Defamation and disqualification: Rahul Gandhi and his speech

When disqualification gets suspended by a stay of conviction, what purpose is served by instant disqualification?

Rahul Gandhi at a press meet in New Delhi on March 25.  | Photo Credit: ANUSHREE FADNAVIS/REUTERS

Rahul Gandhi, the Congress leader, was convicted by a Surat Court for defamation and sentenced to two years imprisonment on March 23. The next day the Lok Sabha Secretariat issued a notification stating that Rahul Gandhi stands disqualified for being a Member of Parliament under Article 102(1)(c) and Section 8(3) of the Representation of the People Act, 1951. Thus he lost his seat in the Lok Sabha. The conviction of Rahul Gandhi which resulted in his disqualification has given rise to many constitutional and legal issues.

A sitting member of a legislature is disqualified for being such member if he is convicted for an offence and sentenced to imprisonment for not less than two years. Article 102 of the Constitution provides for disqualification of a person for becoming a member of a legislature as well as for being a member of such legislature. Thus Article 102 covers both candidates and sitting members. The grounds for such disqualifications are: holding office of profit, unsoundness of mind, undischarged insolvency, voluntary acquisition of foreign citizenship and disqualification under any law made by Parliament. The law made by Parliament is the Representation of the People Act, 1951. Rahul Gandhi has been disqualified under Section 8(3) of the RP Act, 1951.

Section 8 of the RP Act lists out various offences, conviction for which may lead to disqualification of a candidate as well as a sitting member. These offences are: promoting enmity between different groups on ground of religion, race, language, etc. (Section 153A), bribery, undue influence in election, rape, cruelty towards a woman by husband, promoting enmity, ill-will between classes of citizens in places of worship, practice of untouchability, offences under Section 11 of the Customs Act, UAPA (offences under Section 10 to 12), Foreign Exchange Regulations Act, 1973, NDPS Act, 1985, offences under Section 3 of TADA, offences under Section 7 of the Religious Institutions (Prevention of Misuse) Act, 1988, offences under Section 125 or Section 135 of the RP Act, 1951, offences under Section 6 of Places of Worship (Special Provisions) Act, 1991, offences under Prevention of Insult to National Honour Act, 1971, Commission of Sati (Prevention) Act, 1987, Prevention of Corruption Act, and Prevention of Terrorism Act, 2002.

At this stage it becomes necessary to take a closer look at Section 8(3) of the RP Act, 1951. It says: (i) On conviction of a person for an offence other than those listed in 8(1) and 8(2), he shall be disqualified if he is sentenced to not less than two years imprisonment; (ii) the disqualification shall take effect from the date of conviction. Here, a reference needs to be made to clause (4) of Section 8 which was struck down as unconstitutional by the Supreme Court in Lily Thomas vs Union of India in 2013. This clause gave three months time to a sitting member who has been disqualified under Section 8 to enable him to appeal against the conviction and the sentence. Since that clause has been invalidated by the court, the sitting member is placed in the same situation as a convicted non-member inasmuch as the disqualification of both will take effect from the date of conviction.

A question of interpretation of Section 8(3) arises here. The context is the forceful argument by the senior advocates, including a former Attorney General, that a sitting member stands disqualified the moment the judge signs the order of conviction. But Section 8(3) does not use the words “shall stand disqualified”. Instead it uses the words “shall be disqualified” which in simple English means the actual disqualification will be done by some authority.

However, the RP Act does not state which authority can declare a convicted sitting member of a legislative house as disqualified. Section 8(3) makes it clear that disqualification shall take effect from the date of conviction. But it left unaddressed the question of which authority can declare that a sitting member has become disqualified.

So, we turn to Article 103 of the Constitution, which says that if a question arises as to whether a sitting member has become subject to any of the disqualifications mentioned in Article 102(1), the matter shall be referred to the President whose decision shall be final. Thus disqualification arising out of conviction and sentencing to imprisonment of two years or more shall have to be decided by the President. Of course whenever it is decided, the disqualification shall take effect from the date of conviction. Some senior advocates are of the view that the President can intervene only when a dispute arises. According to them the word “question” used in Article 103 means “dispute”.

In fact, a close look at Article 103 would reveal that it is not so. For example, in a case of conviction under Section 8(3), the sentence of imprisonment for two years generates no dispute on the question of disqualification. Yet, Article 103 covers disqualification under Section 8(3) which means that the President is authorised to decide the question of disqualification without there being a dispute. Under this Article, the President can either adjudicate the matter and declare or simply declare that a person has become subject to disqualification.

The Supreme Court in Lily Thomas (supra) invalidated Section 8(4) of the RP Act, 1951, on the grounds that the Constitution does not empower Parliament to make a special provision in favour of sitting legislators. Since Article 102 makes both a candidate and a sitting member equally liable to disqualification there is no justification for making a special provision for the sitting members. So, the court held that the distinction made by Section 8(4) is legally not sustainable and is ultra vires the Constitution. While making this assertion, the court seems to have ignored the distinction made by Article 103 between candidates and sitting members. Under this provision, a sitting member who is convicted becomes subject to disqualification only after a declaration made by the President whereas there is no legal or constitutional requirement for any such declaration to be made when an ordinary citizen gets convicted. Thus the Constitution recognises sitting members of the legislature as a distinct category.

Further, the consequences of a sitting member being disqualified are totally different from those arising out of a candidate becoming subject to disqualification. The judgment in Lily Thomas misses these vital points. Therefore, there is an urgent need to review this judgment. In any case, the disqualification gets suspended in the event of a stay of the operation of conviction and sentence. Then what purpose is served by the instant disqualification is difficult to understand.

Rahul Gandhi’s conviction and subsequent disqualification have brought criminal defamation to public attention as never before. There is a view held by large sections of enlightened citizens in this country that criminal defamation is a serious encroachment on the fundamental right to freedom of speech and expression. The concern of the public arises from the fact that this law could be misused very much to the detriment of citizens’ freedom. For example, the words “collection of persons” used in the Explanation 2 of Section 499 of the IPC are being misused in many cases as this expression is capable of being interpreted as loosely as one is inclined to do. Similarly, “lowering the moral or intellectual character of a person in the estimation of others” used in the fourth explanation in this section is extremely difficult to disprove. Therefore, the danger is that the free citizens of this country are liable to be punished by a loosely worded legal provision. This law has been scrapped by many democratic countries. The Indian Parliament may address this issue with some urgency.

P.D.T. Achary is former Secretary General, Lok Sabha.