Context:

A senior Congress and opposition leader have been disqualified from the Lok Sabha, a day after he was convicted in a defamation case by a Surat court.
In this context, this edition of the burning issue will deal with the issue of disqualification of a Member of Parliament and defamation cases. The issue is very important for the upcoming Prelims 2023 examination as well as Mains 2023.

Background of the case

The Congress leader during campaigning for the 2019 parliamentary polls had made a remark, “How come all the thieves have Modi as the common surname?”
On the basis of this remark, a criminal defamation case was filed against him in a surat court by a BJP MLA who had alleged that the congress leader while addressing a poll rally in 2019 in Karnataka defamed the entire Modi community with his remark.
The Surat court on Thursday convicted the Congress leader in a criminal defamation case and awarded him a two-year jail term.
On basis of this, the Congress leader has been disqualified from the Lok Sabha,. A notice issued by the Lok Sabha Secretariat said that he stood disqualified from the House from March 23, the day of his conviction.

Disqualification of a Lawmaker

Disqualification of a lawmaker is prescribed in three situations-

Under Constitutional provisions: Disqualification 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.
Under Anti-Defection law: It is in the Tenth Schedule of the Constitution, which provides for the disqualification of the members on grounds of defection.
Under Representation of The People Act (RPA), 1951: It provides for disqualification for conviction in criminal cases and several other grounds.

Disqualification under RPA, 1951

The provision is aimed at “preventing the criminalisation of politics” and keeping ‘tainted’ lawmakers from contesting elections. There are several provisions that deal with disqualification under the RPA.

Section 8 of the RPA deals with disqualification for conviction of offences.
Section 8(1): 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.”
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.
Section 11, deals with disqualification for corrupt practices.
Also, On 10 July 2013, the Supreme Court of India, in its judgment of the Lily Thomas v. Union of India case, decided that any MP, MLA or MLC who is sentenced for a crime and granted at least two years of imprisonment, loses membership of the House with immediate effect.

Appeal and stay of disqualification

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.
In a 2018 decision in ‘Lok Prahari v Union of India’, the Supreme Court clarified that the disqualification “will not operate from the date of the stay of conviction by the appellate court.”
This means that Gandhi’s first appeal would be before the Surat Sessions Court and then before the Gujarat High Court.

Changes in the Law

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.

The Lily Thomas Verdict

The Lily Thomas verdict was a landmark judgment delivered by the Supreme Court of India in 2013.
The verdict struck down a provision in the Representation of the People Act (RPA), which allowed convicted lawmakers to continue in office if they filed an appeal within three months of their conviction.
The provision, which was part of Section 8(4) of the RPA, had been criticized for allowing convicted politicians to continue to hold public office while their appeals were pending in higher courts, and for contributing to the criminalization of politics in India. The verdict was seen as a major step towards cleaning up Indian politics and ensuring that convicted criminals do not get to occupy public offices.

Defamation in India

What is Defamation?

Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. Defamation in India is both a civil and a criminal offence.

The Laws which Deal with Defamation:

Sections 499 and 500 of IPC: Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.

Section 499

Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.

Section 500

Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Supreme court on defamation

Supreme Court of India in the Subramanian Swamy case upheld the validity of the criminal defamation law.
Court rules that defamation laws are not in conflict with the right to free speech.
Court stated that notwithstanding the expansive and sweeping ambit of freedom of speech, as with all rights, the right to freedom of speech and expression is not absolute. It is subject to the imposition of reasonable restrictions

Why should it be retained?

The Supreme Court declared that the right to free speech under Article 19(1)(a) had to be “balanced” against the right to “reputation” under Article 21.
It has been part of the statutory law for over 70 years. It has neither diluted our vibrant democracy nor abridged free speech
Protection for “legitimate criticism” on a question of public interest is available in the Civil law of defamation & Under exceptions of Section 499 IPC
Mere misuse or abuse of law can never be a reason to render a provision unconstitutional rather lower judiciary must be sensitized to prevent misuse
Monetary compensation in civil defamation is not proportional to the excessive harm done to the reputation

Why should it not be retained?

“Constitutional fraternity” is not a part of Article 19(2) of the Constitution, which specifically limits the circumstances under which the state can restrict speech to eight enumerated categories.
It is also nowhere in the fundamental rights chapter of the Constitution, so the question of “balancing” free speech against constitutional fraternity does not arise.
Article 21 which is a shield to protect the individual against State persecution or indifference, is used as a sword to cut down on the fundamental right to freedom of speech and expression because of this provision.
Freedom of speech and expression of media is important for a vibrant democracy and the threat of prosecution alone is enough to suppress the truth. Many times influential people misuse this provision to suppress any voices against them.
Considering anecdotal evidence, every dissent may be taken as unpalatable criticism. Sections 499 and 500 of the IPC prescribe two years’ imprisonment for a person found guilty of defamation.

Conclusion

As India continues to strengthen its democratic system, one important issue that needs resolution is determining the correct answer for when a disqualification is removed for a sitting member of parliament who has been granted a stay on their conviction.
The conflicting court judgments and constitutional provisions only highlight the need for a clear and definitive resolution to this issue, which will undoubtedly enhance the credibility and legitimacy of the Indian political system.