Opinion Rahul Gandhi disqualification: Lok Sabha Secretariat notification may be in conflict with Representation of People Act

Former Secretary General, Lok Sabha, PDT Achary writes: As per the SC order in Consumer Education and Research Society vs Union of India, this declaration can be made only after the President has announced her decision on the question of disqualification

Congress leader Rahul Gandhi at Parliament on Friday. (Photo: PTI)

P.D.T Achary

March 25, 2023 11:28 AM IST First published on: Mar 24, 2023 at 05:59 PM IST

There is a very interesting passage in a Supreme Court judgment delivered way back in 1965 in Kultar Singh vs Mukhtiar Singh, which comes to mind in the context of the conviction and subsequent disqualification of Congress leader Rahul Gandhi in the defamation case. The Court was called upon to decide whether the word “panth” used in a pamphlet amounted to an appeal in the name of religion. The Court said, “the document must be read as a whole and its purport and effect determined in a fair, objective and reasonable manner. In reading such documents it would be unrealistic to ignore the fact that when election meetings are held and appeals are made by candidates of opposing parties the atmosphere is usually surcharged with partisan feelings and emotions and the use of hyperboles or exaggerated language or the adoption of metaphors and the extravagance of expression in attacking one another are all a part of the game. So when the question about the effect of speeches delivered is argued in the cold atmosphere of a judicial chamber, some allowance must be made and impugned speeches must be construed in that light.”

The above passage contains a very salutary principle that the language used by politicians in a politically charged atmosphere like election meetings etc. should be treated with a little understanding and a spirit of realism. Well, it is for the courts in India to pay heed to the sane advice coming from the apex court.

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Whether a particular surname used by Rahul Gandhi was intended to defame a whole community of people carrying that surname or whether it was said with no malice or whether it was an innocent off the cuff remark for the purpose of causing a little laugh is for the appellate court to delve into. But the order of the Chief Judicial Magistrate of Surat convicting and sentencing a top political leader of India like Rahul Gandhi to two years imprisonment is unprecedented and in a way a negation of the principle enunciated by the Supreme Court. It is to be noted that two years imprisonment is the maximum punishment provided for the offence of defamation provided in the IPC. Incidentally, this is the minimum period of punishment which attracts disqualification under the Representation of People Act 1951.

The order of the CJM has thrown up some important constitutional and legal issues. Under Section 8(3) of the Representation of People Act 1951, a person convicted of an offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and would remain disqualified for a further period of six years after his release. The effect of disqualification is that he will be barred from contesting any election and also from voting during the period of disqualification.

However, there was an exception provided in Section 8(4) in favour of the sitting members of a legislature under which the order of disqualification would not take effect until after three months from the date of that order. If during these three months he filed an appeal, the disqualification order would be kept in abeyance till the appeal is disposed off. This three-month window was knocked down by the Supreme Court as unconstitutional in 2013 in Lily Thomas vs Union of India. The result is that as soon as a sitting member is sentenced to imprisonment for two years, his disqualification takes effect. Of course, when that member obtains a stay of the conviction and sentence from the appellate court, the disqualification is lifted. But a tricky legal question that arises is whether he ceases to be a member as soon as he is convicted and sentenced.

To answer this question, we may have to travel outside the SC decision in Lily Thomas. Article 103 of the Constitution says that if a question arises as to whether a sitting member of the legislature has become subject to disqualification, the question shall be referred to the President whose decision shall be final. But before giving his decision, the President shall refer the question to the Election Commission and shall act in accordance with the opinion of the Commission. Disqualification can arise according to Article 102 in many ways. One of the grounds for disqualification under Article 102 is conviction for any offence and sentence to imprisonment for two years or more. So, the question of disqualification of Rahul Gandhi ought to have been decided by the President as per Article 103 before any further action is taken.

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In other words, the disqualification can take effect under Article 103 only after the President has taken a decision. It is interesting to note that another judgment of the Supreme Court says that presidential decision is essential before disqualification takes effect and the seat in the house is declared vacant under Article 101(3). The Court says: “However, vacancies contemplated in Article 101(3)(a) will arise only when the disqualification is decided upon and declared by the President under Article 103(1)” (Consumer Education and Research Society vs Union of India, 2009). This judgment was given by a three-judge bench whereas Lily Thomas was decided by a two-judge bench. So, under Article 103, there cannot be an automatic disqualification of a sitting member of the legislature. Section 8(3) of the RP Act 1951 does not provide for automatic disqualification. It uses the words “shall be disqualified” and not “shall stand disqualified”. However, the Lok Sabha Secretariat has issued a notification now stating that Rahul Gandhi stands disqualified which is apparently in conflict with Section 8(3) of the RP Act.

The immediate effect of disqualification will be a declaration by the Secretariat of the Lok Sabha that the seat has become vacant. This was perhaps done in the case of the sitting MP from Lakshadweep. But as per the decision of the Supreme Court in the Consumer Education case (supra) this declaration can be made only after the President has announced her decision on the question of disqualification.

Defamation as a criminal offence is being done away with in many democratic countries: It is no longer an offence in the UK, USA or Sri Lanka. There is a growing volume of opinion in democratic societies in favour of decriminalising defamation. The Indian society being too much involved in acrimonious, adversarial politics is unable to speak aloud for abolishing this law. It is an irony that the descendents of the mother of democracy are too preoccupied to notice the impact of the criminalisation of defamation.

The writer is former Secretary General, Lok Sabha

# Rahul Gandhi