Why in News?
The disqualification of Rahul Gandhi as member of the Lok Sabha occurred in March 2023 after court convicted Gandhi and sentenced him for two-year imprisonment on charges of criminal defamation for comments he made about Prime Minister's surname.
It has raised alarms about the state of democracy in India and is seen as another move to silence dissent.
 
Background of the Issue: 
Defamation is the act of communicating false statements about a person that injure the reputation of that person when observed through the eyes of an ordinary man.
Any false and unprivileged statement published or spoken deliberately, intentionally, knowingly with the intention to damage someone's reputation is defamation.
 
Defamation Law in India: 
Article 19 of the Constitution grants freedom of speech to its citizens. 
However, Article 19(2) has imposed certain reasonable exemptions to this freedom such as : Contempt of Court, defamation and incitement to an offense.
The Court relied on the judgments of other countries and reaffirmed the right to reputation as a part of the right to life under Article 21.
The case against Rahul Gandhi was filed under Indian Penal Code (IPC) sections 499 and 500, dealing with defamation.
Section 499 of the IPC elaborates on how defamation could be through words – spoken or intended to be read, through signs, and also through visible representations.
These can either be published or spoken about a person with the intention of damaging the reputation of that person, or with the knowledge or reason to believe that the imputation will harm his reputation.
Section 500 stipulates imprisonment of up to two years, with or without a fine, for someone held guilty of criminal defamation.

Disqualifications of a MP/MLA:

Disqualification of MP/MLA is prescribed in three situations:  
1. Constitution:
 Articles 102(1) and 191(1) for disqualification of a member of Parliament and a member of the Legislative Assembly respectively.
The grounds here include:
Holding an office of profit
Being of unsound mind or 
Insolvent or 
Not having valid citizenship.

2. As Per Tenth Schedule of Constitution:  
Disqualification in the Tenth Schedule of the Constitution, provides for the disqualification of the members on grounds of Defection.
  
3. As per Representation of The People Act (RPA), 1951.  
The disqualification of an MP convicted for an offense can happen in various instances.
If the offense for which he is convicted is listed in Section 8(1) of the Representation of the People Act of 1951.

This includes offenses such as:  
1. Section 153A:
 Offense of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony or
2. Section 171E:  Offense of bribery 
3. Section 171F:  Offense of undue influence or personation at an election and a few others.
4. Section 8(3) of the RPA mandates that an MP can be disqualified if convicted and sentenced to not less than 2 years of imprisonment.
Under the RPA, Section 8(4) stated that the disqualification takes effect only “after three months have elapsed” from the date of conviction.
Within that period, lawmakers could file an appeal against the sentence before the High Court.  
However, in the landmark 2013 ruling in ‘Lily Thomas v Union of India’, the Supreme Court struck down Section 8(4) of the RPA as unconstitutional.
5. Section 9 deals with disqualification for dismissal for corruption or disloyalty, and for entering into government contracts while being a lawmaker.
6. Section 10 deals with disqualification for failure to lodge an account of election expenses.
7. Section 11 deals with disqualification for corrupt practices.

Way Forward:  
·         The disqualification can be reversed if a higher court grants a stay on the conviction or decides the appeal in favor of the convicted lawmaker.
·         Under Section 389 of the CrPC, an Appellate Court can suspend the sentence of a convict while the appeal is pending. This is akin to releasing the appellant on bail.
·         Another option which is available for the MP is approaching the President.
As per Article 103 of the Constitution, the disqualification case of an MP will be decided by the President in consultation with the Election Commission.

Additional fodder:
Salient Features of the Representation of People Act 1951:  
The act is of special significance to the smooth functioning of Indian democracy, as it checks the entry of persons with criminal background into the representative bodies. Representation of People’s Act 1951 was amended many times, the major amendment being made in 1966.
Representation of People’s Act contains 13 parts and 171 sections.

Key Provisions:
·         It regulates the actual conduct of elections and by-elections.
·         It provides administrative machinery for conducting elections.
·         It deals with the registration of political parties.
·         It specifies the qualifications and disqualifications for membership of the Houses.
·         It provides provisions to curb corrupt practices and other offences.
·         It lays down the procedure for settling doubts and disputes arising out of elections.
 
