This article is written by Bheeni Goyal and has been further updated by Syed Owais Khadri. This article provides a comprehensive study of the judgement of Lily Thomas v. Union of India, in which the Supreme Court of India struck down Section 8(4) of the Representation of People Act, 1951. The article provides a simpler study of the case by breaking it down under various headings.

Introduction

During the rule of the Colonial Government, a Southborough Committee, 1932 was set up for the purpose of designing a system of electoral representation for the Dominion of India. The committee called upon Dr. Ambedkar for his advice on electoral representation. While making the submission, Dr. Ambedkar had listed the two significant criterias that make citizenship. The two criterias were the right of representation and the right to hold office under the States.

But the views as stated by the father of our Constitution do not hold relevance in the current times, as many politicians have time and again abused the above-mentioned facet as stated by Dr. B.R. Ambedkar. In current times, many MPs and MLAs who have been elected in the houses of Parliament have criminal records, and therefore Lily Thomas, an advocate, approached the court to stop the convicted criminals from being a part of those few people who represent the views of the citizens by sticking onto the seats of MPs and MLAs even after being convicted of various crimes.

The Supreme Court of India in the case of Lily Thomas v, Union of India (2013) dealt with a Public Interest Litigation (PIL) challenging the validity of Section 8(4) of the Representation of the People Act, 1951, which protects the sitting MPs and MLAs of any state from disqualification in case of conviction for certain offences provided under the other three clauses of Section 8 of the above-mentioned Act. The division bench of the Supreme Court comprising Justices A.K. Patnaik and S.J. Mukhopadhaya delivered the judgement in July 2013, declaring the impugned Section as ultra-vires to the Constitution and held that Section 8(4) would not save any MP or MLA from disqualification with immediate effect if convicted for any offences mentioned in Subsections (1), (2), and (3) of the above mentioned Section.

Details of Lily Thomas v. Union of India

Following are some of the important details of the case discussed in this article- 

• Case Name – Lily Thomas v. Union of India 
• Case No. – W.P (C) 490/2005, W.P (C) 231/2005, W.P (C) 694/2004
• Equivalent Citations – AIR 2013 SC 2662, (2013) 7 SCC 653
• Court – Supreme Court of India
• Bench – Justices Shudhanshu J. Mukhopadhaya and A.K. Patnaik
• Petitioners – Lily Thomas, Lok Prahari, Basant Kumar Chaudhary
• Respondents – Union of India 
• Judgement Date – 10^th July 2013

Facts of Lily Thomas v. Union of India

In 2005, Lily Thomas, along with the advocate Satya Narain Shukla from Lucknow, filed a writ petition in the Supreme Court for the purpose of challenging Section 8(4) of the Representation of the People Act, 1951. This Section sought to protect the convicted politicians against any sort of disqualification from contesting the elections, on the ground of pending appeals against their conviction in the appellate courts. Although the petition filed by the petitioners was rejected at the first attempt, eventually after nine years, after constantly making attempts, later in July 2013, the Supreme Court bench, which comprised Justices A.K. Patnaik and S.J. Mukhopadhaya, passed a verdict.

The facts that are relevant to this case, i.e, to challenge Section 8(4) of the Representation of the People Act, 1951, are that the Constituent Assembly laid down certain grounds for disqualification of MPs and MLAs under Articles 102 and 191, respectively, of the Constitution of India. Clause (e) in both the Articles empowers the Parliament to lay additional grounds for disqualification under any law made by them. Therefore, by using the powers given by the Constitution in Articles 102(1)(e) and 191(1)(e), the Parliament enacted the Representation of the People Act, 1951, which provides for disqualification of the Members of Parliament (MPs) and Members of Legislative Assembly (MLAs) on conviction for certain offences listed under Section 8. Subsection (4) of the aforementioned Section protects any sitting MP or MLA of any State from disqualification with immediate effect in case of conviction for any of the offences mentioned under that Section.

The petitioner Lily Thomas, an advocate along with others, has therefore filed a Public Interest Litigation (PIL) before the Supreme Court of India in 2005, challenging the constitutional validity of Section 8(4) of the Representation of the People Act, 1951 and declaring it as ultra-vires to the Constitution.

Issues

1. Whether the Parliament was empowered to enact Subsection 4 of Section 8 of the Representation of People Act, 1951?
2. Whether Section 8(4) is ultra-vires to the Constitution of India?

