After his conviction by a Gujarat magistrate on Thursday for the offence of criminal defamation, Rahul Gandhi automatically stands disqualified from Lok Sabha under Section 8(3) of the Representation of People Act, 1951 with immediate effect by operation of law for a period which would end six years after his serving the sentence and release. Prior to 2003 amendment, it was a fixed period of six years starting from conviction but now “it ends six years after serving the sentence and release of the convict”.
There is another interesting fact. Prior to the judgement passed by the Hon’ble Supreme Court in 2013 striking down Section 8(4) of the Representation of People Act, 1951 in Lily Thomas vs Union of India, it provided a sitting MP and MLA an additional layer of protection from disqualification in case he or his conviction entailing disqualification. The said provision provided for a period of three months within which the convicted sitting MP/MLA could not be disqualified. Furthermore, it provided that if the sitting MP/MLA filed an appeal or revision within these three months from the date of conviction, he could not be disqualified until the appeal or revision was finally disposed of.
The UPA government had attempted to effectively nullify the said judgment by bringing the Representation of the People (Second Amendment and Validation) Ordinance, 2013.
The ordinance had sought to amend Section 8(4) as follows:
“Notwithstanding anything contained in sub-section (1), sub-section (2) or sub-section (3), a disqualification under any of the said sub-sections 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, if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court: Provided that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be.”
It had further provided that,
“Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951, as amended by this Act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this Act had been in force at all material times.”
The ordinance had been approved by the UPA cabinet and then sent to the President for his assent. Interestingly, ten years ago at a press conference, the unfortunate Rahul Gandhi had torn a copy of the ordinance passed by his own party’s government terming it as a “complete nonsense”. The ordinance had been eventually withdrawn. Had he not torn the ordinance, such an amendment would have saved him today from his current predicament.
Moreover, I think Rahul Gandhi and his legal cum political team may not have taken the case that seriously as it should have been during its trial and never thought of the worst consequences out of their sheer misplaced optimism. Now the only option for Rahul Gandhi to overcome his disqualification is to secure a stay on the magistrate’s order of conviction from a higher court. And then either secure acquittal (which seems impossible given the evidence available in this case) or reduction of sentence to “any term less than two years” which would not attract the rigours of Section 8(3) of the Representation of People Act, 1951. That may be possible as it is very unusual to give maximum prescribed term imprisonment to a first time offender for an offence which is also punishable with fine merely as an alternative.
The effect of the stay of conviction was the subject-matter of a judgment rendered in 2018 by Supreme Court in Lok Prahari vs. Election Commission of India. After taking note of a series of precedents, it was held as under:
“Once the conviction has been stayed by the appellate court, the disqualification under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 will not operate. Under Article 102(1)(e) and Article 191(1)(e), the disqualification operates by or under any law made by Parliament.
Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot “take” or “remain” in effect.”
Recent example of Lakshadweep MP Mohammed Faizal who had been found guilty and convicted in an attempt to murder case by a sessions court on January 11, 2023 can be of great benefit to Rahul Gandhi. On January 13, the Lok Sabha secretariat had issued the disqualification notification of Mohammed Faizal like what has been done in the case of Rahul Gandhi.However on January 25, the Kerala High Court had stayed his conviction and sentence. This order effectively rendered his disqualification by the Lok Sabha secretariat inoperative in accordance with Lok Prahari judgement.The High Court had noted in the order that such a step is required to avoid a costly re-election and also considering the fact that the candidate so elected would only have a term of 15 months, which is the present case as well. It was further noted that this case was rare and involves an exceptional situation warranting stay of conviction. Interestingly this orderof Kerala High Court had got approval of Supreme Court when the latter had declined to stay the same in an appeal filed by the LakshwadeepAdministration challenging the same.Even the Election Commission had thereafter on January 30 with held its notification for holding by-election already scheduled forFebruary 27, 2023.
But there can still be an issue in Rahul Gandhi’s matter. After his conviction dated March 23, 2023 the Lok Sabha secretariat has issued a formal notification of disqualification the following day on March 24, 2023. Now even if Rahul Gandhi gets a stay on his conviction under Section 389 Cr.PC but the Lok Sabha secretariat does not withdraw the disqualification notification and the Election Commission too issues a notification for holding by-election for WayanadLok Sabha constituency, question would certainly arise,despite Lok Prahari judgement, as to the status of his disqualification based on his conviction which may have been later stayed. The said question will have to be referred to the President for her decision under Article 103 of the Constitution which provides as under:
“(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.”
And since the President is to act on the aid and advice of the council of ministers headed by the Prime Minister under Article 74 of the Constitution, this process will certainly take quite sometime adding to the anxiety of Mr. Gandhi.
In contrast to this, when Mrs. Indira Gandhi’s election had been declared null and void by Justice Jagmohan Sinha of Allahabad High Court on June 12,1975 in Raj Narain’s election petition holding her guilty of employing corrupt practices in her election from Rai Bareilly constituency entailing her immediate disqualification under the original Section 8A of the Representation of People Act, 1951, and she had failed to obtain a complete stay on that judgement from Supreme Court on June 24 leading to promulgation of emergency in India on June 25, 1975, Mrs. Gandhi had got an amendment passed from the Parliament substituting Section 8A as under:
“The case of every person found guilty of a corrupt practice by an order under section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central Government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period.”
She had very smartly overcome her immediate disqualification in this manner. But on the other hand Rahul Gandhi himself by his rash action committed way back in 2013 invited his immediate disqualification ten years later in 2023. He has certainly brushed with the wrong side of law.
(The author is an advocate)
Rahul Gandhi – The Dilemma of Disqualification