Holding

A stay of conviction under Section 389 of the CrPC extinguishes the operation of the disqualification under Section 8 of the Representation of the People Act, 1951.

Summary

Lok Prahari, a society, filed a public‑interest litigation seeking a declaration that a stay of conviction granted by an appellate court does not remove the disqualification of a sitting MLA/MP under Section 8 of the Representation of the People Act, 1951, and that the legislative seat becomes vacant from the date of conviction. The petitioner relied on the conviction of a former Uttar Pradesh MLA under IPC sections 353, 504 and 506, which was stayed by the District Court. The Supreme Court examined whether Section 389 of the Code of Criminal Procedure empowers an appellate court to stay the conviction itself and, if so, whether the disqualification under Section 8 ceases to operate. Relying on earlier decisions (Rama Narang, Lily Thomas, Ravi Kant Patil, etc.), the Court held that a stay of conviction under Section 389 indeed suspends the operation of the conviction and therefore the disqualification does not take effect. Consequently, the petition for mandamus and the declaration sought by the petitioner were dismissed.

Issues considered

The effect of a stay of conviction under Section 389 CrPC on the disqualification provision of Section 8, Representation of the People Act, 1951.
Whether an appellate court has the power to stay a conviction, not merely the sentence.
Whether a legislative seat becomes vacant upon conviction if the conviction is subsequently stayed.

Legislation cited

Code of Criminal Procedure, 1973s. 389
Constitution of Indias. Article 101(3)(a), s. Article 102(1)(e), s. Article 190(3)(a), s. Article 191(1)(e)
Indian Penal Code, 1860s. 353, s. 504, s. 506
Representation of the People Act, 1951s. 8

Subjects

disqualificationstay of convictionSection 389 CrPCRepresentation of the People Actelection lawpublic interest litigationappellate court powerlegislative seat vacancy

Judgment

[2018] 12 S.C.R. 169 169

LOK PRAHARI, THROUGH A
ITS GENERAL SECRETARY S.N. SHUKLA
v.
ELECTION COMMISSION OF INDIA & ORS.
(Writ Petition (Civil) No.330 of 2016) B
SEPTEMBER 26, 2018
[DIPAK MISRA, CJI, A. M. KHANWILKAR AND
DR. D. Y. CHANDRACHUD, JJ.]
C
Representation of the People Act, 1951 – s.8 – Disqualification
u/s.8 on conviction for certain offences – Stay of conviction by the
Appellate Court – Effect of – Held: Upon the stay of a conviction
u/s. 389 of Cr.P.C., the disqualification u/s.8 will not operate – The
Appellate Court has power, in an appropriate case, to stay the
conviction u/s.389 of Cr.P.C. besides suspending the sentence – D
The power to stay conviction is by way of an exception – Before, it
is exercised, the Appellate Court must be made aware of the
consequence which will ensue if the conviction were not to be stayed
– Once the conviction has been stayed by the Appellate Court, the
disqualification under sub-sections 1, 2 and 3 of s.8 of the Act will E
not operate – In other words, the disqualification which operated
as a consequence of the conviction cannot take or remain in effect
– Code of Criminal Procedure, 1973 – s.389 – Penal Code, 1860 –
ss. 353, 504 and 506 – Constitution of India – Arts.102(1)(e) and
191(1)(e).
F
An erstwhile member of the State Legislative Assembly
was convicted u/ss. 353, 504 and 506 of IPC and was sentenced
to imprisonment. In appeal, District Court stayed the execution
of the sentence and of the conviction. The Petitioner filed PIL
before the High Court seeking declaration that MLA was
disqualified u/s.8 of the Act notwithstanding the stay granted by G
the Sessions Judge. PIL dismissed by the High Court. Hence,
the present writ petition.
Dismissing the Writ petition, the Court
HELD: 1. The Supreme Court has settled the position on
the effect of an order of an appellate court staying a conviction H
169
170 SUPREME COURT REPORTS [2018] 12 S.C.R.

