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Illegalizing Convicted of MP's and MLA's

Lily Thomas v. Union of India, (2013) 7 SCC 653

In India it is a known fact which has been debated since a long time that the nexus between the criminality and politics goes to the root of keys problems which our country is facing. The power of muscle men cripples the efforts made by the politicians who actually wish to work in the interest of the common and not ‘theirs’.

However the instant case happens to be a landmark decision which has the potential to facelift our Indian democracy and cur the entry of people with a criminal bent of mind into the Parliament and legislative houses of democracy.

Facts of the Case
  • A Public interest Litigation was filed by a public spirited lawyer. Lily Thomas and an NGO Lok Prahari by which they challenged the Sec 8 (4) of the Representation of the People Act, 1951 as ultra vires to the Constitution. The main idea behind the petition was to stop the entry of convicted individuals in the legislative houses and put a ban on such criminal elements.
  • Article 102(1) and article 191(1) of the Constitution of India lay down the disqualifications for a member of the Parliament and a member of the Legislative Assembly respectively, at the same time it also empowers the Central Government to add more disqualification in its wisdom.
  • Sec 89(4) of the act provides that if a sitting member of the house who is convicted for an offence which is punishable for more than two years imprisonment and such a convicted person moves an appeal within three months of the conviction then he shall not be disqualified from holding the membership of the house.

  1. The first issue to be deliberated in the case was that- Whether the Parliament was competent to enact Sec 8(4) of the act?
  2. The second issue was that- Whether Sec 8(4) of the act was in contravention of the provisions of the Constitution of India and it ran counter to the intention and the aspirations of the framers of the Constitution since it allowed persons of a certain class to hold membership even when convicted of an offence?

  • Supreme Court of India, in its judgment dated 10 July 2013, while disposing the Lily Thomas v. Union of India case (along with Lok Prahari v. Union of India), ruled that any Member of Parliament (MP), Member of Legislative Assembly (MLA), or Member of Legislative Council (MLC) who is convicted of a crime and given a minimum of two year imprisonment, loses membership of the House with immediate effect.
  • This is 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 declared unconstitutional by the bench of Justice A.K Patnaik and Justice S.J Mukkopadhaya.

Resistance from Government
  • 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.
  • The Indian Government also filed a review petition, which the Supreme Court dismissed.
  • On 24 September, a few days before the fodder scan verdict, the government tried to bring the bill into effect as an ordinance.
  • However, Rahul Gandhi, Vice-President 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.”
  • 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. Within 5 days, both the ordinance and the bill were withdrawn on 02 October.
  • 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.
It was held by the Court A. 102(1)(e) and A. 191(1)(e) of the Constitution of India confer power on the Parliament to make a single law which lays down the disqualification for a person who is to be chosen as member of any house and also for a person who is a sitting member of any house.

It was held that once a member becomes disqualified then his seat automatically becomes vacant by virtue of A. 101(3)(a) and A. 190(3)(a) of the Constitution of India. Hence the Parliament cannot provision to defer the date on which the disqualification will have effect and prevent the member’s seat from becoming vacant on account of the disqualification.

It was held that the Articles put a limitation on the power of the Parliament to defer the date on which the disqualifications would have effect and a special provision cannot be avoid the natural corollary of a disqualification.

Hence Sec 8(4) of the act which creates distinction between a sitting member and a proposed to be member of the house since it defers the date on which the disqualification will take effect in the case of a sitting member of the house is beyond the powers conferred on Parliament by the Constitution thereby making it ultra vires to the Constitution of India.

Criminalization of the politics has been an issue plaguing the Indian Political System. As per Association for Democratic reforms, current Parliament has highest number of politicians facing criminal charges like kidnapping, sexual assault etc.

Corruption and criminalization of politics is hitting at the roots of democracy. Therefore, Parliament take steps urgently to curb this menace. Candidates & political parties must give wide publicity to criminal cases pending against him or her, in the local media, both print and electronic, after he or she files nomination to contest elections.

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