BSP MP Afzal Ansari conviction

Supreme Court: While hearing an appeal against Allahabad High Court’s decision refusing to grant a stay on Bahujan Samaj Party member Afjal Ansari’s conviction in 2007 Gangster Act case, the three Judges Bench of Surya Kant, Dipankar Datta, and Ujjal Bhuyan, JJ. were called upon to decide a stay of Afjal Ansari’s conviction, during the pendency of his Criminal Appeal before the High Court. The Court by a majority of 2:1 granted him interim relief and suspended his conviction and restored his status as a Lok Sabha MP with certain conditions.


Afjal Ansari had served as a Member of the Legislative Assembly in Uttar Pradesh for five consecutive terms, and as a Member of Parliament for two terms. He was a Member of Parliament for the Ghazipur Constituency, since 2019, until he was sentenced to 4 years imprisonment along with fine of Rs. 1 lakh by the Ghazipur Court for offences under Uttar Pradesh Gangsters and Anti-Social Activities (Prevention) Act, 1986 (Gangster Act).

On 19-11-2007, the Station House Officer at the Mohammadabad Kotwali Police Station, received information from anonymous sources that the operations of a gang led by Mukhtar Ansari (AFJAL Ansari’s brother) in the area, who was reportedly involved in various illicit activities such as murder, extortion, kidnapping and other criminal acts, carried out for political gain. It was further informed that the said gang had instilled fear and terror in the public, discouraging everyone from opposing their actions. Following the same, an FIR was registered against him for an offence under Section 3(1) of the Gangster Act. This FIR emerged from the earlier Case, (‘Old FIR’) which was a murder case, in which Afjal was subsequently acquitted. Consequently, Afjal’s conviction and sentencing of 4 years led to his disqualification as a Member of the Lok Sabha under Section 8(3) of the Representation of the People Act, 1951 (‘RPA’), effective from the date of his conviction on 29-04-2023.

He preferred an appeal before the High Court under Section 374(2) of the Code of Criminal Procedure, 1973 (CrPC) against his sentence and conviction. An application under Section 389(1) of the CrPC was also filed seeking suspension of the sentence and his release on bail.

The High Court partially allowed the application filed by the Appellant. The execution of the sentence was stayed, and bail was granted but stay on conviction was declined. The instant appeal was thus confined to the prayer for the stay of his conviction, during the pendency of his Criminal Appeal before the High Court.

Majority Opinion

Justice Surya Kant authored the majority opinion for himself and Justice Ujjal Bhuyan. The Bench perused Section 389(1) of the CrPC and said that it is evidence that the Appellate Court is unambiguously vested with the power to suspend implementation of the sentence or the order of conviction under appeal and grant bail to the incarcerated convict, for which it is imperative to assign the reasons in writing. The Court reiterated that the primary factors that are to be looked into, in order to suspend the conviction of an individual, would be the peculiar facts and circumstances of that specific case, where the failure to stay such a conviction would lead to injustice or irreversible consequences.

The Court noted that there was no cogent evidence to establish that Afjal was indulged in anti-social activities and crimes such as murder or ransom and on basis of the same, the Trial Court had acquitted him for the charges on basis of the old FIR. The Court also noted that no irreversible consequences to the stay on conviction were advocated before the High Court. The Court refused to agree with the High Court’s decision to decline the suspension of conviction. The Court said that it has been opined in several authorities that there is no reason to interpret Section 389(1) of the CrPC in a narrow manner, in the context of a stay on an order of conviction, when there are irreversible consequences. Regarding a stay on conviction, the Court said that conviction can lead to irreparable damage and there is no compensation for the same in any monetary terms or otherwise, acquittal at a later stage carves out an exceptional situation.

Further, the Court noted that a new FIR was registered against Afjal, the sole basis for which is general statement and rekindling of the Old FIR, in which he was acquitted. The Court also weighed the potential ramifications of declining to suspend the conviction, such as depriving him of the legitimate representation in the Legislature; hindrance in representation of his constituency. The Court said that the High Court and other Court however, while exercising their Appellate jurisdictions, are well empowered to take judicial notice of these consequences.

On the question of deciding the present application with consideration of ‘moral turpitude’, the Court said that ‘moral turpitude’ is a decisive factor in granting or withholding the suspension of conviction, there is a resounding imperative to address the issue of depoliticising criminality. The Court observed that societal interest is an equally important factor which should be zealously protected and preserved by the Courts and the literal construction of a provision such as Section 389(1) of the CrPC may be beneficial to a convict but not at the cost of legitimate public aspirations, hence, the Courts should balance the interests of protecting the integrity of the electoral process on one hand, while ensuring that constituents are not bereft of their right to be represented, merely on basis of an opinion which is open to further judicial scrutiny.