Point of law involved in Lily Thomas v. Union of India

The Constitution of India

Various provisions of the Indian Constitution were discussed in this case. These are enumerated below- 

• Article 101 – Provides for the vacation of the seats in either house of the Parliament. Clause 3(a) provides that a seat of an MP would become vacant if that particular MP is subject to disqualifications mentioned in Article 102.
• Article 102 – Provides for the disqualifications for membership of the Parliament. Clause 1(e) empowers Parliament to lay down additional grounds for disqualification under any law made by the Parliament.
• Article 190 – Provides for the vacation of the seats in the State Legislature. Clause 3(a) provides that a seat of an MLA would become vacant if that particular MLA is subject to disqualifications mentioned in Article 191.
• Article 191 – Provides for the disqualifications for membership of State Legislature. Clause 1(e) empowers Parliament to lay down additional grounds for disqualification under any law made by the Parliament.
• Article 246 – Provides for power of the Parliament and State Legislatures to make laws on various subject matters. Clauses 1 and 2 empower Parliament to make laws on subject matters mentioned in Union and Concurrent Lists (List I and III) of Seventh Schedule of the Constitution.
• Article 248 – States that the Residuary Power rests with the Parliament. Residuary Power refers to the Power of the Parliament to make laws on subject matters not mentioned in the State List (List II) of Seventh Schedule of the Constitution. Similar power is given to the Parliament under Entry 97 of List I (Union List) of the Seventh Schedule.

Representation of the People Act, 1951

The relevant provisions of Representation of People Act which are discussed in this case are mentioned below- 

• Section 7 – Defines the terms ‘appropriate government’ and ‘disqualified’.ec
  • Section 7(a) defines ‘Appropriate Government’ as “appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to any disqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government.
  • Section 7(b) defines ‘Disqualified’ – “disqualified” means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State 4 under the provisions of this Chapter, and on no other grounds. 
• Section 8 – Provides for disqualification on the ground of conviction for certain offences. Subsections (1), (2), and (3)  lists down various offences, convictions of which would disqualify a candidate from either contesting or being an MP or an MLA. Subsection (4) serves as a protection provision for the sitting MPs and MLAs, preventing the immediate disqualification on conviction. It provides that the disqualification  on conviction of a sitting MP or an MLA shall not take effect until three months have elapsed from the date of conviction or the disposition of any appeal, if any filed by the convicted MP or MLA.

Contentions of the parties in Lily Thomas v. Union of India

Petitioners

• The Petitioners’ primary contention was that the disqualifications for being chosen as an MP or MLA of any State Legislature and the disqualifications for being a sitting MP or on MLA cannot be different. They argued that the same was made clear at the beginning of the Articles 102 and 191 of the Constitution. They further relied upon the judgement of Election Commission v. Saka Venkata Rao (1953) in which the Apex Court observed that Article 191 lays down the same set of disqualifications for being chosen and for continuing as a Member of any State Legislature. Therefore, the Petitioner’s contended that the impugned provision is in contravention of Clause (1) of Articles 102 and 191 of the Constitution.
• The Petitioners’ next major contention was that the Parliament lacked the power to enact Section 8(4) of the Representation of the People Act, 1951. They contended that the Articles 102 and 191 do not empower the Parliament to enact any provision protecting the sitting MPs and MLAs from immediate disqualification after conviction. Therefore, the Petitioners’ argued that since the Parliament lacked the legislative power to enact the impugned provision, it must be held ultra-vires to the Constitution.
• The Petitioners’ contended that the suspension/disqualification of an MP or MLA must operate in the same manner as the conviction and the sentence operates until it is set aside. They relied upon the observation of a Constitution Bench of the apex court in B.R. Kapur v. State of T.N (2001) where the court held that conviction and the sentence given upon the conviction operates until it is set aside in an appeal and the same applies to the disqualification as well.
• The Petitioners’ further contended that the disqualified MPs and MLAs will have a remedy even in the absence of Section 8(4) of the Representation of the People Act, 1951. They contended that disqualification can be stayed by the appellate court by suspending the order of conviction under Section 389(1) of the Code of Criminal Procedure,1973. The Petitioners argued that the same has been clarified by the Apex Court in Navjot Singh Sidhu v. State of Punjab (2007). They, therefore, argued that a blanket provision like the impugned provision cannot be made to keep the disqualification in abeyance.
• The Petitioners’ pointed out that the observations made or reasons given by the Apex Court in K. Prabhakaran v. P. Jayarajan (2005) regarding the Parliament’s classification of sitting MPs and MLAs in a different category to protect them through the impugned provision are obiter dicta and are not binding ratio on the issue of validity of the impugned provision since the provision itself was not under challenge in that case. 
• The Petitioners’ contended that the impugned provision is violative of Article 14 of the Constitution as it is arbitrary and discriminatory in nature. They claimed that it discriminates between the sitting MPs and MLAs and those who are to be chosen as MPs and MLAs so far as the disqualifications are concerned.

