Dipak Kurmi
(The writer is a journalist and commentator based in Guwahati, and can be reached at dipaknewslive@gmail.com)
The Surat court convicted Rahul Gandhi, a senior member of the Indian National Congress, in a defamation case filed by former Gujarat minister Purnesh Modi, who accused Gandhi of making defamatory remarks against him. The remark in question was, “How come all the thieves have Modi as the common surname?” As a result of his conviction under Sections 499 and 500 of the Indian Penal Code, Gandhi was disqualified from the Lok Sabha the following day. Section 500 of the IPC provides for punishment of up to two years’ imprisonment, a fine, or both, for defamation.
The recent disqualification of Rahul Gandhi from Lok Sabha following his conviction under Sections 499 and 500 of IPC has sparked a political debate about the legitimacy of the judgement and possible misuse of institutions by the ruling party. While the severity of Gandhi’s punishment can be a topic of political and legal discussion, his disqualification from Lok Sabha is not up for debate. Section 8(3) of the Representation of the People Act, 1951, stipulates that any person convicted of an offence and sentenced to imprisonment for two years or more will be disqualified from the date of their conviction and will continue to be disqualified for an additional six years following their release. Thus, as soon as Rahul Gandhi was sentenced to two years in jail, he was disqualified as an MP. In compliance with this law, the Lok Sabha Secretariat issued a notification stating his disqualification date as March 23rd instead of March 24th. Therefore, Rahul Gandhi is barred from participating in electoral politics until 2031 due to his conviction, with the disqualification period lasting for six years after his release in 2025.
The law concerning criminal defamation, which includes sections 499 and 500 of the IPC, 1860 and section 199 of the CrPC, 1973, has been deemed constitutional by the Supreme Court in Subramanian Swamy v UOI, Ministry of Law [2016 (5) SCJ 643]. The court stated that while the right to free speech is essential, it is not without limitations, and criminal defamation does not violate this right as it serves to protect a person’s reputation, which is also a fundamental and human right. Whether the law on criminal defamation was correctly applied to Rahul Gandhi and his punishment of two years imprisonment is a matter of appeal, but the immediate concern is elsewhere.
If Rahul Gandhi’s conviction is not suspended or overturned, he may be unable to participate in the upcoming 2024 general election and would be disqualified. The Election Commission can now hold a by-election for the Wayanad constituency, which was won by Rahul Gandhi. However, he can retain his seat in Parliament if he obtains a court order to stay his conviction. If his conviction is overturned or stayed and no new election is held in Wayanad, he may be reinstated in Parliament. Alternatively, if his sentence is reduced, the disqualification would be removed, but a final appeal hearing may not be feasible within a short period of time.
There is no confusion regarding the laws governing the disqualification of Rahul Gandhi, as the Supreme Court’s verdict in Lily Thomas vs. Union of India and Others (2013) implies that disqualification is immediate upon conviction by striking down Section 8(4) of the Representation of People Act, 1951, as unconstitutional. Under Sections 8(1), 8(2), and 8(3) of the RP Act, if a legislator is convicted of certain offenses outlined in these sections, they will stand disqualified from holding office. However, sub-section (4) of Section 8 provided some relaxation to the convicted person by stating that, notwithstanding anything in sub-sections (1), (2), or (3) of Section 8, a disqualification under either subsection shall not take effect until three months have elapsed from the date of conviction, or if an appeal or application for revision is brought within that period, until the court disposes of the appeal or application.
In the case of Lily Thomas v Union of India (2013), the constitutionality of Section 8(4) of the RP Act was challenged before the Supreme Court. The Court declared Section 8(4) ultra vires to the Constitution, holding that Parliament had exceeded its powers by introducing it. The Court further ruled that sitting members who had previously benefitted from Section 8(4) would not be affected by the judgement. However, any sitting member of the Parliament or state legislature who is convicted under subsections 1, 2, or 3 of Section 8 shall be disqualified under the judgement. Therefore, the disqualification of Rahul Gandhi from the Lok Sabha is legally valid.
Moving forward, Rahul Gandhi must urgently approach the Appellate court and request a stay on his conviction issued by the Surat court. Although the Supreme Court has previously ruled in Navjot Singh Sidhu v. State of Punjab (2007) that a stay of conviction by an appellate court should be used sparingly, it is still a viable option for Rahul Gandhi to pursue. Given the severity of the sentence imposed by the Surat court and the potential consequences of not suspending the conviction, obtaining a stay order should not be difficult. The Supreme Court’s ruling in Rama Narang v. Ramesh Narang (1995) has established that the appellate court has the authority to suspend both the sentence and conviction under Section 389 of the Criminal Procedure Code in appropriate cases. However, before doing so, the appellate court must be made aware of the repercussions that could arise if the conviction is not stayed. If the conviction is successfully stayed by the appellate court, the disqualification under subsections (1), (2), and (3) of Section 8 of the Representation of the People Act, 1951 will not apply.
Rahul Gandhi’s legal team’s lackadaisical approach in defending the defamation case before the Surat court has made the road ahead more complicated than it may seem, and time is running out for his legal options. Therefore, if Rahul Gandhi wishes to participate in future elections, he must act swiftly to seek a stay of conviction from the appellate court.