MP's DISQUALIFICATION

1. Context 

2. Reasons for disqualification of Gandhi's face

• The disqualification of a lawmaker is prescribed in three situations.
• First is through Articles 102 (1) and 191 (1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively.
• The grounds here include holding an office of profit, being of unsound mind or insolvent or not having valid citizenship.
• The second prescription of disqualification is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
• The third prescription is under the Representation of the People Act (RPA), 1951.
• This law provides for disqualification for conviction in criminal cases.

3. Representation of People Act

• Several provisions deal with disqualification under the RPA.
• Section 9 deals with disqualification for dismissal for corruption or disloyalty and for entering into government contracts while being a lawmaker.
• Section 10 deals with disqualification for failure to lodge an account of election expenses.
• A key provision, Section 11, deals with disqualification for corrupt practices.
• Section 8 of the RPA  deals with disqualification for conviction of offences.
• The provision is aimed at "preventing the criminalisation of politics" and keeping 'tainted' lawmakers from contesting elections.
• First, disqualification is triggered for conviction under certain offences listed in Section 8(1) of the Representation of the People Act.
• This includes specific offences such as promoting enmity between two groups, bribery and undue influence or personation at an election.
• Senior Samajwadi Party leader Azam Khan lost his Uttar Pradesh Assembly membership in October 2022 after he was convicted in a hate speech case. Defamation does not fall on this list.
• Section 8 (2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.

4. Operation of disqualification

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
• In a 2018 decision in "Lok Prahari v Union of India", the Supreme Court clarified that the disqualification "will not operate from the date of the stay of conviction by the appellate court".
• Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction.
• Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending. This is asking to release the appellant on bail.
• This means that Gandhi's first appeal would be before the Surat Sessions Court and then before the Gujarat High Court.

5. Changes in the law

• Under the RPA, Section 8 (4) stated that the disqualification takes effect only "after three months have elapsed" from the date of conviction.
• Within that period, lawmakers could file an appeal against the sentence before the High Court.
• However, in the landmark 2013 ruling in "Lily Thomas v Union of India", the Supreme Court struck down Section 8 (4) of the RPA as Unconstitutional.