In a move aimed at preventing the criminalisation of politics, the Supreme Court Wednesday said an MP or a legislator convicted by a court during his tenure could not contest the next polls.

Such MPs and legislators are allowed to contest polls after the expiry of their term by taking advantage of the "exception" clause in election laws.

A five-member constitution bench headed by Chief Justice R. C. Lahoti gave this ruling by a majority of 4:1 while allowing a petition filed by Ramesh Dalal challenging the election of Nafe Singh from Bahadurgarh in Haryana.

Under Section 8(4) of the Representation of the People Act, sitting legislators and MPs convicted and sentenced to more than two years in prison during their tenure as a member of an assembly or parliament, were allowed to continue if their appeal against the order of conviction was pending with a higher court and the sentence stayed.

The bench, which included judges Shivaraj V. Patil (since retired), B.N. Srikrishna and G.P. Mathur, pointed out that the object of the saving clause was to protect the strength of the house and the strength of the political party to which such convicted members belonged.

Judge K.G. Balakrishnan, who was part of the five-judge constitution bench, rendered a dissenting judgement.

Writing the judegment for the majority, Lahoti said: "The government in power may be surviving on a razor edge thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the government.

"Secondly bye-election shall have to be held, which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court."

However, as was noticed by the court, many of these legislators and MPs were using this exception to convince the returning officer, while filing nominations for the next election, that their conviction had been stayed under the exception clause and hence they were allowed to contest elections.

The court pointed out the anomaly being practised in the acceptance of nominations of people who were convicted while being a sitting legislator or a MP.

From time to time, it was being brought to the court's notice as to how a sitting legislator or an MP was different from a common man, who was debarred from contesting elections even if his appeal against a conviction was pending.

The bench said "the factum of pendency of an appeal against conviction was irrelevant and inconsequential.

"If on a given date of filing nomination, the conviction existed, then a person, whether he was a sitting MLA (member of legislative assembly) or not, was debarred from contesting the polls," the bench said.

"A subsequent decision in appeal or revision setting aside the conviction or sentence or reduction in sentence would not have the effect of wiping out the disqualification which did exist on the date of filing of nomination."