India: A Welcome Step To Cleanse Criminalisation Of Politics

Last Updated: 13 September 2013
Article by Jitendra Kumar

On 10th July, 2013, the Supreme Court handed down a landmark judgment which struck down section 8 (4) of the Representation of People Act, 1951 (hereinafter referred to as 'Act'). The provision allowed MPs and MLAs to continue in their posts, provided they had appealed or filed an application for revision against their conviction in higher courts within three months from the date of conviction. So apparently they could not be disqualified until the appeals or revisions were exhausted.

In a country wherein, 162 out of 545 Lok Sabha MPs and 1258 out of 4,032 sitting MLAs have criminal cases pending against them1, it is a big leap by the Supreme Court towards depurgating of Indian politics.


Two Public Interest Litigations were filed by Lily Thomas and an NGO Lok Prahari in 2005 questioning the validity of section 8(4) of the RP Act, since it provides special safeguard to the sitting MPs and MLAs who have been convicted of an offence and whether Section 8(4) of the RP Act is Ultra Vires to the Constitution.


The counsel of the petitioners presented the following arguments before the Hon'ble Supreme Court of India:-

  • In clause (1) of Articles 102 and 191 of the Constitution, same disqualifications are provided for a person being chosen as a Member of Parliament or Legislative Council of the State or State Assembly and for a person being a member of these bodies. Therefore, the disqualifications for a person to be elected as a member and for a person to continue as a member cannot be different.
  • There is no provision in Articles 102 and 191 of the Constitution which confers power on Parliament to make a provision to protect sitting members from the disqualifications it lays down for a person being chosen as a member, parliament lacks legislative power to enact section 8 (4) of the Act and therefore it is ultra vires to the Constitution.2
  • If a person is convicted of any offences mentioned in Sub-sections (1), (2) and (3) of section 8 of the Act, he becomes disqualified from continuing as a member immediately, notwithstanding the fact that he has filed an appeal or a revision against the conviction. So there is no legal basis to provide Sub- section (4) of section 8 of the Act.
  • Finally it was contended that section 8(4) is arbitrary and discriminatory as it provides special privilege to sitting members over persons to be elected so far as disqualifications are concerned.


  • In the case of K. Prabhakaran v. P. Jayarajan3, the Constitution Bench has held that purpose behind creating section 8(4) is not to confer an advantage on sitting members but to protect the House. If a member is convicted and has been pronounced sentence of imprisonment, it would make him forfeit his membership of the House which may result in two far-reaching repercussions. Firstly, strength of political party to which such convicted member may belong shall reduce and a government surviving on a razor-thin majority could be rendered even more unstable which can make a significant impact on functioning of the Government. Secondly, if the appellate court were to set aside the conviction, the by-election already held to fill the vacancy would be fraught with legal complications. It is due to the aforesaid two reasons, Parliament has put sitting members on a different footing.
  • In general practice, acquittals in the levels of Appellate Court are very high and because of this reason, parliament has provided three months time for filing an appeal or revision in section 8 (4) of the Act so that disqualification gets deferred till the appeal or revision is decided by the Appellate or the Revisional Court.
  • It was further submitted that section 8 (4)of the RP Act, does not lay down different disqualifications for members different from the disqualification laid down for persons to be chosen members in Sub-sections (1), (2) and (3) of section 8 of the Act. Section 8 (4) merely provides that disqualifications provided in Subsections (1), (2) and (3) of section 8 in case of sitting members takes place only when appeal or revisions is disposed of. The Parliament has such power under Article 102 (1) (e) and 191 (1) (e) of the Constitution to prescribe when exactly the disqualification would become effective in the case of sitting members with a view to protect the House.
  • Finally it was submitted that Appellate Court does not have power under section 389 (1), Code of Criminal Procedure to stay the order of conviction; therefore a safeguard had to be provided under section 8(4) of the Act.


The Hon'ble Court after going through the arguments put forward by both the parties held that once a sitting member becomes disqualified by or under any law made by Parliament under Articles 102 (1) (e) and 191 (1) (e) of the Constitution, his seat will become vacant immediately by virtue of Articles 101 (3) (a) and 190 (3) (a) of the Constitution. It further held that the Parliament cannot make a provision as in section 8(4) of the Act to defer the date of disqualification on which the disqualification of a sitting member will have effect.

Further, the court relied on the Constitutional Bench's decision in Election Commission of India v. Saka Venkata Rao4, wherein it was held that there has to be same set of disqualification for election as well as for continuing as member. Thus, Parliament does not have power to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified to continue as member as it made by creating section 8 (4) of the Act.

For aforesaid two reasons, the Hon'ble Supreme Court held that, Parliament has exceeded its power conferred by the Constitution in enacting Sub-section (4) of section 8 of the Act and accordingly it is ultra vires the Constitution.

However the Hon'ble Court further held that this judgement of the court will be prospective in nature. Sitting members who have already been convicted under section (1), (2) and (3) of section 8 of the Act and have filed appeals or revisions in higher courts before the pronouncement of this judgment, would not come under the purview of this declaration since it will be against the principles of natural justice.


There is no doubt that such verdict will help in reducing the scourge of criminalization of politics but it also leaves open a number of loopholes for dubious politicians. Given the present state of the judicial system, conviction by a trial court is often set aside by a higher court on appeal. If a member is disqualified in some case and gets an acquittal later by a higher court, there will be no scope for redressal. Hence, it can lead to filing of fraudulent cases particularly when election would be round the corner.

This judgment will not impact lawmakers who are facing charges but have not been convicted. And going by the conviction rate of Indian courts, they have little to worry about in the near future. Immediate disqualification of convicted elected representatives may lead to politically susceptible government. Not long ago, a government lost power at the Centre by just one vote.

However, the real significance of this ruling would be that it will act as a deterrent for political parties which have been giving tickets to tainted candidates. This verdict would also bring in equality between an ordinary individual and elected member who so far enjoyed an additional layer of protection from disqualification under section 8(4) of the Act.There is clearly no love lost between the Supreme Court and politicians. In today's time where scams like 2G, Coalgate, and the very recent Railway scam, have hurt the current government immensely. It is the same sceario with opposition parties, which in their ruling states are culprits of the same kind of scandals and corruption. The very essence of democracy that politicians of yesteryears, like Gandhi, Nehru and Patel stood for to serve the country's people and provide them clean, healthy and corrupt-free governance, has long been relegated to the trashcan. Under these circumstances, in the current state, this landmark ruling is more like a judicial revolution rather than being mere tokenism.


1 The survey dated 10th July 2013 was conducted by The Association of Democratic Reforms (ADR) and National Election Watch (NEW) available at

2 Lily Thomas v. Union of India, MANU/SC/0687/2013, Para 6.

3 AIR 2005 SC 688.

4 AIR 1953 SC 210.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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