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CONCEPT - CRIMINALISATION OF POLITICS - LILY THOMAS CASE 2013
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- Case Background: The issue of criminality in politics or precisely convicted representative in Parliament and legislature has been debated for a long time and several reforms have been proposed by different forums (Election Commission of India, Supreme Court etc.).
- 2014 judgments: The Supreme Court dealt with the constitutionality of Section 8 (4) of RPA, which influenced the conduct of the election (in 2014).
- The two writ petition Lily Thomas v. Union of India and S.N. Shukla v. Union of India were filed as Public Interest Litigation primarily with the objective to declare Section 8 (4), RPA, as ultra vires the constitution.
- The provision of the RPA outlines that convicted representative can file an appeal and consequently this will put stay on their conviction.
- Lily Thomas said thereby “it encourages tainted leaders to contest elections. This should never have been permitted”. This was her reason for filing the petition.
- Lok Prahari, a Lucknow-based NGO, also filed a petition on the identical bearing so both the petitions were adjudicated together.
- In its judgement dated 10 July 2013 while disposing the Lily Thomas v. Union of India case (along with Lok Prahari v. Union of India), the SC ruled that any Member of Parliament (MP), Member of the Legislative Assembly (MLA) or Member of a Legislative Council (MLC) who is convicted of a crime and given a minimum of two year imprisonment, loses membership of the House with immediate effect. This is in contrast to the earlier position, wherein convicted members held on to their seats until they exhausted all judicial remedy in lower, state and supreme court of India. Further, Section 8(4) of the Representation of the People Act, which allowed elected representatives three months to appeal their conviction, was declared unconstitutional by the bench of Justice A. K. Patnaik and Justice S. J. Mukhopadhaya.
- Issues included:
- Issue 1 – Whether the power exercised by parliament for enacting the section 8(4) of Representation of People’s Act was in consonance with the provision given in constitution? In the present case, the petitioners highlighted the disqualification for membership of either House of Parliament under Article 102(1) and the disqualification for membership of the legislative Assembly or Legislative Council of State under Article 191(1). Respondents argued that the legislative power to enact section 8(4) of the RPA is located in Article 246(1) read with Entry 97 and Article 248 of the Constitution. This provides the Parliament exclusive power to make laws with respect to any other matter not enumerated in List II or List III of Seventh Schedule of the Constitution. But the court quoted Article 102(1)(e) and 191(1)(e) of the Constitution and ruled that power to make laws regarding disqualification is only with the Parliament not with State Legislature. Thus, the court did not accept the Respondent's contention.
- Issue 2 - Whether the Section 8(4) of RP Act applied on sitting members and elected to be, was treating them equally? The opening words of Articles 102(1)(e) and 191(1)(e) i.e. “for being chosen as, and for being, a member of either House of Parliament” clarifies that Parliament is to make law for both candidates and sitting members, who to be disqualified. In Election Commission India v. Saka Venkata Rao, the Court held “the same set of disqualifications for election as well as for continuing as a member”. Thus, Parliament has no power under these articles to make different laws for a person to be disqualified for being elected as a member and sitting member of Parliament or the State Legislature. This reasoning holds the rule that to interpret any law first of all grammatical meaning should be taken into consideration if it is not clear then purpose should be interpreted. Hence, Court properly declared Section 8(4) ultra-vires Constitution of India.
- Issue 3 - Whether a convicted person will have any remedy if appellate Court grants acquittal? The Respondent argued that if trial court gives a frivolous conviction on sitting member, usually the Appellate courts grant acquittal in most of the cases. Therefore, an instantaneous disqualification will leave sitting members remediless with immense hardship. Thus, the Court cited in Rama Narang v. Ramesh Narang & Anr. that an appeal preferred under Section 374 of Cr.P.C. is against both conviction and Sentence. Therefore, appellate Court can under section 389(1) of Cr.P.C or High Court in its inherent jurisdiction of Section 482 of CrPC stay a conviction.
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