*Swapna Jha

The Supreme Court delivered a landmark judgment on July 10, 2013, striking down the provision in the Representation of the Peoples Act, 1951 (RPA), that protected convicted legislators from disqualification in the event of an appeal being filed in higher courts within three months of conviction. The order led to a series of developments that would have done credit to the theatre of the absurd. Instead of using the opportunity offered by it to press forward with much needed electoral reforms, which would have earned the union government the admiration of civil society, it embarked on a course of action which exposed it to public odium and ridicule.

The proposals for electoral reforms have a long history of pendency. The considered recommendations made by various expert bodies have at best elicited a perfunctory response from the government. Mention may be made here of the prescriptions of the Tarkunde Committee on Election Expenses (1975), the Dinesh Goswami Committee on Electoral Reforms (1990), the Vohra Committee on Criminalisation of Politics (1993), the Indrajit Gupta Committee on State Funding of Elections (1998), the Law Commission Report on Reform of Electoral Laws(1999), the National Commission to Review the Working of the Constitution of India (2001), the Proposal for Electoral Reforms by the Election Commission of India (2004), the Report of the Second Administrative Reforms Commission (2008) and the Report of the Core Committee on Electoral Reforms (2010). There has also been a concerted campaign by several civil society organizations such as Association for Democratic Reforms, Lok Prahari, Public Interest Foundation and Common Cause to force the pace of electoral reforms.

Instead of accepting the salutary verdict of the apex court with good grace and taking steps to rectify the iniquity in the extant law, the union government chose to nullify its effect by introducing a Bill in Parliament and to make matters worse, tried during the pendency of the Bill to ensure that the tainted legislators, whose disqualification was imminent, were immunized from the effect of the judgment by surreptitiously issuing an ordinance! It was only when the Presidential assent appeared problematic and there was widespread public criticism over this cynical move that Rahul Gandhi came out with his `complete nonsense' statement at a public forum. This led to a hastily summoned meeting of the Cabinet and the passing of a resolution to revoke the ordinance and withdraw the Bill!

The Constitutional Position

In order to appreciate the full import of these developments, let us take a look at the important legal provisions governing this matter. The RPA lays down certain rules for disqualification of Members of Parliament and Legislative Assemblies in the event of their conviction. Section 8 (4) of this Act provides an escape clause, which the convicted MPs and MLAs have been exploiting by preferring an appeal against their conviction in order to continue till the end of their term.

It was in this background that the Supreme Court delivered its order in the two writ petitions (WP (C) 490/2005 (Lily Thomas Vs Union of India & Ors. and   WP (C) 231/2005 Lok Prahari Vs Union of India &Ors), declaring as unconstitutional Section 8 (4), which set different criteria for disqualification of an electoral candidate and an elected representative.. The Court held that it was beyond the law making powers conferred by the Constitution on Parliament to make separate sets of rules for disqualification for persons to be chosen as members of Parliament or State Assemblies and for persons serving as members of these bodies.

It will be recalled that in 1998 the Election Commission had proposed an amendment to the RPA to the effect that any person accused of an offence punishable by imprisonment for five years or more would be disqualified from contesting an election even during the pendency of the trial, provided charges had been framed against that person by a competent court. The Law Commission had also made a similar recommendation in the year 2000. Subsequently, The National Commission for the Review of the Functioning of the Constitution and the Second Administrative Reforms Commission lent their support to the proposal. These recommendations have gone unheeded because of stiff resistance from all political parties. The judgment in Lily Thomas should have been construed as a nudge to the political establishment to take the first step forward on the long road to decriminalization of Indian politics.

Relevant extracts from the judgment are reproduced below for the benefit of our readers:


We will  first  decide  the  issue  raised  before  us  in  these  writ petitions that Parliament lacked the legislative  power  to  enact  sub- section (4) of Section 8 of the  Act  as  this  issue  was  not  at  all     considered by the Constitution Bench of this Court in the aforesaid case of K. Prabhakaran (supra).   ……………  Hence, when a  question  is  raised  whether  Parliament  has exceeded the limits of its powers, courts have to decide the question by looking  to  the  terms  of  the  instrument  by  which  affirmatively,  the legislative  powers  were  created,  and  by  which  negatively,  they are restricted.