A pending the appeal in its various judgments. Upon the stay of a
conviction under Section 389 of Cr.P.C., the disqualification
under Section 8 of Representation of People Act, 1951 will not
operate. The decisions in Ravi Kant Patil and Lily Thomas
conclude the issue. Since the decision in Rama Narang, it has
been well-settled that the appellate court has the power, in an
B
appropriate case, to stay the conviction under Section 389 of
Cr.P.C. besides suspending the sentence. The power to stay a
conviction is by way of an exception. Before it is exercised, the
appellate court must be made aware of the consequence which
will ensue if the conviction were not to be stayed. Once the
C conviction has been stayed by the appellate court, the
disqualification under sub-sections 1, 2 and 3 of Section 8 of the
Representation of the People Act 1951 will not operate. Under
Article 102(1)(e) and Article 191(1)(e) of the Constitution, the
disqualification operates by or under any law made by Parliament.
Disqualification under the above provisions of Section 8 follows
D
upon a conviction for one of the listed offences. 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. In view of the
consistent statement of the legal position in Rama Narang and in
E decisions which followed, there is no merit in the submission
that the power conferred on the appellate court under Section
389 does not include the power, in an appropriate case, to stay
the conviction. Clearly, the appellate court does possess such a
power. Moreover, it is untenable that the disqualification which
ensues from a conviction will operate despite the appellate court
F
having granted a stay of the conviction. The authority vested in
the appellate court to stay a conviction ensures that a conviction
on untenable or frivolous grounds does not operate to cause
serious prejudice. As the decision in Lily Thomas has clarified, a
stay of the conviction would relieve the individual from suffering
G the consequence inter alia of a disqualification relatable to the
provisions of sub-sections 1, 2 and 3 of Section 8 of the 1951 Act.
[Para 14] [181-D-H; 182-A-B]
Lily Thomas v. Union of India (2013) 7 SCC 653 :
[2013] 10 SCR 1130 ; Rama Narang v. Ramesh Narang
H
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. 171
ELECTION COMMISSION OF INDIA

(1995) 2 SCC 513 : [1995] 1 SCR 456 ; Ravikant S A
Patil v. Sarvabhouma S Bagali (2007) 1 SCC 67 :
[2006] 8 Suppl. SCR 1156 – relied on.
B R Kapur v. State of Tamil Nadu (2001) 7 SCC 231 :
[2001] 3 Suppl. SCR 191 ; P V Narasimha Rao v.
State (CBI/SPE) (1998) 4 SCC 626 : [1998] 2 SCR B
870 ; Navjot Singh Sidhu v. State of Punjab AIR 2007
SC 1003 : [ 2007] 1 SCR 1143 ; State of Tamil Nadu v.
A. Jaganathan (1996) 5 SCC 329 : [1996] 3 Suppl.
SCR 572 ; K.C. Sareenv CBI, Chandigarh (2001) 6
SCC 584 ; State of Maharashtra v. Gajanan (2003) 12
SCC 432 – referred to. C

Case Law Reference
[2001] 3 Suppl. SCR 191 referred to Para 4
[2013] 10 SCR 1130 relied on Para 6
D
[1998] 2 SCR 870 referred to Para 6
[1995] 1 SCR 456 relied on Para 10
[2007] 1 SCR 1143 referred to Para 11
[1996] 3 Suppl. SCR 572 referred to Para 12
E
(2001) 6 SCC 584 referred to Para 12
(2003) 12 SCC 432 referred to Para 12
[2006] 8 Suppl. SCR 1156 relied on Para 14

F
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil)
No. 330 of 2016.
Maninder Singh, ASG, R. Balasubramanian, Nalin Kohli, Prabhas
Bajaj, Ms. Aarti Sharma, Ankit Roy, Indra Jeet Singh, Mukesh Kumar
Maroria, Mohit D. Ram, Ms. Monisha Handa, S. S. Shamshery, Amit G
Sharma, Ankit Raj, Ms. Indira Bhakar, R. C. Kohli, Nishant Ramakantrao
Katneshwarkar, Ms. Deepa M. Kulkarni, Ms. Suvarna Ganu, Advs.
for the Respondents.
Petitioner-in-person.
H
172 SUPREME COURT REPORTS [2018] 12 S.C.R.

