A Surat court on March 23 sentenced Congress leader Rahul Gandhi to two years in jail in a 2019 defamation case over his remarks.
Key points
- The court of Chief Judicial Magistrate held the leader guilty under IPC Sections 499 and 500, and also granted him bail and suspended his sentence for 30 days to allow him to appeal.
- As per Section 8(3) of the Representation of the People Act of 1951, conviction of a lawmaker for an offence with a two-year sentence or more leads to disqualification from the House.
- Section 8(4) of the RPA said that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, the convicted lawmaker could have filed an appeal against the sentence before a higher court. However, this provision was struck down as “unconstitutional” in the Supreme Court’s landmark 2013 ruling in ‘Lily Thomas v Union of India’.
- In 2005, a PIL was filed before the Apex Court by a Kerala-based lawyer Lily Thomas and NGO Lok Prahari, challenging Section 8(4) of the RPA as “ultra vires” to the Constitution, which protects convicted legislators from disqualification on account of their appeals pending before the higher courts.
- On July 10, 2013, a bench of Justices AK Patnaik and SJ Mukhopadhaya of the Apex Court held that Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.
- The Court also held that if any sitting member of Parliament or State Legislature is convicted of any offence under sub-section (1), (2), and (3) of Section 8, RPA, then by virtue of such conviction and/or sentence they will be disqualified.
- The disqualification of an MP convicted for an offence can happen in two instances. First, if the offence for which he is convicted is listed in Section 8(1) of the Representation of the People Act of 1951. This includes certain specific offences such as promoting enmity between two groups, bribery and undue influence or personation at an election.
- Second, if the lawmaker is convicted for any other offence but is sentenced for a period of two years or more. Section 8(3) of the RPA mandates that an MP can be disqualified if convicted and sentenced to not less than two years of imprisonment.
How a member is disqualified?
Disqualification of a lawmaker is prescribed in three situations:
- Through the Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively. The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
- The second prescription of disqualification is in the 10th Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
- The third prescription is under The Representation of The People Act (RPA), 1951. This law provides for disqualification for conviction in criminal cases.
Disqualification under the RPA
There are several provisions that deal with disqualification under the RPA.
- Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
- Section 10 deals with disqualification for failure to lodge an account of election expenses.
- A key provision, Section 11, deals with disqualification for corrupt practices.
- Section 8 of the RPA deals with disqualification for conviction of offences. The provision is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.
