Citation– AIR 2013 SC 2662
Court – Supreme Court of India
Judges/Bench – Hon’ble JusticeA.K. Patnaik, Hon’ble Justice Sudhansu Jyoti Mukhopadhaya
Appellant – Lily Thomas
Respondent –Union of India & Ors.
Date of the judgment – 10 July, 2013
Referencence –Representationof the People Act, 1951, Dowry Prohibition Act, 1961 (28 of 1961), Constitution of India 1949, Prevention of Food Adulteration Act, 1954 (37 of 1954), Drugs and Cosmetics Act, 1940 (23 of 1940), Indian Penal Code (45 of 1860), Commission of Sati (Prevention) Act, 1987 (3 of 1988), Prevention of Corruption Act, 1988 (49 of 1988),Prevention of Terrorism Act, 2002 (15 of 2002), Protection of Civil Rights Act, 1955 (22 of 1955).
Legislation & Rules – 1. Sec. 8,Sec.7, Sec. 125, Sec. 135, Section 135A and Sec. 136 (2(a)) of Representation of the People Act, 1951
2.Art. 102(1), Art. 191(1),Art. 246(1),Art. 103, Art. 192, Art.102and Art. 83of Constitution of India 1949
3.Sec.153A, Sec.171E, Sec.171F, Sec. 376(1) (2), Sec. 376A, Sec. 376B, Sec. 376C,Section 389, Sec. 376D, Sec. 505 (2) (3), Sec. 498A ofIndian Penal Code(45 of 1860)
4.Sec. 11 of Customs Act, 1962 (52 of 1962)
5.Sec. 10 to 12 of Unlawful Activities (Prevention) Act, 1967 (37 of 1967)
6.Sec. 6 of Places of Worship (Special Provisions) Act, 1991
7. Sec. 2, and Sec. 3 of Prevention of Insults to National Honour Act, 1971 (69 of 1971)
The present appeal before the Supreme Court has been filed by Lily Thomas (“Appellant”) against the Union of India & Ors. (“Respondent”) with Lok Prahari, through its General Secretary S.N. Shukla (“Appellant”) against the Union of India &Ors. (“Respondent”) The Apex Court dealt with an essential question of primarily stating sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Indian Constitution.
Background of the Case
The problem of misconduct in politics or specifically sentenced representative in Parliament and government has been argued for a very long period as well as some changes have been suggested by various forums (Election Commission of India, Apex Court etc.). Likewise with the political elections have to be organised in the year 2014, the Apex Court arrived with three famous rulings one of them was this constitutionality of Sec. 8 (4) of Representation of the People Act, 1951, which affected the operation of the vote.
The two writ petitions Lily Thomas v. U.O.I and S.N. Shukla v. U.O.I was filed as Public Interest Litigation mainly to state Sec. 8 (4), Representation of the People Act 1951, as unconstitutional.
The proviso of the RPA, 1951, explains that condemned legislator can file a plea and accordingly this will hold out their condemnation. Lok Prahari, an NGO established in Lucknow, by its general secretary, too filed an appeal on the equivalent relevancy both the appeals were adjudged together.
- In Lily Thomas v. the UOI and Ors. , the Apex Court held Sec. 8 clause(4) of the RPA, 1951, which permitted representatives a 3-month window to file a petition toward their condemnation efficiently slowing down their elimination until before-mentioned petitions were debilitated as ultra vires the constitution.
- Sec. 8 of the RPA, 1951 deals with elimination on confinement for several crimes: An individual condemned of any violation and confined to sentence for changing rules under Sec. 8 clause (1) (2) and (3) must be excluded from the day of the verdict as well as resume to be barred for an additional term of 6 years since he is set free.
- Although Sec. 8 (4) of the Representation of the People Act, 1951 grants security to Members of Parliament as well as Members of Legislative Assembly since they can resume their work in office still after sentence if a petition is filed in 3 months.
- The Hon’ble Supreme Court affirmed it as ultra vires the constitution that condemned individuals could be barred from participating in elections though could stay to be Members of Parliament and State Legislatures if already selected.
Issue 1– Whether the control used by parliament for validating Sec. 8(4) of RPA was in agreement with the regulations given in the Indian constitution?
Issue 2– Whether the Sec. 8(4) of Representation of the People Act, 1951 implemented on existing members and to those who will be selected, was serving them evenly?
Issue 3– Whether a condemned individual will hold any relief if Apex Court gives exemption?
