A day after being convicted in a defamation case by a Surat court, Congress leader Rahul Gandhi was disqualified from the Lok Sabha. According to a notification issued by the Lok Sabha Secretariat, he was disqualified from the House as of March 23, the date of his conviction. Rahul Gandhi must now appeal to a higher court to have his sentence overturned. In a 2019 defamation lawsuit involving his statements on the “Modi” surname, Gandhi was found guilty and sentenced to two years in prison by a Surat court on Thursday (March 23). The conviction precipitated his disqualification as a legislator. What is the decision, and how does the disqualification work?
In a 2019 defamation case, Chief Judicial Magistrate HH Verma sentenced Gandhi to two years in jail for stating, “Why do all thieves have the name, Modi?” The comments were delivered at a rally in Kolar, Karnataka, ahead of the 2019 Lok Sabha elections. “Why do all thieves have Modi in their names, whether Nirav Modi, Lalit Modi, or Narendra Modi?” Gandhi had said in Hindi.
Defamation is punishable by simple imprisonment for a “period which may extend to two years, or with fine, or with both,” according to Section 500 of the Indian Criminal Code (IPC). Rahul Gandhi’s bail was also accepted on a bond of Rs 15,000, and the punishment was stayed for 30 days to allow him to appeal.
The conviction and subsequent disqualification of Congress leader Rahul Gandhi in the defamation case bring to mind a remarkable line from a Supreme Court ruling from way back in 1965 in Kultar Singh vs. Mukhtiar Singh. The Court was asked to rule on whether the use of the word panth in a leaflet amounted to a religious appeal. ‘The text must be read in its whole in order to establish its intent and impact in a fair, objective, and reasonable way’, the court said. When reading these documents, it would be unrealistic to ignore the fact that partisan feelings and emotions are often present, and that the use of hyperboles, exaggerated language, metaphors, and extravagance of expression in attacking one another are all part of the game when election meetings are held and appeals are made by candidates of opposing parties. So, some accommodations must be made and the contested speeches must be seen in that context when the issue of the impact of speeches is debated in the formal setting of a courtroom.
A legislator may be disqualified under three circumstances. The first is through Articles 102(1) and 191(1) of the Constitution of India, which deal with the disqualification of members of Parliament and the Legislative Assembly, respectively. The grounds include holding a profit-making post, being of unsound mind or bankrupt, and not having lawful citizenship.
The appeal court will examine whether Rahul Gandhi‘s use of a specific surname was intended to disparage an entire group of people with that surname, whether it was uttered without any malice, or if it was an innocent off-the-cuff comment made to make someone laugh. Yet the decision of the Chief Judicial Magistrate of Surat to convict and sentence a prominent Indian politician like Rahul Gandhi to two years in prison is unique and, in a sense, a denial of the Supreme Court’s concept. It should be emphasized that the maximum penalty for the IPC’s definition of defamation is two years in jail.
The CJM’s order has raised several significant legal and constitutional difficulties. A person convicted of a crime and sentenced to a term of imprisonment of at least two years is prohibited from running for office starting on the day of their conviction and for a further six years following their release, according to Section 8(3) of the Representation of People Act 1951. The result of disqualification is that he will be prohibited from running in any elections and from casting a ballot while he is disqualified.
The second provision for disqualification is included in the Constitution’s Tenth Schedule, which allows for the disqualification of members based on a defection. The third prescription comes from the Representation of the People Act(1951). This statute provides for criminal conviction disqualification. The Representation of the People Act has many sections dealing with disqualification. Section 9 addresses disqualification for removal for corruption or disloyalty, as well as engaging in government contracts as a legislator. Section 10 addresses disqualification for failing to file an election expenditure account. Section 11 is a fundamental clause that deals with disqualification for corrupt practices.
