On March 24, Congress leader Rahul Gandhi was disqualified as a Member of Parliament (MP) after his conviction and sentencing by a Surat court in a 2019 defamation.
A Surat Court on March 23 sentenced Rahul Gandhi to two years in jail in a 2019 criminal defamation case against him over his alleged 'Modi' surname remarks. The court later granted him bail, and stayed its order for a period of 30 days so that Gandhi can appeal in a higher court.
Rahul Gandhi has to obtain a stay on the conviction from a higher court if the disqualification is to be put on hold.
MoneyControl explains the provisions under which Rahul Gandhi was convicted, why he was disqualified, and the ghost of the 2013 ordinance that could have come in handy for him.
What provisions were Rahul Gandhi convicted under?
In 2019, at an election campaign in Kolar, Karnataka, Gandhi is alleged to have said, "How come all the thieves have Modi as the common surname?”
A case of criminal defamation was filed against Gandhi for insulting the Modi community.
On March 23 2023, Chief Judicial Magistrate HH Varma, held Rahul Gandhi guilty under Indian Penal Code (IPC) sections 499 and 500, and also granted him bail and suspended the sentence for 30 days to allow him to appeal in a higher court.
Section 499 of the Indian Penal Code says,
Whoever,
a) by words either spoken or intended to be read, or
b) by signs or by visible representations
Makes or publishes anything against another person intending to harm the reputation of the person, is guilty of defamation. Defamation is an exception to freedom of speech provided in the constitution.
Section 500 of the IPC says any person who defames another person is punishable with simple imprisonment for a term of up to two years, or with fine, or with both.
At a press conference held on March 24, Senior advocate and Congress leader Abhishek Manu Singhvi said that Rahul Gandhi is appealing against the verdict at the Sessions Court in Surat. The Sessions Court will have to stay the order of conviction for Rahul Gandhi’s disqualification to be reversed, according to Singhvi.
If the Sessions Court does not stay the conviction, it is to be appealed in the Gujarat High Court, and ultimately at the Supreme Court.
What did the notification disqualifying Rahul Gandhi read?
Rahul Gandhi, who is an MP from Wayanad, was disqualified by a notification by the Lok Sabha secretariat on Friday. According to the notification, “Rahul Gandhi, Member of Lok Sabha representing the Wayanad Parliamentary Constituency of Kerala, stands disqualified from the membership of Lok Sabha from the date of his conviction, i.e. 23 March 2023, in terms of the provisions of Article 102 (1) (e) of the Constitution of India read with Section 8 of the Representation of the People Act, 1951.”
Why was Rahul Gandhi disqualified?
The Representation of Peoples Act, 1951 contemplates disqualification of MPs and MLAs on being convicted by a court. Section 8(3) of the Act notes that an MP stands disqualified the moment he/she is convicted of an offence with a sentence of imprisonment for not less than two years.
The section further notes that the elected representative will continue to be disqualified for a further period of six years since release. In Rahul Gandhi's case, the conviction if upheld, will disqualify him for eight years.
The notification disqualifying Gandhi further refers to Article 102 (1) (e) of the Constitution of India. This article sanctions the act of disqualifying an elected representative from the house of the parliament by a law enacted by the parliament.
Singhvi has however, raised questions of the method adopted for disqualification on the ground that the notification should have come from the President and not from the Secretary General of the Lok Sabha secretariat. He however, said that the legal team is yet to decide on whether the notification could be challenged on this ground.
Singhvi also said that appealing against a 168-page order is time consuming and since the law provides time to appeal, the authorities should have adopted a ‘hands off’ approach in disqualifying Gandhi till the appeal is heard by the Sessions Court.
The ghost of the 2013 ordinance
The Supreme Court, in 2013, struck down Section 8(4) of the Representation of Peoples Act, which protected convicted legislators from disqualification for a period of three months.
If the MP/MLA files an appeal within the three-month period, he/she cannot be disqualified until the appeal is disposed of by the court.
The UPA government which was in power then, had brought an ordinance to nullify the order of the Supreme Court. The ordinance stated that disqualification of an MP/MLA will not take effect if an appeal against the conviction and sentence is made within 90 days from the date of conviction, and the order of conviction or sentence is stayed by the court.
However, from the date of conviction and till the same is set aside by the court, the MP/MLA will not be entitled to vote or draw salary and allowances. But the MP/MLA can take part in the proceedings of Parliament or the Legislature of a State.
Rahul Gandhi had torn the copy of this ordinance in 2013 at a press conference.
The ordinance, which was introduced by Kapil Sibal, was eventually withdrawn.
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