A The Judgment of the Court was delivered by
DR. DHANANJAYA Y. CHANDRACHUD, J. 1. The
petitioner, Lok Prahari, is a society registered under the Societies’
Registration Act 1860 with objects pertaining to public governance and
administration. It has invoked the jurisdiction of this Court under Article
B 32 of the Constitution, in the present Public Interest Litigation through its
General Secretary, who appeared in person. The following amongst other
reliefs have been sought:
1 “Declare that since the law does not provide for stay of
conviction, even in case of stay of conviction by the appellate
C court for an offence attracting disqualification under Section 8 of
RP Act, 1951, any such stay order does not have the effect of
wiping out the disqualification and reviving the membership with
retrospective effect and consequently, the seat of the concerned
member is deemed to have beome vacant with effect from the
date of conviction in terms of Article 101(3)(a) and 190(3)(a) of
D
the Constitution.
2 Declare that as a consequence of the declaration as per 1
above, any member of Parliament of State legislature who
becomes subject to disqualification mentioned in Article 102(1)(e)
or 190(1)(e) shall be liable to penalty under Article 104/193
E notwithstanding any order of the appellate/ revisional court
purporting to stay his conviction for an offence attracting
disqualification mentioned in Section 8 of RP Act, 1951....
3 issue a writ, order of direction in the nature of Mandamus to
the respondent no. 1 to issue within 24 hours of receipt of certified
F copy of the judgment and order regarding sentence the notification
regarding disqualification and consequent vacancy of the seat of
the concerned MP/MLA/MLC with effect from the date of his/
her conviction as a result of his/her disqualification for an offence
under Section 8(1)(2) and (3) of the Representation of the People
G Act, 1951.
4 issue a writ, order or direction in the nature of Mandamus to the
respondent no. 1 to ensure action for filing the vacancy of the
seat of a member of Parliament/State legislature as per Section
151 of the RP Act, 1951 disregarding any order of the appellate/
H
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 173
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

revisional court purporting to stay of conviction for an offence A
attracting disqualification mentioned in Section 8 of RP Act,
1951....”
2. An erstwhile member of the Legislative Assembly in the State
of Uttar Pradesh was convicted of offences under Sections 353, 504
and 506 of the Penal Code and was sentenced to imprisonment. In appeal, B
the District Court stayed the execution of the sentence and of the
conviction.
3. The petitioner instituted a Public Interest Litigation before the
Lucknow Bench of the High Court of Allahabad, seeking a declaration
that the MLA stood disqualified notwithstanding the stay granted by the C
Sessions Judge. The PIL was dismissed by the High Court on the ground
that since the appellate court stayed the conviction, the disqualification,
which would otherwise stand attracted, would not operate from the date
on which the conviction has been stayed.
4. The petitioner urges that the seat held by a Member of D
Parliament or of the State legislature becomes vacant upon a
disqualification being incurred under Article 102 or Article 191,
respectively. According to the petitioner, once the disqualification is
incurred under Section 8 of the Representation of the People Act 1951
read with Article 102(1)(e) or Article 191(1)(e), the seat becomes
vacant effective from the date of conviction. Relying on the decision of E
this Court in B R Kapur v State of Tamil Nadu1,the petitioner
contends that under Section 389 of Cr.P.C. the appellate court does not
have the power to stay conviction and can stay only the execution of
sentence.
Article 102 of the Constitution provides thus: F
“102. (1) A person shall be disqualified for being chosen as, and
for being, a member of either House of Parliament—
(a) if he holds any office of profit under the Government of India
or the Government of any State, other than an office declared by
Parliament by law not to disqualify its holder; G
(b) if he is of unsound mind and stands so declared by a competent
court;
(c) if he is an undischarged insolvent;
1
(2001) 7 SCC 231 H
174 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (d) if he is not a citizen of India, or has voluntarily acquired the
citizenship of a foreign State, or is under any acknowledgment of
allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
[Explanation.—For the purposes of this clause] a person shall not
B be deemed to hold an office of profit under the Government of
India or the Government of any State by reason only that he is a
Minister either for the Union or for such State. 2 [(2) A person
shall be disqualified for being a member of either House of
Parliament if he is so disqualified under the Tenth Schedule.]”
C Article 191 of the Constitution provides a disqualification in similar
terms for membership of a legislative assembly or legislative council of
a state.
The relevant provision in Section 8 of the Representation of the
People Act 1951 reads thus:
D
“8. Disqualification on conviction for certain offences.—
[(1) A person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence,
E language, etc., and doing acts prejudicial to maintenance of
harmony) or section 171E (offence of bribery) or section 171F
(offence of undue influence or personation at an election) or sub-
section (1) or sub-section (2) of section 376 or section 376A or
section 376B or section 376C or section 376D (offences relating
to rape) or section 498A (offence of cruelty towards a woman by
F
husband or relative of a husband) or sub-section (2) or sub-section
(3) of section 505 (offence of making statement creating or
promoting enmity, hatred or ill-will between classes or offence
relating to such statement in any place of worship or in any
assembly engaged in the performance of religious worship or
G religious ceremonies) of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which
provides for punishment for the preaching and practice of
“untouchability”, and for the enforcement of any disability arising
therefrom; or
H
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 175
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

