Disqualification of legislators: The law and its implementation

A Gujarat court on Thursday convicted Congress leader Rahul Gandhi in a criminal defamation case and sentenced him to jail for two years

A Gujarat court on Thursday convicted Congress leader Rahul Gandhi in a criminal defamation case and sentenced him to jail for two years. The punishment for the Wayanad MP was suspended for a period of 30 days to enable him file an appeal, but this may have no bearing on his disqualification because a Constitution bench judgment of the Supreme Court in 2005 has held that a stay on punishment is not relevant for the purposes of disqualification nor will it obliterate the conviction.

Disqualification of legislators: The law and its implementation

The 2005 verdict ruled that disqualification of a lawmaker will depend solely on the “actual period of imprisonment which any person convicted shall have to undergo or would have undergone consequent upon the sentence of imprisonment pronounced by the court”.

In October 2022, Samajwadi Party leader Azam Khan was disqualified from the membership of the Uttar Pradesh assembly just two days after his conviction in a 2019 hate speech case. The office of state assembly Speaker announced Khan’s disqualification as the politician was sentenced to three years in jail by a Rampur court. Notably, on the same day, the Rampur court granted bail to Khan, besides providing him time to file an appeal against sentencing. Gandhi’s case has also followed the same course and the ball is arguably in the Lok Sabha Speaker’s court.

The development, which sparked a political turmoil on Thursday, has also brought the spotlight on the legal regime in the country regarding disqualification of elected lawmakers after they are convicted and sentenced for a particular period.

While the law on the subject was framed by the legislature, a raft of Supreme Court judgments rendering interpretations to relevant statutory provisions and mapping out the lawmaking powers of the Parliament has guided how and when an elected legislator gets disqualified.

Legal provisions on disqualification

The Constitution talks about disqualifications for a person being chosen as, and for being, an MP, an MLA or an MLC. Article 102 states that a person shall be disqualified as a member of either House of Parliament if he or she holds an office of profit; or is of unsound mind; or has lost his citizenship; or is an undischarged insolvent (bankrupt); or is so disqualified by or under any law made by Parliament. Article 191 is identically worded for disqualification of MLAs and MLCs.

In Election Commission, India Vs Saka Venkata Rao (1953), the Supreme Court clarified that Article 191 lays down the same set of disqualifications for elections as well as for continuing as a member and that there was no ambiguity regarding the ambit of the provision.

Drawing from the Constitution, Parliament framed Section 8 of the Representation of the People Act, 1951, specifying different categories of offences to entail disqualification of sitting MPs, MLAs, and MLCs.

The first category mentions conviction for offences such as rape, involvement in terrorism, inciting communal disharmony, corruption, hate speeches, and insult to national flag and national anthem, and a mere conviction is sufficient for disqualifying a legislator in such cases. If the punishment given is a fine, the six-year period will start from the date of conviction. If there is a prison sentence, the disqualification will begin on the date of conviction, and will continue up to the completion of six years after the release from jail.

Sections 8(3), inserted in the Act in 1989, provides for the second category, prescribing that a mere conviction will not result in disqualification and that it would require a court to hand down a sentence of at least two years in prison for the disqualification to kick in. Gandhi’s case is covered under this provision.

Section 8 (4) was also introduced in 1989 to make a distinction between sitting legislators and those wanting to enter the fray. This provision laid down that disqualification of a sitting MP and MLA “shall not” take effect until his appeal, moved against the first conviction within three months, is finally decided by the appellate court. In effect, the legislator remained one until he or she had exhausted their options for appeal and if each appeal was turned down, or if the House they represent was dissolved in the interim.

Judicial scrutiny

In a 2005 judgment in K Prabhakaran Vs P Jayarajan, the Supreme Court noted that the purpose of enacting disqualification under Section 8(3) of the RPA is to prevent criminalisation of politics. “Those who break the law should not make the law. Generally speaking, the purpose sought to be achieved by enacting disqualification on conviction for certain offences is to prevent persons with criminal background from entering into politics, and the House -- a powerful wing of governance,” it said.

At the same time, the five-judge bench found nothing wrong with Section 8(4) and held that classifying sitting lawmakers as a category distinct from other people was a reasonable classification and not violative of Article 14 (right to equality). The 2005 judgment noted that the exception was created to prevent reduction of the strength of the house and the party to which the member belonged .

