Introduction
Congress leader Rahul Gandhi has recently received a notice from the Lok Sabha Secretariat about his disqualification in terms of Article 102 1 (e) of the Indian Constitution, read with Section 8 of the Representation of the People Act, 1951, because of his conviction for two years in a defamation case. The laws on disqualification are clear under the abovementioned provisions for the MP and MLAs in India, which result in immediate disqualification from the date of the conviction. The current exclusion, however, has reignited the discussion about whether a criminal conviction should result in the immediate loss of membership. Additionally, a petition challenging the provisions of the RPA 1951, which mandate disqualification upon conviction for crimes carrying a sentence of two years or longer, has been filed with the Apex Court.
What is Article 102 of the Indian Constitution and the Section 8 of the Representation of the People Act
Article 102 talks about the disqualification of MPs from the house of Parliament.
Part (1) of the article lists why an MP can be disqualified. These include “(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder; (b) if he is of unsound mind and stands so declared by a competent court; (c) if he is an undischarged insolvent; (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State; (e) if he is so disqualified by or under any law made by Parliament.”
In the instant case, the disqualification is under the Representation of the People Act.
Section 8(3) of the Act talks about
“A person convicted of any offense and sentenced to imprisonment for not less than two years [other than any offense referred to in subsection (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.] 9[(4)] Notwithstanding anything 10[in sub-section (1), subsection (2) or sub-section (3)] a disqualification under either sub-section 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 the court disposes of that appeal or application.”
Before Rahul Gandhi, various prominent leaders like Lalu Prasad Yadav, Azam Khan, J Jayalalithaa.
Change in the law after the Lily Thomas Judgement
The aforementioned ruling follows a PIL filed before the SC by Kerela-based attorney Lili Thomas, who claimed that Section 8(4) of the RPA was “ultra vires” of the Indian Constitution and that it shielded legislators who had been convicted of crimes from being removed from office while their appeals were pending before the HC.
The Apex court bench comprising Justice AK Patnaik and SJ Mukhopadhaya struck down the law as unconstitutional, holding that “the parliament had no power to enact sub-section (4) of Section 8 of the act and accordingly held it to be ultra vires. The apex court further held that if any MP or MLA is convicted, then by the sub-section of Section 8, they would stand to disqualify and cannot be protected under sub-section (4).
Legal Position on Suspension of Conviction
Now there is an opportunity to appeal the conviction and get the disqualification stayed. Suspension of conviction is when the court suspends both the punishment and the conviction order. In real terms, it would imply that the convict would not face any more repercussions until the appeal’s final disposition.
In the case of “Reeti Deenabandhu and Ors. v. State of Andhra Pradesh”, the apex court noted that a convicted person who files an appeal against his conviction not only seeks to avoid the punishment that is imposed upon him as a result of his conviction, but he also wants to avoid other dire consequences flowing from the conviction and to have the stigma that attaches to him because of the conviction removed.
In “Lok Prahari v. Election Commission of India”, the Apex Court reaffirmed that the disqualification under Section 8 of RPA would not apply if a conviction under Section 389 CrPC has been suspended. The supreme court has regularly ruled that the ability to postpone a conviction should only be used sparingly when the petitioner shows that doing so will lead to undesirable outcomes or disqualifications. The applicant must also demonstrate the possible harm resulting from the conviction not being suspended.
Aftermath
Now the matter of Rahul Gandhi has been appealed in the Session court, which will decide the fate of his disqualification. If the court stays the conviction, his disqualification will end as per the precedent judgment. Also, the petition in the apex court challenging the immediate disqualification would decide the future of disqualification law in India.
This Article is Written by Mr. Aaryan Dwivedi who is the student of Gujarat National Law University interning at SJLC.
