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Journalism of Courage
A Surat court Thursday (March 23) sentenced Congress leader Rahul Gandhi to two years in jail in a 2019 defamation case over his remarks about the “Modi surname”.
The court of Chief Judicial Magistrate HH Verma, which held Gandhi guilty under IPC Sections 499 and 500, 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, through its General Secretary SN Shukla, 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.
This plea sought to clean Indian politics of criminal elements by barring convicted politicians from contesting elections or holding an official seat. It drew attention to Articles 102(1) and 191(1) of the Constitution. Article 102(1) lays down the disqualifications for membership to either House of Parliament and Article 191(1) lays down the disqualifications for membership to the Legislative Assembly or Legislative Council of the state. The plea argued that these provisions empower the Centre to add more disqualifications.
Before this judgment, convicted MPs could easily file an appeal against their conviction and continue holding their official seats.
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 court added that a convicted parliamentarian or legislator’s membership will no longer be protected by Section 8 (4), as was previously the case.
The Court on an examination of other provisions in the Constitution that deal with disqualification of a lawmaker held that the Constitution “expressly prohibits” Parliament to defer the date from which a disqualification would come into effect.
