A strong case to restore Section 8(4) of the RP Act

Source: The post is based on articles A strong case to restore Section 8(4) of the RP Act” published in The Hindu on 23rd August 2023.

Syllabus: GS 2 – Salient Features of the Representation of People’s Act

Relevance: concerns with disqualification of legislators.

News: Recently, Rahul Gandhi was disqualified on being convicted and sentenced to two years imprisonment in a 2019 defamation case.

The disqualification was instant because of the Supreme Court of India’s judgment in Lily Thomas vs Union of India (2013).

What did the court rule in Lily Thomas vs Union of India judgment?

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Now, only Section 8(3) remains in the Act which deals with disqualification of persons convicted and sentenced to two years imprisonment.

What is section 8(3) of Representation of People Act, 1951?

Section 8(3) suggests that upon a conviction with a two-year sentence, a sitting member gets disqualified from the conviction date, decided by the President under Article 103. However, it doesn’t directly say they’re disqualified instantly.

Further, the House’s Secretariat, to which the member belongs, lacks the power to announce that a member is disqualified immediately upon being convicted by a court of law.

Hence, the instant disqualification of Mr. Gandhi didn’t have a strong legal basis.

Is suspending the sentence enough to lift the disqualification, or is it essential to suspend the conviction itself?

In the 1980s and 1990s, certain High Courts (like Allahabad High Court in 1987 and Himachal High Court in 1994) believed that disqualification remains even with a suspended sentence.

However, in the Jayalalithaa case of 2001, the Madras High Court determined that when the sentence is put on hold, the conviction should also be considered as on hold.

In Rahul Gandhi’s situation, the Supreme Court stopped the conviction but didn’t say if stopping the conviction also stops disqualification.

Moreover, disqualification happens when the sentence is two years or more in prison. So, it’s based on the sentence length, not the conviction itself.

Why was Section 8(4) struck down by the SC in Lily Thomas vs Union of India (2013)?

The Supreme Court removed Section 8(4) because Parliament can’t treat lawmakers who are found guilty differently. This is because Article 102(1) says lawmakers and candidates should be treated the same way.

However, when it comes to treating them differently, the Constitution actually allows it. Article 103 says that for current lawmakers, the President will decide if they should be disqualified under Article 102(1).

Read More: Making sense of the disqualification of a Lok Sabha MP and Disqualification of Legislators in India – Explained and Does Rahul Gandhi stand disqualified as an MP following his conviction?

What can be the way ahead?

The Lily Thomas ruling hasn’t changed politicians’ behavior much concerning criminal matters. Powerful ruling party members can quickly delay convictions, avoiding instant disqualification.

Therefore, to safeguard legislators’ careers from sudden disruptions caused by court orders, section 8(4) should be constitutionally restored and protected.

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