Case Summary- Lily Thomas v Union of India, 2013

INTRODUCTION

Lily Thomas v Union of India is an attempt by the Supreme Court to free the political setup from the criminal elements. Lily Thomas was the petitioner, and the Union of India and others were the respondents.

BACKGROUND

The Constituent Assembly of India intended to lay down some qualifications for persons being chosen as and for being a member of either House of Parliament, as well as a member of the Legislative Assembly pr Legislative Council of the State. Accordingly, the Constitution, under Articles 102 and 191, provides for disqualifications for membership of either House of Parliament and for disqualifications for membership of the Legislative Assembly or the Legislative Council of the State, respectively.
In addition to the disqualifications mentioned in the Constitution, Article 102(1)e) and Article 191(1)e) empower the Parliament to make any law to lay down disqualifications for membership of Parliament and
State Legislatures.

Exercising its power under these Articles, the Parliament, in Chapter 11 of the Representation of the People Act, 1951, provided for certain disqualifications.
Section 8, under Chapter III of the Representation of the People Act, 1951, provides for disqualification on Conviction for certain offences. Sections 8(1) and 8(2) list out the offences and the duration of punishment for which a person attracts disqualification.
Section 8(3) states that a person convicted of any offence and sentenced to imprisonment for not less than two years, other than any offence referred to in Sub-section (1) or Sub-section (2), 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) states that ‘”Notwithstanding anything in Sub-section (1), Sub-section (2) or Sub-section (3), a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until the court disposes of that appeal or application’.
In other words, a Member of Parliament or the Legislature of a State cannot be disqualified under Sections 8(1), 8(2) and 8(3) until three months have elapsed from the date of the conviction or until the appeal is disposed of by the court if he/she filed an appeal within those three months against the conviction or the sentence. Lily Thomas filed a petition in the Supreme Court and challenged the constitutional validity of the ‘protection’ provided in Subsection (4) of Section 8 of the Representation of the People Act, 1951, for a Member of Parliament or the Legislature of a State.

ARGUMENTS

The petitioners contended 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 ither the House of 1 Parliament or of the Legislative Assembly or the Legislative Council of a State, Therefore, 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 Parliament or al member of the state legislature cannot be different.

Saka Venkata Rao (1953) judgment, which held that Article 191 lays To support their submission, they cited Election Commission of India down the same set of disqualifications for election as well as for continuing as a member. Provides an opportunity for the sitting member to file an appeal against the So, they submitted that Subsection (4) of Section 8 of the Act, which conviction or sentence within three months from the date of conviction, is in contravention of the provisions of Clause (1) of Articles 102 and 191 of the Constitution.
They also submitted that during the Constituent Assembly debate, an amendment, moved by one of its members, Mr Shibban Lal Saksena, to insert a similar protection was rejected. Despite this, the Parliament has enacted Subsection (4) of Section 8 of the Representation of the People Act, 1951.
They contended that 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 a member of the State legislature, the Parliament lacks legislative powers to enact Section 8(4) of the Act and therefore, it is ultra vires the Constitution.
They also submitted that Subsection (4) of Section 8 of the Act is arbitrary and discriminatory and is violative of Article 14 of the Constitution, as it classifies the sitting members of Parliament and State Legislatures into a separate category and protects them from disqualification.
Thus, the petitioners argued that as soon as a person is convicted of any of the offences mentioned in Subsections (1), (2) and (3) of Section Q of the Act, he becomes disqualified from continuing as a Member of Parliament or of a State Legislature even though he has filed an appeal or a revision against the conviction.
On the other hand, respondents submitted that the validity of Subsection (4) of Section 8 of the Act has been upheld by the Constitution Bench of the Supreme Court in K. Prabhakaran v. P. Jayarajan.

THE JUDGEMENT

After hearing the arguments of the petitioners and the respondents. The Supreme Court held that the powers of Parliament to make any law providing disqualifications for membership can be located only in Articles 102(1)(e) and 191(1)e) of the Constitution. A reading of the aforesaid two provisions makes it abundantly clear that 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 of the State Legislature.
The Constitution Bench of the Supreme Court in Election Commission of India v. Saka Venkata Rao observed that ‘..the same set of disqualifications for election as well as for continuing as a member’, Thus, the Parliament does not have the 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.
In other words, due to disqualification, if a person cannot be chosen as a Member of Parliament or State Legislature, he cannot continue as a Member of Parliament or the State Legislature due to the same disqualification. The Court also held that *once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision to defer the date on which the disqualification of a sitting member w have effect and prevent his seat becoming vacant”.
In other words, Articles 101(3)(a) and 190(3)(a) of the Constitution provide 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 that falls vacant may await the decision of the President O the Governor.
Accordingly, Subsection (4) of Section 8 of the Act, which carves out a protection in the case of the disqualifications under Subsection (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect, is beyond the powers conferred on Parliament by the Constitution. Therefore, the Court held that Subsection (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 offences mentioned in subsection (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 Subsection (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.

IMPACT

In an attempt to nullify this judgment, the Representation of the People (Second Amendment and Validation) Bill 2013 was introduced in the Rajya Sabha. It provided that there would be no automatic disqualification of MPs and MLAS upon conviction. However, this was later withdrawn. Since the judgment, some lawmakers have lost their seats after conviction