Lily Thomas Vs Union of India

Introduction 

It is the settled position of law that any act of any person, any legislation or its any provision, policy and decision taken by state shall not be contrary to Constitution and its basic structure. When this is contrary to it then that would be ultra-virus and shall be struck down. It is the presumption that anything which is ultra-virus of the Constitution is not beneficial for our country, society and whatever is not beneficial for country, society that shall not be allowed to be initiated at any time, allowed to be continue for any moment. The state shall always allow every act which shall be within the four corners of Constitution that may or may not fulfil the personal benefit or interests.

The present provision of amendment made in Representative of People Act that is regarding the conviction declared by court and its effects on the Member of Parliament / Legislative Assembly or Council is discussed in the light of Constitution and ultimately declared ultra-virus of Constitution by Supreme Court in Public Interest Litigation. This concept is based on social morality.

Relevant legislations, Legal Provisions and precedents relied on

·      Relevant Legislations and Provisions

1.      The Constitution of India

2.      The Representation of People Act

3.      The Code of Criminal Procedure

4.      The Constitutional Law of India by H.M. Seervai, Fourth Edition

5.      Commentary on the Constitution of India by Durga Das Basu (8th Edition)

·      Precedents relied on

1.   Election Commission, India v. Saka Venkata Rao, AIR 1953 SC 210

2.   Shri Manni Lal v. Shri Parmal Lal and others, (1970) 2 SCC 462: AIR 1971 SC 330

3.   B.R. Kapur v. State of T.N. and another, (2001) 7 SCC 231: AIR 2001 SC 3435 : 2001 AIR SCW 3720

4.   K. Prabhakaran v. P. Jayarajan etc., (2005) 1 SCC 754 : AIR 2005 SC 688 : 2005 AIR SCW 393

5.   Navjot Singh Sidhu v. State of Punjab and another, (2007) 2 SCC 574 : AIR 2007 SC 1003 : 2007 AIR SCW 787

6.   Empress v. Burah and another, (1878) 5 I.A. 178

7.   Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461

8.   Rama Narang v. Ramesh Narang and Ors., (1995) 2 SCC 513

9.   Ravikant S. Patil v. Sarvabhouma S. Bagali,(2007)1 SCC 673:2006 AIR SCW 6365

10.    Harla v. State of Rajasthan AIR 1951 SC 467

11.    Golak Nath and Others vs. State of Punjab and Another, AIR 1967 SC 1643

Brief Facts of case, Submissions of parties and discussion thereon by court

·      Brief Facts

1.      The background facts relevant for appreciating the challenge to sub-section (4) of Section 8 of the Representation of People Act are that the Constituent Assembly while drafting the Constitution intended to lay down some 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. Accordingly, in Constitution which was finally adopted by Constituent Assembly, Article 102(1) laid down the disqualifications for membership of either House of Parliament and Article 191(1) laid down the disqualifications for membership of the Legislative Assembly or Council of the State. A reading of these provisions will show that besides the disqualifications laid down in clauses (a), (b), (c) and (d), Parliament could lay down by law other disqualifications for membership of either House of Parliament or of Legislative Assembly or Council of the State. In exercise of this power conferred under Article 102(1)(e) and under Article 191(1)(e) of Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951, the disqualifications for membership of Parliament and State Legislatures.

2.      Clause (b) of Section 7 of the Act defines word "disqualified" to mean disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or of Legislative Council of State. Sub-sections (1), (2) and (3) of Section 8 of the Act provide that a person convicted of an offence mentioned in any of these sub-sections shall stand disqualified from the date of conviction and disqualification was to continue for the specific period mentioned in the sub-section. However, sub-section (4) of Section 8 of the Act provides that notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) in Section 8 of the Act, a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, 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. It is this saving or protection provided in sub-section (4) of Section 8 of the Act for a Member of Parliament or the Legislature of a State which is challenged in these writ petitions as ultra vires the Constitution.

Submissions on behalf of the Petitioners 

1.   The same disqualifications are provided in Art. 102 and 191 of the Constitution for member of either House of Parliament, or State Assembly or Legislative Council of the State therefore a person to continue as a member of either House of Parliament or of Legislative Assembly or Legislative Council of the State cannot be different.

2.   Sub-section (4) of Section 8 of Act, insofar as it provides that disqualification under sub-sections (1), (2) and (3) of Section 8 for being elected shall not take effect in case of a person who is already a member of Parliament or Legislature of State on the date of conviction if he files an appeal / revision in respect of the conviction or sentence within three months till the appeal / revision is disposed of by Court, is in contravention of the provisions of clause (1) of Art. 102 and 191 of the Constitution.