15. We must first consider the argument of Mr.  Luthra,  learned  Additional Solicitor General, that the legislative power to enact  sub-section  (4) of Section 8 of the Act is located in Article 246(1) read with Entry  97 of List I of the Seventh Schedule and Article 248 of  the  Constitution, if  not  in  Articles  102(1)(e)  and  191(1)(e) of  the  Constitution. Therefore, Article 246(1) read  with  Entry  97  and  Article  248  only provide that in residuary matters (other than matters enumerated in List  II and List III) Parliament will have power to make law.  

Articles 102(1)(e) and 191(1)(e) of the Constitution,  on  the  other  hand, have  conferred  specific  powers  on  Parliament  to  make  law   providing disqualifications  for  membership  of  either  House   of   Parliament   or Legislative Assembly or Legislative Council of the State  other  than  those specified in sub-clauses (a), (b), (c) and (d) of  clause  (1)  of  Articles 102 and 191 of the Constitution.  We may note that no  power  is  vested  in the  State  Legislature  to  make  law  laying  down  disqualifications   of membership of the Legislative Assembly or Legislative Council of  the  State and power is vested in Parliament to make law laying down  disqualifications also in respect of  members  of  the  Legislative  Assembly  or  Legislative Council of the State.   For these reasons, we are of the considered  opinion that the legislative power of  Parliament  to  enact  any  law  relating  to disqualification  for  membership  of  either   House   of   Parliament   or Legislative Assembly or Legislative Council of  the  State  can  be  located only in Articles 102(1)(e) and 191(1)(e) of  the  Constitution  and  not  in Articles 246(1) read with Entry 97 of List I of  the  Seventh  Schedule  and Article  248  of  the  Constitution.   We  do  not,  therefore,  accept  the contention of Mr.Luthra that the power to enact sub-section (4) of  Section 8 of the Act is vested in Parliament under Articles 246(1) read  with  Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not  in Articles 102 (1)(e) and 191 (1)(e) of the Constitution.

16.   Articles 102(1)(e) and 191(1)(e) of  the  Constitution,  which  contain  the only source of legislative power to lay down  disqualifications  for membership of either House of Parliament  and  Legislative  Assembly  or Legislative Council of a State, provide as follows:

"102(1)(e). A person shall be disqualified for being chosen  as, and for being, a member of either House of Parliament-(e) if  he is so disqualified by or under any law made by Parliament."

"191(1)(e). "A person shall be disqualified for being chosen as, and  for  being,  a  member  of  the  Legislative  Assembly   or Legislative Council of a State(e) if he is so  disqualified  by or under any law made by Parliament.

A reading  of  the  aforesaid  two  provisions  in  Articles  102(1)(e)  and 191(1)(e)  of  the Constitution  would  make  it  abundantly   clear   that Parliament is to make one law for a person  to be  disqualified  for  being chosen as, and for  being,  a  member  of  either  House  of  Parliament  or Legislative Assembly or Legislative Council of the State.  In  the  language of the Constitution Bench of this Court in  Election  Commission,  India  v. SakaVenkataRao (supra), Article 191(1) [which  is  identically  worded  as Article 102(1)] lays down "the same set of  disqualifications  for  election as well as for continuing as a member".  Parliament thus does not  have  the power under Articles 102(1)(e) and 191(1)(e) of  the  Constitution  to  make different laws for a person to be disqualified for being chosen as a  member and for  a  person  to  be  disqualified  for  continuing  as  a  member  of Parliament or the State Legislature.  To put it differently, if  because  of a disqualification a person cannot be chosen as a member  of  Parliament  or State Legislature, for the same disqualification, he cannot  continue  as  a member of Parliament or the State  Legislature.   This  is  so  because  the language of Articles 102(1)(e) and 191(1)(e) of  the  Constitution  is  such that the disqualification for both a person to be chosen as a  member  of  a House of Parliament or the State Legislature or for a person to continue  as a member of Parliament or the State Legislature has to be the same.

