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| Lily Thomas v. Union of India: A Case on Criminalization of Politics |
Recently, the Apex Court of this
country gave a very important verdict relating to our election laws. For a layman,
this judgment would basically keep the criminals out of our Parliament and the
State Legislatures. This case was concerned with the constitutional validity of
Section 8 (4) of the Representation of the People Act, 1951. The Court declared
the said provision as ultra vires the Constitution of India. However, the
sitting MLAs and MPs would not be affected by this decision as it would be against the principles of
natural justice to permit the subjects of a State to be punished or penalized
by laws of which they had no knowledge and of which they could not even with
exercise of due diligence have acquired any knowledge[1].
The disqualifications
for persons being chosen as, and for being, a member of either House of Parliament
as well as a member of the Legislative Assembly or Legislative Council of the
State are given in Article 102 (1) and Article 191 (1) respectively. Also, Section
8 (4) of the RP Act says that a
disqualification shall not, in the case of a person who on the date of the conviction
is a MP ot MLA, 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.
However,
Article 102 (1) and Article 191 (1) say that a person shall be disqualified for being chosen as, and for being, a
member of either House of Parliament or the State Legislature if he is so
disqualified by or under any law made by Parliament.
Now,
let us look into Article 101 (3) (a) and Article 190 (3) (a). These articles
say that if a MP or MLA becomes subject to any of the disqualifications
mentioned in Article 102 (1) or Article 102 (2) or Article 191 (1) or Article
191 (2), his seat shall thereupon become
vacant.
Based
upon a reading of the above mentioned provisions and various case laws, the
Court finally held that the Parliament has been vested with the powers to make law
laying down the same disqualifications
for person to be chosen as a MP or MLA and
for a sitting MP or a MLA.
The
Court also said that the Parliament must make one law laying down the same
disqualifications for a person who is to be chosen as a MP or a MLA and for a
person who is a MP or a MLA and the words in Articles 101(3)(a) and 190(3)(a)
of the Constitution put express limitations on such powers of the Parliament to
defer the date on which the disqualifications would have effect.
It
was objected by the respondents that there might be frivolous convictions by
the trial court in some cases against a MP/MLA and that sitting MLAs/MPs will
be remediless and will suffer immense hardship as he would stand disqualified
on account of such conviction in the absence of subsection (4) of Section 8 of
the Act. The court responded by saying that there are various remedies (Order
for Stay of Conviction) available in the Code of Criminal Procedure (Section
482 or Section 389) for such special cases.
There
were various other grounds raised well. You can find the whole judgment here.
Overall, this seems to be a very sound judgment. However, I have my own
reservations. Some of them are mentioned below.
1.
Constitution
has not explicitly said that disqualifications pre-election and post-election
cannot be different. The meaning derived from various articles of the
Constitution is only implicit.
2.
Just
because an amendment to article 83 failed in the constituent assembly does not
mean that such an amendment cannot be enacted as a law by the parliament in the
times to come. This failure of amendment in the Constituent Assembly does not
abridge the power of the parliament to enact such a law. If that were the
logic, the whole concept of bringing amendments to the constitution would get
forfeited. There were many things which were rejected or which were not
discussed in the Constituent Assembly. But later on, such things became law
either by way of constitutional amendments, separate enactment of statutes in
that regard or judicial pronouncements.
3.
Constitution
merely provides a broad framework. Article 102 (1) (e) gives ample power to the
parliament to makes laws in this regard.
4.
I
agree that the aggrieved person has to option to move the court and obtain a
stay order. But, there is nothing stopping the parliament to make a law in this
regard. An existence of a judicial remedy does not take away the right of the
parliament to enact laws within the framework of the constitution.
5.
Invoking
article 14 in this case makes little sense. The persons who are elected and who
are to be elected, do not stand on the same footing. The persons who are elected
are burdened with the great responsibility of representing the interest of the
people in the legislature. Whereas, the persons to be elected are contesting to
become such representatives. The elected persons are burdened with a lot of
responsibility and a special provision is needed to safeguard their position
and make sure that they are not disqualified for the wrong reasons. If they are removed
instantaneously, they would be deprived of any remedy even though their
conviction is set aside by the higher court.
I personally feel that this case was not well-argued, well-represented and well prepared by the Respondents.
The Union of India could have hired advocates of better caliber for representing them
in this case. The arguments from the Respondent's side seemed to be dull and without
any traction. The Court could not have done much as the respondents did counter
even a single argument presented by the petitioners.
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