Rahul Gandhi, a senior leader of the Congress party, was disqualified from Lok Sabha a day after his conviction by a Surat court in a defamation case filed by BJP MLA and former Gujarat minister Purnesh Modi against Gandhi for his remark – “How come all the thieves have Modi as the common surname?” Rahul was convicted under Sections 499 and 500 for defamation of the Indian Penal Code (IPC). Section 500 of the IPC extends imprisonment of up to two years, fine, or both as punishment for defamation.
The swift disqualification of Rahul Gandhi from Lok Sabha after being convicted with a maximum sentence of two years under Sections 499 and 500 of IPC has opened the floodgates of political debate regarding the legality and validity of the judgement and misuse of institutions by any ruling dispensation. The quantum of the punishment awarded to Rahul Gandhi, and that too in a case where any particular individual has not been defamed, can indeed be a matter of political as well as legal debate. However, his disqualification from Lok Sabha, pursuant to the conviction, cannot be questioned. Section 8 (3) of the Representation of the People Act, 1951 (RP Act) mandates that “a person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.” The plain reading of section 8(3) of the RP Act clarifies that the moment Rahul Gandhi was convicted and sentenced to two years in jail, he was disqualified as an MP. In accordance with Section 8(3), the Lok Sabha Secretariat has correctly released a notification stating March 23rd as the day of disqualification rather than March 24th, the date on which the notification was issued. According to Section 8 (3) of the RP Act, Rahul Gandhi is prohibited from participating in electoral politics until 2031 as he has been convicted. The law specifies that the disqualification will continue for an additional six years after his release. In 2025, when his two-year sentence concludes, the six-year disqualification period will begin.
The law relating to criminal defamation is also well-settled. The Constitutional validity of sections 499 and 500 of IPC, 1860 and section 199 of the Code of Criminal Procedure (CrPC, 1973) was assailed in Subramanian Swamy v UOI, Ministry of Law, [2016 (5) SCJ 643]. The Supreme Court upheld the constitutionality of the said sections by observing thus: “One cannot be unmindful that right to freedom of speech and expression is a highly valued and cherished right, but the Constitution conceives of reasonable restriction. In that context, criminal defamation, which exists in the form of Sections 499 and 500 Indian Penal Code, is not a restriction on free speech that can be characterized as disproportionate. The right to free speech does not mean a citizen can defame another. The protection of reputation is a fundamental right. It is also a human right. Cumulatively it serves the social interest.” It is a matter of argument before the appellate court whether the law relating to criminal defamation has been correctly applied while granting maximum punishment of two years to Rahul Gandhi while convicting him, but the immediate risk lies elsewhere.
If Rahul Gandhi’s conviction is not suspended or overturned, or if the appellate court does not reduce his sentence, he may be unable to participate in the upcoming general election scheduled for 2024 due to disqualification. The Election Commission now has the technical ability to conduct the by-election for the Wayanad constituency. For Rahul Gandhi to retain his seat in Parliament, he must obtain a court order to stay his conviction. If his conviction is stayed or overturned and a new election has not been conducted in Wayanad, he may be reinstated in Parliament. A reduced sentence would also remove the disqualification, but this will require the appeal to be heard finally, which may not be feasible in a short amount of time.
There is no confusion over the provisions of law governing the disqualification of Rahul Gandhi in as much as the Supreme Court verdict in Lily Thomas Vs Union of India and Ors (2013) implies the disqualification to be immediate upon conviction by striking down Section 8 (4) of the Representation of People Act, 1951, as unconstitutional. The RP Act under Sections 8(1), 8(2), 8(3) provides that if a legislator is convicted of certain offences which are provided in these sections, he/she shall stand disqualified from being a lawmaker. However, sub-section (4) of Section 8 of the Act gave some relaxation to the convicted person by providing that notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) in Section 8 of the Act, a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is an MP or an MLA, take effect until 3 months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until the court disposes of that appeal or application.
The constitutional validity of Section 8(4) was challenged before the Supreme Court in Lily Thomas v Union of India (2013). The Supreme Court struck down Section 8(4) of the RP Act by holding that Section 8(4) is ultra vires to the constitutional provisions and that the Parliament has exceeded its powers by bringing in Section 8(4). The Supreme Court further observed that the sitting members who have already benefitted from Section 8(4) would not be affected by this judgement. However, if any sitting member of Parliament or state legislature is convicted under subsections 1, 2 and 3 of Section 8, they shall stand disqualified by virtue of the said judgement. Thus, the legality of the disqualification of Rahul Gandhi from Lok Sabha is legally correct.
The road ahead: Rahul Gandhi has to immediately move to the Appellate court and seek a stay of conviction by the Surat court. Though the Supreme Court in Navjot Singh Sidhu v. State of Punjab [(2007) 2 SCC 574] has held that a stay of the order of conviction by an appellate court is an exception to be resorted to in a rare case after the attention of the appellate court is drawn to the consequences which may ensue if the conviction is not stayed. Obtaining a stay of conviction would not be difficult, given the accusations against Rahul Gandhi in the complaint lodged by Purnesh Modi, the magnitude of the sentence issued by the Surat Court, and the potential repercussions if the conviction is not suspended. Since the decision in Rama Narang v. Ramesh Narang, [(1995) 2 SCC 513] by the Supreme Court, it has been well settled that the appellate court has the power, in an appropriate case, to stay the conviction under Section 389 besides suspending the sentence. The power to stay a conviction is by way of an exception. Before it is exercised, the appellate court must be made aware of the consequence which will ensue if the conviction is not stayed. Once the conviction has been stayed by the appellate court, the disqualification under sub-sections (1), (2) and (3) of Section 8 of the Representation of the People Act, 1951 will not operate.
Given the lackadaisical approach of Rahul Gandhi’s legal team in defending the defamation case before the Surat court, the path forward is more complicated than it may seem, especially as Rahul Gandhi is legal options are running against time. Thus, if Rahul Gandhi intends to participate in future elections, he must act swiftly to seek a stay of conviction from the appellate court.
Akhilesh Dubey is an Advocate and Solicitor, practicing in Mumbai.