Sword of disqualification hangs over Rahul Gandhi

A sword of disqualification hangs over Congress MP Rahul Gandhi following his conviction and sentence of two-year jail in a defamation case by a Surat court on Thursday.

The Supreme Court in a landmark verdict in the Lily Thomas case in 2013 declared that an MP or an MLA would stand disqualified immediately upon conviction.

In his case, the Surat court suspended the sentence but he would have to seek a stay on his conviction before an appellate court in order to retain his membership of Lok Sabha.

All eyes would now be upon the appellate court to see if his conviction and sentence get suspended when he files an appeal within the stipulated time.

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Prior to the Lily Thomas case, in view of the provision of Section 8(4) of the Representation of the People Act, the convicted lawmakers could continue their membership of assemblies and Parliament despite their being held guilty in a criminal case, provided they filed an appeal against such convictions within three months.

Rahul Gandhi would stand disqualified until he does not approach the higher court with a plea to stay the conviction, senior advocate Mahalakshmi Pavani said.

"The judgment in Lily Thomas case says that merely appealing against the conviction won't be a panacea to save the legislative seat and it will go with the conviction. The Higher Court, if appealed to quickly with appropriate reliefs, may not result in Gandhi losing his Lok Sabha seat," she said.

Senior advocate Sidharth Luthra said Gandhi will have to file an appeal and seek a stay of conviction. "He will be disqualified, but if the stay of conviction is granted by the appellate court, he will be safe," he said.

Luthra, former Additional Solicitor General further said, "In Manoj Narula vs Union of India (2014), the Constitution Bench has held that, “a disqualification under Section 8(3) of the Representation of People Act is attracted only if the sentence awarded to a convict is (sic) not less than two years imprisonment.”

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So, the first issue will be that with the two years imprisonment, disqualification will apply.

"While in Lily Thomas, it was stated in para 30 that, “seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution”, it was clarified in Lok Prahari vs Election Commission of India (2018) that the disqualification will not operate from the date of the stay of conviction by the appellate court. Hence, a stay of conviction “would relieve the individual from suffering the consequence of a disqualification relatable under Section 8 of the Act,” he added.

Former Chief Election Commissioner O P Rawat, however, said, "As per reports, the Surat court has suspended his sentence, meaning his sentence does not exist as of now, and that makes all the difference. Otherwise, the ruling of the Supreme Court is very clear a member of legislature stands disqualified irrespective of any appeal."

According to Section 8 (3) of the Representation of People Act, 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.

Additional Advocate General of Tamil Nadu, Amit Anand Tiwari said a person who is convicted of any offence and sentenced to imprisonment for not less than two years stands disqualified from being a member of Parliament and such seat becomes vacant, until his conviction is stayed by an appellate court.