A Strong case to restore Section 8(4) of the RP Act
- 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
- 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
- Over the years, the law has changed when it comes to disqualification. 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. This is what has allowed the Lok Sabha Secretariat to immediately disqualify Rahul Gandhi.
- The Representation of the People Act, 1951 is an act of Parliament of India to provide for the conduct of election of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections - It was introduced in Parliament by law minister Dr BR Ambedkar
- There are several provisions that 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 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
- 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
- Section 8(3) states: “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.”
- Defamation is a wrong that deals with damage caused to a person’s reputation
- In India, defamation can both be a civil wrong and a criminal offence, depending on the objective they seek to achieve
- A civil wrong sees a wrong being redressed with monetary compensation, while a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts, with a jail term
- In a criminal case, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities
- Section 499 of the IPC defines what amounts to criminal defamation and subsequent provisions define its punishment
- Section 499 elaborates on how defamation could be through words spoken or intended to be read, through signs, and also through visible representations
- These can either be published or spoken about a person with the intention of damaging reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation
- Section 500 stipulates imprisonment of up to two years, with or without a fine, for someone held guilty of criminal defamation
The disqualification under the Constitution is permanent, while the disqualification under the Representation of the People Act is for a period of six years.
A disqualification petition can be filed by any person before the Election Commission of India. The Election Commission will then conduct an inquiry and decide whether or not to disqualify the MP.
If the Election Commission decides to disqualify the MP, the MP will be removed from the membership of the House. The MP can then appeal the decision of the Election Commission to the Supreme Court.
The disqualification of MPs is an important mechanism to ensure that only qualified and eligible persons hold office. It is also a way to hold MPs accountable for their actions.
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Practice Questions 1.The Representation of the People Act, 1951, lays down the grounds for disqualification of MPs. Discuss the role of this legislation in curbing electoral malpractices and ensuring that individuals with criminal backgrounds are discouraged from entering the political arena. 2.Critically assess the implications of disqualifying an MP due to their conviction for criminal offenses. How can the balance between safeguarding the principle of innocent until proven guilty and upholding the credibility of the parliamentary institution be maintained? 3.The Anti-Defection Law has been a significant development in ensuring political stability and party discipline. Analyze the impact of this law on the functioning of the Indian Parliament and the broader political landscape. Highlight any shortcomings and suggest possible reforms |
