case and has been arrested in connection with investigation thereof. The fundamental principle of criminal jurisprudence that an accused is presumed to be innocent unless proven guilty would seem AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] to be forsaken in such a case. One of the reasons for imposition of such a restriction is because of the nature of the responsibility the appointee may have to shoulder. The rationale often hinges on the nature of the position sought, with a recognition that certain roles demand an intensive and raised level of scrutiny. A selectee does not have an indefeasible right of appointment but he does have, to a limited extent, a right of consideration which itself is a Fundamental Right under Article 16. No employer, in the ordinary course of business would keep the doors of employment ajar for such a selectee to enable him to join, subject to his securing an honourable acquittal in the criminal trial.
47. In our country, laws are in place enacted by the legislature or framed by the executive in terms of delegated power to prevent any individual from entering public service if he has criminal antecedents and/or has been in custody in connection with an investigation any time prior to applying for a post. While the laws would seem to require that anyone desirous of entering public service should have a blemish less and untainted profi le, ironically, it is not a rare occurrence that a very few lawmakers create diffi cult situations for themselves and seek to be treated in a manner diff erent from how a common job aspirant seeking to enter public service is treated. It is lamentable that what is preached by the lawmakers as a body is, at times, seen not to be put in practice by those erring lawmakers and the general feeling is that while stringent laws are enacted for the common man to abide by, it is the infl uential and the mighty that escape the rigours of law by misusing their status and position.
48. Considering the approach that the law requires to adopt in respect of public services/employment, should the approach be diff erent in a scenario of automatic disqualifi cation as per section 8 of the RoP Act? In a case of proved guilt resulting in conviction recorded by a competent court, the presumption of innocence till proved guilty has no place and loses its sway. 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. All the courts of law are bound by the preambular promise of the Constitution of India to provide equal treatment to one and all before them if they are similarly placed. Any diff erentiation in approach and outcome ought to stand on solid foundation.
49. The incidents on the occurrence of which a member of Parliament could stand disqualifi ed ‘by the Constitution’ are specifi ed in clauses (a) to (d) of Article 102(1) whereas a disqualifi cation owing to conviction recorded by a competent court of law is a measure ‘under the Constitution’ read with the RoP Act. If a disqualifi cation ‘by the Constitution’ or ‘under the Constitution’ is contrasted with disqualifi cation incurred by a convict to continue as holders of public offi ces or the offi ce of a director of a company ‘by a statute’, to wit, the NGT Act, the Human Rights Act or the Companies Act, or to continue in service either by Article 311 of the Constitution or by the discipline rules of public institutions, for eg., the one in K.C. Sareen (supra) and Balakrishna Dattatarya Kumbhar (supra), there can be no doubt that the standard for staying/suspending the former disqualifi cation (brought about by or under the Constitution) has to be pegged at a level higher than the latter disqualifi cation (brought about by the statute/rule) not only because of the Constitutional scheme but also because of the position of trust and confi dence that a parliamentarian holds.
50. It is perhaps indubitable that the electorate invests not just their votes but also their expectations, trust and faith in the individuals they elect to represent them. Any compromise in the integrity of these representatives can be viewed as a betrayal of this trust. The electorate’s willingness to be represented by a parliamentarian who has been disqualifi ed by reason of a conviction on a criminal charge of moral turpitude cannot, therefore, be presumed. Rather, representation by such parliamentarian could breach the trust and confi dence that was reposed by those who voted him to power. The trust placed on elected representatives is conditional on their continued adherence to the principles and laws governing their role. Disqualifi cation mechanisms serve as a crucial safeguard to rectify any breach of such adherence. By promptly addressing instances such as the one under AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] consideration, the democratic system aims to maintain the credibility and legitimacy of the elected bodies. This process is fundamental to ensure that the will of the people, expressed through their votes, remains untainted and refl ects a genuine mandate.
51. If a member of the Lok Sabha is convicted and hence stands disqualifi ed from membership, it is bound to create a vacuum and the electorate he represents would stand unrepresented. This is not peculiar to any one member but common to all members suff ering conviction if at all. Creation of a vacuum is envisaged by the Constitution as well as the RoP Act, with a corresponding obligation to fi ll up the vacancy caused in the manner authorised by law. The remedy which was earlier provided to a disqualifi ed member [sub-section (4) of section 8, RoP Act] no longer survives. Extraordinary circumstances put forth by an elected member suff ering a disqualifi cation and urging consideration of his case for staying a conviction must necessarily involve a level of exceptionality which is beyond the routine. In any case, the lack of representation of the electorate stemming from the vacancy can always be addressed by organizing an immediate by-election. Hence, it seems to be debatable whether mere lack of representation of the electorate should at all be deemed to be an exceptional reason for stay of a conviction or suspension of execution of a conviction.
