An MP’s Disqualification After Conviction

Context

• A court in Gujarat’s Surat recently found a Congress leader and MP guilty of defamation and sentenced him to two years in prison for his comments about the Prime Minister of India.
• The conviction was brought on by his comments regarding the surname “Modi”.
• The comments were made prior to the 2019 Lok Sabha elections at a rally in Kolar, Karnataka.

Relevance

GS Paper-2: Salient Features of the Representation of People’s Act

Mains Question

Defamation: What is it? What is the difference between criminal and civil defamation, in your opinion? (250 Words).

Highlights

The court granted Gandhi’s bail with a surety of Rs 15,000 and suspended the sentence for 30 days to give him time to file an appeal after finding Gandhi guilty under sections 499 and 500 of the Indian Penal Code.

Legislative (MP/MLA) disqualifications

• A legislator may be disqualified in three circumstances.
  • The first route is through Articles 102(1) and 191(1), which, respectively, disqualify members of the Legislative Assembly and Parliament.
• The grounds in this case include holding a position of profit, being mentally ill, bankrupt, or lacking legal citizenship.
  • The Tenth Schedule of the Constitution contains the second provision for disqualification, which allows for the exclusion of members for defection.
  • The Representation of the People Act (RPA), 1951, governs the third prescription.
    • An MP who has been found guilty of a crime may be removed from office in a number of circumstances.
    • If the crime for which he was found guilty is one that is mentioned in Section 8(1) of the 1951 Representation of the People Act.
• This includes transgressions like those listed in Section 153A, which is an offence for encouraging hostility between various groups based on factors like race, religion, place of birth, residence, language, etc.
• Section 171E- Bribery, Section 171F- Undue Influence or Personation at an Election, and a few other similar provisions.
  • If the lawmaker is found guilty of another crime but receives a sentence of two years or longer.
• An MP may be disqualified under Section 8(3) of the RPA if found guilty and given a sentence of at least 2 years in prison.
• According to Section 8(4) of the RPA, lawmakers had three months from the date of their conviction to file an appeal against the sentence with the High Court before the disqualification went into effect.
• However, the Supreme Court invalidated Section 8(4) of the RPA as unconstitutional in its historic 2013 decision in “Lily Thomas v. Union of India.”
  • Section 9 addresses exclusion from termination for corruption or disloyalty, as well as for engaging in government contracts while a lawmaker.
  • Disqualification for failure to file an account of election expenses is addressed in Section 10.
  • Section 11 addresses disqualification due to unethical behaviour.

Defamation

• About: o Defamation is a crime that deals with reputational harm to a person.
  • Defamation can be either a civil wrong or a criminal offence in India, depending on what they’re trying to accomplish.
• Section 499 of the IPC: It specifies what constitutes criminal defamation and specifies the punishment for it.
  • It describes in detail how libel may be committed by means of spoken or written words, signs, or other visible representations.
• These can be things that are written or said about someone with the intent to harm their reputation or with knowledge or reason to believe that the imputation will do so.
• Section 500 of the IPC: It mandates simple imprisonment for a “term that may extend to two years, with fine, or with both” for defamation.

WaY Forward

• The disqualification may be overturned if a higher court orders a stay of the conviction or rules in the convicted lawmaker’s favour on the appeal.
  • The Supreme Court made it clear in a 2018 ruling in Lok Prahari v. Union of India that the disqualification “will not operate from the date of the stay of conviction by the appellate court.
  • It is important to note that the stay must also be a stay of conviction under Section 389 of the Code of Criminal Procedure (CrPC).
  • An Appellate Court may suspend a convict’s sentence while the appeal is pending in accordance with Section 389 of the Criminal Procedure Code.
  • This is equivalent to posting bail for the appellant.
    • The MP can also approach the President as a different option.
  • In accordance with Article 103 of the Constitution, the President will decide whether to disqualify a member of the legislature after consulting with the Election Commission.
  • The MP must use Article 103 to submit an appeal to the President.

Conclusion

Section 8 of the RPA 1951 prohibits “criminalizing politics” and prohibits “tainted” lawmakers from running in elections.