Understanding Rahul Gandhi’s predicament

The unfortunate Rahul Gandhi, due to his rash action committed in 2013, unwittingly contributed to his immediate disqualification ten years later.

—-

LAST week, a magistrate in Gujarat convicted Indian National Congress leader Rahul Gandhi for the offence of criminal defamation. He has been held guilty of making a controversial, allegedly defamatory statement in Kolar, Karnataka during his electoral campaign for the 2019 Lok Sabha elections.

What had he said?

He had said, "Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"

Explanation 2 to Section 499 of the Indian Penal Code, which defines defamation, provides that it may amount to defamation to make an imputation concerning a collection of persons as such. Section 199(1) of the Criminal Procedure Code (CrPC) permits any aggrieved person to file a complaint alleging the offence. When the defamation is of a collection of persons, any member of that collection can be the aggrieved person under law. Further, when a statement is made in a speech broadcast on media, it is published everywhere, so the jurisdiction to try the offence of defamation of this type is at every place.

Accordingly, Purnesh Modi, a Member of the Gujarat Vidhan Sabha belonging to the Bharatiya Janata Party, took exception to the said speech, claiming that Gandhi had humiliated and defamed all persons with the Modi surname, and filed a criminal complaint in Surat, Gujrat.

After trial, the magistrate agreed with the complainant and held that Gandhi had defamed all persons with the surname 'Modi'. Gandhi was sentenced to undergo imprisonment for two years, which is the maximum sentence prescribed under law for the offence.

More than the conviction, it is the sentence which would go on to cause the current turmoil that Gandhi finds himself in. Why?

Disqualification pursuant to conviction

As per Section 8(3) of the Representation of the People Act, 1951 a person who is convicted for an offence and sentenced to suffer imprisonment for "not less than two years" stands disqualified from the membership of as well as the candidature for the Parliament/legislature with immediate effect for a period which would end six years after their serving the sentence and release.

So if the magistrate would have awarded any sentence of imprisonment less than the maximum possible two years, there would not have been as much brouhaha.

Another important aspect is that Section 8(4) of the 1951 Act, prior to being struck down by the Supreme Court in Lily Thomas versus Union of India (2013), provided a sitting legislator an additional layer of protection from disqualification in case of their conviction entailing disqualification. The said provision provided for a period of three months within which the convicted sitting legislator could not be disqualified from the legislature. Furthermore, it provided that if the sitting legislator filed an appeal or revision within these three months from the date of conviction, they could not be disqualified until the appeal or revision was finally disposed of.

Also read: Why has Rahul Gandhi ceased to be an MP after his conviction? An explainer

Gandhi's mistake in 2013

The United Progressive Alliance (UPA)-led Union government had attempted to effectively nullify Lily Thomas by bringing in the Representation of the People (Second Amendment and Validation) Bill, 2013.

The ordinance had sought to amend Section 8(4) as follows:

"Notwithstanding anything contained in sub-section (1), sub-section (2) or sub-section (3), a disqualification under any of the said sub-sections 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, if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court: Provided that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be.''

It had further provided that,

"Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951, as amended by this Act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this Act had been in force at all material times."

After the Bill had been approved as an ordinance by the UPA cabinet and sent to the President for his assent, the politically naive Gandhi had torn a copy of the ordinance passed by his own party's government, terming it as "complete nonsense" at a press conference. The ordinance was eventually withdrawn by the government, bowing to Gandhi's wishes. Had he not torn the ordinance ten years ago, it would have saved him from his current predicament.

Moreover, I think that Gandhi and his legal-cum-political team may not have taken the defamation case as seriously as it should have during its trial and never thought of the worst consequences out of their sheer misplaced optimism.

Also read: Disqualification of legislators on criminality: Supreme Court's constitution bench raises concern on 'laxman rekha'

Remedy available to Gandhi

Now the only option for Gandhi to overcome his disqualification from the Lok Sabha is to secure a stay on the magistrate's order of conviction from a higher court, and then either secure acquittal (which seems impossible, given the evidence available in this case) or reduction of sentence to any term less than two years, which would not attract the rigours of Section 8(3) of the 1951 Act. That may be possible, as it is quite unusual to give the maximum prescribed term of imprisonment to a first time offender for an offence which is also punishable with only fine merely as an alternative.

The effect of the stay of conviction of a legislator disqualified from the legislature for their conviction was the subject-matter of a judgment rendered in 2018 by the Supreme Court in Lok Prahari versus Election Commission of India. After taking note of a series of precedents, it was held by the court that:

"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 recent example of former Lakshadweep Parliamentarian Mohammed Faizal who had been found guilty and convicted in an attempt to murder case by a Sessions Court on January 11 can be of great benefit to Gandhi. On January 13, the Lok Sabha Secretariat had issued a disqualification notification of Faizal, like what has been done in the case of Gandhi.

However, on January 25, the Kerala High Court stayed Faizal's conviction and sentence. This order effectively rendered his disqualification by the Lok Sabha secretariat inoperative, in accordance with Lok Prahari. The high court had noted in its order that such a step is required to avoid a costly re-election and also in light of the fact that the candidate so elected would only have a Lok Sabha term of 15 months.

This order of the high court got the approval of the Supreme Court when the latter declined to stay the same in an appeal filed by the Lakshadweep administration challenging the order. Even the Election Commission had to withhold its notification for holding a by-election for the Lakshadweep Lok Sabha seat already scheduled for February 27.

Also listen: What are the options available to Rahul Gandhi after his disqualification from the Parliament?

Further complications may await

But there can still be an issue in Gandhi's matter. After his conviction dated March 23, the Lok Sabha secretariat issued a formal notification of disqualification the following day on March 24. Now, even if Gandhi gets a stay on his conviction under Section 389 (suspension of sentence pending the appeal; release of appellant on bail) of the CrPC but the Lok Sabha secretariat does not withdraw the disqualification notification and the Election Commission too issues a notification for holding by-election for Gandhi's Wayanad Lok Sabha constituency, a question would certainly arise, despite Lok Prahari, as to the status of his disqualification based on his conviction which may have been later stayed.

The said question would have to be referred to the President for her decision under Article 103 of the Constitution, which provides as under:

"(1) If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred for the decision of the President and his decision shall be final.

(2) Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion."

And since the President is to act on the aid and advice of the council of ministers headed by the Prime Minister under Article 74 of the Constitution, this process will certainly take quite some time, much to Gandhi's chagrin.

How Indira Gandhi had dealt with her disqualification

Contrast this with the case of Gandhi's grandmother, former Prime Minister Indira Gandhi, whose election had been declared null and void by Justice Jagmohan Sinha of the Allahabad High Court on June 12, 1975 in freedom fighter and politician Raj Narain's election petition, holding her guilty of employing corrupt practices in her election from Rai Bareilly constituency and entailing her immediate disqualification under the original Section 8A of the 1951 Act. She had failed to obtain a complete stay on that judgment from the Supreme Court on June 24, leading to the promulgation of emergency in India on June 25, 1975.

She went on to get an amendment passed from the Parliament, substituting Section 8A as under:

"The case of every person found guilty of a corrupt practice by an order under Section 99 shall be submitted, as soon as may be, after such order takes effect, by such authority as the Central government may specify in this behalf, to the President for determination of the question as to whether such person shall be disqualified and if so, for what period."

She had smartly overcome her immediate disqualification in this manner. On the other hand, the unfortunate Rahul Gandhi, due to his rash action committed in 2013, unwittingly contributed to his immediate disqualification ten years later.

Whatever may be the future of this case, the Gujarat court's order has sent a strong message to all persons in public life to be circumspect in their utterances and take the law of the land seriously.