We need to review defamation, raise the bar for disqualificationPremium Story
The Indian Express | 2 days ago | 27-03-2023 | 12:45 pm
The Indian Express
2 days ago | 27-03-2023 | 12:45 pm
With Rahul Gandhi’s disqualification from Parliament, many questions pertaining both to its legal and political ramifications have been doing the rounds. I intend here to both clarify many questions being raised and also raise new and significant ones which are consequential not only to the present case but more broadly, to the fate of our parliamentary democracy.On March 23, the chief judicial magistrate, Surat, sentenced Congress MP Rahul Gandhi to two years imprisonment and also imposed a fine of Rs 15,000 after convicting him for the offence of criminal defamation under Sections 499 and 500 of the Indian Penal Code.The court suspended his sentence for 30 days and granted him bail to enable him to file an appeal in a higher court against its verdict. Following this, the very next day, the Lok Sabha Secretariat issued Rahul Gandhi’s disqualification notification.Congress workers rushed to the streets in many parts of the country, instead of his lawyers rushing to the court in appeal. The solution only lies in the courts. The disqualification can only be reversed if a higher court grants a stay on the conviction or reverses the conviction. After the Lily Thomas judgment of the Supreme Court in 2013, disqualification comes into immediate effect.On October 1, 2013, Rasheed Masood became the first MP to lose his membership of Parliament upon his conviction in a criminal case. After that, over 20 other legislators, including Lalu Prasad, have been disqualified under the same provision.Did the Lok Sabha secretariat act in undue haste as alleged by some? A former Attorney General pointed out that the secretariat has no option. He clarified that as soon as the judge signs the conviction order, disqualification kicks in. He, however, did not mention a violation of this principle that has happened in a similar case from Lakshadweep.The Lakshadweep MP Mohammed Faisal was convicted in an attempt-to-murder case and was awarded a 10-year sentence. Two days later, the Lok Sabha Secretariat issued a notification disqualifying him. On January 18, 2023, the Election Commission declared a by-poll for the Lakshadweep seat. However, on January 25, the Kerala High Court stayed Faisal’s conviction. The SC thereafter stayed the by-poll — which the Election Commission had ordered with a similar speed. Even then, to this day, he has not been reinstated in Parliament. What the legal luminary has not mentioned is whether the removal of disqualification also comes into effect the moment the court signs the order suspending conviction. Does this not lend credence to the allegation of selective haste? Besides, doesn’t this wilful disobedience to the orders of the High Court, attract contempt of court? In Lok Prahari v Election Commission of India (2018), the Supreme Court held that once a 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.Some puzzling questions remain that need to be answered. How was it that the petitioner who filed the suit against Rahul Gandhi, sought a stay from the High Court on Gandhi’s trial last year and was successful in delaying the proceedings for nearly twelve months? And what specific circumstances prompted him to seek a vacation of stay when no additional evidence was produced? Why was the magistrate changed last month? No reason has surfaced.Thirdly, did Rahul Gandhi’s remarks come under criminal defamation as opposed to civil defamation? This is what he had said at a rally in Kolar, Karnataka, on April 13, 2019: “One small question, how are the names of all these thieves ‘Modi, Modi, Modi’… Nirav Modi, Lalit Modi, Narendra Modi…”Did it call for a sentence of the maximum possible prison-term of two years? Incidentally, this is the minimum period of punishment which attracts disqualification under the Representation of People Act 1951.Fourthly, and perhaps most importantly of all: In a political atmosphere such as ours which is being increasingly charged with high levels of hate speech and vitriolic politics, how many of our politicians can truly survive the test of Section 153 (a) and Section 505, conviction under both of which can lead to disqualification under Section 8 of the Representation of People Act, 1951? Both the aforementioned sections deal with the offences of promoting enmity based on religious and linguistic grounds, among others. Therefore, why is there this selective efficiency in disqualifying members of the Opposition while turning a blind eye toward the members of the ruling dispensation? Surely, as the ruling party themselves are stating repeatedly, equality before the law is a cardinal principle and no one is above the law.I believe it is high time that we review and rethink the use and legitimacy of defamation cases in general. Many democratic countries around the world, including the UK, USA and Sri Lanka have decriminalised defamation where it is no longer a criminal offence. It may do us well to follow suit.Finally, in conclusion, it must be remembered that the best and the correct way to proceed from hereon will be through the due process of the courts. The judgment determining the legality of the disqualification cannot be deliberated in the streets. The political fallout of this issue is slowly unfolding and we wait to see where this may finally take us, especially in light of the 2024 general elections.But whatever may be the electoral results and legal verdicts, it is an indisputable fact that a healthy Opposition is imperative for a healthy democracy. We must not allow it to be killed.The writer is former Chief Election Commissioner of India and the author of An Undocumented Wonder: The Making of the Great Indian Election
