Disqualification of a Member of Parliament

Rahul Gandhi, MP of Wayanad has made some comments about Prime Minister Narendra Modi by comparing his surname to two economic offenders who are fugitive Indian businessmen. This speech was delivered by him back in 2019 when rallying for elections in Karnataka. This has sparked a controversy and other people with the surname of Modi have filed a defamation case against him questioning how he could comment on a community that way. This case was filed in a court in Surat, which is in Gujarat. The court has heard the appeals of Rahul Gandhi’s too and has come to a conclusion.  Following the defamation case, he has been charged under Section 500 of the Indian Penal Code for defamation and has been sentenced to imprisonment for two years. However, Rahul Gandhi’s lawyers have appealed against it. But now that the verdict of the case has been given that he is indeed convicted with defamation, Rahul Gandhi has been granted 30 days to challenge this decision. This means he shall be disqualified as a Member of Parliament if he is unable to get a stay on the conviction for the defamation case.

What does ‘Disqualification of a Member of Parliament’ mean?’

Disqualification of a Member of Parliament means removal of that person from that position which is designated to them. There are certain grounds on which disqualification of a member of parliament is justified and also there are consequences to this disqualification. In case of disqualification, there are certain privileges which a member of a parliament enjoys which they will be stripped off once they are disqualified from their designation.

Article 102 0f the Constitution of India, 1950 deals with the provisions for grounds for disqualification of a Member of Parliament. Those grounds are:

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Rahul Ghandhi Case

  • If they hold an office of profit under the Government of India or Government of any state.
  • If they are of unsound mind and are not competent to interact in any house of the Parliament.
  • If they are an undischarged insolvent.
  • If they are not a citizen of India or have acquired the citizenship of a foreign state and have changed their allegiance to a foreign state.
  • If they are disqualified under the 10th Schedule, which provides provisions for defection.
  • If they are disqualified under any law made by the Parliament.

The Members of Parliament are people who are representatives of a constituency. Being a representative obliges them to have certain privileges which people in general do not have. They are given these privileges so that they can perform their functions without any hindrance and also so that the constitutional machinery does not cease to function. The provisions for privileges are mentioned in Article 105. The privileges are:

  • Freedom of speech in the Parliament.
  • No criminal proceeding can be held against the members for what they have said or have voted for in any proceeding.

The Rules of Procedure and Conduct of Business lay down the other privileges which are enjoyed:

  • Freedom from arrest of members in civil cases before and after 40 days of commencing a session in the House.
  • The Speaker of the House has the right to be informed in case of arrest, conviction or release of a member of the House.
  • No arrest or process of legal service can be commenced within the limits of the House without the prior permission of the Speaker.
  • No disclosure of proceedings if held in a secret meeting of the House.
  • Right to exclude persons who are not members of the House.

The speech delivered by Rahul Gandhi does not come under as a privilege he has as a Member of Parliament because it was said outside the Parliament in a rally for the 2019 elections. And freedom of speech granted under Article 19(1) (a) of the Constitution of India has some reasonable limitations to it.

However, the defamation case of Rahul Gandhi is not the first case of disqualification of a Member of Parliament. There were members in the past who have got disqualified from their designation. Not necessarily because of the same reason as criminal defamation, but due to other reasons.

In another case, a former Member of Parliament, Abdullah Azam Khan was disqualified as an MP because he was convicted under section 353 of the Indian Penal Code for staging a dharna on a state highway. The Moradabad Court sentenced him for 2 years of imprisonment.

In another case of disqualification, the Member of Legislative Assembly (MLA) of Khatauli was sentenced to 2 years of imprisonment for his alleged role in the Muzaffarnagar riots.

It can be understood that in the above cases, a Member of Parliament was disqualified because of laws made by the Parliament which were done or said outside the Parliament where the privileges of MP’s are not considered and are held liable for their acts. The other conditions dealing with the provisions of qualification or disqualification of candidates come under the Representation of People’s Act, 1951.

Author: : B. Kamala Narayana, A student at DES’s Navalmal Firodia Law College, in case of any queries please contact/write back to us via email to chhavi@khuranaandkhurana.com or at Khurana & Khurana, Advocates and IP Attorney.

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