A social activist on Saturday petitioned the Supreme Court to declare as “unconstitutional” Section 8(3) of the Representation of the People Act, 1951, which automatically disqualifies a lawmaker on criminal conviction with a sentence not less than two years.

Aabha Muralidharan, a voter from Kerala’s Wayanad constituency that elected Rahul Gandhi to the Lok Sabha in 2019, moved her petition a day after the Congress leader was disqualified as MP following his conviction and two-year sentence in a defamation case.

One of her key arguments is that the provision of automatic disqualification leaves an axed lawmaker with no scope for reinstatement even if the conviction is later quashed or suspended, in case a by-election has already been held in their constituency.

Another of her contentions is that an offence like defamation — where a two-year term happens to be the maximum punishment, anyway — should not lead to automatic disqualification since it violates an elected representative’s freedom of speech and disincentivises their duty to criticise corruption.

“If a by-election is declared in the same constituency, it will adversely affect the interest of the public at large, especially the voters of Wayanad constituency (in) Kerala, and huge expenses incurred by the public exchequer and the Election Commission,” the petition, filed through advocate Deepak Prakash, says.

It adds that Section 8(3) is unconstitutional as it “restrains the members from freely discharging their duties casted (sic) upon them by the voters of their respective constituency, which is against the principles of democracy”.

The petition says “the injury that has been caused to the public (through Rahul’s disqualification) is serious in nature and requires the urgent intervention of this Hon’ble Court”.

“That the reliefs (sic) prayed for in the present petition are in order to safeguard the fundamental rights guaranteed to every citizen by virtue of Articles 14 (right to equality) and 21 (life and personal liberty) of the Constitution of India, thus necessitating the urgent and kind interference of this Hon’ble Court,” it adds.

The petition underlines that the Election Commission had, in a press note dated January 18, announced Assembly by-elections in Arunachal Pradesh to fill vacancies created by the disqualification of members whose appeals against conviction were still pending.

This means, the petition argues, that these members would have no avenue for getting their disqualification set aside even if they are acquitted, since the by-elections would have handed their seats to others.

It adds that Section 8(3) is too harsh on legislators since it does not consider the nature or gravity of the offence or the role and moral turpitude of the accused while mandating automatic disqualification.

The petition says that the legislative intent behind the provision was to disqualify elected members convicted of serious offences.

However, it is “promoting a platform for false political agendas to be pursued by different political parties in the name of disqualification and hence is directly attacking the democratic structure of the people’s representative in pursuance of political interest which can also cause unrest to the electoral system of the country”.