Case Analysis: Lily Thomas v Union Of India (2013)

Lily Thomas v Union of India (2013) was a landmark judgment delivered by the Supreme Court in 2013 relating to disqualification of Members of Parliament and Members of the State Legislature in case of criminal convictions as mentioned in the Representation of the People Act, 1951. The Supreme Court heard two writ petitions together as they related to the same issue, in both cases the petitioners prayed for Section 8(4) of the Representation of the People Act, 1951 to be declared ultra vires of the Constitution because, inter alia other reasons, the Parliament lacked the legislative power to enact the impugned provision.

The present article, ‘Case Analysis: Lily Thomas v. Union of India [(2013) 7 SCC 653]’ will discuss the judgment rendered by the Supreme Court as well as the arguments of both parties.

Introduction

“The Central government …told the Supreme Court that convicted lawmakers need not be automatically disqualified from parliament or state legislatures as they have the right to move an appellate court to stay such a verdict…. A number of lawmakers had been asked to vacate their seats after the Supreme Court ruled in the Lily Thomas vs. Union of India case that a convicted lawmaker automatically stood disqualified. The …[Central] government, despite this ruling, said that a legislator could approach a court to stay a conviction and remain in their post.”[1]

The above extract, taken from a news article published in 2017, nearly 4 years after the rendering of the Supreme Court judgment in Lily Thomas v. Union of India[2] (‘Lily Thomas case’) illustrates the persistent issue of criminality in political systems. Civil society and members of the general public have often questioned whether Members of Parliament (‘MPs’) and Members of Legislative Assemblies (‘MLAs’) should not be disqualified from serving as political representatives of the people if they have prior criminal convictions.

Lily Thomas, a senior advocate, along with S.N. Shukla were the petitioners in this case while the Union of India and others were respondents. The prayer of this writ petition was to declare a certain provision of the Representation of the People Act, 1951 as ultra vires the Constitution. The present article has been structured into three main parts. The first part shall discuss the legal background of the case before the Supreme Court (‘the SC’). The second part will examine the arguments from both sides. The third part will analyze the judgment rendered by the SC.

Legal Background

Before discussing the arguments of both parties, this section will discuss the legal background of the legislation and provisions mentioned in the judgment. The SC discusses this background in paragraphs 1 to 3 its own judgment. The term ‘disqualified’ refers to being disqualified for being chosen as and for being a member of either House of Parliament or of the State Legislature.[3]

Given as the petitioners put forward Section 8(4) of The Representation of the People Act, 1951 (‘the Act’) as the impugned section which was ultra vires of the Constitution, it is necessary to discuss the legislative history of this statute. The Constituent Assembly of India intended to lay down some disqualifications for persons chosen as and for being a member of either House of Parliament as well as a member of the Legislative Assembly or Legislative Council of the States while drafting the Constitution.[4]

In furtherance of this intention, the Constitution under Articles 102 and 191 provided for the disqualifications for membership of either Houses of Parliament and disqualifications for membership of the Legislative Assembly or Legislative Council of the State respectively. In addition, the disqualifications mentioned in the Constitution, Articles 102(1)(e) and 191(1)(e) empower the Parliament to make any law to lay down disqualifications for membership of the Parliament and State Legislatures.[5]

Exercising its power under these Articles, The Parliament in Chapter-III of the Act provided for certain disqualifications for membership of the Parliament and State Legislatures.[6] Section 8 under Chapter-III of the Act provides for disqualification on conviction of certain offenses.

Sections 8(1) and 8(2) list out the offenses and the duration of punishment for which a person attracts for disqualification.