3.   The debates of Constituent Assembly on Art. 83 of the Draft Constitution, which corresponds to Article 102 of the Constitution. 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 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. This amendment to Art. 83 of the Draft Constitution was not adopted in the Constituent Assembly. Instead, in sub-clause (e) of clause (1) of Articles 102 and 191 of the Constitution, it was provided that Parliament may make a law providing disqualifications besides those mentioned in sub-clauses (a), (b), (c) and (d) for a person being chosen as, and for being, a member of either House of Parliament and of the Legislative Assembly or Council of a State. Despite the fact that a provision similar to sub-section (4) of Section 8 of the Act was not incorporated in the Constitution by the Constituent Assembly, Parliament has enacted sub-section (4) of Section 8 of the Act.

4.   In the absence of a provision in Art. 102 and 191 of Constitution conferring power on Parliament to make a provision protecting sitting members of either House of Parliament/Legislative Assembly/Council of State, from disqualifications it lays down for a person being chosen lacks legislative powers to enact sub-section (4) of Section 8 of the Act and it is therefore ultra vires the Constitution.

5.   Legal basis of sub-section (4) of Section 8 of the Act is based on an earlier judicial view in Shri Manni Lal v. Shri Parmal Lal that when a conviction is set aside by an appellate order of acquittal, it takes effect retrospectively, conviction and sentence are deemed to be set aside from the date they are recorded. In B.R. Kapur v. State of T.N., Constitution Bench reversed aforesaid judicial view and held that conviction, and sentence it carries, operate against the accused in all their rigour until set aside in appeal, and disqualification that attaches to the conviction and sentence applies as well. This later view has been reiterated in K. Prabhakaran v. P. Jayarajan etc.

6.   Thus as soon as a person is convicted of any of offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified from continuing as a member of Parliament or of a State Legislature notwithstanding the fact that he has filed an appeal or a revision against the conviction and there is no legal basis for providing in sub-section (4) of Section 8 of the Act that his disqualification will not take effect if he files an appeal or revision within three months against the order of conviction. In case sitting member feels aggrieved by the conviction and wants to continue as member notwithstanding conviction, his remedy is to move Appellate Court for stay of order of conviction. In Navjot Singh Sidhu v. State of Punjab, it has clarified that under sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of order appealed against, which means the order of conviction. In appropriate cases, Appellate Court may stay the order of conviction of a sitting member and allow him to continue as member notwithstanding the conviction by trial court, but a blanket provision like sub-section (4) of Section 8 of the Act cannot be made to keep the disqualification pursuant to conviction in abeyance till the appeal or revision is decided by the Appellate or Revisional Court.

7.   In K. Prabhakaran v. P. Jayarajan etc. validity of sub-section (4) of Section 8 of the Act was not under challenge and only a reference was made to Constitution Bench of Supreme Court on certain questions which arose in civil appeals against judgments delivered by High Court in election cases under the Act. The Supreme Court framed three questions with regard to disqualification of a candidate under Section 8 of the Act and while answering question No. 3, the Constitution Bench indicated reasons which seem to have persuaded Parliament to classify sitting members of House into a separate category and to provide in sub-section (4) of Section 8 of the Act that if such sitting members file appeal or revision against the conviction within three months, then disqualification on account of their conviction will not take effect until the appeal or revision is decided by the appropriate court. The opinion expressed by Constitution Bench in K. Prabhakaran v. P. Jayarajan etc. are obiter dicta and are not binding ratio on the issue of the validity of sub-section (4) of Section 8 of the Act.

8.   In so far as it does not provide a rationale for making an exception in the case of members of Parliament or a Legislature of a State is arbitrary and discriminatory and is violative of Article 14 of the Constitution. Persons to be elected as members of Parliament or a State Legislature stand on the same footing as sitting members so far as disqualifications are concerned and sitting members of Parliament and State Legislatures cannot enjoy the special privilege of continuing as members even though they are convicted of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act.

