Lily Thomas vs.

Union of India (2013) 7 SCC 653: Case Commentary

INTRODUCTION

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.

CASE BACKGROUND

The issue of criminality in politics or precisely convicted representative in Parliament and

legislature has been debated for a long time and several reforms have been proposed by different
forums (Election Commission of India, Supreme Court etc.). Similarly with the parliamentary
election had to be conducted in 2014, the Supreme Court came up with three landmark
judgments one of them was the constitutionality of Section 8 (4) of RPA, which influenced the
conduct of the election.

The two writ petition Lily Thomas v. Union of India and S.N. Shukla v. Union of India was filed
as Public Interest Litigation primarily with the objective to declare Section 8 (4), RPA, as ultra
vires the constitution.

The provision of the RPA outlines that convicted representative can file an appeal and
consequently this will put stay on their conviction, Lily Thomas said thereby “it encourages
tainted leaders to contest elections. This should never have been permitted”. This was her reason
for filing this petition. Her objective was, the Court to be held in high esteem and declaration of
the clause as illegal. Lok Prahari, a Lucknow-based NGO, through its general secretary, had also
filed a petition on the identical bearing so both the petitions were adjudicated together.

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 Lily Thomas vs. Union of India (2013) 7 SCC 653: Case Commentary

PARTIES

Lily Thomas … Petitioner

Versus

Union of India & Ors. … Respondents

WITH

WRIT PETITION (CIVIL) NO. 231 OF 2005

Lok Prahari, through its General Secretary S.N. Shukla … Petitioner

Versus

Union of India & Ors. … Respondents

BENCH

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.

LEGAL PROVISIONS

1. The Constitution of India

2. The Representation of People Act
3. The Code of Criminal Procedure
4. The Constitutional Law of India by H.M. Seervai, Fourth Edition
5. Commentary on the Constitution of India by Durga Das Basu (8th Edition)

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 Lily Thomas vs. Union of India (2013) 7 SCC 653: Case Commentary

ISSUES RAISED

Issue 1– Whether the power exercised by parliament for enacting the section 8(4) of
Representation of People’s Act was in consonance with the provision given in constitution?

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

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

CRUX OF THE JUDGMENT

The Supreme Court ruled that any MP, MLA or 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 also declared unconstitutional.

DETAILED COMMENTARY ON ISSUES

Issue 1– Whether the power exercised by parliament for enacting the section 8(4) of
Representation of People’s Act was in consonance with the provision given in constitution?

In the present case, the petitioners appreciated their challenge in the light of the intention of the
Constituent Assembly, while drafting and adopting the constitution where it laid down
disqualification for membership of either House of Parliament under Article 102(1) and the
disqualification for membership of the legislative Assembly or Legislative Council of State
under Article 191(1).

Respondent argued the legislative power to enact section 8(4) of the RPA is located in Article
246(1) read with Entry 97 and Article 248[9] of the Constitution. This provides Parliament

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 Lily Thomas vs. Union of India (2013) 7 SCC 653: Case Commentary

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.

However, the court quoted Article 102(1)(e) and 191(1)(e) of the Constitution and ruled that
power to make laws regarding disqualification, is only with the Parliament not with State
Legislature. Thus, the court did not accept Respondents contention.

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

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 Rao1, 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. This reasoning holds the rule that to interpret any law first of all grammatical
meaning should be taken into consideration if it is not clear then purpose should be interpreted.

Hence, Court properly declared Section 8(4) ultra-vires Constitution of India.

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

In his, argument Respondent argued if trial court gives a frivolous conviction on sitting member,
he also stated that appellate courts grant acquittal in most of the cases, therefore, an
instantaneous disqualification will leave sitting members remediless with immense hardship.
Thus, the Court cited in Rama Narang v. Ramesh Narang & Anr.2, the three-Judge Bench held
that an appeal preferred under Section 374 of Cr.P.C, is against both conviction and Sentence.
Therefore, appellate Court can under section 389(1) of Cr.P.C 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. Bagali3 in which court stayed appellant’s conviction which consequently, made

1
Election Commission India v. Saka Venkata Rao, AIR 1953 SC 210
2
Rama Narang v. Ramesh Narang & Anr., SCC 11, 2006, SC114.
3
Ravikant S. Patil v. Sarvabhouma S. Bagali, SCC 1, 2007, SC 673.

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 Lily Thomas vs. Union of India (2013) 7 SCC 653: Case Commentary

disqualification ceased to operate which was arising out of his conviction under Section 8(3) of
RPA.

SUBSEQUENT DEVELOPMENTS AND CONCLUSION

The result of the aforesaid discussion is that affirmative words used in Articles 102(1)(e) and
191(1)(e) confer power on Parliament to make one law laying down the same disqualifications
for a person who is to be chosen as member of either House of Parliament or as a member of the
Legislative Assembly or Legislative Council of a State and for a person who is a sitting member
of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a)
and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to
defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of
Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or
State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the
Act or which defers the date on which the disqualification will take effect in the case of a sitting
member of Parliament or a State Legislature is beyond the powers conferred on Parliament by
the Constitution.

Parliament has been vested with powers to make law laying down same disqualifications for
person to be chosen as member of Parliament/State Legislature and for a sitting member of a
House of Parliament or a House of a State Legislature. The provisions of Art. 101(3)(a) and
190(3)(a) of Constitution expressly prohibit Parliament to defer the date from which the
disqualification will come into effect in case of a sitting member of Parliament /State
Legislature. Parliament has exceeded its powers conferred by Constitution in enacting sub-
section (4) of Section 8 of the Act and it is ultra vires Constitution.

The submission of respondent that if sitting member of Parliament/State Legislature suffers from
a frivolous conviction by the trial court for an offence given under sub-sections (1), (2) or (3) of
Section 8 of the Act, he will be remediless and will suffer immense hardship as he would stand
disqualified on account of such conviction in the absence of Section 8(4) of the Act, do not find
any merit, as held in Rama Narang v. Ramesh Narang and Ravikant S. Patil v. Sarvabhouma S.
Bagali in the light of the provisions of Code of Criminal Procedure as per Section 389 and 482.

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 Lily Thomas vs. Union of India (2013) 7 SCC 653: Case Commentary

Court can declare Section 8(4) of the Act as ultra vires Constitution without going into the
question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14, court do
not think it is necessary to decide the question as to whether sub-section (4) of Section 8 of the
Act is violative of Article 14 of the Constitution.

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-section (4) of Section 8 of the Act should not, in our considered opinion, be
affected by the declaration now made by us in this judgment. In the light of Golak Nath and
Others vs. State of Punjab and another and Harla v. State of Rajastha as it would be against the
principles of natural justice to permit the subjects of a State to be punished or penalized by laws
of which they had no knowledge and of which they could not even with exercise of due diligence
have acquired any knowledge.