Rahul’s disqualification: How an MP is disqualified, and what the recourse options are

Congress leader Rahul Gandhi was found guilty and given a two-year jail sentence by a Surat court on Thursday in a defamation case from 2019, which was related to his comments about the “Modi” surname.

Also Read: Rahul will appeal Guj court ruling, ‘being punished for speaking the truth’: Cong

The conviction

As per Section 500 of the Indian Penal Code (IPC), defamation carries a penalty of a simple imprisonment that may last up to two years, or a fine, or both. The court granted Rahul Gandhi bail on a bond of Rs 15,000 and suspended the sentence for 30 days to enable him to file an appeal.

Disqualification

Lawmakers can be disqualified in three circumstances. The first is through Articles 102(1) and 191(1) for disqualifying a Member of Parliament and a member of the Legislative Assembly, respectively, based on factors such as holding an office of profit, being of unsound mind or insolvent, or lacking valid citizenship.

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The second instance is outlined in the Tenth Schedule of the Constitution, which allows for the disqualification of members for defection.

The third scenario in which lawmakers can be disqualified is outlined in The Representation of The People Act (RPA), 1951. This law stipulates disqualification for conviction in criminal cases.

What is the RPA?

The RPA includes several provisions that deal with disqualification. Section 8 addresses disqualification for the conviction of offenses, with the goal of preventing the criminalization of politics and prohibiting tainted lawmakers from running for office. Sections 9, 10, and 11 also cover disqualification for other reasons, such as corruption, disloyalty, and failure to report election expenses.

Section 8(1) of The Representation of The People Act lists specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election that trigger disqualification upon conviction. In October 2022, Senior Samajwadi Party leader Azam Khan lost his Uttar Pradesh Assembly membership after being convicted in a hate speech case.

However, defamation is not listed as one of these offences. Section 8(2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs, and conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.

Also Read: Why is BJP solely focused on discrediting Rahul Gandhi?

Section 8(3) of the RPA specifies that a person who is convicted of any offence and sentenced to imprisonment for at least two years will be disqualified from the date of conviction and for an additional six years following their release.

However, the disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker. In a 2018 case, the Supreme Court clarified that the disqualification would not take effect from the date of the stay of conviction by the appellate court.

Legal recourse

It is important to note that a mere suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC) is not enough to reverse disqualification. The stay must be on conviction itself. Section 389 of the CrPC allows for the suspension of the sentence of a convict during the pendency of an appeal, similar to granting bail to the appellant.

Also Read: Defamation case: AAP backs Rahul, alleges plot against non-BJP leaders

Therefore, in Rahul’s disqualification case, he would need to appeal his conviction first to the Surat Sessions Court, and then to the Gujarat High Court to have any chance of reversing his disqualification as an MP.

10 Politicians Who Faced Conviction and Disqualification from Office

Over the years, many politicians in India have been convicted for various criminal offenses and have faced disqualification from holding public office. Here are ten such cases:

1. J. Jayalalithaa, AIADMK leader and former Chief Minister of Tamil Nadu, was convicted for four years and fined ₹100 crore (US$13 million) in a disproportionate assets case. However, her imprisonment was nullified due to abatement.
2. Kamal Kishore Bhagat of All Jharkhand Students Union was convicted for an attempt to murder case in June 2015 and was subsequently disqualified.
3. Suresh Halvankar, BJP MLA from Ichalkaranji, Maharashtra, was convicted for three years in a power theft case in May 2014 and was disqualified.
4. T. M. Selvaganapath of DMK, a Rajya Sabha MP from Tamil Nadu, was convicted for two years in a cremation shed case in April 2014. He resigned from his post.
5. Babanrao Gholap of Shiv Sena, an MLA from Deolali, Maharashtra, was convicted for three years in a disproportionate assets case in March 2014 and was disqualified.
6. Enos Ekka of Jharkhand Party and an MLA from Kolebira, Jharkhand state, was convicted for life imprisonment in 2014 and was disqualified.
7. Asha Rani, a BJP MLA from Bijawar, Madhya Pradesh, was convicted for abetting the suicide of a maid in November 2013 and was disqualified.
8. Rasheed Masood of the Congress, a Rajya Sabha MP from Uttar Pradesh, was convicted for four years in an MBBS seats scam in September 2013 and was disqualified.
9. Lalu Prasad Yadav of the RJD, a Lok Sabha MP from Saran, Bihar, was convicted for five years in a fodder scam in September 2013 and was disqualified.
10. JD(U)’s Jagdish Sharma, a Lok Sabha MP from Jahanabad, Bihar, was convicted for four years in a fodder scam case in September 2013 and was subsequently disqualified.