Submissions on behalf of the respondents

1.   The validity of Section 8(4) of the Act has been upheld in K. Prabhakaran v. P. Jayarajan etc. While answering question No. 3, Constitution Bench has held in Prabhakaran's case that the purpose of carving out a saving in Section 8(4) of the Act is not to confer an advantage on sitting members but to protect the House. In para 58 of the judgment has explained that if a member of the House was debarred from sitting in House and participating in the proceedings, no sooner the conviction was pronounced followed by sentence of imprisonment, entailing forfeiture of his membership, then two consequences would follow: first, strength of membership of House shall stand reduced, so also the strength of political party to which such convicted member may belong and the Government in power may be surviving on a razor-edge thin majority where each member counts significantly and disqualification of even one member may have deleterious effect on the functioning of the Government; second, a bye-election shall have to be held which exercise may prove to be futile, also resulting in complications in the event of convicted member being acquitted by a superior criminal court. Hence Parliament has classified the sitting members in a separate category and provided in Section 8(4) that if on date of incurring disqualification, person is member of Parliament / State Legislature, such disqualification shall not take effect for a period of three months from the date of such disqualification to enable sitting member to file appeal / revision challenging his conviction, and sentence and if such an appeal or revision is filed, then applicability of the disqualification shall stand deferred until such appeal or revision is disposed of by the appropriate Court.

2.   The reality of the Indian judicial system is that acquittals in the levels of Appellate Court such as High Court are very high and it is for this reason that Parliament has provided in sub-section (4) of Section 8 of the Act that disqualification pursuant to conviction or sentence in the case of sitting members should stand deferred till the appeal or revision is decided by Appellate / Revisional Court. The power to legislate on disqualification of members of Parliament and State Legislature conferred on Parliament carries with it the incidental power to say when the disqualification will take effect. The source of legislative power for enacting sub-section (4) of Section 8 of the Act is, therefore, very much there in Art. 101(1)(e) and 191(1)(e) and if not in these articles of the Constitution, in Art. 246(1) read with Entry 97 of List I of Seventh Schedule and Art. 248 of Constitution, which confer powers on Parliament to legislate on any matter not enumerated in Lists II and List III of the Seventh Schedule of the Constitution. Petitioner is not right in his submission that remedy of sitting member who is convicted or sentenced and gets disqualified under sub-section (1), (2) or (3) of Section 8 of the Act is to move the Appellate Court under Section 389 of the Code of Criminal Procedure for stay of his conviction. Appellate Court does not have any power under Section 389, Cr.P.C. to stay disqualification which would take effect from the date of conviction and therefore a safeguard had to be provided in Section 8(4) of the Act that disqualification, despite the conviction or sentence, will not have effect until appeal / revision is decided by Appellate / Revisional Court. There is, therefore, rationale for enacting Section 8(4) of the Act.

·      Discussion

1.   The issue raised that Parliament lacked the legislative power to enact sub-section (4) of Section 8 of the Act as this issue was not at all considered by Constitution Bench of Supreme Court in K. Prabhakaran. In The Empress v. Burah and another Privy Council laid down fundamental principles for interpretation of written Constitution laying down the powers of the Indian Legislature:

"The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it; and it can, of course, do nothing beyond the limits which circumscribes these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legislation, as large, and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions."

The correctness of the aforesaid principles with regard to interpretation of a written Constitution has been reaffirmed by the majority of Judges in Kesavananda Bharti v. State of Kerala. Hence, when question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument by which affirmatively, the legislative powers were created, and by which negatively, they are restricted.

2.   A reading of Art. 245 to 255 would show that these relate to distribution of legislative powers between Union and Legislatures of States. Art. 246(1) provides that Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule and under Entry 97 of List I of the Seventh Schedule of the Constitution, Parliament has exclusive power to make law with respect to any other matter not enumerated in List II or List III. Article 248 similarly provides that Parliament has exclusive power to make any law with respect to any matter not enumerated in the Concurrent List (List III) or State List (List II) of the Seventh Schedule of the Constitution. Therefore, Article 246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than matters enumerated in List II and List III) Parliament will have power to make law. To quote from Commentary on the Constitution of India by Durga Das Basu:

"In short, the principle underlying Article 248, read with Entry 97 of List I, is that a written Constitution, which divides legislative power as between two legislatures in a federation, cannot intend that neither of such Legislatures shall go without power to legislate with respect of any subject simply because that subject has not been specifically mentioned nor can be reasonably comprehended by judicial interpretation to be included in any of the Entries in the Legislative Lists. To meet such a situation, a residuary power is provided, and in the Indian Constitution, this residuary power is vested in the Union Legislature. Once, therefore, it is found that a particular subject-matter has not been assigned to the competence of the State Legislature, it leads to the irresistible inference that (the Union) Parliament would have legislative competence to deal with the subject-matter in question."

3.   No power is vested in State Legislature to make law laying down disqualifications of membership of the Legislative Assembly or Legislative Council of the State and power is vested in Parliament to make law laying down disqualifications also in respect of members of the Legislative Assembly or Legislative Council of the State. For these reasons, court is of the considered opinion that the legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State can be located only in Art. 102(1) (e) and 191(1)(e) and not in Art. 246(1) read with Entry 97 of List I of the Seventh Schedule and Art. 248. The contention that power to enact sub-section (4) of Section 8 of the Act is vested in Parliament under Art. 246(1) read with Entry 97 of List I of Seventh Schedule and 248 of Constitution, if not in Articles 102 (1)(e) and 191 (1)(e) of the Constitution, cannot be accepted.

