Rahul Gandhi won't be disqualified if...: Experts on Congress leader's jail term
2 min read . Updated: 23 Mar 2023, 05:24 PM IST
PremiumDisqualification from office arises from the sentence, not just the conviction, and begins when the sentence is announced. If the conviction and sentence are stayed by an appellate court, the disqualification remains suspended
Rahul Gandhi will not be disqualified as a member of parliament if the appellate court suspends the conviction and two-year jail term awarded to him by a Surat court, several legal experts have cited. The senior Congress leader have been charged in a 2019 criminal defamation case over his alleged "Modi surname" remarks.
Referring to Lily Thomas and the Lok Prahari case, constitutional law expert Rakesh Dwivedi said the suspension of sentence and stay of conviction were necessary to escape disqualification as a lawmaker under the Representation of the People (RP) Act.
"The appellate court can suspend the conviction and the sentence and grant him bail. In that case there will be no disqualification," he said, adding "However the politicians must choose their words carefully to avoid getting entangled with law."
The debate over possibilities of Gandhi being disqualified as an MP must take note of the legal position enumerated in the apex court judgements and the relevant provisions of the RP Act, he said.
Legal experts also highlighted that disqualification arises from the sentence, not just conviction alone. The disqualification period begins as soon as the sentence is announced, and if the appellate court stays the conviction and sentence, the disqualification remains suspended. “That means the disqualification will last for eight years (in case he is disqualified),"said P D T Achari, former Lok Sabha Secretary General and Constitution expert, adding that a disqualified person can neither contest, poll or vote for a certain period.
He was of the opinion that disqualification arises out of sentence, not conviction alone. "Therefore, if the sentence has been suspended by the trial court itself, that means his membership does not get affected. The disqualification has not come into effect," he said.
Section 8 of the RP Act provides for disqualification upon conviction for several categories of offences, including making speeches that cause enmity between groups, bribery and impersonation during elections, electoral offences, rape, cruelty to women by husband and relatives, among others. Offences under the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act, and other laws for prevention of Sati, corruption, terrorism, insult to national flag and national anthem also attract disqualification regardless of the quantum of punishment.
In the 2013 Lily Thomas case, the Supreme Court struck down Section 8(4) of the RP Act that allowed a convicted lawmaker to remain in office on the grounds that appeals have been filed within three months of conviction. In the 2018 Lok Prahari case, the apex court stated that the disqualification which ensues from a conviction would not operate despite the appellate court having granted a stay of the conviction.
(With inputs from agencies)