Why law on disqualification of MPs needs a change

A criminal court in Surat, Gujarat, sentenced Rahul Gandhi, member of Parliament (MP) from Wayanad and former president of the Congress party, to two years’ imprisonment and a fine for a speech he made at an election rally in Kolar, Karnataka, in April 2019.The judgment is untenable on several legal grounds, including lack of territorial jurisdiction and a well-settled principle of law that a vague, unidentifiable class of persons — like those with a certain surname — can’t be defamed.The remedy to sue for defamation is only available when a specific individual or group of clearly identifiable individuals are defamed. medium99206812Focusing on the consequent disqualification Rahul suffered from the membership of the Lok Sabha, it is due to operation of Section 8(3) of the Representation of Peoples Act, 1951, which states that a member of Parliament or state legislature will be disqualified if convicted and sentenced for any offence for two years or more.This law originally contained a built-in safeguard under Section 8(4) that the disqualification will not operate for a period of three months, giving the convicted legislator time to file an appeal and seek a stay or quashing of the order of conviction. This safeguard was struck down by the Supreme Court in the case of Lily Thomas vs Union of India in July 2013.The then Congress-led United Progressive Alliance (UPA) government brought an ordinance to remove the basis of the judgment by inserting a new Section 8(4) that would have not disqualified the legislator but kept them as a member without voting rights or salary. However, the ordinance did not become law, as it was withdrawn by the UPA government before the President could assent to it.Since 2013, many politicians have suffered the instant disqualification effect of the Lily Thomas judgment. Most notably, J Jayalalithaa, who was the first sitting chief minister to have been instantly disqualified upon her conviction in the disproportionate assets case in 2014 by a Bengaluru court. Similarly, Dravida Munnetra Kazhagam leader TM Selvaganapathy became the first MP from Tamil Nadu to suffer instant disqualification in 2014 and Rashtriya Janata Dal leader Lalu Prasad was disqualified as an MP in September 2013 after a conviction.Watch: 10 other leaders who were disqualified as MPs medium nocaption98995280The Lily Thomas case was decided by the Supreme Court on the premise that when conviction in a criminal case is a disqualification for a person to contest election, it must operate as an immediate disqualification for a sitting member of a legislature as well. The court held that Parliament could not have postponed the effect of the disqualification till the time for filing appeal lapses.However, the court also observed that the convicted legislator is not without remedy as they can move an appellate court and obtain an order of stay against their conviction. The court, however, did not consider what would happen to the MP in the interregnum.A fundamental rightThe Supreme Court in 2007 held in the case of Dilip Dahanukar vs Kotak Mahindra that the right of appeal is available not just as a statutory right but also as a fundamental right under Article 21 of the Constitution to any person convicted of an offence and sentenced to a punishment affecting their personal liberty.In fact, in a subsequent judgment in Lok Prahari vs Election Commission of India, the Supreme Court has categorically held that the Lily Thomas disqualification will not operate if the convicted legislator has moved the appellate court and obtained a stay of their conviction. medium99206833When a person has a right of appeal and a right to seek a stay of conviction, is it fair to disqualify them before they exercise that right? In fact, the trial court suspended the sentence of Rahul for 30 days to enable him to file an appeal. In law, however, suspension of sentence does not suspend the conviction. The disqualifications attached to conviction can only be set at naught if it is stayed or quashed by an appellate court under Section 389 of the Code of Criminal Procedure (CrPC).Disqualification of an MP is not a simple matter that affects the individual alone. The consequences are profound for the MP as well as the constituency and the people they represent. The Wayanad Lok Sabha constituency has a population of 13.25 lakh voters. Rahul is expected to espouse the cause of his constituents.The Lok Sabha secretariat, which is quick to disqualify is not quick to reinstate the MP when their conviction is stayed, as seen from the case of Mohammed Faizal, the Nationalist Congress Party MP from Lakshadweep.Faizal was convicted by a Kerala court on January 11 and disqualified by the Lok Sabha secretariat on January 13. The Kerala high court suspended the conviction and sentence of Faizal on January 25 but till date, the MP has not been reinstated by the Lok Sabha secretariat despite filing a plea before the Supreme Court. This means that the people of Lakshadweep have not had a voice to represent them in Parliament throughout the 2023 Budget session. medium99206864It also raises the question as to what would happen if the Election Commission notifies fresh elections to the constituency and what would become of the MP if ultimately the conviction is quashed by the high court or the Supreme Court.Even if an appellate court quashes Rahul’s conviction, no court can give him back the time he lost in Parliament. One cannot ignore the fact that his disqualification has come at a time when he has been raising important questions against the government in Parliament.To avoid such a situation, the prudent course would be for Parliament to re-enact Section 8(4) and bring back a buffer period enabling a convicted legislator to file an appeal and seek a stay of conviction from an appellate court. Otherwise, the punishment of disqualification from membership of the legislature and the damage it does, cannot be undone.The writer is an advocate in the Madras high court.