Rahul Gandhi disqualified as Lok Sabha MP after conviction: How the process works

I’m stunned by this action and by its rapidity, within 24 hours of the court verdict and while an appeal was known to be in process. This is politics with the gloves off and it bodes ill for our democracy. pic.twitter.com/IhUVHN3b1F

— Shashi Tharoor (@ShashiTharoor) March 24, 2023

On Thursday (March 23), Gandhi was held guilty and sentenced to two years in jail by a Surat court in a 2019 defamation case, over his remarks about the “Modi” surname. The conviction triggered the process of his disqualification as a lawmaker. What is the ruling and how does the disqualification operate?

What did the Surat Court rule?

Chief Judicial Magistrate HH Verma convicted Gandhi in a 2019 defamation case, for saying ‘why do all thieves have the name Modi’, and sentenced him to two years in prison. The remarks were made during a rally in Kolar, Karnataka, in the run-up to the 2019 Lok Sabha elections. “Why do all thieves, be it Nirav Modi, Lalit Modi or Narendra Modi, have Modi in their names,” Gandhi had said in Hindi.

Section 500 of the Indian Penal Code (IPC) prescribes for defamation a simple imprisonment for a “term which may extend to two years, or with fine, or with both.”

The court also approved Gandhi’s bail on a surety of Rs 15,000 and suspended the sentence for 30 days to allow him to appeal.

Why was Gandhi disqualified?

Disqualification of a lawmaker is prescribed in three situations. First is 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 Tenth 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.

What does the RPA say?

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.

First, disqualification is triggered for conviction under certain offences listed in Section 8(1) of The Representation of The People Act. This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election. Senior Samajwadi Party leader Azam Khan lost his Uttar Pradesh Assembly membership in October 2022 after he was convicted in a hate speech case. Defamation does not fall in this list.

Section 8(2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.

Section 8(3) states: “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.”

How does the disqualification operate?

The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.

In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”

Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), 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. This is akin to releasing the appellant on bail.

This means that Gandhi’s first appeal would be before the Surat Sessions Court and then before the Gujarat High Court.

How has this law changed?

Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, lawmakers could file an appeal against the sentence before the High Court.

However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.