52. A summary of the above discussion is that allowing a convicted parliamentarian to attend parliamentary proceedings could not only be derogatory to the dignity of the Parliament but also derogatory to the good sense and wisdom of the people who elected such parliamentarian. The robust democratic foundation envisioned in the Constitution fi nds its purest manifestation in the RoP Act; the democratic spirit inherent in the Constitution, therefore, pervades through section 8 of the RoP Act, giving primacy to nothing but the rule of law. Against this backdrop, the standard applied to stay the conviction of a parliamentarian ought to attract a higher standard and the disability stemming from the conviction cannot be forestalled using the identical standard prescribed for suspending the execution of the sentence or order appealed against. In view of a parliamentarian occupying a coveted position of trust and confi dence, a more stringent standard is imperative to suspend the conviction. Even if not subject to a heightened standard, the standard must not be lowered in cases where the requisites laid down by precedents are not followed, and under no circumstances should it be relaxed solely on account of the parliamentarian’s elevated status. While the standard for suspending a conviction is contingent upon the unique facts and circumstances of each case, it remains unequivocal that regardless of the individual seeking a stay of conviction, only under exceptional circumstances, as demonstrated before an “Appellate Court” wielding authority under section 389(1), Cr. PC, could a stay of conviction be granted but obviously based on reasons to be recorded by such court in its order.
53. With these prefatory words, I move on to decide the question noted at the beginning of this judgment.
54. Based on the submissions made by Dr. Singhvi, the impression sought to be given by the appellant is that his is an exceptional case and grant of relief, as claimed, is merited because (i) the judgment and order of the Trial Court recording conviction against him is latently and patently infi rm; (ii) Ghazipur constituency, represented by him in the Lok Sabha for the term 2019-2024, would go unrepresented during the rest of the term; (iii) he would lose his Constitutional right to contest the forthcoming elections scheduled in 2024; and (iv) fi nalising and completing the more than two dozen projects initiated by him under the MPLAD Scheme would be adversely aff ected, so much so that irreversible harm and injustice is inevitable.
55. It is no doubt true that if a judgment of conviction is outrageously in defi ance of reason and logic and appears to be unsustainable without elaborate arguments being required to be advanced to satisfy the Court in that behalf, the same could aff ord a ground for suspending the execution of the conviction or, in a rare situation, even for staying the conviction. In the latter case too, however, the infi rmities in the judgment of conviction per se would not be enough to justify a stay. The convict seeking stay is required not only to make a distinct prayer for stay but he is also obliged, in view of the long line of precedents, to plead irreversible consequences that could befall him if the stay were not granted. Such pleaded consequences would then have to be examined with a view to ascertain whether something very harmful or untoward or serious would happen, which is irreversible. At the same time, the court ought to be careful not to express a view which even AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] directly or indirectly has an eff ect on the decision-making process at the time the appeal is decided. However, the present is not such a case where at this stage it can be contended with the requisite degree of conviction that the judgment and order dated 29th April, 2023 of the Trial Court, in no case, would be sustained by the High Court; hence, it is prudent to stay away from examining whether the judgment recording conviction suff ers from such infi rmities so as to warrant a stay of conviction. That is a matter for the High Court to examine at the fi rst instance and any view, for that matter even a prima facie, at this stage, could prejudice a party to the appeal. It is, therefore, left to the High Court to take a call on sustainability or the lack of it qua the impugned judgment and order.
56. While endeavouring to consider the prayer made before this Court for stay of conviction, and an altogether new prayer for stay of the notifi cation issued by the Lok Sabha Secretariat published in the Gazette of India dated 1st May, 2023, the settled principles of law as well as a proper understanding of the Constitution and the RoP Act, particularly in the light of the decisions of this Court as to the right ‘to elect’ as well as the right ‘to be elected’, have to be borne in mind. Such an endeavour would also necessarily require taking note of the submission of learned ASG that the grounds now urged before this Court by the appellant of the consequences that he is likely to suff er if the conviction be not stayed, and the new prayer, were never urged/made before the High Court.
