India, known as the world's largest democracy, empowers its citizens to choose their representatives who are responsible for working toward their interests. However, not all elected personnel are worthy of holding such crucial positions. Statistics reveal that nearly 50% of Members of Parliament (MPs) in the new Lok Sabha have criminal records. The increasing number of members with criminal records in parliament threatens the survival of true democracy. The intertwining of politics and criminality in India has led to the criminalization of politics, where criminals engage in government politics by running for office and being elected to legislatures. To address this issue, the Indian Parliament, Election Commission, and Supreme Court have established several limitations and guidelines to prevent criminals from remaining in politics and serving the people's interests. One such provision is Section 8 of the Representation of People Act, 1951, which provides for the disqualification of MLAs and MPs.
The disqualification of Rahul Gandhi, a Member of Parliament, in March 2023 for a defamation case has ignited a debate regarding the validity of striking down Section 8(4) in the Lily Thomas v Union of India case. This case sheds light on the validity of striking down this section and the terms for the disqualification of MLAs and MPs.
A two-judge bench comprising Justices A.K. Patnaik and S.J. Mukhopadhyay issued their decision in this matter, dealing with the disqualification of Members of Parliament or the Legislature in 2013. Two writ petitions under Article 32 concerning the disqualification of MLAs or MPs convicted in a criminal case were submitted to the Supreme Court, one by Advocate Lily Thomas and the other by Lok Prahari through its General Secretary S.N. Shukla. Legislation governing the disqualification of elected legislators is now governed by the Representation of the People Act, 1951. Sections 8(1), 8(2), and 8(3) of the RP Act provide that a legislator found guilty of one of the offenses listed in these sections will be disqualified from holding office.
However, Section 8(4) states that regardless of subsections (1), (2), or (3), a disqualification under either subsection will not apply to a person who was an MP or MLA on the date of the conviction until three months have passed since that date or, if within that time, an appeal or application for revision is made concerning the conviction or the sentence. This subsection stands challenged by way of the instant writ petitions. Therefore, the Court had to determine whether Section 8(4) is ultra vires to constitutional provisions.
Fali Nariman, representing the petitioner, argued that in light of Articles 102(1)(e) and 191(1)(e), the Parliament is not constitutionally competent to enact Section 8(4). Even though these two articles give power to the parliament to pass any new law regarding the disqualification of members of parliament and members of the legislative assembly, a bare reading of these articles signifies that the sitting member and the member chosen should be treated equally. Contrary to that, Section 8(4) of the Representation of People Act, 1951 is passed only for sitting members and is inconsistent with the reading of these two Articles.
According to Subsections (1), (2), and (3) of Section 8 of the Representation of People Act, 1951, a person convicted of an offense listed in any of these Subsections shall be disqualified as of the date of conviction and as long as the Subsection specifies. On the other hand, subsection (4) of Section 8 states that, regardless of what is stated in Subsections (1), (2), or (3) of Section 8, a person who was a member of Parliament on the day of the conviction who is disqualified under either subsection will not be rendered ineligible for office for three months. The court will not pronounce on the conviction or sentence if an appeal or application for revision is filed within that time frame; the decision will be made after the appeal or application has been handled. The petitioners requested the declaration of Section 8(4) extra vires, arguing that the Parliament lacks the legislative competence to approve such a provision.
ASG Sidharth Luthra, representing the government, argued that if Parliament has the constitutional authority to declare under Articles 102(1)(e) and 191(1)(e) the circumstances under which an MP or MLA shall be disqualified from membership, then that authority must also include the authority to pass legislation that may temporarily delay the effect of such disqualification. He contended that Article 246(1) read with Entry 97 of List I of the Seventh Schedule of the Constitution and Article 248, which confer powers on Parliament to legislate on any matter not enumerated in List II and List III of the Seventh Schedule of the Constitution, are the sources of power for legislation and not Articles 102 and 191. He argued that the Constitution Bench of this Court had upheld the validity of Sub-section (4) of Section 8 of the Act in K. Prabhakaran v. P. Jayarajan, wherein it was declared that the intent behind creating a saving in Sub-section (4) of Section 8 of the Act is to safeguard the House rather than to provide a benefit to sitting members of Parliament or State Legislatures.
The Supreme Court, after considering both sides' arguments, made several observations. Denying the rationality of the respondent's argument that the validity of Sub-section (4) of Section 8 of the Act had been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan, the Supreme Court noted that the issue of legislative power to enact subsection (4) of Section 8 was not considered in that case. It clarified that the legislative power to enact laws for the disqualification of a Member of Parliament or Legislative Assembly or Legislative Council could be located only in Articles 102(1)(e) and 191(1)(e) of the Constitution. Hence, the respondent's contention that the power to enact Section 8 comes from Article 246(1), read with Schedule 7 List 1 Entry 97, and Article 248 of the Constitution, was not accepted by the court, stating that Articles 246 and 248 provide power only in residuary matters.
Citing the case of Election Commission v Saka Venkata Rao, the court said that under Articles 101(3)(a) and 190(3)(a) of the Constitution, if a member of either House of Parliament or House of the State Legislature becomes subject to any of the disqualifications mentioned under Articles 102(1) and 191(1) of the Constitution, his seat automatically falls vacant. Therefore, Parliament does not have the power to make a provision that delays the date on which disqualification occurs.
In response to the third issue, the Supreme Court cited the Golak Nath v. State of Punjab case to hold that the court has the authority to declare the law and limit its future operation while preserving any statutory or non-statutory transactions carried out under an earlier law. According to sub-section (4) of Section 8, sitting members of Parliament and state legislatures who have already been found guilty of any of the offenses listed in subsections (1), (2), and (3) of the Act and who have filed pending appeals or revisions are exempt from disqualification.
The court held that the membership of Parliament or the State Legislature, as the case may be, will not be saved by Sub-Section 4 and will terminate immediately after conviction for any of the offenses listed in sub-sections (1), (2), and (3) of Section 8 of the Representation of the People Act 1951. This is because sub-section (4) of Section (8) is ultra vires the Constitution, and the Parliament has exceeded its powers granted by the Constitution in enacting it. It also held that the grounds for disqualifying a candidate and a member are the same. Therefore, by introducing Section 8(4), which discriminates between those elected and those chosen to be elected members of parliament, Parliament has overreached its authority.
Cleansing politics from criminal influence is imperative for the health of our democracy. The inclusion of criminals in politics has been on the rise since 2004. In a petition filed in February 2023, it was claimed that there has been a 44% increase in the number of MPs with declared criminal cases since 2009. The Lily Thomas v Union of India case has made people believe that prisoners should not be allowed to run for office. Other cases where the Supreme Court addressed this issue include Public Interest Foundation v. Union of India and Rambabu Singh Thakur v. Sunil Arora & Ors.
The five-judge court unanimously decided that if criminal charges had already been brought against a candidate, they could not be disqualified from seeking office. The Court observed that there was respect for the division of authorities and asked the Parliament to pass laws forbidding candidates suspected of serious offenses from seeking public office. It found that an informed decision is essential to a robust and unadulterated democracy. It mandated that political parties and candidates divulge all pertinent information on pending criminal cases on their official websites and social media accounts, requiring them to specify the nature of the offense and provide any other pertinent information, such as whether the charges are politically motivated.
The bench instructed the Election Commission to make candidate information available to voters and broadened the scope of its prior decisions by mandating that the Election Commission form a separate cell to monitor the required compliances and ensure that the results of non-compliance are communicated to the apex court as well as being made available in the public domain. The political parties must upload information on their websites, official social media pages, and news websites.
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