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Lily Thomas vs Union of India

INTRODUCTION

“The basic fundamental principles mentioned under the preamble like Justice, Equality before law, Freedom of Speech and Expression and Opportunity. The word “Amendment” will not give any right to destroy the basic principles”[1]– Justice Jaganmohan Reddy.

The famous Fundamental Right case where the constitution of India was saved, Kesavananda Bharati v. State of Kerala[2]. It was held that parliament doesn’t have the ultimate power to change the constitution. The legislature cannot arbitrarily amend the basic feature of the constitution and make a law that violates the basic rights of the people of India. This suggests that they can only amend the constitution without affecting the basic essence of it, the reality of the constitution should never be changed through any amendment of the parliament. In simple words, such as ‘Secularism’ is somewhere the basic essence of our constitution and the Indian parliament through its discretionary power can never make India an unsecular country. The constitution is above everyone to protect everyone and equal to all. Today if parliament can amend the constitution it is only because the constitution itself has incurred the power in the hands of parliament to amend it. The fundamental of this case is that the parliament can amend or make laws only to the extent as much as the constitution provides it

The present case[3] is somewhere asking a similar question to the Indian court of justice where the concern is about the extent of the lawmaking power of parliament and suggesting that the parliament arbitrarily or without proper justification cannot make a law that compromises the Democracy of India.

Criminality and politics in India can never be seen delinked with each other and many criminals from time to time have openly and widely represented the people of India. For that Indian parliament, the election commission and the Supreme Court of India have laid down various restrictions and rules to nullify and stop the criminals to continue in politics and represent people. This case had been filed to make a provision of the ROPA (Representation of People Act, 1951) unconstitutional which outlines that convicted representatives can file an appeal and consequently this will put stay on their conviction, Lily Thomas said related to it that, “it encourages tainted leaders to contest elections, this should never have been permitted”.

FACTS OF THE CASE

  • The petitioner in this case Lily Thomas filed a writ petition in the Supreme Court of India under Article 32[4] as Public Interest Litigation contending to declare the sub-section (4) of Section 8[5] of the Representation of the People Act, 1951 as inconsistent to the Constitution.
  • The defendant here is Union of India (government) itself, supporting the fact that the parliament enacted provision under the shadow of constitution and constitution under Article 102[6] and 191[7] has itself given them right to set certain more provisions relating to the disqualification of the member of parliament and member of legislative assembly or council.

ARGUMENTS in Lily Thomas vs Union Of India

  • Fali Nariman, who argued the case for the petitioner, argued that in light of articles 102(1) (e) [8]and 191(1) (e)[9]  the Parliament is not constitutionally competent to enact section 8(4). Because even though these two article give power to the parliament to pass any new law regarding the disqualification of member of parliament and member of legislative assembly but a bare reading of these articles signifies that the sitting member and the member chosen to be should be treated equally and suggest that the parliament should make similar laws regarding the disqualification of both. In contrary to that the section 8(4) of Representation of people Act, 1951 is passed for only sitting member and that is inconsistent with the reading of these two Articles.
  • Sub-sections (1), (2) and (3) of Section 8 of the Representation of people Act, 1951 provide that a person convicted of an offence mentioned in any of these sub-sections shall stand disqualified from the date of conviction and disqualification was to continue for the specific period mentioned in the sub-section. However sub-section (4) of Section 8 of the Act provides that notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) in Section 8 of the Act, a disqualification under either sub-section 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 that appeal or application is disposed of by the court. It is this saving or protection provided in sub-section (4) of Section 8 of the Act for a Member of Parliament or the Legislature of a State which is challenged in these writ petitions as ultra vires the Constitution
  • ASG Sidharth Luthra, appearing for the government, in response to this argument, argued two things.  First he argued that if the Parliament is constitutionally competent to declare the circumstances in which a MP or MLA will stand disqualified from his or her membership under articles 102(1) (e)[10] and 191(1) (e)[11],then such competence must also include within itself the competence to pass a law that may temporarily postpone the effect of such disqualification.
  • Second he argued that the constitutional ‘competence’ to legislate section 8(4) comes not from articles 102(1)(e) and 191(1)(e) but from article 246[12] read with entry 97 of list 1 of schedule 7 of the Constitution. Article 246 provides that the Parliament can make laws only on the subjects provided in List 1 of Schedule 7, State Legislatures can make laws only on subjects provided in list 2 of schedule 7 and both of them can make law only on subjects provided in list 3 of schedule 7.  This ‘entry 97’ is the ‘residuary entry’ in list 1 (also called the ‘Union List’).  Simply speaking here Luthra was trying to establish that the Parliament is competent to pass section 8(4), if not under articles 102(1) (e) and 191(1) (e) then under article 246.
  • For this plaintiffs council strongly contented that Article 246 and 248[13] of Indian Constitution is regarding the laws to be made by both the parliament and state legislature and here in this case regarding disqualification, only the parliament has the right to make laws so taking reference of article 246 and 248 is of ultra vires because Article 102 and 191 both expressly talks about the disqualification of member of parliament and member of legislative assembly and council.

