THIRUVANANTHAPURAM: Senior Congress leader Rahul Gandhi's conviction for two years by a Surat court has led to a debate on whether he stands disqualified as an MP. Going by the Representation of People Act 1951, conviction in a criminal case will lead to instant disqualification. However, Article 103 of the Constitution, which says the President shall take a final call on whether a member of Parliament is subject to disqualification, could provide some respite to Gandhi.
Constitutional expert and former secretary general of Lok Sabha PDT Achary says the matter is open to interpretation. Going by the law, if one is convicted and sentenced to imprisonment for two years or more, he will be disqualified immediately. Earlier, under the Representation of People Act, there was a three-month window available to sitting members, during which they can file an appeal. If the appeal is disposed of, the disqualification does not apply.
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In 2013, while considering the Lily Thomas case, the Supreme Court found the three-month window unconstitutional and so struck it off. This means as soon as the sentence is announced, the period of disqualification begins.
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Achary pointed out certain other aspects too. "If Gandhi goes for an appeal, and the appellate court stays the order, it means the disqualification stands suspended. Suppose there's a gap of ten days, will he remain a member or not during those days - that is not clear," he said.
He also noted another Constitutional provision. Under Article 103, the President has to declare whether a sitting member of either House of Parliament is subject to disqualification. As per the Constitutional provision, a decision on disqualification will be taken by the President.
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"If somebody approaches the President asking whether this man stands disqualified or not, then the President has to examine it in consultation with the Election Commission. The ECI will give its opinion and the President has to abide by it," he added. "In this case, automatic disqualification will not take place. But this would not be in consonance with the apex court's ruling. This gives rise to ambiguity," he observed.
Achary further pointed out that the trial court itself has suspended the sentence for a month. The disqualification is directly related to the period of sentence. Therefore logically if the sentence is suspended, the disqualification procedure would automatically stand suspended.