Section 8(3) of the Act states that a person who has been convicted of any offenses and sentenced to imprisonment for two years or more, [other than any offense listed in Sub-section (1) or (2) of Section 8] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

However, Section 8(4) of the Act contains a non-obstante clause, which provides an exception to the disqualifications mentioned in any of the sub-sections of (1), (2), or (3) of Section 8. In other words, a Member of Parliament or the Legislature of a State cannot be disqualified under Sections 8(1), 8(2), or 8(2) of the Act, until three months have elapsed from the date of the conviction or until the appeal or application filed by that person within that three-month period, is disposed of by the court.[7]

The cause of action then was when the petitioners filed a writ petition in the SC, challenging the constitutional validity of the ‘protection’ provided in Sub-section (4) of Section 8 of the Act for a Member of Parliament or the Legislature of State.[8]

Arguments

Petitioners

The savings or protection provided in Section 8(4) of the Act was challenged by the petitioners as being violative of the Constitution.

The first argument submitted by the petitioners was that there were inherent inconsistencies in the impugned section. It was submitted that the set of disqualifications for being chosen as a member of either House of Parliament or the State Legislature is the same. Thus, the disqualifications for a person to be elected as a member of either House of the Parliament or a member of the State Legislature and for a person to continue as a member of either House of the Parliament or a member of the State Legislature cannot be different.

For this argument, the petitioners relied on the decision in the Election Commission of India v. Saka Venkata Rao[9] case which held that Article 191 lays down the same set of disqualifications for election as well for continuing as a member. Thus, they submitted the impugned section, which provides an opportunity for the sitting member to file an appeal against the conviction or sentence within three months from the date of conviction, which is in contravention of the provisions of Articles 102(1) and 191(1) of the Constitution.

Secondly, they submitted that during the debates of the Constituent Assembly regarding Article 83 of the Draft Constitution, an amendment that was moved by one of its members Mr. Shibban Lal Saksena, to insert the similar protection as is indicated in the impugned provision, was rejected. Despite this, the Parliament has enacted Section 8(4) of the RP Act, 1951.

It was the case of the petitioners that in absence of a provision in Articles 102 and 191 of the Constitution conferring power on the Parliament to make a provision protecting sitting members of either House of Parliament or a member of State Legislature, the Parliament lacks the required legislative power to enact Section 8(4) of the Act and therefore it is ultra vires the Constitution.

Thirdly, the petitioners submitted that Section 8(4) of the Act is arbitrary and discriminatory in nature and thus is violative of Article 14 of the Constitution, as it classifies the sitting members of the Parliament and State Legislatures into a separate category and protected them from disqualifications, thereby creating a lack of intelligible differentia that is required for satisfying the conditions of Article 14.

The petitioners also referred to the new judicial interpretation of Section 8(4) of the Act, and that the legal basis of the impugned section is based on an earlier judicial precedent[10] that was set aside by a Constitution Bench of the Supreme Court in B.R. Kapur v. State of T.N. and Another.[11] In the earlier case,[12] it was held that “what when a conviction is set aside by an appellate order of acquittal, the acquittal takes effect retrospectively and the conviction and the sentence are deemed to be set aside from the date they are recorded.”[13]

However, this view was reversed in the B.R. Kapur case (above), wherein it was held that “conviction [against a person], and the sentence it carries, operate against the accused in all their rigor until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well.”[14] The petitioners further stated that this view had also been reaffirmed recently, by the judgment rendered in K. Prabhakaran v. P. Jayarajan.[15] In that case, both the appellant and respondent were candidates in a Kuthuparamba Assembly Constituency Election.

The respondent was charged with certain offenses, and sentenced to a total of two years and five months of imprisonment, however, the respondent appealed his conviction and was released on bail pending appeal. Subsequently, the respondent filed nomination papers for contesting elections which were disputed by the appellant as the respondent was convicted and sentenced to imprisonment for a term exceeding 2 years was disqualified from contesting the election.

