New Delhi, Mar 24: Congress leader Rahul Gandhi was on Friday disqualified as a Member of Parliament (MP) of the Lok Sabha following his conviction by a Gujarat court in a defamation case filed against him.
While opposition leaders are up in arms against the move, we take a closer look at the legal side of things.
Why was Rahul Gandhi disqualified? What does the law say on the disqualification of convicted representatives? And what happens now?
Why has Rahul Gandhi been convicted?
The case pertains to Gandhi’s ‘controversial’ speech delivered in Kolar during the 2019 political campaign, wherein he had linked Prime Minister Narendra Modi with fugitives like Nirav Modi and Lalit Modi. He had said,
“Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have ‘Modi’ as a common surname?”
Purnesh Modi, a former BJP Member of Legislative Assembly (MLA) took exception to the said speech claiming that Gandhi humiliated and defamed all persons with the Modi surname.
The court agreed with that and held that Rahul Gandhi had insulted all persons with the surname ‘Modi’.
Judge Hadirash Varma said that since Gandhi is a Member of Parliament (MP), whatever he says will have a greater impact. Thus, he should have exercised restraint.
What sentence was imposed?
Gandhi was convicted under Sections 499 and 500 of the Indian Penal Code (IPC), the maximum sentence for which is two years and/or fine.
The court, however, granted him bail and suspended the sentence for 30 days to allow him to appeal before a higher court.
Why was Rahul Gandhi disqualified from the Lok Sabha?
A notification issued by the Lok Sabha Secretariat less than 24 hours after the Surat court ruling stated that Gandhi stands disqualified as an MP from the date of his conviction, in terms of the provisions of Article 102(1)(e) of the Constitution of India read with Section 8 of the Representation of the People Act, 1951.
Article 102(1)(e) states that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament:
“(e) if he is so disqualified by or under any law made by Parliament.”
The law made by Parliament in question is Section 8 of the Representation of the People Act, 1951, which disqualifies representatives on conviction.
Section 8(3) of the Act states that when a person is convicted of any offence and sentenced to at least two years of imprisonment, she or he attracts disqualification.
The period of disqualification under the Act is stipulated to be six years from the release of the convict from prison.
However, sub-section (4) states,”Notwithstanding anything [in sub-section (1), sub-section (2) or sub-section (3)] a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.”
In effect, Gandhi ought to have been given three months from the date of conviction before his disqualification as an MP took effect. However, this provision is a nullity in light of a 2013 Supreme Court ruling.
What are the Supreme Court judgments holding the field?
In Lily Thomas v. Union of India (2013), the Supreme Court strengthened the parameters of qualification by declaring Section 8(4) of Representation of People Act, 1951 as ultra vires the Constitution.
The top court in Lily Thomas held that any legislator/parliamentarian convicted of a crime and awarded a minimum of two years imprisonment loses membership of the house with immediate effect.
Interestingly, Gandhi opposed an ordinance sought to be introduced by the Congress government after the Supreme Court judgment in 2013. The ordinance provided sitting MPs and MLAs an additional layer of protection from disqualification in case they are convicted of certain offences. The ordinance was shelved after Gandhi opposed his own government on the ordinance.
Can the disqualification be set aside?
The only way Gandhi’s disqualification from the Lok Sabha can be overturned is if a higher court stays the conviction by the Surat court.
However, the appeal needs to be decided in favour of Gandhi and the higher court must stay the conviction and not merely stay the sentence.
In its 2018 judgment in Lok Prahari v. Union of India, the Court had held that upon a stay of a conviction under Section 389 of the Code of Criminal Procedure (CrPC), the disqualification under Section 8 will not operate.
“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,” the three-judge bench of the then CJI Dipak Misra, Justices AM Khanwilkar and DY Chandrachud had held.
Is there a recent example where such a disqualification has been set aside?
In January this year, the Kerala High Court suspended the conviction and sentence of Lakshadweep MP Mohammed Faizal PP in a case alleging the attempted murder of a political opponent. This effectively rendered the disqualification of the MP by the Lok Sabha Secretariat inoperative.
Justice Bechu Kurian Thomas said in the order that such a step is required to avoid costly re-election and also considering the fact that the candidate so elected would only have a term of 15 months. Thus, the High Court noted that this case was rare and involves an exceptional situation warranting suspension of conviction.
This was further cemented when the Supreme Court bench of Justices KM Joseph and BV Nagarathna refused to stay the High Court order after the Lakshwadeep administration filed an appeal challenging it.
(Courtesy: Bar and Bench)