Case Analysis: Lily Thomas v. Union of India (2013) 7 SCC 653

Author: Kirti Bajaj

CITATION

(2013) 7 SCC 653

NAMES OF PARTIES

Petitioner: Lily Thomas

Respondent: Union of India

JUDGES

Justice A.K. Patnaik; and

Justice S.J. Mukhopadhaya.

INTRODUCTION

One of the important foundations of a democracy is opportunity given to the citizens to represent the larger section of the country. This right is subject to certain limitations as stated under the Constitution of India and the Representation of People Act 1951. However, the representatives are often seen abusing the rights and privileges awarded to them through law. According to the Association for Democratic Reforms’ (ADR) 2021 study, which was based on an examination of 2495 candidate affidavits, 363 Members of Parliament and Members of the Legislative Assembly have criminal proceedings pending against them.((Association of Democratic Reforms, “Analysis of MPs, MLAs and Ministers against whom charges have been framed by the court for offences falling under Section  8 (1) (2) & (3) of the Representation of People Act 1951”, Press Release, 2021, p.3.)) 

The analysis presents an important issue to the forefront as sitting Members of the Parliament and State Legislatures continued their tenure even after having convictions against them. Further concerns are raised by the fact that the average pending age of criminal cases against MPs being sevens years and against MLAs being six years.

FACTS

Petitions concerning the disqualification of sitting Members of Parliament and Members of State Legislatures through Public Interest Litigations (PIL) by Basant Kumar Chaudhary in 2004 and Lily Thomas and Lok Prahari in 2005. These petitions challenged the validity of Sec.8(4) of the Representation of People Act 1951 (The Act) as claiming it to be ultra vires of the Constitution. Art.102 and Art.191 discusses the provisions for disqualification of membership from the Parliament or Legislative Assembly or Legislative Council of a State respectively. The Articles are provided herewith:

“102. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—

[(a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;]

(b) if he is of unsound mind and stands so declared by a competent Court;

(c) if he is an undischarged insolvent;

(d) 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;

(e) if he is so disqualified by or under any law made by Parliament.

(2) A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.”

“191. Disqualifications for membership.—(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State—  (a) 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;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) 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;

(e) if he is so disqualified by or under any law made by Parliament.  

(2) A person shall be disqualified for being a member of the Legislative Assembly or Legislative Council of a State if he is so disqualified under the Tenth Schedule.”

Sec.8 deals with the disqualification of representatives upon the conviction for certain offences. Sub-clauses (1), (2) & (3) list the various offences under different statutes, conviction under which would lead to disqualification of the member and in case of imprisonment disqualification would continue for further six years and Sub-clause (4) amended through the Amendment Act of 2003 gives immunity to sitting members of the Union and State Legislature from immediate effect of disqualification based on conviction of offences stated in the previous sub-clauses. The Section is as follows:

8. Disqualification on conviction for certain offences. —

(4) Notwithstanding anything 8 in sub-section (1), sub-section (2) or sub-section (3) 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.

Through the PIL, the petitioners question the legitimate power or authority of the Parliament to include sub-clause 4 and the validity of such provision.

ISSUES

• Whether the Parliament is conferred with the authority or power to enact Section 8(4) in the Act?
• Whether the provisions of Section 8(4) violate the principles provided in Article 14 of the Constitution?
• In case Section 8(4) is considered invalid, what are the implications on pending proceeding under Section 8(4)?

