Why India opposition leader Rahul Gandhi may lose parliament seat

A formal disqualification order will have to be passed by the secretariat of the lower house of parliament of which Gandhi is a member.

India’s main opposition leader Rahul Gandhi faces the risk of being immediately disqualified as a member of parliament after being convicted in a defamation case and sentenced to two years in jail.

Gandhi’s Congress party said it will take to the streets on Friday to protest against his conviction by a magistrate’s court in Gujarat, the home state of Prime Minister Narendra Modi.

Gandhi, 52, was found guilty for a speech ahead of the 2019 general election in which he referred to thieves as having the surname Modi.

Gandhi, a scion of the Nehru-Gandhi family, will appeal in a higher court, his party said.

Here is how Gandhi is likely to lose his parliament seat:

What does the law say?

The Representation of the People Act, 1951, the law that governs elections in India, mandates the disqualification of any politician who is “convicted of any offence and sentenced to imprisonment for not less than two years”.

Gandhi was on Thursday found guilty of defamation. The disqualification comes into effect from the date of conviction.

A formal disqualification order will, however, have to be passed by the secretariat of the lower house of parliament of which Gandhi is a member.

Kapil Sibal, a top Indian lawyer and former federal law minister, told NDTV news channel on Thursday that while Gandhi stands automatically disqualified as a legislator, his two-year jail sentence itself was “bizarre”.

“If it (the court) only suspends the sentence, that is not enough. There has to be a suspension or stay of conviction. He (Gandhi) can stay on as a member of parliament only if there is a stay on the conviction,” said Sibal, who is also a former member of the Congress party.

Can Gandhi contest elections?

Gandhi faces the risk of not being able to contest national elections due in 2024 if his conviction is not suspended or overturned by a higher court before the elections.

The law also mandates that a convicted legislator cannot contest elections for six years after the end of their jail sentence.

Gandhi represents the Wayanad constituency in the southern state of Kerala.

How can Gandhi avoid disqualification?

To avoid disqualification, a convicted member of parliament has to secure an order from a higher court suspending the conviction, lawyers said.

The Representation of the People Act does not give any timeframe for securing such a suspension or acquittal before parliament passes the formal disqualification order.

The disqualification can also be overturned and the legislator reinstated to parliament if the conviction is stayed or overturned and a new election to the seat is yet to be conducted.

Gandhi was present in the Gujarat court which gave him bail immediately and suspended the sentence for a month, allowing him to appeal against it.

He can secure bail extensions during the appeal period but cannot contest elections until the conviction is stayed or he is acquitted in the case.

“So while it appears from reports that Mr Gandhi’s sentence has been suspended by the court that convicted him, he would have to soon obtain a stay on the conviction from an appellate court to save himself from disqualification,” Supreme Court lawyer Vikram Hegde said.

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