A division bench of the Supreme Court comprising of Justice A.K. Patnaik and Justice S.J. Mukhopadhya passed a landmark judgment on 10th July, 2013 that reformed the conduct of elections. The judgement dealt with exemption of convicted representative to contest elections and their entry in the Parliament.
The Parliament was competent to enact Sec. 8(4) of the Representation of the People Act, 1951
The verbatim of Section 8(4) of the Representation of the People Act, 1951 is mentioned hereunder:
"S. 8 (4) Notwithstanding anything 8 [in sub-section (1), sub-section (2) or sub-section (3)] 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."
The Court agreed with the contentions of the Petitioners. The petitioners submitted that the intention of their arguments has been adopted from the Constituent Assembly. They highlighted that the drafting of the Constitution was done by the Assembly. Article 102(1) of the Indian Constitution laid down the disqualification of a member of either House of Parliament while Article 191(1) state the disqualification of membership of the Legislative Assembly or Legislative Council of State.
However, the Respondent contended that the power to enact Section 8(4) of the Representation of the People Act, 1951 was derived from Article 246(1), read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. The derivation taken from the aforementioned provisions provided exclusive power to Parliament to make laws with respect to any matter that was not mentioned in List II and List III of the Seventh Schedule. As the power had not been exclusively mentioned in any Lists, the Parliament had to derive the power from several provisions of the Indian Constitution.
The Court observed that Entry 97 did not play any role in derivation of power. Entry 97 comes into use only when the Constitution is silent as to who has the competence to enact a law. However, in the given scenario, the Constitution was not silent. Article 102(1) and Article 191(1) has clearly stated that the Parliament has the competency to enact laws on the subject of disqualification of MPs and MLAs. Such power is not available to State Legislature. Therefore, the provisions contended by Respondents were not applicable.
Section 8(4) of the Representation of the People Act, 1951 ultra vires the Constitution of India
The Court observed that the reading of both Article 102(1) and Article 191(1) of the Indian Constitution was important to understand the issue. The Court applied the literal rule and held that the Parliament was to make law for both candidates and sittings members pertaining to disqualification. The Court further noted the decision of the Apex Court in Saka Venkata Rao case where the Court stated that the same rules for disqualification must exist for election as well as for continuing as a member.
Inferentially, the Court stated that there was absence of statutory provisions supporting the contention of having different laws for a person to be elected and sitting members of Parliament or State Legislature, regarding their disqualification. The Court highlighted that the literal rule must be applied first for interpretation of any law and if the vagueness still exists, the purpose must be determined. Therefore, the Court held that Section 8(4) of the Representation of the People Act, 1951 ultra vires the Constitution of India.
The date of vacancy of seat of MP or MLA is on the date of disqualification
The Court had to consider further arguments of both the parties. The remaining arguments were regarding the date of vacancy of seats. The Court had to consider the issue where MP or MLA had incurred disqualification under Article 102(1) or Article 191(1) and the date of the vacancy of such seat had to be considered.
The Court held that the date on which the MP or MLA incurred the disqualification would be the date of such vacancy. Vacancy of seat could not await the decision of the President or Governor under Article 103 or Article 192 respectively. However, the filling of such seat could await the decision of President or Governor.
Furthermore, the Court observed that legislative power of Parliament is provided under Article 102(1) and Article 191(1). However, the Parliament could not make a provision to defer the date on which the disqualification of a sitting MP or MLA should have effect and prevent the seat from becoming vacant on the account of disqualification. Therefore, the Parliament did not have the power for determining the date of such vacancy.
The Supreme Court gave the decision during the parliamentary election of 2014. The debate pertaining to criminality in politics and entry of convicted representatives in the Parliament had aroused the importance of determining the solution. The PIL filed by Lily Thomas challenging the constitutionality of Section 8(4) of the Representation of the People Act, 1951 aided the Court in curbing the entry of such representatives in the Parliament and ensuring proper environment in the Indian political system.
To view / download copy of the original judgement, find the enclosed attachment