JUDGMENT

Contentions of the Petitioners

• Firstly, one of the important contentions of the petitioners was based on the reading of  constitutional provisions for disqualification of Members of Parliament or State Legislatures under Article 102 and Article 191 respectively. The petitioners submitted that  Sub-clause (1) of Article 102 and Article 191, “A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament”, clearly states the same disqualifications for a person being chosen as a Member of the Legislature or for a person already being a Member of the Legislature. Hence, Section 8(4) cannot provide for a different disqualification procedure for sitting members. In support of this contention reliance was laid upon the judgment of the Constitution Bench in the case of Election Commission v. Saka Venkata Rao((Election Commission v. Saka Venkata Rao AIR 1953 SC 210.)), which held that Article 191 lays down the same set of disqualifications for to-be-elected and sitting members. Therefore, based on these submissions Section 8(4) contradicts the provisions in Article 102 and Article 191.
• Secondly, reference was made to the Constituent Assembly debates on Article 83 of the Draft Constitution which corresponds to Article 102 of the present Constitution. An amendment was moved by one of the members of the Constituent Assembly to provide a separate disqualification procedure for persons who upon conviction were already Members of the Union or State Legislatures.((Amendment No.1590 moved on 19-05-1949.)) However, this amendment was not accepted by the Constituent Assembly, instead the provision under Article 102(1)(e) was adopted which authorizes the Parliament to make relevant laws on the subject. The petitioners presented an argument that despite the fact that a different disqualification procedure for sitting members was not accepted by the Constituent Assembly, Parliament enacted a similar provision under Section 8(4) of the Act.
• Thirdly, it was asserted that there is no provision under Article 102 or Article 191 which confers the Parliament with the power or authority to protect sitting Members of Parliament of Members of the State Legislatures from disqualification. Hence, it was submitted that Parliament has no legislative power to enact Sub-clause (4) of Section 8 and therefore the same is ultra vires of the Constitution.
• Next, the petitioners rebut the legal basis for Section 8(4) which is based on the judgment of Manni Lal v. Parmai Lal((Manni Lal v. Parmai Lal (1970) 2 SCC 462.)), which provided that when a conviction is set aside the acquittal takes place retrospectively, i.e., from the date they were recorded. This judgment is countered by the judgment of B.R. Kapur v. State of Tamil Nadu((B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231.)), which reversed the order in Manni Lal by reasoning that the conviction and sentence operate in complete rigour until set aside, hence any disqualification attached to such conviction would also operate in full rigour. The petitioners further submitted that this view accepted in the case of K. Prabhakaran v. P. Jayarajan((K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754.)). Therefore, based on the presented reasoning the petitioners argued that a person convicted under Section 8(1), (2), and (3) immediately becomes disqualified from continuing as a Member of Legislature irrespective of whether an appeal is filed or not.
• Additionally, the petitioners submitted that even if a sitting Member of Parliament or State Legislatures is aggrieved by the disqualification, he has the remedy to move to the appellate Court for obtaining the stay over the order of conviction. Supporting this contention, the decision in the case of Navjot Singh Sidhu v. State of Punjab((Navjot Singh Sidhu v. State of Punjab (2007) 2 SCC 574.)) was cited. While deciding the case, the Supreme Court held that the appellate Court has been conferred with powers under Section 389(1) of the Code of Criminal Procedure, 1973 (CrPC) to suspend the operation of an order, which includes conviction as well. Therefore, the petitioners raised the argument that the appellate Court can appropriately use its power to suspend orders of conviction if found wrong. However, providing a blanket-protection as provided under Section 8(4) is invalid.
• Further, it was contended that the validity of Section 8(4) was not upheld in the case of K. Prabhakaran, as the validity of Section 8(4) was not discussed in the case. The petitioners provided that only a reference was made by the Court and the opinion of the Court in the case was obiter dicta, not a binding ratio on the issue of validity of the provision in question through the present PIL.
• Lastly, it was submitted that the classification made by Section 8(4) between persons to be elected as Members of Parliament or State Legislatures and the persons who are sitting Members of the Parliament or State Legislature is violative of Article 14 and arbitrary. Upon conviction under Section 8(1), (2), and (3) no person whether sitting member or to be elected Member of the Parliament or State Legislatures should enjoy the special privilege.