17. Mr.Luthra and Mr.Kuhad, however, contended that the  disqualifications     laid down in sub-sections (1),(2) and (3) of Section 8 of  the  Act  are the same for persons who are to continue as members of Parliament  or  a  State Legislature and sub-section (4) of Section 8 of the Act  does  not     lay down a different set of disqualifications for  sitting  members  but merely states that the same  disqualifications  will  have  effect  only  after the appeal or revision, as the case may be, against the conviction  is decided by the Appellate or the Revisional Court if  such  appeal  or revision is filed within 3 months  from  the  date  of  conviction.   We cannot accept this contention also

…… Article 101(3)(a) provides  that  if  a  member  of  either  House  of Parliament becomes subject to any  of  the  disqualifications  mentioned  in clause (1), his seat shall thereupon become  vacant  and  similarly  Article 190(3)(a) provides that if a member of a  House  of  the  Legislature  of  a State becomes subject to any of the disqualifications  mentioned  in  clause (1), his seat shall thereupon become  vacant.   This  is  the  effect  of  a disqualification under Articles 102(1) and 190(1) incurred by  a  member  of either  House  of  Parliament  or  a  House  of   the   State   Legislature. Accordingly, once a person who was a member of either  House  of  Parliament or House of the State Legislature becomes disqualified by or under  any  law made  by  Parliament  under  Articles  102(1)(e)  and   191(1)(e)   of   the Constitution, his seat automatically falls  vacant  by  virtue  of  Articles 101(3)(a) and 190(3)(a) of the Constitution and  Parliament  cannot  make  a provision as in sub-section (4) of Section 8 of the Act to  defer  the  date on which the disqualification of a  sitting  member  will  have  effect  and prevent his seat becoming vacant on account of  the  disqualification  under Article 102(1)(e) or Article 191(1)(e) of the Constitution.

19.   The result of our aforesaid discussion is that the  affirmative  words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to  make one law laying down the same disqualifications for a person  who  is  to  be chosen as member of either House  of  Parliament  or  as  a  member  of  the Legislative Assembly or Legislative Council of a State and for a person  who is a sitting member of a  House of  Parliament  or  a  House  of  the  State Legislature and the  words  in  Articles  101(3)(a)  and  190(3)(a)  of  the Constitution put express limitations on such powers  of  the  Parliament  to defer  the  date  on  which  the  disqualifications   would   have   effect. Accordingly, sub-section (4) of Section 8 of the  Act  which  carves  out  a saving in the case of sitting members of  Parliament  or  State  Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section  8 of the Act or which defers the date on which the disqualification will  take effect in the case of a sitting member of Parliament or a State  Legislature is beyond the powers conferred on Parliament by the Constitution.

20. Looking at the affirmative terms of Articles 102(1)(e)  and  191(1)(e)      of the Constitution, we hold that Parliament has been vested with  the  powers to make law laying down the same disqualifications  for  person to be chosen as a member of Parliament or a State Legislature and  for a sitting member of a House of  Parliament  or  a  House  of  a  State Legislature.  We also hold that the provisions  of  Article  101(3)(a) 190(3)(a) of the Constitution  expressly  prohibit  Parliament  to defer the date from which the disqualification will come  into  effect in case of a sitting member of  Parliament  or  a  State  Legislature.      Parliament, therefore,  has  exceeded  its  powers  conferred  by  the Constitution in enacting sub-section (4) of Section 8 of the  Act  and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.

22.   As we have held that Parliament had no power to enact sub-section  (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of  the Act is ultra vires the Constitution, it is not necessary for us to  go  into the other issue raised in these  writ  petitions  that  sub-section  (4)  of Section 8 of the Act is violative of Article 14  of  the  Constitution.   It would have been necessary for us to go  into  this  question  only  if  sub- section (4) of Section 8 of the Act was held to be within the powers of  the Parliament.  In other words, as we can declare sub-section (4) of Section  8 of the Act as ultra vires the Constitution without going into  the  question as to whether sub-section (4) of Section  8  of  the  Act  is  violative  of Article 14 of the Constitution, we do not think it is  necessary  to  decide the question as to whether sub-section (4)  of  Section  8  of  the  Act  is violative of Article 14 of the Constitution.

