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
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.
- The first issue to be deliberated in the case was that- Whether the
Parliament was competent to enact Sec 8(4) of the act?
- 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?
Resistance from Government
- 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.
- 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
- 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
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.