Rahul Gandhi Disqualified from Parliament: What Remedies Does He Have Now?

Can a higher court's order staying the conviction reverse Gandhi's disqualification from parliament? We answer.

(The latter part of the piece sheds light on the legal remedies available to Rahul Gandhi now that he has been disqualified from parliament. This was orginally published on 23 March with the headline: Rahul Sentenced to 2 Yrs in Jail: Will He Be Barred from Parliament, 2024 Polls? and is being re-published in light of him losing his parliament membership.)

A Gujarat trial court on Thursday, 23 March, sentenced Congress leader Rahul Gandhi to two years in jail in connection with a 2019 criminal defamation case against him.

The case: According to Bar and Bench, Gandhi had allegedly said:

"Nirav Modi, Lalit Modi, Narendra Modi. How come all the thieves have 'Modi' as a common surname?"

In the aftermath of this, Gujarat Bharatiya Janata Party (BJP) MLA Purnesh Modi filed the criminal defamation case against him.

For now, the Congress leader has been granted bail to enable him to move an appeal against his conviction within 30 days.

After the order, he quoted Mahatma Gandhi on Twitter and said, "My religion is based on truth and non-violence. Truth is my God, non-violence the means to get it."

Meanwhile, Supreme Court Lawyer Paras Nath Singh told The Quint that although, he hadn’t seen the order yet, “Gandhi’s conviction in the case seemed strange since convictions in defamation cases are usually rare and a two year sentence is usually not awarded.”

But, as speculation continues, can the Wayanad MP’s conviction in the case lead to him losing his Lok Sabha membership? If yes, when will his disqualification take effect? And will he be able to contest the 2024 general elections? We spoke to legal experts to find out.

Can Rahul Gandhi Be Disqualified from Parliament Due to the Conviction?

Yes.

“An MP can be disqualified from parliament, if he has been granted a sentence of at least two years. And since that is the case with Gandhi, he can be disqualified,” Singh told The Quint.

The law which deals with this (Section 8 (3) of the Representation of the People Act, 1951) says that any legislator “convicted of any offence 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.”

Will He be Disqualified immediately?

Technically, he is supposed to be disqualified from the day of his conviction but experts told The Quint, that the actual disqualification might take a few days.

The order will first go to the speaker’s office along with a complaint seeking his disqualification, the speaker after examining the complaint will then be required to send Gandhi a notice before calling for his disqualification, former Rajasthan High Court Chief Justice Pradeep Nandarajog explained.

Will It Help If He Appeals The Trial Court's Decision?

Merely filing an appeal won’t help.

Until 2013, legislators did have the power to stop immediate disqualification as long as they appealed their conviction/sentence in higher courts within 3 months of the date of judgment by the trial court. This was made possible by Section 8(4) of the RPA.

But a top court verdict from 2013 (Lily Thomas vs. Union of India), changed this. The apex court declared this part of the law unconstitutional and observed that the disqualification can take place on the basis of the conviction, even if an appeal has been filed.

So What Can Help?

If an appellate court i.e. a High Court or the Supreme Court stays his conviction, then Rahul Gandhi's disqualification from parliament can be prevented.

“If Gandhi, in his appeal, has sought a stay on his conviction and the appellate court goes ahead and stays it, he will no longer be disqualified. But it is important to remember that the stay will have to be on his conviction, and not merely his sentence,” Justice Nandrajog explained.

And what after he has been disqualified?

An apex court ruling from Lok Prahari vs Election Commission Of India (2018) says:

"Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect."

While Singh also noted that the disqualification cannot operate once a higher court stays Gandhi's conviction, he added:

"However, it remains unclear if Gandhi will get the same seat back because he will have to challenge the speaker's disqualification notification separately."

Rahul Gandhi can also challenge the disqualification notice either before the High Court or the Supreme Court under 226 or 32 (citing violation of due process or other similar grounds).

In order to challenge the conviction he needs to approach the Surat sessions court first, as that's the immediate court above the court which had convicted him.

Will He Be Allowed To Contest  2024 elections?

Now that Rahul Gandhi has been convicted, he will not be able to contest the upcoming 2024 general elections, unless….

“Just like his disqualification, if an appellate court stays his conviction, he will be able to contest elections too."

Justice Nandarajog

An interim stay on the conviction, before a permanent stay comes in, can also work and allow him to contest elections.

“An interim stay is also sufficient till it gets confirmed. However, In criminal cases, interim stays are slightly tricky because the other side can always immediately challenge it,” Justice Nandarajog added.