The Representatives of People’s Act provides for automatic disqualification of a lawmaker in Parliament or a state assembly upon conviction and sentencing for not less than two years.
A Surat court had sentenced Rahul Gandhi to two years of jail and also imposed a fine of Rs 15,000 on finding him guilty under Sections 499 (defamation) and 500 (punishment for defamation) IPC. Rahul was, however, granted a bail, suspending his sentence, to enable him to move an appeal against his conviction within 30 days.
A petition by one Aabha Muralidharan, a social worker, says that Section 8(3) is ultra vires of the constitution as it curtails free speech of a member of parliament or that of State legislature, and act freely in discharge of the mandate of the voters.
The petition by Aabha Muralidharan says that factors such as nature, and gravity of the offence, moral turpitude and the role of the accused, ought to be examined while considering disqualification under the R.P. Act, 1951.
Aabha Muralidharan has contended that Section 8(3) is in contradiction of sub-section (1) of the Section 8, Section 8A, 9, 9A, 10 and 10A and 11 of the Representation of People Act, 1951.
Making a distinction between Section 8(3) of the R.P. Act with other Sections particularly sub-section (1) of the Section 8, of the Representation of People Act, 1951, the petitioner has contended that while Section 8(1) categorises the offences, and their nature for the disqualification of the lawmakers, Section 8(3) is open ended that provides for disqualification based on quantum of sentencing that is not less than two years.
Aabha Muralidharan has pointed out that there is nothing in Section 8(3) that says that a lawmaker “shall stand” or “forthwith” disqualified upon being sentenced to imprisonment for not less than two years upon conviction, thus there cannot be an automatic disqualification.
Having said this, the petitioner Aabha Muralidharan has urged the court to declare that there does not exist any automatic disqualification under Section 8(3) and the provision is ultra vires of the constitution for being arbitrary and illegal.
Aabha Muralidharan has asserted that Section 8(3) of the R.P. Act conflicts with Section 8(1) and other Sections of R.P. Act.
Section 8(3) provides for the disqualification of an elected representative convicted of any offence and sentenced to imprisonment for not less than two years.
Ambit of disqualification under Sub-section (1) of Section 8 is so wide that it seems to cover most of the different statutes relating to penal offences.
Disqualification of a person under sub-section (1) of Section 8 covers a wide-range of offences under different statues and provides for disqualification of a person convicted of an offence punishable under Section 153A for promoting enmity , preaching and practicing of disability, importing and exporting prohibited goods, being a member of a banned organisation, offences under FEMA, the Narcotic Drugs and Psychotropic Substances Act, offence of committing terrorist acts, offence of contravention of the provisions of sections 3 to 6 of the Religious Institutions (Prevention of Misuse) Act, offence of promoting enmity between classes in connection with the election,(offence of conversion of a place of worship, offence of insulting the Indian National Flag or the Constitution of India and other laws.
Section 8A of the Representation of People act, 1951 provides for Disqualification on ground of corrupt practices, Section 9 provides for Disqualification for dismissal for corruption or disloyalty, Section 9A provides for Disqualification for Government contracts, etc, Section 10 provides for Disqualification for office under Government company, Section 10A provides for Disqualification for failure to lodge account of election expenses, and Section 11 for Removal or reduction of period of disqualification of the Representation of People Act, 1951.