Need to Revise India’s Disqualification Law

Date:

The law of disqualification is being widely misused with selective approach by the government in power

Prof Ishrat Husain

THE Representation of People Act under Section 8 provides that if a legislator is convicted of certain offences, he/she shall stand disqualified from being a member of the legislative body. However, sub-section (4) of Section 8 of the Act provides a three-month period before the disqualification takes effect for sitting MPs or MLAs, allowing them to appeal the conviction. Section 8(4) of the Representation of People Act was introduced by Parliament to account for the high frequency of acquittals in higher courts. This provision, similar to the principles applied in service law, ensures that an employee cannot be terminated until their appeal is decided.

The Supreme Court in the Lily Thomas case, which played a key role in Rahul Gandhi’s disqualification case, in 2013 declared Section 8(4) of the Representation of People Act as unconstitutional. The judgment stated that if a sitting MP/MLA is convicted of an offence, he/she would be disqualified immediately, and the seat concerned would be declared vacant. This was a departure from the previous practice, where convicted members retained their seats until exhausting all judicial remedies.  However, whether the implementation aligns with the spirit of the judgment remains a question. In the Lok Prahari v. Union of India (2018) case, the Supreme Court clarified that a disqualification triggered by a conviction would be reversed if the conviction is stayed by a court. But this discretion lies with the courts.

Who was Lily Thomas?

Lily Thomas was an activist lawyer who filed numerous public interest litigations (PILs) advocating for women’s rights. She passed away in 2019. In 2013, at the age of 85, she won a landmark verdict from the Supreme Court that struck down a provision in the Representation of the People Act (1951). Her successful legal battle played a pivotal role in shaping the disqualification criteria for individuals with criminal convictions in India.

Rahul Gandhi, then Vice-President of the Congress, criticised the ordinance that could have potentially saved him from disqualification as an MP in the present day. He publicly called it “nonsense” and “should be torn up and thrown away.” Within 5 days, both the ordinance and the bill were withdrawn. Now after 10 years, his own conviction in a ‘Modi surname’ case by a Surat court seems to have come back to haunt him.  There cannot be a better example of self-harm than this. However, the Supreme Court stayed Rahul Gandhi’s conviction on August 4, 2023, allowing him to contest the next election and be reinstated as an MP for Wayanad.

It is worth mentioning that Rasheed Masood was the first MP to lose his membership of parliament under the new law. Eighteen legislators have been affected by this new law till date.  

Misapplication of Present Law

The criminalisation of politics poses a significant challenge to the fairness of the electoral process in a democratic setup. The law laid down in the Lily Thomas case was intended to decriminalise politics but has been misused in a biased and unfair manner. The selective application of the law by the ruling party against political opponents raises concerns. The initiation of criminal proceedings is as crucial as conviction in a case. Offences committed under Section 6 of the Places of Worship Act, 1991, are mentioned in Section 8(1)(j) of the Representation of People Act, 1955, but often no criminal proceedings are initiated due to political considerations. For example, Uttar Pradesh Chief Minister Yogi Adityanath recently stated that Gyanwapi mosque is a temple but nobody took cognizance of that. As a matter of fact, it is an offence under Section 8(1)(j) of the Representation of People Act, 1955 unless it is declared unconstitutional by the Supreme Court. This selective approach undermines the equal application of the law.

On the other hand, Samajwadi Party leader Azam Khan was convicted and disqualified as an MLA from the UP assembly but was later acquitted in an appeal. However, as the bye-election had already taken place, he could not regain his membership. The present law fails to consider the principle of innocence until proven guilty in appeals, violating the fundamental rights of acquitted MPs/MLAs. Moreover, the logic behind the two-year disqualification period is unclear and arbitrary. The law’s existence has led to local courts imposing two-year sentences to ensure disqualification. This is a violation of the right to equality under Article 14 and the right to life and personal liberty under Article 21 of the Constitution.

The fundamental principle of the law of appeal in the court is, if an accused is absolved in appeal, he shall be considered as innocent. But it is not true in case of disqualifications. The offences listed in Lily Thomas, such as kidnapping, rape, and hate speech, should not be equated with election speeches. It should be reviewed. Firstly, the Supreme Court failed to provide a remedy in these cases for a person who was acquitted in appeal. Secondly, the logic for imposing a two-year punishment for disqualification needs to be examined. The result of this law is that MPs and MLAs who are exonerated in appeal have their fundamental rights drastically violated. As citizens of India individuals charged with a crime deserve protection under Article 14 (right to equality) and Article 21 (right to life and personal liberty) of the Indian Constitution.

In Lily Thomas’ appeal case, the appellant was accused of offences under section 366 (kidnapping, abducting or inducing a woman to compel her marriage) and 376 (rape) under the Indian Penal Code. How can such serious crimes be related and equated with election speeches? While derogatory language in election speeches is unjustifiable, it cannot be equated with heinous crimes. The misapplication of the law has become a tool for political rivalry, and the involvement of the government raises concerns about impartiality. If this were the case, every legislator would be subject to disqualification. The law laid down in the Lily Thomas case is currently being widely misused.  

Importantly, the offenses under Section 153A of the Representation of People Act are a matter of interpretation and cannot be equated with offenses against the human body and property.

However, a technical issue with the present law is that if the appellate court stays the conviction, the membership of the disqualified MP/MLA will not be restored if the bye-election has already been conducted, as happened in the case of Mohd Azam Khan.

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Prof Ishrat Husain is associated with Department of Law, Aligarh Muslim University, Aligarh

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