No immediate disqualification in case of Rahul Gandhi: Experts

Congress MP Rahul Gandhi on Thursday faced chances of disqualification upon his conviction and sentence of two year jail in a defamation case by a Surat court.

Experts, however, felt since the court suspended the sentence in his case, there is no immediate threat to his membership to Lok Sabha, even though the Supreme Court in a landmark verdict in 2013 declared that an MP or an MLA would stand disqualified immediately upon conviction.

Also Read: Rahul Gandhi gets 2-year jail in 'Modi surname' remark case

All eyes would now be upon the appellate court to see if his conviction and sentence get suspended, when he files an appeal within the stipulated time.

In Lily Thomas case (2013), the Supreme Court had ruled that sitting MP and MLA would lose membership of the legislature if he or she is convicted in a criminal case.

Prior to that, in view of the provision of Section 8(4) of the Representation of the People Act, the convicted law makers could continue their membership of assemblies and Parliament despite their being held guilty in a criminal case, provided they filed an appeal against such convictions within three months.

In case of Rahul Gandhi, senior advocate Sidharth Luthra said, he will have to file an appeal and seek a stay of conviction. "He will be disqualified, but if stay of conviction is granted by the appellate court, he will be safe," he said.

Luthra, former Additional Solicitor General further said, "In Manoj Narula vs Union of India (2014), the Constitution Bench has held that, “a disqualification under Section 8(3) of the Representation of People Act is attracted only if the sentence awarded to a convict is (sic) not less than two years imprisonment.”

So the first issue will be that with the two years imprisonment, the disqualification will apply.

"While in Lily Thomas, it was stated in para 30 that, “seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution”, it was clarified in Lok Prahari vs Election Commission of India (2018) that the disqualification will not operate from the date of the stay of conviction by the appellate court. Hence, a stay of conviction “would relieve the individual from suffering the consequence of a disqualification relatable under Section 8 of the Act,” he added.

Also Read: Congress submits 'breach of privilege' notice against Rajnath over allegations against Rahul Gandhi

Former Chief Election Commissioner O P Rawat said, "As per reports, the Surat court has suspended his sentence, meaning his sentence does not exist as of now, and that makes all the difference. Otherwise, the ruling of the Supreme Court is very clear a member of legislature stands disqualified irrespective of any appeal."

Senior advocate Mahalakshmi Pavani also felt that there is no chance of Rahul Gandhi getting disqualified as of now. She hoped his conviction and sentence would be stayed by the higher court.

According to Section 8 (3) of the Representation of People Act, a person convicted of any offence and sentenced to imprisonment for not less than two years 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.

Additional Advocate General of Tamil Nadu, Amit Anand Tiwari said a person who is convicted of any offence and sentenced to imprisonment for not less than two years stands disqualified from being a member of Parliament and such seat becomes vacant; though the disqualification shall not take effect till three months have elapsed from the date of conviction.

"If within that period an appeal or revision application is brought against the conviction, the disqualification shall be deferred till the appeal or application is disposed of. Gandhi will not be disqualified till three months from 23.03.2023. In case he prefers an appeal against his conviction within this period, the disqualification shall not take place till it is decided," he said.