12 July, 2013

Lily Thomas v. Union of India, 2013 SC: A Judgment to Stride the Ditch of Filthy Politics

A bench of Justices A.K. Patnaik and S. J. Mukhopadhaya of the Supreme Court of India has struck down a provision of the Representation of the People Act, 1951 which shields the convicted lawmakers against disqualification on the ground of pendency of appeal against their conviction in the superior courts. The judgment was passed on July 10, 2013, in the Writ Petitions (Civil) of Lily Thomas v. Union of India (490 of 2005) and Lok Prahari, through its Secretary General S.N. Shukla v. Union of India (231 of 2005).
 
For Petitioners:
Senior Advocate Mr. Fali S. Nariman for Lily Thomas
Mr. S.K. Shukla (personal capacity) for Lok Prahari
For Respondant UOI:
Mr. Siddharth Luthra, Additional Solicitor General, SC
Mr. Paras Kuhad, Additional Solicitor General, SC
 
Issue Involved in the case:
The writ petitions were filed as Public Interest Litigations for mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution of India. The provision says that legislators cannot be disqualified on his conviction in a criminal case if he/she files an appeal in the appropriate court.
 
Judgment of the Court:
Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been necessary for us to go into this question only if sub-section (4) of Section 8 of the Act was held to be within the powers of the Parliament. In other words, as we can declare sub-section (4) of Section 8 of the Act as ultra vires the Constitution without going into the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution, we 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. The court said that the disqualification will take place from the date of conviction.
The court said that its decision will not apply to MPs, MLAs or other lawmakers who have been convicted and have filed their appeals in the higher courts before the pronouncement of this verdict. Nonetheless, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection (4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.
 
Attached file:

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