Allahabad High Court Rejects Advocate's Plea Challenging LoP Rahul Gandhi's Lok Sabha Election From Raebareli

The petitioner in person Ashok Pandey claimed that due to Gandhi's conviction in the criminal defamation case over the "why all thieves have Modi surname" remark, he was disqualified from being chosen as a Member of Parliament.

Rejecting this contention, a Division Bench of Justice Shekhar B Saraf and Justice Manjive Shukla observed that once an order of conviction is stayed by a higher court, the bar under Section 8(3) of the Representation of the People Act, 1951, does not apply.

The Court observed that the "indelible mark of a convict cannot be assigned to such a person" while the appeal is pending and the conviction remains stayed.

It may be noted that in August 2023, the Supreme Court had stayed his conviction in the criminal defamation case.

Petition before the HC

The writ petition, filed by Ashok Pandey in person, sought to question under what authority of law Rahul Gandhi is holding the office of Member of Lok Sabha.

The petitioner argued that the conviction and sentence of two years recorded by the Surat court rendered Gandhi disqualified under Article 102 of the Constitution read with Section 8(3) of the R.P. Act.

Pandey contended that while the Supreme Court had stayed the order of conviction, it did not explicitly permit Gandhi to contest elections.

Drawing a parallel with the case of Afzal Ansari, Pandey submitted that in Ansari's case, the Apex Court had used specific words permitting him to contest future elections, however, no such specific permission was granted to Gandhi.

Therefore, Pandey argued that Gandhi remained disqualified and his nomination paper was wrongly accepted for the Raibareli seat.

On the other hand, Senior Advocate OP Srivastava, appearing for the Election Commission of India, opposed the plea as he relied heavily on the Supreme Court's judgment in Lily Thomas Vs. Union of India.

He argued that in the event a conviction is stayed by a higher court, the disqualification arising out of conviction ceases to operate.

The High Court agreed with this contention of the counsel for the ECI as it drew a distinction between the stay of the execution of the sentence and the stay of the conviction itself. The Bench noted that in the former case, the bar under Section 8(3) would apply, but in the latter, it would not.

The Court stated: "The moment a higher court stays a conviction, the anathema of conviction goes out of the window and the person against whom such conviction is stayed, though not absolved, cannot be stated to be a convicted person. It is only when the appeal is decided that it could be ascertained as to whether he would be a convicted person or an acquitted person".

Further, the bench also referred to the Supreme Court's decision in the case of Lily Thomas (supra), wherein it was held that disqualification will not operate from the date of the order of stay of conviction.

"…the disqualification under Sub-section (1), (2) or (3) of Section 8 of the Representation of Peoples Act will not operate from the date of order of stay of conviction passed by the Appellate Court under Section 389 of the Code or the High Court under Section 482 of the Code", the HC noted.

Consequently, the High Court found the petition to be devoid of merit and thus, it dismissed the prayer to declare Dinesh Kumar Singh as the elected member from Raebareli.

The Bench also rejected Pandey's prayer for a certificate to appeal to the Supreme Court under Article 134-A as it noted that no substantial question of law arises in the matter.

Case title - Ashok Pandey vs. Rahul Gandhi And 3 Others

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