Date: 25/03/2023

Relevance: GS-2: Salient Features of the Representation of People’s Act.

Key Phrases: Election Commission of India, Representation of People Act 1951, Section 499 and 500 of Indian Penal Code, Article 103 of the Constitution of India, Separation of Power, Electoral Rolls.

Context:

• Recently, a Congress leader and MP, was held guilty and sentenced to two years in jail in a 2019 defamation case over his remarks about the PM of India by a court in Gujarat’s Surat.
  • The conviction came over his remarks about the “Modi” surname.
  • The remarks were made during a rally in Kolar, Karnataka, in the run-up to the 2019 Lok Sabha elections.

Key Highlights:

• The court of Chief Judicial Magistrate held him guilty under Indian Penal Code sections 499 and 500.
• The court also approved Gandhi’s bail on a surety of Rs 15,000 and suspended the sentence for 30 days to allow him to appeal.

Disqualifications of a Lawmaker (MP/MLA):

• Disqualification of a lawmaker is prescribed in three situations.
• First is through the 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.
• 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.
  • The disqualification of an MP convicted for an offense can happen in various instances.
  • If the offense for which he is convicted is listed in Section 8(1) of the Representation of the People Act of 1951.
    • This includes offenses such as-
    • Section 153A- Offense of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or
    • Section 171E- Offense of bribery or
    • Section 171F- Offense of undue influence or personation at an election and a few others.
  • If the lawmaker is convicted for any other offense but is sentenced for a period of two years or more.
    • Section 8(3) of the RPA mandates that an MP can be disqualified if convicted and sentenced to not less than 2 years of imprisonment.
    • 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.
  • Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
  • Section 10 deals with disqualification for failure to lodge an account of election expenses.
  • Section 11 deals with disqualification for corrupt practices.

Way Forward:

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favor 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.
  • Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction.
  • Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending.
  • This is akin to releasing the appellant on bail.
• Another option which is available for the MP is approaching the President.
  • As per Article 103 of the Constitution, the disqualification case of an MP will be decided by the President in consultation with the Election Commission.
  • It is up to the MP to appeal to the President invoking Article 103.

Conclusion:

• The provision of section 8 of RPA 1951 is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections.

Source: The Hindu

Mains Question:

Q. What is Defamation? What do you understand about Civil defamation and Criminal defamation? (250 Words).