(c) section 11 (offence of importing or exporting prohibited goods) A
of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an association
declared unlawful, offence relating to dealing with funds of an
unlawful association or offence relating to contravention of an
order made in respect of a notified place) of the Unlawful Activities B
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985
(61 of 1985); or
C
(g) section 3 (offence of committing terrorist acts) or section 4
(offence of committing disruptive activities) of the Terrorist and
Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of section
3 to 6) of the Religious Institutions (Prevention of Misuse) Act, D
1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes in
connection with the election) or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence of
booth capturing) or clause (a) of sub-section (2) of section 136
E
(offence of fraudulently defacing or fraudulently destroying any
nomination paper) of this Act; 1 [or]
[(j) section 6 (offence of conversion of a place or worship) of the
Places of Worship (Special Provisions) Act 1991], [or]
[(k) section 2 (offence of insulting the Indian National Flag or the F
Constitution of India) or section 3 (offence of preventing singing
of National Anthem) of the Prevention of Insults to National
Honour Act, 1971 (69 of 1971) 4 [or];]
[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or G

(n) the Prevention of Terrorism Act, 2002 (15 of 2002),]
[shall be disqualified, where the convicted person is sentenced
to—
H
176 SUPREME COURT REPORTS [2018] 12 S.C.R.

A (i) only fine, for a period of six years from the date of such
conviction;
(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years since
his release.]
B (2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or profiteering;
or
(b) any law relating to the adulteration of food or drugs; or
C (c) any provisions of the Dowry Prohibition Act, 6 [1961 (28 of
1961);],
and sentenced to imprisonment for not less than six months, shall
be disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his release.]
D
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any offence
referred to in sub-section (1) or sub-section (2)] shall be disqualified
from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.]”
E 5. It has been contended by the petitioner that there is no
provision in the Constitution or in the Representation of the People Act
1951 to the effect that upon a subsequent stay of conviction by the
appellate or revisional court, the disqualification shall stand wiped out
retrospectively and that the membership of a convicted Member of
F Parliament or of the Legislative Assembly or Council shall get revived
despite the vacancy having occurred from the date of conviction. It has
been urged that in the absence of any constitutional or statutory
provision, stay of conviction can only operate prospectively to enable a
person to contest an election again since membership of the legislature
terminates instantly from the date of conviction.
G
6. In response to the present proceedings, a counter affidavit dated
10 April, 2015 has been filed on behalf of the Election Commission of
India stating that:

