By Vivek K Agnihotri
Rahul Gandhi has been disqualified from the Lok Sabha and banned for eight years from contesting elections after a criminal defamation case was filed by Purnesh Modi, a BJP MLA. He had alleged that Gandhi, while addressing a poll rally in 2019 in Karnataka, had defamed the entire Modi community. The case was filed under Sections 499 and 500 of the Indian Penal Code.
Section 8 of the Representation of the People Act, 1951, lists certain serious offences in sub-sections (1) and (2), conviction under which, irrespective of the type of punishment awarded under them, results in disqualification of the MP or MLA. Sub-section (3) further states that a person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years after his release.
However, sub-section (4) states that notwithstanding anything contained in sub-sections (1) to (3), a disqualification under them shall not take effect in the case of a person who on the date of the conviction is a member of Parliament or the legislature of a state, until three months have elapsed from that date. Or, if within that period, an appeal for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.
Sub-section (4) of Section 8 of the Representation of the People Act, 1951, was challenged in Lily Thomas vs Union of India 2013 as being ultra vires the Constitution. The Supreme Court held that the powers of Parliament to make any law providing for disqualification for membership of the legislature is governed by Articles 102(1)(e) and 191(1)(e) of the Constitution. Articles 102 and 191 make identical provisions for disqualification for membership of Parliament and state legislature. They provide that a person shall be disqualified for being chosen as, and for being, a member of either House of Parliament or the legislative assembly or legislative council under certain circumstances, including if he is so disqualified by or under any law made by Parliament.
A reading of these two provisions makes it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either a House of Parliament or state legislature. The Parliament, therefore, does not have the power to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the state legislature.
The Supreme Court also held that once a person who was a member of either House of Parliament or state legislature becomes disqualified by or under any law made by Parliament, his seat automatically falls vacant by virtue of sub-section (3) of Section 8 of the Representation of the People Act, 1951, read with Articles 102(1)(e) and 191(1)(e) of the Constitution. The Parliament cannot make a provision to defer the date on which the disqualification of a sitting member shall take effect and prevent his seat becoming vacant. The Supreme Court, therefore, held sub-section (4) of Section 8 of the Representation of the People Act, 1951 ultra vires the Constitution.
The judgment was to have prospective effect. Rasheed Masood became the first MP to lose his membership of Parliament in view of a judgment of the Supreme Court in 2013 when he was sentenced to four years’ imprisonment for cheating, forgery and corruption. Since then, a dozen or more MPs/MLAs have been disqualified, including Lalu Prasad Yadav (RJD) and J Jayalalithaa (AIADMK).
The UPA government had filed a review petition against the Lily Thomas judgment which the Supreme Court dismissed. In an attempt to overturn the decision of the Supreme Court, the government also introduced the Representation of the People (Second Amendment and Validation) Bill in the Rajya Sabha, which proposed that representatives would not be disqualified immediately after conviction. The government tried to bring the bill into effect as an ordinance, ostensibly to protect Lalu Prasad Yadav from disqualification because of his imminent conviction in the fodder scam case. Then president, Pranab Mukherjee, is said to have expressed his reservations about the ordinance. Rahul Gandhi had also made his opinion about the ordinance clear in a press conference when he called it “complete nonsense”. “It should be torn up and thrown away,” he said while physically tearing up a copy of the ordinance. The ordinance and the bill were later withdrawn. The chicken has now come home to roost.
Apart from the Lily Thomas (2013) case, there are now two more cases to reckon with. In the case of Lok Prahari vs Election Commission of India/Union of India (2018), the petitioner had approached the Supreme Court to declare that the law does not provide for stay of conviction under Section 8 of the Representation of the People Act 1951. Even in case of stay of conviction by the appellate court, the stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect. Consequently, the seat of the concerned member should be deemed to have become vacant with effect from the date of conviction in terms of Article 101(3)(a) and 190(3)(a) of the Constitution.
The Supreme Court held that 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. However, once the conviction has been stayed by the appellate court, disqualification under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act 1951 will not operate.
Moreover, in the recent case of PP Mohammed Faizal, MP from Lakshadweep, the Lok Sabha had issued a disqualification notification after his conviction in an attempt to murder case by Kavaratti sessions court. On January 18, 2023, the Election Commission too had announced by-election to fill up the vacancy. In the meanwhile, the member moved the Kerala High Court and got a stay of his conviction. The Court further observed that if the election to the constituency of Lakshadweep was to be held immediately on account of the conviction and consequent disqualification of Faizal, the financial burden upon the government and indirectly upon the people was immense because the elected candidate can continue for a limited period alone. Thereafter, the Election Commission decided to withhold the by-election and defer the issuance of notification for holding the by-election in Lakshadweep. After the MP petitioned the Supreme Court for restoration of his membership of the Lok Sabha in view of suspension of conviction, the Lok Sabha Secretariat withdrew the notification disqualifying him.
There is, therefore, some difference of opinion among experts as to whether the suspension of Gandhi’s sentence for 30 days by the Surat Chief Judicial Magistrate’s court would result in keeping the disqualification also on hold for the same period or if on appeal, the conviction is set aside or reduced. These experts are of the opinion that in view of the Lok Prahari (2018) case, disqualification is not automatic. Further, according to Article 103 of the Constitution, if any question arises as to whether the member of either House of Parliament has become subject to any disqualification, it shall be referred to the president and his decision shall be final. The president, in turn, has to consult the Election Commission before coming to any conclusion. They are also of the view that the notification issued by the Lok Sabha Secretariat does not categorically state that the Wayanad Lok Sabha seat has fallen vacant.
However, there is another point of view that as the court has suspended the sentence and not the conviction, the disqualification under the Representation of the People Act, 1951 in the context of the Lily Thomas case is automatic. Further, as and when the Election Commission gets a copy of the order of the court, it is bound to proceed with making arrangements for the by-election and may announce it within a week as was done in the case of Mohammed Faizal and Azam Khan recently. It is mandated by law (Section 151A the Representation of the People Act, 1951) that the vacancy should be filled up within six months.
In view of these facts and circumstances, the first decision has to be whether Rahul Gandhi wants to do anything about the court order. If he wants to save his seat, he has to proceed on two fronts. On the one hand, he has to approach the higher court to stay the conviction. He has also to approach the Supreme Court to stay the notification of the Lok Sabha secretariat in order to prevent the Election Commission from proceeding with the by-election. Other possible outcomes are restoration of his seat in the Lok Sabha or permission to contest the by-election to Wayanad constituency or permission to contest the general elections in 2024.
Is it time to revisit the defamation and disqualification laws?
—The writer is former Secretary-General, Rajya Sabha