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'Sense of bitterness is with the entire Opposition'

By Aditi Phadnis
April 08, 2023 10:50 IST
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'It's not that the Opposition has to search for common ground.'
'The government is handing the common ground to the Opposition.'

IMAGE: Mallikarjun Kharge, Leader of the Opposition in the Rajya Sabha, and Opposition MPs wearing black stage a protest march from Parliament towards Vijay Chowk, March 27, 2023. Photograph: Amlan Paliwal/ANI Photo

Lok Sabha MP Manish Tewari in conversation with Aditi Phadnis/Business Standard, says the Opposition is unified against the government's executive excess, but reserves judgement on whether this will mean one Opposition candidate against one from the Bharatiya Janata Party in the general election.

 

The Speaker has disqualified Rahul Gandhi as a member of the Lok Sabha. What happens now?

An appeal will be filed before the court of sessions. However, an alternative legal strategy is also available.

Under Articles 102 and 103 of the Constitution, the powers to disqualify an MP lie only with the President of India.

Article 102 lists the various grounds on which an MP can be disqualified.

102(1E) essentially states that you can be disqualified under any law made by Parliament (there's a 102D which lists out certain offences).

But that call has to be taken by the President of India.

What has happened as a consequence of Lily Thomas (Lily Thomas versus Union of India) in 2013, when the Supreme Court struck down Section 8(4) of the Representation of the People Act, is that an erroneous view gained ground that if you are convicted, you are automatically disqualified and the notification by the Speaker's office is pro forma.

The Election Commission of India made this point to the Supreme Court in 2018 in the Lok Prahari case.

The Supreme Court recorded the ECI's contention but did not render a finding on it.

In my estimation, the power of disqualification does not lie with the Speaker.

The words used in Section 8(3) of the Representation of the People Act are: 'conviction' and 'sentencing'.

You are convicted and sentenced. Here, the sentence has been suspended. If the sentence has been suspended, would disqualification kick in?

In addition to the other infirmities of the entire judgment itself, which is bad in law, he has a good case for being reinstated.

In April 2008, the Punjab Vidhan Sabha similarly expelled Captain Amarinder Singh from the assembly and in 2010, the Supreme Court put him back in the saddle, restoring his membership.

That might or might not happen in the pendency of the current Lok Sabha.

You never know. But Rahul's team has multiple legal options which can be easily energised. It is for him and his lawyers to decide the course of action they propose to follow.

IMAGE: Congress leader Rahul Gandhi waves at supporters as he leaves the Surat district court after filing an appeal challenging his conviction and sentencing in the 2019 criminal defamation case over the Modi surname remark, April 3, 2023. Photograph: PTI Photo

But if things go as they are...

They cannot go as they are because they are confronted with a completely bad judgment in law.

If we have decided to give the rule of law the go-by, it is another matter.

But otherwise, what you have before you is a judgment emanating from a trial which didn't even follow the preliminary procedure of enquiry under Section 202 of the Criminal Procedure Code: How jurisdiction was made out in Surat for a statement made in Kolar.

There's about a year left for the 2024 general elections. The trial began in 2019 and ended in 2023. Extrapolating the same time frame on an appeal...

I don't see that happening because within the next couple of days when the appeal is filed, the court will have to apply its mind and then render a judgment on suspending the sentence and the conviction.

There's a reasonably good chance, given the various legal points which are there, of that happening.

Let's not put the cart before the horse.

If it does not, you continue to appeal to the next higher court. But in the meantime, Rahul remains disqualified and stays out of Parliament. What is the Congress going to do?

It fights. As I was giving you Captain Amarinder Singh's example, you had instances in the past where these aberrations have taken place. But the courts have stepped in to restore.

IMAGE: Opposition MPs protest demanding a JPC inquiry into the Adani Group issue outside Parliament, March 24, 2023. Photograph: ANI Photo

There are several areas where the Opposition and the government have to collaborate, particularly relating to appointments and the day-to-day functioning.

It will have to be seen whether there will be any cooperation at all. Or even the possibility of cooperation.

For the simple reason that when the trial court itself had suspended the sentence for 30 days, and given time to appeal, the very next you go and notify disqualification from the Lok Sabha. Where is the common ground left?

If there is no common ground left and the sense of bitterness between the government and the Congress party...

The sense of bitterness is with the entire Opposition. It filed a petition before the Supreme Court on how investigating agencies are being misused by the ruling dispensation.

It is not about the Congress party alone. It reflects the unity of the Opposition.

Do you think this could be part of the common ground?

I think the common ground is already there that democracy is in peril and must be saved.

Could this lead to a common minimum programme that includes these concerns which, in turn, could lead to the Opposition fielding one common candidate against the BJP candidate?

This is all the realm of hypothesis at the moment. Politics is based on a given reality.

The given reality is that all Opposition parties have come together in condemning this excessive use of executive discretion in hounding leaders of the Opposition.

It's not that the Opposition has to search for common ground.

The government is handing the common ground to the Opposition.

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Aditi Phadnis
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