Thus, the appeal was partly allowed and Afjal’s conviction was suspended. Certain conditions were imposed for his restoration of the status of Lok Sabha MP, such as he shall:

  1. not be entitled to participate in the proceedings of the House and not have the right to cast his vote in the House or to draw any perks or monetary benefits;

  2. not be disqualified to contest future elections 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 decision of the Criminal Appeal.

The Court also directed the High Court to make an endeavour to decide the Appellant’s criminal appeal expeditiously and before 30-06-2024.

Justice Dipankar Datta’s Minority Opinion

“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.”

Justice Datta referred to several case laws, wherein the Court had dealt with approaches made by, inter alia, a Managing Director of a company, a member of the Legislative Assembly, a member of Parliament, a film actor intending to join politics, a bank officer, a civil post holder and a principal of an institution, while they sought for stay of conviction. Regarding suspension of conviction under Section 389 of the CrPC, upon referring to precedents, certain guiding principles were summarised by Justice Datta:

  1. the power to suspend execution of an order and/or to stay a conviction is traceable to section 389(1), Cr. PC notwithstanding that the high courts may, in appropriate cases, exercise their inherent jurisdiction preserved by section 482 of the Cr. PC to grant a stay of conviction;

  2. suspension of execution of an order of conviction or stay of the conviction — whatever be the prayer, the same can be granted depending upon the facts of each case and the Courts have a duty to look at all aspects including the ramifications of keeping the conviction in abeyance;

  3. a convict who has appealed against the judgment and order of conviction and sentence has to specifically pray for stay of conviction, since despite suspension of execution of sentence and the order appealed against, the conviction remains, and such suspension does not amount to stay of conviction;

  4. while seeking a stay of conviction pending appeal, it is imperative for the appealing convict to expressly bring to the Court’s attention the foreseeable consequences that could ensue if the conviction were not stayed and failure to elucidate these specific consequences may lead to the denial of a stay of conviction;

  5. once a conviction is either stayed or execution of the conviction is suspended under the CrPC, the conviction becomes inoperative starting from the date of stay/suspension without, however, having the effect of obliteration; and

  6. one cannot establish a fixed rule that the order of conviction should not be stayed or its execution suspended as a means to prevent an individual, who has committed an offence, from entering Parliament or the Legislative Assembly.

Further, he observed that the Constitution of India being the supreme law of the nation, is the ultimate source from which all legislative enactments derive their legitimacy. If any one enactment is to be bestowed with pride of place just below the Constitution, it is undoubtedly the ROP Act because of the same being anchored in the concept of the social contract and the rule of law.

It was also pointed that the ROP Act that mandates automatic disqualification upon the recording of a conviction vividly reflects the deliberate legislative intent of the Parliament to keep away any tainted parliamentarian from continuing in office until he secures a stay of the conviction under the governing procedural law. Justice Datta said that 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 (whose conviction is in question) to represent his constituency till such time his appeal is decided. He also noted that there are laws to prevent any individual from entering public service if he has criminal antecedents or has been in custody in connection with an investigation any time prior to applying for a post.

Regarding the automatic disqualification as per section 8 of the ROP Act, Justice Datta said that the presumption of innocent till proved guilty has no place and loses its sway, if the guilt is proved and the accused has been convicted and if the Court is approached by a parliamentarian by itself, should not be viewed with such importance and indispensability that his status should tilt the scales in his favour.

For the lack or vacuum created by the conviction of the representative of the constituency concerned, Justice Datta opined that it is debatable that 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.

Further, Justice Datta said that it was not specified before the High Court under Section 389(1) of the CrPC that a prayer was sought for stay of the conviction, hence, question of the Afjal suffering grave injustice and irreversible consequences would have to take a back seat, considering the absence of any such specific prayer. He also highlighted that by the time Afjal approached the High Court with the application under Section 389(1) CrPC sometime in the second week of May, 2023, his disqualification had taken effect pursuant to the Notification of the Lok Sabha Secretariat being published in the Gazette of India dated 1-05-2023. Placing his reliance on K. Prabhakaran (supra), he said that even if the High Court was approached in time with the prayer for stay on conviction, the High Court could have only suspended execution of the conviction or the order appealed against and even if it would have been decided otherwise, the disqualification that had taken effect and notified vide the Gazette Notification would continue to remain unaffected unless the conviction itself was stayed. It was also noted that Afjal did not demonstrate any exceptional circumstance before the High Court to warrant a stay of the conviction and for the right to represent his constituency, Justice Datta said that his right to represent a constituency or that of a constituency to be represented by the him is not a Constitutional right under Article 326 of the Constitution.

Hence, Justice Datta was not in ad idem with the majority regarding the stay on Afjal’s conviction and held that he found no reason to interfere with the impugned judgment and order of the High Court. Thus, the appeal was dismissed.

[Afjal Ansari v. State of U.P., 2023 SCC OnLine SC 1676, Decided on: 14-12-2023]

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