Context: The article discusses the significant legal implications of the ‘Lily Thomas v Union of India’ case in relation to the disqualification of convicted lawmakers in India. In the past, Section 8(4) of the Representation of People Act (RPA) allowed a three-month window before the disqualification of convicted legislators came into effect, during which they could appeal their convictions. However, this provision was deemed unconstitutional by the Supreme Court in 2013, leading to a critical change in the way disqualifications are implemented. The case, brought forward by lawyer Lily Thomas and an NGO, aimed to cleanse Indian politics by preventing convicted politicians from participating in elections or holding office. The subsequent court ruling raised complex questions about the timing of disqualification, the role of the President of India, and the impact on lawmakers’ careers. This article delves into the details of the case, its implications, and the ongoing debate surrounding the disqualification of convicted legislators.
Section 8(4) of the RPA said that the disqualification takes effect only “after three months have elapsed” from the date of conviction. Within that period, the convicted lawmaker could have filed an appeal against the sentence before a higher court.
However, this provision was struck down as “unconstitutional” in the Supreme Court’s landmark 2013 ruling in ‘Lily Thomas v Union of India’.
What is Lily Thomas case?
- In 2005, a PIL was filed before the Apex Court by a Kerala-based lawyer Lily Thomas and NGO Lok Prahari, through its General Secretary SN Shukla, challenging Section 8(4) of the RPA as “ultra vires” to the Constitution, which protects convicted legislators from disqualification on account of their appeals pending before the higher courts.
- This plea sought to clean Indian politics of criminal elements by barring convicted politicians from contesting elections or holding an official seat. It drew attention to Articles 102(1) and 191(1) of the Constitution. Article 102(1) lays down the disqualifications for membership to either House of Parliament and Article 191(1) lays down the disqualifications for membership to the Legislative Assembly or Legislative Council of the state. The plea argued that these provisions empower the Centre to add more disqualifications.
- Before this judgment, convicted MPs could easily file an appeal against their conviction and continue holding their official seats.
What did the SC decide?
- On July 10, 2013, a bench of Justices AK Patnaik and SJ Mukhopadhaya of the Apex Court held that “Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.”
- The Court also held that if any sitting member of Parliament or State Legislature is convicted of any offence under sub-section (1), (2), and (3) of Section 8, RPA, then “by virtue of such conviction and/or sentence” they will be disqualified. The court added that a convicted parliamentarian or legislator’s membership will no longer be protected by Section 8 (4), as was previously the case.
The Court on an examination of other provisions in the Constitution that deal with disqualification of a lawmaker held that the Constitution “expressly prohibits” Parliament to defer the date from which a disqualification would come into effect.
Before this ruling, the law didn’t result in an instant disqualification of sitting legislators. However, following the striking down of Section 8(4), some experts believed that a legislator would now be disqualified as soon as a court pronounced a conviction and sentence under Section 8(3) of the Representation of People Act. The Supreme Court stated that Article 102(1) treated sitting members and candidates the same in terms of disqualification, denying Parliament the authority to exempt sitting members for three months. Consequently, the Court declared Section 8(4) unconstitutional.
This change meant that only Section 8(3) remained in the Act for disqualifying those convicted and sentenced to two or more years in prison. This section specified that a person convicted and sentenced to at least two years in prison would be disqualified starting from the conviction date, without explicitly stating that the disqualification occurs immediately upon conviction.
This led to questions about the legal basis of Rahul Gandhi’s instant disqualification, as the language implied an official declaration of disqualification was necessary.
The author’s viewpoint suggested that the President of India, under Article 103, could have the authority to declare a sitting legislator disqualified. This perspective differed from the Supreme Court’s stance in the Lily Thomas case. Another case, Consumer Education & Research … vs Union Of India & Ors (2009), argued that a declaration by the President under Article 103 was essential for confirming disqualification.
Under Section 8(3), it seemed that a sitting member convicted and sentenced to two or more years’ imprisonment would be disqualified from the conviction date. This disqualification would be executed by the President.
The legislative house’s Secretariat lacked the authority to declare immediate disqualification upon a court’s conviction.
A legal question arose regarding whether a stay of sentence alone could lift disqualification or if a stay of conviction was required.
Different High Courts had varied opinions on this matter. In Rahul Gandhi’s case, the Supreme Court stayed the conviction but didn’t address whether a stay of conviction was also necessary or if disqualification could be suspended.
The severity of disqualification hinged on the imprisonment length (two or more years), rather than just the conviction. The recent order in Rahul Gandhi’s case emphasized this point. Disqualification wasn’t directly related to conviction but to the sentence’s duration.
The Lily Thomas judgment’s impact on politicians’ criminal behavior wasn’t significantly evident. Politicians in power might secure rapid stays of conviction, saving themselves from immediate disqualification, unlike others who might have to wait and seek intervention from higher courts. It’s suggested that Section 8(4) should be reinstated constitutionally to protect legislators’ careers from sudden disruptions due to court orders lacking careful consideration.
