I.

INTRODUCTION

The Supreme Court through its recent judgment in Lily Thomas v. Union of India1 has held that chargesheeted Members of Parliaments (hereinafter MP), Members of Legislative Assemblies (MLA) and Members of Legislative Councils (hereinafter MLC) on being convicted of offences must be immediately disqualified from holding membership of their respective House. In holding Section 8(4)2 of the Representative of Peoples Act( hereinafter RPA) unconstitutional, the Court asserted that Articles 1023 and 1904 of the Constitution did not empower the Parliament to discriminate between sitting legislators and other citizens. This ruling comes against the backdrop of mounting public upheaval against criminalization of politics in India which has been accentuated by increasing calls for the recognition of the right to reject and recall elected representatives. With over 30 % of the MPs in both the houses of the Parliament having serious criminal cases against them and the number increasing manifold since the last election5, constant efforts were being made by the anti-corruption activists to cleanse the politics of the country. Taking cognizance of the situation through public interest litigation, the apex court, swayed by the general perception, came out with a populist ruling which struck immediate chord with the activists and the self-styled conscientious media who hailed it as a stepping stone towards cleansing Indian politics of its vices. However, the judgment did not receive unanimous support from the populace, with many meticulous observers pointing out that this populist approach of the court was clearly a classic case of judicial overreach, as it was not supported by sound legal reasoning. In fact such obnoxious was the reasoning of the court and such obstinate its stance in not permitting a review petition, that the government was left with no other alternative but to negate the judgment through an ordinance.

1 2

Writ Petition (Civil) No. 490 Of 2005 See 8(4) of the Representative of Peoples Act 1951. 3 See Art. 102 of the Constitution of India 1950. 4 See Art. 190 of the Constitution of India 1950. 5 Association for Democratic Reforns, Lok Sabha 2009:Election Watch, available at http://adrindia.org/researchand-reports/lok-sabha/2009/pdf-full-book-lok-sabha-2009-election-watch-compedium-state-election-watch-reports, last visited on September 29, 2013

The authors essentially agree with the opinions of these legal luminaries and take issue with the approach adopted by the court in this particular case. While considering the constitutionality of Section 8(4) of the RPA, the authors believe, it was the duty of the division bench to consider the previous rulings of the court. These decisions had clearly stated that striking down of a statute was a grave step and one which should be resorted to if no other way existed.6 However in this case, since this basic presumption of constitutionality of a statute was ignored by the Court, its assessment of the situation was bound to falter.

The authors vide this paper, thus seek to highlight the fact that though the Court came out with a ruling whose ends were unquestionably noble, its means of doing so were most certainly not. For the purpose of discussion, the paper will be essentially divided into three sections. In section I the authors would first examine the various reactions to the judgment including the sharp criticisms which have branded it as a case of judicial overreach. In section II, the authors will seek to analyze the judgment in light of established principles of constitutional law and showcase how all of them have been willfully ignored by the court in this case. Later on in Section III the authors would then seek to highlight the fact that such a populist approach of the court does more than harm than good as it directly strikes at the very core of separation of powers. It would ultimately be concluded that contrary to general perception, the judgment, no matter what it seeks to achieve is based on an erroneous interpretation of the law.

II.

INSIGHTS INTO THE CRITICISMS

The courts populist stance which although has been described by many as manna from heaven on the parched earth of electoral reforms7 has failed to stand up to the scrutiny of many legal observers. At the very outset, it has been argued that the apex court clearly violated the procedure laid down in Article 145(3)8 of the Constitution, when it went into the question of constitutionality of section 8(4) of the RPA. This article mandates that, in order to decide any case involving a substantial question of law, as to the interpretation of the Constitution, the
6 7

Government of Andhra Pradesh v. P. Laxmi Devi, AIR 2008 SC 1640 N Gopalswami, Of Politicians and Verdicts, The Hindu (September 28, 2013) 8 See Art. 145(3) of the Constitution of India 1950.

minimum number of judges who are to sit on the bench shall be five. In the present case, since the constitutionality of section 8 (4) was directly reliant on the interpretation of Articles 102 and 190 of the Constitution, the division bench ought to have referred the matter to a constitutional bench. Its act of not doing so has given air to the view that the judges had already decided in favor of the petitioners without going into the merits of the contentions.

