Congress leader Rahul Gandhi will not be disqualified as a member of parliament if the appellate court stays the conviction and suspends the two- year jail term awarded to him by a Surat court in a 2019 criminal defamation case over his alleged “Modi surname” remarks, legal experts said on Thursday. Senior lawyer and constitutional law expert Rakesh Dwivedi referred to the apex court‘s 2013 and 2018 judgements in the Lily Thomas and the Lok Prahari matters respectively and said suspension of sentence and stay of conviction were necessary to escape disqualification as a lawmaker under the Representation of the People (RP) Act.

“The appellate court can suspend the conviction and the sentence and grant him bail. In that case there will be no disqualification,” he said, adding “However the politicians must choose their words carefully to avoid getting entangled with law.”

The debate over possibilities of Gandhi being disqualified as an MP must take note of the legal position enumerated in the apex court judgements and the relevant provisions of the RP Act, he said.

A former senior official of the Election Commission and an expert on electoral laws who did not wish to be named was of the view that to prevent being disqualified as a lawmaker, Gandhi also needs to get his conviction stayed.

He said suspension of sentence was different from suspension of conviction.

“The position as per the Lily Thomas judgment, 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 on appeal if the conviction is suspended, the disqualification will also remain suspended,” he said.

He said the Congress leader will have to get a stay on conviction also from a higher court. P D T Achari, former Lok Sabha Secretary General and Constitution expert, said the disqualification period begins as soon as the sentence is announced. He said Gandhi is free to appeal and if the appellate court stays the conviction and the sentence, then the disqualification will remain suspended.

The disqualification continues six years after the sentence is completed or served. “That means the disqualification will last for eight years (in case he is disqualified),” he said, adding that a disqualified person can neither contest, poll or vote for a certain period.

He was of the opinion that disqualification arises out of sentence, not conviction alone. “Therefore, 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.

In the Lok Prahari case, a three judge-bench of the top court, of which CJI D Y Chandrachud was also a part, in 2018 had termed as “untenable” the disqualification if the conviction of a lawmaker is stayed by an appellate court.

“It is untenable that the disqualification which ensues from a conviction will operate despite the appellate court having granted a stay of the conviction. The authority vested in the appellate court to stay a conviction ensures that a conviction on untenable or frivolous grounds does not operate to cause serious prejudice. As the decision in Lily Thomas has clarified, a stay of the conviction would relieve the individual from suffering the consequence inter alia of a disqualification relatable to the provisions of sub-sections 1, 2 and 3 of Section 8 of the RP Act,” the 2018 verdict had said.

In 2013, the top court, in the Lily Thomas case, had struck down section 8(4) of the RP Act that gave a convicted lawmaker the power to remain in office on the grounds that appeals have been filed within three months of conviction.

The Congress-led United Progressive Alliance government, in 2013, had attempted to circumvent the Supreme Court ruling to set aside a RP Act provision.

It was Gandhi who had opposed the ordinance in a press conference here and tore the ordinance in a press conference as a token of protest.

According to a provision of the RP Act, a person sentenced to imprisonment of two years or more shall be disqualified “from the date of such conviction” and remain disqualified for another six years after serving time.

Section 8 of the RP Act provides for offences in which a lawmaker would entail disqualification upon conviction.

The provision divides the offences in several categories that attract disqualification upon conviction.

In the first category are offences that entail disqualification for a period of six years upon any conviction.

If the punishment is a fine, the six-year period will run from the date of conviction, but if there is a prison sentence, the disqualification will begin on the date of conviction, and will continue up to the completion of six years after the date of release from jail.

Offences like making speeches that cause enmity between groups, bribery and impersonation during elections and other electoral offences, offences relating to rape and cruelty to women by husband and latter’s relatives are included in it.

Offences under the Protection of Civil Rights Act, Customs Act, Unlawful Activities (Prevention) Act etc are among the category of offences that entail disqualification regardless of the quantum of punishment.

Laws for prevention of Sati, corruption, terrorism and insult to national flag and national anthem etc are also part of this group.

All other criminal provisions form a separate category under which mere conviction will not entail disqualification and a sentence of at least two years in prison is needed to incur such disqualification.