FACTUAL HISTORY of Lily Thomas vs Union of India

This case named, Lily Thomas vs Union of India, (2013) 7 SCC 653, being filed as a writ under Article 32 of Indian Constitution Revolves completely around the Supreme Court of India. The petitioner Lily Thomas first filed the petition in 2005 against the criminals taking a stay from the courts, contesting the election and then entering parliament. She was 78 when she filed the petition and Justice RC Lahoti was the chief justice. At first justice Lahoti rejected her petition and asked her to prepare again. Thomas added substance to it, but the chief justice rejected it again.” The third time her petition was accepted as Writ Petition (CIVIL) No. 490 of 2005.[14]

Later Supreme Court of India in its judgment dated 10 July 2013 while disposing the Lily Thomas vs Union of India case along with (Lok Prahari v. Union of India)[15] ruled that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted of a crime and awarded a minimum of two year imprisonment, loses membership of the House with immediate effect. This is in contrast to the earlier position, wherein convicted members held on to their seats until they exhausted all judicial remedy in lower, state and Supreme Court of India. Further, Section 8(4) of the Representation of the People Act, which allowed elected representatives three months to appeal their conviction was declared unconstitutional by the divisional bench of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya.

Court held that Parliament has exceeded its powers conferred by the Constitution in enacting the Sub Section (4) of section 8 of RP Act and said that sub-section(4) of section(8) is ultra vires the Constitution and hence membership of Parliament or the State Legislature, as the case may be, will not be saved by said Sub Section and the same will terminate immediately after conviction for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Representation of people Act.

Court also observed that Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in Sub Sections (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 Sections (4) of Section 8 of the Act should not, be affected by the declaration made in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer be protected by Sub Sections (4) of Section 8 of the Act will be acquired by all concerned only on the date this judgment is pronounced by this Court. However, if any sitting member of Parliament or a State Legislature is convicted of any of the offenses mentioned in Sub Sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in Sub Sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by Sub Section (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.[16

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QUESTION OF THE LAW

A proper study of the case shows that there were three main questions of law in front of the court of justice. These are discussed below.

QUESTION 1. Whether the power exercised by parliament for enacting section 8(4) of the Representation of People’s Act was competent or agreeable or consistent with the provision given in the constitution?

No, the power exercised by the parliament was not consistent with the Indian Constitution Because the two Articles of Indian constitution Article 102 and 191 which clarifies that Parliament is to make law for both candidates and sitting members, who to be disqualified not particularly for the sitting members. But here parliament excessively used its powers and made separate protecting law for only sitting member .This is ultra vires to constitutional provision.

Here, later the Respondent argued that the legislative power to enact section 8(4) of the ROPA is taken not only from the Article 102 and 191 but located in Article 246(1) read with Entry 97 and Article 248 of the Constitution. This provides Parliament exclusive power to make laws with respect to any other matter not enumerated in List II or List III of Seventh Schedule of the Constitution.

But the court quoted in favour of petitioners contention, saying that Article 246 and 248 is regarding the laws to be made by both the parliament and state legislature and here in this case regarding disqualification, only the parliament has the right to make laws so taking reference of article 246 and 248 is of ultra vires because Article 102 and 191 both expressly talks about the disqualification of member of parliament and member of legislative assembly and council. Thus, the court did not accept Respondents contention. Hence it is ultra vires to the Indian constitution.