Qualification for Contesting Elections in India 
·         A person must be an elector in the constituency.
·         The person must be a member of a Scheduled Caste or Scheduled Tribe in any state/UTs if he/she wants to contest a seat reserved for them.
·         The minimum age for becoming an MLA/MPs (Lok Sabha) is 25 years.
·         At the panchayat and municipality levels, the minimum age limit for contesting elections is 21 years.

Provisions Related to Political Parties:  
·         Every association or body in order to become a political party must be registered with the ECI whose decision regarding registration will be final.
·         Registered political parties, in course of time, can get recognition as 'State Party’ or National Party’.
·         The ECI can not derecognise a party.
 
Political Donations: 
·         It is mandatory for the political parties to submit to the ECI a list of donations they received above Rs. 2,000.
·         Political parties cannot receive more than Rs 2000 as cash donations.
·         Now, political parties are eligible to accept contributions from foreign companies defined under the Foreign Contribution (Regulation) Act, 2010.

Declaration of Assets and Liabilities  
·         Individuals contesting elections have to file an affidavit, declaring their criminal records, assets & liabilities and educational qualification. These declarations have to be made by MPs within 90 days of taking their seats in Parliament.
  
Section 126A prohibits the conduct of exit poll and dissemination of its results during the period mentioned.

Ceiling on Expenditure  
·         A candidate contesting polls in large states can spend up to Rs 70 lakh in the Lok Sabha election and Rs 28 lakh in an Assembly election.
 
Promoting Enmity
Any person who promotes or attempts to promote on grounds of religion, race, caste, community or language, feelings of enmity or hatred between different classes of citizens of India can be punished with imprisonment for a term which may extend to 3 years.
Prohibition of public meetings during a period of 48 hours ending with the hour fixed for the conclusion of the poll.
 
Significance of the Act: 
1. Strengthens Federalism: The acts strengthened the federal polity of the country by giving due representation to each state in the Parliament.

2. Decriminalizing Indian Politics: The RPA,1951 plays the significant role in breaking the politicians, police & criminal nexus (which is one of the greatest threats to the rule of law in India), by prohibiting the entry of persons with a criminal background into the electoral process, thus decriminalizing Indian politics.
  
3. Accountability and Transparency: The RPA,1951 provides for the expenditure monitoring mechanism which ensures the accountability and transparency of the candidate in the use of public funds or misuse of power for personal benefits.
 The RPA ,1951 provides that only those political parties which are registered under section 29A of the RPA, 1951 are eligible to receive electoral bonds, thus providing a mechanism to track the source of political funding and ensuring transparency in electoral funding.
  
4. Clean Election: The RPA,1951 prohibits corrupt practices like booth capturing, bribery or promoting enmity etc., and ensures the conduct of free & fair elections which in turn encourage political liberalization and democratization.

Challenges:  
1. False Disclosures: Even after the provision of the declaration of assets and liabilities in the RPA act, candidates do not disclose all the assets and provide wrong and incomplete information regarding their assets, liabilities, and income and educational qualifications.
2. Dual Responsibility of the ECI: The ECI does not have independent staff of its own so whenever elections take place, it has to depend upon staff of Central and State Governments hence the dual responsibility of the administrative staff, to the government for ordinary administration and to the ECI for electoral administration is not conducive to the impartial and efficient functioning of the Commission.

Way Forward:  
1. Independence of ECI: 
In order to curb the practice of bureaucratization of politics and to secure complete independence of the Election Commission, its expenditure should be charged on the Consolidated Fund of India.
The ECI should become more prudent and proactive to ensure the fairness and transparency of the general election and wipe away any doubt regarding its integrity as an esteemed institution.
2. Restrictions on Opinion Polls: There should be a similar prohibition or restriction on opinion polls also as several manipulated opinion polls could impact the voting pattern.
3. False Declaration as Offense: The RPA ,1951 should be amended to include all the items related to the election disclosure in the affidavit and making false declarations in connection with the election to be an offence.
4. State Funding of Elections: To minimize the role of money in elections, provisions should be made for state funding of elections.

Mains Question:
  Q: RPA 1951 is aimed at “preventing criminalization of politics” and keeping ‘tainted’ lawmakers from contesting elections- Comment.