Disqualification- MPs/MLAs

There have been lots of posts and discussions in the media about the disqualification of elected representatives. Recently Rahul Gandhi of Congress was disqualified as MP when he was convicted in a defamation case for 2 years by a court in Surat. He was disqualified as MP immediately on the next day, even though he had a window of applying in higher courts for getting a stay on his conviction, but then the experts started saying that as per the law disqualification of elected MPs/MLAs is automatic when s/he is convicted for 2 years or more by any court. Now my question is what happens when the higher courts stay that conviction? Does then that person concerned automatically get his/her membership back in Parliament/assembly? The legal experts are not clear about the time frame, within what period if the conviction is stayed by higher courts the membership of the person concerned can be restored.

Here is one interesting case which  is the news:

On 13^th January, NCP leader PP Mohammed Faizal, MP from Lakshadweep, was sentenced to 10 years in jail in an attempted murder case. As a consequence, Faizal stood disqualified from the Lok Sabha. Although his conviction has since been suspended by the Kerala High Court, till recently he and his party NCP were fighting for his membership to be restored by the Lok Sabha secretariat to be restored. In the meantime, Faizal approached the Supreme court (SC).

Now, yesterday it so happened that his disqualification was revoked, his membership to Lok Sabha was restored, and at the same time matter of appeal by UT of Lakshadweep against the suspension of Faizal’s conviction came for hearing in the SC. Now the SC said that “there can not be the separate norm for lawmakers on suspension of conviction and sentence in a criminal case. When there is a prima facie opinion based on materials before the court that it is a case of acquittal only then suspension of conviction and sentence can be done. There can not be a separate norm for MP or MLA for suspension of conviction and sentence”.

The remarks were made by the court after a senior advocate appearing for Faizal, said that “ what weighed in the mind of Kerala HC while suspending his conviction and sentence is that he is elected representative (MP) and if his conviction and sentence is not stayed by the higher court, it will lead to disqualification and subsequently polls need to be held”.

One of the Justice said to the senior advocate of Faizal “ there were roughly  16 injuries including on the brain of the victim, and the statement of the local doctor is that had he not received timely treatment, he would have died. There is also a statement that the victim was airlifted and put in the ICU of the hospital, where he had to undergo treatment for 2 weeks, and the Kerala HC says it is a case of simple injury”.

The UT in the appeal to the SC had said that the HC had erred in suspending the conviction of Faizal. The senior advocate of the UT further stated that “ any and every disqualification of an elected representative would automatically have to be suspended, as every conviction leading to disqualification and consequently bye-election would call for a financial burden to the state exchequer and limited/lesser tenure of the elected candidate. So this can not be the reason for the suspension of the convict’s sentence. In this case, the elected member of parliament, who stands convicted of an attempt to murder along with an accused in three other cases, is a serious reflection of the character of the accused”. The next date of hearing is in the 3^rd week of April 2023.

My only question is that if the SC turns down the Kerala HC judgment, that means Faizal will stand convicted, then what happens to his Lok Sabha membership which has been restored yesterday?

Now in the case of Rahul Gandhi, the Surat Court had given the window of 30 days for Rahul Gandhi to get the conviction stayed by the higher court. Presently there is an indication from the Congress party that they will not be approaching the higher court for a stay in the sentence, but they want to use this disqualification as a political/ martyr card to get sympathy for Rahul Gandhi, in the coming Karnataka state elections.

Suppose, before the expiry of 30 days window, Rahul Gandhi applies and gets a stay, then his membership of the Lok Sabha will have to be restored.

In my opinion, the law is very ambiguous in this matter. On one side it says automatic disqualification, and another side it says if the higher court stays the sentence then disqualification stands revoked.

Friends, what is your opinion on this matter?

Anil Malik

Mumbai, India

30^th March 2023