Editorial of the Day: Making Sense of the Disqualification of a Lok Sabha MP (The Hindu)

Context: The article discusses the recent conviction of Mr. Rahul Gandhi, a former Member of Parliament from Wayanad, in a defamation case, and his subsequent disqualification by the Lok Sabha Secretariat. The article goes on to examine the legal and constitutional issues surrounding the disqualification, specifically with respect to Section 8 of the Representation of the People Act, 1951 and Article 103 of the Constitution.

Disqualification of a Lok Sabha MP Background

What is Disqualification?

• Disqualification of Members of Parliament (MPs) refers to the process by which an elected MP loses their membership in either the Lok Sabha or the Rajya Sabha for reasons including:
  • Conviction in criminal cases
  • Holding an office of profit under the government
  • Defection to another political party or
  • Violating the code of conduct for MPs
• It  means that the MPs lose their seat in Parliament and cannot participate in any proceedings or vote in any matters in the House.
• The disqualification is typically decided by the Speaker of the Lok Sabha or the Chairman of the Rajya Sabha, depending on which House the MP is a member of.
• In some cases, the decision may be made by the President of India or the Governor of the state.

Constitutional & Legal Provisions for Disqualification

• Articles 102 & 191: Basic disqualification criteria for an MP are laid down in Article 102 of the Constitution and for an MLA in Article 191.
• • Article 102 also authorises Parliament to make law determining conditions of disqualifications.
• Article 103: According to Article 103, an MP shall be disqualified from his/her seat in Parliament if he/she voluntarily gives up the membership of his/her political party or votes or abstains from voting in the House contrary to any direction issued by his/her political party.
  • However, the disqualification will not apply if such a vote or abstention is condoned by the political party within 15 days from the date of such voting or abstention.
  • This provision only applies to defection and not to other grounds of disqualification, such as conviction in criminal cases or holding an office of profit under the government.
• The Representation of The People Act (RPA), 1951: RPA provides for disqualification for conviction in criminal cases.
  • Section 8(1): This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
    • The provision is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.
    • A person will be disqualified if convicted and sentenced to imprisonment for not less than two years.
    • The person is disqualified for the period of imprisonment and a further six years.
  • Section 9:  It deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
  • Section 10:  It deals with disqualification for failure to lodge an account of election expenses.
  • Section 11: A key provision, it deals with disqualification for corrupt practices.
• Tenth Schedule: Commonly known as the ‘anti-defection law’, it was meant to arrest the practice of legislators from changing political affiliations during their term in office.  A member incurs disqualification under the defection law:
  •  If he voluntarily gives up the membership of the political party on whose ticket he is elected to the House;
  • If he votes or abstains from voting in the House contrary to any direction given by his political party;
  •  If any independently elected member joins any political party; and
  •  If any nominated member joins any political party after the expiry of six months.

Historical Instances of Disqualification:

A few examples of the instances of disqualification of MPs in India include:

• 1951: The first instance of disqualification of an MP took place when Shree Ravi Shankar Shukla was disqualified on the grounds of corrupt practices in the election.
• 1971: Indira Gandhi, the former Prime Minister of India, was accused of corrupt practices in the 1971 elections by the opposition.
  • The Allahabad High Court, declaring her guilty, disqualified her from holding elected office for six years.
  • She appealed to the Supreme Court, and while the case was pending, she declared a state of emergency in the country during which her government passed a law that protected the elections of the Prime Minister and Speaker from being challenged in court.
  • However, the Supreme Court overturned the disqualification, and the law that protected elections was removed.
• 1997: Jaya Bachchan, an MP from Uttar Pradesh, was disqualified for holding an office of profit as the Chairperson of the Uttar Pradesh Film Development Council.

Decoding the Editorial

What is the Editorial discussing?

• The article discusses Section 8 (specifically clause (3) & (4)) of the RPA 1951 and the disqualification of a member of the legislature in India for being convicted of certain offences.
• It also discusses the  impact of the  Supreme Court judgement in Lily Thomas vs Union of India (2013) on clause (4) which exempted sitting members from instant disqualification for three months to appeal against their conviction.
• The article explains that the Court held that there is an instant disqualification of a sitting legislator as soon as he is convicted, but the disqualification can be lifted if the appellate Court stays the conviction and sentence.

Does the provision mean “instant disqualification”?

• According to Section 8(3) of the RP Act, the moment a conviction and sentence are announced by the trial court, the member of the legislature will stand disqualified, upon which his seat in the legislature shall fall vacant under Article 101(3)(a).
• But the author argues that the words “shall be disqualified” used cannot mean instant disqualification as against the words “shall stand disqualified” which means instant disqualification without the intervention of any other authority.

Who shall be this Authority?

