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Lily Thomas vs Union of India | Section 8 Representation of Peoples Act 1951 – Judiciary – Free PDF Download

Lily Thomas vs Union Of India, 2013

Background

  • Criminalization of Politics-
  • Of the 539 winning Loksabha MPs, as many as 233 MPs or 43% have criminal charges against them- Association of Democratic Reforms.
  • There is an increase of 109% in 2019 in the number of MPs with declared serious criminal cases since 2009,”

Previous judgements wrt Decriminalizing of Politics-

  • Association for Democratic Reforms (ADR) v. Union of India in 2002-  mandated the disclosure of information relating to criminal antecedents, educational qualification, and personal assets of a candidate contesting elections.
  • Public Interest Foundation and Ors. v Union of India 2014-The Supreme Court directed that trials of sitting MPs and MLAs be completed within a year of charges being filed against them in.
  • Rambabu Singh Thakur v Sunil Arora 2020- all candidates, both state and federal, to make their criminal records public if they wish to run for office
  1. Disqualifications for membership.—

  • (1) A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament—
  • (a) if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
  • (b) if he is of unsound mind and stands so declared by a competent court;
  • (c) if he is an undischarged insolvent;
  • (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
  • (e) if he is so disqualified by or under any law made by Parliament

191 Disqualifications for membership.—

  • (1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State—
  • (a) if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
  • (b) if he is of unsound mind and stands so declared by a competent court;
  • (c) if he is an undischarged insolvent;
  • (d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
  • (e) if he is so disqualified by or under any law made by Parliament

RPA, 1951, S.8- Disqualification on conviction for certain offences-

  • 8(1)-A person convicted of an offence punishable under—(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc.,  171E (offence of bribery) or section 171F (offence of undue influence or personation at an election), section 498A (offence of cruelty towards a woman by husband or relative of a husband
  • (b) the Protection of Civil Rights Act, 1955 – Untouchability
  • (e) the Foreign Exchange (Regulation) Act, 1973; or
  • (f) the Narcotic Drugs and Psychotropic Substances Act, ……
  • 8(2) A person convicted for the contravention of—
  • (a) any law providing for the prevention of hoarding or profiteering
  • (c) any provisions of the Dowry Prohibition Act
  • (3) A person convicted of any offence and sentenced to imprisonment for not less than two years other than any offence referred to in sub-section (1) or sub-section (2) shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release
  • 8(4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, 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.
  • S. 8(4) inherently defeated the purpose of S.8 (1),(2),(3).
  • Hence its validity was challenged in the court of law.
  • Petitioner referred to the debates of the Constituent Assembly where in a member of the Constituent Assembly moved an Amendment on 19.05.1949 to provide that when a person who, by virtue of conviction becomes disqualified and is on the date of disqualification a member of Parliament, his seat shall, not become vacant by reason of the disqualification until three months have elapsed or, if within those three months an appeal or petition for revision is brought, until that appeal or petition is disposed of.
  • submitted that despite the fact that a provision similar to sub-section (4) of Section 8 of the Act was not incorporated in the Constitution by the Constituent Assembly, Parliament has enacted sub-section (4) of Section 8 of the Act.
  • learned ASG appearing for the Union of India, submitted that the validity of sub-section (4) of Section 8 of the Act has been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc.
  • sub-section (4) of Section 8 of the Act is not to confer an advantage on sitting members of Parliament or of a State Legislature but to protect the House

Major Question in this case was-

  • Whether the Parliament was empowered to make such law/ provision as given in S.8(4) of RPA 1951.

SC Held-

  • Articles 102(1)(e) and 191(1)(e) of the Constitution have conferred specific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislature of the State other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitution.
  •  we are of the considered opinion that this legislative power of Parliament can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution.

Also Held that –

  • Parliament does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature.
  • This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature  has to be the same.

SC also referred to

  • Article 101(3)(a) -which provides that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1) or (2) 0f Art.102, his seat shall thereupon become vacant and
  • Article 190(3)(a) -which similarly provides that if a member of a House of the Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1)or (2) or Art 191, his seat shall thereupon become vacant.
  •  once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution.

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