The disqualification of Members of Parliament in India is a significant issue that impacts our nation’s political climate. The procedure for removing Members of Parliament (MPs) & Members of Legislative Assemblies (MLAs) from office, is governed by the provisions of the Constitution of India, 1950, as well as some other statutes. Recently, Rahul Gandhi, the Wayanad MP, was convicted for the offence of criminal defamation under Section 499 & 500 of the Indian Penal Code, 1860, for his statement- “I have a question. Why do all thieves have Modi in their names, whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.” A Chief Judicial Magistrate’s Court in Surat, Gujarat, convicted him for the same and sentenced him to undergo 2-year imprisonment, which is the maximum punishment a Court can pass for the offence of criminal defamation. This further led to his disqualification from the membership of Lok Sabha from the date of his conviction, i.e., 23rd March 2023, in terms of the provisions of Article 102(1)(e) of the Constitution of India, 1950, read with Section 8 of the Representation of the People Act, 1951.
In this article, we will now discuss the laws related to the
disqualification of parliamentary members in India, keeping in mind the
aforementioned issue.
Provisions under the Constitution of India, 1950
The Constitution of India,
1950 provides for the provisions of disqualification of MPs & MLAs on
several grounds. Article 102(1) of the Constitution of India lays down the
following grounds for the disqualification of MPs:
- If the MP holds an office of profit under the
government of India or any state government, except for certain specified
offices.
- If the MP is of unsound mind and stands so
declared by a competent court.
- If the MP is an undischarged insolvent.
- If the MP is not a citizen of India or has
voluntarily acquired the citizenship of another country.
- If the MP has been convicted and sentenced to
imprisonment for more than two years.
While Article 102(2)
provides for the disqualification of such Member of Parliament if he is so
disqualified under the Tenth Schedule i.e., under the Anti-Defection Law which
was added by the 52nd Constitutional Amendment Act, 1985. Similarly,
Article 191 of the Constitution of India, 1950 also lays down the grounds for
disqualification of MLAs.
Articles 103 & 192 of the Constitution of India,
1950 provide for who will decide
on questions as to disqualifications of MPs & MLAs, respectively. They
state that if any question arises as to whether a member has become subject to
any of the disqualifications mentioned in Article 102(1) or Article 191(1), the
question shall be referred for the decision of the President/ Governor as the
case maybe and their decision shall be final. Here, before arriving on any such decision the
President/ Governor shall obtain the opinion of the Election Commission and
shall act according to its opinion.
Examining the Scope of Article 103 of the Constitution
of India, 1950
Here
different viewpoints exist regarding the applicability of Article 103, with
some contending that it should only be used in the event of a dispute over the
fact of disqualification and others contending that the reference to the
President on the question of disqualification of a sitting member who has
been convicted for an offence is a constitutional requirement. On this issue, we have the case of Consumer Education
and Research Society v. Union of India[i], where the Supreme Court has
held that if any question arises as to whether a member of either House of
Parliament has become subject to any disqualifications, it has to be
decided only by the President. It is only after such a decision is rendered by
him after consulting the Election Commission that the seat occupied by an
incumbent MP will become vacant.
Provisions under the Representation of the People Act, 1951
The Representation of the People Act, 1951 allows for the
disqualification of MPs & MLAs under Chapter III of the Act. It is also
important to note that the grounds provided for the disqualification of the
members under this Act are in addition to those stated under the Constitution
of India, 1950. The following are the grounds for disqualification listed under
Section 8 of the Act-
- If the
person is found guilty of electoral offences (Section 8(1) & 8(2) provides
for a list of offences such as Sections 153A, 171E, 171F, 376, 376A-D of the
Indian Penal Code, 1860 and a few others.)
- If the
person is convicted of any offence and sentenced to imprisonment for not less
than two years.
- If the
person is found guilty of corrupt practices under Section 8(A) of the
Representation of the People Act, 1951.
- If the
person fails to submit an account of his election expenses.
- If the
person is disqualified under any law made by Parliament.