H
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 177
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

i) The Election Commission of India supports the first prayer in the A
present Public Interest Litigation;
ii) The Election Commission of India has issued instructions on 13
October 2015 by which it has required the Chief Secretaries to
issue appropriate instructions to the department dealing with
prosecutions in States and Union Territories to ensure that cases B
of conviction of sitting Members of Parliament or of the State
legislature are brought to the notice of the Speaker or Chairman
of the House and the Chief Electoral Officer of the State along
with the order of conviction within seven days of the order;
iii) In the decision of this Court in Lily Thomas v Union of India2 C
it was observed that there is an automatic disqualification upon
conviction and there is no question of postponing the effect of the
disqualification on the ground of giving the member of the
legislature an opportunity to exhaust the remedy of appeal and a
subsequent stay of conviction cannot retrospectively cure the
disqualification; and D

iv) For the purpose of filling the seat which has fallen vacant, it
would not be necessary to await the decision of the President or
Governor under Articles 103 and 192. No decision by the
President or Governor is required on the question of
disqualification arising out of conviction. In view of the decision in E
PV Narasimha Rao v State (CBI/SPE)3,only a ‘disputed’
question of disqualification is to be referred to the President or
Governor.
7. The Union government has opposed the petition. In the counter
affidavit which has been filed on behalf of the Union of India through F
the Secretary in the Department of Justice, Ministry of Law and Justice,
it has been submitted that the issues raised in the present petition have
already been considered and decided in the decision of this Court in Lily
Thomas(supra). Moreover, it has been submitted that no challenge has
been addressed in the present petition to any provision of the Act or the G
Rules made under it. The petitioner has only relied on the provisions of
law and on judicial pronouncements on the subject of disqualification on
conviction.
2
(2013) 7 SCC 653
3
(1998) 4 SCC 626
H
178 SUPREME COURT REPORTS [2018] 12 S.C.R.

A 8. In response to the Counter affidavit filed by the first
Respondent, a Rejoinder dated 20 February 2017 has been filed by the
petitioner stating that:
i) The role of the Election Commission commences immediately
with the conviction of a sitting legislator. The EC need not await
B the receipt of a notification regarding the disqualification and of
the vacancy in the seat by the Secretariat of the legislative body;
and
ii) There exists no legal requirement of a notification regarding the
vacancy in the seat in view of the categorical provision in Article
101(3)(2) and Article 190(3)(a) of the Constitution that the seat
C becomes vacant upon conviction.
9. In response to the Counter affidavit filed by the second
Respondent, a Rejoinder dated 10 November 2017 has been filed by
petitioner submitting thatrevival of membership retrospectively after a
conviction is stayed, will open a floodgate with convicted MPs/ MLAs/
D MLCs approaching the appellate/ revisional court to get a stay on
conviction enabling them to continue even without the protection of
Section 8(4) of the Representation of the People Act 1951.
10. Section 3894 Section of the Code of Criminal Procedure, 1973,
empowers the appellate court, pending an appeal by a convicted person
4
Section 389 provides as follows :
E “Suspension of sentence pending the appeal; release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to
be recorded by it in writing, order that the execution of the sentence or order appealed
against be suspended and, also, if he is in confinement, that he be released on bail, or on
his own bond.
(2) The power conferred by this section on an Appellate Court may be exercised also
F by the High Court in the case of an appeal by a convicted person to a Court subordinate
thereto.
(3) Where the convicted person satisfies the Court by which he is convicted that he
intends to present an appeal, the Court shall,-
(i) where such person, being on bail, is sentenced to imprisonment for a term not
exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he
G is on bail, order that the convicted person be released on bail, unless there are special
reasons for refusing bail, for such period as will afford sufficient time to present the
appeal and obtain the orders of the Appellate Court under sub- section (1); and the
sentence of imprisonment shall, so long as he is so released on bail, be deemed to be
suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to
imprisonment for life, the time during which he is so released shall be excluded in
H computing the term for which he is so sentenced.”
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 179
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

