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
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
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
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
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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