Monday, August 05, 2013

Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result?

--> Guest Post: Vasujith Ram

Recently in Lily Thomas v Union of India, the Court held that Section 8(4) of the Representation of People Act, 1951 (RPA) was ultra vires the Constitution.

To begin with, the Court held that, from the “affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution … the 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.” The Court added that the “provisions of Article 101(3)(a) and 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” (see para 20).

On the basis of the above two reasons, the Court held Section 8(4) of the RPA, which defers the date on which the disqualification of a sitting member will take effect, to be ultra vires the Constitution.
Before we proceed, it is important to note the Court’s observation that “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” (para 16). This is based on the semantics of Art. 102(1) and Art. 191(1), which state that “[a] person shall be disqualified for being chosen as, and for being, a member of either House of Parliament…”. This is affirmed in Election Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member.

Now let’s move on to CEC v Jan Chaukidar. The judgment says that a person who is confined in a prison or in the lawful custody of police, loses the right to vote (S. 62(5) of RPA), and is hence disqualified from contesting elections. The reasoning is that a person who has no right to vote is disqualified from registering in the electoral rolls (S. 16(1)(c) of RPA), implying that he/she is not an ‘elector’ (S. 2(1)(e) of RPA) – which is one of the qualifications for “being chosen to fill a seat” of the House of the People and a Legislative Assembly of a State (S. 4(d) and 5(c) of RPA).

In other words, according to the judgment, if a person is in police custody, for reasons stated above, he/she does not fulfil the “qualification for membership of the House of the People” under Section 4(d) and “qualifications for membership of a Legislative Assembly” under Section 5(c) of RPA. (“Disqualification on conviction for certain offences” is however laid down in S. 8 [as discussed in Lily Thomas], but those disqualifications are only for certain offences, which means, they person can be disqualified for other reasons as well). Therefore the person is disqualified from contesting elections.

Now, using both the Lily Thomas and the Jan Chaukidar logic, this means that a sitting MLA/MLC/MP is disqualified as well, if he/she is in police custody! This is because the parliament is vested with the powers to make one law, laying down the same disqualifications for sitting and contesting members. Since Jan Chaukidar held that a person in police custody does not fit the qualifications to be “chosen to fill a seat” of the House of the people or the Legislative Assembly, does this not mean that he/she cannot continue as member of Parliament or the State Legislature as well if he/she is taken in police custody? Additionally, para 16 of Lily Thomas (relevant portion quoted above), all but confirms this blog’s argument.

One must note that provisions of Art. 101(3)(a) and 190(3)(a), as expounded in Lily Thomas, only strengthens the point made in this blog post. The Parliament cannot defer the date from which disqualification will come into effect, so a sitting member in lawful custody (even if not convicted), is immediately disqualified!
- Vasujith Ram is a second year student at NUJS
Post a Comment