A PhD student from Kerala on Saturday urged the Supreme Court to remove ‘criminal defamation’ as a ground to ‘automatically’ expel parliamentarians.

Aabha Muralidharan said parliamentarians are the voice of the people they represent. Their expulsion has a “chilling effect on the right of representation” of their constituents.

The petitioner, represented by advocates Deepak Prakash and Sriram Parakkat, said the immediate reason for her petition is the ‘automatic disqualification’ of Wayanad MP Rahul Gandhi on Friday, within 24 hours of a Surat court finding him guilty of criminal defamation for his comment “why all thieves have Modi surname.” Gandhi was sentenced to two years’ imprisonment.

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He was disqualified on March 24 on the basis of a 2013 verdict of the Supreme Court in Lily Thomas versus Union of India. This judgment had laid down that a prison sentence of not less than two years would attract the immediate disqualification of a lawmaker under the Representation of People Act, 1951.

“The offence of criminal defamation must be excepted from the sweep of the judgment in Lily Thomas… The freedom of speech and expression enjoyed by a Member of the Parliament is an extension of the voice of millions of his supporters. If criminal defamation, which technically has a maximum punishment of only two years, is not removed from the sweeping effect of the judgment in Lily Thomas, it will have a chilling effect on the right of representation of the citizens,” Muralidharan argued in her petition.

‘Blanket ban’

She pointed out that the Constitution makers had never intended to use criminal defamation as a “reasonable restriction” on free speech.

“While the First Amendment to the Constitution was brought in 1951, it did not specifically include criminal defamation in Article 19 (2) as a reasonable restriction to the freedom of speech and expression,” the petition contended.

It said the ‘automatic disqualification’ operates like a blanket ban. It does not distinguish between bailable and non-bailable or cognisable and non-cognisable offences categorised by the Code of Criminal Procedure.

‘Blatant misuse’

“The operations of Lily Thomas are being blatantly misused for wreaking personal vengeance in political parties. The present scenario provides a blanket disqualification, irrespective of the nature, gravity, and seriousness of the offences, allegedly against the Member concerned,” the petition said.

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The “automatic” disqualification stands against the principles of natural justice since various convictions are reversed at the appellate stage, and under such circumstances, the valuable time of a lawmaker discharging his duties towards the public at large would be rendered futile.

“Factors like nature, gravity, role, moral turpitude and the role of the accused ought to be examined while considering disqualification under the 1951 Act,” the petition said.

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