Consentia on Multidisciplinary Research

CASE COMMENT: LILY THOMAS V. UNION OF INDIA AND ORS. (AIR 2013 SC 2662)

The recent decision of the Hon’ble Supreme Court declaring Section 8(4) of the Representation of the People Act, 1951 unconstitutional, created lot of hues and cries among the politicians. It all started when a bench of Justice A.K. Patnaik and Justice Sudhansu Jyoti Mukhopadhaya held that Section 8 (4) of the Representation of the People Act, 1951 that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence was unconstitutional. The Hon’ble Court stated that the two provisions in Articles 102(1)(e) and 191(1)(e) of the Constitution makes it 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 Legislative Assembly or Legislative Council of the State. Thus, 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.

The paper aims to critically analyse the decision of the Hon’ble Supreme Court in Lily Thomas v. Union of India.

INTRODUCTION

The recent decision of the Hon’ble Supreme Court of India declaring Section 8(4) of the Representation of the People Act, 1951 unconstitutional, created lot of hues and cries among the politicians. It all started when a bench of Justice A.K. Patnaik and Justice Sudhansu Jyoti Mukhopadhaya allowed two writ petitions filed by advocate Lily Thomas and NGO Lok Prahari, through its General Secretary S. N. Shukla, contending Section 8(4) of the Representation of the People Act was ultra vires to Articles 101, 102, 191, 190 of Constitution of India, 1950. The bench concurred with the petitioners and held that Section 8 (4) of the Representation of the People Act, 1951 that allows convicted lawmakers a three-month period for filing appeal to the higher court and to get a stay of the conviction and sentence was unconstitutional. The Hon’ble Court ruled that the two provisions in Articles 102(1)(e) and 191(1)(e) of the Constitution 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 Legislative Assembly or Legislative Council of the State. Thus, Parliament does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution 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.[1] The Hon’ble court stated that “Looking at the affirmative terms of Articles 102(1) (e) and 191(1) (e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3) (a) and 190(3) (a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”[2]

Subsequent to the decision, the country saw lot of political drama. The current UPA-II government decided to roll back the decision of the court by passing an ordinance which would protect the MP’s and MLA’s from immediate disqualification. But there was a rift witnessed in the party when Mr. Rahul Gandhi, Vice President of the Indian National Congress, said in a press conference that “the ordinance was completely nonsense and should be torn up and thrown away”. Subsequently, a meeting was arranged among the Congress Core Group Members, where it was decided that the ordinance will be called off.

CHRONOLOGY OF EVENTS[3]

  1. July 10, 2013: Supreme Court rules that an MP or MLA would be immediately disqualified if convicted by a court in a criminal offence.
  2. September 24, 2013: Union Cabinet clears an ordinance to protect convicted MPs and MLAs from immediate disqualification.
  3. September 25, 2013: Opposition parties-BJP, Left and Congress clash over the ordinance that protects convicted MPs and MLAs from facing immediate disqualification.
  4. September 26, 2013 Terming the ordinance on convicted MPs and MLAs as “immoral and unconstitutional”, BJP leaders L K Advani, Sushma Swaraj and Arun Jaitley meet President Pranab Mukherjee. They submit to him a memorandum asking the President to send the ordinance back.
  5. September 26, 2013: President Pranab Mukherjee summons Home Minister Sushil Kumar Shinde and Law Minister Kapil Sibal to seek their ‘clarification’ on ordinance.
  6. September 27, 2013: Rahul Gandhi embarasses PM, terms ordinance as “complete nonsense” that should be “torn and thrown out”.
  7. September 27, 2013: Just before meeting US President Obama, Manmohan Singh states that Rahul had written to him on ordinance issue and that he would discuss it with Cabinet.
  8. October 01, 2013: Prime Minister asserts that the matter had been deliberated in detail within the party and the government. He indicates that he had no particular preference on the matter and is willing to go with the consensus in the Cabinet.
  9. October 2, 2013: Prime Minister Manmohan Singh meets Rahul Gandhi at his residence before a meeting of the Congress Core Group. The meeting is believed to have felt that it would be better for the government to withdraw the ordinance in view of public sentiments against it. Armed with the Core Group opinion, the Prime Minister calls on President Pranab Mukherjee, and the ordinance is called off.

ANALYSIS OF THE DECISION GIVEN BY HON’BLE SUPREME COURT

The Constituent Assembly while drafting the Constitution intended to lay down some disqualifications for persons to be chosen as a member of House of Parliament or Legislative Assembly or Legislative Council of the State as well as a Member of Parliament or Legislative Assembly or Legislative Council of the State. Accordingly, in the Constitution which was finally adopted by the Constituent Assembly, Article 102(1) laid down the disqualifications for membership of both House of Parliament and Article 191(1) laid down the disqualifications for membership of the Legislative Assembly or Legislative Council of the State. Clause (e) of both the Articles provide that Parliament can by law make other disqualifications for membership of either House of Parliament or of Legislative Assembly or Legislative Council of the State. In exercise of this power conferred under Article 102(1) (e)[4] and under Article 191(1) (e)[5] of the Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951, the disqualifications for membership of Parliament and State Legislatures. Sub-sections (1), (2) and (3) of Section 8 of the Act provide that a person convicted of an offence mentioned in any of these Sub-sections shall stand disqualified from the date of conviction and the disqualification will continue for the specific period mentioned in the Sub-section.[6] 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 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.[7] 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 was challenged in the writ petitions as ultra vires the Constitution. The reason behind this was that it was misused by the MPs and MLAs keeping in mind the judicial delays. They continued attending parliamentary proceeding, framing laws and acting as active members of the executive.[8]

Thus, the issue before the Hon’ble Court was that whether Parliament had legislative powers to enact Sub-section (4) of Section 8 of the Act, and whether Parliament can make different law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State.

