Case Analysis:

Lily Thomas v. Union of India 2013 7 SCC 653

Submitted by

Huzaifa Hasan

Division: ‘A’

Roll No. 21010224022

Class. BBA.LLB 2021-26

Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

September 2022

Under the guidance of

Dr Sakshi Parashar

Course-In-Charge

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 INDEX

S. No. Particulars P. No.

1 Introduction 3

2 Facts of the Case 4

3 Rule of Law 4
4 Questions of Law/Issues 4

5 Analysis of the Case/Application of Rules 5-6

6 Conclusion 7

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Introduction
Parliament does not have unrestricted power to change the constitution, and this was ruled in the famous
case pertaining to basic rights i.e., Kesavananda Bharti v. State of Kerala.1 Legislators are not permitted to
arbitrary change the constitution's fundamental provisions or enact laws which prohibits cardinal basic rights
of populace.2 It is implied by this that the constitution can be amended, but only if the fundamental
principles are not affected. If the constitution may be amended, it is solely for the reason that the constitution
has granted parliament the authority to do so.

Similar questions are being put before the court in the current case that will be analysed, wherein concerns
have been raised over the scope of the parliament's legal authority and suggestions that it is not possible for
it to pass legislation that would jeopardise India's democracy unilaterally or in absence of necessary or
adequate rationale.

The relationship between crime and politics is inextricably intertwined in India, and some criminals have
occasionally publicly been the representative of Indian people. In order to invalidate and prevent criminals
from continuing in politics and serving as people's representatives, the parliament of India, the commission
of election, & Apex Court have established a number of prohibitions and laws. The ROPA’s (Representation
of People Act, 1951) provision in this lawsuit was intended to be declared unconstitutional which states that
people who have been convicted can appeal, which will cause their conviction to be stayed.

1
Kesavananda Bharti Sripadagalvaru v. State of Kerala, MANU/SC/0445/1973
2
Introduction to Indian Constitution, SOCIAL LAWS TODAY, (Sep. 27, 2022, 9:29 PM), https://bit.ly/3Cu9rB9
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Facts of The Case

This case involves the Members of Parliament, Legislature with regards to cease of their office-term.

 Lily Thomas, the appellant, submitted an appeal to the SC as a PIL in accordance with Article 32. 3 In
his argument, he contended that § 8(4) of RPA, 1951 is not constitutional citing its inconsistency
with the constitution of India. The petition was approved and assigned the number Writ Petition
(CIVIL) No. 490 of 2005.
 Union of India that is the defendant in this case, and it backed the assertion that the Parliament
passed a provision in accordance with the Constitution's implied provisions, and that Articles 102 and
191 of the Constitution itself grant them rights to establish certain further rules for the
disqualification of lawmakers who are representatives in parliament, council, or legislative assembly.
 The petitioner was of the opinion that the provision under § 8(4) of RPA was inconsistent with the
Articles 102 and 192 and opposed the argument of the respondent. Further it was contended that such
a provision on the first part can’t go against the constitution, and second it can’t lay down a special
procedure for the disqualification of the sitting members of parliament other than what is enshrined
in the constitution. And if it can, it shouldn’t treat the disqualification of sitting members and the
members elected to be unequally.

Relevant Rule(s) of Law

 § (4) of Representation of People Act, 1951

 § 8(1), 8(2), 8(3) of Representation of People Act, 1951
 Art.102(1)(e) of Indian Constitution
 Art. 191(1)(e) of Indian Constitution
 Art. 246, 248 Indian Constitution

Issues/ Questions of Law

A thorough examination of the case reveals that the court of justice was confronted with three key legal
issues. They are jotted down below:

1) Was the authority that Parliament employed to enact Representation of People's Act § 8(4)
competent, acceptable, or compatible with constitutional provisions?
2) Whether there is is equal application of RPA 1951’s § 8(4) to those already elected and the
contenders?
3) Whether the individual who was convicted and the appellate court rules in their favour, what
options/remedy do they have?
3
Lily Thomas MLA Disqualification Case, BYJU’s, (Oct. 01, 2022, 11:30 AM), https://bit.ly/3ydDVEZ
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Analysis of The Case

