Lily Thomas v Union of India

Cause title and case names

The short version

Until 2013, an MP or MLA convicted of a serious offence kept the seat for as long as an appeal was pending, as long as the appeal was filed within three months. Two public interest petitions challenged that cushion in Section 8(4) of the Representation of the People Act, 1951.

The Supreme Court struck down Section 8(4). Parliament can lay down disqualifications, but the Constitution does not let it delay when a sitting member's disqualification takes effect. A member convicted under Section 8(1), (2) or (3) after 10 Jul 2013 loses the seat on conviction, even if an appeal is filed.

What the case was about

Under Section 8 of the Act, a person convicted of listed offences and sentenced to imprisonment is disqualified from contesting. For a sitting member, Section 8(4) added a cushion: the disqualification did not apply for three months from conviction, and if the member filed an appeal or revision in that time, it did not apply until that was decided.

The petitioners said Articles 102(1)(e) and 191(1)(e) let Parliament make one law of disqualification, and that Articles 101(3)(a) and 190(3)(a) make a seat vacant once a member is disqualified. Section 8(4), they argued, rewrote that timing.

The Union's case was practical. It pointed to thin majorities in the House, the cost of a by-election when a conviction could be reversed on appeal, and the risk of a member being removed for a conviction that did not last. Basant Kumar Chaudhary's petition was disposed of by a separate order in terms of the main judgment. A separate order the same day dealt with Chief Election Commissioner v. Jan Chaukidar, which was about prisoners and the right to contest.

Who was involved

Issues before the Court

1. Did Parliament have power to enact Section 8(4)?
2. Is Section 8(4) consistent with Articles 101(3)(a), 102(1)(e), 190(3)(a) and 191(1)(e)?
3. Does Section 8(4) offend Article 14? The Court did not decide this.
4. What happens to members already convicted and protected by Section 8(4) on the day of judgment?

How it reached the Supreme Court

Lily Thomas and Lok Prahari came directly to the Supreme Court under Article 32. The reports I read give the filing year for the two lead petitions as 2005, and Basant Kumar Chaudhary's as 2004. The companion appeals in Jan Chaukidar came from the Patna High Court. The reports do not give that High Court's date.

The bench

The hearing

• Fali S. Nariman appeared for Lily Thomas, and S.N. Shukla for Lok Prahari. The Union was represented by Siddharth Luthra and Paras Kuhad, both ASGs.
• The reported judgment does not give the hearing dates, the number of days or the date the matter was reserved.
• The judgment was pronounced on 10 Jul 2013.

What the Court held

• Parliament's power over disqualification for sitting members comes only from Articles 102(1)(e) and 191(1)(e). It cannot be found in Article 246(1) read with Entry 97 or in Article 248.
• Those articles are limited by Articles 101(3)(a) and 190(3)(a), under which a seat falls vacant when a member becomes disqualified. Parliament cannot defer the date from which that disqualification operates.
• Section 8(4) was therefore declared ultra vires the Constitution.
• If a member is later held not to be disqualified, the seat is treated as never having fallen vacant.
• A convicted member is not left without remedy. The court can stay a conviction in an exceptional case, and the Court pointed to Rama Narang and Ravikant Patil on that.
• The declaration is prospective. Sitting members already convicted, whose appeals or revisions were pending and who were protected by Section 8(4) on the date of the judgment, are not affected. A sitting member convicted under Section 8(1), (2) or (3) after 10 Jul 2013 is not saved by Section 8(4).
• The Court did not rule on Article 14.

What changed afterwards

On 30 Aug 2013, Law Minister Kapil Sibal introduced a bill in the Rajya Sabha that would have delayed disqualification again. The government then moved an ordinance on 24 Sep 2013. Rahul Gandhi called it "complete nonsense" at a press conference, and in early October 2013 the ordinance and the bill were withdrawn. Reports differ by a day on the exact date.

The rule has been tested since. A Surat court convicted Rahul Gandhi in a criminal defamation case on 23 Mar 2023 and sentenced him to two years. The conviction was later stayed by the Supreme Court, which lifted the disqualification.