Disqualification of a lawmaker

In Context

• Congress leader Rahul Gandhi has recently been disqualified from the Lok Sabha, a day after he was convicted in a defamation case by a Surat court.

Disqualification of a lawmaker

• It is prescribed in three situations. 
  • First is through Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively.  
    • The grounds here include the following 
      • If he holds any office of profit under the Union or state government (except that of a minister or any other office exempted by Parliament).
      • If he is of unsound mind and stands so declared by a court.
      • If he is an undischarged insolvent.
      • If he is not a citizen of India or has voluntarily acquired the citizenship of a foreign state or is under any acknowledgement of allegiance to a foreign state
  • The second prescription of disqualification is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
    • A member incurs disqualification under the defection law:
      • If he voluntarily gives up the membership of the political party on whose ticket he is elected to the House;
      • If he votes or abstains from voting in the House contrary to any direction given by his political party;
      • If any independently elected member joins any political party; and
      • If any nominated member joins any political party after the expiry of six months.
  • The third prescription is under The Representation of The People Act (RPA), 1951. This law provides for disqualification for conviction in criminal cases.

Provisions in the Representation of The People Act (RPA) dealing with disqualification

• There are several provisions that deal with disqualification under the RPA. 
  • Section 9 
    • It deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker. 
  • Section 10 
    • It deals with disqualification for failure to lodge an account of election expenses. 
  • Section 11 
    • It deals with disqualification for corrupt practices.
  • Section 8 
    • It deals with disqualification for conviction of offences. 
      • The provision is aimed at “preventing the criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.
    • Section 8(1) of RPA includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
    • Section 8(2) also lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
    • Section 8(3) states “A person convicted of any offence and sentenced to imprisonment for not less than two years 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.”
      • Congress leader’s membership of Parliament has been cancelled following his conviction and sentencing by a local court in a 2019 defamation case.
      • Thus, the disqualification is triggered by the conviction itself, and not by the Lok Sabha notification. 

Deciding authority

• On the question of whether a member is subject to any of the disqualifications, the President’s decision is final. 
• However, he should obtain the opinion of the election commission and act accordingly.
• In case of disqualification under the tenth schedule:
  • The question of disqualification under the Tenth Schedule is decided by the Chairman in the case of Rajya Sabha and the Speaker in the case of Lok Sabha (and not by the president of India). 
  • In 1992, the Supreme Court ruled that the decision of the Chairman/Speaker in this regard is subject to judicial review.

Reversal of disqualification, related judgements & way ahead

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
• Lok Prahari v Union of India:
  • In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”
• Section 8(4):
  • It states that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, MP can file an appeal against the sentence before the High Court.
  • Lily Thomas v Union of India:
    • While the law had initially provided for a pause on disqualification if an appeal against the conviction was filed before a higher court, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
    • This means that simply filing an appeal will not be enough but the convicted MP must secure a specific order of stay against the conviction of the trial court.