57. It was pithily stated by this Court in Jyoti Basu v. Debi Ghosal22 that: “8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation.” 22 (1982) 1 SCC 691
58. In Pradeep Kumar Sonthalia v. Dhiraj Prasad Sahu23, a 3-Judge Bench of this Court while approving Jyoti Basu (supra) observed that what one has to keep in mind while interpreting the phrase appearing in section 8(3) is that, in cases of this nature, the Court is not dealing with a Fundamental Right or a common law right.
59. Further, the law is crystal clear that the right to represent a constituency cannot be construed as a Fundamental or an absolute right. In Ashish Shelar v. Maharashtra Legislative Assembly24, another 3-Judge Bench of this Court, dealing with the suspension of certain members of the Legislative Assembly of Maharashtra, observed thus: “60….It is true that right to vote and be represented is integral to our democratic process and it is not an absolute right. Indeed, the constituency cannot have any right to be represented by a disqualifi ed or expelled Member.”
60. As the precedents on similar controversies would reveal, this is not the solitary instance of a (disqualifi ed) member of the Lok Sabha who, in a bid to escape from the operation of law, is seeking refuge in purported irreversible consequences to be suff ered by his constituents. It is unfortunate that in a democracy of this magnitude, criminalisation has always been a ubiquitous parasite aff ecting democratic principles and ideals. In this light, this Court has had the occasion to decide matters involving myriad forms of criminalisation of politics; however, in no manner can the mandate of the people be pitted against that of a statute simply to nullify such disqualifi cation. This essence of the appellant’s argument, when juxtaposed with the purpose of the RoP Act, pales into insignifi cance being a bizarre attempt to use the electorate as a shield to maintain incumbency against clear statutory intent.
61. In a functional democracy, the electorate’s right to have its elected representative voice its interests before the Parliament/Legislative Assemblies is a cornerstone of the system. This is why the factor of the electorate going unrepresented, in case a conviction recorded against an 23 (2021) 6 SCC 523 24 (2022) 12 SCC 273 AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] elected representative is not stayed, assumes some importance. However, one cannot simply brush aside that those who voted in favour of the appellant must have reposed full faith and confi dence in him, with the thought that their interests would be best served if he were elected. Out of these electors, there could be some who may not be willing to have their interests represented by the appellant who has been convicted, not to speak of the cross-section of the electorate who voted against him and who, in all probability, would like to have the voice of such tainted member silenced for all intents and purposes. In such fact situation, should a convict merely because of his status as a member of the Lok Sabha/Legislative Assembly, particularly when only a few months remain for a new Lok Sabha to be formed, be given special treatment when in ordinary circumstances, such treatment may not be available to the common citizen? The answer to this question, I am inclined to think, is a simple “NO” unless, of course, it is shown that grave injustice and irreversible consequences would follow a refusal by the competent court to stay the conviction.
62. It has neither been shown from the application fi led before the High Court under section 389(1), Cr. PC that the appellant did specifi cally pray for stay of the conviction nor did I fi nd the same therein; hence, question of the appellant suffering grave injustice and irreversible consequences would have to take a back seat, considering the absence of any such specifi c prayer. This is the fi rst, though not the foremost, ground for not considering the prayer of the appellant favourably.
63. Moving on, it is paramount that sight is not lost of the fact of disqualifi cation arising under section 8 of the RoP Act which indeed is the ramifi cation – a statutory corollary of sorts – of the conviction and sentence imposed by the Trial Court. By the time the appellant approached the High Court with the application under section 389(1), Cr. PC sometime in the second week of May, 2023, his disqualifi cation had taken eff ect pursuant to the Notifi cation of the Lok Sabha Secretariat being published in the Gazette of India dated 1st May, 2023. In view of the observation of the Constitution Bench in K. Prabhakaran (supra), the High Court having been approached could have, exercising jurisdiction under section 389(1), only suspended execution of the conviction or the order appealed against. Even if the High Court exercised the jurisdiction under section 389(1) or its inherent jurisdiction under section 482, Cr. PC to stay the conviction, the disqualifi cation that had taken eff ect and notifi ed vide the Gazette Notifi cation would continue to remain unaff ected unless the conviction itself was stayed. Realising that the appellant did not specifi cally pray for stay of conviction before the High Court and that a stay of the notifi cation is essential, wise counsel must have dawned on the appellant, for, it is found that a challenge to such a notifi cation has been laid for the fi rst time in this appeal. It is understandable that despite such notifi cation having seen the light of the day when the appellant had approached the High Court, the same could not have been challenged and a stay thereof obtained in an application under section 389, Cr. PC. In the absence of any prayer for stay of conviction before the High Court to off set the said notifi cation from remaining operative, no order could have been passed by the High Court staying the conviction. Incidentally, it was also not the prayer of the appellant before the High Court that the conviction be stayed exercising power under section 482, Cr. PC. If the appellant is to be allowed to continue as a member of the Lok Sabha without there being a stay on his conviction, which is also not the prayer here, it would tantamount to usurpation of an offi ce through membership by the appellant without having any right thereto.