It is Section 8(3) of the Representation of
the People Act, 1951 that mandates that an MP/MLA can be disqualified if he is
convicted and sentenced to at least two years of imprisonment. Consequent to
Rahul Gandhi’s conviction, a plea was filed before the Supreme Court in the
case of Aabha Muralidharan v. Union of India[ii] challenging the constitutional validity of Section 8(3) of the said
Act. It was contended by the petitioner that, “the current scenario provides a blanket
disqualification, irrespective of the nature, gravity, and seriousness of the
member’s alleged offenses, and provides for an ‘automatic’ ban;
Disqualification is contrary to the principles of natural justice as multiple
convictions are overturned on appeal and in such circumstances, the member’s
valuable time is wasted in the performance of their duties to the public.” The petitioner also alleged that Section 8(3) of the 1951 Act is violative of Sections 8A,
9, 9A, 10, 10A, and 11 of the above Act, as the automatic blanket
disqualification aspect of Section 8(3) is simply based on the quantum of
sentencing and imprisonment which is contradictory to the language of Section
8(1) of the Act which clearly categorizes the offences, keeping in mind the
nature of offences.
Section 8(4) of the
above Act stated that any such disqualification under sub-sections 8(1), (2)
& (3) of the Act takes effect only “after three months have elapsed” from
the date of such conviction or if within such period an appeal or application
for revision is filed in respect of the conviction or the sentence, in which
case it will take effect after such an appeal or application is disposed of by
the Court. However, in the landmark judgment of Lily Thomas v. Union of India,[iii] Section 8(4) of the Representation of
the People Act, 1951 was struck down by the Supreme Court as being unconstitutional.
The striking down of this section is what has led to the immediate
disqualification of Rahul Gandhi by the Lok Sabha Secretariat. However,
the Apex Court in the Lily Thomas case had made it abundantly clear that when
an appellate court stays the conviction or the sentence, the disqualification
will be lifted, and the disqualified MP’s membership will be reinstated.
Lastly, we have Section 11
of the above Act, which provides for the removal or reduction of the period of
disqualification by the Election Commission but only after it records its
reasons for the same. Recently this power was exercised by the Election
Commission, which has reduced the period of disqualification of Sikkim’s Chief
Minister P.S. Tamang, who had served a one-year sentence for corruption.
Other important Judgements
on the Disqualification of Members
- Jaya Bachchan v. Union of India[iv] – In this case, it was held by the Supreme
Court that a person could not simultaneously be a member of Parliament and hold
an office of profit under the government. Thus, the actress-turned-politician
Mrs. Jaya Bachchan was disqualified as a member of Rajya Sabha as she was found
to be holding an office of profit as the chairperson of the Uttar Pradesh Film
Development Council.
- Kultar Singh v. Mukhtiar Singh,[v]– In this case, the Supreme Court had
highlighted the need to have a liberal approach towards the rhetorical,
hyperbolic, or metaphoric words used by politicians in election speeches.
- Ramesh Dalal v. Union of India,[vi] – In this case, the Supreme Court had ruled that a sitting member of the Parliament or any member of the state legislative assembly will be
disqualified from contesting the election if convicted and sentenced to
imprisonment for a period of two years or more by a court of law.
Conclusion
After looking at the brief overview of the above provisions, it can be concluded that the laws relating to the disqualification of Members of the Parliament and State Legislative Assemblies in India are well-defined but there is some discrepancy with regard to their interpretation. The disqualification process is a crucial mechanism to maintain the integrity of the Indian Legislature and to ensure that only qualified and eligible individuals serve as its members. Though there have been many instances where the disqualification process has been delayed, and the members continue to hold their seats despite being disqualified. But at the same time, it is also true that every political leader in India’s multi-party democracy, faces the risk of being easily hauled up for defamation and barred from the electoral process for many years. Thus, there is a need to ensure that the process is fair and transparent and that there is no political interference in the disqualification process. The recent disqualification of Congress leader Mr. Rahul Gandhi has also raised important constitutional and legal issues related to the disqualification of members of the legislature. While the issues relating to the disqualification of Rahul Gandhi will be dealt with by the appellate courts, the legal and constitutional issues raised by this case need to be examined carefully. It is also felt that India needs to decriminalize the act of defamation and treat it only as a civil wrong and learn from the example of countries like the US, UK, Sri Lanka, El Salvador, and Jamaica that have already decriminalized defamation. Hence, by bringing in necessary changes to the existing laws, we can strengthen the disqualification process and ensure that only qualified and eligible individuals serve as representatives of the people.
