Indian Polity - Lily Thomas v UoI

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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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5th August 2013

[http://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.png]Lily Thomas v. Union of India: A Case on Criminalizat ion 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 outof our Parliament and the State Legislatures. This case was concerned with theconstitutional validity of Section 8 (4) of the Representation of the People Act, 1951.The Court declared the said provisi on as ultra vires the Constitution of India .However, the sitting MLAs and MPs would not be affected by this decision as itwould 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 andof which they could not even with exercise of due diligence have acquire d anykno wledge [1][file :///C:/Users/Suyash/Documents/CSE%202014/Desi%20Kanoon/Lily %20Th

oma s%20v.%20UoI.docx#_ftn1] .

The disqualifications for persons being chosen as, and for being, a member of e ither House of Parliament as well as a member of the Legislative Assembly or Legisl ativeCouncil of the State are given in Article 102 (1) and Article 191 (1) respectivel y.Also, Section 8 (4) of the RP Act says that a disqualification shall not, in the caseof a person who on the date of the conviction is a MP ot M LA, 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 thesentence, 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 saythat 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 Caseon Criminalization of Politics
http://c/Users/Suyash/Documents/CSE%202014/Desi%20Kanoon/Lily%20Thomas%20v.%20UoI.docx#_ftn1http://www.indiankanoon.org/doc/63158859/http://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://www.desikanoon.co.in/2013/08/lily-thomas-v-union-of-india-case-on.htmlhttp://www.desikanoon.co.in/2013/08/lily-thomas-v-union-of-india-case-on.htmlhttp://c/Users/Suyash/Documents/CSE%202014/Desi%20Kanoon/Lily%20Thomas%20v.%20UoI.docx#_ftn1http://www.indiankanoon.org/doc/63158859/http://4.bp.blogspot.com/-6IhU5g2tNP8/Uf6mX_UQPOI/AAAAAAAAAZI/50trvBJuW0c/s1600/Untitled.pnghttp://www.desikanoon.co.in/2013/08/lily-thomas-v-union-of-india-case-on.html


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Based upon a reading of the above mentioned provisions and various case laws, theCourt finally held that the Parliament has been vested with the powers to make lawlaying down the same disqualifications for person to be chosen as a MP or MLAand for a sitting MP or a MLA.

The Court also said that t he Parliament must make one law laying down the

same disqualifications for a person who is to be chosen as a MP or a MLAand for a person who is a MP or a MLA and the words in Articles 101(3)(a) and190(3)(a) of the Constitution put express limitations on such powers of the Parliamentto defer the date on which the disqualifications would have effect.

It was objected by the respondents that there might be frivolous convictions by thetrial court in some cases against a MP/MLA and that sitting MLAs/MPs will beremediless and will suffer immense hardship as he would stand disqualified on accountof such conviction in the absence of subsection (4) of Section 8 of the Act. The courtresponded 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 suchspecial 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 verysound 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 isonly implicit.

Just because an amendment to article 83 failed in the constituent assembly does notmean that such an amendment cannot be enacted as a law by the parliament in thetimes to come. This failure of amendment in the Constituent Assembly does notabridge the power of the parliament to enact such a law. If that were the logic, thewhole concept of bringing amendments to the constitution would get forfeited. Therewere many things which were rejected or which were not discussed in the ConstituentAssembly. 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. Anexistence of a judicial remedy does not take away the right of the parliament to enactlaws within the framework of the constitution.

Invoking article 14 in this case makes little sense. The persons who are elected andwho are to be elected, do not stand on the same footing. The persons who are electedare burdened with the great responsibility of representing the interest of the people inthe legislature. Whereas, the persons to be elected are contesting to become suchrepresentatives. The elected persons are burdened with a lot of responsibility and aspecial provision is needed to safeguard their position and make sure that they are notdisqualified for the wrong reasons. If they are removed instantaneously, they would be
http://www.indiankanoon.org/doc/63158859/


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deprived of any remedy even though their conviction is set aside by the higher court.

I personally feel that th is case was not well-argued, well-represented and well prepared by theRespondents. The Union of India could have hired advocates of better caliber for representingthem in this case. The arguments from the Respondent's s ide seemed to be du ll and without anytraction. The Court could not have done much as the respondents did counter even a singleargument 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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