Differing views emerge on MP disqualification

So this particular raises two issues which are extremely pertinent in Indian context: 

• Disqualification of elected members of the houses. 
• Criminal Defamation and its utility in democratic India. 

So the following discussion will have two components: 

• Disqualification
  • Disqualification and Its importance
  • Constitutional provisions 
  • Lily Thomas Case 
• Defamation
  • What is defamation all about?
  • Defamation is an exception to the Right to Freedom of Speech
  • Why is defamation a crime? 
  • Why defamation should remain a criminal offence?

Disqualification and Its importance: 

• The disqualification procedure in India is an important mechanism for maintaining the integrity of the electoral process and ensuring that elected representatives meet certain standards of conduct and eligibility.
• Under the Constitution of India, certain criteria have been laid down (See below) for the eligibility of candidates contesting elections to the Lok Sabha (lower house of parliament) and the state legislative assemblies. These criteria include age, citizenship, and lack of criminal convictions, among others. If a person is found to be ineligible based on these criteria, they can be disqualified from holding elected office.
• Similarly, if an elected representative violates certain rules or engages in behavior that is deemed unethical or illegal, they can be disqualified from their position.
  • For example, under the Representation of the People Act, an elected representative can be disqualified for offenses such as corrupt practices, electoral malpractices, or holding an office of profit.
• The disqualification procedure is important because it ensures that those who are elected to public office are held to high standards of conduct and behavior. It also helps to prevent individuals who are ineligible or have engaged in unethical or illegal activities from holding elected office and making important decisions on behalf of the people.
• Overall, the disqualification procedure in India plays a crucial role in maintaining the integrity of the electoral process and ensuring that elected representatives are held accountable for their actions.

Disqualifications specified in the Constitution of India for Members of Parliament: 

Disqualifications specified in the Constitution of India for Members of Legislative Assembly: 

(Lily Thomas Case 2013) Immediate Disqualification of Convicted MPs and MLAs 

• In 2013, the Supreme Court held that charge sheeted Members of Parliament and MLAs, on conviction for offences, will be immediately disqualified from holding membership of the House without being given three months’ time for appeal, as was the case before.
• The concerned Bench of the Court struck down as unconstitutional Section 8 (4) of the Representation of the People Act (1951) that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence. The Bench, however, made it clear that the ruling will be prospective and those who had already filed appeals in various High Courts or the Supreme Court against their convictions would be exempt from it.
• The Bench said: “A reading of the two provisions in Articles 102 and 191 of the Constitution would make it abundantly clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a Member of either House of Parliament or Legislative Assembly or Legislative Council of the State. Parliament thus does not have the power under Articles 102 and 191 of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a Member of Parliament or the State Legislature.”
• The Bench said: “Section 8 (4) of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.”
• The Bench held: “Looking at the affirmative terms of Articles 102 and 191 of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101 and 190 of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”

In order to nullify the above ruling of the Supreme Court, the Representation of the People (Second Amendment and Validation) Bill, 2013 was introduced in the Parliament. However, the Bill was later withdrawn by the Government.

BASED ON HIGH COURT OR SUPREME COURT’S ORDER

Defamation:

So this has again brought the limelight on defamation issue. 

• What is defamation all about?
• Defamation is an exception to the Right to Freedom of Speech
• Why is defamation a crime? 
• Why defamation should remain a criminal offence?

What is defamation all about?

• Defamation is the general term for a legal claim involving injury to one’s reputation caused by a false statement of fact and includes both libel (defamation in written or fixed form) and slander (spoken defamation). The crux of a defamation claim is falsity. Truthful statements that harm another’s reputation will not create liability for defamation (although they may open you up to other forms of liability if the information you publish is of a personal or highly private nature).
• Defamation refers to the act of publication of defamatory content that lowers the reputation of an individual or an entity when observed through the perspective of an ordinary man. If defamation occurs in spoken words or gestures (or other such transitory form) then it is termed as slander and the same if in written or printed form is libel. Defamation in India is both a civil and a criminal offence.

Defamation is an exception to the Right to Freedom of Speech

• Article 19 of the Constitution grants various freedoms to its citizens.
• However, Article 19(2) has imposed reasonable exemption to freedom of speech and expression granted under Article 19(1) (a). Contempt of court, defamation and incitement to an offence are some exceptions.

Legal Provisions 

• Sections 499 and 500 OF IPC
  • Sections 499 and 500 in the IPC deal with criminal defamation. While the former defines the offence of defamation, the latter defines the punishment for it.
  • Section 499: Whoever, by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person, is said, except in the cases hereinafter expected, to defame that person.
• Section 500:
  • Whoever defames another shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

Why is defamation a crime? 

• Reputation is an asset to each and every one. Any damage to such asset can be legally dealt with. Defamation laws have been enacted to prevent person maliciously using their right to freedom of speech and expression. The Indian law has rightly not made any distinction between libel and slander. Otherwise there could have been chances for committing slander and escaping from the laws that there is no written publication of matter.

Why defamation should remain a criminal offence?

Arguments ‘In favor’:

• Income inequality
  • Defamation should remain a penal offence in India as the defamer may be too poor to compensate the victim in some cases.
• Anonymity provided by Internet
  • Since there is no mechanism to censor the Internet from within, online defamation could only be adequately countered by retaining defamation as a criminal offence.
• Article 21
  • Also, criminalization of defamation is part of the state’s “compelling interest” to protect the right to dignity and good reputation of its citizens.
• Changes have been made from time to time
  • Sections 499 and 500 have 10 exceptions. 
  • These exceptions clearly exclude from its ambit any speech that is truthful, made in good faith and/or is for public good.

Arguments ‘Against’:

• Against the global trend
  • Many countries worldwide are in favor of treating defamation as a civil wrong, not as a criminal offence. 
  • Also, in 2011, the Human Rights Committee of the International Covenant on Civil and Political Rights called upon states to abolish criminal defamation, noting that it intimidates citizens and makes them shy away from exposing wrongdoing.
• Misuse by “Influential”
  • The misuse of law as an instrument of harassment is also pervasive in India. 
  • Often, the prosecutor’s complaint is taken at face value by courts, which send out routine notices for the appearance of defendants without any preliminary examination whether the offending comments or reports come under one of the exceptions spelt out in Section 499. 
  • Thus, the process itself becomes the punishment.
    • Criminal defamation has a pernicious effect on society: for instance, the state uses it as a means to coerce the media and political opponents into adopting self-censorship and unwarranted self-restraint.
    • The law can also be used by groups or sections claiming to have been hurt or insulted and abuse the process by initiating multiple proceedings in different places.
• Public order concerns taken care by other sections
  • Defamatory acts that may harm public order are covered by Sections 124, 153 and 153A, and so criminal defamation does not serve any overarching public interest. Even though Section 499 provides safeguards by means of exceptions, the threat of criminal prosecution is in itself unreasonable and excessive.