Legal experts say that if the appellate court sets aside his conviction and two-year sentence, he will not be disqualified for membership of the Lok Sabha. Rakesh Dwivedi, senior advocate and expert in constitutional law, referred to the 2013 and 2018 judgments of the Supreme Court in Lily Thomas and Lok Prahari cases. He said that in order to avoid disqualification under the Representation of the People Act for MPs/MLAs, suspension of sentence and stay on the decision of conviction is necessary.
“The appellate court can suspend the conviction and sentence and grant him bail,” Dwivedi said. In such a situation, he will not be disqualified. He, however, added, “But politicians should choose their words carefully to avoid getting into legal entanglements.” Dwivedi said that while discussing the possibility of Rahul Gandhi being disqualified as an MP, the legal meaning of the Supreme Court judgments and the relevant provisions of the Representation of the People Act should be kept in mind.
Meanwhile, sources said the Lok Sabha secretariat will take a decision on disqualifying Rahul Gandhi after studying the court order and issue a notification informing about the vacancy in the lower house of Parliament.
A former senior Election Commission official and election law expert believes that Rahul Gandhi will need a stay order even after his conviction. The experts are not inclined to make their identities public. He said that suspension of sentence is different from suspension of conviction.
The expert said, “As per the Lily Thomas judgement, a conviction that carries a sentence of two years or more will automatically disqualify the public representative. Later, in the Lok Prahari case, the Supreme Court held that if a conviction is suspended on appeal, the disqualification will automatically be suspended.’ He said that the Congress leader would have to take a stay order from the higher court even after conviction.
Former Secretary General of Lok Sabha and constitutional expert P. D. T. Achari said that disqualification becomes effective as soon as the punishment is announced. He said Rahul Gandhi was free to appeal and if the appellate court stayed the conviction and sentence, the disqualification would also stand suspended.
According to the Representation of the People Act, not only will the membership go away on a sentence of 2 years or more, but the concerned person will also not be able to contest elections for 6 years after the completion of the sentence or after serving the sentence. He will remain disqualified for 6 years even after serving the sentence.
“(If he is disqualified) the disqualification will be for a period of 8 years,” Achari said. He said that a disqualified person can neither contest elections nor vote during that period. Achari said that disqualification is not caused by conviction alone, but also by punishment. “Therefore, if the sentence is suspended by the trial court itself, it means that their membership will not be affected,” he added. Disqualification will not take effect.
In the Lok Prahari case, a three-judge bench of the Supreme Court in 2018 had said that if the conviction of an MP is suspended by an appellate court, the disqualification would be treated as ‘unconfirmed’. The current Chief Justice of India DY Chandrachud was also on this bench.
According to the 2018 judgement, ‘It is not maintainable that the disqualification due to conviction would continue even after the conviction has been stayed by the appellate court. The power of an appellate court to stay a conviction ensures that a conviction on flimsy or flimsy grounds does not cause serious prejudice. As explained in the Lily Thomas judgment, a stay on conviction relieves a person from the consequences of disqualification under the provisions of sub-provisions 1, 2 and 3 of provision 8 of the Representation of the People Act.’
In the Lily Thomas case of 2013, the Supreme Court in its judgment had struck down provision 8(4) of the Representation of the People Act, which allowed a convicted MP/MLA to continue in office on the ground that an appeal was filed within three months. has been done.
The Congress-led United Progressive Alliance (UPA) government in 2013 tried to overturn the Supreme Court’s decision to circumvent a provision of the Representation of the People Act. But during that time only Rahul Gandhi had opposed this ordinance in the press conference and had torn the copy of it as a protest.
As per the provision of the Representation of the People Act, a person sentenced to two years or more becomes disqualified from the ‘date of conviction’ and remains so for six years after the completion of the sentence. Provision 8 of the Representation of the People Act mentions the offenses under which MPs/MLAs will be disqualified on conviction.