Rahul Gandhi will not be disqualified as Wayanad MP if conviction is stayed, say experts

Rahul Gandhi was convicted in a 2019 criminal defamation case by a court in Gujarat over a 2019 criminal defamation case.


Published Mar 23, 2023 | 7:04 PM Updated Mar 23, 2023 | 7:04 PM

Rahul Gandhi speaking at an event in Wayanad. (X)

Congress leader and Wayanad MP Rahul Gandhi will not be disqualified as a Member of Parliament if the appellate court stays the conviction and suspends the two-year jail term awarded to him by a Surat court in a 2019 criminal defamation case over his alleged “Modi surname” remarks, legal experts said on Thursday, 23 March.

Senior lawyer and constitutional law expert Rakesh Dwivedi referred to the Supreme Court’s 2013 and 2018 judgements in the Lily Thomas and the Lok Prahari matters, respectively, and said the suspension of sentence and stay of conviction was necessary to escape disqualification as a lawmaker under the Representation of the People (RP) Act.

“The appellate court can suspend the conviction and the sentence and grant him bail. In that case, there will be no disqualification,” he said, adding “However the politicians must choose their words carefully to avoid getting entangled with the law.”

The debate over the possibility of Rahul Gandhi being disqualified as an MP must take note of the legal position enumerated in the apex court judgements and the relevant provisions of the RP Act, he said.

Related: Gujarat court sentences Rahul Gandhi to 2 years imprisonment

‘Needs stay in conviction’

A former senior official of the Election Commission and an expert on electoral laws who did not wish to be named was of the view that Rahul Gandhi also needed to get his conviction stayed to prevent being disqualified as a lawmaker.

He said the suspension of the sentence was different from the suspension of conviction.

“The position as per the Lily Thomas judgment is a conviction which carries a sentence of two years or more will automatically result in disqualification. In a later judgment in the Lok Prahari case, the apex court said on appeal if the conviction is suspended, the disqualification will also remain suspended,” he said.

He said the Congress leader would have to get a stay on the conviction from a higher court as well.

‘Disqualification remains suspended’

Former Lok Sabha secretary general and Constitution expert PDT Achari said the disqualification period began as soon as the sentence was announced.

He said Rahul Gandhi was free to appeal and if the appellate court stayed the conviction and the sentence, the disqualification would remain suspended.

The disqualification would continue six years after the sentence was completed or served.

“That means the disqualification will last for eight years (in case he is disqualified),” he said, adding that a disqualified person can neither contest nor poll or vote for a certain period.

He was of the opinion that disqualification arises out of the sentence, and not conviction alone. “Therefore, if the sentence has been suspended by the trial court itself, that means his membership does not get affected. The disqualification has not come into effect,” he said.

Also read: Kerala HC suspends sentence of Lakshadweep MP 

Lok Prahari case

In the 2018 Lok Prahari case, a three judge-bench of the top court, of which current CJI DY Chandrachud was also a part, termed as “untenable” the disqualification if the conviction of a lawmaker was stayed by an appellate court.

“It is untenable that the disqualification which ensues from a conviction will operate despite the appellate court has granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections 1, 2 and 3 of Section 8 of the RP Act,” the 2018 verdict said.

In 2013, the top court, in the Lily Thomas case, struck down Section 8(4) of the RP Act, which gave a convicted lawmaker the power to remain in office on the grounds that appeals had been filed within three months of the conviction.

The Congress-led United Progressive Alliance government, in 2013, attempted to circumvent the Supreme Court ruling that set aside an RP Act provision.

It was Rahul Gandhi who opposed the ordinance in a press conference in New Delhi and tore the ordinance as a sign of protest.

Also read: Rahul Gandhi kickstarts Congress poll campaign in Karnataka

Disqualified from date of conviction

According to a provision of the RP Act, a person sentenced to imprisonment of two years or more shall be disqualified “from the date of such conviction” and remain disqualified for another six years after serving time.

Section 8 of the RP Act provides for offences in which a lawmaker would entail disqualification upon conviction.

The provision divides the offences into several categories that attract disqualification upon conviction.

In the first category are offences that entail disqualification for a period of six years upon any conviction.

If the punishment is a fine, the six-year period will run from the date of conviction, but if there is a prison sentence, the disqualification will begin on the date of conviction and will continue up to the completion of six years after the date of release from jail.

Offences that lead to disqualification

Offences like making speeches that cause enmity between groups, bribery and impersonation during elections and other electoral offences, and offences relating to rape and cruelty to a woman by her husband and his relatives are included in it.

Offences under the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act, etc, are among the category of offences that entail disqualification regardless of the quantum of punishment.

Laws for the prevention of Sati, corruption, terrorism and insults to the national flag and national anthem, etc, are also part of this group.

All other criminal provisions form a separate category, under which mere conviction will not entail disqualification. A sentence of at least two years in prison is needed to incur such disqualification.

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