Lilly Thomas v. Union of India 2013 (7) SCC 653
In India it is a known fact which has been debated since a long time that the nexus between criminality and politics goes to the root of keys problems which our country is facing. The power of muscle men cripples the efforts made by the politicians who actually wish to work in the interest of the common man and not ‘theirs’.
However, the instant case happens to be a landmark decision which has the potential to facelift our Indian democracy and curb the entry of people with a criminal bent of mind into the Parliament and legislative houses of our democracy.
A Public Interest Litigation was filed by a public spirited lawyer, Lilly Thomas and an NGO Lok Prahari by which they challenged the Sec 8 (4) of the Representation of the People Act, 1951(hereinafter referred to as the Act) as ultra vires to the Constitution. The main idea behind the petition was to stop the entry of convicted individuals in the legislative houses and put a ban on such criminal elements.
Article 102(1) and article 191(1) of the Constitution of India lay down the disqualifications for a Member of the Parliament and a Member of the Legislative Assembly respectively at the same time it also empowers the Central Government to add more disqualification in its wisdom.
Sec 8 (4) of the act provides that if a sitting member of the house who is convicted for an offence which is punishable for more than two years imprisonment and such a convicted person moves an appeal within three months of the conviction then he shall not be disqualified from holding the membership of the house.
The first issue to be deliberated in the case was that whether the parliament was competent to enact Sec 8 (4) of the act.
The second issue was that whether Sec 8 (4) of the act was in contravention of the provisions of the Constitution of India and it ran counter to the intention and the aspirations of the framers of the Constitution since it allowed persons of a certain class to hold membership even when convicted of an offence.
It was contended that A. 102 and A. 191 of the constitution only provides the parliament the power to add more disqualifications than the ones already mentioned in the articles and does not provide the power to exempt the sitting members from losing their membership on being convicted.
It was also contended that a higher court may stay the order of conviction of a sitting member of the house and allow him to continue as a member however, a blanket ban cannot be imposed to keep the disqualification in abeyance
It was further argued that the sec 8 (4) does not provide a rationale for differentiating between a sitting member and a proposed to be member. It was against Article 14 of the constitution of India since the section was discriminating between a sitting member and a proposed to be member.
It was argued that if a sitting member was disqualified then the strength of the house would come down and if bye election were held to fill his vacant seat then a subsequent order of acquittal will result in complications and that is the reason for carving out a distinct provision like sec 8(4) of the act.
It was also argued that the power to make such a law vested in the parliament by virtue of the A. 101(1)(e) and A, 191(1)(e) which provided as to when the conviction of a sitting member will affect the membership and also by virtue of the fact that the parliament had power to legislate on any matter which is not enumerated in the II and III list of the seventh schedule of the Constitution.
It was held by the court A. 102(1)(e) and A. 191(1)(e) of the constitution of India confer power on the Parliament to make a single law which lays down the disqualifications for a person who is to be chosen as member of any house and also for a person who is a sitting member any house.
It was held that once a member becomes disqualified then his seat automatically becomes vacant by virtue of A. 101(3)(a) and A. 190 (3)(a) of the Constitution of India. Hence the Parliament cannot make provision to defer the date on which the disqualification will have effect and prevent the member’s seat from becoming vacant on account of the disqualification.
It was held that the Articles put a limitation on the power of the Parliament to defer the date on which the disqualifications would have effect and a special provision cannot be created to avoid the natural corollary of a disqualification.
Hence sec 8(4) of the act which creates a distinction between a sitting member and a proposed to be member of the house since it defers the date on which the disqualification will take effect in the case of a sitting member of the house is beyond the powers conferred on Parliament by the Constitution thereby making it ultra vires to the constitution of India.
It was further clarified that there may be individuals who are sitting members and they have been disqualified due to conviction and since they have filed an appeal their membership must have continued to stay intact. By placing reliance on the case of Golak Nath v. State of Punjab AIR 1967 SC 1643 it was held that sitting members of the respective houses who may have filed an appeal for their convictions and whose revisions or appeals are pending should not be affected by the present judgment.