A Public Interest Litigation has recently been filed in the Supreme Court, challenging the notification issued by the Lok Sabha speaker to reinstate Congress Leader Rahul Gandhi's parliamentary membership. This action follows the Supreme Court's decision to suspend Gandhi's conviction in the defamation case. Gandhi had been disqualified as a Member of Parliament after a Surat court had previously pronounced him guilty in the 'Modi Surname' remark case.

The PIL filed by the Lucknow-based Advocate Ashok Pandey challenges Gandhi's reinstatement as an MP on the ground that once an MP/MLA loses his office by operation of Law in Article 102 or Article 191 read with section 8 of Representation of the People Act, 1951, the MP/MLA will continue to be disqualified until acquitted from the charges levelled.

Pandey in his PIL urges the Apex Court to determine whether a Court of Appeal or any other Court can grant a stay of conviction. Additionally, the Court is requested to clarify whether, based on such a stay of conviction, a person who has incurred disqualification by operation of the law can subsequently qualify to be chosen as a member of Parliament or a State legislature.

"Petitioner is challenging the notification dated 7/8/2023 for the reason that as per the provisions contained in article 102 r/ section 8 (3) of the R P Act,1951 and the law laid down by the constitution bench in the matter of B R Kapoor Vs State of Tamilnadu and another 2001 ( 7) SCC 231, the disqualification based on conviction and sentence will continue to operate till it is set aside in appeal. In this view of the matter, Sri Rahul Gandhi will remain disqualified till his appeal is not allowed by the session court and the conviction is not set aside or the sentence of less than two years is not awarded", reads the PIL.

It has also been highlighted in the PIL that the provisions of Section 389 of the Criminal Procedure Code (Cr.P.C) allow the court to hear an appeal against conviction and sentence to suspend the sentence and grant bail to the appellant. However, it does not authorize the court of appeal to suspend the conviction itself.

The PIL states, "Special Leave Petition was filed before this Hon’ble court in which as an interim measure, the order of stay on conviction has been passed by this Hon’ble court. The petitioner is having an objection to staying of conviction as the CR.P.C doesn’t so authorize this to any court." The Petitioner further relies upon the Judgement of B R Kapoor v. State of Tamilnadu and another in which the Constitution Bench held that in view of the provisions in section 389 CrPC, only the execution of sentence can be stayed and the disqualification based on conviction shall continue to operate till the conviction is not set aside in appeal.

Further, the PIL states that Rahul Gandhi lost his Lok Sabha membership automatically due to the operation of the law. Therefore, the Speaker's decision to withdraw their earlier order, which declared Rahul Gandhi's loss of membership, was not in accordance with the law. In essence, the vacancy resulting from the conviction and sentencing of a Member of Parliament or a State Legislature should be officially notified by the Election Commission of India rather than by the respective legislative heads.

The petitioner also relies upon the statement made by Dr. Ambedkar in the constituent assembly where he said “if a member is convicted, the disqualification is automatic and absolutely complete”.

"That it is indeed sad that inspite of clear law on the subject that under section 389 CrPC, the court hearing an appeal against conviction and sentence, can only suspend the execution of sentence, the courts are entertaining the application moved with the prayer of stay on conviction and are passing the order on such petition", submits the PIL.

The Petitioner also states that the Election Commission of India being silenced on the Speaker of Lok Sabha's order to restore the membership of Mohd Fazal Khan and Sri Rahul Gandhi is indeed quite astonishing. He submits that this surprise arises because, in the past, approximately 35 legislators have lost their membership due to convictions. The question that arises is, what sets Mohd Fazal Khan and Sri Rahul Gandhi apart from these previous cases?

On August 4, 2023, the Supreme Court had stayed the conviction of Gandhi. The Court had noted that except for the admonition of the petitioner by this court in a contempt case, no other reasons have been given while imposing the maximum sentence. It is only on account of the maximum sentence of 2 years, the provisions of the Representation of Peoples Act have come into play. Had the sentence been even a day lesser, the provisions would not have been attracted, particularly when the offence is not cognisable, is compoundable and available.

"No reason has been given by the learned judge for imposing the maximum sentence, which has the result of incurring disqualification, the order of the conviction needs to be stayed pending the hearing of the appeal", read the Order. While the Gujarat High Court had dismissed the appeal filed by Gandhi and had stated that, "stay of conviction is not a rule but an exception to be resorted to in rare cases." The Court noted that as many as 10 criminal cases are pending against Rahul Gandhi and that the need of the hour is to have purity of politics.

Cause Title: Ashok Pandey v. The Speaker of Lok Sabha & Ors. [Diary No. 36627 of 2023]