Furthermore, it was asserted that since the purpose of enacting a special provision for sitting legislatures was already considered by a constitutional bench in K Prabhakaran v P Jayarajan9, legal propriety demanded that the question be heard by atleast a bench of equal strength. 10 Moreover the court had in this case in fact, commended the enactment of section 8 (4) of the RPA. This was because in cases of the government surviving on a razor thin majority, the section assisted in ensuring the smooth functioning of the house and further prevented the deleterious effect of disqualification of a member on the functioning of the government. It was thus contended, that the reasoning of a constitutional bench could not have been easily ignored by the division bench.11 The ruling has further received intense criticism as the court has according to many scholars12, strayed into legislative domain in the present instance. It has been argued that the division bench in declaring section 8(4) constitutional has in fact attempted to make a law, which is the sole prerogative of the elected legislators.13 This is because; the court in this case willfully ignored the established principle of constitutionality of a statute and therefore excused itself from analyzing the situation properly. In doing so, the court essentially acted with a pre conceived intention of striking down section 8(4) and replacing it with its own dictum, thereby venturing into legislative terrain.

Other than its glaring legal errors, the judgment was also faulted for its apparent lack of pragmatism. Rightly so, as it left the convicted legislature without any remedy in cases where his or her conviction had been overturned but the seat had already been occupied because of a by
9

(2005) 1 SCC 754. Ajit Prakash Shah,& Arghya Sengupta, To Cleanse Politics, a new Pact, The Indian Express (August 12, 2013) 11 K. N Bhat, A cure worse than the disease, The Asian Age (July 26, 2013) 12 Markandey Katju, Keeping the Status Quo, The Indian Express (July 24, 2013) 13 Id.
10

election. The division bench in its ruling had shown utter disregard for this argument and sought to negate it by saying that the convicted legislature always has an option to get a stay on conviction itself. With, due respect, this approach of the court appears to be in absolute

ignorance of the slow judicial process of the country. Moreover a stay on a conviction, as established by law can only be granted in the rarest of rare cases 14 and not in every instance in which the court can exercise it. Therefore we can see that contrary to general belief, the ruling has indeed created a lot of ripples because of its apparent lack of legal reasoning and expediency.

III. EXAMINING THE DISPARAGEMENTS

The criticisms mentioned in previous section are at best only rudimentary and therefore for a more holistic and constructive condemnation of the ruling, it becomes pertinent to examine it in light of well-established rules of constitutional law. Such an examination would essentially show that the court has indeed erred in multiple aspects. Firstly, it has interpreted Articles 102 and 190 in a way which is logically inconsistent. Secondly it has ignored some of the basic principles of constitutional interpretation which call for a liberal construction of the fundamental law. Thirdly it has discarded the well settled principle of presumption of constitutionality of a statute in striking down section 8(4) of the RPA. Lastly, it has clearly overstretched its arms in ruling that the power to legislate on disqualification of members cannot be found in the legislative entries of Schedule VII of the Constitution.

A. A LOGICALLY INCONSISTENT CONSTRUCTION OF ARTICLES 102 AND 190

The main reasoning of the court for striking down of section 8(4) of the RPA was that Articles 102 and 190 which deal with disqualification of members from the Parliament and state assemblies do no permit separate conditions of disqualifications for sitting legislatures and other citizens.15 To substantiate its claim, the court went into the language of these articles and held that since it was explicitly provided that person shall be disqualified for being chosen as, and for being, a member of either House of Parliament the Parliament could not lay down different

14 15

Navjot Singh Sidhu v State of Punjab and Anr. AIR 2007 SC 1003 See, Lily Thomas v. Union of India, Writ Petition (Civil) No. 490 Of 2005

laws for these two categories. Thus it could not defer the disqualification of sitting legislatures under section 8 (4) of the RPA.

With due respect, this reasoning of the court appears to be logically inconsistent. This is because it has erroneously construed the word and to be connoting that the law has to be the same of both the sitting members and others. The provision clearly states that: A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament if he is so disqualified by or under any law made by Parliament One can logically deduce from the above provision that both the sitting members and the other citizens will be disqualified from being members of the house if they are disqualified under any law made by the Parliament. This requirement of being disqualified under any law of the Parliament is a condition which applies to both categories; however how it applies to them can be different.
16

The use of the word and only connotes that the same condition or the same law

has to apply to both the sitting members and others but it does not necessitate that it has to apply identically to both the cases.17 A similar example would be that a restaurant policy stipulates that the servant shall purchase salt and pepper as sought by chef of the restaurant from the supermarket. Now in this case the precondition for purchasing salt or pepper is the same i.e. it has to be sought by the chef, but how it applies could be different in both the cases because sometimes the chef may only need salt but not pepper. No logical construction of the sentence can mean that every time salt is bought, pepper too has to be bought. Similarly the expression if he is so disqualified by or under any law may well apply differently depending on what conditions the Parliament has laid down for each category because nothing prevents it from applying requirements to one and not the other.
18

Therefore, the courts construction of these Articles becomes logically inconsistent, thereby

undermining its decision at the very outset.

