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A strong case to restore Section 8(4) of the RP Act

  • Published
    23rd Aug, 2023


The recent disqualification of Rahul Gandhi, based on his conviction and imprisonment in a defamation case, has brought attention to the legal complexities and implications associated with the disqualification of sitting legislators in India. The focus is on the Supreme Court's decision to strike down Section 8(4) of the Representation of People Act 1951.

Disqualification and Legal Framework:

  • Instant Disqualification and Lily Thomas Case: The disqualification of Rahul Gandhi based on his conviction in a defamation case raised questions about the legal basis of instant disqualification for sitting legislators. The Supreme Court's judgment in Lily Thomas vs Union of India (2013) invalidated Section 8(4) of the Representation of People Act 1951, removing the three-month appeal window before disqualification took effect.
  • Section 8(3) and Disqualification: With the removal of Section 8(4), only Section 8(3) remains, which stipulates that a person convicted and sentenced to imprisonment for at least two years shall be disqualified from the date of conviction. The wording does not explicitly indicate an immediate disqualification upon the court's pronouncement of guilt.
  • Disqualification Authority and Presidential Role: The authority to declare a sitting legislator disqualified might lie with the President of India under Article 103. While the Supreme Court rejected this proposition in Lily Thomas, the Consumer Education & Research ... vs Union Of India & Ors (2009) held that the President's declaration is necessary for disqualification.

Legal Implications and Challenges:

  • Staying of Sentence and Conviction: The question arises whether the stay of only sentence or the stay of conviction itself is required to lift the disqualification. Different High Courts have held differing views on this issue, adding complexity to the interpretation of disqualification.
  • Quantum of Sentence and Disqualification: Disqualification hinges on the imprisonment term being two years or more. The recent case of Rahul Gandhi emphasized this connection, highlighting that the disqualification's trigger is the sentence length, not just the conviction itself.
  • Career Impact and Urgent Attention: Instant disqualification can significantly affect legislators' careers, especially given the slow pace of appeals and legal proceedings. There's a need to address this issue urgently to ensure the stability of legislators' careers and prevent abrupt disqualifications.
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