JUL

31

Understanding Lily Thomas v. Union of India: Why section 8(4) of

the Representation of People Act, 1951 was declared
unconstitutional?

On July 10, 2013 the Supreme Court gave its judgment in Lily Thomas v. Union of
India. By a division bench of the Supreme Court, comprising of Justice A. K. Patnaik
and Justice S. J. Mukhopadhya, in a judgment delivered by Justice Patnaik, section
8(4) of the Representation of People Act, 1951 was prospectively (i.e. from the date
of the decision) struck down as unconstitutional being beyond the legislative
competence of the Parliament. The (now struck down) section 8(4) provided that if a
MP or a MLA has been convicted of a criminal offence, such MP or MLA can continue
to remain, and discharge his or her duties as, a member of the House, if within three
months of the conviction, he or she has filed an appeal or a revision against such
conviction.
Complex constitutional arguments based on legislative competence of Parliament
were made in this case by both parties. The Court relied on the text of the
Constitution, in one instance on one particular word in articles 101(3)(a) and 190(3)
(a) of the Constitution, to hold what it held. In this article, I provide a simplified
summary of the rival arguments made and the reasons that the Court gave to
declare section 8(4) as unconstitutional.
Fali Nariman, who argued the case for the petitioner, argued, among other things,
that in light of articles 102(1)(e) and 191(1)(e) the Parliament is not constitutionally
competent to enact section 8(4). Lets unpack this argument a little. The
Constitution of India does not allow the Parliament and State Legislatures to pass
laws on whatever issues they please. If the Parliament is not expressly allowed by
the Constitution to pass laws on a given subject, it cannot pass a law on that
subject. In constitutional law this is called legislative competence. Nariman argued
that the Parliaments competence to pass section 8(4) comes from articles 102(1)
(e) and 191(1)(e). Article 102(1)(e) of the Constitution says that the Parliament can
make a law providing for circumstances whereby a MP shall stand disqualified from
the membership of either house of the Parliament. Article 191(1)(e) says the same
thing about MLAs. Neither of these two articles gives the Parliament the
competence to pass a law that in effect protects and preserves the membership of
a sitting MP or MLA even after the same has been convicted of a criminal offence by
a court. Section 8(4) does exactly that. Thus section 8(4) is beyond what the
Parliament is constitutionally competent to do making the same unconstitutional.
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 under what circumstances a MP or MLA will stand disqualified
from his or her membership under articles 102(1)(e) and 191(1)(e), such
competence necessarily includes 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 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 it means that if a given subject is
not mentioned in any of the three lists in Schedule 7, then, for the purposes of
determining legislative competence (i.e. who is competent to pass a law on the
subject) it will automatically fall into list 1. Thus if it is not clear by the text of the
Constitution as to whether the Parliament can make laws on a subject or the State
Legislatures, entry 97 comes into play which provides that in such a situation the
Parliament will be competent to pass a law on that subject. 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.
Both of Luthras arguments were rejected by the Court. The Court held that entry
97 comes into use only when the Constitution is silent as to who has the
competence to enact a law on a given subject. But in this case the Constitution is
not silent. Articles 102(1)(e) and 191(1)(e) very clearly put the Parliament in charge
of making laws on the subject of disqualification of MPs and MLAs. So entry 97 would
not come into play. The Court located the legislative power of the Parliament to
enact any law relating to disqualification for a MP or MLA only in Articles 102(1)(e)
and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List
I of the Seventh Schedule. This is the first important holding of this case.
The other important holding deals with article 101(3)(a) which, among other things,
says that if a MP has been disqualified consequent to a law passed under article
102(1)(e), such MPs seat shall thereupon become vacant. Article 190(3)(a) says
the same thing about MLAs. Relying on these constitutional provisions the Court
held that the Parliament is not competent to make a law which defers the date on
which the disqualifications of a sitting member will have effect and prevent his seat
becoming vacant on account of the disqualification under Articles 102(1)(e) and
191(1)(e) of the Constitution. This, the Court said, was because of the use of the
word thereafter in articles 101(3)(a) and 190(3)(a).
Simply speaking, the Parliament is competent to provide, by law, for situations where
a MP or MLA shall stand disqualified from membership of the House. Once a member
falls into those situations, disqualification from membership of the House is a
consequence that is immediate and constitutionally mandated. In other words, the
Constitution authorizes the Parliament to say only when a MP or MLA shall stand
disqualified. It does not authorize the Parliament to pass a law that effectively stays
the disqualification and allows such disqualified member to continue as a MP or
MLA. Such a law would be against the Constitution because the Constitution
provides that once a member is disqualified the seat of such member shall
thereafter stand vacated. Once disqualified by reason of a conviction, the
Constitution says, the MP or MLA ceases to be a member of the House. Section 8(4),
however, allowed such MP or MLA to continue in the House, even after the
conviction.
Applying these two holdings to the issue raised in this case i.e. whether section 8(4)
is unconstitutional or not, the Court held that section 8(4) is beyond the powers
conferred on Parliament by the Constitution.

