Decoding Disqualification of MPs and MLAs in the light of Recent Disqualification of Mr. Rahul Gandhi as a Member of the Lok Sabha

02
May 2023

Decoding Disqualification of MPs and MLAs in the light of Recent Disqualification of Mr. Rahul Gandhi as a Member of the Lok Sabha

“I disagree with what you say, but I will defend to the death your right to say it” - Evelyn Beatrice Hall

Recently, Mr Rahul Gandhi was disqualified from the Lok Sabha following his conviction in a criminal defamation case. A court in Gujarat convicted him for his remark that “all thieves have Modi as their surname”, in reference to fugitive businessmen Nirav Modi and Lalit Modi along with Prime Minister Narendra Modi.

Decoding Disqualification:

Disqualification of Lawmakers from the house makes them ineligible to be members of the house. Such Lawmakers no longer hold the office of MPs/MLAs and fresh elections are announced for such constituencies.

Do you Know?

India is one of the last major democracies that continue to criminalize speech. Hon’ble Supreme Court in “Subramanian Swamy vs Union of India” case has reiterated its commitment to uphold the law on “Criminal Defamation”. The US Supreme Court abolished criminal defamation law way back in 1966 in Ashton v Kentucky case..

Constitutional Provisions:

Article 102(1) and 191(1) of the Constitution: Disqualification of MP and MLA respectively on the following grounds:

If he holds the office of profit under the Union or state government.
If he is of an Unsound mind.
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 to a foreign state
Any law by Parliament: In this regard, Parliament has enacted the Representation of The People Act (RPA), 1951.

10th Schedule of the Constitution: Under this, there is a provision for the disqualification of MPs/MLAs on grounds of Political defection. The major grounds for disqualification are as follows:

Voluntarily giving up the membership.
Voting or abstaining from voting contrary to the direction of the whip.
Independently elected member joins any political party.
Nominated member joining any political party after the expiry of six months.

Legal Provisions:

Representation of The People Act (RPA), 1951:

Section 8(1): It includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
For example, Former Samajwadi Party MP Azam Khan was disqualified under this provision for his “Hate speech”.
Section 8(2): It deals with cases related to hoarding or profiteering, adulteration of food or drugs and conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
Section 8(3): “A person convicted of any offence and sentenced to imprisonment for not less than two years 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.”
Section 8(4): Disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, MP can file an appeal against the sentence before the High Court.
Section 9: It deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
Section 10: Disqualification for failure to lodge an account of election expenses.
Section 11(A): Disqualification arising from conviction and corrupt practices.
Section 11(B): Removal of disqualifications.

Lily Thomas vs Union of India and Section 8(4) of RPA, 1951

In this case, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional while stating that Parliament has no legislative competence to provide for deferring the effect of disqualification by three months.

Effects of disqualification?

A Disqualified Member no longer remains a member of the House.
Disqualified member is barred from contesting the election for a further period of six years after his release.
The seat is declared vacant and re-election happens to fill the vacant seat.

Rahul Gandhi Case: PDT Acharya's Views

PDT Acharya, former secretary general of Lok Sabha, has raised certain concerns in the manner Rahul Gandhi has been disqualified. The crux of his view is as follows:

Section 8(3) of the RP Act 1951 does not provide for automatic disqualification. It uses the words “shall be disqualified” and not “shall stand disqualified”.
In the Consumer Education and Research Society vs Union of India case, the Supreme Court held that the President performs adjudicatory and declaratory functions in such cases.
Thus, Lok Sabha Secretariat cannot declare Rahul Gandhi disqualified without referring the case to the President under Article 103 for a declaration.

Who is Deciding authority?

Article 103: President has been mandated to decide whether a sitting member has become subject to disqualification in all cases which come under Article 102(1).

It also deals with cases of disqualification under the RP Act 1951 which include cases under Section 8(3) of the Act.
On the question of whether a member is subject to any of the disqualifications, the President’s decision is final.
However, he should obtain the opinion of the election commission and act accordingly.

10th schedule: It will be decided by the Chairman in the case of Rajya Sabha and the Speaker in the case of Lok Sabha.

In Kihoto Hollohan vs. Zachillhu and Others (1992) case, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

Remedial Measures:

(1) In ‘Lok Prahari v Union of India’ case, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”

It should be noted that the stay cannot merely be a suspension of sentence, but a stay of conviction.
Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending.

(2) Supreme Court has the power to stay not only the sentence but also the conviction of a person. In some rare cases, conviction has been stayed to enable the appellant to contest an election.
(3) Section 11 of RPA: Election Commission may record reasons and either remove or reduce the period of a person’s disqualification.
The EC exercised this power for Sikkim Chief Minister P.S. Tamang, who served a one-year sentence for corruption, and reduced his disqualification so as to contest a by-election and remain in office.

Conclusion:

Disqualifying a legislator without giving them a reasonable time period to secure a stay of their conviction is not just a travesty of justice for the legislator concerned but is also dangerous to democracy. Thus, the “Right to be heard” and “Right to appeal” need to be ensured in such cases to uphold the idea of “Natural Justice”. Moreover, criminalizing defamation could have serious repercussions on freedom of speech as fear of imprisonment itself, and not actual conviction may deter many to speak their mind. So, its high time to look into disqualification rules of RPA, 1951 along with possibilities of ending criminal defamation of IPC (Section 499 to 502).

Prepared by Res Indica Ias Academy

(Get the Thought Association Map of the Blog in Free Resources Tab)