Lily Thomas v. Union of India (2013) 7 SCC 653 (1)

Introduction

As per Section 8 of the Representation of the People Act, 1951, if any sitting MPs and MLAs commits any offence which have said in Section 8 of the Act, then such persons shall be disqualified from being MPs and MLAs. If such Persons, have convicted with imprisonment for not less than 2 years, shall be disqualified from being MPs and MLAs. Section 8(4) of the Act protects such sitting MPs and MLAs from being disqualifying even though, they convicted under section 8 of the Act, 1951. In the case of Lily Thomas v. Union of India (2013) 7 SCC 653 (1), the Supreme Court declared section 8(4) of the Representation of People Act,1951 as unconstitutional on the ground that Parliament does not have legislative power to enact the section 8(4) of the Act,1951.

Details of the Case

Some of the details of the case are as follows:
o Case Name – Lily Thomas v. Union of India
o Case No. – W.P (C) 490/2005, W.P (C) 231/2005, W.P (C) 694/2004
o Equivalent Citations – AIR 2013 SC 2662, (2013) 7 SCC 653
o Court – Supreme Court of India
o Bench – Justices Shudhanshu, J. Mukhopadhaya and A.K. Patnaik
o Petitioners – Lily Thomas, Lok Prahari, Basant Kumar Chaudhary
o Respondents – Union of India
o Judgement Date – 10th July 2013

Facts of the Case

1. In 2005, Lily Thomas and advocate Satya Narain Shukla filed a writ petition before the Supreme Court by challenging the Section 8(4) of the Representation of People Act, 1951 as ultra vires.
2. Section 8(4) of the Representation of People Act, 1950 states that – If the convicted person is a member of Parliament or a State Legislature, then disqualification takes place only after 3 months from the date of conviction.
3. This section protects the convicted politicians, who have pending appeals for their conviction in the courts, against the disqualification from taking part in elections.
4. The Supreme Court dismissed this writ petition.
5. Later, Lilt Thomas along with other advocates filed PIL before the Supreme Court challenging section 8(4) of Representation of People Act, 1951 as unconstitutional.
6. However, this section was struck down, as it is unconstitutional, by the Supreme Court.

Issues of the Case

1. Whether the Parliament has power to enact Section 8(4)of the Representation of People Act,1951?
2. Whether Section 8 (4)of the Act,1951 is unconstitutional?

Provisions involved in the Case

Several provisions of the Indian Constitution were discussed in the following case. These provisions are:
• Article 101– Vacation of the seats in either house of the Parliament.
• Article 102– Disqualifications for membership: (1) A person shall be disqualified for being chosen as, and for being, a Member of either House of Parliament –
(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.

• Article 191– Disqualifications for membership: (1) A person shall be disqualified for being chosen as, and for being, a Member of the Legislative or Legislative Council of a State –
(a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the legislature of the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign state;
(e) if he so disqualified by or under any law made by Parliament.

Representation of the People Act, 1951

(1) Section 7– Definitions – In this Chapter –
(a) ‘appropriate Government’ means in relation to any disqualification for being chosen as or for being a Member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a Member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) ‘disqualified’ means disqualified for being chosen as, and for being, a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.
(2) Section 8– Disqualification on conviction for certain offences.
(3) Section 8(4)– Implementation and Exceptions:
• Disqualification does not take effect for three months if the convicted person is a member of Parliament or a State Legislature.
• If an appeal or application for revision is filed within the three-month period, disqualification waits until its disposition by the court.

Contentions of the petitioner

1. Mr. Fali S. Nariman, learned Senior Counsel appearing for the petitioner in Writ Petition No. 490 of 2005 and Mr. S.N. Shukla, the General Secretary of the petitioner in Writ Petition No. 231 of 2005, submitted that the opening words of clause (1) of Articles 102 and 191 of the Constitution make it clear that the same disqualifications are provided for a person being chosen as a Member of either House of Parliament, or the State Assembly or Legislative Council of the State and for a person being a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State and therefore the disqualifications for a person to be elected as a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State and for a person to continue as a Member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State cannot be different. In support of this submission, Mr. Nariman cited a Constitution Bench judgment of this Court in Election Commission v. Saka Venkata Rao- in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.