Contention of both the parties
Arguments on behalf of the Petitioners
- Fali Nariman, contended, amongst additional points, that is the understanding of Art. 102(1) (e) and 191(1) (e) the Parliament is not constitutionally qualified to approve Sec. 8(4). He quoted a Constitution Bench verdict of the Apex Court in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in this case it has been judged that Art. 191 puts down the similar collection of rejections for selection and for membership.
- He further argued that the Indian Constitution doesn’t permit the Parliament and State Legislatures to enact laws on any issues they wish. And if our Parliament is not precisely authorised by the Indian Constitution to enact statutes on a provided matter, it can’t approve a law on that subject. In constitutional law, that is termed as ‘legislative competence’.
- The counsel of the petitioner further contended that the Parliament’s ‘competence’ to approve Sec. 8(4) arises from Art. 102(1) (e) and 191(1) (e). Art. 102(1)(e) of the Indian Constitution states that the Parliament can enact a provision giving for situations where a Member of Parliament must stand eliminated from the belonging of either house of the Parliament and Art. 191(1) (e) states a similar point about Members of the Legislative Assembly.
- Neither of those 2 Art. provides the Parliament with the ‘capability’ to approve a provision that in influence guards and conserves the membership of an existing Member of Parliament or Legislative Assembly still after the alike has been condemned of an illegal sin by a Judge. Sec. 8(4) makes specifically that only. So Sec. 8(4) is beyond whatever the Parliament is constitutionally ‘competent’ to do and makes the alike as ultra vires the constitution.
Arguments on behalf of the Respondent
- ASG Sidharth Luthra contended, that if the Parliament is constitutionally qualified to state below what conditions a Member of Parliament or Legislative Assembly will stand disentitled from his / her membership under Art. 102(1)(e) as well as 191(1)(e), before-mentioned capability significantly holds within itself the ability to approve a rule that may delay the impact of such elimination for a moment.
- The counsel for the respondent further contended that the constitutional ‘competence’ to pass Sec. 8(4) attains not from Art. 102(1)(e) as well as Art. 191(1)(e) but Art. 246 r.w. entry 97 of the list I of sched. VII of the Indian Constitution. Art. 246 gives that our Parliament can enact rules solely on the subjects given in List I of Sched. VII, State Legislatures can enact provisions only about topics given in list II of sched. VII moreover two of them can establish rule solely on issues given in list III of sched. VII and this ‘entry 97’ is the ‘nonessential entry’ in the list I.
- It was contended that if a provided topic is not stated in any of the 3 lists in Sched. VII, then, to ascertain ‘legislative competence’ it will naturally fall within list I. Hence if it’s not understandable by the writing of our Constitution as to even if the Parliament can enact provisions on a topic or the State Governments, entry 97 gets into action that gives that in this kind of condition the Parliament will be qualified to approve a provision on that matter.
- The counsel of the government was attempting to prove that the Parliament is qualified to approve Sec. 8(4), if not under Artt. 102(1)(e) as well as 191(1)(e) then under Art. 246.
- The Hon’ble Supreme Court ruled that ‘entry 97’ gets into usage merely when the Indian Constitution is still as to who holds the ability to pass a provision related to a provided topic. Only, in this issue, our Constitution is not quiet. Art. 102(1)(e) as well as 191(1)(e) so accurately put the Parliament in the duty to make regulations on the topic of elimination of Members of Parliament and Legislative Assembly. Therefore “entry 97” would not get into action. The division bench ‘found’ the ‘legislative authority’ of the Parliament to ‘pass any provision associating to elimination’ for a Member of Parliament or Legislative Assembly ‘solely in Art. 102(1)(e) including 191(1)(e) of our Constitution but not in Art. 246(1) r.w. Entry 97 of List 1 of the 7th Sched. and both the contentions of the respondent were denied by the Apex Court.
- Secondly, the major conclusion deals with Art. 101(3) (a) that, amongst additional things, states that if a Member of Parliament has been debarred as a result of a provision passed under article 102(1) (e), then the position of such member should thereon turn abandoned.
- Art. 190(3) (a) states a similar point about Members of Legislative Assembly. Based on these approved laws the bench judged that the Parliament is not qualified to enact a provision which ‘delays the day on which the eliminations of an existing member will have an impact as well as stop his position converting unfilled on the elimination under Artt. 102(1) (e) as well as 191(1) (e) of the Indian Constitution’.
