On 23rd March 2023, Surat District Court held Congress leader and Wayanad MP Rahul Gandhi guilty in a criminal defamation case filed against him over his remarks insulting the Modi surname. During an election rally in 2019, Rahul Gandhi had alleged that everyone with the Modi surname, including Nirav Modi, Lalit Modi and Narendra Modi, are thieves. Following this, Gujarat BJP leader Surat Purnesh Modi had filed a criminal defamation case against the Congress leader, accusing him of defaming the entire Modi community.
The court found Rahul Gandhi guilty of the same, and sentenced him to 2 years in prison, while giving a month to appeal against the verdict. The court also kept the sentence suspended till he files an appeal. Following this judgement, speculations are now being made about Rahul Gandhi’s probable disqualification from membership in the lower house of the parliament. It is therefore important to know the legal position in this case.
What is the case against Rahul Gandhi?
A case was filed against Rahul Gandhi by Gujarat BJP leader Purnesh Modi for making derogatory comments against the Modi community in Gujarat. During an election rally in the run-up to the 2019 elections, Rahul Gandhi mocked an entire community by saying, “Nirav Modi, Lalit Modi, Narendra Modi… how come they all have Modi as a common surname? How come all thieves have Modi as a common surname?”
Bharatiya Janata Party MLA from Surat Purnesh Modi had filed a complaint against the Congress leader for defaming the entire Modi community. Former Congress President Rahul Gandhi was booked under Sections 499 and 500 of the Indian Penal Code, which deal with criminal defamation.
What does the Representation of People Act say?
The Representation of the People Act, of 1951 specifies the qualifications and the disqualifications of Members of Parliament and state legislatures. Section 8 of the Representation of the People Act (RPA), 1951, contains provisions aimed at decriminalizing electoral politics. According to section 8(3) of this law, any MP or MLA convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction.
As per sections 8(1) and 8(2) of the law, a person convicted under specific sections of the IPC will be disqualified, regardless of the quantum of the punishment. However, for convictions for all other crimes apart from those mentioned in 8(1) and 8(2), a person will be disqualified if that person is sentenced to minimum of two years in jail. Section 8(3) says, “A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or sub-section (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]”
However, the lawmakers could avoid immediate disqualification using section 8(4) of this act until 2013. This section of the act earlier allowed convicted MPs, MLAs, and MLCs to continue in their posts, provided they appealed against their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court. Therefore, just an appeal against conviction would work as a stay to the disqualification of the lawmakers.
Many people claiming that Rahul Gandhi will not be disqualified from the membership are also citing this section to support their claim. But while hearing the Lily Thomas versus Union of India case, the Supreme Court in July 2013 struck down section 8(4) of the RPA, 1951 and declared it ultra vires, and held that the disqualification takes place from the date of conviction.
Therefore, as section 8(4) no longer exists, there is no protection from disqualification despite filing an appeal, and therefore, according to section 8(3) of the RPA, Rahul Gandhi could be disqualified from Lom Sabha.
UPA-2 government had tried to overturn the decision, but Rahul Gandhi had trashed it
It is notable that the UPA-II had tried to overturn the 2013 Supreme Court judgement to protect the convicted politicians, but ironically Rahul Gandhi himself had prevented this attempt. After the Supreme Court verdict in 2013, then law minister in the UPA-2 government Kapil Sibal introduced the Representation of the People (Second Amendment and Validation) Bill, 2013 on 30th August 2013. On 24th September 2013, the Congress-led UPA-2 government attempted to bring this amendment to effect through an ordinance.
Supreme Court judgment is very clear.
— Shashank Shekhar Jha (@shashank_ssj) March 23, 2023
If someone is ordered for jail term of two or more years, he loses his membership in parliament/assembly.
Getting bail or appeal pending before higher court make no difference to it.
Example: @laluprasadrjd
So @RahulGandhi is disqualified pic.twitter.com/C1ELVjmgYv
This ordinance was meant to prevent immediate disqualification of politicians sentenced to two years or more in jail. It had reintroduced the provision struck down by the Supreme Court, allowing convicted and sentenced lawmakers to evade disqualification by filing an appeal. The ordinance had said that such lawmakers will be able to take part in proceedings of Parliament or state legislatures, but they shall neither be entitled to vote nor draw a salary or allowances until their appeal is finally decided by the courts.
This is the same ordinance that Rahul Gandhi had famously trashed in front of the media, calling it complete nonsense. “I’ll tell you what my opinion on the ordinance is. It’s complete nonsense. It should be torn up and thrown away. That is my personal opinion,” Rahul Gandhi said in a press conference on Friday, 27th September 2013, causing a massive embarrassment for the Manmohan Singh government.
“I personally think what the government is doing on the ordinance is wrong. It was a political decision, every party does it, and there is a time to stop this nonsense,” he had added.
Following this, on 2nd October 2013, both the ordinance and the bill were withdrawn from the parliament.
Theoretically, had Rahul Gandhi not vetoed his own government and had the ordinance became a law, he could have evade disqualification just by appealing against the Surat Court verdict.
Will Rahul Gandhi be disqualified?
Speaking in legal terms, the Wayanad MP deserves to be disqualified with immediate effect according to the Supreme Court ruling of July 2013. However, after the verdict was delivered by the Surat court, Rahul Gandhi pleaded that his sentence be suspended and bail is granted to him to enable him to move an appeal against his conviction within 30 days.
Accordingly, the court suspended the decision of sentence on his request. Therefore, the legal implication of this suspension of sentence in regard to Rahul Gandhi’s disqualification from the Lok Sabha membership is not clear yet.
