When a person ceases to be a legislator without an opportunity to bring their matter to appeal, it is not just a travesty of justice for the legislator concerned, but is also dangerous to democracy.
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YESTERDAY, a court in Gujarat convicted Indian National Congress leader Rahul Gandhi in a defamation case for his remark that "all thieves have Modi as their surname", in reference to fugitive businessmen Nirav Modi and Lalit Modi along with Prime Minister Narendra Modi, and sentenced him to two years of imprisonment, which is the maximum punishment under Sections 499 and 500 of the Indian Penal Code (IPC).
As per media reports, the court suspended the sentence imposed upon Gandhi for 30 days to enable him to file an appeal against the conviction.
The question that arose is whether the conviction and sentence could result in Gandhi ceasing to be a member of the Lok Sabha under Article 102 of the Constitution.
Article 102 deals with the disqualification of membership of a member of the Parliament (MP). It says
(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament:
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation. —For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.
(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule."
Until 2013, Section 8 of the Representation of the People Act, 1951 (RP Act) had sub-clause 4 which read: "8(4) Notwithstanding anything in sub-section (1), subsection (2) and sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three 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 that appeal or application is disposed of by the court." (Emphasis added)
Due to disqualification, the member concerned ceases to be a member of the House. Second, the member concerned is barred from contesting the election for a further period of six years after his release. Thirdly, their seat is declared vacant, which in-turn invites holding of by-polls to the seat so vacated.
Sub-clause 'e' is relevant to Gandhi's case. It provides for disqualification by or under any law made by the Parliament. This takes us to Section 8 of the RP Act because it is this Act, which pertains to Article 102 (1)(e). Section 8 provides multiple grounds for disqualification of a member of the House, which includes disqualification on conviction for certain offences.
The offence under Sections 499 and 500 of the IPC is not specifically mentioned in Section 8 of the RP Act, but Section 8(3) provides that a person convicted of any offence and sentenced to imprisonment for not less than two years, other than any offence referred to in Subsection (1) or (2) of Section 8, 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. This is what is applicable in the case of Gandhi.
Within a day of the conviction, a notification was issued by the Lok Sabha secretariat declaring that Rahul Gandhi stands disqualified from the membership of Lok Sabha.
There are three effects of disqualification. First, the member concerned ceases to be a member of the House. Second, the member concerned is barred from contesting the election for a further period of six years after his release. Thirdly, their seat is declared vacant, which in-turn invites holding of by-polls to the seat so vacated.
Interestingly, the RP Act contained Section 8(4), referred to above, which provided in respect of sitting MPs that a disqualification would not take effect until three months have elapsed from that date, or if within that period an appeal or application for revision was brought in respect of the conviction, or the sentence until that appeal or application is disposed of by the court.
The validity of Section 8(4), which intended to defer the effect of disqualification for three months, was challenged before the Supreme Court in the case of Lily Thomas versus Union of India (2013). A division judge bench comprising Justices A.K. Patnaik and S.J. Mukhopadhaya struck down Section 8(4), holding that the Parliament had no legislative power to enact Section 8(4).
In this case, the bench, taking note of Article 101(3)(a) of the Constitution, which provides for the vacation of seats due to disqualification incurred under Article 102(1) and (2), expressly held that the effect of the disqualification under Article 102(1) is that once a person who was a member of either House of the Parliament or House of a state legislature becomes disqualified by or under any law made by the Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, their seat 'automatically' falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution.
In Lily Thomas, the court held that the effect of the disqualification under Article 102(1) is that once a person who was a member of either House of Parliament or House of a state legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, their seat 'automatically' falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution.
The bench further held that the Parliament could not make a provision such as Section 8(4) of the RP Act to defer the date on which the disqualification of a sitting member would have effect and prevent their seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution.
Thus, what follows from Lily Thomas is that:
The disqualification under Article 102(1) is automatic;
It is automatic because Article 101(3)(a) mandates that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in Article 102(1) and (2), their seat shall thereupon become vacant;
And that the Parliament has no legislative competence to provide for deferring the effect of disqualification by three months.