64. Still further, considering the principles of law laid down in the precedents noticed above and the factual scenario, one cannot be unmindful of the fact that the appellant did not demonstrate any exceptional circumstance before the High Court to warrant a stay of the conviction, assuming that he did pray so. Despite being obliged, in terms of the dicta in Rama Narang (supra), Ravikant S. Patil (supra) and Lok Prahari (supra), the appellant has cared less to be diligent. The present case manifests the tardy and lethargic attitude of the appellant of having clearly failed to plead any specifi c consequences to show that his case falls under an exceptional category and thereby warrants a stay of the conviction. The four-page application which the appellant fi led before the High Court seeking a stay of conviction under section 389(1) of the Cr. PC, was accompanied by an affi davit spread over twelve pages and containing thirty-fi ve paragraphs. I have read the affi davit in between the lines. More than a couple of paragraphs are devoted to pointing out the infi rmities in the judgment of the Trial Court leading to the appellant’s conviction, which possibly are AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] also the grounds of appeal. In only one of the paragraphs did the appellant plead his disqualifi cation by reason of the notifi cation having been issued by the Lok Sabha Secretariat and vide the concluding paragraph, the High Court was implored to suspend the sentence awarded by the Trial Court together with the conviction.
65. The appellant is an accused in a couple of criminal cases and his conduct is either under investigation or he is standing trial. Not a single mitigating factor was shown by the appellant that could lend support to his case. In such circumstances, can it be concluded that the appellant’s case qualifi es as “exceptional”, thus justifying a stay of the conviction?
66. The present case, as in K.C. Sareen (supra) and Balakrishna Dattatraya Kumbhar (supra), beckons that stay of conviction of the appellant in the circumstances as were presented before the High Court as well as before this Court, could have serious aspersions cast on the integrity of the democratic institutions. Such a power of stay, as and when exercised by the courts, would carry with it the obligation of being extremely circumspect and abundantly cautious necessitating consideration in a judicious manner of all pleaded facts and circumstances. Notwithstanding that the appellant is a (disqualifi ed) member of the Lok Sabha and without the essential pleadings, he cannot legitimately urge that holder of one public offi ce is diff erent from the holder of another public offi ce like the ones referred to above and, therefore, he is entitled to any special treatment. If at all one was to go down that rabbit hole, then the higher burden resting on the shoulders of elected representatives would likely not serve the appellant’s case. Thus, inadequate and insuffi cient pleadings, as assigned by the High Court, is considered a valid ground for upholding the impugned order.
67. Though the fundamental flaw of absence of pleadings in the appellant’s case exposes its vulnerability since its very inception, nonetheless, I am inclined to explore an additional facet fl owing from Dr. Singhvi’s forceful argument that the appellant, being an elected member of the Lok Sabha, stands on the brink of losing the right to represent his constituency in the near future, apart from potentially silencing the voice of the electorate that had previously elected him.
68. As enumerated above, law is well-settled that one needs to plead irreversible consequences to have the conviction stayed, and by extension, get the disqualifi cation lifted. The majority judgment penned by Hon’ble Surya Kant, J. does not also propose to allow the appellant to participate in the remaining sessions of the 17th Lok Sabha.
69. Be that as it may, the claim of the appellant that he would be ineligible to contest the elections to the next Lok Sabha due next year, on account of the conviction suff ered by him, has also failed to impress me. Adhering to the dictum in Rama Narang (supra) and the other decisions following it, and at the risk of repetition, it is observed that nowhere in the application under section 389 did the appellant plead of there being a real prospect of his projection as a candidate from Ghazipur or any other constituency by the party to which he owes allegiance or even as an independent candidate and/or that should his right to contest the election be scuttled by reason of the conviction, irreversible consequences would ensue.
