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.). Similarly with the parliamentary election had to be conducted in 2014, the Supreme Court came up with three landmark judgments one of them was the constitutionality of Section 8 (4) of RPA, which influenced the conduct of the election.
The two writ petition Lily Thomas v. Union of India and S.N. Shukla v. Union of India was 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 this petition. Her objective was, the Court to be held in high esteem and declaration of the clause as illegal.Lok Prahari, a Lucknow-based NGO, through its general secretary, had also filed a petition on the identical bearing so both the petitions were adjudicated together.
Issues Included in The Case:
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 appreciated their challenge in the light of the intention of the Constituent Assembly, while drafting and adopting the constitution where it laid down 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).
Respondent argued 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 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.
However, 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 Respondents 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, 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 Convicted person will have any remedy if appellate Court grants acquittal?
In his, argument Respondent argued if trial court gives a frivolous conviction on sitting member, he also stated that 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., the three-Judge Bench held 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. As the court cited Ravikant S. Patil v. Sarvabhouma S. Bagali in which court stayed appellant’s conviction which consequently, made disqualification ceased to operate which was arising out of his conviction under Section 8(3) of RPA.
 Navin B. Chawla, Criminality in the Indian political system, The Hindu, 2013,
system/article5373789.ece (last visited Sep 8, 2016).
 Supra note 1.
 Supra note 2.
 Thritesh Nandan, Lily Thomas vs. the Union of India, millennium post, 2014,
http://www.millenniumpost.in/NewsContent.aspx?NID=56084 (last visited Sep 9, 2016).
 Supra note 1.
 Article 246 of Constitution of India.
 Entry 97 of First List of the Seventh Schedule of Constitution of India.
 Article 248 of Constitution of India.
 Supra note 1 para 15.
 Articles 102(1) (e) of Constitution of India.
 Article191 (1) (e) of Constitution of India.
 Election Commission India v. Saka Venkata Rao, AIR 1953 SC 210
 Supra note 1.
 Rama Narang v. Ramesh Narang & Anr., SCC 11, 2006, SC114.
 Section 374 of Code of Criminal Procedure, 1973
 Ravikant S. Patil v. Sarvabhouma S. Bagali, SCC 1, 2007, SC 673.
(This brief was prepared and submitted to LawBriefs.in by Hemant Gupta, Student at NALSAR University of Law, Hyderabad.)