What is even more interesting about Lily Thomas is that an argument was made by the Additional Solicitor General of India that in the absence of Section 8(4), a sitting MP or state legislator would be left with no remedy if they suffer from a frivolous conviction by a court for an offence given under sub-sections (1), (2) or (3) of Section 8 of the RP Act.
Finding no merit in the argument, the bench cited a decision of a three-judge bench of the Supreme Court in Rama Narang versus Ramesh Narang (1995), in which it was held that when an appeal is preferred under Section 374 of the Code of Criminal Procedure (CrPC), the appeal is against both the conviction and sentence. Therefore, an appellate court, in exercise of its power under Section 389(1) of the CrPC, could also stay the order of conviction, and a high court, in exercise of its inherent jurisdiction under Section 482 of the CrPC, could also stay the conviction if the power was not to be found in section 389(1) of the CrPC.
There is, therefore, availability of a remedy to stay the conviction and therefore the disqualification during the pendency of the appeal. It is only this interpretation of the judgment which is logical, since otherwise there was no need to make reference to the decision in Rama Narang.
In Lok Prahari, the Supreme Court expressly held that the disqualification, which operates as a consequence of conviction, couldn't take or remain in effect once the conviction is stayed.
It needs to be noted that senior advocate Fali S. Nariman, for the petitioner Thomas, while opposing Section 8(4) submitted that in case a sitting MP or state legislator feels aggrieved by the conviction and wanted to continue as a legislator notwithstanding the conviction, their remedy was to move the appellate court for stay of the order of conviction. It follows, therefore, that before the speaker could declare the seat vacant upon disqualification, adequate time must be given to move the court. If, on the other hand, even before an appeal could be filed, the seat is declared vacant, and by-election ordered, there would be a possibility of two MPs claiming the same seat.
The effect of the stay of conviction was the subject matter of a judgment by a three-judge bench of the Supreme Court in Lok Prahari versus Election Commission of India (2018). After taking note of a series of precedents, a bench comprising the then Chief Justice of India Dipak Misra, then Justice Dr. D.Y. Chandrachud and Justice A.M. Khanwilkar held that the disqualification did not operate after the stay of the conviction pending appeal.
"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. Under Article 102(1)(e) and Article 191(1)(e) [of the Constitution], the disqualification operates by or under any law made by Parliament. Disqualification under the above provisions of Section 8 follows upon a conviction for one of the listed offences. Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect,", the Supreme Court held in Lok Prahari.
What needs to be underscored about the decision in Lok Prahari is that a three-judge bench of the Supreme Court expressly held that the disqualification, which operates as a consequence of conviction, couldn't take or remain in effect once the conviction is stayed. The judges used two terms: 'cannot take' and 'cannot remain' in effect in context of the consequences, which follow upon disqualification.
Interestingly, Lok Prahari followed Lily Thomas and the bench in the former noted: "As the decision in Lily has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter-alia of a disqualification relatable to the provisions of sub-sections (1), (2) and (3) of Section 8."
It needs to be highlighted that in Lok Prahari, the petitioner was asking for a declaration that since the law did not provide for stay of conviction, even in case of stay of conviction by the appellate court for an offence attracting disqualification under Section 8 of the RP Act, any such stay order does not have the effect of wiping out the disqualification and reviving the membership with retrospective effect and consequently, the seat of the member concerned is deemed to have become vacant with effect from the date of conviction in terms of Articles 101(3)(a) and 190(3)(a) of the Constitution.
The bench in Lok Prahari was conscious of the relief asked for, and it declined to grant it.
As a matter of formality, the judgment convicting Gandhi and sentencing him to two years in jail was brought to the notice of the speaker, Lok Sabha with a complaint alleging disqualification incurred by Gandhi. It may be noted that filling of the seat which falls vacant on disqualification, may await the decision of the President under Article 103 of the Constitution if the President takes a view that the member has not become subject to any of the disqualifications mentioned in clause (1) of Article 102 of the Constitution. In such an eventuality, it is the decision of the President which is final.
In the case of Gandhi, now that the Lok Sabha secretariat has issued a notification disqualifying him from the date of the judgment convicting him, the Wayanad Lok Sabha seat held by him has fallen vacant. As a next step, the Election Commission (EC) is likely to notify a by-poll to the seat. If there is no stay of the conviction by the appellate court, Gandhi won't be able to contest elections for eight years—two years of conviction and six years after release from the jail.