This position was, however, reversed by the Supreme Court in 2013 when a two-judge bench considered the validity of Section 8(4) in the RP Act on the anvils of Articles 102 and 191, which called for immediate disqualification. The 2013 judgment declared that Parliament lacked the legislative power to enact Section 8(4) when the Constitution was unequivocal that the disqualification has to kick in immediately.

Relying on the 1953 Constitution bench judgment in the Saka Rao case (mentioned above), the top court struck down Section 8(4) and held that Parliament did not have the legislative competence to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the state legislature. It further ruled that the Constitution expressly prohibits Parliament to defer the date from which the disqualification will come into effect in case of a sitting MP or an MLA.

Allowing the PILs filed by advocate Lily Thomas and SN Shukla on behalf of NGO Lok Prahari, the Supreme Court also clarified that a stay on conviction, and not just the sentence, can protect a lawmaker’s seat.

In Rama Narang Vs Ramesh Narang & Ors (1995), the top court held that when an appeal is preferred under Section 374 of the Code of Criminal Procedure (CrPC) , the appeal is against both the conviction and sentence. “Therefore, the appellate court in exercise of its power under Section 389(1) of the Code can also stay the order of conviction. The high court, in exercise of its inherent jurisdiction under Section 482 of the Code, can also stay the conviction if the power was not to be found in Section 389(1) of the Code,” it added.

A 2007 judgment in Ravikant S Patil Vs Sarvabhouma S Bagali further highlighted that an order granting stay of conviction is not the rule but an exception to be resorted to in rare cases. “Where the execution of the sentence is stayed, the conviction continues to operate. But where the conviction itself is stayed, the effect is that the conviction will not be operative from the date of stay,” it ruled.

Again, in Navjot Singh Sidhu Vs State of Punjab and Another (2007), the Supreme Court clarified that Section 389 (1) of the CrPC confers power on the appellate court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction.

Convicted in a culpable homicide case by the Punjab & Haryana high court, Sidhu, who was at that time a BJP MP, had chosen to seek a stay on his conviction only after resigning as an MP. He got his conviction stayed by the Supreme Court, then contested, and won back the Amritsar seat.

Actor Sanjay Dutt, convicted in connection with the 1993 Mumbai blasts case, made a similar appeal before the Supreme Court but it was turned down, preventing him from contesting the 2009 elections on a Samajwadi Party ticket from Lucknow.

What happens to Rahul Gandhi’s membership after conviction?

Under the existing regime, it is usually the office of the Speaker that declares a member disqualified, and then sends an intimation to the Election Commission for declaring the seat as vacant and notifying a by-poll for it.

As mentioned above, while SP leader Khan was declared disqualified by the Speaker’s officer within two days of his conviction, it took the UP assembly secretariat almost a month to disqualify BJP MLA Vikram Saini who was sentenced to two years in jail a riot case. Saini was convicted on October 11, 2022 and his disqualification was announced on November 7, 2022.

According to Lok Prahari’s secretary SN Shukla, who was one of the petitioners in the 2013 Lily Thomas case, a disturbing trend has ensued with assembly Speakers adopting different yardsticks in disqualifying members following their conviction. “While Opposition party members are disqualified by the Speaker’s officer immediately, they tend to delay the disqualification of the members belonging to the ruling dispensation,” he lamented.

The 2005 Constitution bench verdict in the K Prabhakaran case (mentioned above), however, may hold the field in cases where an elected legislator secures a suspension of sentence for challenging the judgment before an appellate court.

Section 389 of CrPC provides that a court sentencing an accused for a period not exceeding three years can release the person on bail to enable him an appeal and obtain the orders of the appellate court, and that the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.

“What is relevant for the purpose of Section 8(3) is the actual period of imprisonment which any person convicted shall have to undergo or would have undergone consequent upon the sentence of imprisonment pronounced by the court...All other factors are irrelevant,” said the constitution bench.

The 2005 judgment noted that a person convicted may have filed an appeal or may also have secured an order suspending execution of the sentence. “But that again would be of no consequence. What is suspended is not the conviction or sentence; it is only the execution of the sentence or order which is suspended. It is suspended and not obliterated,” said the bench.

On facts, the 2005 judgment was dealing with a case of a person who sought to contest elections. But a catena of Supreme Court judgments, including the rulings in the Saka Rao and Lily Thomas cases (mentioned above) have unambiguously declared that the law on disqualification shall be the same for sitting legislators as well those seeking elections.

While the 2005 judgment occupies the legal field, the Lok Sabha Speaker may hold the key in so far as the disqualification of Gandhi is concerned. The Congress leader must act expeditiously to seek a stay on his conviction to protect his membership.