The Congress leader Rahul Gandhi will not be disqualified as the member of parliament if the conviction is stayed by the appellate court and has suspended the two- year jail term being awarded to him by a Surat court in a 2019 for the criminal defamation case over his alleged “Modi surname” wherein remarked legal experts stated on Thursday.
However, the Senior lawyer and constitutional law expert Rakesh Dwivedi referred to the judgements of Apex Court in the year 2013 and 2018 in the matter of Lily Thomas and the Lok Prahari respectively and the said suspension of sentence and conviction stayed by the court were necessary to escape disqualification as a lawmaker under the Representation of the People CT.
As an MP, the debate over the possibilities of Gandhi being disqualified and note must be taken of the legal position enumerated in the apex court judgements and the relevant provisions of the RP Act.
Therefore, the former senior official of the Election Commission and an expert on electoral laws who did not wish to be named and being of the view that to prevent being disqualified as a lawmaker, thus, Gandhi also needs his convection to be stayed.
It has been stated by him that suspension of sentence was different from suspension of conviction.
He also stated that the position as per the judgement of Lily Thomas, the conviction which carries a sentence of two years or more will automatically result in disqualification. Lately, in a judgement in the case of Lok Prahari, the apex court stated on appeal if the conviction is suspended, the disqualification will also remain suspended.
It has been stated by him that the Congress leader will also have to get a stay on conviction from the higher court.
The said disqualifications continues six years after the sentence is being served or is completed, wherein it means that the disqualification will last for eight years (in case he is disqualified). He being also of the opinion that the stated disqualification arises out of sentence, not being the conviction alone. If the Trial Court itself suspended the sentence, which means if his membership does not get affected. The said disqualification has not come into effect.
The three-bench judge of the Supreme Court of which CJI D.Y. Chandrachud was also a part in the Lok Prahari case in 2018 observed and has termed as “untenable” the disqualification if the conviction of a lawmaker is stayed by an appellate court.
The Supreme Court in the Lily Thomas case in 2013 observed and has struck down section 8(4) of the RP Act that gave a convicted lawmaker the power to remain in office on the grounds that appeals have been filed before the court within the period of three months of conviction.
In 2013, the Congress-led United Progressive Alliance government had attempted to circumvent the ruling of the Supreme Court to set aside a RP Act provision.
It being Gandhi who opposed the ordinance in the press conference and the tore of the ordinance in the press conference as being the token of protest.
It has been stated that as per the provision of the RP Act, the person who being sentenced to imprisonment of two years or more shall be disqualified which being from the date of such conviction and being remained disqualified for another six years after serving time.
It has also been provided under Section 8 of the RP Act that the offences in which a lawmaker would entail disqualification upon conviction.
Therefore, the said provisions divide the offences in several categories that attract disqualification upon conviction.
In the very first category, there being the offences for disqualification for a period of six years which being upon any conviction.
However, the offences like making speeches that the cause enmity between groups, the bribery and the impersonation being during elections and for the other electoral offences, the offences wherein relating to rape and cruelty to women by husband and latter’s relatives are included in it.
The offences stated under the Protection of Civil Rights Act, the Customs Act, and the Unlawful Activities (Prevention) Act are among the category of offences that entail disqualification which being regardless of the quantum of the punishment.
Therefore, the laws for prevention of Sati, corruption, terrorism and insult to national flag and national anthem etc are also part of this group.
All the criminal provisions which being from the separate category under which mere conviction will not entail the disqualification and the sentence of at least two years in prison being needed to incur
such disqualification.