16

Dilip Rao, Reading Lily Thomas and Jan Chaukidar Together: Logically a Strange & Dangerous Result? available at http://lawandotherthings.blogspot.in/2013/08/reading-lily-thomas-and-jan-chankidar.html, last visited on September 29, 2013. 17 Id. 18 Id.

B. IGNORING THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION

In addition to construing the provision in a logically incoherent way, the court in striking down section 8(4) of the RPA has also ignored well settled principles of constitutional interpretation which call for a liberal construction of the Constitution in accordance with the intention of its makers. It has been a fundamental rule of interpretation of all enactments, that they should be construed according to the intent of the Parliament which passed the law.19 In the respect of a Constitution, this would be the intention of the constituent assembly which framed it. Therefore, in construing a constitutional provision the court can and should rely on the debates of the constituent assembly in order to better understand the contextual background and objectives behind it.20 Furthermore, such approach becomes particularly imperative in constitutional matters due to the organic nature of the Constitution itself.
21

This is because interpretation of a statue

affects only a limited number of people, but the interpretation of a constitution and declaring a statute constitutional or unconstitutional, affects the entire governmental functioning, policy making and even the constitutional process in the country.22

Thus, given that in the present case the constitutionality of a pertinent provision in a statute was in question, it was the duty of the court to carefully examine the constituent assembly debates in this regard. However contrary to this, the court blindly accepted the argument of the petitioners that since in the constituent assembly debates, a motion to insert a provision similar to section 8(4) of the RPA was moved and rejected by the assembly, it could be concluded that such an intention to provide for different disqualification criteria between sitting members and others was not present.23 With due respect, the authors assert, that had the court actually bothered to go through these debates, its findings on the matter would have been entirely reverse.

In the concerned constituent assembly debate, an amendment number 1590 was moved by Prof. Shibban Lal Saksena for the insertion of certain clauses in draft article 83 of the Draft Constitution which mirrors Article 102 of the present one. The said clauses being identical to the
19 20

DD BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 209(2011) Id. 21 Id. 22 Samraditya Pal & Ruma Pal, M.P. Jain: Indian Constitutional Law (2010) 23 See, Lily Thomas v. Union of India, Writ Petition (Civil) No. 490 Of 2005

section 8(4) of the RPA stipulated that if a convicted legislature preferred an appeal against his conviction, his disqualification would be deferred till the said appeal was decided by a competent court. Prof. Saksena clearly mentioned that his intention behind providing such a provision in the Constitution itself was that the Parliament should not be given power to lay down conditions which would disqualify men from being candidates.24 This was because he believed that the provision would be open to abuse by any party which wanted its opponents to be disqualified and therefore such a provision should only rest in the Constitution.
25

The amendment was however

rejected by the Constituent Assembly including Dr. Ambedkar because it believed that such a power should ideally rest in the Parliament and not in the Constitution. In his address to the assembly in this regard Dr. Deshmukh explicitly stated that if such powers were not given to the Parliament, its hands would be tired, thereby impairing its functionality seriously. 26

It becomes clear from a plain reading of these debates that the reason for the rejection of the amendment moved by Dr. Saksena was not because the constituent makers opined that the Parliament did not have such power but because they believed that such a power should in fact exclusively rest with it. Therefore, it becomes highly interesting that the court arrived at a conclusion which was exactly contrary to the intention of the constituent makers. It appears to the authors that the only reason behind such an interpretation could be that the division bench never bothered to examine these debates and accepted the contention of the petitioners on its face value. Such an act of the court is highly condemnable and clearly substantiates the view that the bench has given in to the excessive pressure of the media and anti-corruption groups and has therefore come out with a populist verdict.