However, the returning officer accepted the respondent’s nomination paper on the grounds that since he was convicted of many offenses, none of whose punishment exceeded two years, he was not disqualified within the meaning of section 8(3) of the Act. The findings, in this case, was mentioned by the petitioners in support of their case, that in K. Prabhakaran v. P. Jayarajan,[16] the SC held that in Section 8(3) of the Act, the gravity of the offense is not to be considered but the duration of the imprisonment is important for disqualification.[17]

Thus, according to the petitioners, as soon as a person is convicted of any of the offenses mentioned in Sub-sections (1),(2), and (3) of Section 8 of the Act, he should become disqualified from continuing as a member of either House of Parliament or a member of State Legislature notwithstanding the fact that he has filed an appeal or a revision against the conviction.

Respondents

On the other hand, respondents submitted that the validity of Section 8(4) of the Act has been upheld by the Supreme Court in K. Prabhakaran v. P. Jayarajan.[18] Section 8(3) was mostly discussed in the K. Prabhakaran case, and they further submitted that the purpose of Section 8(4) of the Act is not to confer an advantage on sitting members of Parliament or of a State Legislature but to protect the House itself. The petitioners, referring to the K. Prabhakaran case, said the disqualification will have two consequences:

• 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 thin majority where each member counts significantly and disqualification of even one member may have a deleterious effect on the functioning of the Government.
• A bye-election shall have to be held- but this exercise may prove to be futile also resulting in complications in the event of the convicted member being acquitted by a superior criminal court.

For these reasons, the Parliament has classified the sitting members of Parliament or a State Legislature in a separate category and provided ‘protection’ in Section 8(4) of the Act. Additionally, the respondents also submitted that the reality of the Indian judicial system is that acquittals in the level of the Appellate Court such as the High Court are very high, and the three-month period provided in the impugned section is in light of such realities.

Finally, they argued that the power to legislate on disqualification of members of Parliament and the State Legislature conferred on Parliament carries with it the incidental power to say when the disqualification will take effect. Therefore, the source of the legislative power for enacting Section 8(4) of the Act is drawn from Articles 102(1)(e) and 191(1)(e) of the Constitution.

Analysis Of Judgment

In analyzing the arguments, the Court first dealt with the issue of the legislative power of the Parliament to enact the impugned section. In the view of the Court, Section 8(4) of the Act had not been discussed at all by the SC in its decision in the K. Prahabhakaran case, and the Hon’ble Court preferred to discuss the holding of the Privy Council in a separate case.[19]

Given that the petition entailed a question of whether the Parliament exceeded the limits of its power, the principles of interpretation as laid down in the Privy Council case held that such question is to be decided by considering the legislative instrument by which the powers were affirmatively created and by which the power is negatively restricted.[20]

The Court rejected the argument of the respondents that the power to enact the impugned provision was drawn from Article 246 (1) read with Entry 97, List I of the Seventh Schedule and Article 248 of the Constitution. In the view of the court, the power to enact the impugned provision was drawn from the specific powers mentioned in Articles 102(1)(e) and 191(1)(e) of the Constitution. Thus, it was held that the legislative power to enact any law relating to disqualification for membership of either House of Parliament or of the State Legislature is located only within Articles 102(1)(e) and 191(1)(e) of the Constitution, and not as proposed by the respondents.

Secondly, the court held that “…[the] Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State.”[21] Again, the argument of the petitioners was accepted that two separate standards of disqualifications cannot persist in the current system.

The Court in the present case relied on the holdings of the Constitution Bench of the Supreme Court in Election Commission of India vs. Saka Venkata Rao [22]with regard to the contention made by the petitioners that two separate standards were being applied for sitting members of Parliament or either State Legislature. In the 1953 case, the Constitution Bench had observed that Article 191(1) [which is identically worded as Article 102(1)] lays down “the same set of disqualifications for election as well as for continuing as a member.”

Thus, in the view of the SC in the present case, “Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.”[23] The Court further observed that “… if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature.”[24]

In other words, the Parliament was held to not have the legislative power to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a Member of Parliament or the State Legislature. According to the Court, Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have an effect.

The seat of a member, who becomes subject to any of the disqualifications, will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor under Articles 103 and 192, respectively, of the Constitution. However, the filling of the seat which falls vacant may await the decision of the President or the Governor.