and for reasons to be recorded in writing to order that the execution of a A
sentence or order appealed against, be suspended. In the decision in
Rama Narang v Ramesh Narang5, a Bench of three judges of this
Court examined the issue as to whether the court has the power to
suspend a conviction under Section 389 (1). This Court held that an
order of conviction by itself is not capable of execution under the Code
B
of Criminal Procedure, 1973. But in certain situations, it can become
executable in a limited sense upon it resulting in a disqualification under
other enactments. Hence, in such a case, it was permissible to invoke
the power under Section 389 (1) to stay the conviction as well. This
Court held:
“19. That takes us to the question whether the scope of Section C
389(1) of the Code extends to conferring power on the Appellate
Court to stay the operation of the order of conviction. As stated
earlier, if the order of conviction is to result in some disqualification
of the type mentioned in Section 267 of the Companies Act, we
see no reason why we should give a narrow meaning to Section D
389(1) of the Code to debar the court from granting an order to
that effect in a fit case. The appeal under Section 374 is essentially
against the order of conviction because the order of sentence is
merely consequential thereto; albeit even the order of sentence
can be independently challenged if it is harsh and disproportionate
to the established guilt. Therefore, when an appeal is preferred E
under Section 374 of the Code the appeal is against both the
conviction and sentence and therefore, we see no reason to place
a narrow interpretation on Section 389(1) of the Code not to extend
it to an order of conviction, although that issue in the instant case
recedes to the background because High Courts can exercise F
inherent jurisdiction under Section 482 of the Code if the power
was not to be found in Section 389(1) of the Code.”
11. In Navjot Singh Sidhu v State of Punjab6 a Bench of two
learned judges of this Court held that a stay of the order of conviction by
an appellate court is an exception, to be resorted to in a rare case, after
the attention of the appellate court is drawn to the consequences which G
may ensue if the conviction is not stayed. The court held:
“The legal position is, therefore, clear that an appellate Court can
suspend or grant stay of order of conviction. But the person seeking
5
(1995) 2 SCC 513
6
AIR 2007 SC 1003 H
180 SUPREME COURT REPORTS [2018] 12 S.C.R.

A stay of conviction should specifically draw the attention of the
appellate Court to the consequences that may arise if the conviction
is not stayed. Unless the attention of the Court is drawn to the
specific consequences that would follow on account of the
conviction, the person convicted cannot obtain an order of stay of
conviction. Further, grant of stay of conviction can be resorted to
B
in rare cases depending upon the special facts of the case.”
12. The above position was reiterated by a Bench of three judges
of this Court in Ravikant S Patil v Sarvabhouma S Bagali7, after
adverting to the earlier decisions on the issue, viz. Rama Narang v
Ramesh Narang(supra),State of Tamil Nadu v A. Jaganathan8, K.C.
C Sareen v CBI, Chandigarh9, B.R. Kapur v State of T.N. (supra) and
State of Maharashtra v Gajanan.10 This Court concluded as follows:-
“It deserves to be clarified that an order granting stay of conviction
is not the rule but is an exception to be resorted to in rare cases
depending upon the facts of a case. Where the execution of the
D sentence is stayed, the conviction continues to operate. But where
the conviction itself is stayed, the effect is that the conviction will
not be operative from the date of stay. As order of stay, of course,
does not render the conviction non-existent, but only non-operative.
Be that as it may. Insofar as the present case is concerned, an
E application was filed specifically seeking stay of the order of
conviction specifying that consequences if conviction was not
stayed, that is, the appellant would incur disqualification to contest
the election. The High Court after considering the special reason,
granted the order staying the conviction. As the conviction itself
is stayed in contrast to a stay of execution of the sentence, it is
F not possible to accept the contention of the respondent that the
disqualification arising out of conviction continues to operate even
after stay of conviction.”
13. In Lily Thomas(supra),it was urged that in the absence of
Section 8(4), a Member of Parliament or of the State Legislature would
G be left without a remedy even if the conviction was “frivolous”. Rejecting
the submission, this Court held (relying on Ravi Kant Patil(supra):
7
(2007) 1 SCC 673
8
(1996) 5 SCC 329
9
(2001) 6 SCC 584
10
(2003) 12 SCC 432
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LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 181
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

