Making sense of the disqualification of a Lok Sabha MP Premium

The issues relating to the disqualification of the Lok Sabha MP from Wayanad need to be examined carefully

The conviction, on Thursday, March 23, 2023, of Congress leader and now former Member of Parliament from Wayanad Rahul Gandhi by a Chief Judicial Magistrate’s court in Surat, Gujarat, and the issuance of a notification the next day by the Lok Sabha Secretariat of Mr. Gandhi’s disqualification raise some important constitutional and legal issues. The legal community is mystified by the harshness of the sentence, which is unprecedented in a defamation case. The issue will anyway be dealt with by the appellate courts. But the issues relating to the disqualification need to be examined carefully.

Section 8 of the Representation of the People Act, 1951 (RP Act) specifies the various offences, conviction for which entail the disqualification of a member of the legislature. Clause (3) of this section says that a person convicted of any offence other than those mentioned in the other two clauses, and sentenced to not less than two years shall be disqualified from the date of conviction. However, clause (4) has exempted sitting members from instant disqualification for three months to enable them to appeal against the conviction. This clause was struck down as ultra vires the Constitution by a two judge Bench of the Supreme Court on the ground that Parliament has no power to enact such an exemption for sitting members of the legislature (Lily Thomas vs Union of India, 2013). The effect of this judgment is that there is an instant disqualification of a sitting legislator as soon as he is convicted. However, the Court made it clear that in the event of the appellate Court staying the conviction and sentence, the disqualification will be lifted and the membership will be restored to him.

Section 8(3) of the RP Act which provides for disqualification on conviction has been subjected to judicial interpretation in a number of cases. A surface view of this provision is that the moment conviction and sentence are announced by the trial court, the member of the legislature will stand disqualified. Upon such disqualification, his seat in the legislature shall fall vacant under Article 101(3)(a). But a closer reading will reveal that the words “shall be disqualified” used therein cannot mean instant disqualification. If words like “shall stand disqualified” were used in this clause, they would have certainly meant instant disqualification without the intervention of any other authority.

The passive voice used in this clause implies that the person shall be disqualified by some authority. Who can that authority be? It cannot be the Secretary General of a House of Parliament or Secretary of a state legislature because the Constitution does not confer such power on them. Article 103 shows that the President of India is that authority who decides that a sitting member has become subject to disqualification in all cases which come under Article 102(1). Sub Clause (e) of this Article relates to all cases of disqualification under the RP Act 1951 which include disqualification on conviction and sentence under Section 8(3) of the Act.

There are differences of opinion on the scope of Article 103, which says that if any question arises as to whether any sitting Member has become subject to any of the disqualifications mentioned under Article 102(1), the question shall be referred to the President whose decision shall be final.

There is a view that this Article can be invoked only when a dispute arises on the fact of disqualification and not otherwise. But this Article covers disqualification arising on conviction for different offences under Section 8 of the RP Act 1951. In a case of conviction under this section, where is the question of disputes? This would mean that reference to the President of the question of disqualification of a sitting Member who has been convicted for an offence covered by Section 8 is a constitutional requirement. The Supreme Court, in Consumer Education and Research Society vs Union of India (2009), upholds this position. This judgment says that the President performs adjudicatory and declaratory functions here.

In cases where adjudication is not required, the President can simply declare that the sitting Member has become subject to disqualification. But the intervention of the President is essential under Article 103 even in cases where a sitting member has been convicted and the disqualification is supposed to take effect from the date of conviction. Section 8(3) of the RP Act does not say that in the case of a sitting Member, disqualification takes effect the moment the conviction is announced. The words “shall be disqualified” convey this sense.