EDITORIAL ANALYSIS : Making sense of the disqualification of a Lok Sabha MP

Source: The Hindu

Prelims: Parliamentary democracy, functions of whip, house rules, article 105, rule 353(Lok Sabha), parliamentary committees etc

Mains GS Paper II: Parliament-Structure, organization, functioning and conduct of business etc

ARTICLE HIGHLIGHTS

The conviction of Congress leader and now former MP Wayanad Rahul Gandhi by a Chief Judicial Magistrate’s court in Gujarat.
- The issuance of a notification the next day by the Lok Sabha Secretariat of Mr. Gandhi’s disqualification raise some important constitutional and legal issues.

INSIGHTS ON THE ISSUE

Context

Parliament:

Parliament is the most important symbol of Indian democracy.
It is through summoning the House and calling MPs to participate in legislative and other business through:
- discussion, debates, committee dispensations, and other mechanisms
Parliament enables the citizens of the country: through their representatives, to participate in decision-making and hold the government to account.

Laws related to disqualification;

Article 102: It specifies that a person shall be disqualified for contesting elections and being a Member of Parliament under certain conditions.
- These include:
  - holding an office of profit
  - being of unsound mind or insolvent
  - not being a citizen of India.
- It also authorizes Parliament to make law determining conditions of disqualifications.
- There are analogous provisions for members of state legislatures.

The Representation of the People Act, 1951: It provides that a person will be disqualified if convicted and sentenced to imprisonment for two years or more.
- The person is disqualified for the period of imprisonment and a further six years.
- exception for sitting members
  - they have been provided a period of three months from the date of conviction to appeal
  - The disqualification will not be applicable until the appeal is decided.

Judgements related to Disqualification:

The differential treatment of candidates for elections and sitting members was challenged under Article 14 (right to equality)
It decided that the consequences of disqualifying a contestant and a sitting member were different.
The Court considered whether in case of a disqualified candidate who is later acquitted, the disqualification would be removed with retrospective effect.
It stated that this could not be done as this would require the results of the election to be canceled.
- Therefore, the removal of disqualification would be prospective and for future elections.

Lily Thomas vs Union of India(2013):

It stated that Article 102 empowers Parliament to make law regarding disqualification of a person “for being chosen as, and for being, a member of either House of Parliament”.
The judgment cited Article 101: A MP was disqualified under Article 102, “his seat shall thereupon become vacant”.
The disqualification was automatic and had immediate effect if the conditions of Article 102 were met.

Section 8 of the Representation of the People Act, 1951 (RP Act):

It specifies the various offenses, conviction for which entail the disqualification of a member of the legislature.
Clause (3) of this section says that a person convicted of any offense other than those mentioned in the other two clauses, and sentenced to not less than two years shall be disqualified from the date of conviction.
Clause (4) has exempted sitting members from instant disqualification for three months to enable them to appeal against the conviction.
- This clause was struck down as ultra vires in the Lily Thomas vs Union of India, 2013.

The role of the President:

Article 103 shows that the President of India is that authority who decides that a sitting member has become subject to disqualification in all cases which come under Article 102(1).
Sub Clause (e) of Article relates to all cases of disqualification under the RP Act 1951 which include disqualification on conviction and sentence under Section 8(3) of the Act.

Opinion on the scope of Article 103:

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.
Article can be invoked only when a dispute arises on the fact of disqualification and not otherwise.
This Article covers disqualification arising on conviction for different offenses under Section 8 of the RP Act 1951.
The question of disqualification of a sitting Member who has been convicted for an offense covered by Section 8 is a constitutional requirement.
Consumer Education and Research Society vs Union of India (2009): judgment says that the President performs adjudicatory and declaratory functions here.
In cases where adjudication is not required: The President can simply declare that the sitting Member has become subject to disqualification.
The intervention of the President is essential under Article 103 even in cases where a sitting member has been convicted and the disqualification is supposed to take effect from the date of conviction.
Section 8(3) of the RP Act does not say that sitting Member disqualification takes effect the moment the conviction is announced.

Flaws in Lily Thomas judgment:

Parliament cannot enact a temporary exemption in favor of sitting members of the Legislature.
- But Article 103 itself provides an exception stating that the disqualification of sitting Members shall be decided by the President.
- This was ignored by the judgment and the Court struck down the three months window given to the sitting members to enable them to appeal against their conviction.
Temporary exemption in favor of sitting members of the legislature is a reasonable requirement.
A sudden disqualification will cause a lot of dislocation apart from the fact that the constituency will lose its representative.

Section 8(4):

It was enacted to deal with precisely such a situation.
Clause 4 of Section 8, the Lok Sabha Secretariat issued a notification:This notification has presumably been issued on the basis of the judgment in the Lily Thomas case.
Section 8 (3) uses the words “shall be disqualified” and does not specify which authority shall disqualify
- Lok Sabha Secretariat cannot declare disqualified without referring the case to the President under Article 103 for a declaration
The authority to declare a sitting Member disqualified on the basis of the Court’s decision is not vested in the Lok Sabha Secretariat, either under the Constitution or the RP Act 1951.
- The power is vested in the President under Article 103.

Way Forward

The law on criminal defamation needs an urgent review.
- Countries such as the United Kingdom and the United States have scrapped it.
  - India’s neighbor Sri Lanka too has done away with it.
- In 1965, the Supreme Court had drawn the attention of the judicial system to the need for a liberal approach to rhetorical, hyperbolic or metaphoric words used by politicians in election speeches.
- Kultar Singh vs Mukhtiar Singh (1965): The Court said: when the question is argued in the cold atmosphere of a judicial chamber some allowance must be made and impugned speeches must be construed in that light”.
- In our multi-party democracy, every political party is a potential ruling party. So, every political leader is exposed to the danger of being hauled up for defamation and put out of the electoral process for long years