C. THE PRESUMPTION OF CONSTITUTIONALITY

The presumption of constitutionality of a statute has been defined by many constitutional authors as the most important of the self-imposed limits upon the power of judicial review in India.27 However in the instant case, this principle too was ignored by the division bench in striking
24 25

Consitutent assembly debates Id. 26 Id. 27 DD Basu, see supra note 19.

down section 8(4) of the RPA. The primary reason behind this being that the court at the very outset failed to consider both the logical construction of the relevant provisions and the intent behind their enactment. In laying down the principle explicitly in Chiranjit Lal v Union of India28, the apex court had clearly stated that the presumption is always in favour of the constitutionality of an enactment, and the burden is upon him who attacks it to show that there has been a clear transgression of the constitutional principles.29 Furthermore, in Menon v Asstt. Controller30, the court added that when two constructions of the impugned statute are possible, the presumption of constitutionality is applied to give such interpretation to its terms, as will sustain the law, because the Legislature is presumed to enact a law which is consistent with the Constitution.31

The principle has involved over the years through such pronouncements of the apex court, most noticeably in State of Andhra Pradesh and Ors. v P Laxmi Devi32, where the court considered at great length the doctrine of judicial review of statutes. In para 36 of that ruling, the Court observed that invalidating an act of the legislature is a grave step and should never be lightly taken.33 It added that a court could declare a statute to be unconstitutional not merely because it is possible to hold this view, but only when that is the only possible view not open to rational question. Such assertions of the Court were based on the fact that there is a broad separation of powers in our Constitution between the three organs of state. If one organ encroaches on the others domain, the system cannot function. Declaring a statute to be unconstitutional is thwarting the will of a co-ordinate organ of the state, which should be done only if there is a clear violation of some constitutional provision.34 Furthermore, a court cannot go into the wisdom of a policy behind a statute, because this type of reform of the law is a function of the legislature and not of the judges.35 Even though, it falls to the judges to determine where the limits of the law making

28 29

1950 SCR 869 Id. 30 1971 AIR 2392 31 DD Basu, see supra note 19. 32 AIR 2008 SC 1640 33 Id. 34 Katju, see supra note 12. 35 DD Basu, see supra note 19 (751).

power lie, the basis of their decision cannot be whether the court thinks the law is for benefit of the people or not.36

Keeping the above considerations the mind the authors find it difficult to understand how Section 8(4) of the RPA could be held unconstitutional. With the intention of the constitution makers staring at the bench in the form of the constituent assembly debates, there was clearly a possible view which would have sustained the law. However as the Court decided not to examine these relevant materials, it was bound to adopt the only view in front of it, which was in all probability erroneous. Furthermore, the Court also appeared to venture into the wisdom of the policy behind such a provision in the RPA, something which was not its remit.

D. IGNORING THE WELL LAID PRINCIPLE OF GIVING WIDE AMPLITUDE TO LEGISLATIVE ENTRIES

In striking down section 8(4) of the RPA as unconstitutional, the division bench had basically asserted that the Parliament did not have competence to legislate on this matter. 37 Furthermore, it did not even accept the argument of the respondents that such a power could be found under Articles 24638 and 24839 of the Constitution. With particular reference to the residuary power of the Union under Article 248, the Court had asserted that since the matter had already been covered under Articles 103 and 190 of the constitution, it could not be brought under the head of residuary power. The authors find the above reasoning of the Court very difficult to accept, especially in light of the settled law of on this point. In the landmark case of Union of India v H.S. Dhillon40 the apex court at length considered the scope of residuary powers under Article 248. After a deep analysis of the provision it had asserted that there was nothing which stopped the Parliament from exercising its legislative power by relying on one or more entries in a list or one or more articles in the Constitution.41 It therefore becomes clear that the division bench in the present instance
36 37

DD Basu, see supra note 19 (752). See, Lily Thomas v. Union of India, Writ Petition (Civil) No. 490 Of 2005 38 See Art. 246 of the Constitution of India 1950. 39 See Art. 248 of the Constitution of India 1950. 40 AIR 1972 SC 1061 41 V.N. SHUKLA, CONSTITUTION OF INDIA 131 (M.P.Singh ed., 2008).

clearly erred on this point when it held that since the matter had already been covered under Articles 103 and 190 of the Constitution, it could not be brought under the purview of Article 248.

In addition to this, the reasoning of the court is also flawed because Entry 72 in list I of Schedule VII42 specifically allows Parliament to legislate on elections to Parliament or the State legislatures. The Court through a catena of decisions has held that entries in the legislative lists have to be widely construed.43 In this sense, since the constitutional provisions are entitled to a liberal and generous interpretation and not to a strict construction44, the power to legislate on a topic of legislation carries with it the power to legislate on an ancillary matter also.45 Thus for instance, the power to levy a tax would also include the power to enact provisions to check evasion of tax.46 Similarly, the power to legislate on elections to the Parliament or the state legislatures would easily encompass the power to lay down disqualification criteria for the members of these houses. Therefore, the Courts reasoning that legislative competence to provide for different criterias for elected members and other citizens is not vested in the Parliament, appears to be in conflict with this settled position of law also.