Shivangi Verma has completed her LL.M from the Faculty of Law, Jamia Millia Islamia University, New Delhi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
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[i]
(2009) 9
SCC 648.
[ii]
(W.P.(C) No. 481/2023).
[iii]
(2013) 7
SCC 653.
[iv]
AIR 2006 SC 2119.
[v]
AIR 1965 SC 669.
[vi]
2004 2 BLJR 988.
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The disqualification of Members of Parliament in India is a significant issue that impacts our nation’s political climate. The procedure for removing Members of Parliament (MPs) & Members of Legislative Assemblies (MLAs) from office, is governed by the provisions of the Constitution of India, 1950, as well as some other statutes. Recently, Rahul Gandhi, the Wayanad MP, was convicted for the offence of criminal defamation under Section 499 & 500 of the Indian Penal Code, 1860, for his statement- “I have a question. Why do all thieves have Modi in their names, whether it is Nirav Modi, Lalit Modi or Narendra Modi? We don’t know how many more such Modis will come out.” A Chief Judicial Magistrate’s Court in Surat, Gujarat, convicted him for the same and sentenced him to undergo 2-year imprisonment, which is the maximum punishment a Court can pass for the offence of criminal defamation. This further led to his disqualification from the membership of Lok Sabha from the date of his conviction, i.e., 23rd March 2023, in terms of the provisions of Article 102(1)(e) of the Constitution of India, 1950, read with Section 8 of the Representation of the People Act, 1951.
In this article, we will now discuss the laws related to the disqualification of parliamentary members in India, keeping in mind the aforementioned issue.
Provisions under the Constitution of India, 1950
The Constitution of India, 1950 provides for the provisions of disqualification of MPs & MLAs on several grounds. Article 102(1) of the Constitution of India lays down the following grounds for the disqualification of MPs:
While Article 102(2) provides for the disqualification of such Member of Parliament if he is so disqualified under the Tenth Schedule i.e., under the Anti-Defection Law which was added by the 52nd Constitutional Amendment Act, 1985. Similarly, Article 191 of the Constitution of India, 1950 also lays down the grounds for disqualification of MLAs.
Articles 103 & 192 of the Constitution of India, 1950 provide for who will decide on questions as to disqualifications of MPs & MLAs, respectively. They state that if any question arises as to whether a member has become subject to any of the disqualifications mentioned in Article 102(1) or Article 191(1), the question shall be referred for the decision of the President/ Governor as the case maybe and their decision shall be final. Here, before arriving on any such decision the President/ Governor shall obtain the opinion of the Election Commission and shall act according to its opinion.
Examining the Scope of Article 103 of the Constitution of India, 1950
Here different viewpoints exist regarding the applicability of Article 103, with some contending that it should only be used in the event of a dispute over the fact of disqualification and others contending that the reference to the President on the question of disqualification of a sitting member who has been convicted for an offence is a constitutional requirement. On this issue, we have the case of Consumer Education and Research Society v. Union of India[i], where the Supreme Court has held that if any question arises as to whether a member of either House of Parliament has become subject to any disqualifications, it has to be decided only by the President. It is only after such a decision is rendered by him after consulting the Election Commission that the seat occupied by an incumbent MP will become vacant.
