Central idea: A politician has been sentenced to two years in jail by a Surat court in a 2019 defamation case filed against him for his remarks about the surname of a community. This conviction could lead to his disqualification.

Disqualification of a Lawmaker

Disqualification of a lawmaker is prescribed in three situations-

1. Constitutional provisions: 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, being of unsound mind or insolvent or not having valid citizenship.
2. Defection: It is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
3. Representation of The People Act (RPA), 1951: It provides for disqualification for conviction in criminal cases.

Disqualification under RPA, 1951

• It provides for disqualification for conviction in criminal cases.
• Section 8 of the RPA deals with disqualification for conviction of offences.
• The provision is aimed at “preventing the criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.

Section 8(3) states: “A person 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.”

Appeal and stay of disqualification

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker.
• In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”
• This means that Gandhi’s first appeal would be before the Surat Sessions Court and then before the Gujarat High Court.

Changes in the Law

• Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction.
• Within that period, lawmakers could file an appeal against the sentence before the High Court.
• However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.

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