IV. CONCLUSION
From the above analysis, it is clear that the judgment in its current form is not legally tenable. Though the court may have reached the right decision in striking down section 8(4) of the RPA, its means of doing so are not based on sound reasoning and therefore jeopardize its entire attempt of undertaking a noble exercise. The authors believe that such an outcome transpired because of the underlining influence of media and growing public upheaval against criminalization of politics.

However, the highest court of the land was not expected to get swayed by such popular perception and give out a verdict which could not be supported either logically or legally. It is
42 43

See Art. Entry 72 in List 1 of Schedule VII of the Constitution of India 1950. The Calcutta Gas Company v The State Of West Bengal And Others 1962 AIR 1044. 44 DD Basu, see supra note 19 (8655). 45 Shukla, see supra note 41 46 Commissioner of Commercial tax v RS Jhavar, 1968 SCR (1) 148

the mandate of a court to interpret the law without getting influenced by external considerations. In fact, the judicial oath obligates the judges to put matters of opinion to one side when deciding the cases before them. That obligation equally applies to opinions they have seen expressed in and by the media, not merely because such matters are legally irrelevant, but because they are almost invariably based on an incomplete and inadequate knowledge of the facts.47

The division bench, though in this case, clearly influenced by public perceptions, has essentially misinterpreted the provisions of the constitution, ignored the intention of the constituent makers and disregarded established principles of constitutional law. The authors believe that this act of populism does more harm than good as instead of interpreting the law in accordance with the intent of the legislature or as in this case, the framers of the constitution, the judiciary has formed a conclusion at the outset and twisted legal provisions and constituent assembly debates to support the popular view.

In going forward with such populist measures, the Court has in fact ventured into legislative terrain and violated the principle of separation of powers which forms the part of the basic structure of the constitution48 and is said to be the conscience of the Constitution.49 The authors assert that the significance of this principle cannot be overstressed as its violation directly strikes at the very core of a democratic setup.50 Montesquieu is his classic work Spirit of Laws had clearly warned against the violation of this principle as he was of the belief that where the power of judging was joined with the legislative power, the life and liberty of the populace would be exposed to arbitrary control and the subvert the fundamental principle of a free constitution.51 The Indian courts too have adopted such an approach with Bhagwati J explicitly saying that the encroachment of one organ on the domain of the other essentially destroys the fundamental premise of a democratic government to which all citizens of India are pledged. 52

47

Sir Mark Potter, Courts and the Making of Public Policy Do the Media Influence the Judiciary? Available at http://www.fljs.org/sites/www.fljs.org/files/publications/Potter_PB.pdf, last visited on September 28, 2013 48 See, Minerva mills v Union of India AIR 1980 SC 1789 49 See, Union of India v Sankal Chand, AIR 1982 SC 149 50 Mukherjee in Delhi Law Acts Case 51 DD Basu, see supra note 19 (4719). 52 See, Minerva mills v Union of India AIR 1980 SC 1789

Of late, due to the growing judicial activism in the country, the apex court has in fact tried to warn the judges against going overboard. A bench of Justice Katiu and A.K Mathur has in fact very rightly said that, continuous judicial overreach would ultimately have a deleterious effect on society because, there is bound to be a reaction from the political setup.
53

The veracity of this

observation can in fact be seen in the aftermath of the present case. As a response to the Courts decision, the central government has promulgated an ordinance to specifically negate the ruling of the court. The authors assert that though the reason behind such promulgation might be political, it was the courts obstinate attitude in not reviewing its decision and referring it to a constitutional bench, which forced such a reaction from the executive. It needs to be

remembered that no matter what the circumstances demand and how intense the pressure from the populace gets, the Court has to ensure that it not only comes at the right decisions but also that it does so through the right means. This is because the amoral and cynical Machiavellian doctrine of the end justifying the means54 does not suit the judiciary and only undermines its credibility as it has happened in the instant case.

53 54

Divisional Manager , Aravali Golf v Chander Haas, (2008) 1 SCC 683 NICCOL MACHIAVELLI, THE PRINCE (1532)