Accordingly, Sub-section (4) of Section 8 of the Act which carves out protection in the case of the disqualifications under sub-sections (1), (2), (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect was held to be beyond the powers conferred on the Parliament by the Constitution.

Thus, affirmatively speaking, Articles 102(1)(e) and 191(1)(e) of the Constitution vest the Parliament with the powers to make law laying down the same disqualifications for a person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. At the same time, the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution negatively restrict the Parliament from deferring the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature.[25]

Therefore, the Court held that Sub-section (4) of Section 8 of the Act is ultra vires the Constitution. The court also made it clear that the sitting members of parliament and state legislature who have already been convicted for any of the offenses mentioned in sub-sections (1), (2), and (3) of Section 8 of the Act, and who have filed appeals which are pending and are saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act will not be affected by this judgment. In other words, the judgment will be enforced prospectively from the date of judgment.

Conclusion

Even after this judgment was passed, the Parliament attempted to alleviate the full effect of the holdings of the Court by the introduction of the Representation of the People (Second Amendment and Validation) Bill, 2013. Section 8(4) of the Act functioned to provide a convicted MP or MLA a three-month period to disqualification.[26] This Bill essentially “replaces that provision of the Act” and functioned as a prohibition on automatic disqualification of Members of Parliament or Members of the State Legislature upon a criminal conviction. However, this Bill was subsequently withdrawn.[27]

The issue of criminality in political systems or the prospect of convicted criminals who are also MPs or MLAs has remained a hotly contested issue. Prior to the writ petition filed by Ms. Lily Thomas and others, MPs and MLAs, who had been convicted of criminal charges as mentioned in Section 8 of the Act, were able to file appeals in the three-month period stipulated by Section 8(4) of the Act, without giving up their membership.

After the Lily Thomas judgment in 2013, and Section 8(4) of the Act being held unconstitutional, the savings provision of section 8(4) of the Act was eliminated. Presently, while convicted MPs and MLAs still have the right to appeal any criminal conviction as mentioned under Section 8 of the Act, they immediately cease to be members of the house on the date of such conviction. The legacy of Lily Thomas v. Union of India (2013) has been to bring the existing inconsistencies of laws relating to disqualifications of MPs and MLAs to light and strike down the deleterious impact of Section 8(4) of the Act.

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[1] Convicted Lawmakers Need Not Be Automatically Disqualified From Legislature: Centre Tells SC, The Wire, (21/09/2017), Available here

[2] Lily Thomas v. Union of India [(2013) 7 SCC 653]

[3] Section 7(b), Representation of the People Act, 1951.

[4] Supra, at note 2.

[5] Supra, at note 2.

[6] Supra, at note 2.

[7] Section 8(4), Representation of the People Act, 1951.

[8]Supra, at note 2.

[9] AIR 1953 SC 210.

[10] Shri Manni Lal v. Shri Parmal Lal and Others [(1970) 2 SCC 462]

[11] [(2001) 7 SCC 231]

[12]Supra, at note 10.

[13] Ibid.

[14] Supra, at note 11.

[15] [(2005) 1 SCC 754]

[16] Supra, at note 15.

[17] W. Beg, S. Chatterjee, et al, Decriminalisation of Politics: Does Section 8 of the Representation of the People Act, 1951 Pass the Muster of Rationality, SCCOnline Blog, (10/09/2021), Available here

[18] Supra, at note 15.

[19] The Empress v. Burah and Another [(1878) 5 I.A. 178]

[20] Ibid.

[21] Supra, at note 2.

[22] Supra, at note 9.

[23] Supra, at note 2.

[24] Supra, at note 2.

[25] Supra, at note 2.

[26] Representation of the People (Second Amendment and Validation) Bill, 2013, PRS, Available here

[27] Ibid.

Originally Published On: Jan 29, 2022

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