Contentions of the Respondents

• One of the foremost contentions raised by the respondents was the decision in the case of K. Prabhakaran v. P. Jayarajan((Supra at 6.)). It was submitted that the validity of Section 8(4) was already discussed and upheld in the case of K. Prabhakaran, where it was provided that the purpose of enacting sub-clause (4) of Section 8 was not to confer privileges on the sitting Members of Parliament or State Legislatures but to protect the government and the legislative body. The respondents highlighted the two major consequences of disqualification from membership of sitting members which was discussed in the case as well. First, the strength of the membership of the house and the political party reduces. In particular cases, such disqualification can cause the government to lose majority in the house leading to serious effects on the functioning of the government. Second, the by-election conducted for filling the vacancy post disqualification can lead to complications if the convicted member is acquitted by the Court. The respondents argued that in order avoid such complexities the provision of Section 8(4) was necessary. The respondents also emphasised on the nature of Indian Judicial System where acquittals in High Court are very common and hence Section 8(4) helps in protecting the seat of a person who becomes the Member of Union or State Legislatures.
• Next, discussing the power of Parliament to legislate the matter, the respondents submitted that the source of legislative power to enact Section 8(4) is gained from Article 102(1)(e) and Article 191(1)(e). Also, reliance was also laid on the Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution which confers the Parliament with powers to legislative over residuary matters, i.e., matters not included in the State or Concurrent List.
• Further, it was contended that Section 8(4) provides the same disqualifications as laid down in Sub-clause (1) (2) & (3) of Section 8 irrespective of whether the person is to be elected or sitting Member of Parliament or State Legislatures. The only difference being that for sitting Members of Parliament or State Legislatures the effect of disqualification takes place after the revision or appeal filed against the conviction is decided.
• The respondents referred to Article 101 (3) (a) and Article 191 (3) (a) which provides that a member may only vacate seat of the legislature once he is disqualified with respect to the provisions laid down in Article 102(1) and Article 191(1) respectively. Consequently, since Article 102(1)(e) and Article 191(1)(e) provides the Parliament with the power to decide when disqualification would take effect, therefore a combined reading of the given provisions provides that a member may vacate seat only once his revision or appeal is rejected by the appellate Court and a decision confirming the disqualification of the member is taken by the President or Governor as the case maybe, in accordance with procedure provided under Article 103 and Article 192 of the Constitution.
• Lastly, the respondents rejected the remedy provided by petitioners to approach the appellate Court under Section 389 of CrPC by presenting the argument that the appellate Court does not has the power to stay disqualification which would take effect from date of conviction. Therefore, Section 8(4) is a necessary provision.

