Congress leader Rahul Gandhi’s conviction in a defamation case has triggered a debate on his impending disqualification as Member of Parliament. First of all, we need to understand the wordings of Section 8(3) of The Representation of the People Act, 1951 that deals with disqualification of a member convicted of any offence and sentenced to imprisonment for not less than two years. It says the person “shall be disqualified” and does not say “stands disqualified”.
This means that the question of automatic disqualification does not arise. The verdict of the Surat court has led to a confusing situation as the operation of the sentence has been suspended by 30 days. During the 30-day period, Rahul Gandhi can file an appeal in a higher court. Here, the sentence is important as the disqualification is based on it. Suppose, the imprisonment was for a period of less than two years, it would not have led to disqualification. This means the disqualification can be directly related to the quantum of sentence.
Now, the question arises that when the operation of the sentence has been suspended by the court, will it lead to the suspension of the disqualification as well. Logically, if the operation of the sentence has been suspended, the disqualification also should not take effect. There is another view that as soon as the person is sentenced, the disqualification takes effect. This is based on the logic that only the operation of the sentence has been delayed and that the sentence as such remains.
I am of the view that since the disqualification is directly related to the quantum of sentence, which has been suspended, the disqualification resulting from the sentence also remains suspended for that period. I take this view because of Article 103 of the Constitution which gives a totally different insight into the whole scheme of such disqualification. Under Article 103, the President of India has been given the task of declaring the person disqualified. We need to remember that Article 102 of the Constitution mentions about disqualification on many grounds and one of them is any disqualification mentioned in the law made by Parliament (The Representation of the People Act, 1951).
This means Article 102 covers all those disqualifications which arise from various sections of the Act including Section 8(3) that is now in question. Therefore, under Article 103, the President has to disqualify the person who has become subject to any of the disqualifications mentioned in Article 102. The President will seek the Election Commission’s opinion before taking a decision. If the decision goes against the member, his or her seat in Parliament will be declared vacant.
Meanwhile, the Supreme Court had passed an important judgement in 2013 in the Lilly Thomas case. Earlier, under Section 8(4) of the Representation of the People Act, there was a window of three months available to sitting members before the disqualification came into effect. The Supreme Court held that the provision amounts to discrimination and it is not permissible under Article 14 of the Constitution relating to equality before law, and struck it down.
However, in the Lilly Thomas case, the Supreme Court did not go seriously into Article 103 of the Constitution that implied that there will be no immediate disqualification after conviction and sentence unless the President takes a decision on it. Instead, it dealt mainly with the validity of a particular section in The Representation of the People Act.
However, in 2009, a two judge bench of the Supreme Court had ruled that Presidential decision is essential to declare that a member has become subject to disqualification.Article 103 is a constitutional provision and it needs to be remembered that no part of the Constitution is redundant. Every Article, clause, section and subsection of the Constitution has to be given effect to. Therefore, the Presidential decision, which is required under Article 103, is essential before the seat of a member is declared vacant. This means, there is no immediate automatic disqualification even after the Lilly Thomas case verdict.
When the matter comes before the President and is referred to the Election Commission, the process would obviously take time. This does not mean that the member in question goes behind bars in the meantime. Also, there is nothing that bars the member from attending Parliament. As long as the person is not officially disqualified by the President, he or she continues to be a member and like the other members, can attend Parliament.
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Interestingly, the trial court has given the maximum sentence permissible under Section 500 of the IPC, which is two years. The Section says that a person convicted of defamation shall be punished with simple imprisonment for a term that may extend to two years. Here, the trial court has sentenced him to two years which is also the cut off level for disqualification.
Prez’s decision essential before seat is declared vacant
Under Article 103, the President has to disqualify the person who has become subject to any of the disqualifications mentioned in Article 102…. Article 103 is a constitutional provision and it needs to be remembered that no part of the Constitution is redundant. Every Article, clause, section and subsection of the Constitution has to be given effect to. Therefore, the Presidential decision, required under Article 103, is essential before the seat of a member is declared vacant. This means, there is no immediate automatic disqualification
PDT Achary
Former secretary-general, Lok Sabha
[As told to Sovi Vidyadharan]
