REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 490 OF 2005
Lily Thomas …
Petitioner
Versus
Union of India & Ors. … Respondents
WITH
WRIT PETITION (CIVIL) NO. 231 OF 2005
Lok Prahari, through its General Secretary
S.N. Shukla … Petitioner
Versus
Union of India & Ors. … Respondents
Judgement
A. K. PATNAIK, J.
These two writ petitions have been filed as Public Interest Litigations
for mainly declaring sub-section (4) of Section 8 of the Representation of
the People Act, 1951 as ultra vires the Constitution.
The background facts
2. The background facts relevant for appreciating the challenge to sub-
section (4) of Section 8 of the Act are that the Constituent Assembly while
drafting the Constitution intended to lay down some disqualifications for
persons being chosen as, and for being, a member of either House of
Parliament as well as a member of the Legislative Assembly or Legislative
Council of the State. Accordingly, in the Constitution which was finally
adopted by the Constituent Assembly, Article 102(1) laid down the
disqualifications for membership of either House of Parliament and Article
191(1) laid down the disqualifications for membership of the Legislative
Assembly or Legislative Council of the State. These two Articles are
extracted hereinbelow:
102. Disqualifications for membership. –(1) A person shall be
disqualified for being chosen as, and for being, a member of
either House of Parliament—
(a) if he holds any office of profit under the Government of
India or the Government of any State, other than an office
declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by
Parliament.
191. Disqualifications for membership. – (1) A person shall be
disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State—
(a) if he holds any office of profit under the Government of
India or the Government of any State specified in the First
Schedule, other than an office declared by the Legislature of
the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a
competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by
Parliament.
[Explanation.—For the purposes of this clause], a person shall
not be deemed to hold an office of profit under the Government
of India or the Government of any State specified in the First
Schedule by reason only that he is a Minister either for the
Union or for such State.
A reading of the aforesaid constitutional provisions will show that besides
the disqualifications laid down in clauses (a), (b), (c) and (d),
Parliament could lay down by law other disqualifications for membership of
either House of Parliament or of Legislative Assembly or Legislative
Council of the State. In exercise of this power conferred under Article
102(1)(e) and under Article 191(1)(e) of the Constitution, Parliament
provided in Chapter-III of the Representation of the People Act, 1951 (for
short 'the Act'), the disqualifications for membership of Parliament and
State Legislatures. Sections 7 and 8 in Chapter-III of the Act, with which
we are concerned in these writ petitions, are extracted hereinbelow:
7. Definitions.—In this Chapter,—
(a) "appropriate Government" means in relation to any
disqualification for being chosen as or for being a member of
either House of Parliament, the Central Government, and in
relation to any disqualification for being chosen as or for
being a member of the Legislative Assembly or Legislative
Council of a State, the State Government;
(b) "disqualified" means disqualified for being chosen as, and
for being, a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State.
8. Disqualification on conviction for certain offences.— (1) A
person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between different
groups on ground of religion, race, place of birth, residence,
language, etc., and doing acts prejudicial to maintenance of
harmony) or section 171E (offence of bribery) or section 171F
(offence of undue influence or personation at an election) or
sub-section (1) or sub-section (2) of section 376 or section
376A or section 376B or section 376C or section 376D (offences
relating to rape) or section 498A (offence of cruelty towards a
woman by husband or relative of a husband) or sub-section (2) or
sub-section (3) of section 505 (offence of making statement
creating or promoting enmity, hatred or ill-will between classes
or offence relating to such statement in any place of worship or
in any assembly engaged in the performance of religious worship
or religious ceremonies) of the Indian Penal Code (45 of 1860);
or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which
provides for punishment for the preaching and practice of
"untouchability", and for the enforcement of any disability
arising therefrom; or
(c) section 11 (offence of importing or exporting prohibited
goods) of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an
association declared unlawful, offence relating to dealing with
funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified place)
of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967);
or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61
of 1985); or
(g) section 3 (offence of committing terrorist acts) or section
4 (offence of committing disruptive activities) of the Terrorist
and Disruptive Activities (Prevention) Act, 1987 (28 of 1987);
or
(h) section 7 (offence of contravention of the provisions of
sections 3 to 6) of the Religious Institutions (Prevention of
Misuse) Act, 1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between classes in
connection with the election) or section 135 (offence of removal
of ballot papers from polling stations) or section 135A (offence
of booth capturing) of clause (a) of sub-section (2) of section
136 (offence of fraudulently defacing or fraudulently destroying
any nomination paper) of this Act; [or]
[(j) section 6 (offence of conversion of a place of worship) of
the Places of Worship (Special Provisions) Act, 1991], [or]
[(k) section 2 (offence of insulting the Indian National Flag or
the Constitution of India) or section 3 (offence of preventing
singing of National Anthem) of the Prevention of Insults to
National Honour Act, 1971 (69 of 1971), [or]
[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988);
or]
[(m) the Prevention of Corruption Act, 1988 (49 of 1988); or]
[(n) the Prevention of Terrorism Act, 2002 (15 of 2002),]
[shall be disqualified, where the convicted person is sentenced
to—
(i) only fine, for a period of six years from the date of such
conviction;
(ii) imprisonment, from the date of such conviction and shall
continue to be disqualified for a further period of six years
since his release.]
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or
profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of
1961); and sentenced to imprisonment for not less than six
months, shall be disqualified from the date of such conviction
and shall continue to be disqualified for a further period of
six years since his release.]