“In the aforesaid case, a contention was raised by the respondents A
that the appellant was disqualified from contesting the election to
the Legislative Assembly under sub-section (3) of Section 8 of
the Act as he had been convicted for an offence punishable under
Sections 366 and 376 of the Penal Code and it was held by the
three-Judge Bench that as the High Court for special reasons had
B
passed an order staying the conviction, the disqualification arising
out of the conviction ceased to operate after the stay of conviction.
Therefore, the disqualification under sub-sections (1), (2) or (3)
of Section 8 of the Act will not operate from the date of order of
stay of conviction passed by the appellate court under Section
389 of the Code or the High Court under Section 482 of the C
Code.”11
14. These decisions have settled the position on the effect of an
order of an appellate court staying a conviction pending the appeal. Upon
the stay of a conviction under Section 389 of the Cr.P.C., the
disqualification under Section 8 will not operate. The decisions in Ravi D
Kant Patil and Lily Thomas conclude the issue. Since the decision in
Rama Narang, it has been well-settled that the appellate court has the
power, in an appropriate case, to stay the conviction under Section 389
besides suspending the sentence. The power to stay a conviction is by
way of an exception. Before it is exercised, the appellate court must be
made aware of the consequence which will ensue if the conviction were E
not to be stayed. Once the conviction has been stayed by the appellate
court, the disqualification under sub-sections 1, 2 and 3 of Section 8 of
the Representation of the People Act 1951 will not operate. Under
Article 102(1)(e) and Article 191(1)(e), the disqualification operates by
or under any law made by Parliament. Disqualification under the above F
provisions of Section 8 follows upon a conviction for one of the listed
offences. 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. In view of the consistent
statement of the legal position in Rama Narang and in decisions which
followed, there is no merit in the submission that the power conferred on G
the appellate court under Section 389 does not include the power, in an
appropriate case, to stay the conviction. Clearly, the appellate court does
possess such a power. Moreover, it is untenable that the disqualification
11
Id at page 673
H
182 SUPREME COURT REPORTS [2018] 12 S.C.R.

A which ensues from a conviction will operate despite the appellate court
having granted a stay of the conviction. The authority vested in the
appellate court to stay a conviction ensures that a conviction on
untenable or frivolous grounds does not operate to cause serious
prejudice. As the decision in Lily Thomas has clarified, a stay of the
conviction would relieve the individual from suffering the consequence
B
inter alia of a disqualification relatable to the provisions of sub-sections
1, 2 and 3 of Section 8.
15. Finally, we may address the relief which has been sought in
prayer clause 5 by which a direction has been sought to the Union
Government through the Secretary in the Department of Justice,
C Ministry of Law and Justice, the second Respondent. Prayer clause 5
reads as follows :
“5. Issue a writ, order or direction in the nature of the Mandamus
to the respondent no. 2 to-

D (i) issue a circular to the Registrar General/Registrars of all High
Courts to issue suitable instructions to all District and Sessions
Judges to ensure that 2 certified copies of the judgments in cases
attracting disqualification of a sitting MP/MLA/MLC under
Article 102/191 of the Constitution are made available to the state
counsel within 24 hours from the delivery of order regarding
E sentence for submission to the concerned District Magistrate,
(ii) issue a circular to the Chief Secretaries of the States/Union
Territories for issuing suitable instructions to District Magistrates
and the District Government Counsel to send by speed post/
special messenger one certified copy of the judgment and order
F regarding sentence to the Chief Election Officer of the state and
the other certified copy to the Secretary General/Principal
Secretary/Secretary of the concerned House (Lok Sabha/Rajya
Sabha/Legislative Assembly/Legislative Council.”
16. No such direction can be issued by the Secretary in the
G Department of Justice to the Registrars General of the High Courts.
Moreover, following the implementation of the e-courts project, certified
copies of judgments are made available across all courts in a
streamlined manner. The affidavit filed by the Election Commission of

H
LOK PRAHARI, THR. ITS GEN. SECY. S.N. SHUKLA v. ELECTION 183
COMMISSION OF INDIA [DR. D.Y. CHANDRACHUD, J.]

India indicates that the Commission has already issued instructions on A
13 October 2015 to the Chief Secretaries of all states to ensure that
necessary steps are taken to bring to the notice of the Speaker or
Chairman as the case may be of the House and the Chief Electoral
Officer of the state, an order of conviction within a period of seven days
of the passing of the order. The Election Commission is sufficiently
B
empowered to take appropriate steps in accordance with law. No
further directions are necessary in that regard.
17. The writ petition shall accordingly stand dismissed. Pending
application, if any, is accordingly disposed of. There shall be no order as
to costs.
C

Ankit Gyan Writ Petition dismissed.

D

E

F

G

H