4.   Articles 102(1)(e) and 191(1)(e), which contain the only source of legislative power to lay down disqualifications for membership. It would make it clear that Parliament is to make one law for a person to be disqualified for being chosen as, and for being, a member of either House of Parliament or Legislative Assembly or Legislative Council of the State. In the language of Constitution Bench of this Court in Election Commission, India v. Saka Venkata Rao (supra), Art. 191(1) [which is identically worded as Article 102(1)] lays down "the same set of disqualifications for election as well as for continuing as a member". Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) has to be the same.

5.   The Submissions of respondents that the disqualifications laid down in sub-sections (1),(2) and (3) of Section 8 of the Act are the same for persons who are to continue as members of Parliament or a State Legislature and sub-section (4) of Section 8 of the Act does not lay down a different set of disqualifications for sitting members but merely states that the same disqualifications will have effect only after the appeal or revision, as the case may be, against the conviction is decided by the Appellate or the Revisional Court if such appeal or revision is filed within 3 months from the date of conviction, cannot be accepted because of Art. 101(3)(a) and 190(3)(a).

6.   Article 101(3)(a) provides that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant and similarly Article 190(3)(a) provides that if a member of House of Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon become vacant. This is the effect of a disqualification under Art. 102(1) and 190(1) incurred by member of either House of Parliament / State Legislature. Accordingly, once a person who was member becomes disqualified by or under any law made by Parliament under Art. 102(1)(e) and 191(1)(e), his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) and Parliament cannot make provision as in Section 8(4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution.

7.   The submission of respondent that until decision is taken by President or Governor on whether a member of Parliament or State Legislature has become subject to any of the disqualifications mentioned in clause (1) of Art. 102 and Article 191, the seat of the member alleged to have been disqualified will not become vacant under Art. 101(3)(a) and 190(3)(a) of the Constitution, cannot be accepted. Articles 101(3)(a) and 190(3)(a) provide that if a member of the House becomes subject to any of the disqualifications mentioned in clause (1), "his seat shall thereupon become vacant". Hence, the seat of a member who becomes subject to any of the disqualifications mentioned in clause (1) will fall vacant on the date on which the member incurs the disqualification and cannot await the decision of the President or the Governor, as the case may be, under Art. 103 and 192. The filling of the seat which falls vacant, however, may await the decision of President or Governor under Art. 103 and 192 respectively and if the President or the Governor takes a view that the member has not become subject to any of the disqualifications mentioned in clause (1) of Art. 102 and 191, it has to be held that the seat of the member so held not to be disqualified did not become vacant on the date on which the member was alleged to have been subject to the disqualification.

Conclusion and importance of case

·      Conclusion

1.   The result of our aforesaid discussion is that affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature 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. Accordingly, sub-section (4) of Section 8 of the 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 or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution.

2.   Parliament has been vested with powers to make law laying down same disqualifications for person to be chosen as member of Parliament/State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. The provisions of Art. 101(3)(a) and 190(3)(a) of Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament /State Legislature. Parliament has exceeded its powers conferred by Constitution in enacting sub-section (4) of Section 8 of the Act and it is ultra vires Constitution.

3.   The submission of respondent that if sitting member of Parliament/State Legislature suffers from a frivolous conviction by the trial court for an offence given under sub-sections (1), (2) or (3) of Section 8 of the Act, he will be remediless and will suffer immense hardship as he would stand disqualified on account of such conviction in the absence of Section 8(4) of the Act, do not find any merit, as held in Rama Narang v. Ramesh Narang and Ravikant S. Patil v. Sarvabhouma S. Bagali in the light of the provisions of Code of Criminal Procedure as per Section 389 and 482.

4.   Court can declare Section 8(4) of the Act as ultra vires Constitution without going into the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14, court do not think it is necessary to decide the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution.

5.   Sitting members of Parliament and State Legislature who have already been convicted for any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordingly saved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, in our considered opinion, be affected by the declaration now made by us in this judgment. In the light of Golak Nath and Others vs. State of Punjab and another and Harla v. State of Rajastha 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.

·      Importance

The provisions of the legislations are to be enacted and interpreted keeping in the mind of social morality, the interest of society The representatives of people should not have criminal back-ground followed by punishment.