Respondents

• The Respondents’ submitted that the Apex Court had upheld the validity of the impugned provision in K. Prabhakaran v. P. Jayarajan (2013). They submitted that the Court in the aforementioned case provided two main reasons for the classification of sitting MPs or MLAs in a different category which is protected by the impugned provision. They contended that it is for those reasons the Parliament has enacted the impugned provision. The two reasons provided are as follows:
  1. The immediate disqualification of sitting MPs or MLAs would reduce the strength of the house as well as of the political party. In cases where the party in power stands exactly at the necessary mark and forms the government, it can be affected by the disqualification, since each member counts in such a case. Disqualification in such a case would have an adverse impact on the functioning of the government.
  2. A by-election shall have to be held, which may turn pointless in an event of the disqualified member being acquitted by the appellate court.
• The Respondents’ contended that the Parliament derives the legislative power to enact the impugned provision from Articles 102(1)(e) and 191(1)(e), and if not, then from Article 246(1) r/w Schedule VII, List I, Entry 97 and Article 248 of the Constitution, which confers residuary power to the Parliament to legislate on subject matters not enumerated in List II and III of Schedule VII of the Constitution. They further contended that under the aforementioned Articles, along with the power to lay down additional grounds for disqualification, the Parliament also has the power to prescribe as to when exactly the disqualification shall become effective in case of conviction of sitting MPs or MLAs.
• The Respondents’ contended that the impugned provision does not provide any different set of disqualifications for sitting MPs and MLAs and those who are to be chosen as MPs or MLAs. They submitted that it merely states that the very same disqualifications shall take effect after a certain period of time in case of conviction of sitting MPs or MLAs.
• The Respondents’ contended the Petitioners’ contention, that the disqualified members shall have a remedy to move to the court to stay the disqualification or suspension under Section 389 of the Code of Criminal Procedure, 1973, is not right as the aforementioned provision does not give the power to an appellate court to stay the disqualification which would take effect from the date of conviction and hence there is a necessity and rationale to enact a safeguard under the impugned provision.

Judgement in Lily Thomas v. Union of India

The Hon’ble Supreme Court held that the enactment of a provision to protect the sitting MPs and MLAs is beyond the powers of the Parliament. The Court observed that the disqualifications for the sitting MPs and MLAs should be the same as those who are to be chosen as MPs or MLAs. The Court further held that the Parliament cannot prevent the vacation of the seat of the house, which takes place on disqualification under Articles 101(3)(a) and 190(3)(a) by deferring the date from which the disqualification shall become effect by enacting a provision protecting the sitting MPs and MLAs from disqualification due to conviction. 

The Court observed that the Parliament has the power to make law laying down disqualifications for a person to be chosen as an MP or MLA and for the sitting MPs and MLAs under Articles 102(1)(e) and 191(1)(e) but at the same time, as per the Articles 101(3)(a) and 190(3)(a), the Parliament is prohibited from prescribing any law to defer the date from which the disqualification shall become effective. The Court held that the Parliament acted beyond the powers conferred by the Constitution by enacting the impugned provision and therefore the impugned provision is ultra-vires to the Constitution.

Analysis of the case

The Supreme Court has ruled out in this case that as soon as there will be a conviction of the politician ordered by the court, they will be disqualified immediately from contesting the elections or continuing as a member of the Parliament.

The Hon’ble court rejected both the contentions of the respondent on the ground that entry 97 will come into force when the Constitution is silent on who has the competency to enact such a law on the given subject matter. However, Articles 102 and 191 of the Constitution clearly state that the Parliament has the power to make laws on the subject matter of the disqualifications of all the MPs and MLAs.

However, in India, the rate of conviction depends on the process of the court providing the punishment, which takes a really long time. In 2019, The Association for Democratic Reforms found that in the 2019 Lok Sabha Elections there were about 45% of elected MPs who had criminal cases or pending criminal cases against them. This figure surprisingly has not decreased, but the number of politicians winning the elections with past criminal records has comparatively increased in the Parliament. According to the statistics given out by the Association, in the 2009 elections, about thirty percent of the Politicians with past criminal records were appointed to Parliament and in 2014, about 34% of the MPs with past criminal records were appointed to the Parliament.

