A Strong Case to Restore Section 8(4) of The RP Act

Context: 

Rahul Gandhi of the Congress party was disqualified as a member of the legislature due to his conviction and sentencing to two years of imprisonment in a 2019 defamation case. 

• This disqualification was immediate and not subject to a waiting period for appeal.

More on News:

• Section 8(4) of the Representation of People Act 1951: It allowed a three-month period during which disqualification would not take effect if an appeal was filed. 
• Supreme Court’s Judgment in Lily Thomas vs. Union of India (2013): The judgment invalidated Section 8(4) of the Representation of People Act 1951. The court ruled that disqualification should be instant upon a legislator’s conviction and sentencing under Section 8(3) of the Act.
  • Article 102(1) of the Constitution: The SC emphasized that Article 102(1) of the Constitution of India does not differentiate between sitting members and candidates regarding disqualification. 

Disqualification under Section 8(3) of the Representation of People Act 1951:

• Section 8(3) of the Representation of People Act 1951: This section specifies that a person convicted and sentenced to imprisonment for not less than two years shall be disqualified. 
  • However, it doesn’t explicitly state that the disqualification takes effect immediately upon the court’s pronouncement of guilt.
• Role of the President: It is argued that the authority responsible for declaring a sitting legislator disqualified could be the President of India, exercising this power under Article 103 of the Constitution. 
• Consumer Education & Research vs. Union Of India & Ors (2009): In this case, a three-judge Bench held that the President’s declaration, under Article 103, is necessary to confirm disqualification.
• Role of the House Secretariat: The Secretariat of the House to which the member belongs has no recognisable authority to declare that a member stands disqualified as soon as he is convicted by a court of law.

Disqualification and Sentence Duration:

• Legal Debate on Stay Effects: A critical legal issue in Mr. Gandhi’s disqualification case was whether staying the sentence alone could lift disqualification or if a stay of the conviction was also required.
• High Courts’ Divergent Views: 
  • Allahabad High Court & Himachal High Court: In the 1980s and 1990s, High Courts held that disqualification persisted even with a stayed sentence.
  • Madras High Court: It took a different view in the Jayalalithaa case (2001). It held that “the moment the sentence is suspended[,] conviction should be deemed to have been suspended.
• Supreme Court’s Position: It stayed the conviction of Rahul Gandhi but did not clarify whether a stay of the conviction itself was necessary to suspend disqualification.

Challenges for Legislators

• Impact on Legislative Careers
  • Immediate Disqualification: The judgment in Lily Thomas can be detrimental to sitting legislators. Immediate disqualification upon conviction and sentence can disrupt their legislative careers.
  • Slow Legal Process: Courts often have a slow process for appeals and revisions, making it difficult for legislators to challenge disqualification swiftly.

Need for Urgent Address:

• Call for Reevaluation: The issue of instant disqualification demands prompt consideration as it could significantly impact legislators’ careers.
• Potential Amendment: Article 103 permits differentiation for sitting legislators. An amendment to Article 102 may be considered to restore the invalidated Section 8(4) and provide a more balanced approach to disqualification.

News Source: The Hindu