What is the legal recourse available to Rahul Gandhi?

Surat chief judicial magistrate HH Varma sentenced Congress MP Rahul Gandhi to two years in after convicting him under Sections 499 and 500 of the Indian Penal Code for criminal defamation on March 23, 2023. The judge suspended his sentence for 30 days and granted him bail to allow him to appeal against the verdict, but his conviction was not stayed. He was granted bail on a bond of Rs 10,000.

On Friday evening, the Lok Sabha Secretariat issued a notice about his disqualification from the House. It has been sent to the Election Commission and other relevant authorities. Gandhi's Wayanad seat has been declared vacant and the Commission can announce special elections

The Congress had sought time from President Droupadi Murmu to present their case because according to Article 103 of the Indian Constitution, if a question arises as to whether a sitting member of the legislature has become subject to disqualification, the question shall be referred to the President whose decision shall be final.

The former Secretary General of the Lok Sabha PDT Achary explained that the disqualification of Rahul Gandhi should have been decided by the President in accordance with Article 103. Article 102 of the Constitution states that grounds for disqualification is conviction under any offence and an imprisonment sentence of two years or more. The Supreme Court in the 2009 Consumer Education and Research Society vs Union of India case had underscored that the declaration of disqualification can be made only after the President has announced her decision.

Under Section 8(3) of the Representation of People Act 1951, a person convicted of an offence and sentenced to imprisonment for not less than two years shall be disqualified from the date of conviction and would remain disqualified from contesting any election for a further period of six years after his release.

Earlier, Section 8(4) of the same Act had provided an exception that the order of disqualification would not take effect until after three months from the date of that order. However, this three-month window was struck down in 2013 in Lily Thomas vs Union of India case.

But, the legal question of whether the person remains to be a member.

The legal recourse for Rahul Gandhi is that he can appeal the order and get a stay of the conviction. “He will have to approach the appellate court. In this case it was a magistrate who passed the order, so he will have to go to the Sessions court or High Court depending on the local rules prevalent in the state,” explained Sanjay Hegde, senior advocate of the Supreme Court.

In Delhi, a person has to go the district judge to obtain a stay in the conviction ordered by a magistrate. A stay in conviction by the same court which pronounced the order is quite rare, added Hegde.

Rahul Gandhi will have to appeal the order, added Hegde and the first stage is that an appeal is admitted, but the full hearing usually happens at a later stage. “So, normally an interim order is given staying the conviction. Whether that interim order is given or not is the real question,” pointed out Hegde. If the Sessions court doesn’t stay the conviction, they will have to approach the Gujarat High Court.

The Congress leaders said that they would fight the battle both "legally and politically". They are likely to file an appeal in the appellate court by Wednesday next week. His lawyers have pointed out that in addition to other pleas in the appeal, they will point towards the non-compliance under Section 202 of the Criminal Procedure Code (CrPC).

Section 202 of the CrPC states that a magistrate can postpone the proceedings if the accused person resides outside its jurisdiction until the magistrate has conducted an concluded an inquiry into the charges.

During a 2019 election rally in Karnataka’s Kolar, Rahul Gandhi queried how was it that “all the thieves have the same surname - Modi”. He had referred to diamantaire Nirav Modi, cricket administrator Lalit Modi and Prime Minister Narendra Modi.

Gujarat BJP MLA Purnesh Modi filed a defamation case in April 2019 stating that Rahul Gandhi’s remark had maligned the entire Modi community. Rahul Gandhi had then appeared in June 2021 in front of then magistrate AN Dave.

However, the complainant had sought to delay the case for more than a year and had obtained a stay in the case in March 2022. In February 2023, the complainant sought a vacation of the stay order stating that sufficient evidence had come to light in the matter. The trial resumed on February 27, 2023, before the new magistrate HH Varma.