Congress leader Rahul Gandhi’s conviction and sentencing in a 2019 defamation case by a court in Gujarat has put a question mark over his continuation as a Lok Sabha MP. Experts though have differing views on whether the conviction and sentencing means immediate disqualification or the Wayanad MP gets time if he appeals.
According to the Section 8(3) of the Representation of the People (RP) Act, 1951, which guides the disqualification of a legislator, the moment a Member of Parliament is convicted of any offence and sentenced for at least two years, she or he attracts disqualification.
Constitutional law expert P.D.T. Achary says the disqualification is directly linked to the quantum of sentence and since the Surat court has suspended Mr. Gandhi’s sentence for 30 days, the disqualification process is also on hold for the same period.
However, according to former Chief Election Commissioner S.Y. Quereshi, since the court has suspended the sentence and not the conviction, the disqualification according to the RP Act and its interpretation by the Supreme Court in the Lily Thomas case is automatic.
Lily Thomas case
In 2013, the apex court in the Lily Thomas case had struck down Section 8(4) of the RP Act that gave a convicted lawmaker the power to remain in office on the grounds that appeals have been filed within three months of conviction.
The disqualification, however, would be formalised only when the Lok Sabha Secretariat issues a notification saying that the seat has fallen vacant and subsequently the Election Commission (EC) orders elections to the seat again.
Sources in the Lok Sabha secretariat told The Hindu that there is no move as of now to issue a notification declaring Mr. Gandhi’s seat vacant and they are waiting for a formal complaint.
The secretariat is understandably moving cautiously after the recent case of Lakshwadeep MP, P.P. Mohammed Faizal.
The NCP MP was convicted by a court in Lakshadweep in January, but a week later, the Kerala High Court suspended the conviction and said his disqualification as a Lok Sabha member would no longer be valid. Mr. Faisal immediately challenged in the Supreme Court the Election Commission’s decision to announce bypolls in his constituency and the apex court asked for a cancellation of the EC order.
Following this, the Law Ministry recommended the reinstatement of the MP.
Uttar Pradesh strongman Azam Khan was not so lucky though. Last year, he was disqualified as an MLA after his conviction in a 15-year-old hate speech case. The disqualification was formalised after the Uttar Pradesh Assembly declared his Rampur seat vacant through a notification, the day after the court order.
Experts also quote the Supreme Court judgment in the 2018 Lok Prahari case, which said, on appeal if the conviction is suspended then the disqualification will also remain suspended.
“Rahul Gandhi thus needs to get his conviction stayed by a higher court,” a senior official of the Election Commission, who did not wish to be named, said.
Another option which is available for the MP is approaching the President. Says Mr. Achary, as per Article 103 of the Constitution, the disqualification case of an MP will be decided by the President in consultation with the Election Commission. “It is up to the MP to appeal to the President invoking Article 103”.