Rahul Gandhi has been disqualified as an MP following his conviction in the 2019 criminal defamation case when he allegedly questioned why all thieves had Modi in their surname when campaigning in Karnataka's Kolar for the Lok Sabha polls.
The Gujarat District Court, after bringing down the hammer with a two-year sentence, granted him bail and suspended the sentence for a month to allow the Congress leader to appeal in a higher court.
Legal experts opined that Rahul would not be disqualified if the conviction is stayed.
Senior lawyer and constitutional law expert Rakesh Dwivedi referring to the Supreme Court's 2013 and 2018 judgements in the Lily Thomas and Lok Pahari cases respectively said that the suspension of sentence as well as a stay of conviction is necessary to escape disqualification as a lawmaker under the Representation of the People (RP) Act.
A former senior official of the Election Commission added, "The position as per the Lily Thomas judgment, a conviction which carries a sentence of two years or more will automatically result in disqualification. In a later judgment in the Lok Prahari case, the apex court said on appeal if the conviction is suspended, the disqualification will also remain suspended."
Lily Thomas v Union of India
As per Section 8(3) of the Representation of the People Act of 1951, the conviction of a lawmaker for an offence that carries a sentence of two years or more leads to them being disqualified from the House.
Earlier, Section 8(4) of the RPA said disqualification takes effect only "after three months have elapsed" from the date of conviction. The lawmaker would meanwhile have time to appeal it in a higher court.
However, this was struck down as "unconstitutional" in the apex court's landmark 2013 judgement in the 'Lily Thomas v Union of India' case.
In 2005, Kerala-based lawyer Lily Thomas and NGO Lok Prahari filed a PIL before the SC which challenged Section 8(4) of the RPA as 'ultra vires' to the Indian Constitution, saying it protected convicted legislators from disqualification because their appeals were pending before higher courts.
The plea had sought to remove criminal elements from Indian politics by barring convicted lawmakers from contesting elections or holding any official seat.
The case drew attention to Articles 102(1) and 191(1) of the Constitution. The former lays down the disqualifications for membership to the Houses of Parliament while the latter lays down the disqualifications for membership to the Legislative Assembly or Legislative Council of the state. As per the plea, these provisions gave the Centre the power to add more disqualifications.
On July 10, 2013, a bench of Justices AK Patnaik and SJ Mukhopadhaya of the SC said, "Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution."
The apex court further held that if a sitting member of the Parliament or State Legislature is convicted of any offence under sub-section (1), (2), and (3) of Section 8 of the RPA then "by virtue of such conviction and/or sentence", they stand disqualified. The bench added that a convicted parliamentarian or legislator's membership would not be protected under Section 8 (4) any longer.
Examining other provisions in the Constitution which deal with the disqualification of a lawmaker, the SC held that the Constitution "expressly prohibits" the Parliament to defer the date from which the disqualification would come into effect.
In the later 2018 judgement on the Lok Prahari case, the SC bench - including current CJI D Y Chandrachud - held that a disqualification would be "untenable" if the conviction was stayed.
"It is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas 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 of the RP Act," the 2018 verdict had said.
(With PTI inputs)