Wayanad MP Rahul Gandhi’s membership of Parliament has been cancelled following his conviction and sentencing by a local court in Surat.

Disqualification of Member of Parliament,Disqualification of Member of Parliament

How can an MP be disqualified?

Disqualification of a legislators is prescribed in following 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 holding an office of profit (If an MP holds an office of profit under the government of India or any state government, they can be disqualified. This is to prevent any conflict of interest between the responsibilities of an MP and their other government roles. If you look at the Parliament (Prevention of disqualification) act 1959, it is this particular law that prevents any member of parliament from holding any office of profit. This act finds its power from Article 102 (1)(a) of the Indian constitution), being of unsound mind or insolvent or not having valid citizenship.

Disqualification due to absence

An MP can lose their seat if they remain absent from the Parliament for more than 60 days without permission. This is called Disqualification due to absence.

While there is no specific rule regarding the number of days an MP should be present, but then, if an MP is absent from the House without leave or any prior permission for a period of sixty days or more, their seat can be declared vacant by the Speaker of the Lok Sabha or the Chairman (VP of India) of the Rajya Sabha. Article 101 of the Indian constitution has the provision to disqualify an MP on the ground of being absent for a period of 60 days or more without any prior permission.

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.

The third prescription is under The Representation of The People Act (RPA), 1951.

This law provides for disqualification for conviction in criminal cases.

Rahul Gandhi case

The judges used Section 500 of the Indian Penal Code (IPC) which prescribes for defamation a simple imprisonment for a “term which may extend to two years, or with fine, or with both.”

The court also allowed his bail on a surety of Rs 15,000 and suspended the sentence for 30 days for further appeal.

What does RPA Law say about disqualification?

Section 8 of the RPA deals with disqualification for conviction of offences. The provision is aimed at “preventing criminalisation of politics”.

Disqualification is triggered for conviction under certain offences listed in Section 8(1).

Section 8(1) includes certain specific offences such as promoting enmity between two groups, bribery and undue influence or personation at an election.

Defamation does not fall under this list.

Section 8(3) of the RPA states: “A person convicted of any offense 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.”as well as from voting in any election from the day of conviction, for a period of six years from the date of release from prison.

As per Section 8(4) of the RPA the disqualification takes effect only after three months have elapsed from the date of conviction.

Within that period, the convicted lawmaker could have filed an appeal against the sentence before a higher court.

However, this provision was struck down as “unconstitutional” in the SC’s landmark 2013 ruling in ‘Lily Thomas v Union of India’.

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.

Is the authority of the Speaker final in this regard?

Note: In 2018, in ‘Lok Pahari v Union of India’ case, the SC clarified that the disqualification will not operate from the date of the stay of conviction by the appellate court.