Rahul gandhi Surat
Congress MP Rahul Gandhi in Surat on Thursday, March 23, 2023

Rahul Gandhi convicted; what happens to his Lok Sabha membership?

Following a Surat court’s verdict, sentencing Congress MP Rahul Gandhi to two-year imprisonment in a defamation case, legal experts say he may be at risk of being disqualified from the Parliament.

The disqualification of an MP convicted for an offence can happen in two instances. First, if the offence for which he is convicted is listed in Section 8(1) of the Representation of the People Act (RPA) of 1951. This includes certain specific offences such as promoting enmity between two groups, bribery and undue influence or personation at an election. Defamation does not fall under this list.

Also read: Rahul Gandhi gets 2 years in jail in 2019 defamation case; granted bail

However, when it comes to the second instance, Rahul is on very thin ground. RPA Section 8 (3) says disqualification will apply if a person is “convicted of any offence and sentenced to imprisonment for not less than two years”.  Technically this can be read as sentence of 2 years or more can attract disqualification.

Further, the earlier cushion that RPA offered under Section 8(4) to sitting members wherein the disqualification wasn’t immediate and the person had 3 months to appeal against the order following which disqualification was kept in abeyance till the appeal was decided by a court is no longer on the statute subsequent to the 2013 SC judgment in Lilly Thomas & Lok Prahari cases.

The SC had in Lilly Thomas and Lok Prahari declared Section 8(4) ultra vires, thus as per the Lilly Thomas judgment if a sitting MP/MLA is convicted of an offence mentioned under RPA sections 8(1), 8(2) or 8(3), disqualification will be immediate.

This means that simply filing an appeal will not be enough but the convicted MP must secure a specific order of stay against the conviction of the trial court. Significantly, the stay cannot merely be a suspension of sentence under Section 389 CrPC but a stay of conviction.

Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending. This is akin to releasing the appellant on bail.

Also read: Why Rahul Gandhi faces jail in ‘Modi surname’ defamation case

According to experts, based on the Surat court order, the Lok Sabha Secretariat can disqualify Rahul Gandhi and declare his Wayanad constituency vacant. The Election Commission will then announce a special election for the seat. This scenario comes into play unless the conviction is put on hold by a higher court.

According to Gandhi’s team, the Congress leader plans to challenge the verdict in a higher court. If the appeal for suspension of sentence and a freeze on the order is not accepted there, they will make their way up to the Supreme Court.

Experts also said that a two-year sentence in a criminal defamation case under Section 499 of the IPC, under which Gandhi was convicted, is extremely rare.

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