- If a member is eliminated because of condemnation, the Indian Constitution states, the Member of Parliament else Legislative Assembly stops to be a part of the House. Though, Sec. 8(4), permitted such a Member to proceed in the House, despite after that condemnation. These two holdings were applied to the issue proposed in this matter i.e. whether sec. 8(4) is ultra vires or not, the Apex Court upheld that sec. 8(4) is ‘ultra vires the Constitution’.
- The last part of the decision that is very valuable that does a Member of Parliament or Legislative Assembly who has been condemned of a felonious crime by a court has any remedy if the court spares him?
The Apex Court stated that such a Member of Parliament or Legislative Assembly has two solutions, both under the Cr.P.C, 1973. The first remedy, during the filing of an appeal, against the condemnation, the appellate court under Sec. 389(1) of the Code of Criminal Procedure can provide a hold on the command of condemnation. Second is when the High Court under Sec. 482 of the Code of Criminal Procedure, 1973 utilising its approved authorities, can put a hold on the command of a condemnation. When an upper court imparts a stop on sentence, in the eyes of the law, the condemnation doesn’t exist. Hence, such a command will make the condemnation non-existing in the eyes of law will also save the seat of the Members of Parliament or the Members of Legislative Assembly in the House.
- While there is nothing in the writing of the Indian Constitution that allows the Parliament to approve Sec. 8(4), there is zilch in the writing of our Constitution allowing the Judges to hold the execution of Art. 101(3)(a) as well as 190(3)(a) either.
The conclusion withdrawn is that under Art. 102 and 191 of the Indian Constitution provide identical eliminations for an individual being selected as a part of either House of Parliament, or the State Assembly or Legislative Council of the State moreover for an individual being the member of either House of Parliament else the State Assembly or Legislative Council of the State, and thereupon the rejections for an individual to be chosen as a part of either House of Parliament else the State Assembly or Legislative Council of the State also for an individual to remain as a part of either House of Parliament or State Assembly can’t be distinctive.
Moreover, it can’t be stated that condemned Member of Parliament or Member of Legislative Assembly can be a sufferer of fatuous charges as the Appellate Court in the application of its authority under Sec. 389(1) of the Cr.P.C can hold the command of punishment, and the High Court in the utilisation of its original power under Sec. 482 of the Code of Criminal Procedure can too hold the condemnation if the control is not to be found in Sec. 389(1) of the Cr.P.C. and particularly in Ravikant S. Patil v. Sarvabhouma S. Bagali, the Judge abided accused’s punishment which indicated that an elimination resulting out of his sentence given under the Sec. 8(3) of Representation of People Act, 1951 and stopped to work following the hold. This specific solution was applied by Navjot Sidhu in the year 2007 to contest election once more after his elimination.
Hence it can be asserted that the decision of the Apex Court will assist in de-criminalising politics in India as well as will surely aid in the growth of our nation.
- CASE COMMENT: LILY THOMAS V. UNION OF INDIA AND ORS. (AIR 2013 SC 2662), available at: https://researchersclub.wordpress.com
- K. Prabhakaran v. P. Jayarajan, (2002) 8 SCC 79. (n.d.).
- Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1465. (n.d.).
- Navjot Singh Sidhu v. State of Punjab and Another, 2007 2 SCC 574. (n.d.).
- B.R. Kapur v. State of T.N. and Another, (2001) 7 SCC 231. (n.d.).
- Electoral reform decisions by Supreme Court, available at: https://www.civilsdaily.com (last visited on 26 June, 2020). (n.d.).
- Flection Commission, India vs Saka Venkata Subba Rao, 1953 AIR 210, 1953 SCR 1144. (n.d.).
- Golak Nath and Others vs. State of Punjab and Another AIR, 1967 SC 1643. (n.d.).
- Harla v. State of Rajasthan, AIR 1951 SC 467. (n.d.).
- Lily Thomas vs. Union of India & Ors., AIR 2013 SC 2662. (n.d.).
- Rama Narang vs Ramesh Narang & Ors, 1995 SCC (2) 513, JT 1995 (1) 515. (n.d.).
- Ravikant S. Patil v. Sarvabhouma S. Bagali, (2007) 1 SCC 673. (n.d.).
- Shri Manni Lal v. Shri Parmal Lal and Others, (1970) 2 SCC 462. (n.d.).
- The Empress v. Burah and Another (1878), ILR 3 Cal 64. (n.d.).
- XV. Understanding Lily Thomas v. Union of India: Why section 8(4) of the Representation of People Act, 1951 was declared unconstitutional?,available at: http://khagesh-gautam.blogspot.com (last visited on 28 June, 2020). (n.d.).