MC Explains | Why it is crucial for Rahul Gandhi to secure a stay on his conviction

Rahul Gandhi

On April 3, a sessions court in Surat suspended the two-year sentence awarded to Congress leader Rahul Gandhi in a criminal defamation case until the disposal of his appeal. The court granted him bail and exempted him from personal appearance and will hear his application on April 13.

Gandhi was convicted on March 23 by the chief judicial magistrate in Surat and sentenced to two years in prison. On March 24, he was disqualified from the Lok Sabha on account of his conviction.

According to the Representation of the People Act of 1951, MPs and MLAs are disqualified the moment they are convicted of an offence with a sentence of imprisonment for not less than two years. The elected representative will continue to be disqualified for six years after release from prison. In Gandhi's case, the conviction, if upheld, will disqualify him for eight years.

Gandhi will have to obtain a stay on his two-year conviction to be reinstated as a member of the Lok Sabha. Days after Gandhi’s disqualification, a plea was moved in the Supreme Court, challenging the validity of the provision under which he was disqualified. The plea is yet to come up for hearing.

Moneycontrol explains the effects of disqualification and when an MP can be reinstated after disqualification.

MC Explains

What are the effects of disqualification?

One impact is the holding of a bye-election in the constituency the disqualified lawmaker represented. The Election Commission of India has the power to notify bye-elections after a lawmaker’s disqualification since the constituency will remain unrepresented. A bye-election to fill any vacancy must be held within six months of the date of occurrence of the vacancy.

In October 2022, Samajwadi Party leader Azam Khan, who was the MLA of Rampur, was disqualified from the Uttar Pradesh legislative assembly after being found guilty of hate speech against chief minister Yogi Adityanath and was sentenced to three years in jail.

Before Khan could appeal against the order of conviction, the ECI notified bye-elections in Rampur. Khan challenged the ECI notification in the Supreme Court in November 2022. The SC asked the appellate judge to expedite the hearing of Khan’s stay application and further directed the ECI not to gazette the election notification for some time.

After Khan failed to obtain a stay from the appellate court, the ECI announced the bye-election in December 2022 and the Samajwadi Party lost Rampur seat to the BJP.

Has parliament reinstated MPs after their conviction was stayed?

On January 11, 2023, Lakshadweep MP and Nationalist Congress Party leader Mohammad Faizal was convicted by a sessions court in Kavaratti for attempting to murder Mohammed Salih, the son-in-law of late Union minister PM Sayeed, during the 2009 Lok Sabha elections. He was sentenced to 10 years in prison.

The Lok Sabha Secretariat disqualified Faizal and the ECI  announced the bye-election for the constituency. However, it had not notified the bye-election.

Faizal obtained a stay on his conviction in the Kerala High Court and the ECI withheld the bye-election decision. The Lakshadweep administration appealed against the order of the Kerala High Court in the apex court, which did not vacate the stay.

Even after the stay, the secretariat did not reinstate Faizal, who then approached the Supreme Court. On March 29, moments before the Supreme Court could hear his case, the secretariat reinstated him.

A stay on a conviction is enough for a disqualified lawmaker to be reinstated in the Lok Sabha.

How long can it take to obtain a stay on conviction?

A person convicted by a trial court has 90 days to appeal against the decision in the appellate court. Obtaining a stay from a sessions court can take 15 days to one month, subject to the discretion of the judge.

In Gandhi’s case, if the sessions court in Surat refuses to stay the conviction, he will have to file an appeal in the Gujarat High Court. If the Gujarat High Court does not grant him a stay, the Congress leader will have to approach the Supreme Court. The entire process can take one to two months.

Other politicians disqualified recently:

Abdullah Azam Khan

In March 2023, Samajwadi Party legislator Abdullah Azam Khan, who was disqualified after being convicted for deterring a public servant from performing their duty, approached the Allahabad High Court seeking a stay on his conviction. The high court adjourned the case by three weeks. Apprehending that the ECI will notify a bye-election while he is disqualified, Khan approached the Supreme Court, which will hear the case on April 5.

Vikram Singh Saini

In October 2022, a special MP/MLA court in Muzaffarnagar sentenced BJP leader and former legislator from Khatauli, Vikram Saini, to two years imprisonment after he was convicted for rioting in Muzaffarnagar and other offences. The court also imposed a fine of Rs 10,000 on him.

In November 2022, Saini was disqualified and the assembly secretariat declared the Khatauli seat vacant. In the bye-election that was held in December 2022, the BJP lost the Khatauli constituency to the Rashtriya Lok Dal.

J Jayalalithaa

Former Tamil Nadu chief minister and AIADMK leader J Jayalalithaa was convicted by a trial court in Karnataka in September 2014 for misusing her office during her first tenure during 1991-96 to amass property. She had to resign because she was disqualified by virtue of the judgment.

She was not reappointed as CM till May 2015 when the Karnataka High Court found her to be not guilty of corruption. The Supreme Court, however, reaffirmed the trial court’s verdict in 2017. However, Jayalalithaa was abated because she had died and a fine of Rs 10 crore was levied on her property.