Sentence disproportionate to Rahul Gandhi’s alleged offence: Former SC Judge Madan Lokur

The idea of automatic disqualification requires reconsideration, former Justice Lokur said

Retired Supreme Court Justice Madan Lokur tells DH’s Ashish Tripathi that the two-year jail sentence handed out to Rahul Gandhi for alleged defamation is disproportionate and the Magistrate should have considered the severe consequences of imposing this sentence on the Congress leader. Justice Lokur also said that “some recent judgements and orders (of the judiciary) are hard to rationalise and reconcile with.”

How do you see the conviction and sentencing of Rahul Gandhi in a defamation case and his swift disqualification as Lok Sabha member, without letting him approach the appellate court?

I have no views on the conviction. However, the sentence is disproportionate to the alleged offence. Not only is the accused sentenced to two years’ imprisonment but also a fine has been imposed upon him. The further impact of the sentence is that the accused will not be able to stand for elections for eight years. The result of the conviction is that there is automatic disqualification as a member of the Lok Sabha and the impact of this will be felt on the constituency that he represents. Lakhs of people in that constituency will not be represented in Parliament for quite some time. This is actually punishing them, even though they have not committed any offence. The alleged offence is not against society but against individuals. Therefore there is no reason why the constituency should be punished along with the accused. Therefore, the sentence goes well beyond imprisonment and fine. Was it necessary? The learned Magistrate ought to have taken all these factors into consideration before imposing the sentence. I think the discretion given to the Magistrate is extremely wide and he can unseat the accused if he so desires or let the accused retain his seat by giving a lesser punishment. I think this discretion is uncanalised and far too broad.

Do you think the 2013 Lily Thomas judgement, which was passed with a hope to check convicted politicians remaining in public office, required some tweaking? Under the existing legal regime, what according to you, should be the criteria for an appellate court to grant immediate stay on conviction?

The idea of automatic disqualification requires reconsideration because of the impact on the constituency consisting of lakhs of people. The gravity of the offence is also required to be taken into consideration and it would be appropriate if a decision is taken by the Hon’ble Speaker of the Lok Sabha or the Legislative Assembly, as the case may be, or the Election Commission of India. Some sort of a short hearing should be given to the accused person, in a day or two, and then a decision taken, given the nature of the impact and consequences. The principles on which an appellate court can stay the conviction are well settled and I’m sure the appellate court will apply its mind taking all factors into consideration.

Should the very nature of offence be looked into before disqualifying a sitting MP or MLA, rather than going by the two-year jail term as the criterion for disqualification? Should there be an additional safeguard for sitting legislators when a criminal court convicts them?

Yes, the nature of the offence must certainly be looked at. There is no doubt about this. And while awarding a sentence, the impact of the sentence must also be looked at.

Do you think the offence of defamation should be removed from the statute book, even though a Constitution Bench had already upheld its validity, due to its chilling effect on freedom of speech and expression?

The offence of criminal defamation is archaic and must be removed from the statute books. Defamation per se is not a criminal offence but has been made into a criminal offence, quite unnecessarily.

How do you see the role of courts, particularly the constitutional courts, in cases being brought up against Opposition leaders which they see as vengeance, personal vendetta and vindictiveness?

No comment on this at all.

There have been recent attacks on the Judiciary by the Executive. Do you feel the Judiciary is under pressure and going through a difficult time?

It is difficult to say whether the Judiciary is under pressure, but some recent judgements and orders are hard to rationalise and reconcile with.

Talking about the appointment of judges, could there be any other mode than the present Collegium system for appointment with an equal say, if not greater, for the Executive, without affecting the independence of the Judiciary?

Recent events have shown that the Executive has a very great role in the appointment or non-appointment of judges. If the Executive is given a greater role, you might as well bid goodbye to the independence of the Judiciary.