 According to the constitutional requirements in “Art. 102(1)(e) and 191(1)(e)”, Fali Nariman, who
presented the petitioner's case, stated that implementation of § 8(4) by the Parliament is not
constitutionally permitted. Despite both of these articles grant the parliament the authority to enact
new legislation regulating the exclusion of members of the legislature and parliament, nonetheless, a
casual look on these texts indicates that elected member and the chosen member should be regarded
equally and implies that equivalent legislation should be passed by the parliament in respect to
disqualification of both. Contrarily, only sitting members are covered in § 8(4) of RPA 1951, which
contradicts the interpretation of articles aforementioned.
 § 8(1), 8(2), 8(3) of the Act lays down certain offences, and any member charged with any of those
shall be disqualified and such disqualification shall commence from the day he was convicted, and it
was to remain in effect for the duration specified in the sub-section.
 However, section 8(4) permitted the sentenced MPs, MLAs, and MLCs to entail their positions, if an
appeal is filed by them in the higher court challenging their sentence inside of 3 months post trial
court’s decision.4
 As far as the first issue is concerned, no, the authority that the parliament exercised did not comply
with the Indian Constitution because here in Section 8(4) parliament overstepped its bounds by
passing a separate statute providing protection for just current members, which is outrightly in
contravention to Article 102 and 191. The argument by respondent that parliament exercises
legislative competence from Article 246, the court goes onto favouring the petitioner that Arts. 246
and 248 provides for the enactment of legislation by parliament as well as the state legislature, but
disqualification remains in the domain of parliament. The contention of respondent was not accepted,
and Section 8(4) was declared ultra vires to the constitution. In the simplest way, here the respondent
was attempting to prove that parliament had the constitutional authority to pass 8(4), alternatively in
Art. 246 if not of “Art.102(1)(e) and 191(1)(e)”.
 Regarding the second issue, which questions Section 8(4) being equally applicable to both elected
and sitting members, the answer is in Negative. In the case of “Election Commission India v. Saka
Venkata Rao5,” court held “similar arrangement of disqualification for election and continuation”.
Also, the introductory words of “Art.102(1)(e) and 191(1)(e)” “for being chosen as, and for being, a
member of either House of Parliament”, makes viable that laws must be made by Parliament to
disqualify both aspirants and continuing members. Section 8(4) explicitly provides protection from
disqualification to only those who are currently serving in the state legislature and the parliamentary
body. It is clearly in contravention to the constitutional provisions in aforementioned articles.

4
Section 8(4) of RP Act already upheld by Constitution Bench, THE HINDU, (Oct. 04, 2022), https://bit.ly/3RsGeeg
5
Election Commission India v. Saka Venkata Rao MANU / SC / 0060 / 1953
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  Issue third which deals with the recourse of a member who was granted acquittal by the appellate
court. The answer is in affirmative. As it was argued by the respondent that a little conviction by the
court of trial and then acquittal by the appellate court followed by the instant disqualification will
pose on the member negative ramifications and hues. Hence, the court answered saying that the
conviction can be stayed citing Rama Narang v. Ramesh Narang & Anr6, wherein it was decided
that a conviction can be stayed by the appellate court u/s 389(1) of CrPC or High Court u/s 482 of the
same code.
Further the court mentioned Ravikant S. Patil v. Sarvabhouma S. Bagali 7, wherein the conviction
was stayed which in turn made the disqualification impotent that was caused by the Section 8(3) of
RPA, 1951. Hence, it can be said that a court, if it finds reasonably appropriate along with necessary
rationale can stay a conviction rendered by the trial court under its jurisdiction.

6
Rama Narang v. Ramesh Narang & Anr MANU / SC / 0623 / 1995
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Ravikant S. Patil v. Sarvabhouma S. Bagali MANU/SC/8600/2006
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Conclusion

The two-judge bench on July 10, 2013 ruled that any member of the parliament, legislative assembly or
council found guilty of a criminal offence and sentenced to at least two years in jail forfeits their
membership in the House immediately. This is different from the previous situation, in which guilty
members continued to serve until every legal option had been exhausted till the appellate court. Additionally,
Section 8(4) of RPA 1951 which gave elected officials three months to challenge their conviction was also
ruled unconstitutional.

A giant impact Indian Democracy faced after the decision of this case. Without a doubt, this choice
represents a turning moment in the campaign to eradicate its criminalization effects, but unfortunately
criminalization is still prevalent in the political system. Although, the politicians are now afraid of the law,
and this judgment has surged the confidence of populace in the judiciary. The aim of the democracy is
somehow attained when it is efficient and free of criminal politics. The Indian court has demonstrated with
conviction and by ordering the resignation of certain notable leaders that, even in the face of political
pressure, the Indian Constitution would always be preserved.

With an effort to reverse this ruling, “The Representation of the People (Second Amendment and Validation)
Bill, 2013”, was tabled in the Rajya Sabha, that representatives shall not instantly be removed from office
after being found guilty. The law was also attempted to be implemented as an ordinance by the government,
though it was taken back just after five days as it was completely nonsensical and opposed by the people of
India. This demonstrated how terrified of the Supreme Court's ruling the crooks infiltrating political parties
had become.

This judgement sets the landmark that the parliament cannot unfairly or arbitrarily amend the constitution or
give itself powers which would affect the basic essence of the constitution. Most recently, it was mandated
by the Supreme Court for the contenders to demonstrate their criminal history/record in order to contest in an
election, in the case of Rambabu Singh Thakur v Sunil Arora & others.8 While SC has shown a sincere
move towards the decriminalisation of politics, the Election Commission of India should make strict moves
along with legislature which should make relevant laws for the same motive so that the purpose of
democracy is ultimately attained.

8
Rambabu Singh Thakur v. Sunil Arora and Ors. MANU/SC/0172/2020
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