By: Chandrashekar Bhat
Rahul Gandhi will not face disqualification as an MP if India’s Surat appellate court suspends his conviction and two-year jail term, legal experts have said.
Gandhi was on Thursday (23) found guilty of defamation over his 2019 campaign trail remark implying that prime minister Narendra Modi was a criminal.
The 52-year-old had asked why “all thieves have Modi as (their) common surname”. Gandhi’s comments were seen as a slur against the prime minister, who went on to win the election in a landslide.
Senior lawyer and constitutional law expert Rakesh Dwivedi referred to two Supreme Court’s judgments in 2013 and 2018, in the Lily Thomas and the Lok Prahari matters, respectively and said suspension of a sentence and a stay of conviction could circumvent disqualification as a lawmaker under the Representation of the People (RP) Act.
“The appellate court can suspend the conviction and the sentence and grant him bail. In that case there will be no disqualification,” he said, adding, “However the politicians must choose their words carefully to avoid getting entangled with law.”
The debate over possibilities of Gandhi being disqualified as an MP must take note of the legal position enumerated in the top court judgements and the relevant provisions of the Act, he said.
Sources said the secretariat of the Lok Sabha or the lower house of Parliament will take a call on whether there was a case for Gandhi’s disqualification after examining the Surat court order and issue a notification, announcing vacancy in the house.
A former senior official of the Election Commission and an expert on electoral laws – who did not wish to be named – was of the view that to prevent being disqualified as a lawmaker, Gandhi also needs to get his conviction stayed.
“The position as per the Lily Thomas judgement, 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,” he said.
Gandhi will have to also get a stay on conviction from a higher court too, the official said.
Former Lok Sabha secretary general and Constitution expert, PDT Achari, said the disqualification period begins as soon as the sentence is announced. He said Gandhi is free to appeal and if the appellate court stays the conviction and the sentence, then the disqualification will remain suspended.
The disqualification continues six years after the sentence is completed or served.