LILY THOMAS versus UNION OF INDIA & ORS.

Citation: [2013] 10 S.C.R. 1130 · Decided: 10-07-2013 · Supreme Court of India · Bench: A.K. PATNAIK · Disposal: Case Allowed

Cited by 5 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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B 
[2013] 10 S.C.R. 1130 
LILY THOMAS 
v. 
UNION OF INDIA & ORS. 
(Writ Petition (Civil) No. 490 of 2005) 
JULY 10, 2013 
[A.K. PATNAIK AND SUDHANSU JYOTI 
MUKHOPADHAYA, JJ.] 
Representation of the People Act, 1951 - s.8(4) - Vires 
c of - Challenge to - Legislative power of the Parliament to enact 
s.8(4) - Held: The Parliament exceeded its powers confeffed 
by the Constitution in enacting sub-section (4) of s.8 and 
accordingly sub-section (4) of s.8 is ultra vires the Constitution 
- Sub-section (4) of s.8 which carves out a saving in the case 
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of sitting members of Parliament or State Legislature from the 
disqualifications under sub-sections (1 ), (2) and (3) of s. 8 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 confeffed on Parliament by 
E the Constitution - Sitting members of Parliament and State 
Legislature who have already been convicted for any of the 
offences mentioned in sub-section (1), (2) and (3) of s.8 and 
who have filed appeals or revisions which are pending and 
are accordingly saved from the disqualifications by virtue of 
F sub-section (4) of s.8 not to be affected by the declaration now 
made in this judgment - However, if any sitting member of 
Parliament or a State Legislature is convicted of any of the 
offences mentioned in sub-sections (1), (2) and (3) of s.8 and 
by virtue of such conviction and/or sentence suffers the 
disqualifications mentioned in sub-sections (1), (2) and (3) of 
G s. 8 after the pronouncement of this judgment, his membership 
of Parliament or the State Legislature, as the case may be, 
will not be saved by sub-section (4) of s.8 which is now 
declared as ultra vires the Constitution notwithstanding that 
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LILY THOMAS v. UNION OF INDIA & ORS. 
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he files the appeal or revision against the conviction and /or A 
sentence - Constitution of India, 1950 - Arts. 101 (3)(a), 
102(1)(e), 190(3)(a) and 191(1)(e). 
In exercise of power conferred under Article 102(1)(e) 
and under Article 191(1)(e) of the Constitution, the 
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Parliament has provided in the Representation of the . 
People Act, 1951, the disqualifications for membership of 
Parliament and State Legislatures. Sub-sections (1 ), (2) 
and (3) of Section 8 of the Act provide that a person 
convicted of an offence mentioned in any of these sub-
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sections shall stand disqualified from the date of 
conviction and the disqualification was to continue for 
the specific period mentioned in the sub-section. 
However, sub-section (4) of Section 8 of the Act 
provides that !10twithstanding anything in sub-section (1 ), 
sub-section (2) or sub-section (3) in Section 8 of the Act, 
a disqualification under either subsection shall not, in the 
case of a person who on the date of the conviction is a 
member of Parliament or the Legislature of a State, take 
effect until three months have elapsed from that date or, 
if within that period an appeal or application for revision 
is brought in respect of the conviction or the sentence, 
until that appeal or application is disposed of by the 
court. The saving or protection provided in sub-section 
(4) of Section 8 of the Representation of the People Act, 
1951 for a member of Parliament or the Legislature of a 
State was challenged in the present writ petitions as ultra 
vires the Constitution. 
Allowing the writ petitions, the Court 
HELD: 1. 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 
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SUPREME COURT REPORTS 
[2013] 10 S.C.R. 
A restricted. [Para 14] [1153-D] 
Kesavananda Bharti v. State of Kera/a AIR 1973 SC 
1465 - relied on. 
K. Prabhakaran v. P. Jayarajan etc. (2005) 1 SCC 754: 
B 2005 (1) SCR 296 - referred to. 
The Empress v. Burah and Another (1878) 5 I.A. 178 -
referred to. 
C 
Shri Manni Lal v. Shri Parma/ Lal and Others (1970) 2 
SCC 462: 1971 (1) SCR 798; B.R. Kapur v. State of T.N. and 
Another (2001) 7 SCC 231: 20<11 (3) Suppl. SCR 191; 
Navjot Singh Sidhu v. State of Punjab and Another (2007) 2 
sec 574: 2001 (1) SCR 1143 - cited. 
D 
Constitutional, Law of India, by H.M. Seervai, Fourth 
Edition, Vol. I, para 2.4 at page 174 - referred to. 
2. The legislative power of Parliament to enact any 
law r

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