Rahul Gandhi’s disqualification as a Member of Parliament following his conviction and sentencing in a criminal defamation case is continuing to dominate the headlines across the country. The Lok Sabha Secretariat by its notification stated, "Consequent upon his conviction by the Court of Chief Judicial Magistrate, Surat in CC/18712/2019, Shri Rahul Gandhi, Member of Lok Sabha representing the Wayanad Parliamentary Constituency of Kerala stands disqualified from the membership of Lok Sabha from the date of his conviction ie. 23 March, 2023 in terms of the provisions of Article 102(1)(e) of the Constitution of India read with Section 8 of the Representation of the People Act, 1951. Section 8 of the Representation of People Act, 1951 says that a lawmaker sentenced to not less than two years upon conviction will be disqualified, it further provides that the disqualified lawmaker stands disqualified even after their release from the jail. According Section 8 (3) of the Act, A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (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."
“This makes Rahul ineligible for 2024 general elections if he is unable to get the conviction stayed by the higher courts. Rahul was convicted under Sections 499 and 500 for defamation of Indian Penal Code (IPC). Section 500 of IPC extends imprisonment of up to two years, fine, or both, as punishment for defamation for his alleged comment while speaking at a rally in Karnataka in April 2019, where he said, "Why do all these thieves have Modi as their surname Nirav Modi, Lalit Modi, Narendra Modi."
Therefore, from the very moment Rahul was sentenced to two years in jail, he was disqualified. Therefore, the notification of the Lok Sabha Secretariat is a mere ministerial work. This is the reason the Lok Sabha Secretariat notification mentions March 23 as the date from which the disqualification is effective and not March 24, i.e., the date of issue of the notification.
But does this mean Rahul is out of electoral politics now? The answer is, in case Rahul fails to get any relief from the higher courts in the context of his conviction, then he is supposed to be out of electoral politics for the next eight years. This is because Section 8 (3) of Representation of People Act, 1951 says any lawmaker sentenced to at least two years in jail remains disqualified for six years upon their release, which means Rahul’s disqualification will continue till 2031 as the six-year period will commence in 2025 when his two-year sentence ends.
Initially, there was confusion over the disqualification of Rahul. And there were divergent opinions on this. While some said it would be immediate, the other opinion was that it would not be so. The rule of immediate disqualification in the event of sentencing for two years or more on a lawmaker’s conviction was laid down by the Supreme Court in Lily Thomas Vs Union of India and Ors (2013), wherein Section 8 (4) of the Representation of People Act was ruled as unconstitutional.
Before 2013 that means before the judgement in Lily Thomas case was delivered, Section 8 (4) of the Representation of People Act, gave relaxation to MPs and MLAs facing disqualification as it provided that the disqualification would not take place for three months from the date of conviction. It further provided that the disqualification would remain suspended until a petition or revision application for the conviction is decided by the higher courts.
The immediate disqualification in the event of conviction as ruled in the Supreme Court judgement in the Lilly Thomas case and other cases address the issues of criminalisation of politics and aims towards large scale electoral reforms like removing corrupt practices and disclosing criminal cases by candidates.
Under such circumstances, the political hysteria surrounding disqualification is unnecessary as the law is pretty clear and there is no denying that Rahul Gandhi has both the scope and opportunity to approach higher courts to get stay on conviction which will put him back to his old position as MP as the Supreme Court in Lok Prahari Vs Union of India (2018) had held that in case of stay of conviction under Section 389 of Criminal Procedure Code (CrPC), the disqualification under Section 8 of Representation of the People Act would not operate.
However, be it as it may, politicians should understand that while the Constitution provides for free speech, it also imposes reasonable restrictions under Article 19(2) and the conviction in this defamation case should be an eye opener for the entire political clan.
(The writer is an Addl. Central Government Standing Counsel, CAT, Cuttack Bench, Consulting Editor-Legal Affairs and Public Policy, The Pioneer, Bhubaneswar and a Distinguished Adjunct Professor of Law and Media Studies, School of Mass Communication, KIIT University. Views are personal)