QUESTION 2- Whether the Section 8(4) of ROP Act applied on sitting members and elected to be, was treating them equally?

No, it was not treating them equally because The opening words of Articles 102(1)(e) and 191(1)(e)i.e. “for being chosen as, and for being, a member of either House of Parliament” clarifies that Parliament is to make law for both candidates and sitting members, who to be disqualified. In Election Commission India v. Saka Venkata Rao[17], Court held “the same set of disqualifications for election as well as for continuing as a member”. Thus, Parliament has no power under these articles to make different laws for a person to be disqualified for being elected as a member and sitting member of Parliament or the State Legislature. In contrast to that section 8(4) reading shows that it was made separately for only sitting members of parliament and state legislature to protect them from disqualification.

Hence, it was not treating them equally.

QUESTION 3- Whether Convicted person will have any remedy if appellate Court grants acquittal?

Yes, the convicted person will have remedy because in his argument Respondent argued if trial court gives a little conviction on sitting member and he asked if appellate courts grant acquittal in any of the cases, then an instantaneous disqualification will leave sitting members in trouble with immense hardship. Thus, answering this the Court cited in Rama Narang v. Ramesh Narang & Anr [18], the three-Judge Bench held that an appeal preferred under Section 374 of Cr.PC, where it was found that the appellate Court can under section 389(1) of Cr.PC or High Court in its inherent jurisdiction of Section 482 of CrPC stay a conviction. As the court cited Ravikant S. Patil v. Sarvabhouma S. Bagali [19]in which court stayed appellant’s conviction which consequently, made disqualification ceased to operate which was arising out of his conviction under Section 8(3) of RPA, thus we can say that appellate court if finds important to stay a conviction given by trial court can do it under its jurisdiction.

RATIO DECIDENDI

There is one main reason for judges to reach a conclusion in this case and this laid 1 main principle as follow

Reason:  Parliament can exercise its power to a certain reasonability, not more than that.

Principle: Convicted member will lose their seats immediately even if they appeal to a higher court however appellate court if wants can stay the conviction.

CONCLUSION Lily Thomas vs Union Of India

This case has almost changed the dimension of Indian democracy, the criminal politicians are now fearful and Indian people have increased their faith in Indian judiciary to greater heights. When there remains less criminal in politics, democracy works with ultimate efficiency and somewhere democracy reaches its aim. With conviction and vacating the seats of some of the eminent leaders like J. Jayalalithaa, Kamal Kishore Bhagat, Suresh Halvankar, Lalu Prasad Yadav, Asha Rani, Rasheed Masood and many more[20] Indian judiciary has proved itself that between politician and Indian constitution, even in practicality, always the Indian Constitution will be upheld.

Earlier when a person contesting election is charged with any criminal charges or has been convicted for the same used to appeal and be out in bail all the time and still his seat was not affected until his appeal is disposed of, a criminal politician being convicted of a certain crime by the lower court has freedom to roam around and continuously represent the people of India.

In an attempt to overturn this decision, the Representation of the People (Second Amendment and Validation) Bill, 2013, was introduced into the Rajya Sabha on 30 August by Law Minister Kapil Sibal; by the proposed amendment, representatives would not be disqualified immediately after conviction.The Indian government also filed a review petition, which the Supreme Court dismissed.On 24 September, a few days before the fodder scam verdict, the government tried to bring the bill into effect as an ordinance.However, Rahul Gandhi, Vice-President of the Indian National Congress, made his opinion of the ordinance clear in a press meeting: “It’s complete nonsense. It should be torn up and thrown away.”  Within 5 days, both the ordinance and the bill were withdrawn on 2 October.

On 1 October 2013, Rasheed Masood became the first MP to lose his membership of parliament under the new guidelines, when he was sentenced to four years imprisonment for cheating, forgery and corruption.

This act of parliament showed that the criminals sitting in the political parties became so afraid of the decision of supreme court that they wanted to overturn the verdict but the people of India being so sensible opposed it with full power And proved that “ WE THE PEOPLE OF INDIA ARE SOVEREIGN”.

