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  • On March 23, 2023, Rahul Gandhi, a Member of Parliament from Wayanad and a Congress leader, was convicted of defamation by a Chief Judicial Magistrate’s court in Surat, Gujarat. The Lok Sabha Secretariat issued a notification the following day, disqualifying him. This has raised several constitutional and legal issues.

  • Section 8 of the Representation of the People Act, 1951 (RP Act) lists various offenses, conviction for which entail the disqualification of a member of the legislature. Clause (3) of this section states that a person convicted of any offense 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. Clause (4) exempts sitting members from instant disqualification for three months to enable them to appeal against the conviction. However, the Supreme Court struck down clause (4) in Lily Thomas vs. Union of India (2013) as ultra vires the Constitution, stating that Parliament has no power to enact such an exemption for sitting members of the legislature. Therefore, there is an instant disqualification of a sitting legislator as soon as they are convicted. However, if the appellate court stays the conviction and sentence, the disqualification will be lifted, and membership will be restored.

  • Article 103 of the Indian Constitution specifies that if any question arises as to whether any sitting Member has become subject to any of the disqualifications mentioned under Article 102(1), the question shall be referred to the President whose decision shall be final. Sub Clause (e) of this Article relates to all cases of disqualification under the RP Act 1951, including disqualification on conviction and sentence under Section 8(3) of the Act. In cases of conviction under this section, the intervention of the President is essential, and the President performs adjudicatory and declaratory functions.

  • The judgment in Lily Thomas has certain flaws. It says that Parliament cannot enact a temporary exemption in favor of sitting members of the Legislature. However, 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-month window given to the sitting members to enable them to appeal against their conviction.

  • In the absence of a provision such as clause 4 of Section 8, the Lok Sabha Secretariat issued a notification on March 24, 2023, declaring that Mr. Gandhi stands disqualified. This notification has presumably been issued on the basis of the judgment in the Lily Thomas case. However, Section 8(3) 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” imply that the person shall be disqualified by some authority, which, according to Article 103, is the President.

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