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This is part one of a two-part analysis of the legal landscape surrounding Rahul Gandhi's disqualification. This piece delves into the questions of why Rahul Gandhi has been disqualified, what happens if by-polls are conducted in his former constituency and what he could do next. Meanwhile, the next part answers why his conviction under the criminal defamation law may be concerning.
“If you are a public figure, you have to get used to criticism,” a Supreme Court bench told (then) Tamil Nadu Chief Minister J Jayalalithaa in 2016. The court's rebuke came while hearing a defamation case filed by her against DMDK leader Vijayakanth.
A month prior to this remark that year, the court had also told the CM: "It (a defamation case) amounts to curbing of free speech. There has to be tolerance for criticism. The defamation law cannot be used as a political counter weapon.”
Cut to 2023, and Congress leader Rahul Gandhi has been disqualified from the Lok Sabha, after being convicted in a criminal defamation case filed by BJP’s Purnesh Modi in a Surat court.
First Things First
Rahul’s ‘crime’? As per media reports, the Congress leader had said in 2019: “Why do all the thieves, be it Nirav Modi, Lalit Modi or Narendra Modi, have Modi in their names?”
Rahul’s punishment? Two years imprisonment and a fine of Rs 15,000, under Sections 499 (defamation) and 500 (punishment for defamation) of the Indian Penal Code (IPC).
Note: Two years imprisonment is the maximum punishment that can be awarded for this offence.
Exactly a day after his conviction, the Lok Sabha secretariat also notified that Gandhi had been disqualified as member of parliament, under the Constitution’s Article 102(1)(e) read with Section 8 of the Representation of the People Act.
Legal experts have questioned how the criminal defamation case filed on Purnesh Modi’s complaint is made out, when Rahul had mentioned three people in the contentious quote — none of who were Purnesh.
Additionally, they have asked on what grounds has he been awarded maximum punishment. Anything less than the two years that Gandhi got would’ve allowed him to retain his membership.
But first things first: Why has Rahul Gandhi been disqualified? What happens if EC conducts a by-poll on his seat (Waynad) before the conviction order is stayed? And what can Gandhi do now?
Why Has Rahul Gandhi Been Disqualified?
Essentially, as per Article 102(1)(e), a member of either house can be disqualified under any law made by the parliament (in this case, the Representation of the People Act.)
As per Section 8(3) of the Act, a person convicted of any offence and sentenced to imprisonment for not less than two years, other than offences mentioned in 8(1) and 8(2) (in which case different conditions apply), shall be disqualified.
Disqualification, as per the Act, shall begin on the date of the conviction and continue for a period of six years after his release.
In Rahul Gandhi’s case, thus, unless the conviction is stayed by an appellate court, his disqualification will continue for a total of eight years – two years of imprisonment plus six post release. This also means that he will not be able to contest elections for this duration.
What Happens In Case The Conviction Is Stayed?
As per a Supreme Court judgment of 2018 (Lok Prahari vs Election Commission Of India), passed by a three judge bench and authored by Justice DY Chandrachud:
“Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect.”
This means that, in strict adherence with this judgment, as soon as Rahul Gandhi’s conviction is stayed by an appellate court, the disqualification will cease to apply. But things in practice are not that simple.
“In practice, what is happening is that if the stay of the conviction comes after the (disqualification) notification issued by the Speaker, following a judgment of conviction, the legislator concerned still does not get back their seat in the House,” Advocate Paras Nath Singh wrote in a piece for The Leaflet.
Singh illustrated this point with the help of Lakshadweep MP Mohammed Faizal’s case. The Lok Sabha speaker disqualified him on 13 January, two days after his conviction and sentencing. The EC issued a press note announcing that by-elections will be conducted in Faizal’s constituency on 18 January.
On 25 January the Kerala High Court stayed Faizal’s conviction — but note: this was after the EC had already declared his seat vacant.
So then, what happened?
“It is not clear whether the stay of his conviction by the high court post the decision of the Speaker has resulted in the restoration of status quo ante for him, as he ceased to be a member of the House following a disqualification notification issued by the speaker. As per the Lok Sabha website, Faizal is not seen as an MP.”Advocate, Paras Nath Singh
Meanwhile, in a different case, when Samajwadi Party’s Azam Khan had challenged EC’s decision to notify polls following his disqualification, the latter had argued that even if Khan is granted a stay, he would not be able to continue as member of the House. At best, he could contest the by-poll, they had said.
While the Supreme Court had deferred the by-polls by 24 hours so that he could attempt getting a stay on his conviction, as per Singh, “this argument of the EC remains unaddressed."
Additionally, we don't know for sure how the events would have panned out if Khan's conviction had, in fact, been stayed, because the court rejected his plea.
What Happens If By-Polls Are Held Prior To Stay On Conviction? Experts Answer
In conversation with The Quint, former Supreme Court Justice Madan Lokur said:
“Supposing the Election Commission announces a by-election on Rahul Gandhi’s seat, the results for which are to be declared (hypothetically) on 1 May, and on that date someone else gets elected. Then even if Rahul Gandhi gets a stay after 1 May, you cannot unseat the person who has been elected.”
“What happens in a situation like this? There’s a gap in the law, and the gap has to be filled. Nobody seems to have answered it yet,” Justice Lokur added.
This practice also appears to fly in the face of apex court’s Lok Prahari judgment, due to the manner in which it renders a disqualification irreversible despite a stay on the conviction.
When an appellate court stays a conviction, it is because they have reason to believe that the conviction was unjustified. But what good is such a reversal for an MP who has already lost his seat as consequence of the lower court’s order?
If a by-poll has already been held, all Rahul Gandhi can do “if and when he gets a stay is fight from some other seat, as and when the occasion arises,” Supreme Court Advocate Shadan Farasat told The Quint.
As pointed out by Paras Nath Singh, in Lily Thomas vs Union of India (in which the apex court had held that a conviction with a sentence of two or more years will automatically result in disqualification), senior advocate Fali S Nariman had argued that adequate time ought to be allowed to a convicted legislator to move an appellate court.
What Remedy Does Rahul Gandhi Have?
“What he should do right now, before such by-poll is conducted, is challenge both the conviction sentence, and the disqualification. If the courts are inclined to give him relief, then they will stay the conviction and also the consequent disqualification, in which case he will come back as MP.”Shadan Farasat, Supreme Court Advocate
This is because if the conviction is stayed, then the embargo on Gandhi contesting the elections is gone; and if the disqualification is stayed he comes back to his seat as the MP, Farasat explained.
Read part two of the series here.
(With inputs from The Leaflet, Scroll and Livelaw.)