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The Supreme Court on Thursday conditionally suspended the conviction of former Bahujan Samaj Party MP Afzal Ansari in a 2007 Gangsters Act case, saying his Ghazipur constituency will be deprived of its legitimate representation in the legislature since a by-election may not be held given the remaining tenure of the current Lok Sabha.
A bench of Justices Surya Kant, Dipankar Datta and Ujjal Bhuyan, in a majority judgement of 2:1, directed that the Ghazipur parliamentary constituency shall not be notified for by-election in terms of provisions of the Representation of the People Act till the high court has decided Ansari's appeal against his conviction.
While Justice Kant and Bhuyan delivered the majority verdict, Justice Datta dismissed Ansari's appeal against the Allahabad high court order.
The majority verdict said, "The appellant (Ansari) shall, however, not be entitled to participate in the proceedings of the House. He shall also not have the right to cast his vote in the House or to draw any perks or monetary benefits.”
It said the continuance of Members of Parliament Local Area Development schemes in Ghazipur parliamentary constituency in Uttar Pradesh, without Ansari being associated for the release of grants for such schemes, is not an irrevocable consequence as all such schemes can be given effect, even in the absence of the local parliamentary representative.
The bench said Ansari shall not be disqualified from contesting future elections during the pendency of his criminal appeal before the high court and, if elected, such election will be subject to the outcome of the appeal.
"The high court shall make an endeavour to decide the appellant's criminal appeal expeditiously and before June 30, 2024," it said.
The majority verdict said 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," it said.
It said this would potentially lead to de facto incarceration of Ansari for a period of four years under the UP Gangsters Act, and an additional six-year disqualification period, even if he is eventually acquitted, which would effectively disqualify him from contesting elections for a period of 10 years.
"While contemplating to invoke the concept of ‘moral turpitude' as a decisive factor in granting or withholding the suspension of conviction for an individual, there is a resounding imperative to address the issue of depoliticising criminality," the bench said. It said there has been an increasing clamour to decriminalise polity and hold elected representatives accountable for their criminal antecedents.
"It is a hard truth that persons with a criminal background are potential threats to the very idea of democracy since they often resort to criminal means to succeed in elections and other ventures. In the present context too, substantial doubt has been cast upon the appellant's criminal antecedents along with the veracity and threat posed by these claims in light of the many FIRs that have been produced in these proceedings," the bench said in its 75-page verdict.
Terming societal interest an equally important factor which ought to be zealously protected and preserved by the courts, the bench said, it would be appropriate for the courts to balance the interests of protecting the integrity of the electoral process on one hand, while also ensuring that constituents are not bereft of their right to be represented, merely consequent to a threshold opinion, which is open to further judicial scrutiny.
"It is therefore imperative to weigh the competing interests presented by both the appellant and the State," it said.
The majority verdict said since Ansari's pending appeal before the high court raises significant legal and factual issues, it was exigent that his future not be left hanging in the balance solely due to the conviction.
"In such instances, where the appellant's disqualification and the State's criminal proceedings intersect, it becomes incumbent upon the Court in which the appeal is pending, to hear the matter out of turn and expeditiously adjudicate the same,” it said.
The Allahabad high court had on July 24 refused to suspend Ansari's conviction but granted him bail in the case.
The former MP had appealed against the judgment of a special MP/MLA court that had sentenced him to four years of imprisonment and imposed a fine of Rs 1 lakh.
The special court in Ghazipur had on April 29 convicted Ansari and his brother Mukhtar Ansari, an ex-MLA, in a 2007 Gangsters Act case. While sentencing Afzal Ansari to four years in jail, it awarded 10 years imprisonment to Mukhtar Ansari.
The brothers were booked under the UP Gangsters Act in connection with the murder of the then Bharatiya Janata Party MLA from Ghazipur Krishnanad Rai on November 29, 2005 and the kidnapping and murder of Varanasi-based trader Nand Kishore Rungta in 1997.
Afzal Ansari was disqualified as a member of the Lok Sabha on May 1 after being convicted and sentenced in the kidnapping-murder case.