Context

• The article highlights certain constitutional and legal issues regarding the disqualification of Congress leader and Member of Parliament from Wayanad constituency, Kerala, Rahul Gandhi.

Background

• A Chief Judicial Magistrate’s court in Surat, Gujarat, recently convicted former Congress chief Rahul Gandhi in a criminal defamation case and awarded him a two-year jail term.
• The sentence was awarded over his remark during campaign for the 2019 parliamentary polls in Karnataka, which stated, “why all thieves have Modi surname” comment.
• This was followed by a notice issued by the Lok Sabha Secretariat disqualifying Rahul Gandhi mentioning Article 102 of the Constitution and the Representation of People Act, 1951.

Plea in Supreme Court [Aabha Muralidharan vs Union of India]

• Consequent upon Rahul Gandhi’s conviction, a plea has been filed before the Supreme Court challenging the constitutional validity of Section 8(3) of the Representation of the People Act, 1951 (RPA).
  • Section 8(3) lays down automatic disqualification of a legislator from the Parliament or State assembly upon conviction in a criminal case.
  • It states that a person who has been found guilty of a crime and given a sentence of at least two years shall be disqualified starting on the day of their conviction and for an additional six years after their release.
• The plea mentions that Section 8(3) is ultra vires of the Constitution since it curtails free speech of an elected MP or MLA and restrains law makers from freely discharging their duties.
• The petitioner has stated that factors such as nature, gravity, moral turpitude and the role of the accused, ought to be examined while considering disqualification under RPA 1951.

Constitutional/Legal Provisions Regarding Disqualification of a Member of the Legislature

• Article 102(1) of the Constitution of India prescribes for disqualification for being, a member of either House of Parliament upon following conditions:
  • 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;
  • if he is of unsound mind and stands so declared by a competent court;
  • if he is an undischarged insolvent;
  • if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
  • if he is so disqualified by or under any law made by Parliament

• Article 102(2) also states that a person shall be disqualified for being a member of either House of Parliament if s/he is so disqualified under the 10th Schedule.
• The Parliament has also prescribed several additional disqualifications of a member of the legislature in the RPA, 1951.

What are the Provisions that Deal with Disqualification under the RPA, 1951?

• The disqualification is triggered for conviction under certain offences listed in Section 8(1) of RPA, 1951.
  • This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
• Section 8(2) of RPA, 1951 also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
• Section 8(3) of RPA, 1951 is the provision under which Rahul Gandhi has been disqualified.
• Section 8(4) of RPA, 1951 stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction.
  • Within that period, lawmakers could file an appeal against the sentence before the High Court.
  • However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the SC struck down Section 8(4) of the RPA as unconstitutional.
  • This is what has allowed the Lok Sabha Secretariat to immediately disqualify Rahul Gandhi.
• However, the Court in Lily Thomas case clearly spelt out that when an appellate Court stays the conviction and sentence, the disqualification will be lifted and the membership will be restored to the disqualified MP.

Examining Section 8(3) of the RPA

• A surface view of Section 8(3) of the RPA highlights that the moment conviction and sentence of member of the legislature are announced by the trial court, his seat in the legislature shall fall vacant under Article 101(3)(a).
• However, a closer reading of Section 8(3) of the RP Act will reveal that the words “shall be disqualified” used therein cannot mean instant disqualification.
• But Section 8 (3) does not specify which authority shall disqualify the sitting member of legislature.
  • S/he however, cannot be the Secretary General of a House of Parliament or Secretary of a state legislature, but the President.
  • Article 103 states that the President of India is the authority who decides that a sitting member has become subject to disqualification in all cases which come under Article 102(1).
  • Therefore, the Lok Sabha Secretariat cannot perhaps declare a sitting MP disqualified without referring the case to the President under Article 103 for a declaration.

Examining Scope of Article 103

• There are differences of opinion on the scope of Article 103, with some arguing that this Article can be invoked only when a dispute arises on the fact of disqualification and not otherwise.
  • But this Article covers disqualification arising on conviction for different offences under Section 8 of the RPA 1951.
• Hence, it could be inferred that reference to the President on the question of disqualification of a sitting Member who has been convicted for an offence covered by Section 8 is a constitutional requirement.
  • The SC, in Consumer Education and Research Society vs Union of India (2009), upheld this while stating that the President performs adjudicatory and declaratory functions.
• Hence, in cases where adjudication is not required, the President can simply declare that the sitting Member has become subject to disqualification.
• But the intervention of the President is essential under Article 103 even in cases where a sitting member has been convicted and the disqualification is supposed to take effect from the date of conviction.

Limitations of Lily Thomas Judgement

• This judgment held that that Parliament cannot enact a temporary exemption in favour of sitting members of the Legislature.
• But Article 103 itself provides an exception in the case of sitting Members by stating that the disqualification of sitting Members shall be decided by the President, thereby the Constitution itself making a distinction between the candidates and sitting Members.
  • This was ignored by the Lily Thomas judgment while the Court struck down the three months window given to the sitting members to enable them to appeal against their conviction.
• Further, such a temporary exemption in favour of sitting members of the legislature is a reasonable requirement as they are not placed in the same situation as a candidate.
  • A sudden disqualification will cause a lot of dislocation apart from the fact that the constituency will lose its representative.

Reflecting upon the Criminal Defamation Law

• The criminal defamation law needs an urgent review as many countries like UK, U.S and India’s neighbour Sri Lanka have scrapped it.
• The SC also highlighted the need for a liberal approach to rhetorical, hyperbolic or metaphoric words used by politicians in election speeches (Kultar Singh vs Mukhtiar Singh case, 1965).

Conclusion

• In our multi-party democracy, every political party is a potential ruling party. So, every political leader is exposed to the danger of being hauled up for defamation and put out of the electoral process for long years.
• Thus, a revisit is needed upon various debated provisions of the constitution and legislation related to disqualifying the member of a legislature.