• The conviction 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. 

The role of the President

  • Section 8(3) of the RP Act which provides for disqualification on conviction has been subjected to judicial interpretation in a number of cases. 
  • 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. 
  • 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. 
  • The judgment in Lily Thomas has certain flaws. 
  • It says that Parliament cannot enact a temporary exemption in favour of sitting members of the Legislature. 
  • But Article 103 itself provides an exception in the case of sitting Members by stating that the disqualification of sitting Members shall be decided by the President. Thus, the Constitution itself makes a distinction between the candidates and sitting Members. 
  • This was ignored by the judgment and the Court struck down the three months window given to the sitting members to enable them to appeal against their conviction.