Thursday, July 11, 2013

LILY THOMAS VS. UNION OF INDIA & ORS.



In above noted matter being Writ Petition (Civil) No. 490 of 2005, hon’ble bench of Supreme Court of India comprising of Mr. A. K. Patnaik J. and Mr. Sudhanshu Jyoti Mukhopadhaya J. has allowed the petition by order/ judgement dated 10th July, 2013 to declare sub-section (4) of section 8 of the Representation of People Act, 1951 as utra vires the Constitution and hence membership of Parliament or the State Legislature, as the case may be, will not be saved by said sub-section and the same will terminate immediately after conviction as mentioned in sub-section (1), (2) and (3) of section 8.

While argument on the issue on behalf of petitioner, attention of court was drawn to the debates of the Constituent Assembly on Article 83 of the Draft Constitution, which corresponds to Article 102 of the Constitution of India. In these debates, Mr. Shibban Lal Saksena, a member of the Constituent Assembly moved an Amendment No. 1590 on 19.05.1949 to provide that when a person who, by virtue of conviction becomes disqualified and is on the date of disqualification a member of Parliament, his seat shall, notwithstanding anything in this Article, not become vacant by reason of the disqualification until three months have elapsed from the date thereof or, if within those three months an appeal or petition for revision is brought in respect of the conviction or the sentence, until that appeal or petition is disposed of, but during any period during which his membership is preserved by this provision, he shall not sit or vote. But this amendment to Article 83 of the Draft Constitution was not adopted in the Constituent Assembly. Despite this fact similar provision was enacted through sub-section (4) of Section 8 of the Representation of People Act, 1951.

Hon’ble Supreme Court further observed that a disqualification of a person not to be chosen as a member of Parliament or of State Legislature remains same for his continuance as a member of Parliament or of the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same.

Accordingly, Supreme Court has held in its judgement that sub-section (4) of Section 8 of the said Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act by deferring the date on which the disqualification will take effect, is beyond the powers conferred on Parliament by the Constitution and hence the same was declared ultra vires the Constitution.

In consequence there will not be blanket suspension of disqualification of membership of Parliament or of State Legislature after pronouncement of order of conviction by trial court and said membership would terminate immediately forthwith. 

Author’s View:

However, In case a sitting member of Parliament or State Legislature feels aggrieved by the conviction and wants to continue as a member notwithstanding the conviction, his remedy is to move the Appellate Court for stay of the order of conviction. This view is supported by Navjot Singh Sidhu v. State of Punjab and Another[(2007) 2 SCC 574] in which Supreme Court has clarified that under sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on the Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction. Hence, in appropriate cases, the Appellate Court may stay the order of conviction of a sitting member of Parliament or State Legislature and allow him to continue as a member notwithstanding the conviction by the trial court.