PROCEDURE TO DISQUALIFY A MEMBER OF PARLIAMENT

• In a note on October 13, 2015, the Election Commission of India had asked state chief secretaries to issue appropriate instructions to the department dealing with prosecutions to ensure that cases of conviction of sitting MPs or MLAs were brought to the notice of the Speaker or Chairman of the House, and to the Chief Electoral Officer of the state, along with the order of conviction within seven days of the order
• In the case of a disqualified MLA, the notice is issued by the Vidhan Sabha concerned
• The Supreme Court in its ruling in Lok Prahari v Union of India (2018) clarified that a disqualification triggered by a conviction will be reversed if the conviction is stayed by a court. “Once the conviction has been stayed during the pendency of an appeal, the disqualification which operates as a consequence of the conviction cannot take or remain in effect,”
• The notification by the House Secretariat regarding Rahul will cease to be in effect if and when his conviction is stayed

1. First is through 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.
2. The prescription of disqualification is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection
3. The prescription is under The Representation of The People Act (RPA), 1951. This law provides for disqualification for conviction in criminal cases

1. if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder
2.  if he is of unsound mind and stands so declared by a competent court
3. if he is an undischarged insolvent
4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State
5. if he is so disqualified by or under any law made by Parliament.

• The Representation of the People Act, 1951 is an act of Parliament of India to provide for the conduct of election of the Houses of Parliament and to the House or Houses of the Legislature of each State, the qualifications and disqualifications for membership of those Houses, the corrupt practices and other offences at or in connection with such elections and the decision of doubts and disputes arising out of or in connection with such elections -  It was introduced in Parliament by law minister Dr BR Ambedkar
• There are several provisions that deal with disqualification under the RPA. Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker. Section 10 deals with disqualification for failure to lodge an account of election expenses. A key provision, Section 11, deals with disqualification for corrupt practices
• Section 8 of the RPA deals with disqualification for conviction of offences. The provision is aimed at “preventing criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections
• First, disqualification is triggered for conviction under certain offences listed in Section 8(1) of The Representation of The People Act. This includes specific offences such as promoting enmity between two groups, bribery, and undue influence or personation at an election
• Section 8(2) also 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(3) states: “A person convicted of any offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.”

• The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favour of the convicted lawmaker
•  Significantly, the stay cannot merely be a suspension of sentence under Section 389 of the Code of Criminal Procedure (CrPC), but a stay of conviction
• Over the years, the law has changed when it comes to disqualification. Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction
• Within that period, lawmakers could file an appeal against the sentence before the High Court
• However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional. This is what has allowed the Lok Sabha Secretariat to immediately disqualify Rahul Gandhi.

• Defamation is a wrong that deals with damage caused to a person’s reputation
• In India, defamation can both be a civil wrong and a criminal offence, depending on the objective they seek to achieve
• A civil wrong sees a wrong being redressed with monetary compensation, while a criminal law seeks to punish a wrongdoer and send a message to others not to commit such acts, with a jail term
•  In a criminal case, defamation has to be established beyond reasonable doubt but in a civil defamation suit, damages can be awarded based on probabilities
• Section 499 of the IPC defines what amounts to criminal defamation and subsequent provisions define its punishment
• Section 499 elaborates on how defamation could be through words  spoken or intended to be read, through signs, and also through visible representations
• These can either be published or spoken about a person with the intention of damaging reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation
• Section 500 stipulates imprisonment of up to two years, with or without a fine, for someone held guilty of criminal defamation