The disqualification of Rahul Gandhi following his conviction for criminal defamation by a Surat trial court and the notification of vacation of his seat in Lok Sabha raise important questions. These questions pertain to the circumstances of this case and issues relating to disqualification of incumbent legislators.
Let us first examine this disqualification. Section 499 of IPC defines criminal defamation in considerable detail, and Section 500 provides for a punishment of simple imprisonment upto two years, or with fine, or with both. Section 8 (3) of Representation of the People Act, 1951 provides for disqualification of a person convicted of any offence and sentenced to imprisonment for two years or more; and such disqualification applies from the date of conviction, and shall continue for a period of six years since his release.
Criminalisation of politics is of great concern to all citizens. Lok Satta movement, FDR and I fought against criminalisation for decades. We painstakingly gathered and verified information about criminal antecedents of candidates contesting elections in 1999 in Andhra Pradesh, and released a list of 42 candidates with serious criminal record. Later, following Supreme Court order on disclosure, we made sure that disclosure is mandatory, and non-disclosure would entail rejection of nomination. Finally we challenged a weak ordinance promulgated by the government, and the Court quashed it, ensuring a permanent, credible mechanism for disclosure of candidate details.
However, we never imagined that defamation would be regarded as a serious crime, and conviction for that would entail disqualification. Defamation should be treated as a civil wrong with award of damages, and not as a crime entailing jail sentence. While disqualifying candidates for serious criminality is necessary, overusing the disqualification provisions is counterproductive. Disqualification must not be resorted to lightly, and it cannot be the primary weapon for political reform.
Lok Sabha Secretariat is right on technicalities, but wrong on substance. The Supreme Court order in 2013 (Lily Thomas case) quashing Section 8 (4) of the R P Act, 1951, and directing that disqualification of convicted member should be instantaneous without waiting for the President’s decision under Article 103 is ill-advised.
The original section 8 (4) of RP Act provides for exemption from disqualification of an incumbent legislator until an appeal is disposed of. This exception was reasonable, and was meant to protect the elected legislature and the right of representation of the people, and to avoid a futile by-election in the event of the appellate court setting aside the conviction. Unfortunately, for decades the Election Commission interpreted section 8 (4) expansively, and applied the exemption from disqualification well beyond the remainder of the term of office of the incumbent. Thus once an incumbent member who had been convicted filed an appeal, the person was allowed to contest again and again until the appeal was disposed of. In our country the wheels of justice are excruciatingly slow, and criminal cases often take decades to reach their conclusion. Therefore, several convicted criminals could be elected to legislatures repeatedly as the appeal was pending, and they continued to exercise significant influence on our public affairs. Clearly, the answer is to limit the exemption Under Section 8(4) to the remainder of term of office of the incumbent if the appeal is still pending.
Now that Rahul Gandhi is disqualified, the Wayanad constituency is unrepresented in the Lok Sabha. Under the law, the Election Commission can notify and hold a by-election to Wayanad constituency. After such a by-election, and before the end of the term of the 17th Lok Sabha, an appellate court may set aside Gandhi’s conviction, or reduce the sentence, in which case his membership of the House would be restored. Obviously there would be an absurd situation of two legitimately elected members of the House representing Wayanad constituency in the Lok Sabha. It is to avoid such a futile by-election and needless complication that Section 8 (4) was incorporated.
A five-judge Constitution Bench of the Supreme Court headed by the then Chief Justice R C Lahoti held that the exception carved out in section 8 (4) was reasonable in its verdict in the K Prabhakaran vs P Jayarajan case on January 11, 2005. The Constitution Bench had observed: “Here the stress (of Section 8 (4)) is not merely on the right of an individual to contest an election or to continue as a member of a House, but the very existence and continuity of a House democratically constituted. ..…. Secondly, by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted member being acquitted by a superior criminal court”.
Unfortunately, in its order on 10 July, 2013 in Lily Thomas vs Union of India, a two-judge Division Bench of the Supreme Court disregarded the opinion of the Constitution Bench in 2005. Instead of taking a reasonable position that exemption from disqualification pending appeal should be limited to the remainder of the term of office of the incumbent legislator, the Court held Section 8 (4) ultra vires the Constitution. The Court also went to the extent of saying that the seat of a member stands vacated immediately upon conviction, and there was no need to wait for the President’s order under Article 103 on the basis of the opinion of the Election Commission.
Nobody disputes the need for effective steps to curb criminalisation of politics. But we have no instant solutions; and disqualifying a sitting member for conviction for criminal defamation is not the way to fight the battle. Such hasty judgments and precipitate actions will only generate a lot of sound and fury without advancing the cause of clean politics. Good intentions are not enough; we need deep insights into the operation of the Constitution and the democratic system, and should act with wisdom and restraint.
The author is founder of the Lok Satta movement and Foundation for Democratic Reforms. Email: drjploksatta@gmail.com / Twitter @jp_loksatta
