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Rahul Gandhi said to the journalist – If you want to work for BJP…
A decade ago SC declared section 8(4) Representation of the People Act As unconstitutional, the elected representatives lost the statutory 90-day window within which they could file an appeal against the conviction and sentence and remain as a member of the relevant house pending the decision of the appellate court. The Lily Thomas judgment of 2013 resulted in automatic and immediate disqualification of MPs and MLAs from the date of conviction if sentenced to two years or more.
Petitioner Abha Muraleedharan submitted that the automatic and immediate disqualification of elected representatives under Section 8(3) of the RP Act is arbitrary and requested the court to set it aside as unconstitutional. He sought a declaration from the SC that the two-year sentence on conviction criminal defamation and any offense which provides for a maximum sentence of two years should not automatically result in disqualification just because it contravenes Freedom of expression and the expression of the entire electorate of his constituency.
The petitioner said that the Lily Thomas judgment needs to be revisited by the SC as disqualification should be linked only to heinous and serious offences. “The Lily Thomas verdict is being misused by political parties for personal vendetta,” he alleged.
“What the petitioner seeks to establish is that the right enjoyed by an MP under Article 19(1)(a) is an extension of the voice of millions of his supporters. If sections 499 (criminal defamation) and 500 (criminal defamation) of the IPC Punishment for rape), which technically carries a maximum sentence of two years, does not detract from the cascading effect of the Lily Thomas judgment, it will have a chilling effect on citizens’ right to representation,” he said.
The Congress had argued against Rahul Gandhi’s immediate disqualification, saying it could not be effective without the President’s assent. The Lily Thomas judgment clearly highlights this aspect.
In that judgment delivered on July 10, 2013, the SC bench had said, “We cannot even accept the statement of (then ASG Paras) Kuhad that unless it is decided by the President or the Governor that the Parliament whether or not a member of the State Legislature has become subject to any of the disqualifications mentioned in article 102(1) and article 191 of the Constitution, the seat of the member allegedly disqualified under article 101(3)(a) and 190(3) (a) of the Constitution.”
“Articles 101(3)(a) and 190(3)(a) of the Constitution provide that if a member of a House becomes subject to any of the disqualifications mentioned in clause (1), ‘his seat shall become vacant ‘ Therefore, the seat of a member who becomes subject to any of the disqualifications mentioned in clause (1) shall become vacant on the date on which the member becomes disqualified and cannot await the decision of the President or the Governor, as be the case under Articles 103 and 192 of the Constitution respectively,” it had said.
However, it had clarified that “the filling of a seat which becomes vacant may await the decision of the President or the Governor under Articles 103 and 192 of the Constitution respectively and if the President or the Governor is of the opinion that the member has violated the Constitution”. becomes subject to any of the disqualifications mentioned in clauses (1) of articles 102 and 191 of the Act, it shall be deemed that the member who was not disqualified had not vacated on the date on which the member There was an allegation of disqualification.”