SC Judgement on Right of Convicted Persons to Contest Election

The Apex court on 10th July 2013 pronounced a watershed judgment in Lily Thomas v. Union of India and Ors. and Lok Prahari v. Union of India and Ors. Wherein it struck down subsection 4 of Section 8 of Representation of People Act, 1951 that provided protection to convicted elected representatives of the House of Parliament and Legislative assemblies against disqualification from Parliament and legislative assemblies.

The Court said that Union Parliament had exceed it jurisdiction by enacting the said provision where under additional protection is afforded to members of Parliament and State Legislature from disqualification from the House of Parliament and legislative Assemblies by allowing them continue the office within 3 months from date of conviction or to continue as members till final disposal of appeals in case where appeal or revision petitions are filed within 3 months from date of conviction. The subsection provides that disqualification on the grounds of section 8 of Representation of People act shall not take effect against the members of Parliament and legislative assemblies till final disposal of the appeal petitions by the higher courts, thus allowing convicted members of parliament and legislative assembly to continue in their office.

The Court held that the provision of subsection 4 of section 8 of Representation of People act was ultra vires the constitution. The court relied upon the provisions of the constitution in concluding the same. The Apex Court said that in questions where it is raised that whether Parliament has exceeded the limits of its power, the courts have to decide the question by looking into the terms of the instrument by which affirmatively the legislative power were created and by which negatively they were restricted.

The Court citing Articles 101 (3) (a) and 190 (3) (a) of the Constitution held that disqualification takes effect from the date of conviction and this cannot be deferred by the Parliament. The court observing Article 101 (3) (a) and 190 (3) (a) observed that seat of a member who becomes subject to any disqualification mentioned in subsection (1) falls vacant on the date when the member of the Parliament or Legislative assembly incurs disqualification as per the words of the section and this vacancy of seat cannot be deferred by any awaited decision from the President or the Governor under Article 103. The court further said that only filing of the said seat may be deferred till decision in regard is taken up as to whether the member is disqualified or not but the seat shall fall vacant on the date when member incurs disqualification.

The court further said that the language of Articles 102 (1) (e) and 191 (1) (e) makes it abundantly clear that Parliament is vested with the power to make same laws for disqualification for persons to continue as members and for being elected as representatives of Parliament and Legislative assemblies. The Court further observed that there are same set of disqualifications for being elected as Member of Parliament and for continuing as member of Parliament and hence the Parliament does not have the power under Articles 102 (1) (e) and 191 (1) (e) to make different laws for a person to be disqualified for being chosen as a member and for person to be disqualified for continuing as a member of Parliament and state Legislature. The Court further said relying upon Articles 101 (3) (a), 190 (3) (a), 102 (1) (e) and 191 (1) (e) that words in Articles 101 (3) (a) and 191 (3) (a) of the Constitution thereby put express limitations on such power of Parliament to defer date on which disqualification would have effect and thus held that the saving clause in subsection 4 of section 8 of Representation of people act that defers the date from which disqualification will take effect in case of sitting member of parliament or state legislature is ultra vires the constitution and beyond the power conferred on Parliament by constitution.

The apex Court held that Parliament cannot make provision as in subsection 4 of section 8 of the act to defer the date on which disqualification of a sitting member shall take effect and prevent his seat from becoming vacant on account of disqualification under Article 102.

The Apex court was also hearing another writ petition on the same day dealing with question on same lines as the right of convicted persons to contest elections. The writ petitions were challenging the findings of the Patna High Court where it had been held that a person who has no right to vote by virtue of Representation of people act is not an elector and therefore is not qualified to contest elections to Parliament and state legislature. The High Court had after looking into provisions of Representation of peoples act observed that section 4, 5 and 16 of the Representation of peoples act lays down the qualification for membership to House of Parliament and legislative assembly and one of the qualifications provided is that the person should be an elector. The High Court observed that section 62 (5) of the same act says that no person who is confined in prison or in lawful custody except under preventive detention shall vote and thereby relying upon it observed and held that a person who is lawful custody of police cannot contest elections to State Assemblies since he is lawful custody and cannot vote and is not an elector by virtue of the provisions of the act that lays down the qualification of elector for being elected as member to Parliament or state legislature.

Thus, the Apex Court on 10th July 2013 through series of judgments in writ petitions before it held that person in lawful custody or persons who are convicted cannot contest election or continue as members of legislature. The court held that saving provision of subsection 4 of section 8 of Representation of Peoples Act cannot come to rescue of convicted members whose seats are by virtue of provisions of constitution falls vacant on the date when they incur disqualification and Parliament in the exercise of its power conferred under constitution has no legislative power and cannot defer the date when the disqualification shall take effect. The court held that subsection 4 of section 8 of representation of people act is ultra vires the constitution.