Disqualification under Representation of the People Act, 1951

(MAINSgs2:Parliament and State legislatures—structure, functioning, conduct of business, powers & privileges and issues arising out of these.)

Context:

• Recently,  the Chief Judicial Magistrate’s court of  Surat convicted Rahul Gandhi in a criminal defamation case over his Modi surname remark which led to the Lok Sabha Secretariat issued a notification to disqualify Mr. Gandhi as the Lok Sabha member from Wayanad.

Disqualification under RP Act:

• Section 8 of the Representation of the People Act, 1951 (RP Act) specifies the various offences, conviction for which entail the disqualification of a member of the legislature. 
• Clause (3) of this section says that a person convicted of any offence 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. 
• However, 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 the Constitution by a two judge Bench of the Supreme Court on the ground that Parliament has no power to enact such an exemption for sitting members of the legislature (Lily Thomas vs Union of India, 2013). 
• The effect of this judgment is that there is an instant disqualification of a sitting legislator as soon as he is convicted. 
• However, the Court made it clear that in the event of the appellate Court staying the conviction and sentence, the disqualification will be lifted and the membership will be restored to him.
• In the case of a disqualified MLA, the notice is issued by the Vidhan Sabha concerned, for example, in the case of Samajwadi Party MLA Azam Khan, the Uttar Pradesh Legislative Assembly Secretariat issued the notice of disqualification in October last year.

Article 102(1)(e) of the Constitution:

• Article 102 of the Constitution deals with grounds for disqualification of a parliamentarian.
• Sub-clause (e) of Article 102(1) says an MP will lose his membership of the House “if he is so disqualified by or under any law made by Parliament”. 
• The law in this case is the RP Act and Section 8 of the RP Act deals with disqualification of a lawmaker for conviction in certain offences. 
• The provision is aimed at “preventing criminalisation of politics and keeping ‘tainted’ lawmakers from contesting elections.

Needs a review:

• The law on criminal defamation needs an urgent review as many countries such as the United Kingdom and the United States have scrapped it. 
• It is indeed a surrealistic situation where senior political leaders get jailed for making humorous or off the cuff remarks in election speeches. 
• In 1965, the Supreme Court in Kultar Singh vs Mukhtiar Singh (1965) 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. 
• The Court said, “the atmosphere is usually surcharged with partisan feelings and emotions and the use of Hyperboles or exaggerated language or the adoption of metaphors and extravagance or expression in attacking one another are all part of the game. 
• So 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”.

Conclusion:

• 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. 
• People of mature democracies must be able to enjoy humour without any fear.