There is another part of the judgment that is extremely important. Does a MP or

MLA who has been convicted of a criminal offence by a court has any remedy to
preserve his or her membership in the House? The Court that such a MP or MLA has
two remedies, both under the Criminal Procedure Code (CrPC). First, when an appeal
is filed against the conviction, the appellate court under section 389(1) of the CrPC
can give a stay against the order of conviction. Second, the High Court under
section 482 of the CrPC, exercising its inherent powers, can give a stay against the
order of a conviction. When a higher court grants a stay against conviction, in the
eyes of the law, the conviction does not exist. Thus, such an order, will make the
conviction non-existent in the eyes of law (until upheld by the appellate court) and
consequently will save the membership of the MP or the MLA in the House.

The importance of this part of the Courts holding is immense. The Court, while
holding that that Parliament does not have the constitutional authority to make a law
that effectively stays the operation of disqualification and the consequent vacation
of the seat of the disqualified MP or MLA, reserved for the Judiciary the power to
effectively stay the operation of a conviction and consequently stay the operation of
articles 101(3)(a) and 190(3)(a). While there is nothing in the text of the
Constitution that authorizes the Parliament to pass section 8(4), there is nothing in
the text of the Constitution authorizing the Judiciary to stay the operation of articles
101(3)(a) and 190(3)(a) either.
Posted 31st July 2013 by Khagesh Gautam
Labels: constitution of india corruption democracy in india election legislative
competence parliamentRepresentation of People's Act section 8(4) supreme court of
india unconstitutional
9

View comments
1.
AnonymousNovember 21, 2013 at 4:23 PM
Lucidly written. Easy to comprehend and very informative. Thank you very much.
Reply
2.
AnonymousNovember 26, 2013 at 1:52 PM
very perspicuous. thanks
Reply
3.

AnonymousDecember 13, 2013 at 4:09 PM

If I might ask a question - What's the standing of a President's ordinance making power when a review
petition on the same matter is standing before the Supreme Court?
Reply
Replies

1.
Khagesh GautamDecember 15, 2013 at 7:13 PM
That's a slightly complicated question. One part of the question is about President's power to
promulgate an ordinance and the other is maintainability of a review petition. Let me take the first one
first. President of India can promulgate an ordinance when the Parliament is not in session (there are
specific grounds on which such promulgation can be made; see article 123 of the Constitution). Once
promulgated, the ordinance is equivalent to a law passed by the Parliament (see article 12). But for an
ordinance to become an Act of the Parliament it must be duly presented and passed by the Parliament
whenever the Parliament next convenes. Till the time Parliament convenes, the ordinance remains in
force as law. But if the Parliament does not pass the ordinance as an Act within six weeks of its next
convention,
the
ordinance
automatically
lapses.
Meanwhile, every ordinance or Act of the Parliament or any executive notification is subject to judicial
review before the Constitutional Courts (the High Court of a State - see art. 226; and the Supreme
Court of India - see art. 32) on two grounds - legislative competence review (see art. 245 and 246)
and fundamental rights compliance review (see art. 13). Which brings me to your second question.
Say, a Presidential ordinance promulgated today has been challenged in the Supreme Court on the
ground that it violates a fundamental rights (say, freedom of speech and expression - see. art. 19(1)
(a)). Say, the next convention of the Parliament is 4 months away. Two things can happen now. One is
- the Supreme Court declares the ordinance as violative of freedom of speech. Say, the Government
decides to file a review petition. If the petition is entertained, the Court can either decide to stay the
operation of the ordinance (very highly probable because a smaller bench of the Court has already
declared the ordinance unconstitutional; note that a review petition, if admitted, is heard by a bigger
bench as compared to the bench that decided the case). Or the Court can let the ordinance remain on
the
statute
book
and
go
ahead
to
hear
the
review
petition.
Second - say the Supreme Court declares the ordinance unconstitutional and after that a review
petition is entertained. Meanwhile, the Parliament convenes and passes the ordinance as an Act. The
petition now becomes 'infructuous' i.e. the petition before the Court will lapse. This is because the
ordinance that was challenged as unconstitutional has ceased to exist. Usually, the Court will allow
appropriate amendments to the petition and now the case will proceed except the constitutional
validity
of
the
Act
will
be
judicially
reviewed.
I hope that answers your question.
Reply