24.   With the aforesaid declaration, the writ petitions are allowed.  No costs."  

Review Petition:

The government sought a review of the verdict by a five-judge Constitutional Bench on August 12, 2013, On September 4, 2013 the bench of J A. K. Patnaik and J S. J. Mukhopadhyay opined that they did not find any error apparent on the face of the record in their judgment and dismissed the review petition.

The Representation Of The People (Second Amendment And Validation) Bill, 2013: (Bill No. LXII of 2013:

A Bill to nullify the judgment of the Supreme Court was introduced in Rajya Sabha in the Monsoon Session and was referred by the Chairman to the Standing Committee. 


As it became clear that the bill to negate the Court verdict would not be passed during the Monsoon Session, the Union Cabinet approved an Ordinance to protect convicted MPs and MLAs from immediate disqualification.

In the above context, it may be noted that Article 123 of the Constitution grants the President certain law making powers to promulgate an ordinance subject to certain conditions. The President can only promulgate an ordinance when neither of the two Houses of Parliament is in session. The President has to be satisfied that there are circumstances that require `immediate action'. The justification for bringing an ordinance while a bill for achieving the same legislative objective was pending in Parliament was awkwardly lacking in this case.

The Ordinance made one key change to Section 8 (4) of the RPA. Instead of making the suspension of disqualification contingent on the filing of an appeal within three months of conviction, the ordinance provided, "…a disqualification under any of the said sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the legislator of a state, take effect, if an appeal or application for revision is filed with respect of the conviction and sentence within a period of 90 days from the date of conviction and such conviction or sentence is stayed by the court." In effect, a convicted MP or MLA would, in addition to appealing against the conviction and sentence, also have to secure a stay order to avoid disqualification.

The Ordinance also stipulated that after the date of the conviction and until the date on which the conviction was set aside by the court, the member would neither be entitled to vote, nor draw any salary or allowances, but could continue to take part in the proceedings of the legislature concerned. It is noteworthy that the law declared by the Supreme Court excluded the possibility of Parliament allowing a convicted legislator to continue to exercise "any rights of a legislator". The right to attend and participate in the proceedings of the legislature concerned, which the ordinance conferred on a convicted legislator, was clearly such a right, which could not be conferred on an otherwise disqualified legislator. Hence the Ordinance to amend section 8(4) of the Representation of Peoples Act 1951 was as unconstitutional as the original section 8(4), which was struck down by the Supreme Court. 

The Turn Around:

In a major embarrassment to the UPA government, Rahul Gandhi, intervening in a press briefing on the controversial ordinance organized by the Communication Department of the Congress Party on September 27, 2013, denounced it as "complete nonsense" and proclaimed, "What our government has done is wrong". Five days later, the Union Cabinet, in a hastily summoned meeting, decided to withdraw the ordinance as well as the Bill to provide amnesty to convicted lawmakers. The government's statement announcing the withdrawal of the ordinance barely disguised its embarrassment, "Having regard to various concerns, which have been expressed in relation to the validity and advisability of the proposed Ordinance seeking to amend the Representation of People's Act," it said, "the Cabinet has decided to withdraw the proposal for promulgating the Ordinance as well as the Bill."


The Lok Sabha and Rajya Sabha secretariats sought the suggestion of the Law Ministry on the procedure to be adopted for the disqualification of the convicted MPs. According to The Hindu of October 19, 2013, Attorney General G.E. Vahanvati opined that the convicted MPs should be disqualified without any further delay and the vacancies notified pursuant to the Supreme Court's, verdict. Eventually, Shri Rasheed Masood, Congress member of Rajya Sabha from Uttar Pradesh, Shri Lalu Yadav, Rashtriya Janata Dal member from Chhapra Lok Sabha constituency and Jagadish Sharma, Janata Dal (United) member from Jahanabad Lok Sabha constituency (both in Bihar) were disqualified from the dates of their respective conviction.


This denouement demonstrates the power of the public opinion to influence legislative decisions. It also raises an issue which is crucial for the future of our polity and that is: Should it be left to the judiciary to determine the course of evolution of our democracy or should the Constitution be amended to provide for a referendum on such existential issues?. In any case, it is evident that the time has come for a vigilant civil society to play a more active role in the democratic processes.

*Swapna Jha is Research Officer (Legal) at Common Cause.

October December, 2013