70. The absence of even a whisper in the pleadings before the High Court or this Court that there is a real likelihood of the appellant contesting the elections for the 18th Lok Sabha in 2024 notwithstanding, the oral submission in this behalf does not advance his case either. According to Dr. Singhvi, the appellant would stand to lose the right to represent his constituency on the basis of an untenable conviction and, hence, the same should be stayed. The right of the appellant to represent a constituency or that of a constituency to be represented by the appellant is not a Constitutional right under Article 326 of the Constitution, as faintly submitted on behalf of the appellant in the written note of arguments. Needless to say, Article 326, which is an integral part of Part XV of the Constitution dealing with ‘Elections’, declares that the election to the Lok Sabha and the Legislative Assembly shall be on the basis of universal adult suff rage. What the laws for conducting elections provide is the manner and mode of elections as well as the conditions and modalities which a prospective candidate is required to follow and abide by. It appears from the rejoinder fi led by the wife of the appellant to the counter affi davit of the respondent before the High Court that the appellant is a septuagenarian, suff ering from diverse ailments. The health condition of the appellant having been cited as a ground for grant of bail, it does cast a doubt on his ability to represent a whole constituency coupled with the undeniable circumstance that the appellant will only advance in age with time. Such being the case pleaded before the High Court and even AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] assuming arguendo that the appellant intends to contest the 2024 election, the same is too remote a circumstance that could reasonably be covered by exceptional circumstances warranting a stay of his conviction, far less putting in jeopardy any basis of the Constitution as held in K. Anandan Nambiar (supra). Dr. Singhvi’s argument, though attractive at fi rst blush, needs to be rejected in view of a combined reading of Jyoti Basu (supra), Pradeep Kumar Sonthalia (supra) and Ashish Shelar (supra) where it has been unequivocally laid down that the right to elect and to be elected are statutory rights and not absolute.
71. Heavy reliance placed by Dr. Singhvi on the decision in Rahul Gandhi (supra) to support the claim of the appellant for staying his conviction appears to be misplaced. The appellant herein is convicted under section 3(1) of the Gangsters Act and sentenced to four years’ imprisonment. Section 3(1) thereof prescribes a maximum punishment of ten years and a statutory minimum of two years. Consequently, upon a conviction under section 3(1) of the Gangsters Act being recorded, bereft of judicial discretion, an accused is mandatorily subject to a minimum two-year sentence, triggering an automatic disqualifi cation under section 8 of the RoP Act. In Rahul Gandhi (supra), while staying the conviction, it was specifi cally noted by this Court that the maximum sentence of imprisonment for two years was imposed by the trial court without any accompanying rationale. In contrast, in the present case, where the maximum sentence could be ten years and the appellant was sentenced to four years’ imprisonment, and that too, in the light of his plea for leniency, the reasoning for granting relief in Rahul Gandhi (supra) remains distinguishable and categorically fails to off er any support to the appellant. Insofar as the observation therein regarding the ramifi cation of sub-section (3) of section 8 of the RoP Act being wide- ranging and would aff ect the electorate because of absence of a representative are concerned, it is noted that the same is an observation in the passing and does not constitute the ratio decidendi of the decision. On the contrary, the main reason for grant of relief in Rahul Gandhi (supra), as noted above, was the absence of reasons to impose the maximum sentence. Therefore, such a decision lends no assistance to the appellant.
72. The reasoning adopted by the 2-Judge Bench in Naranbhai Bhikhabhai Kachchadia (supra) resulting in the ultimate relief that was granted, I am minded to hold, turned more on the facts of the case rather than expositing a principle of law worthy of being followed as a precedent. Thus, the said decision falls short of providing appropriate guidance.
73. What remains is the claim of pending projects under the MPLAD Scheme.
74. One may suspect that, for no cause or perhaps for no good cause, the appellant deemed it fi t not to make any mention of any project, far less specifi c mention, pertaining to the MPLAD Scheme before the High Court. Interestingly, although Dr. Singhvi raised this point in course of his oral arguments, the same is conspicuous by its absence in the written note of arguments. Importantly, attention was not drawn to any provision in the relevant MPLAD Scheme which is intended to address any contingency having regard to the appellant’s seat prematurely falling vacant by reason of his conviction. Absolutely no explanation was proff ered by the appellant as to how any project initiated by him under the MPLAD Scheme would suff er owing to his absence, especially in the sunset of the life of the present Lok Sabha. Inter alia, the absence of any such pleadings bears heavy against the grant of stay of the appellant’s conviction where no suffi cient irreversible consequences to the electorate has been made out at such time when fresh elections are only but a few moons away.
