The disqualification conundrum

Former Congress President Rahul Gandhi’s removal from Parliament has raised some legal questions about the immediate loss of membership from the Lok Sabha on conviction of a crime which attracts a prison term of two years or more

March 27, 2023 10:24 pm | Updated March 28, 2023 09:26 am IST

Congress party activists hold placards at a silent protest in support of Rahul Gandhi in Mumbai on March 26.

Congress party activists hold placards at a silent protest in support of Rahul Gandhi in Mumbai on March 26. | Photo Credit: AP

The disqualification of Rahul Gandhi from his membership of the Lok Sabha, which also means that he is not qualified to enter an electoral contest for a period that may potentially run up to eight years, has set off a debate on whether criminal conviction should entail immediate loss of a serving legislator’s membership. A petition has already been filed questioning the relevant provision in the Representation of the People Act, 1951, that prescribes disqualification on conviction for crimes that attract a prison term of two years and more.

Past protection

There is considerable discussion now as to whether the earlier protection enjoyed by serving legislators from immediate disqualification must be restored. Section 8(4) of the RPA, 1951, was struck down in 2013 by the Supreme Court in a landmark verdict in Lily Thomas versus Union of India. Soon after the judgment, the then UPA regime sought to bring an ordinance to restore the legal position in favour of sitting MP’s, MLA’s and MLC’s. However, it ran into political opposition as detractors said it was aimed at protecting UPA leaders such as Lalu Prasad Yadav from disqualification on conviction for corruption. Many have highlighted the fact that Mr. Gandhi himself was one of those critics; he famously tore up a copy of the draft ordinance to display his opposition to the move, which he considered to be an attempt to shield the corrupt. However, it is a moot question whether the ordinance or the Act that may have replaced it later would have survived judicial scrutiny.

This is because Section 8(4) of the Act was declared unconstitutional on the ground that Parliament lacked the legislative competence to enact it. The apex Court had cited Article 102 of the Constitution (and Article 191, the corresponding article for State Assembly and Legislative Council members) to lay down that Parliament was mandated to enact a common law prescribing what sort of situation would disqualify a person for both ‘being chosen as’ and ‘being a member’ of Parliament. Sub-section (4) of Section 8 said the disqualification will not take effect for three months for anyone who is an MP or an MLA on the date of conviction, and if during that period, an appeal is filed, the mere fact of filing the appeal will operate as a stay on disqualification until its disposal. The Court ruled that Parliament was not competent to have separate provisions for these two situations, as the constitutional mandate was to enact a single law. By creating one provision for the immediate disqualification of ordinary citizens and another one for deferred disqualification of legislators, Parliament had violated the constitutional mandate.

The contrary view

During the hearing, the government defended the protection clause for sitting lawmakers with two arguments, the first of which was based on practical considerations. It contended that a regime may be surviving on a wafer-thin majority, and immediate disqualification of a member or two from the date of conviction may result in loss of majority and change of regime. It was necessary for the purposes of democracy to prevent the situation.

The second consideration was that immediate disqualification may entail the conduct of a by-election. In the event of the conviction being set aside by an appellate court after a while, the by-election’s outcome cannot be reversed, and the exonerated former member will have no legal recourse for restoration of membership.

The second argument was on legal grounds: the government submitted that Parliament was not really making two different provisions concerning disqualification while enacting Section 8. What the protection clause envisaged was mere postponement of the time from which the disqualification comes into effect in case of serving legislators. It did not mean that lawmakers were subject to a different kind of disqualification for ‘being chosen as’ and ‘being members’.

The Supreme Court rejected these arguments. It went on to hold that the remedy for someone suffering immediate disqualification was to file an appeal and seek a stay on conviction. It clarified that the disqualification will cease to operate from the date of stay of conviction by an appellate court. This has given rise to a different question altogether, one that may be relevant today in respect of those suffering disqualification as on date.

The relevancy of the date of stay

In most cases, there is no stay of conviction, as the Supreme Court has often said only suspension of sentence and grant of bail, pending appeal, were normal remedies, and stay of conviction should be given only rarely. The examples of political leaders who lost their membership of the legislature and went on to either succeed or lose in their appeal did not create any major controversy. For instance, the late J. Jayalalithaa, whose conviction for corruption resulted in loss of her office and membership in 2014, failed to get any stay of conviction. Therefore, a by-election was held after her seat was declared vacant. She succeeded in appeal before the Karnataka High Court and had to re-enter the Assembly and regain her office as Chief Minister only through a by-election.

However, Lakshadweep MP Mohammed Faizal, who was convicted and sentenced to a 10-year prison term in January, managed to get a stay of conviction from the Kerala High Court. However, by then, the Lok Sabha secretariat had notified that his seat was vacant. The Election Commission even fixed a date for the by-election, but when he challenged this in the Supreme Court, the Commission said it would honour the court’s stay order. Yet, Mr. Faizal’s Lok Sabha membership is yet to be restored. The probable reason is that the date of conviction is the date on which the disqualification comes into effect, but the stay of conviction operates only from the day the stay is granted. This means that during the intervening period, the member did suffer disqualification. Therefore, can the membership be restored or restituted with retrospective effect from the date of conviction?

Possible solutions

A simple way out is that the secretariat of the respective Houses should give effect to the order of stay on conviction fully, by restoring the legislator’s membership without further ado, until the appeal is disposed of.

Another step that can be adopted as a matter of practice is for the secretariat to wait until the convicted member approaches higher courts for stay of conviction, and notify a vacancy only if the application is rejected.

However, there may be some scope for the Supreme Court to re-examine some of the issues involved. Mr. Faizal’s case provides an opportunity to decide whether the legislative secretariat should wait for an appellate remedy before declaring a seat vacant.

The issue of whether the President, or Governor in the case of State legislators, should formally declare a person disqualified as required under Article 103 and Article 192 instead of using the ‘automatic’ disqualification route is also open.

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