Therefore, the requirement that the convicted criminals should not be allowed to contest the election or sit in the Parliament will not make such a difference. As suggested by the Law Commission, that any person accused of the crime or any charges that have been framed against him, should be debarred from contesting the elections. However, the question that arises is: what about those complaints which are frivolous and are filed against the politicians for the purpose of defaming them. 

The court can take the middle way in dealing with all the frivolous and vexatious complaints filed against them. Before framing the charges, it is essential for the court to take considerable thought to the said issue. Only after due consideration, charges should be framed against the candidate. The court should make sure that the accusations against the candidate have a legal basis and the charges or accusations against them cannot be used as a political tool. 

However, the Hon’ble Supreme Court in Public interest foundaton v. Union of India (2018), came out with the judgement that the candidates who are contesting the elections should not be barred on the basis of the charge sheet filed against them. The Supreme Court has ordered the political parties to share their entire criminal antecedents on the websites whenever they are contesting for the Lok Sabha elections. The Supreme Court further directed that the information about their criminal records should be shared in the local and national newspapers as well. The Supreme Court does not realise the consequences of such actions, as it may give an opportunity to politicians to misuse the observation made by the Hon’ble court and therefore to win elections by spreading fake charge sheets in the local newspapers.

Although the Supreme Court has made an effort to make sure that all the information about the political parties should be made available to the voters of the country. But in India, where the literacy rate is low and the individuals cast their votes mostly on the basis of the election campaign undertaken by the political parties. Therefore, it is not necessary that votes which have been cast by the average voter in our country would be on the basis of the due study of the criminal records of the candidates on the websites.

Rather than inquiring about the political parties, the selection of their candidates should be looked into. The Supreme Court should emphasise more on filling the gap in the legislature, which the Parliament is certainly not going to do. At this time, what is desirable is an amendment which is required to be brought into Representation of the People Act, 1951 so that the candidates can be barred from contesting elections in cases where:

(a) serious/heinous crimes have been committed by them or such cases have been pending against them in the court of law, where the specified sentence is imprisonment for two or four years;

(b) the cases should have been listed at least six months before the declaration of the election dates; and

(c) charges have been framed by a court of law, from contesting elections until the charges have been further cleared by the court.

Conclusion

It is really significant to curb the problem of electing criminals to Parliament. Our country cannot be run by a handful of criminals. To curb such a problem, it is really significant to give powers to the Election Commission of India (ECI) so that they can effectively carry out their function of monitoring the parties. 

The Election Commission of our Country has been provided with the power to stop recognizing the political parties, however, the ECI should be given more power to de-register political parties. If the commission gets the power of  automatic deregistration, then it will have a deterrent effect on the political parties, and the ECI will not give the tickets to the candidates who have faced the criminal charges or any charge sheet for the criminal charges that have been filed against them.   

Although the Hon’ble Supreme Court has approved of the new requirements [sharing the crimnal records and pending cases publicly before contesting elections] through its judgement in 2018 [Public interest foundaton v. Union of India (2018)]. It is really important to understand that the majority of the voters in our country who belong to rural areas are not literate enough to understand and analyse the criminal records of any candidates who are contesting the elections. Therefore, it is suggested by some people that Election Commission should be given the power to debar the candidates from contesting elections who have committed heinous crimes or against whom the charge sheet is framed for committing heinous crimes, as the judiciary must have applied their judicial mind before forming such charges against the candidates. However, it should be noted that complete bar on accused to content election would be unjustified as the cases registered might be false and malice. 

Frequently Asked Questions (FAQs)

Whether this case is in any way related to Lily Thomas v. Union of India (Bigamy Case)?

No, Lily Thomas v. Union of India (Bigamy case) is different from the case discussed in this article. The judgement of Bigamy case was delivered in April 2000, whereas the case discussed in this article is of 2013 and it dealt with constitutional validity of Section 8(4) of Representation of the People Act, 1951. Apart from that, as mentioned, the Lily Thomas case of 2000 reviewed the landmark case of Sarla Mudgal vs. Union of India (2000). The Supreme Court conformed with the Sarla Mudgal case and held that prohibition on conversion into Islamic religion just to perform bigamy is not violation of fundamental right of religion enshrined in Article 25. 

To know more about Bigamy in India, click here

References

• Constitution of India
• SCC Online 
• SC on criminal candidates: Should it be questioning political parties on their selection?
• The Khagesh Gautam Blog: Understanding Lily Thomas v. Union of India: Why section 8(4) of the Representation of People Act, 1951 was declared unconstitutional?
• Analysis of sitting MPs and MLAs with self declared Criminal Cases- Election Wise
• Candidates cannot be barred from elections based on chargesheets: Supreme Court – India Today

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