75. Despite the appellant not having invited attention, I had the occasion to peruse the ‘MPLAD Scheme Guidelines, 2023’ (“MPLADS Guidelines”, hereafter) to understand the impact of a premature vacancy arising on a seat for a particular constituency. Portion of the MPLADS Guidelines, considered relevant, is reproduced below for convenience: “10.4.7 In case of sudden death or resignation of a Member of Parliament, notwithstanding the allocation formula in para 10.4.3 above, the works which may have been duly sanctioned by the Implementing District Authority as per original eligibility of that Member of Parliament, shall be completed. The entitlement for new incoming Members of Parliament would start afresh in accordance with the said formula.”
76. It is not necessary to closely examine the MPLAD Scheme or the MPLADS Guidelines, yet, Clause 10.4.7 is worth touching upon. It stipulates that upon the death or resignation of a member of AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.] Parliament, the works duly sanctioned as per their original eligibility under the MPLADS Guidelines shall be completed. Clause 10.4.7 does not expressly refer to a vacancy caused by disqualifi cation. It is, however, presumed that even in a case of disqualifi cation of a member of Parliament, the projects initiated by him are not abandoned but taken to its logical end in the manner stipulated in Clause 10.4.7. Such a provision makes this Court wonder as to the role to be played by a member of Parliament, especially at such a belated stage in the term, presuming that the machinery has already started functioning.
77. I am afraid, in case weight towards allowing the present appeal is lent, it could unwittingly cater to condoning the consequences looming large before the appellant arising from his conviction, rather than addressing the purported irreversible consequences faced by the constituency.
78. Indeed, the courts have acknowledged that legislators bear a special duty towards their constituents, and failure to secure a stay of conviction may lead to the loss of the opportunity to contest elections. In isolation, this consideration might serve as a compelling reason to grant a stay of conviction. However, when a parliamentarian/legislator seeks a stay of conviction, he shoulders an additional responsibility of demonstrating how his constituents are likely to endure adverse consequences if the conviction is not stayed. A parliamentarian/legislator cannot be allowed to obtain a ‘double advantage’ where he implores the Court for a stay of conviction being a parliamentarian/legislator while simultaneously failing to provide full disclosure of consequences regardless of what the reasons are, whether due to inadvertence, negligence, or mistake. Failing to do the same, the law should be allowed to take its own course.
79. As the court of last resort, it is the bounden duty of this Court to uphold the rule of law which entails equality before the law and equal subjection of all classes to the ordinary law of the land. No court, much less this Court, should feel chained by misplaced sympathy towards assumed or imagined ramifi cations on the constituency of the parliamentarian/legislator who has been convicted.
80. It would not be out of place to quote Dwight D. Eisenhower, the 34th U.S. President, perhaps in times when democracy faced its toughest test. He said: “the clearest way to show what the rule of law means to us in everyday life is to recall what has happened when there is no rule of law”. This serves as an important reminder. Adoption of the course charted by Dr. Singhvi that a mere disqualifi cation (without anything more being on record) should be considered as amounting to “irreversible consequences”, would inevitably result in this Court sailing in an unnavigable sea of generalization where, upon disqualifi cation suff ered due to the conviction, a parliamentarian would be entitled to an automatic stay on his conviction without the requisite pleadings. While recognizing the importance of the electorate’s representation, it is necessary to maintain a balance between this right and the enforcement of legal accountability within the democratic framework.
81. For the reasons aforesaid, I regret my inability to be ad idem with the majority insofar as grant of relief to the appellant is concerned. I fi nd no reason to interfere with the impugned judgment and order of the High Court. The appeal ought to fail and the same is hereby dismissed.
82. The High Court may, however, decide the appeal on its merits at an early date, subject to its convenience. Headnotes prepared by: Appeal partly allowed. Nidhi Jain AFJAL ANSARI v. STATE OF UP [DIPANKAR DATTA, J.]