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Explained: What are Rahul Gandhi's legal options? Can EC hold bypoll in Wayanad?

Asianet News reached out to legal experts to understand the options before Rahul Gandhi following his disqualification from the Lok Sabha due to his conviction and sentencing by a court in Gujarat's Surat in a 2019 criminal defamation case

Explained What are Rahul Gandhi legal options Can EC hold bypoll in Wayanad
First Published Mar 24, 2023, 7:01 PM IST

Congress leader Rahul Gandhi on Friday lost his Lok Sabha membership following his conviction and sentencing by a court in Gujarat's Surat in a 2019 criminal defamation case. The disqualification means that the former Congress party president cannot contest Lok Sabha and Assembly elections for eight years. That, according to experts, may be prevented if a higher court stays his conviction.

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Asianet News reached out to legal experts to understand the options before Rahul Gandhi.

According to Supreme Court advocate Vinayak Tyagi, "Rahul Gandhi must file an appeal against the conviction order within 30 days. If a higher court overturns the ruling, he may be reinstated as an MP. If not, he will continue to be disqualified."

"Rahul can also approach the Supreme Court under Article 136 of the Constitution. Under the article, the Supreme Court has appellate jurisdiction over all courts and tribunals in India. The supreme court can modify the sentence/ conviction. However, Supreme Court interference is unlikely in cases where an appeal lies before the courts and a provision is there for suspension of sentence," he said.

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"Rahul would need to appeal his conviction first to the Surat Sessions Court and then to the Gujarat High Court to have any chance of reversing his disqualification as an MP. Section 389 of the Code of Criminal Procedure (CrPC) is not enough to reverse disqualification. The stay must be on conviction itself. Section 389 of the CrPC allows for the suspension of the sentence of a convict during the pendency of an appeal, similar to granting bail to the appellant," the Supreme Court advocate added.

Another Supreme Court lawyer, Abhishek Singh, said, "Rahul can immediately approach the Additional Session Court of the same court, as the conviction is of less than three years. Once the Additional Session Court grants the stay on conviction, the order of disqualification will be reversed. If ADJ does not grant a stay of conviction, then disqualification continues, and he will be in a position to contest again after completion of two years plus another six years."

What does the law say?

 As per Section 8 of the Representation of the People Act, the disqualification will be for eight years -- two years of the jail term awarded by the court and another six years from the date of his release. A jail term of two years or more attracts disqualification under the Act.

Can the Election Commission conduct a bypoll?

"Technically" the Election Commission can hold a bypoll to the Wayanad Lok Sabha seat in Kerala as there is more than one year before the term of the present Lok Sabha expires sometime in June next year. Assembly and parliamentary bypolls are avoided if the remaining term of the House is for less than one year.

The EC may wait for the 30-day period granted by the court to allow the former Congress president to file an appeal against the conviction.

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