Rahul Gandhi on the 23rd of March 2023 was convicted by a Surat court under section 499 of the Indian penal code for his defamatory remarks on the Modi community. He was therefore sentenced to a prison term of 2 years, which is the maximum possible sentence for the crime under section 500 of the code. This conviction led to his disqualification as a Lok Sabha candidate, which was announced vide a notification issued by the Lok Sabha secretariat and signed by the secretary general of the Lok Sabha.
Grounds for disqualification
To understand the grounds for his disqualification, we refer to article 102 of the constitution of India which deals with the disqualification of individuals from being members of either house of the parliament. Specifically, Article 102(1)(c), specifies that he may be so disqualified by or under any law made by the parliament.
The law in question that disqualifies Rahul Gandhi is the Representation of the People Act,1951, section 8(3) which states that 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 after his release.
Therefore article 102(1)(e) of the constitution read along with section 8(3) of the Representation of the People Act form the grounds for the disqualification of Mr Gandhi on the day of his conviction, i.e., the 23rd of March 2023.
Is this just?
Under Rajiv Gandhi’s reign, the question of this clause, along with the lack of wiggle room it provides the convict was discussed. Be it for political motivations or the genuine concern for the MP getting his affairs in order for his constituency before his disqualification, in 1989, the act was amended for section 8(4) of the act to give the MP a window of three months to appeal the conviction, under which he would not be disqualified till the appeal was concluded. However, this clause only dealt with sitting MPs in office, and not the prospective MPs who may want to contend for office, getting no such leniency.
In 2013, based on article 14 of the constitution, which provides for equality before the law, the supreme court of the country ruled in the Lily Thomas case that automatic disqualification per section 8(3) shall stand not only for the prospective MPs but also on those currently in office. This judicial order per article 102 of the constitution is valid and leads to disqualifications, as it did in the case of Rahul Gandhi.
Way out for Gandhi
Per section 389(1) of the code of criminal procedure, 1973, on appeal, the court may suspend the sentence of the appellant till the appeal is concluded and release the appellant on bail. This is something we have all heard of- people out on bail despite being found guilty of crimes, Rahul Gandhi’s sentencing too does not mean that he has to go to jail thanks to this remedy. With this provision of law, he can simply ask for a stay on the sentencing, but even if he comes out on bail, isn’t he still convicted and so does he still have a chance to challenge his disqualification?
Can the disqualification be set aside?
In the past, the supreme court has put many a conviction on hold to allow the appellant to discharge their duties, which may be hindered by the conviction such as in the case of Ram Narang v. Rakesh Narang. Even politicians have made use of this such as in the case of Ravikanth Patil in 2007. A more popular example would be that of Navjot Singh Sindhu was able to stand for elections in 2006 despite his conviction in his road rage case.
In the 2018 Lok Prahari v. Union of India case, the Supreme court ruled that if the conviction is put on hold under section 389 of the crpc, the disqualification under section 8 will not take effect.
Legally speaking, it would be very easy for Rahul Gandhi, or any other MP for that matter to curtail disqualification by appealing to a higher court and asking for a stay on their conviction as many have before him, and he is likely to be granted it. With one stay of conviction, not only will he be eligible to stand for being elected to the parliament, his defamation case too would be dismissed!
However, if the election commission issues a bypoll, and Mr Gandhi gets the stay, he can contest the bypoll. He could milk this situation by staging an arrest like Indira Gandhi did in 1971, when she was disqualified for corrupt electoral practices, but I doubt that would garner much sympathy for him. Alas! It is only the people of Mr Gandhi’s Wayanad who will have to face the adverse consequences of this situation.
(The first part of this article can be read here)