Gandhi's lightning-fast disqualification is not without precedent. There have been previous instances of legislators being disqualified quickly by the speaker of a state legislative assembly to pre-empt legal remedies, while in some cases they take considerable time.
In the case of the Samajwadi Party leader, former MP and Uttar Pradesh state legislator Azam Khan, the Secretariat of the legislative assembly of Uttar Pradesh had declared within 24 hours of his conviction for making inflammatory speeches the legislative assembly seat of Rampur held by him vacant. Immediately after that, the EC issued a press note stating that it would be issuing the notification declaring the schedule for by-polls for, among others, the Rampur constituency on November 10.
When Khan challenged the EC's decision to notify the election, the Supreme Court directed the EC to not issue the gazette notification scheduling the by-election to the Rampur constituency in the Uttar Pradesh Vidhan Sabha for 24 hours, so that Khan could take the opportunity to get a stay of his conviction from an appellate court.
In practice, what is happening is that if the stay of the conviction is coming after the notification issued by the Speaker following a judgment of conviction, the legislator concerned still does not get back their seat in the House.
What is even more interesting to note is that the EC argued that even if Khan gets a stay of conviction, he would not be able to continue as member of the House since there was vacation of seat automatically upon his disqualification, and at the most, he would be eligible to contest the by-poll. This argument of the EC remains unaddressed in Khan's case.
Recently, Lakshadweep MP Mohammed Faizal was convicted by a Sessions Court on January 11 under Sections 143, 147, 148, 448, 427, 324, 342, 307 and 506 read with Section 149 of the IPC and had been sentenced to undergo rigorous imprisonment for periods ranging from one month to ten years. The sentence of ten years' imprisonment was imposed for the offence under Section 307 read with section 149 of the IPC.
However, on January 13, the Speaker of Lok Sabha disqualified him. There was no stay of his conviction on that day. The EC also issued a press note with regard to the by-election to be conducted on his seat on January 18.
On January 25, the Kerala High Court stayed Faizal's conviction, that is, after the speaker had already declared his seat vacant to the EC. It is not clear whether the stay of his conviction by the high court post the decision of the speaker has resulted in the restoration of status quo ante for him, as he ceased to be a member of the House following a disqualification notification issued by the speaker. As per the Lok Sabha website, Faizal is not seen as an MP.
In practice, what is happening is that if the stay of the conviction is coming after the notification issued by the speaker following a judgment of conviction, the legislator concerned still does not get back their seat in the House. The elephant in the room, therefore, is whether the notification issued by the speaker requires a separate challenge in the court of law, or if the speaker has power to withdraw it or their notification becomes ineffective as a consequence of the stay of conviction by a higher court. This is an area of law which needs a bit more clarity from courts.
Logically what should follow is that once there is a stay of conviction by a court of law, the member should get back their seat, else the very purpose of granting the stay of conviction would be meaningless. It follows, therefore, that no seat should be declared vacant and no by-election declared to such a seat, until a reasonable time has elapsed to enable access to legal remedies.
As per the reading of the judgment in Lok Prahari, the disqualification, which operates as a consequence of the conviction, couldn't take or remain in effect. Thus, logically what should follow is that once there is a stay of conviction by a court of law, the member should get back their seat, else the very purpose of granting the stay of conviction would be meaningless. It follows, therefore, that no seat should be declared vacant and no by-election declared to such a seat, until a reasonable time has elapsed to enable access to legal remedies. It is for this reason the Section 8(4) mentioned three months before the conviction could take place. Now that that Section has been struck down, courts must consider a similar reasonable time period.
The consequences of disqualifying a legislator without giving them a reasonable time period to secure a stay of their conviction are drastic. The concerned member ceases to be a member of the legislature. They cannot attend the house, nor can they contest elections for the next six years after their release.
There is no gainsaying that appellate courts have been setting aside perverse orders passed by the subordinate courts. In many cases, the appellate court has also stayed the conviction. However, if the person concerned ceases to be a legislator without an opportunity to bring their matter to appeal, then it is not just a travesty of justice for the legislator concerned, but is also dangerous to democracy because that legislator has ceased to be a representative of the public in the legislature which they became via the mandate of the people.