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Source: This post is created based on the article
“Making sense of the disqualification of a Lok Sabha MP” published in The Hindu on 27th March 2023.
“We need to review defamation, raise the bar for disqualification” published in Indian Express on 27th March 2023.
Syllabus Topic: GS Paper 2, Parliament and State legislatures—structure, functioning, conduct of business.
News: An opposition party leader recently disqualified after the verdict in a criminal defamation case.
Section 8 of the Representation of the People Act, 1951 (RP Act) specifies the offences that disqualifies a member of the legislature.
Clause (3) of this section specifies that the member can also be disqualified for the conviction under any offence other than the ones mentioned in the other two clauses, for which he/she is sentenced to not less than two years.
Since, Lily Thomas vs Union of India, 2013 case judgment, the bar on instant disqualification upon conviction has been lifted.
However, if the Court stays the conviction and sentence, the disqualification will be lifted, and the membership will be restored to the legislature.
Read More – Criminal defamation in India – Explained, pointwise
What is another view regarding instant disqualification upon conviction?
It is a general view that the seat of the legislature shall fall vacant as soon as conviction and sentence are announced by the trial court. However, a closer look reveals that the words, use in Section 8(3) of RP Act, “shall be disqualified”, cannot mean instant disqualification. If there were words, “shall stand disqualified”, it would have meant instant disqualification, without any act from any authority.
At present, the interpretation suggests that that the person shall be disqualified by some authority. As per the article 103, President is authorised to take such decisions.
There are some expert’s opinion that article 103 can be invoked only when a dispute arises on the fact of disqualification. However, this article covers the disqualifications arising due to offences under Section 8 of the RP Act 1951. SC, uphold this positions in Consumer Education and Research Society vs Union of India (2009) case. In this case, President performs adjudicatory and declaratory functions.
In cases where adjudication is not required, the President can simply declare that the sitting Member has become subject to disqualification. But the intervention of the President is essential under Article 103 even in cases where a sitting member has been convicted and the disqualification takes effect from the date of conviction.
Therefore, the notification issued by Lok Sabha Secretariat disqualifying Rahul Gandhi was not correct. Section 8 (3) does not specify which authority is empowered to disqualify an MP; therefore, President must have been referred in this case.
What are other issues associated, as per Former CEC S Y Quraishi?
First, in another such case, in October 2013, Rasheed Masood became 1st legislature to lose his membership. After that, over 20 other legislators, including Lalu Prasad, have been disqualified.
However, the case of Lakshadweep MP Mohammed Faisal is unique. He was awarded a 10-year sentence in a criminal case. 2 days later, Lok Sabha Secretariat issued a notification to disqualify him.
In January, the Kerala High Court stayed Faisal’s conviction and stayed the by-poll. However, he is not yet reinstated on his position. Here the question arises, why the suspension of conviction by Court did not came into immediate effect, like the disqualification. In Lok Prahari v Election Commission of India (2018), the Supreme Court held that once a conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot remain in effect.
Second, what was the reason for treating the Rahul Gandhi’s remarks as criminal defamation instead of civil defamation. Furthermore, why was the sentence of the maximum possible prison-term of two years was awarded.
Third, how many of our politicians can truly survive the test of Section 153 (a) and Section 505 (Acts deal with promoting enmity based on religious and linguistic grounds.)
What are the issues with Lily Thomas judgements?
As per P.D.T. Achary (Author of the article), there are many flaws with the Lily Thomas judgment:
1) Article 103 provides that the disqualification of sitting Members shall be decided by the President. So, constitution distinguishes between candidates and sitting Members. SC ignored this fact and struck down the time window of 3 months.
2) A temporary exemption in favour of a sitting member is a reasonable requirement. Because a sudden disqualification will lead to constituency losing its representative. Section 8(4) was enacted to deal with precisely such a situation.
Why Criminal Defamation law needs a relook?
Many countries including U.K., U.S. and Sri Lanka have scrapped the criminal defamation law.
In Kultar Singh vs Mukhtiar Singh (1965), the Supreme Court advocated for allowance to the politicians for the rhetorical, hyperbolic or metaphoric words in the atmosphere, which is usually surcharged with partisan feelings and emotions.
People of mature democracies must be able to enjoy humour without any fear.