The Supreme Court held that the members of parliament and members of legislative assembly will be disqualified from holding membership of the house immediately after conviction of an offence, without being given the three month’s time to appeal.
By: Pallavi Kumari, 2nd Year, LLB, Symbiosis Law School, Pune.
Lily Thomas v. Union of India & Ors. AIR 2013 SC 2662: (2013) 7 SCC 653
Case No. WRIT PETITION (CIVIL) NO. 490 OF 2005
Petitioner: Lily Thomas
Respondent: Union of India & Ors.
Date of the Judgment: 10-07-2013
Bench: A.K. Patnaik and S.J. Mukhopadhaya
In the year 2013 a two-judge bench comprised of Justices A.K. Patnaik and S.J. Mukhopadhaya pronounced a judgement disqualifying the members of legislative assembly and member of parliament if they are convicted in a criminal case. A petition was filed before the Supreme Court one by Lily Thomas and the other was filed by Lok Prahari, through its general secretary S.N Shukla, both the petition was on similar lines demanding disqualification.
The criminalisation of politics is a subject that affects the very essence of a democratic setup as it hampers the fairness of the election process.
- A Public interest Litigation was filed by a supreme court lawyer, Lily Thomas and an NGO Lok Prahari by which they challenged the Sec 8 (4) of the Representation of the People Act, 1951 as ultra vires to the Constitution. The main idea behind the petition was to restrict the entry of convicted individuals in the legislative houses and prohibition on such criminal acts.
- Article 102(1) and article 191(1) of the Constitution of India states down the disqualifications for a member of the Parliament and a member of the Legislative Assembly respectively, at the same time it also authorizes the Central Government to bring about additions to the disqualification.
- Sec 89(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 if the 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 raised in the case was that- Whether the Parliament was competent to enact Sec 8(4) of the act?
- Secondly whether Sec 8(4) of the act was infringing the provisions of the Constitution of India and it ran counter to the meaning and the objectives of the framers of the Constitution since it permitted persons of a certain class to hold membership even when convicted of an offence?
- Shri Manni Lal v. Shri Parmal Lal and Others  Para 9: The legal basis of section 8(4) of the Act is based on an earlier judicial view in the judgment of a Division Bench of this Court in Shri Manni Lal v. Shri Parmal Lal and Others that 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.
- Keshavanadna Bharati v. State of Kerala: The correctness of the aforesaid principles with regard to interpretation of a written constitution has been re-affirmed by the majority of Judges in Kesavananda Bharti v. State of Kerala .Hence, when a question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument by which affirmatively, the legislative powers were created, and by which negatively, they are restricted.
- Navjot Singh Sidhu v. State of Punjab and Another : The Court has clarified that under sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on the Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction.
- K. Prabhakaran v. P. Jayarajan : It was argued that as soon as a person is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified from continuing as a member of Parliament or of a State Legislature no matter he has filed an appeal or a revision against the conviction and there is no legal basis for providing in section8(4) of the Act that his disqualification will not take effect .
- In The Empress v. Burah and Another the Privy Council laid down the fundamental principles for interpretation of a written constitution laying down the powers of the Indian Legislature saying
“The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it; and it can, of course, do nothing beyond the limits which circumscribes these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself.”
- Election Commission, India v. Saka Venkata Rao : In the case it was laid down “the same set of disqualifications for election as well as for continuing as a member”.
- Golak Nath and Others vs. State of Punjab and Another : it held that the Court has the power not only to declare the law but also to restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise.
- Harla v. State of Rajasthan : Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act.
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 disqualification for a person who is to be chosen as member of any house and also for a person who is a sitting member of 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 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 avoid the natural corollary of a disqualification.
Hence, Sec 8(4) of the act which creates 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.
 [(1970) 2 SCC 462]
 AIR 1973 SC 1465)
 ([2007) 2 SCC 574
 [(2005) 1 SCC 754].
 [(1878) 5 I.A. 178]
 AIR 1967 SC 1643
 AIR 1951 SC 467)