A Surat court on Thursday convicted Congress leader Rahul Gandhi of criminal defamation and sentenced him to two years in jail. The court, however, suspended the sentence allowing Gandhi 30 days’ time to appeal against the conviction.
The court’s conviction came on a plea filed by BJP Leader Purnesh Modi who registered an FIR against the Congress leader for his 2019 remark during a poll rally where he said, “How come all these thieves have Modi as their common surname?”
Gandhi had made the above statement in the aftermath of diamond baron Nirav Modi, his billionaire uncle Mehul Choksi and businessman Lalit Modi fleeing the country after being accused of various financial scams.
Gandhi's conviction could affect his membership in the Parliament (he is an MP from Wayanad, Kerala) or his candidacy for the upcoming 2024 Lok Sabha elections. Here's what happens when an MP or an MLA is convicted of a crime:
What happens to an MP/MLA if they are convicted of a crime?
Disqualification under the Representation of People’s Act, 1951 was aimed at reducing the rise of criminalization in politics. Section 8 of the RPA Act provides for the disqualification of an MP/MLA if they are convicted for a range of crimes listed under sub-sections 1 and 2. The convicted lawmaker is disqualified for the time they spend in jail and an additional six years.
These include hate crimes; terrorism, corruption; conviction under provisions of UAPA; untouchability, violation of Foreign Exchange (Regulation) Act, 1973; food adulteration; hoarding and profiteering dishonour to the national flag/anthem; sedition; illegal religious conversion among others.
Section 8(3) of the Act says that an MP/MLA stands disqualified if they are convicted for crimes and awarded a jail term of two years or more. Supreme Court’s 2013 Lily Thomas judgment reiterates this point, SN Shukla said. Shukla, who is the general secretary of the NGO Lok Prahari has filed several representations across judicial fora for electoral reforms. Shukla’s Lok Prahari was also one of the petitioners tagged along with the Lily Thomas matter.
Supreme Court said the seat becomes vacant automatically, Shukla said.
“The seat of a member who becomes subject to any of the disqualifications mentioned in clause (1) will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor, as the case may be, under Articles 103 and 192 respectively of the Constitution,” the Lily Thomas judgment said.
An MP/MLA may appeal before the President if there is doubt on the disqualification, experts told BOOM.
Former Chief Election Commissioner SY Quraishi clarified that if an MP/MLA is convicted of certain charges (those listed in sub-sections 1 and 2), they would be disqualified despite any jail term they get. However, disqualification under sub-section 3 kicks in if and only if the jail term is at least two years or more, Quraishi told BOOM.
If conditions are met, then disqualification is automatic. A Speaker (Lok Sabha or Rajya Sabha) can just issue a notification to this effect and inform the Election Commission about the vacation of a seat. The poll panel can then issue another notification for by-elections for that seat.
Till 2013, there was an exemption for sitting MPs/MLAs. According to the RPA, they were given three months to file an appeal against their conviction; disqualification, in this case, would not be applicable till the appeals were decided. However, the Supreme Court in its 2013 Lily Thomas judgment said this exception was unconstitutional and struck it down.
The division bench of Justices AK Patnaik and SJ Mukhopadhyaya said conditions for disqualification would equally apply to all politicians alike.
Also Read:India Today Versus Newslaundry: What is Defamation?
Is an MP/MLA banned from office or contesting elections?
Yes, on conviction of certain crimes (listed in Section 8(1) and 8(2) of RPA), a lawmaker is banned from holding public office and contesting elections for six years. The six-year ban kicks in from the day their sentence is complete.
The ban can also kick in from the date of conviction even if there is no jail term.
In some cases, the Election Commission or the appellate courts may decide on the duration of the ban.
However, Rahul Gandhi’s conviction comes under Section 8(3) of the RPA. So his case is a little different and there are several scenarios at play here.
What happens to Rahul Gandhi?
Since the Surat court convicted Gandhi of criminal defamation and sentenced him to jail for two years, the Congress leader is automatically disqualified as a Lok Sabha Member of Parliament under section 8(3) of the Representation of People’s Act, 1951.
However, since conviction under criminal defamation is not one of the crimes as listed in sections 1 and 2 of the RPA, Gandhi can escape disqualification if: a) an appellate court stays his conviction pending appeal; b) he wins his appeal. His conviction is set aside/overturned and he is held not guilty, OR b) appellate court upholds the conviction BUT lessens the jail term to anything less than two years.
The Surat court earlier today suspended Gandhi’s jail term for 30 days giving him time to appeal. Therefore, as of now, Gandhi is still disqualified as an MP.
On the issue of ban from future elections, there are several possibilities.
If the appellate courts uphold the conviction AND the two-year jail term, then the disqualification kicks in and so does the six-year ban which means Gandhi will not be able to contest elections for eight years.
But if the appellate courts uphold Gandhi’s conviction, but his sentence is reduced to less than two years or no jail time at all, then no disqualification and no ban.
If the appellate court overturns the conviction, then no disqualification or ban for Gandhi.
Also Read:Hate-Speech Accused 3 Times More Successful In Elections
What happened in past convictions of MP/MLA?
Earlier this year in January, the Lok Sabha Secretariat issued a notification disqualifying Lakshadweep MP Mohammed Faizal over his conviction in an attempt-to-murder case. In October 2022, Samajwadi Party (SP) MP Azam Khan was convicted for a 2019 case of hate speech against UP CM Yogi Adityanath and then Rampur District Magistrate Aunjaneya Kumar Singh.
A day later, on October 28 2022, Khan was disqualified from the UP assembly and his Rampur seat was declared vacant.
Last month in February, Khan and his son Abdullah—also an MP with Samajwadi Party—were convicted in a 15-year-old case. This was Khan senior’s second disqualification over a conviction. The UP Assembly again moved with haste and disqualified Abdullah declaring his seat vacant from February 13 onwards.
Ex-Bihar CM Lalu Prasad Yadav and Tamil Nadu CM J Jayalalitha’s cases are most notable in recent times. In 2013, Yadav was convicted in the Rs. 930 crore fodder scam and sentenced to five years in prison. At the time, he incurred an 11-year ban from holding public posts or contesting elections (five-year jail term + six-year additional ban after completion of jail term).
Jayalalitha became the first Chief Minister in office to get disqualified over a conviction in a disproportionate assets case. Though the case went through many twists and turns. The trial court convicted Jayalalitha, but the Madras High Court acquitted her and the other accused, but finally the Supreme Court heard the matter all over again and convicted all accused once again. But by then the case against Jayalalitha had abated on account of her death.
Interestingly, in 2013 shortly after the Lily Thomas judgment and months before the Lalu Prasad Yadav’s verdict in the fodder scam, the UPA government tried to introduce an ordinance allowing disqualification of an MP/MLA to kick in only after all appeals were done.
This was presumably done to save Lalu Prasad Yadav from disqualification in case of conviction. However, Rahul Gandhi—he was Congress Vice President at the time—had famously torn up the ordinance at a press meet held in Delhi's Press Club and called it “complete nonsense that should be torn up and thrown away”.
The UPA government subsequently withdrew the bill and the ordinance.