INTRODUCTION:
Lily Thomas was an Indian lawyer who filed petitions in the Supreme Court and to his subordinate courts to amend and upgrade current laws. Her filed petitions have provided many landmark judgments in all fields including family laws, and provisions that are ultra-virus in respect to the Indian constitution. In the supreme court, two petitions were filled one by Advocate Lily Thomas and then another by General Secretary S.N Shukla. Through this petition, the question raised was on the disqualification of MPs and MLAs.
FACTS OF THE CASE:
A petition was filed under Article 32 of the Indian constitution as a public interest litigation in which they challenged that Sub-section 4 of Section 8, of the Representation of People Act, 1951 is the ultra-virus to the constitutional provisions. The main objective of the petition was to prohibit the entry of a convicted person into the legislative houses and limit criminalization in politics.
Clause 1 of Article 102 and Clause 1 of Article 191 of the Constitution of India provide the disqualifications for a membership of the Parliament and a membership of the Legislative Assembly and has also vested power to the central government to amend the rule regarding the disqualification of the members as he seems fit.
Sub-section 4 of Section 89 of the act, states that if a sitting member of the houses has been convicted for an offense that is punishable by more than two years of imprisonment then such a convicted person goes for an appeal within three months of the conviction then he shall not be disqualified from the holding the membership of the house.
ISSUES OF THE CASE:
*Whether the Parliament was competent to enact Sub-section 4 of Section 8 of the act?
* Whether Sub-section 4 of Section 8 of the act, was an ultra-virus to the constitution of India, and if it had contradicted the objective of the framers of the constitution?
*Whether the convicted person has any remedy provided if the appellate court has acquitted that person?
CONTENTIONS OF THE PETITIONER:
Senior Advocate Fali. S. Nariman argued that clause (1) of Articles 191 & 102 of the Indian Constitution states the disqualifications of membership which include an individual being chosen as a member of Parliament and a member of the State Assembly. It has also vested parliament to enact any law regarding the disqualification of both houses and also states that both the sitting member and the chosen member shall be treated equally but the Sub-section 4 of Section 8, of the Representation of People Act, has contradicted these provisions.
To support their arguments, the petitioners cited a Supreme Court case of the Constitutional bench that is, Election Commission of India v Saka Venkat Rao AIR1952 210 SC 1, where the Court had stated that the disqualifications shall be the same for both standing in an election and continuing as a member.
CONTENTIONS OF THE RESPONDENT: –
Assistant Solicitor General (ASG) Mr. Siddharth Luthra represented the state and argued that the validity of Sub-Section 4 of Section 8, has already been upheld by the constitutional bench of the Supreme Court in the case of K. Prabhakaran v. P. Jayarajan AIR 2005 SC. He also argued that the parliament had not legislated this section from articles 102(1)(e) and 191(1)(e) but from article 246[12] read with entry 97 of list 1 of schedule 7 of the Constitution.
JUDGEMENT:
The Bench of Justice A.K Patnaik and Justice S.J Mukhopadhyay of the supreme court, on 10 July 2013, held that the contention of the petitioners on the grounds for disqualification of standing as a candidate and continuing as a member are the same and that’s why the Parliament has exceeded its powers by legislating sub-section (4) of Section 8 of the Act, and also stated that it is indeed ultra virus to the constitutional provisions.
The Court further observed that the sitting members who have already benefitted from Sub-section 4 of Section 8, would not be affected by this judgment. However, if any sitting member of Parliament or state legislature is convicted under sub-sections 1, 2, and 3 of Section 8, he/she shall stand disqualified in regard to this judgment.
CONCLUSION:
This judgment was the first initiative to cleanse Criminalization from politics. Criminalization in politics leads to exploitation of the power and money which leads to corruption and several other factors which affects society and the country. With the help of this judgment, the court has provided a light of hope to limit criminalization in politics and also has exceeded the faith in the judiciary. But limiting the criminalization fully is impossible without strong legislation on this matter.
Written by: Rishu Anand, Law College Dehradun, 8th Semester.
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