Rahul Gandhi, convicted of defamation, stares at disqualification as Lok Sabha MP | The Financial Express

Rahul Gandhi, convicted of defamation, stares at disqualification as Lok Sabha MP

The law says that an MP, MLA or MLC is automatically disqualified on the day he is convicted in a case.

Rahul Gandhi
Congress leader Rahul Gandhi during a press conference in New Delhi on Thursday. (Express photo by Anil Sharma/File).

Congress leader and Wayanad MP Rahul Gandhi, who was on Thursday (March 23) held guilty and sentenced to two years in jail in a 2019 defamation case over his remarks on the “Modi surname” by a court in Gujarat’s Surat, is likely to be disqualified and lose his Lok Sabha membership, besides being barred from contesting elections for the next eight years, if he fails to secure a favourable verdict from a higher court quickly.

Gandhi has been granted bail for 30 days and can file an appeal against his conviction. The Congress leader was present in court for sentencing, which comes a year before general elections are due. The Congress party has said it is going to file an appeal in a higher court seeking to overturn the trial court’s conviction in the case.

What does the law state?

The law says that an MP, MLA or MLC is automatically disqualified the day he is convicted in a case. Experts, too, say that Rahul Gandhi’s disqualification has kicked in as per the landmark ‘Lily Thomas vs Union of India’ case where the Supreme Court had struck down Section 8(4) of the Representation of the People Act, 1951 to disqualify a legislator immediately when convicted and sentenced to two years or more in prison.

“As per the ‘Lily Thomas’ judgment, disqualification kicks in immediately. Although the sentence has been suspended by the Surat court itself, till the conviction is suspended by a higher court, he stands disqualified,” said SY Quraishi, former Chief Election Commissioner of India, tells FinancialExpress.com.

”Under Section 8 of the Representation of People Act 1951, the conviction in a criminal case leads to disqualification if the person is sentenced to (imprisonment of) two years or more. There is an instant disqualification as soon as the conviction is announced by the court,” says PDT Achary, former Secretary General of the Lok Sabha, adding that the provision of the Act that granted three months’ protection from disqualification was quashed in 2013 as “ultra vires” by the top court in the Lily Thomas case.

Disqualification does not mean that the person will remain disqualified only till the time his sentence is over. In Rahul Gandhi’s case, it is two years. “Even after the sentence term is completed, for another six years, he will stand disqualified. So for a total of eight years, he cannot contest any election apart from losing the seat in the House,” explained Achary.

A silver lining for Rahul Gandhi?

Referring to Article 103 of the Constitution, Achary says that Rahul Gandhi stands a chance of remaining an MP even before a higher court quashes his conviction. “That’s because of Article 103 of the Constitution, which states that if any question arises as to whether a member of either house of Parliament is subject to disqualification, the matter shall be referred for a decision to the President and the President’s decision shall be final. The President will consult the Election Commission for its opinion and will act according to it.”

However, the top court’s verdict makes no mention of Article 103 in the Lily Thomas case. The decision given by the Supreme Court categorically states that convicted lawmakers stand to be automatically disqualified unless they appeal, and the appellate court suspends the conviction as well as the sentence, added Achary.

“The conviction and sentence should be stayed as disqualification arises out of conviction. Only then will the disqualification be suspended. Till the matter is disposed of by the appellate court.”

So what next for Rahul Gandhi?

Quairishi said that the judgment will now go to the Lok Sabha secretariat, which will then convey about the seat falling vacant following Rahul Gandhi’s disqualification in view of the conviction, to the Election Commission of India. The EC will then plan a byelection in Wayanad, and issue a notification for the by-poll.

The BJP government, which has been heavily critical of Rahul’s remarks on democracy in London, may move swiftly on his disqualification process. Reports suggest that the government has already hinted at the possibility of his disqualification. The only probable window that Rahul has is the 30-day bail period granted to him by the Surat court not just to move an appeal against his conviction but also to get it overturned.

While legal experts see the two-year sentence as too harsh for an offence such as defamation, for now, the ball is in the government’s court. Listing the legalities, Kanchan Gupta, Senior Adviser, Ministry of Information & Broadcasting, cited the example of former SP legislator Azam Khan, stating that he was “immediately disqualified” from Uttar Pradesh Assembly after a trial court sentenced him to two years in prison in a criminal case.

“In a democracy, nobody, absolutely nobody is above the law. All are equal. The law, therefore, equally applies to Rahul Gandhi,” Kanchan Gupta said shortly after the order, offering a possible glimpse into the government’s thinking on the future course of action.

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First published on: 23-03-2023 at 16:00 IST
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