We might need to look outside the SC ruling in Lily Thomas to find the solution to this query. According to Article 103 of the Constitution, the President’s judgment is final if there is a dispute about whether a legislator who is already serving is eligible for disqualification. The President must consult the Election Commission first, however, before making a judgment, and they must follow their recommendation. According to Article 102, disqualification may occur in a variety of situations. Any conviction for a crime that resulted in a sentence of imprisonment of two years or more is one of the reasons for disqualification under Article 102. So, before taking any further action, the President was required by Article 103 to consider whether Rahul Gandhi should be disqualified.
In other words, only once the President has made a decision does the disqualification under Article 103 become effective. It is noteworthy that according to a different Supreme Court ruling, the president must make a decision before the disqualification becomes effective and the seat in the house is proclaimed empty in accordance with Article 101(3). Nonetheless, the Court notes that the vacancies mentioned in Article 101(3)(a) won’t happen until the President has chosen to declare the disqualification under Article 103(1). Union of India v. Consumer Education and Research Society, 2009. In contrast to Lily Thomas, which was determined by a two-judge bench, this decision was made by a three-judge bench. Hence, a sitting member of the legislature cannot be automatically disqualified in accordance with Article 103. The Representation of the People Ac of 1951’s Section 8(3) does not call for automatic disqualification. Instead of “shall stand disqualified,” it says “shall be disqualified.” Rahul Gandhi is now disqualified, according to a notice from the Lok Sabha Secretariat, which appears to be in violation of Section 8(3) of the RP Act.
Section 8 of the Representation of the People Act addresses disqualification for criminal convictions. The measure is intended to “avoid the criminalization of politics” and discourage ‘tainted’ MPs from running for office. For starters, convictions for the specific offenses listed in Section 8(1) of the Representation of the People Act result in disqualification. This includes specific offenses such as incitement of hostility between two groups, bribery, and undue influence or personation during an election. After being convicted in a hate speech case, Azam Khan, a top Samajwadi Party leader, will lose his Uttar Pradesh Assembly seat in October 2022. This list does not include defamation.
Section 8(2) also includes offenses including stockpiling or profiteering, adulteration of food or medications, and conviction and imprisonment for at least six months for any Dowry Prohibition Act violation.”A person convicted of any offense and sentenced to jail for not less than two years will be disqualified from the date of such conviction and shall continue to be disqualified for a further term of six years after his release,” Section 8(3) says.
If a higher court provides a stay of execution or rules in favor of the guilty legislator, the disqualification might be reversed. The Supreme Court emphasized in its 2018 judgment in ‘Lok Prahari v Union of India’ that the disqualification “would not operate from the date of the appeal court’s stay of conviction.”
Notably, the stay cannot only be a suspension of punishment under Section 389 of the Criminal Procedure Code (CrPC) but also a stay of conviction. An Appellate Court may suspend a convict’s sentence while the appeal is underway under Section 389 of the CrPC. This is equivalent to the appellant being released on bail. This means Gandhi’s first appeal will be heard by the Surat Sessions Court, followed by the Gujarat High Court.
Section 8(4) of the RPA states that the disqualification takes effect “three months from the date of conviction.” At that time, lawmakers might seek an appeal with the Supreme Court against the punishment. Nevertheless, in the landmark 2013 decision ‘Lily Thomas v Union of India,’ the Supreme Court declared Section 8(4) of the Representation of the People Act invalid. The Lok Sabha Secretariat will announce that the seat has become empty as soon as someone is disqualified. This may have happened in the case of the Lakshadweep MP who is now in office. Nevertheless, in accordance with the Supreme Court’s ruling in the Consumer Education case (above), this declaration cannot be made until the President has made an announcement about the disqualification issue.
In many democracies like the United States and the United Kingdom, defamation is no longer a crime. In democratic nations, there is a rising body of support for decriminalizing defamation. The Indian society cannot speak out loudly in favor of repealing this law because it is heavily entangled in bitter, antagonistic politics.
Kumar Kartikeya is a legal researcher.
