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


Source: The Hindu

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

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



  • Rahul Gandhi was disqualified on being convicted and sentenced to two years imprisonment in a 2019 defamation case.




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:

  1. Prabhakaran vs P. Jayarajan(2005)
  • 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.


What law says?

  • Under the legal provision cited, there was no instant disqualification of sitting members of the legislature.
  • But after the Court struck down provision of the Representation of People Act 1951: A sitting legislator is disqualified the moment the court orders conviction and sentence under Section 8(3) of the Representation of People Act.
  • The court said that Article 102(1) does not create any difference between the sitting member and a candidate so far as disqualification is concerned.
    • Parliament has no power to grant exemption to sitting members for three months and thus struck down Section 8(4) as ultra vires the Constitution.


Section 8(3) of RP Act:

  • It deals with disqualification of persons convicted and sentenced to two years imprisonment.
  • A person who is convicted of an offense and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction.
  • It does not say that such a person stands disqualified from the date of conviction.
    • So, there is no ground to conclude that the disqualification takes place the moment the court pronounces a person guilty.
  • Experts on Section 8(3): when a sitting member is convicted and sentenced to imprisonment for two years or more, he shall be disqualified with effect from the date of conviction.
    • Further, it is the President who shall disqualify him under Article 103.
    • The Secretariat of the House to which the member belongs has no authority to declare that a member stands disqualified as soon as he is convicted by a court of law.


Disqualification and sentence quantum as per judiciary:

  • Sachindra Nath Tripathi vs Doodhnath, 1987 and Vikram Anand vs Rakesh Singha, 1994) court had held the view that disqualification remains intact on staying the sentence.
  • Madras High Court in the Jayalalithaa case (2001): It held that “the moment the sentence is suspended, conviction should be deemed to have been suspended or otherwise the framers of the code would have taken care to provide for stay of conviction or suspension of conviction also”.


Rahul Gandhi’s case:

  • Supreme Court stayed the conviction
    • It did not express any opinion on the question of whether a stay of conviction is also necessary or on suspending the disqualification.
  • Disqualification arises only when the sentence is imprisonment for two or more years.
  • The Court observed, if the period of imprisonment was less by one day the disqualification would not have occurred.
    • The disqualification is directly relatable to the quantum of sentence and not conviction.


Issues with the judgment in Lily Thomas

  • It can play havoc with the careers of sitting legislators in the country.
    • Instant disqualification on conviction and sentence will upset their entire legislative career
  • Courts in general have a very dilatory system in dealing with appeals, revisions and such.


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 issue of instant disqualification needs to be addressed urgently as it may affect the career of legislators.
  • The Supreme Court struck down Section 8(4) on the ground that Parliament has no power to provide for a special dispensation for convicted legislators because Article 102(1) does not permit such differentiation between them and the candidates.
    • The Constitution permits it under Article 103: In the case of sitting legislators, the question of disqualification under Article 102(1) will be decided by the President.
    • A suitable amendment can be made in Article 102 to enable Parliament to restore the invalidated Section 8(4).
  • The judgment in Lily Thomas has not resulted in any perceptible qualitative change in the criminal proclivity of politicians.
    • Politicians belonging to the powerful ruling dispensation at a particular time are be able to get a conviction stayed within a few hours, thus saving themselves from instant disqualification.
  • Section 8(4) needs to be restored and protected constitutionally in order to protect the careers of India’s legislators from abrupt convulsions caused by court orders which are given, in the words of the Supreme Court, “without any application of mind”.
  • 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.



To what extent, in your view, the Parliament is able to ensure accountability of the executive in India?(UPSC 2021) (200 WORDS, 10 MARKS)