4.
AnonymousAugust 24, 2014 at 3:48 PM
Commendable article....very nicely explained..thankyou..
Reply
5.
AnonymousAugust 29, 2014 at 12:54 AM
Hello sir! I know this is months late, but I am extremely confused about something and request you to
throw some light. Is there a provision somewhere which gives the Supreme Court jurisdiction to look
at constitutionality of a statute in case of legislative competence? Lily Thomas for example was a writ
petition. Now can a writ be filed under Article 32 in order to determine constitutionality under
provisions
outside
Part
III?
Would be glad if you could help me out.
Reply
Replies

1.
Khagesh GautamAugust 29, 2014 at 8:55 AM
Your comment has several questions rolled into one. Let me try to answer them all one by one. Can
the Supreme Court examine the constitutional validity of a law? Yes. Which particular provision of the
Constitution gives the Sup. Ct. the jurisdiction to do that? In the opinion of the Supreme Court, first
expressed in A. K. Gopalan v. Madras, the Sup. Ct. does not need a particular article to do that.
Relying on Marbury v. Madison (U.S. Sup. Ct.) it was held that the Court would have jurisdiction to
examine constitutionality of any law anyway. But specifically, the Court can examine constitutionality of
any Parliamentary or State law on the grounds that it violates a fundamental right under article 13
read with article 32 of the Constitution. The Court can also examine the constitutionality of any
Parliamentary or State law on the ground it is beyond legislative competence of the legislature and
this jurisdiction comes from article 245 and 246 read with Schedule 7 of the Constitution primarily.
But can a citizen challenge the constitutional validity of a law on the ground that it falls beyond the
legislative competence of the legislature by filing a writ petition under article 32? No. This is because
article 32 is for enforcement of fundamental rights only. To do so, the citizen must first approach the
State High Court under article 226 and then may come to the Sup. Ct. by filing a Special Leave
Petition under article 136.

2.

AnonymousAugust 29, 2014 at 1:01 PM

Thank you for the reply sir. This is what I had in mind as well. I read DAV College v State of Punjab
wherein, the court refused to go into the question of legislative competence when no violation of a
fundamental right was established. My doubt here is - how did the Supreme Court in the Lily Thomas
case decide that it had jurisdiction to hear the matter in a petition under Article 32 when it did not go
into the question of Article 14 at all? Is this then, another case of judicial overreach?

3.
Khagesh GautamAugust 29, 2014 at 4:38 PM
Which Lily Thomas case are you referring to? Because there are more than one cases by the same
title.
Reply

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JUL

31

Understanding Lily Thomas v. Union of India: Why

section 8(4) of the Representation of People Act, 1951
was declared unconstitutional?
On July 10, 2013 the Supreme Court gave its judgment in Lily Thomas v. Union of India. By a division
bench of the Supreme Court, comprising of Justice A. K. Patnaik and Justice S. J. Mukhopadhya, in a
judgment delivered by Justice Patnaik, section 8(4) of the Representation of People Act, 1951 was
prospectively (i.e. from the date of the decision) struck down as unconstitutional being beyond the
legislative competence of the Parliament. The (now struck down) section 8(4) provided that if a MP or
a MLA has been convicted of a criminal offence, such MP or MLA can continue to remain, and
discharge his or her duties as, a member of the House, if within three months of the conviction, he or
she has filed an appeal or a revision against such conviction.
9
MAY

16

Alma Mater
The famous Alma Matter Statue on the main campus of Columbia University. In the background you
can see the famous Low Library.
FEB

Snow in New York

I have not posted for a long time now. It was a very important year in my life, 2012, and this one, 2013,
is going to be equally important. Many things have changed. I think my photography style has
changed a bit, evolved may be. You be the judge. Let me share with you some photographs I took in
last days of 2012.

f/8 1/80 sec ISO 200 18 mm

These pictures were taken right outside my apartment a day or two before Christmas, 2012. It was a
totally random decision.
AUG