• Article 103 states that if any question arises as to whether any sitting Member has become subject to any of the disqualifications mentioned under Article 102(1), the question shall be referred to the President whose decision shall be final.

Constitutional Requirement:

• The author notes that while there is a view that Article 103 can only be invoked when there is a dispute over the fact of disqualification, this does not apply to cases of disqualification arising from conviction under Section 8.
• The author argues that in such cases, the reference to the President for a decision on disqualification is a constitutional requirement.
• The Supreme Court’s decision in Consumer Education and Research Society vs Union of India (2009), which upheld this position and held that the President performs both adjudicatory and declaratory functions in such cases has been cited as an example.

Throwing Light on Lily Thomas Case: Author’s View

• The judgement of Lily Thomas case, struck down the provision allowing sitting Members of the legislature a temporary exemption to appeal against their conviction.
• The author argues that Article 103 of the Constitution provides an exception for sitting Members by stating that their disqualification shall be decided by the President.
• The author further argues that such a temporary exemption for sitting Members is reasonable as they are not in the same situation as a candidate, and sudden disqualification would cause dislocation and loss of representation for their constituency.
• Thus in spite of incuring disqualification, on being convicted and sentenced to two years of imprisonment, the final decision to disqualify Mr. Rahul Gandhi shall be solely made by the President and not the Lok Sabha Secretariat as Section 8(4) of the RP Act does not contain such a provision, writes the author.

Note for Clarity: To have a clear understanding of RPA and Article 103, we shall refer to the table

Does India need Reforms wrt to its Criminal Defamation Laws?

Defamation is the communication of a false statement that harms the reputation of an individual person, business, product, group, government, religion, or nation.

India’s Scenario:

• In India, defamation can both be a civil wrong and a criminal offence.
• While a civil wrong tends to provide for a redressal of wrongs by awarding compensation, a criminal law seeks to punish a wrongdoer.
  • Section 499 and 500 of the IPC define criminal defamation and prescribe punishment for the same.
  • Critics of criminal defamation laws in India argue that these laws are often misused to silence legitimate criticism, dissent, and investigative journalism.
• Supreme Court’s Directives:
  • Defamation is one of the recognised exceptions to the fundamental right to free speech and expression under Article 19(1)(a) of the Constitution.
  • In Subramanian Swamy vs Union of India case, the SC approved the Constitutional validity of sections 499 and 500 (criminal defamation) in the Indian Penal Code, underlining that an individual’s fundamental right to live with dignity and reputation “cannot be ruined solely because another individual can have his freedom”.
  • The ruling noted that “the right to freedom of speech and expression is not an absolute right” and has to be “balanced with the right to reputation” which is protected under Article 21 of the Constitution”.
  • The court held that criminalisation of defamation to protect individual dignity of life and reputation is a “reasonable restriction” on the fundamental right of free speech and expression.
  • In 2016, the court also passed strictures on Tamil Nadu Chief Minister J Jayalalithaa for misusing the criminal defamation law to “suffocate democracy” and, the court said, “public figures must face criticism”.
  • It also underscored that criticism was not defamation, and stated that the trial court must be “very careful” in scrutinising a complaint before issuing summons in a criminal defamation case.

Beyond the Editorial

India’s Democratic Loss as a Nation with Disqualifying Representatives:

• Breach of Trust: The people elect their representatives to the Parliament or the state assemblies with the hope that they will represent their interests and concerns. When an elected member is disqualified, the people’s trust in the democratic process is eroded.
• Erodes the Credibility: It sends a message that the electoral process and the elected representatives are not credible and accountable.
• Loss of Representation: Moreover, the disqualification of an elected member results in the loss of the member’s representation. The constituents who have elected the member lose their voice in the Parliament or the state assembly. This loss of representation can have serious  consequences, especially in the case of smaller constituencies or marginalised communities.
• Additional Expenditure: The disqualification of an elected member can also lead to by-elections, which can be expensive and time-consuming.

Role of the Opposition in Ensuring the Smooth Functioning of Democracy:

• Checks and Balances: In a democracy, the opposition is an essential component of the system of checks and balances. It is the opposition’s responsibility to hold the ruling party accountable and to ensure that the government is acting in the best interest of the people.
• Scrutiny of the Ruling Party’s Actions: It provides an alternative perspective on policies and legislation proposed by the ruling party. It scrutinises the government’s actions and decisions, and it raises issues and concerns that may have been overlooked. The opposition also acts as a watchdog, keeping a check on the government’s exercise of power and authority.
• Shaping Public Opinion: Moreover, the opposition has the power to shape public opinion and influence policy decisions. It is the opposition’s responsibility to represent the views and interests of the people who have not voted for the ruling party.
• Bridging the gap between the Government and the People: The opposition can act as a bridge between the government and the people, providing a platform for the grievances of the citizens to be heard.

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