Provisions under the Representation of the People Act, 1951
The Representation of the People Act, 1951 allows for the disqualification of MPs & MLAs under Chapter III of the Act. It is also important to note that the grounds provided for the disqualification of the members under this Act are in addition to those stated under the Constitution of India, 1950. The following are the grounds for disqualification listed under Section 8 of the Act-
It is Section 8(3) of the Representation of the People Act, 1951 that mandates that an MP/MLA can be disqualified if he is convicted and sentenced to at least two years of imprisonment. Consequent to Rahul Gandhi’s conviction, a plea was filed before the Supreme Court in the case of Aabha Muralidharan v. Union of India[ii] challenging the constitutional validity of Section 8(3) of the said Act. It was contended by the petitioner that, “the current scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the member’s alleged offenses, and provides for an ‘automatic’ ban; Disqualification is contrary to the principles of natural justice as multiple convictions are overturned on appeal and in such circumstances, the member’s valuable time is wasted in the performance of their duties to the public.” The petitioner also alleged that Section 8(3) of the 1951 Act is violative of Sections 8A, 9, 9A, 10, 10A, and 11 of the above Act, as the automatic blanket disqualification aspect of Section 8(3) is simply based on the quantum of sentencing and imprisonment which is contradictory to the language of Section 8(1) of the Act which clearly categorizes the offences, keeping in mind the nature of offences.
Section 8(4) of the above Act stated that any such disqualification under sub-sections 8(1), (2) & (3) of the Act takes effect only “after three months have elapsed” from the date of such conviction or if within such period an appeal or application for revision is filed in respect of the conviction or the sentence, in which case it will take effect after such an appeal or application is disposed of by the Court. However, in the landmark judgment of Lily Thomas v. Union of India,[iii] Section 8(4) of the Representation of the People Act, 1951 was struck down by the Supreme Court as being unconstitutional. The striking down of this section is what has led to the immediate disqualification of Rahul Gandhi by the Lok Sabha Secretariat. However, the Apex Court in the Lily Thomas case had made it abundantly clear that when an appellate court stays the conviction or the sentence, the disqualification will be lifted, and the disqualified MP’s membership will be reinstated.
Lastly, we have Section 11 of the above Act, which provides for the removal or reduction of the period of disqualification by the Election Commission but only after it records its reasons for the same. Recently this power was exercised by the Election Commission, which has reduced the period of disqualification of Sikkim’s Chief Minister P.S. Tamang, who had served a one-year sentence for corruption.
Other important Judgements on the Disqualification of Members
Conclusion
After looking at the brief overview of the above provisions, it can be concluded that the laws relating to the disqualification of Members of the Parliament and State Legislative Assemblies in India are well-defined but there is some discrepancy with regard to their interpretation. The disqualification process is a crucial mechanism to maintain the integrity of the Indian Legislature and to ensure that only qualified and eligible individuals serve as its members. Though there have been many instances where the disqualification process has been delayed, and the members continue to hold their seats despite being disqualified. But at the same time, it is also true that every political leader in India’s multi-party democracy, faces the risk of being easily hauled up for defamation and barred from the electoral process for many years. Thus, there is a need to ensure that the process is fair and transparent and that there is no political interference in the disqualification process. The recent disqualification of Congress leader Mr. Rahul Gandhi has also raised important constitutional and legal issues related to the disqualification of members of the legislature. While the issues relating to the disqualification of Rahul Gandhi will be dealt with by the appellate courts, the legal and constitutional issues raised by this case need to be examined carefully. It is also felt that India needs to decriminalize the act of defamation and treat it only as a civil wrong and learn from the example of countries like the US, UK, Sri Lanka, El Salvador, and Jamaica that have already decriminalized defamation. Hence, by bringing in necessary changes to the existing laws, we can strengthen the disqualification process and ensure that only qualified and eligible individuals serve as representatives of the people.
Shivangi Verma has completed her LL.M from the Faculty of Law, Jamia Millia Islamia University, New Delhi.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
You can access Jurisedge Recent Legal News Archives and our Jurisedge Blog for legal updates from around the globe.
For daily legal updates, follow our official Jurisedge channel on Instagram and LinkedIn and join our Telegram channel
Subscribe to our Law Exams Capsule India’s One and only Comprehensive Law Exam Preparation Journal
Readers may submit his/her blog for publication. Click Here to submit your Manuscript.
[i] (2009) 9 SCC 648.
[ii] (W.P.(C) No. 481/2023).
[iii] (2013) 7 SCC 653.
[iv] AIR 2006 SC 2119.
[v] AIR 1965 SC 669.
[vi] 2004 2 BLJR 988.
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