The two facets of Rahul Gandhi‘s disqualification

© Provided by The Indian Express Rahul Gandhi disqualified Congress leader Rahul Gandhi. (PTI)

Written by Kailash Gupta

It is curious to note that the Congress is concentrating on the political side rather than the legal one in the case of Rahul Gandhi's disqualification from the Parliament following his conviction by a Surat court in a defamation case. Congress leaders have taken to the streets in large numbers instead of going to the higher court to seek relief against the order of the CJM court.

Talking of the legal aspect, many Congress leaders have questioned the action of the Lok Sabha secretariat on the ground that the sentence had been suspended by a month by the trial court itself. The alleged undue haste in sending the notice of disqualification to Rahul Gandhi has also come under severe criticism by the Congress leaders. Their legal experts have argued that since the sole basis of disqualification is the sentencing for two years jail term, hence suspension of the sentence has to be construed to mean an automatic suspension of the disqualification. Even before the Surat court pronounced its verdict on March 23, several legal experts had expressed similar opinions and held that there were indeed very dim chances of Rahul losing his parliamentary seat in the likely event of his conviction and sentencing.

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However, in truth, such experts need to read the relevant legal provisions afresh. It is expressly stated in the sub section 3 of section 8 of the Representation of the People Act, 1951 that "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". From a bare reading of the relevant provision, it is obvious that disqualification results directly from the conviction. Actual imprisonment is not a necessary condition for disqualification. Further, the intent of the lawmakers who enacted the RP Act, undoubtedly was to effect disqualification immediately upon conviction on a criminal charge involving sentence of imprisonment or fine as specified in the section 8 of the Act. Their intent is evident from the heading of this section which reads,“Disqualification on conviction for certain offences”.

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It is interesting to recall the manner in which Rahul Gandhi publicly tore down in September 2013 a copy of the ordinance brought out by the then government headed by Dr. Manmohan Singh to circumvent the SC judgment for the purpose of saving subsection 8(4) of the RP Act. At that time, Rahul Gandhi was an “idealist” young leader eager to project himself as the cleanest politician, much like his late father, Rajiv Gandhi and committed to the cause of purging politics of criminal elements in India. Terming the ordinance as an attempt to block the way to de-criminalization of politics, which had been cleared by the Supreme Court by their judgment in the Lily Thomas case, Rahul had expressed his anger and disgust in no uncertain terms and blasted the impugned ordinance. That the ordinance had been brought out by the government of his own party made no dent on his resolve to ensure the withdrawal of the ordinance. It is indeed an irony that the very same Rahul Gandhi should fall prey to the absence of the very same instrument of law he had opposed so vehemently about a decade back. He could not have imagined this development in his wildest dreams while tearing down the impugned ordinance in a press conference held in 2013.

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This is not the first time that a legislator has lost his seat upon conviction on a criminal charge. Rasheed Masood was the first such lawmaker to lose his seat in the Parliament in October 2013. Since then, more than 20 other legislators have been disqualified including Vikram Saini, Ashok Chandel, Kuldeep Senger, all of the BJP and Azam Khan of the Samajwadi Party. To be fair to Rahul Gandhi, it must be conceded that while all these legislators were disqualified on conviction of such heinous crimes as rape of minor and murder, he had been held guilty of mere criminal defamation, that too for certain words uttered by him during an election speech. However, as pointed out by eminent lawyer Mahesh Jethmalani, the prevailing law, so long as the conditions of conviction and sentencing specified in section 8 of the RP Act are fulfilled, makes no distinction on the basis of the nature of crime. Therefore, from a legal point of view, there is no merit in the protests of Congressmen on this count. However, it is high time to make suitable amendments in the law relating to disqualification of members of the parliament and the state legislative assemblies so as to provide for different treatment to the law makers on the basis of the nature of crime they are convicted of. It is highly unreasonable to treat someone guilty of defamation by making loose talks at par with those found guilty of rape and murder.

However, talking of the political side of the matter, it is obvious that the high moral ground being claimed by Rahul Gandhi and the Congress does not rightfully belong to them in the present political context prevailing in the country. His claim of fighting for the democracy in India does not convince anyone in the country in view of the past record of the Congress governments under the leadership of his grandmother who suspended even the fundamental rights of Indian citizens including the right to life guaranteed under Article 21 of the Constitution. Indira Gandhi holds a record in dismissing state governments at the drop of a hat including that in the most sensitive state of Jammu and Kashmir. The murder of democracy charge was more aptly applicable when the then Andhra Pradesh Chief Minister NT Rama Rao was dismissed in 1984—and was replaced by his finance minister N. Bhaskar Rao-- even when Rama Rao was undergoing treatment in the US.

Similarly, the allegation of arrogance-- Rahul Gandhi is so fond of levelling against the PM-- does not hold much water given the way Gandhi stubbornly turned down all suggestions to apologise in the courtroom in the case for his defamatory words. His claims to be walking in the footsteps of Mahatma Gandhi is ridiculous. It is expected of the leaders of men to be humble enough to apologise when they are obviously in the wrong, not to try to turn their follies into virtue with a view to derive political mileage.

© Provided by The Indian Express Kailash Gupta Kailash Gupta, former director, defence estates, Western Command (Chandigarh)

- Kailash Gupta is former director, defence estates, Western Command (Chandigarh)