Reasoning of the Court and Decision

• Discussing the issue of the legislative power with the Parliament to enact Section 8(4), the Court accepted that the issue was not discussed or considered by the Constitution Bench in the case of K. Prabhakaran v. P. Jayarajan. Hence, must be discussed at depth in the present case. The Court refers to the case of R. v. Burah((R. v. Burah (1878) 3 AC 889.)) which laid down the fundamental principles of interpreting the Constitution in cases where the legislative powers are to be decided. The case provided that while deciding the limit of a power, the courts must delve into the instruments that specifically create or restrict the legislative powers. These principles of interpretation are further reaffirmed in the case of Keshavananda Bharti v. State of Kerala((Keshavananda Bharti v. State of Kerala (1973) 4 SCC 225.)). Therefore, the court must investigate the provisions and the terms that positively or negatively affect the legislative powers.
• First, the Court considers the argument from respondents which provided that Parliament is given legislative powers to enact Section 8(4) from Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution. Article 246(1) confers the Parliament with exclusive power to make laws on all the subjects enumerated under List I of the Seventh Schedule and under Schedule VII List I Entry 97 the Parliament has exclusive power to make laws not subjects that are not enumerated in List II and List III. Similarly, Article 248 confers the Parliament with the powers to make laws on subjects that not included in List II (State List)and List III (Concurrent List). Therefore, Article 246(1) read with Schedule VII List I Entry 97 and Article 248 confirms the residuary power of the Parliament, i.e., the exclusive power to make laws on subjects that are not specifically mentioned or cannot be reasonably comprehended to be part of any entries in the Lists. However, the residuary power only comes into action if it is proven that the subject-matter is not assigned to any legislature. However, Article 102(1)(e) and Article 191(1)(e) specifically confer the Parliament with the power to make laws on matters related to disqualification of members. Hence, the contention of the respondents cannot be accepted. The power to enact Section 8(4) is not vested in Article 246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution and Article 102(1)(e) and Article 191(1)(e) are the only source of legislative power to make laws on disqualification of members.
• Second, the Court accepted the contention of petitioners as well as the opinion presented in the case of Election Commission v. Saka Venkata Rao by stating that the reading of Article 102(1)(e) and Article 191(1)(e) clearly provide that the same set of disqualifications must be present for persons to be elected as members and already sitting members of the Parliament or State Legislatures. The Court held that language of given provisions state if a person cannot be chosen as a member due a disqualification, for the same disqualification he cannot continue to be a member of the Union or State Legislatures.
• Third, the Court delves upon the contention of the respondents that the same set of disqualifications are applied, however only the effect of disqualification is different under Section 8(4). The Court reasoned that the procedure of vacating seats under Article 101(3)(a) and Article 190(1)(a) is an after-effect of the disqualification that take place under Article 102(1), Article 191(1) or any law of the Parliament in accordance to Article 102(1)(e) and Article 191(1)(e). According to this reasoning, if a person is disqualified under Article 102(1) and Article 190(1) then the seat automatically falls vacant under Article 101(3)(a) and Article 190(3)(a). Therefore, the Parliament cannot enact a provision that defers the date on which disqualification of a sitting member would take effect. Further, the contention that seat of a disqualified member would not be vacant until a decision is passed by the President or the Governor, is rejected by the Court. The filling of vacant seat awaits the decision of the President or the Governor, and if the President or Governor decides that the member is not subject to disqualification in accordance to Article 102(1) and Article 191(1) then it is to be seen that the seat of the member who is held to be not disqualified does not become vacant.
• Fourth, the Court recognised that Article  102(1)(e) and Article 191(1)(e) confer positive powers on the Parliament to make laws for “same” disqualifications of persons to be elected as members and sitting members of the Parliament and State Legislatures. However, the interpretation of Article 103(3)(a) and Article 192(3)(a) applies a restriction on these legislative powers of the Parliament as it prohibits the Parliament to enact law which would defer the effect of disqualification from the date on which it occurs. Hence, a reading of these provisions together would provide that provisions provided under Section 8(4) go beyond the limits of the powers conferred to Parliament.  
• Fifth, while discussing the possible remedies the Court rejected respondents’ contention that a person would be remediless if Section 8(4) is not provided to him. Reference is made to the judgment of the Court in the case of Rama Narang v. Ramesh Narang((Rama Narang v. Ramesh Narang (1995) 2 SCC 513.)), which held that an appeal preferred under Section 374 of CrPC is against the conviction and sentence both. Hence, following this opinion, the appellate court can use its powers under Section 389(1) and stay the order of conviction. The High Court can also do the same under its inherent jurisdiction under Section 482 of CrPC. Further, citing the decision in the case of Ravikant S. Patil v. Sarvabhouma S. Bagali((Ravikant S. Patil v. Sarvabhouma S. Bagali (2007) 1 SCC 673.)), which held that an order of stay would make the conviction non-operative from the date of such order, but not non-existent. Therefore, following the said rationale a person convicted under Section 8(1) (2) or (3) would not be left remediless as he would have the chance to appeal his conviction and obtain a stay order, which would render his disqualification non-operative.
• Subsequently, as Section 8(4) is held ultra vires of the Constitution the issue of the provision violating Article 14 of the Constitution is of no importance. Hence, the Court decided not to pursue the issue.
• Lastly, while deciding the implication of the judgment on the pending appeals or revisions under Section 8(4) the Court cited the opinion of Chief Justice Subba Rao in the case of Golak Nath v. State of Punjab((Golak Nath v. State of Punjab AIR 1967 SC 1643.)) where he held that “Court has the power to declare law and also restrict the operation of the law so declared to future transactions”. Further, it was also observed in the case of Harla v. State of Rajasthan((Harla v. State of Rajasthan AIR 1951 SC 467.)) that punishing or penalising a person through laws of which he had no knowledge or had no opportunity to exercise reasonable diligence to acquire the knowledge would be violation of the principles of natural justice. Therefore, in accordance with the principles of natural justice and the decisions above-mentioned the sitting members of Parliament or State Legislatures who have pending appeals under Section 8(4) would not be affected by the judgment. The judgment would only be applicable prospectively.

