New Delhi: Congress leader Rahul Gandhi, who was disqualified as a member of the Lok Sabha on Friday, is entitled to go back to the Speaker for revival of his MP status if he gets a judicial order from an appellate court staying his two-year jail sentence and conviction in a 2019 criminal defamation case, according to legal experts.
Gandhi, a former Congress president, was on Thursday sentenced to two years in jail by a Surat court after he was held guilty of defamation over his ”Modi surname” remark. The court also suspended the jail sentence for 30 days to allow Gandhi to appeal in a higher court.
Senior advocate and Supreme Court Bar Association(SCBA) President Vikas Singh said Gandhi will have to move quickly to a superior court and get suspension of the sentence and the stay of conviction to get his Lok Sabha membership revived before the Election Commission comes into the picture and announces a by-election from his parliamentary constituency in Wayanad in Kerala.
“If there is a stay of the conviction then his membership can be revived. He will have to move the appellate court immediately. He needs a stay of the conviction then there will be no election on his seat,” Singh said.
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Another senior advocate Ajit Sinha echoed the same view, saying the appellate court can stay the conviction and the after effect should be the restoration of his membership of the Lok Sabha.
Senior lawyer and constitutional law expert Rakesh Dwivedi said he was of the view that the disqualification was illegal as Gandhi was granted 30 days time and in any case now he should seek a stay quickly if he needs relief.
“When he gets a stay from a higher court, the disqualification would stand in abeyance….In my view since the sentence has been kept suspended for a month, the disqualification is illegal,” Dwivedi said.
Giving details as to what lies ahead for Gandhi so far as legal remedies are concerned, senior advocate Siddharth Luthra noted that the trial is now over, the conviction and the sentencing has happened and as a result the disqualification has taken effect.
Now the matter will be taken up by the sessions court, the first court of appeal in this case if there is a challenge, Luthra said, adding “I presume there will be a prayer before the sessions court not only to suspend the sentence but also to stay the conviction.”
”In the event of a stay of conviction, Mr Gandhi then will be entitled to go back to the Speaker and say that now, my conviction has been stayed so the disqualification cannot remain in effect.” In any case, if there is a stay of conviction, Gandhi can take part in the 2024 Lok Sabha elections, Luthra added.
According to Vikas Singh, the disqualification of Rahul Gandhi was wrong.
“The law is meant to save up to two years …there is a Supreme Court judgement in an income tax case where the Supreme Court interpreted the term ‘up to’ and said ‘upto’ means the term beyond.. here the sentence prescribed is ‘up to two years or more’ .. this is meant to save the persons awarded two years jail term as sentence from disqualification,” he said.
Even the CrPC (Code of Criminal Procedure) does not treat the offences entailing a two-year jail term as serious and the legislative intent was to save up to two years, he said.