23

New York Streets

These are the same pictures I had previously published on my photoblog
(http://www.photoblog.com/kgautam). These were all the result of a day when after doing my laundry
and eating my lunch I literally had no idea what to do. So I picked up my camera and took the first
subway that I could find and decided to randomly go any place that came to my mind.
AUG

13

House in New Jersey

Coming to a new country is always a challenge for anyone, unless of course you are a wealthy
banker! I had a nice time roaming around the streets of NYC and taking pictures. And then this
weekend I got an invitation from friends living in Hackensack, New Jersey to speed the weekend
there. I had a nice time driving around the city. This picture was a result of me roaming around the
suburb checking out the beautiful houses.

AUG

13

Graffiti or Mural
Graffiti on the walls is something that I had only seen in Discovery Channel documentaries or Holly
wood movies before coming to NYC. This was something that I found two blocks away from where I
live. I do not think this is graffiti though. This may be called a mural. I am not an art critic so please
feel free to disagree with me.

AUG

13

Walk by the Times Square

As a way to get over my jet lag I decided not to sleep when I feel sleepy which is around 2:30 pm NYC
local time (it is close to 11:30 pm back home in India). So decided to exert myself by walking around.
Lonely Planet's New York City guide says that this is a city meant for walking. So I decided to walk to
the Central Park, then walk around the Central Park and from there to walk to Times Square and then
to walk around Times Square some more.

AUG

11

Fellow at Times Square

One can either start a commentary on the bad state of affairs or one can just go around observing
things as they are. I have been accused of doing something a good friend once called poverty porn. I
am not sure exactly how he defines it. I got the idea that taking pictures of poor people is poverty
porn. Though my friend had a minor point to make I am sure that many a photojournalists would have
disagreed with him.
I am not a photojournalist, don't claim to be one.
JUN

28

Do Not Blame the Supreme Court as Being Over-Activist

What the hell is going on in this country?
- B Sudershan Reddy and SS Nijjar, JJ of the Supreme Court of India
(while hearing the Black Money Case)
Introduction The Judgment
On 27.02.2012 a full bench of the Supreme Court (hereinafter the Court) comprising of Chief Justice
Kapadia, Justices Patnaik and Swatanter Kumar in Civil Writ Petitions No. 512 and 668 of 2002, titled
In re: Networking of Rivers, delivered an unanimous judgment.

JUN

16

Early morning in Shimla - The Ridge

f/4
1/400 sec
ISO 200
18 mm
An early June morning in Shimla. This exposure was taken last year when I was attending an
academic conference in Shimla. The best thing about the conference was that I had ten days to spend
in Shimla and I was being paid to attend the conference. Apart from the academic work that we did it, I
personally had a great time. Every morning I would go out for a long walk with my camera. It was the
best time I had doing street photography.

Loading
Khagesh Gauam | 2012. Dynamic Views template. Powered by Blogger.

Disqualification of convicted representatives in

India
From Wikipedia, the free encyclopedia

On 10 July 2013, the Supreme Court of India, in its judgement of the Lily Thomas v. Union of
India case (along with Lok Prahari v. Union of India), [1] 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, [2] was
declared unconstitutional by the bench of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya.
[3]

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.[4] The Indian government also filed a review petition, which the
Supreme Court dismissed.[5] On 24 September, a few days before the fodder scam verdict, the
government tried to bring the bill into effect as an ordinance.[6]However, Rahul Gandhi, VicePresident 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." [7] Members of
opposition parties claimed that Gandhi's comments indicated total confusion within the
government, and called for the resignation of Prime Minister Manmohan Singh.[8][9] Within 5 days,
both the ordinance and the bill were withdrawn on 2 October.[10]

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.[11]

List of elected representatives disqualified after conviction by a

court of law[edit]

Representation

Case

Date
of
convict
ion

Rajya Sabha MP
from Uttar Pradesh

convicted for
4 years in
MBBS seats
scam

Septem
ber
2013

Lalu Prasad
RJD
Yadav

Lok Sabha MP
from Saran, Bihar

convicted for
5 years
inFodder
scam

Septem
ber
2013

Jagdish
Sharma

Lok Sabha MP
from Jahanabad,Bih
ar

convicted for
4 years
inFodder
scam

Septem
ber
2013

Shiv
Sena

MLA
from Deolali, Mahar
ashtra

convicted for
3 years in
disproportion
ate assets
case

March
2014

DMK

Rajya Sabha MP
from Tamil Nadu

convicted for
2 years in
cremation
shed case

April
2014

MLA
from Ichalkaranji,
Maharashtra

convicted for
3 years in
power theft

Represen
tative

Rasheed
Masood

Babanrao
Gholap

T. M.
Selvagana
pathy

Suresh
Halvankar

Party

Congre
ss

RJD

BJP

May
2014

Status

Disqualified[12
]

