Decriminalization of Politics & Rahul’s disqualification

Rahul Gandhi was given a 2-year sentence on 23 March, 2023, in a defamation case stemming from his comments at a political gathering in 2019 about “why do all thieves have the name Modi.”

The day after his conviction by a court in Surat the Secretary General of Lok Sabha Secretariat issued a notification disqualifying Rahul Gandhi from the membership of Lok Sabha 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.
Section 8 of the Representation of people Act 1951 provides for disqualification of members in case of certain offences, further subsection (3) provides for immediate disqualification of member in case of conviction in any offense for a term more than 2 years.

Over the years the Supreme Court has issued directions and recommendations which has led to development of Decriminalisation of Politics Jurisprudence in India.
2002:Association of Democratic Reforms Case the Supreme Court had directed that all candidates contesting election to file an affidavit detailing their criminal antecedents, as the voters have the right to know before making an informed choice.
2013: Lily Thomas Case the Supreme Court examined the constitutionality of Section 8 (4) of the Representation of People Act 1951, which provided that disqualification upon conviction for a term more than 2 years would not apply for three months and not until disposal of his appeal filed within the 90 days window, thereby postponing the disqualification. The Supreme Court while analysing the Articles 101(3)(a) and 102(1)(e) pertaining to disqualification of member of Parliament and Articles 190(3)(a) and 191(1)(e) pertaining to disqualification of member of State Assembly held that the constitution does not bestow the power to parliament to postpone disqualification, whereby the Supreme Court struck down section 8 (4) of the Representation of People Act 1951 as ultra vires the constitution.
2013: The then UPA government led by Congress brought in an ordinance to nullify the effect of the Lily Thomas Judgement. The fact that Mr. Gandhi then tore the copy of the said ordinance in a press conference seems ironic in the hindsight.
2014: Supreme Court directs trial courts to expedite the hearing of cases involving MPs and MLAs, by holding day to day hearing and conclude the cases within 1 year of framing of charges.
2014: Manoj Narula Case, the Supreme Court recommended that the Prime Minister and Chief Minister should not include persons against whom charges have been framed in criminal cases in their ‘Council of Ministers’.
2014: The Law Commission of India (Chairperson: Justice A.P. Shah) submitted its report on Electoral Disqualifications to the Ministry of Law and Justice, wherein inter alia it was recommended that for offences where the prescribed punishment is more than 5 years then the disqualification should be triggered at the stage of framing of charges. The stage of framing of charges is based on adequate levels of judicial scrutiny. However, various safeguards have also been recommended in the said report.
Another important recommendation was on the issue of filing of a false affidavit, whereby it was suggested that the Representation of the People Act, 1951 must be amended to reflect that, conviction on the charge of filing of a false affidavit must be grounds for disqualification and punishment to be enhanced, from a maximum of six months imprisonment, to a minimum of two years imprisonment. Moreover, filing of a false affidavit should qualify as a ‘corrupt practice’ under the Act.
2018: Lok Prahari Case, the Supreme Court clarified that the disqualification will not operate from the date of stay of conviction by the appellate court.
Here stay of conviction by the appellate court should not be confused with suspension of sentence by the appellate Court.
Further in the same case the Supreme Court has further extended the obligation to disclose the information on the candidates regarding the sources of income of candidate and their ‘associates’ and government contracts where they have any direct or indirect interest.

What are the options
with Mr Gandhi?

Firstly, appeal and stay on conviction and overturn the conviction in appeal. Moreover, if in the appeal the term of conviction is reduced to be less than two (2) years, even then the disqualification can be reversed.
Secondly, Section 11 of Representation of People Act provides that the Election Commission may, for reasons to be recorded, remove any disqualification under Chapter 1of the Act [(except under section 8A)] or reduce the period of any such disqualification.
What if the conviction stands?
The law currently prescribes that the candidate cannot contest election for six (6) years after the term of the conviction has lapsed, so in the case of Mr. Gandhi, if the conviction stands, he may not be able to contest election for eight (8) years.

Anil Mehta, Advocate, Punjab and Haryana High Court and
Varun Dutta, Advocate,
Punjab and Haryana High Court

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