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Disqualification Of Member Of Parliament

Recently, we saw disqualification of former president of congress party Rahul Gandhi who is also a member of parliament from wayanad constituency of Kerala. He has been disqualified for making some remarks during a election rally at kolar in Karnataka ahead of 2019 lok Sabha election. The remarks he made was that "Why All Theives Have Modi In Their Surname" against Lalit Modi, Nirav Modi and Narendra Modi. He has now been sentenced to two-year jail by a Surat court in connection with 2019 criminal defamation case that was filed against him by BJP MLA from Surat. west and former minister of Gujarat state Purnesh Modi.

Defamation And Its Punishments

Section 499 and 500 of Indian penal code,1860 talks about Defamation. Defamation means damage to the reputation of a person by some false statements made by another person. Defamation can be in writing which is called as libel and it can also be in spoken form which means slander. Defamation is both civil wrong as well as criminal wrong.

In civil wrong, defamation cases are dealt by awarding punishment in form of damages which is to be given to the claimant while under the criminal law defamation is Bailable, compoundable and cognizable offence and a person can be arrested only after a warrant is issued by the magistrate. The punishment given under Indian penal code is simple imprisonment upto two years or with fine or both.

We can take some reference from cases related to Defamation:
  • Ram Jethmalani vs Subramanian Swamy:
    In this case High court held Dr. Subramanian Swamy for defaming Ram Jethmalani for making a remark against Ram Jethmalani that he received money from a banned organization for protecting the assassins of then Prime minister of India Rajiv Gandhi.
  • Shreya singhal vs Union of India:
    This case law is related to a landmark judgement given in relation to Internet defamation. This case held section 66A of information technology Act,2000 unconstitutional which is related to punishment for sending offensive messages through communication services.

On What Grounds A Member Of Parliament Cen Be Disqualified?

Article 102 of Indian constitution talks about Disqualification of member of parliament.

There are various grounds on which a member of parliament can be Disqualified they are as follows:
  • A person can be disqualified if he holds any office of profit under the government of India. The term of office is not given in Indian constitution.
  • A person cannot be a member of parliament if he is disqualified under the tenth schedule of Indian constitution. Anti-defection law is given under tenth schedule of Indian constitution.
Article 103 of constitution of India defines that if there arises a question of Disqualification of member of parliament it must be referred to President of India as given under section 102(1) of Indian constitution and president shall also take the opinion of Election commission before taking any decision.

Disqualification Under Representation Of People Act, 1951

Representation of people Act,1951 deals with conviction in criminal cases. The provision for section 8 of representation of people act 1951 provides for disqualification in case for conviction of certain offences.

These convictions are as follows:
  • Clause 1 of section 8 of RPA 1951 deals with offences which include offences of bribery, promoting enmity between certain groups.
  • Clause 2 of section 8 provides for disqualification in case a member of parliament has been found hoarding or with adulteration of foods or for any offence related to Dowry prohibition act of 1961.
  • Clause 3 of section 8 provides for disqualification of a person who has been convicted to imprisonment for offences of two years or more than two years. The person who has been convicted shall continue to be disqualified from the date of his conviction and continues to be disqualified for period of six more years from his release. We saw the use of this clause in case of disqualification of Jayalalitha Jay aram of AIADMK party who in 2001 won the election of Tamil nadu with great majority but her appointment as Chief minister was declared unconstitutional and void by supreme court on the ground that she has been convicted under offence of prevention of corruption act by trail court and was sentenced to imprisonment for three years in one of the cases and for two years in another case.
  • Clause 4 of section 8 provided for a candidate to contest election in cases of conviction of member. But this clause was repealed from Indian constitution in Lily Thomas vs Union of India, 2013.

    In all these cases member of parliament stands Disqualified until he is not set free from that conviction or he/she does not get a stay on the conviction in case of appeal filed by the person against the conviction.
  • Section 9 of RPA 1951 provides for disqualification of member of parliament in cases of corruption.
Section 10 of RPA 1951 provides for disqualification of member in cases he/she holds any government office.

After the conviction was announced by Surat court in the defamation case against Rahul Gandhi a formal notification was released by Lok Sabha. In Pahari v Union of India supreme clarified that disqualification can be reversed if the conviction is stayed by the court. Similarly, Notification of disqualification of Rahul Gandhi will be reversed if his conviction gets a stay from the court.

Political And Social Implications

Disqualification of a member of parliament can have significant political impact specially if the affected person belonged to a particular party and holds a crucial position in parliament like in this case where we saw disqualification of Rahul Gandhi who has not only served as a president of one of the six national political party of India but was also serving as a member of parliament from Wayanad Lok Sabha constituency of Kerala.

We are currently in a state where India is moving towards one party system where one political party wants to remove all their oppositions. For a healthy democracy every country needs a good opposition one that is constructive as well as creative. In a country which lacks good opposition moves from democracy towards autocracy.

On one hand where there are people who are in favours of disqualification, there are people who are against it as they think that disqualification of one MP from parliament could set a precedent for further removals to speak anything as there will always be fear of disqualification in back of mind which will have very adverse impact on right to free speech which is given under Article 19 of the Indian constitution which also provides for reasonable restriction which is also is being used negatively by the government by taking down all those speeches which are against the government.

Nowadays , we are witnessing various events by the government which can have significant political as well as social impact like recently we saw set up of a 'Fact check unit' by the government that will check the content related to government and will label it after scrutinizing it and if found objectionable will mark it as fake content, setting up of such unit will significantly reduce the power of press and give major power related to contents on social media platforms in the hand of the government which can have negative impact on freedom of press. Disqualification of Rahul Gandhi will weaken Indian National Congress as well.

Disqualification of Rahul Gandhi will be a significant blew to the politics of India as well as for democratic structure of India. Disqualification of Rahul Gandhi arose a very big questions the government which is moving forward with the formula to erase all the oppositions sometimes by using government departments like Enforcement directorate, central bureau of investigation against opposition leaders.

The time has now come to rethink about the colonial laws like defamation which was introduced by Britishers in our country to suppress the people who were fighting for their rights and stop them from criticising the colonial rulers.

I personally think that criminal content must be removed from defamation as otherwise it could be threat to Indian democracy where ruling party will simply apply defamation charges against their opposition and stop them from criticizing the government bad deeds. India still follow such type of law which were introduced by britishers and now they have themselves removed such laws from their constitution and we are still following it.

The member of parliament are one of the most important, and responsible bodies of the government. There should be proper fairness in their disqualifications and removal which is very necessary so that democracy can remain alive in India.

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