2. According to Mr. Nariman and Mr. Shukla, in the absence of a provision in Articles 102 and 191 of the Constitution conferring power on Parliament to make a provision protecting sitting Members of either House of Parliament or the Legislative Assembly or the Legislative Council of a State, from the disqualifications it lays down for a person being chosen as a Member of Parliament or a State Legislature, Parliament lacks legislative powers to enact sub-section (4) of Section 8 of the Act and sub-section (4) of Section 8 of the Act is therefore ultra vires the Constitution.

3. Mr. Nariman and Mr. Shukla submitted that sub-section (4) of Section 8 of the Act, insofar as it does not provide a rationale for making an exception in the case of Members of Parliament or a Legislature of a State is arbitrary and discriminatory and is violative of Article 14 of the Constitution. They submitted that persons to be elected as Members of Parliament or a State Legislature stand on the same footing as sitting Members of Parliament and State Legislatures so far as disqualifications are concerned and sitting Members of Parliament and State Legislatures cannot enjoy the special privilege of continuing as Members even though they are convicted of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act.

Contentions on behalf of the respondents

1. Mr. Sidharth Luthra, learned ASG appearing for the Union of India in Writ Petition (C) No. 231 of 2005, submitted that the validity of sub-section (4) of Section 8 of the Act has been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan. He submitted that while answering Question 3, the Constitution Bench has held in Prabhakaran case that the purpose of carving out a saving in sub-section (4) of Section 8 of the Act is not to confer an advantage on sitting Members of Parliament or of a State Legislature but to protect the House. He submitted that in para 58 of the judgment the Constitution Bench has explained that if a Member of the House was debarred from sitting in the House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow: first, the strength of membership of the House shall stand reduced, so also the strength of the political party to which such convicted Member may belong and the Government in power may be surviving on a razor-edge thin majority where each Member counts significantly and disqualification of even one Member may have a deleterious effect on the functioning of the Government; second, a by-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of the convicted Member being acquitted by a superior criminal court.

2. Mr. Kuhad further submitted that Mr. Nariman is not right in his submission that the remedy of a sitting Member who is convicted or sentenced and gets disqualified under sub-sections (1), (2) or (3) of Section 8 of the Act is to move the appellate court under Section 389 of the Code of Criminal Procedure for stay of his conviction. He submitted that the appellate court does not have any power under Section 389 CrPC to stay the disqualification which would take effect from the date of conviction and therefore a safeguard had to be provided in subsection (4) of Section 8 of the Act that the disqualification, despite the conviction or sentence, will not have effect until the appeal or revision is decided by the appellate or the revisional court. He submitted that there is, therefore, a rationale for enacting sub-section (4) of Section 8 of the Act.

Judgement of the Case

The Supreme Court held that Section 8(4) ultra vires the Constitution and Parliament had no power to enact Sec 8(4) of the Act, 1951. Hence, disqualification for being chosen as, or, for being MP or MLA/MLC upon conviction as provided in Ss. 8(1), (2) or (3) shall come into effect immediately upon such conviction and such disqualification cannot be such disqualification cannot be postponed/suspended/suspended as was sought to be done by S. 8(4) of the Act, 1951. Hence, Section 8(4) of the Act, 1951 providing special protection/privilege to sitting MPs or MLAs/MLCs from disqualifications incurred upon conviction, under Ss. 8(1), (2) or (3) of 1951 Act and deferring date on which these disqualifications would take effect, is beyond powers conferred on Parliament by the Constitution.

It held, Parliament under Article 102 (1) sub-clause (e) and Article 191 (1) sub-clause (e)can make law “providing disqualifications” for membership of Parliament or State Legislatures — Parliament under these articles can also enact any law “relating to disqualification” for membership of Parliament or State Legislatures.

Conclusion

In conclusion, this case highlights the need for the justice system to maintain a balance between upholding the law and safeguarding individual rights. It gives the importance and the value of process of law, fair hearings, and ensuring everyone can have the opportunity to present their case. The decision strongly shows that legal proceedings must be transparent, impartial, and fair, protecting the rights of all the parties involved. This case stands as an important example of how courts address challenging legal issues while make significant efforts for fairness and justice.

References

• http://www.scconline.com/DocumentLink/JhP6v7MX
• https://www.drishtijudiciary.com/editorial/section-8-of-representation-of-the-people-act-1951#:~:text=Sub%2Dsection%20(4)%20Implementation,its%20disposition%20by%20the%20court.
• https://blog.ipleaders.in/lily-thomas-v-union-india-legalising-convicted-mps-mlas/