7/18/2014 Lily Thomas v.

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5th August 2013
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Lily Thomas v. Union of India: A Case on Criminalization of Politics
Recently, the Apex Court of this country gave a very important verdict relating to our
election laws. For a layman, this judgment
[http://www.indiankanoon.org/doc/63158859/] would basically keep the criminals out
of our Parliament and the State Legislatures. This case was concerned with the
constitutional validity of Section 8 (4) of the Representation of the People Act, 1951.
The Court declared the said provision as ultra vires the Constitution of India.
However, the sitting MLAs and MPs would not be affected by this decision 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[1]
[file:///C:/Users/Suyash/Documents/CSE%202014/Desi%20Kanoon/Lily%20Th
omas%20v.%20UoI.docx#_ftn1] .
The disqualifications for persons being chosen as, and for being, a member of either
House of Parliament as well as a member of the Legislative Assembly or Legislative
Council of the State are given in Article 102 (1) and Article 191 (1) respectively.
Also, Section 8 (4) of the RP Act says that a disqualification shall not, in the case
of a person who on the date of the conviction is a MP ot MLA, 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.
However, Article 102 (1) and Article 191 (1) say that a person shall be disqualified
for being chosen as, and for being, a member of either House of Parliament or
the State Legislature if he is so disqualified by or under any law made by
Parliament.
Now, let us look into Article 101 (3) (a) and Article 190 (3) (a). These articles say
that if a MP or MLA becomes subject to any of the disqualifications mentioned in
Article 102 (1) or Article 102 (2) or Article 191 (1) or Article 191 (2), his seat
shall thereupon become vacant.
Lily Thomas v. Union of India: A Case
on Criminalization of Politics
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Based upon a reading of the above mentioned provisions and various case laws, the
Court finally held that the Parliament has been vested with the powers to make law
laying down the same disqualifications for person to be chosen as a MP or MLA
and for a sitting MP or a MLA.
The Court also said that the Parliament must make one law laying down the
same disqualifications for a person who is to be chosen as a MP or a MLA
and for a person who is a MP or a MLA 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.
It was objected by the respondents that there might be frivolous convictions by the
trial court in some cases against a MP/MLA and that sitting MLAs/MPs will be
remediless and will suffer immense hardship as he would stand disqualified on account
of such conviction in the absence of subsection (4) of Section 8 of the Act. The court
responded by saying that there are various remedies (Order for Stay of Conviction)
available in the Code of Criminal Procedure (Section 482 or Section 389) for such
special cases.
There were various other grounds raised well. You can find the whole judgment here
[http://www.indiankanoon.org/doc/63158859/] . Overall, this seems to be a very
sound judgment. However, I have my own reservations. Some of them are mentioned
below.
Constitution has not explicitly said that disqualifications pre-election and post-election
cannot be different. The meaning derived from various articles of the Constitution is
only implicit.
Just because an amendment to article 83 failed in the constituent assembly does not
mean that such an amendment cannot be enacted as a law by the parliament in the
times to come. This failure of amendment in the Constituent Assembly does not
abridge the power of the parliament to enact such a law. If that were the logic, the
whole concept of bringing amendments to the constitution would get forfeited. There
were many things which were rejected or which were not discussed in the Constituent
Assembly. But later on, such things became law either by way of constitutional
amendments, separate enactment of statutes in that regard or judicial pronouncements.
Constitution merely provides a broad framework. Article 102 (1) (e) gives ample
power to the parliament to makes laws in this regard.
I agree that the aggrieved person has to option to move the court and obtain a stay
order. But, there is nothing stopping the parliament to make a law in this regard. An
existence of a judicial remedy does not take away the right of the parliament to enact
laws within the framework of the constitution.
Invoking article 14 in this case makes little sense. The persons who are elected and
who are to be elected, do not stand on the same footing. The persons who are elected
are burdened with the great responsibility of representing the interest of the people in
the legislature. Whereas, the persons to be elected are contesting to become such
representatives. The elected persons are burdened with a lot of responsibility and a
special provision is needed to safeguard their position and make sure that they are not
disqualified for the wrong reasons. If they are removed instantaneously, they would be
7/18/2014 Lily Thomas v. Union of India: A Case on Criminalization of Politics | Desi Kanoon- One of the Leading Law Blogs in India
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deprived of any remedy even though their conviction is set aside by the higher court.
I personally feel that this case was not well-argued, well-represented and well prepared by the
Respondents. The Union of India could have hired advocates of better caliber for representing
them in this case. The arguments from the Respondent's side seemed to be dull and without any
traction. The Court could not have done much as the respondents did counter even a single
argument presented by the petitioners.
[1]
[file:///C:/Users/Suyash/Documents/CSE%202014/Desi%20Kanoon/Lily%20Thomas%20v
.%20UoI.docx#_ftnref1] Harla v. State of Rajasthan, AIR 1951 SC 467.
Posted 5th August 2013 by Suyash Verma
Labels: Criminalization of Politics, Lily Thomas, Lily Thomas v. Union of India

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7/18/2014 Lily Thomas v. Union of India: A Case on Criminalization of Politics | Desi Kanoon- One of the Leading Law Blogs in India
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