Congress Member of Parliament from Wayanad, Rahul Gandhi, was on Thursday sentenced to serve two years in jail by a court in Surat, Gujarat, in a criminal defamation case relating to derogatory remarks he made at a public meeting in 2019 about the surname Modi.

Chief Judicial Magistrate HH Varma held Gandhi guilty under sections 499 (defamation) and 500 (punishment for defamation) of the Indian Penal Code. However, the judge gave Gandhi 30 days to appeal against the order, but it was not clear if the sentence was suspended.

Gandhi, who was present in the court for the verdict, later tweeted in Hindi: “My religion is based on truth and non-violence. Truth is my God, non-violence the means to get it. — Mahatma Gandhi”.

A war of words broke out between the Bharatiya Janata Party and the Congress after the verdict.

Congress spokesperson Abhishek Singhvi said the party was working towards filing an appeal in a higher court. “We believe that this is full of errors and legally unsustainable conclusion. But make no mistake generally…all your (government’s) efforts to create a chilling effect, a throttling effect, strangulating effect on open, fearless speech relating to public interest will not stop either Rahul Gandhi or the Congress party,” he told reporters at a press conference here.

Meanwhile, Union Minister Piyush Goyal asked the Congress leader to apologise for his series of “defamatory” comments. “They should come out of their dynastic mindset and realise that no one is above the law,” Goyal told reporters.

Other parties weighed in on Gandhi’s side, with Delhi Chief Minister Arvind Kejriwal alleging that a conspiracy was being hatched to “eliminate” non-BJP leaders and parties by prosecuting them.

Experts divided

Experts were divided on whether the sentence would lead to Gandhi’s immediate disqualification from the Lok Sabha.

The offence, punishable under the Indian Penal Code’s (IPC’s) section 499 (defamation) and 500 (punishment for defamation), carries a simple punishment of two years, the order said.

Article 102 of the Constitution spells out conditions under which a person can be disqualified from the Lok Sabha. It also says the House itself can add to these disqualifications.

The Representation of the Peoples (RP) Act 1951 Section 8(4) of the Act says an elected representative will be disqualified if convicted and sentenced to imprisonment for two years or more. The person is disqualified for the period of imprisonment and a further six years.

However, there is an exception for sitting members: They have three months from the date of conviction to appeal and the disqualification will not be applicable until the appeal is decided.

But in the Lily Thomas vs Union of India (2013) case, the Supreme Court declared Section 8(4) of the RP Act invalid. Therefore, disqualification became automatic and had immediate effect if the conditions of Article 102 were met.

This was applied most recently in the case of Lakshadweep MP PP Mohammed Faizal, who was convicted by the Kavaratti sessions court in January on an attempt-to-murder charge and sentenced to 10 years rigorous imprisonment. Within days the Lok Sabha Speaker announced that he had been disqualified as an MP from the date of conviction. The Election Commission of India (ECI) then issued a formal notification for by-election to that constituency.

Faizal appealed to the Kerala High Court seeking a stay on his conviction and sentence. The HC suspended his conviction until disposal of the appeal.

Faizal then moved the Supreme Court challenging the ECI’s announcement declaring the Lakshadweep seat vacant. The ECI was forced to defer the by-election. In that case, the Union government had argued that disqualification took effect immediately on conviction of the candidate and that membership of Parliament cannot be revived even if the court issues a stay. But the Kerala HC did not accept this. However, the Lakshadweep Lok Sabha seat remains vacant.

P D T Achary, former Lok Sabha secretary general and Constitution expert, says Gandhi is free to appeal and if the appellate court stays the conviction and the sentence, then the disqualification will remain suspended. “If the sentence has been suspended by the trial court itself, that means his membership does not get affected. The disqualification has not come into effect,” he said.

“The position as per the Lily Thomas judgment is that a conviction which carries a sentence of two years or more will automatically result in disqualification. In a later judgment in the Lok Prahari case, the apex court said if the conviction is suspended on appeal, the disqualification will also remain suspended,” Achary added. He said the Congress leader will have to get a stay on conviction also from a higher court.

The political implications of the Surat court order are obvious. If the Speaker disqualifies Gandhi – citing the Faizal case – the Congress’s most influential voice will be absent from the lower house till the appeal is heard. This will fall in line with the demand of the BJP MPs – that Gandhi should be suspended or expelled from the Lok Sabha for violating privilege of the House for his remarks outside it.

However, there is an element of irony in this. In 2013, when then law minister Kapil Sibal introduced the Representation of the People (Second Amendment and Validation) Bill, 2013, which said representatives would not be disqualified immediately after conviction, he did so to provide some protection to then Union minister Lalu Prasad, who was expecting to be convicted in the fodder scam.

As the Supreme Court rejected a review petition, and Parliament was not in session, the legislation was brought through an ordinance. But the then vice president of the Congress, Rahul Gandhi, tore up the ordinance at a press conference, calling it “complete nonsense”. Within five days the ordinance and the Bill were withdrawn.

(With additional inputs from PTI)