Disqualified[13
]

Disqualified[13
]

Disqualified[14
]

Resigned[15]

Disqualified[16
]

case

AIADM
K

Chief Minister
of Tamil Nadu state
MLA from Sriranga
m, Tamil Nadu

convicted for
4 years
Septem
indisproportio ber
nate assets
2014
case

Asha Rani

BJP

MLA
from Bijawar, Madh
ya Pradesh

convicted for
abetting
suicide of
maid

Novem
ber
2013

Kamal
Kishore
Bhagat

All
Jharkha
nd
Studen
ts
Union

MLA
from Lohardaga
(Vidhan Sabha
constituency), Jhark
hand

convicted for
attempt to
murder case

June
2015

J.
Jayalalitha
a

Disqualified.
[17]
But
acquitted by
Karnataka
High Court.
Appeal
Pending in
Supreme
Court of
India.

Disqualified[18
]

Disqualified[19
]

References[edit]
1.

^ "Lily Thomas vs Union of India & Ors. on 10 July, 2013". indiankanoon.org. Retrieved3
November 2013.

2.

^ "Section 8 in The Representation of the People Act, 1951". indiankanoon.org.

Retrieved 22 October 2013.

3.

^ "MPs, MLAs to be disqualified on date of criminal conviction". The Hindu. 10 July 2013.
Retrieved 21 October 2013.

4.

^ "Bill for no immediate disqualification of convicted MPs, MLAs". The New Indian
Express. 30 August 2013. Retrieved 22 October 2013.

5.

^ "SC dismisses govt review petition on convicted politicians, sticks to its stand". Deccan
Chronicle. 4 September 2013. Retrieved 22 October 2013.

6.

^ "Ahead of fodder case verdict comes ordinance to protect lawmakers". The Hindu. 24
September 2013. Retrieved 22 October 2013.

7.

^ "Rahul Gandhi trashes ordinance, shames government". The Times of India. 28

September 2013. Retrieved 22 October 2013.

8.

^ "BJP seeks PM's resignation, opposition parties slam government". Business Standard.
27 September 2013. Retrieved 22 October 2013.

9.

^ "PM should quit if he with Rahul Gandhi on ordinance: Chandrababu Naidu". The Indian
Express. 28 September 2013. Retrieved 22 October 2013.

10.

^ "'Nonsense' ordinance withdrawn". Business Line. 2 October 2013. Retrieved22

October 2013.

11.

^ "Congress's Rasheed Masood jailed for 4 years in MBBS seat scam, loses RS seat".
CNN IBN. Retrieved 22 October 2013.

12.

^ "Convicted Congress MP Rasheed Masood disqualified from Rajya Sabha The Times
of India". The Times of India. 1 January 1970. Retrieved 21 October 2013.

13.

^ a b "Fodder scam: Lalu Yadav, Jagdish Sharma disqualified from Lok Sabha". Zee News.
22 October 2013. Retrieved 22 October 2013.

14.

^ "Bombay High Court dismisses 5-time Shiv Sena MLA plea for suspension of graft
conviction". DNA India. 7 September 2014. Retrieved 28 September 2014.

15.

^ "A day after conviction, DMK leader T M Selvaganapathy resigns from Rajya
Sabha".Economic Times. 18 April 2014. Retrieved 19 April 2014.

16.

^ "No HC relief for disqualified BJP MLA in power theft case". Business standard. 25
September 2014. Retrieved 28 September 2014.

17.

^ "Jayalalithaa cannot contest polls for 10 years". The Hindu. 27 September 2014.
Retrieved 27 September 2014.

18.

^ "BJP MLA, Bhaiya Raja get 10-yr in jail". The Pioneer. 1 February 2015. Retrieved1
February 2015.

19.

^ "Jharkhand MLA Kamal Kishore Bhagat jailed for 7 years for attempt to murder". The
Times of India. 23 June 2015. Retrieved 1 October 2015.

Categories:

2013 in India

Supreme Court of India cases

Indian politicians disqualified

Indian politicians convicted of crimes

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