The opening words of Clause (1) of Articles 102 and 191 of the Constitution i.e. “for being chosen as, and for being, a member of either House of Parliament” make it clear that 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 either House of Parliament or of the Legislative Assembly or Legislative Council of a State and therefore the disqualifications for a person to be elected as a member of either House of the Parliament or of the Legislative Assembly or Legislative Council of the State and for a person to continue as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State cannot be different. Further the same was held by the apex court in case of, Election Commission, India v. Saka Venkata Rao[9] that “Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.”

Thus, the Parliament by enacting Section 8(4) of the Representation of the People Act, 1951 made the persons who are Member of Parliament or State Legislature on a different footing from the person who are chosen to be a Member of Parliament or State Legislature. Thus Section 8(4) violated Article 102(1)(e) and 191(1)(e) of the Constitution and hence be declared ultra-virus. The same was ruled by the Hon’ble Court. The Court stated “Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature”.

Further to the question that if a sitting member of Parliament or the State Legislature suffers from a frivolous conviction by the trial court for an offence given under Sub-section (1), (2) or (3) of Section 8 of the Act, he will be remediless and he will suffer immense hardship as he would stand disqualified on account of such conviction in the absence of Sub-section (4) of Section 8 of the Act, The Hon’ble Court cited the case of Rama Narang v. Ramesh Narang and Ors[10] in which it was held that when an appeal is preferred Under Section 374 of the Code of Criminal Procedure the appeal is against both the conviction and sentence[11] and, therefore, the Appellate Court in exercise of its power under Section 389(1) of the Code can also stay the order of conviction.[12] Further, the High Court in exercise of its inherent jurisdiction Under Section 482 of the Code can also stay the conviction if the power is not to found in Section 389(1) of the Code.[13] Thus it can be said that the aggrieved person may approach the appellate court under Section 389(1) and Section 482 of the Code of Criminal Procedure to put a stay on conviction.

CONCLUSION

Under Articles 102 and 191 of the Constitution  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 either House of Parliament or of the Legislative Assembly or Legislative Council of a State, and therefore the disqualifications for a person to be elected as a member of either House of the Parliament or of the Legislative Assembly or Legislative Council of the State and for a person to continue as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State cannot be different. Further it cannot be said that convicted MP or MLA can be victim of frivolous complaints because the Appellate Court in exercise of its power under Section 389(1) of the Code of Criminal Procedure can stay the order of conviction, and the High Court in exercise of its inherent jurisdiction under Section 482 of the Code can also stay the conviction if the power is not to be found in Section 389(1) of the Code. More specifically in Ravikant S. Patil v. Sarvabhouma S. Bagali[14] the court stayed appellant’s conviction which meant that a disqualification arising out of his conviction under the Section 8(3) of RPA also ceased to operate after the stay. This exact remedy was used by Navjot Sidhu in 2007 to again fight election after his disqualification.[15]

Thus it can be said that the judgement of the Hon’ble Supreme Court will help in de-criminalising India politics and will definitely help in development of the country.

[1] J. Venkatesan, MPs, MLAs to be disqualified on date of criminal conviction, The Hindu, July 11, 2013,

http://www.thehindu.com/news/national/mps-mlas-to-be-disqualified-on-date-of-criminal conviction/article4901596.ece

[2] Id.

[3]Express News Service, Ordinance on convicted lawmakers: Chronology of events, The Indian Express, October 2, 2013

http://archive.indianexpress.com/news/ordinance-on-convicted-lawmakers-chronology-of-events/1177333/

[4] Article 102 (1) (e) –  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

[5] Article 191 (1) (e) –  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

[6] Section 8(1) – A person convicted of an offence punishable under (a) (b) (c) (d) (e) (f) (g) (h) (i) (j) (k) (l) (m) (n) shall be disqualified, where the convicted person is sentenced to (i) only fine, for a period of six years from the date of such conviction; (ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.

Section 8(2) – A person convicted for the contravention of (a) (b) (c) and sentenced to imprisonment for not less than six months, 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.

Section 8(3) – 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.

[7]Section 8(4) – Notwithstanding anything in sub-section (1), sub-section 2 and 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.

[8] Kumar Vivek, Narinder Pal Singh and Tauseef, Representation of People Act – Recent Verdicts Simplified (Nov. 27, 2013)

 http://insightsonindia.com/2013/11/27/representation-of-people-act-recent-verdicts-simplified/

[9] AIR 1953 SC 210

[10] ( 1995) 2 SCC 513

[11] Section 374(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other court in which a sentence of imprisonment for more than seven years 1[has been passed against him or against any other person convicted at the same trial]; may appeal to the High Court.

[12] Section 389(1) – Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.

[13] Section 482 – Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any court or otherwise to secure the ends of justice.

[14] (2007) 1 SCC 673

[15] Kartik Monga, Lily Thomas – the possible loophole? (Oct. 10, 2013), http://letstalkaboutthelaw.wordpress.com/tag/election-law/

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