Section 8 (4) of the Representation of the People Act 1951

Section 8 (4) of the Representation of the People Act 1951

Subject :Polity

Section: Elections

Context: The recent disqualification of Rahul Gandhi, based on his conviction and imprisonment in a defamation case and Supreme Court’s decision to strike down Section 8(4) of the Representation of People Act 1951.

What are the Disqualification and Legal Framework:

• Instant Disqualification and Lily Thomas Case: The disqualification of Rahul Gandhi based on his conviction in a defamation case raised questions about the legal basis of instant disqualification for sitting legislators. The Supreme Court’s judgment in Lily Thomas vs Union of India (2013) invalidated Section 8(4) of the Representation of People Act 1951, removing the three-month appeal window before disqualification took effect.
• Section 8(3) and Disqualification: With the removal of Section 8(4), only Section 8(3) remains, which stipulates that a person convicted and sentenced to imprisonment for at least two years shall be disqualified from the date of conviction. The wording does not explicitly indicate an immediate disqualification upon the court’s pronouncement of guilt.
• Disqualification Authority and Presidential Role: The authority to declare a sitting legislator disqualified might lie with the President of India under Article 103. While the Supreme Court rejected this proposition in Lily Thomas, the Consumer Education & Research … vs Union Of India & Ors (2009) held that the President’s declaration is necessary for disqualification.

What are the Legal Implications and Challenges:

• Staying of Sentence and Conviction:
  • An essential question emerges regarding the necessity of staying either the sentence or the conviction itself to lift disqualification.
  • Different High Courts have presented conflicting viewpoints on this matter, intensifying the intricacy of interpreting disqualification norms.
• Quantum of Sentence and Disqualification:
  • The pivotal determinant for disqualification lies in the prison term of two years or more.
  • A recent instance involving Rahul Gandhi underscored this correlation, underscoring that the activation of disqualification hinges on the duration of the sentence, not solely the conviction itself.
• Impact on Career and Immediate Attention:
  • The prompt imposition of disqualification can wield substantial repercussions on legislators’ professional trajectories.
  • This concern becomes particularly pronounced considering the gradual pace of appeals and legal procedures.
  • Urgent attention is imperative to address this matter, ensuring the stability of lawmakers’ careers and averting sudden and disruptive disqualifications.

What is the Representation of the People Act (RPA),1951

• Some Key Provisions of RPA,1951 are:
  • It regulates the actual conduct of elections and by-elections.
  • It provides administrative machinery for conducting elections.
  • It deals with the registration of political parties.
  • It specifies the qualifications and disqualifications for membership of the Houses.
  • It provides provisions to curb corrupt practices and other offences.
  • It lays down the procedure for settling doubts and disputes arising out of elections.
• The Representation of People’s Act contains 13 parts (2 parts added as amendments). Each part is divided into different sections.

What are the legal provisions regarding the disqualification of MPs/MLAs:

• 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.This provides for the disqualification of the members on grounds of defection.
• The third prescription is under The Representation of The People Act (RPA), 1951.This law provides for disqualification for conviction in criminal cases.

What are some provisions of RPA,1951 that deal with disqualification:

• There are several provisions that deal with disqualification under the RPA.
• Section 8 of the RPA deals with disqualification for conviction of certain offences.
• Section 8(1A) of the act includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election.
• Section 8(2A) lists offences that deal with hoarding or profiteering, adulteration of food or drugs and for conviction and sentence of at least six months for an offence under any provisions of the Dowry Prohibition Act.
• Section 8(3A) disqualifies a convicted person who has been sentenced to imprisonment for not less than two years.He is disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.
• Section 9: Disqualification for dismissal for corruption or disloyalty.
• Section 9(A): Disqualification for Government contracts, etc.
• Section 10: Disqualification for office under Government company.
• Section 10(A). Disqualification for failure to lodge account of election expenses.
• Section 11: Removal or reduction of period of disqualification.
• Section 11(A): Disqualification arising out of conviction and corrupt practices.
• Section 11(B): Removal of disqualification