ANALYSIS

The decision of the Supreme Court with respect to the present issue is sufficiently backed by precedents and logical interpretation of law. The judgment ultimately renders Section 8(4) of the Representation of People Act 1951 as beyond the powers and limits of the Constitution, thus providing that the Parliament has no legislative power to enact such provision. This judgment is necessary and landmark in limiting certain undue privileges of the sitting members of the Parliament and the State Legislatures. It is imminent that the organs of the government that are responsible for handling the Nation and its affairs must be free from any illegal activity and hence no special privilege must be given to these members, especially in cases where they are convicted of serious criminal offences. The report analysis by the Association for Democratic Reforms (ADR) is an apt example of how the protection under Section 8(4) was abused for wrong reasons by the Members of Parliament and State Legislatures. However, there are a few issues that the Court entirely missed in its discussion.

The Court in its judgment did not touch upon the reference made by the respondents on the judgment of K. Prabhakaran v. P. Jayarajan which highlighted two important issues if Section 8(4) is removed. The first contention raised was that the disqualification of sitting members from the house upon conviction would significantly reduce the strength of the legislative body. Apart from this, it would also be detrimental to the ruling party which can lose its majority in the legislature due to disqualification of its members. Although, the Court discussed the implication of the judgment on pending appeals under Section 8(4), it ignored the other implications of the judgment such as possible abuse of the provisions due to the lack of any protection to the sitting members. Immediate disqualification of membership through conviction can be used as a tool to break governments, leading to various problems in the smooth functioning of the Government of India irrespective of which political party rules. The second contention was relating to the confusion and complexity that may be caused if the convicted and disqualified members vacant seat is filled through by-elections and later the convicted member is acquitted by the Court. There is a high probability of confusion if such scenario occurs and the issue of rightful membership for both the convicted (and later acquitted) person and person elected through by-elections would be raised.

One of the alternative approaches to the issues in the case for more appropriate public policy, could have been to provide for a procedure in the issue of conviction of both the persons to be elected as members and sitting members of the Parliament and State Legislatures where a preliminary investigation is made by the appropriate authorities upon which the conviction and disqualification can take place. The preliminary investigation would help in affirming the seriousness of the conviction and the effect of disqualification that would ensue.

CONCLUSION

The judgment in the case Lily Thomas v. Union of India (2013) deals with the validity of Section 8(4) of the Representation of People Act 1951 which provides a special privilege to Members of Parliament and State Legislatures against disqualification from the membership upon conviction under Article 102, Article 191 or Section 8 (1) (2) & (3) of the Act. In accordance with the interpretation of the provisions of the Constitution under Article 102(1)(e), Article 191(1)(e), Article 101(3)(a) and Article 190(3)(a), the Court held that the Parliament has no powers to enact the provision under Section 8(4) and hence the provision is ultra vires of the Constitution.

The judgment of the Court is right to a certain extent as the special provision to the sitting members of the legislative body is unfair in nature. Since, the Constitution under Article 102 and Article 191 provides that same set of disqualifications must be provided for the persons to be elected as members and the persons who are already members of the Parliament or the State Legislature. This case would limit the privilege of Members of Parliament and State Legislature and also ensure that persons convicted for crimes under Section 8 (1) (2) & (3) of the Act would no longer be part of the legislative organ of the Union or State government. However, there certain fallacies with the judgment as it fails to discourse upon the important implications of rendering Section 8(4) as invalid. The issues of concern such as likelihood of abuse of conviction towards Members of Parliament or State Legislatures and subsequent disqualification from membership and the complexities of acquittal and by-election are not addressed by the Court. Therefore, leaving space for more development on the matters and also contentions that will be raised against this judgment.