LILY THOMAS v. UNION OF INDIA & ORS 2013 (7) SCC 653

Author- Sakshi Garge

Electoral Disqualification:

  • Case Name: LILY THOMAS v. UNION OF INDIA
  • Court: In the Supreme Court of India
  • Citation: 2013 (7) SCC 653
  • Case No.: Writ Petition (Civil Original Jurisdiction)
  • Petitioner: Lily Thomas, Lok Prahari NGO, through its general secretary
  • Respondent: Union of India & Ors.
  • Bench: A.K. Patnaik, Sudhansu Jyoti Mukhopadhaya.

Introduction:

The case LILY THOMAS v. UNION OF INDIA is concerned with the “electoral disqualification” of Members of Parliament, Members of the Legislative Council, and Members of Legislative Assembly. A 2 Judge bench of the Honorable Supreme Court on 10 July 2013 ruled that MPs and MLAs convicted of crimes where 2 years imprisonment would cease to be a member.

This landmark case between the Politics and Criminalization happens to strike down the provision which previously allowed convicted members a 3months time period for appeal. However, this instant decided the case of the Criminalization of Politics to change the picture of members of parliament resulting in better legislative power.

Keywords: Lily Thomas v. Union of India , lily Thomas case summary, Lily Thomas v. Union of India judgment, lily Thomas case comment

Facts of the case:

  • A Public Interest Litigation (PIL) was filed by a lawyer, Lily Thomas along with an NGO Lok Prahari where it challenged the subsection (4) of section 8 of the Representative of People’s Act[1] lay down some disqualifications for members of parliament or members of the legislative council and legislative assembly, as ultra vires to the Constitution of India.
  • The intention behind this PIL was to stop the entry of convicted in the Parliament and to prohibit such criminalization of Politics.
  • Article 102 (1) states the disqualification for membership of either of the House of Parliament. Article 191 (1) states the disqualification for membership of the Legislative Council and Legislative Assembly.
  • In exercise of the power conferred under Article 102 (1) (e) and under Article 191 (1) (e) of the constitution, provided in the chapter – III of the  Act (ROP), 1951, Section 8 (4) provides that if a sitting member of the house who is convicted for an offense which is punishable for more than 2 years of imprisonment and can appeal within 3 months of the conviction then he shall not be disqualified from holding membership of the House.

Issue:

  1. Whether the parliament was competent to enact section 8 (4) of the Representation of People’s Act. 1951?
  2. Whether section 8 (4) of the Representative of People’s Act contravenes the provisions laid down in the Constitution of India, as it allowed persons to hold membership even when convicted of an offense?

Rules:

Article 102: Disqualifications for membership.

A person shall be disqualified for being of either House of Parliament –

  •  if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by the Parliament by law not to disqualify its holder;
  •  if he is of unsound mind and stands so declared by a competent court;
  • If he is an undischarged insolvent;
  • If he is not the 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;
  • If he is so disqualified by or under any law made by parliament.

Article 191: Disqualifications for membership.

For being chosen as, and for, being a member of the Legislative Assembly or Legislative Council of a state –

  • 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;
  • if he is of unsound mind and stands so declared by a competent court;if he is an undischarged insolvent;
  • 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;
  • if he is so disqualified by or under any law made by Parliament.

Representative of People’s Act, 1951:

Under Article 102 (1) (e) and under Article 191 (1) (e) of the Constitution, the concerned sections are 7 and 8 of Act (ROP), the disqualifications for membership of Parliament and State Legislatures as provided in Chapter – III.

Arguments :

Arguments by Petitioner –

  1. It was argued that the Constitution does not provide any power to be a member when convicted. There is clear provision in Art. 102 and Art. 191.
  2. The Article 102 and Article 191 of the Constitution are the same disqualifications for ‘a person being chosen as a member’ and for ‘a person being a member’ of the either of the Houses of Parliament or Legislative Council/ Assembly cannot be different.
  3. The above (2.) point was supported by the case Election Commission, India v. Saka Venkata Rao (AIR) it had been held that Article 191 lays down the same set of disqualifications for election and for continuing as a member. It was also violative of Article 14 of Constitution since it discriminated between being chosen member and being member.
  4. Further, it contented that section 8 (4) states that the member (MP or MLA) shall have no effect if he files an appeal or revision in respect of conviction within 3 months till it is disposed by the court, thus contravenes the provisions of clause (1) of Art. 102 and Art. 191 of the Constitution of India.

Arguments by Respondent –

  1. The point put forth was about the strength of House would affect and also the strength of the Political party to which such convicted member belongs to resulting in the formation of Government in power.
  2. After the member stands convicted, the question of vacancy arises and so bye-elections are answered but bringing complications highlighting section 8 (4) of the Act (ROP).

LILY THOMAS v. UNION OF INDIA –Judgement:

It was then held that once the member of either House of Parliament and Member of Legislative Council and Legislative Assembly becomes disqualified i.e. convicted then his seat will automatically lapse or vacant under the provision of Article 101 (3) (a) and Article 190 (3) (a) expressly prohibit Parliament to defer the date from which the disqualification will come into effect. Thus, it has exceeded its powers conferred by the sub-section (4) of section 8 of the Act is ultra vires / contravenes the Constitution of India.

Directions:

  1. The question of whether the Judgement of this case is applicable to those who have filed appeals or revision against their conviction pending in courts will be followed as in case of Golaknath v. State of Punjab and Ors. (AIR 1967 SC 1643) held the Articles 32,141,142 are flexible to formulate the legal doctrines to achieve legal justice, saying not only to declare law but also to restrict the law.
  2. Being members i.e. sitting members both MPs and MLA’s, who are already convicted are saved from the disqualifications under section 8 (4) of the Act should not be affected by this judgement.
  3. When disqualified under section 8 of the ROP and under sections 366 and 376 of IPC will cease to operate after the stay of conviction.

Precedents:  

Union of India v. Association for Democratic Reforms

In the above case, it was held by the Honorable Supreme Court of India, about the criminalization of politics that the electors have the fundamental right guaranteed under the Constitution of India read as right to be informed as under freedom of speech and expression. The right to know the antecedents of candidates contesting elections to hold public office.

PUCL v. UOI

Here, the People’s Union for Civil Liberties had challenged Section 33 B of the Act (ROP) third amendment which nullified the judgement given in the previous case of the Union of India v. Association for Democratic Reforms. No need to File affidavit of criminal antecedents and other details.

K. Prabhakarn v. P. Jayarajan

In this case, the disqualification of members under section 8 of Representation of People’s Act, sub-section 3 stating the convicted should not make the law, preventing the criminalization in politics and have better members with a clear and fair background.

Analysis :

The above-discussed Lily Thomas v. Union of India case deals with the criminalization of politics. It was taken into consideration the sections of the ROP Act and the Constitution of India regarding the disqualification of the convicted members of either House of Parliament and members of Legislative Council/ Assembly.

This also proved the doctrine of separation of power, where Legislative and Judiciary should not interfere in between. Parliament i.e. Judiciary has to make laws and open to suggestions.

The convicted should know their fault and be prevented from polluting the legislative environment and give a fair chance to clear candidates/members.

Conclusion :

To conclude, from the above analysis and case comment, we can observe the fact that no matter what is the holding position, the convicted should be prevented from the criminalization of politics, in return resulting to the Government in Power, taking into consideration the effect of this judgement (strength of the party and legislation). This landmark case of Lily Thomas v. Union of India has taken to assure fair and just politics and governance.


References:

[1] Hereafter referred as Act (ROP)

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