Lily Thomas v. UOI- Case Summary

Facts

The Association of Democratic Reforms (ADR), a non profitable organization, came up with the staggering data regarding pending criminal cases of sitting MLAs, MPs and ministers[1] and the increasing cases of corruption against our minister was a matter of serious concern for the whole nation. One of the most brilliant advocate of Supreme Court, Fali S. Nariman, fought this battle for her in the most apex forum of justice and fortunately on July 10, 2013, Supreme Court striking down S. 8(4) of Representation of People’s Act, 1951 said that sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act are disqualified from being the member of Parliament

Question of law

Whether Section 8(4) of the Representation of People’s is ultra vires?

Argument Advanced

Petitioner

Defendant

a) The Parliament is not constitutionally competent to enact section 8(4) in light of Art. 102(1)(e) and 191(1)(e) as the disqualification given for MPs or MLAs and elector is same. Further, neither of these 2 Articles gives the Parliament the ‘competence’ and power 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.

a) The Parliament is constitutionally competent to declare under what circumstances a MP or MLA will stand disqualified from his or her membership under Art. 102(1)(e) and 191(1)(e) and the Parliament can pass a law that may temporarily postpone the effect of such disqualification.

b) The constitutional ‘competence’ to legislate section 8(4) does not comes from Art. 102(1)(e) and191(1)(e) but from article 246 read with entry 97 of list 1 of schedule 7 of the Constitution.

Held

Both the argument advanced by the Defendant Counsel was rejected by the Supreme Court and accepting the argument forwarded by Petitioner Counsel, the Court held that Section 8(4) of the Representation of People’s is ultra vires and the Parliament is not constitutionally competent to enact section 8(4) in light of Art. 102(1)(e) and 191(1)(e) as the disqualification given for MPs or MLAs and elector is same.

Question of law

Whether MPs or MLAs who have been convicted of a criminal offence(s) by a court has any remedy to protect his or her membership in the House?

Argument Advanced

Petitioner

Defendant

The Petitioner argued that as soon as a person is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified from continuing as a member of Parliament or of a State Legislature notwithstanding the fact that he has filed an appeal or a revision against the conviction and there is no legal basis for providing in sub-section (4) of Section 8 of the Act that his disqualification will not take effect if he files an appeal or revision within three months against the order of conviction. He submitted that in case a sitting member of Parliament or State Legislature feels aggrieved by the conviction and wants to continue as a member notwithstanding the conviction, his remedy is to move the Appellate Court for stay of the order of conviction. He submitted the Appellate Court may stay the order of conviction of a sitting member of Parliament or State Legislature and allow him to continue as a member notwithstanding the conviction by the trial court, but a blanket provision like sub-section (4) of Section 8 of the Act cannot be made to keep the disqualification pursuant to conviction in abeyance till the appeal or revision is decided by the Appellate or Revisional Court.

The Defendant submitted that the reality of the Indian judicial system is that acquittals in the levels of the Appellate Court such as the High Court are very high and it is for this reason that Parliament has provided in subsection (4) of Section 8 of the Act that disqualification pursuant to conviction or sentence in the case of sitting members should stand deferred till the appeal or revision is decided by the Appellate or the Revisional Court.

Held

The Court said that such a MPs or MLAs who have been convicted has two remedies under the Criminal Procedure Code (CrPC). Firstly, when an appeal is filed against the conviction, the Appellate Court under S. 389(1) of the Criminal Procedure Code can give a stay against the order of conviction. Secondly, the High Court under S. 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.

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[1] Association of Democratic Reforms, ‘Nexus between elections, crime and money: Ten years of Election Watch’ (http://adrindia.org/ ) <http://adrindia.org/content/nexus-between-elections-crime-and-money-ten-years-election-watch&gt; accessed 9 August 2013

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