Plea In Supreme Court Challenges Restoration Of Rahul Gandhi's Lok Sabha Membership

A plea has been moved in the Supreme Court challenging the restoration of Congress Leader Rahul Gandhi's Lok Sabha Membership. His membership was restored vide a notification issued by the Loksabha Secretariat on August 7 in view of the Supreme Court's August 4 order suspending his conviction in the criminal defamation case over the "why all thieves have Modi surname" remark.

The plea moved by Lucknow-based Advocate Ashok Pandey contends that once a member of Parliament or of a state legislature loses his office by operation of Law in Article 102, 191 of the Constitution r/w section 8 (3) of the Representation of People Act 1951, he will continue to be disqualified till he is acquitted from the charges levelled against him by some higher court.

Against this backdrop, the plea argues that once Gandhi lost his Lok Sabha membership, after being convicted in a criminal defamation case and was awarded 2 years of imprisonment, the Speaker of the Lok Sabha was not right in restoring back his lost membership and hence, the plea prays that the LS notification be quashed.

"The order of Speaker was merely a formal order through which the vacancy of the office of membership of Sri Rahul Gandhi of Lok Sabha was notified. Sri Rahul Gandhi is disqualified from being chosen as or from being, a member of Parliament and state legislature till his conviction is not set aside by the court of appeal and so to restore his membership and to permit him to continue to work as a Member of Parliament is in clear violation of article 102 r/w section 8 (3) of the R P Act 1951," the plea submits.

The plea also prays for a writ of mandamus to the Election Commission of India to notify the vacancy to the seats being held by a legislator in case of conviction and sentence, which creates disqualification and hold the election to choose a new legislator from that constituency.

The plea further argues that Section 389 of CrPC only permits the court of appeal hearing an appeal against conviction and sentence to suspend the sentence and release the appellant on bail, but, it doesn't permit the court of appeal to suspend the conviction.

Here, it is important for our readers to note that as per the Supreme Court's ruling in the case of Lok Prahari vs. Election Commission of India and others (2018), once the conviction of an MP or MLA has been stayed by the appellate court under section 389 of the CrPC, the disqualification under sub-sections 1, 2 and 3 of Section 8 of the Representation of the People’s Act, 1951 will not operate.

In the Lok Prahari case, it was specifically held that 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.

Background