VIEWS AND SUGGESTIONS

Political parties and Corruption are interrelated to each other. Influence of cash affects the election procedure, the influence of cash has an evil impact on the election procedure and trading off the honesty of a discretionary vote based system remains a huge test today. Candidates with criminal records never covered their reputation. Prior to this judgement , a politician having a seat in the ruling party in any place of India reportedly brag and proudly say to a party worker that he was the “greatest criminal”. Such affirmations by politicians corrupt the essence of democracy completely.

We can argue that people with criminal background or allegation should be debarred from contesting election but to disqualify candidates charged with crimes (as opposed to those convicted) would require an amendment to the Representation of the People Act. That is the domain of the legislature and thus it is Parliament that should take action. But in terms of natural justice, disqualifying persons from contesting elections at the stage of framing of charges is a blatant violation of due process. It can easily lead to abuse, with politicians filing false cases in order to disqualify their opponents. The political class has already taken measures that will help clean up the system. For example, fast-track courts have recently been established to try cases involving politicians speedily.

There can be two simple ways to keep potential criminals out of the electoral arena:

1)  Political parties can choose to not give tickets to aspirants charged with heinous crimes.

2)  Voters can reject such candidates at the polls.

Supreme Court has done its part in decriminalizing Indian politics. But SC or Election Commission cannot decriminalize politics single-handed since they require support from legislation too. Hence it is in the hands of the parliament to frame a law that decriminalizes Indian politics effectively.

In the words of Dr Rajendra Prasad, “A constitution like a machine is a lifeless thing. It acquires life because of the men who control it and operate it”[21]. Therefore good and quality politicians are needed for India to become a vibrant democracy through good governance.

BIBLIOGRAPHY

https://www.governancenow.com/news/regular-story/lily-thomas-v-union-india

http://legalcasehouse.blogspot.com/p/lilythomas-v-union-of-india-air-2013.html

https://indiankanoon.org/doc/63158859/

https://www.sci.gov.in/supremecourt/2011/36674/36674_2011_Judgement_25-Sep-2018.pdf

www.aapkaconsultant.com/blog/decriminalisation-of-politics-mps-mlas-to-be-disqualified-on-date-of-criminal-conviction/

Lily Thomas vs Union of India


[1] Supreme Court Case Analysis: Kesavananda Bharati v. State of Kerala by Ayushi Modi and Rohan     Upadhyay, available at: https://www.latestlaws.com/articles/supreme-court-case-analysis-kesavananda-bharati-v-state-of-kerala-by-ayushi-modi-and-rohan-upadhyay/ (visited on February 9, 2019).

[2]  AIR 1973 SC 1461.

[3]  Lily Thomas vs Union Of India , AIR 2013 (7) SCC 653. 

[4] The Constitution of India, art. 32.

[5] Section 8 in The Representation of the People Act, 1951: Disqualification on conviction for certain offences.

[6] The constitution of India, art. 102.

[7] The constitution of India, art. 191.

[8] Article 102(1) (e) in The Constitution Of India 1949: if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

[9] Article 191(1)(e) in The Constitution Of India 1949:if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause, a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.

[10] Ibid at 2.

[11] Ibid at 2.

[12] Article 246 in The Constitution of India 1949: Subject matter of laws made by Parliament and by the Legislatures of States.

[13] Article 248 in The Constitution of India 1949: Residuary powers of legislation.

[14] CASE COMMENT: LILY THOMAS Vs UNION OF INDIA AND ORS. (AIR 2013 SC 2662), available at: https://researchersclub.wordpress.com/2014/08/13/case-comment-lily-thomas-v-union-of-india-and-ors-air-2013-sc-2662-2/ (visited on February 11, 2019).

[15] AIR 2013 (7) SCC 653.

[16] Lily Thomas vs union of India & Ors on 10 July, 2013, available at: https://indiankanoon.org/doc/63158859/ (visited on February 11, 2019).

[17] AIR 1953 SCR 1144.

[18] AIR 1995 SCC (2) 513.

[19] AIR 2007 SCC (1) 673

[20] MPs, MLAs to be disqualified on date of criminal conviction by J. Venkatesan, available at https://www.thehindu.com/news/national/mps-mlas-to-be-disqualified-on-date-of-criminal-conviction/article4901596.ece (visited on February 15, 2019).

[21] The IAS Essay, available at:  https://iasexpress.net/criminal-politics/ (visited on February 15, 2019).

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