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any offence
referred to in sub-section (1) or sub-section (2)] shall be
disqualified from the date of such conviction and shall continue
to be disqualified for a further period of six years since his
release.]
[(4)] Notwithstanding anything [in sub-section (1), sub-section
(2) or sub-section (3)] 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.
Explanation. —In this section, —
(a) "law providing for the prevention of hoarding or
profiteering" means any law, or any order, rule or notification
having the force of law, providing for—
I) the regulation of production or manufacture of any
essential commodity;
II) the control of price at which any essential commodity may
be bought or sold;
III) the regulation of acquisition, possession, storage,
transport, distribution, disposal, use or consumption of
any essential commodity;
IV) the prohibition of the withholding from sale of any
essential commodity ordinarily kept for sale;
(b) "drug" has the meaning assigned to it in the Durgs and
Cosmetics Act, 1940 (23 of 1940);
(c) "essential commodity" has the meaning assigned to it in the
Essential Commodity Act, 1955 (10 of 1955);
(d) "food" has the meaning assigned to it in the Prevention of
Food Adulteration Act, 1954 (37 of 1954).
3. Clause (b) of Section 7 of the Act quoted above defines the word
"disqualified" to mean disqualified for being chosen as, and for being, a
member of either House of Parliament or of the Legislative Assembly or of
Legislative Council of State. 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-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 notwithstanding 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. It is this saving or protection provided in sub-section (4)
of Section 8 of the Act for a member of Parliament or the Legislature of a
State which is challenged in these writ petitions as ultra vires the
Constitution.
Contentions on behalf of the Petitioners
4. Mr. Fali S. Nariman, learned Senior Counsel appearing for the
petitioner in Writ Petition No. 490 of 2005 and Mr. S.N. Shukla, the
General Secretary of the Petitioner in Writ Petition No. 231 of 2005,
submitted that the opening words of clause (1) of Articles 102 and 191 of
the Constitution make it clear that the same disqualifications are provided
for a person being chosen as a member of either House of Parliament, or the
State Assembly or Legislative Council of the State and for a person being a
member of either House of Parliament or of the Legislative Assembly or
Legislative Council of a State and therefore the disqualifications for a
person to be elected as a member of either House of the Parliament or of
the Legislative Assembly or Legislative Council of the State and for a
person to continue as a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of the State cannot be
different. In support of this submission, Mr. Nariman cited a Constitution
Bench judgment of this Court 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. Mr. Nariman and Mr. Shukla submitted that sub-section (4) of
Section 8 of the Act, insofar as it provides that the disqualification
under sub-sections (1), (2) and (3) of Section 8 for being elected as a
member of either House of Parliament or the Legislative Assembly or
Legislative Council of State shall not take effect in the case of a person
who is already a member of Parliament or Legislature of a State on the date
of the conviction if he files an appeal or a revision in respect of the
conviction or the sentence within three months till the appeal or revision
is disposed of by the Court, is in contravention of the provisions of
clause (1) of Articles 102 and 191 of the Constitution.
5. Mr. Shukla referred to the debates of the Constituent Assembly on
Article 83 of the Draft Constitution, which corresponds to Article 102 of
the Constitution. In these debates, Mr. Shibban Lal Saksena, a member of
the Constituent Assembly moved an Amendment No. 1590 on 19.05.1949 to
provide that when a person who, by virtue of conviction becomes
disqualified and is on the date of disqualification a member of Parliament,
his seat shall, notwithstanding anything in this Article, not become vacant
by reason of the disqualification until three months have elapsed from the
date thereof or, if within those three months an appeal or petition for
revision is brought in respect of the conviction or the sentence, until
that appeal or petition is disposed of, but during any period during which
his membership is preserved by this provision, he shall not sit or vote.
Mr. Shukla submitted that this amendment to Article 83 of the Draft
Constitution was not adopted in the Constituent Assembly. Instead, in sub-
clause (e) of clause (1) of Articles 102 and 191 of the Constitution, it
was provided that Parliament may make a law providing disqualifications
besides those mentioned in sub-clauses (a), (b), (c) and (d) for a person
being chosen as, and for being, a member of either House of Parliament and
of the Legislative Assembly or Legislative Council of a State. Mr. Shukla
submitted that despite the fact that a provision similar to sub-section (4)
of Section 8 of the Act was not incorporated in the Constitution by the
Constituent Assembly, Parliament has enacted sub-section (4) of Section 8
of the Act.
6. According to Mr. Nariman and Mr. Shukla, in the absence of a
provision in Articles 102 and 191 of the Constitution conferring power on
Parliament to make a provision protecting sitting members of either House
of Parliament or the Legislative Assembly or the Legislative Council of a
State, from the disqualifications it lays down for a person being chosen as
a member of Parliament or a State Legislature, Parliament lacks legislative
powers to enact sub-section (4) of Section 8 of the Act and sub-section (4)
of Section 8 of the Act is therefore ultra vires the Constitution.
7. Mr. Nariman next submitted that the legal basis of sub-section (4) of
Section 8 of the Act is based on an earlier judicial view in the judgment
of a Division Bench of this Court in Shri Manni Lal v. Shri Parmal Lal and
Others [(1970) 2 SCC 462] that when a conviction is set aside by an
appellate order of acquittal, the acquittal takes effect retrospectively
and the conviction and the sentence are deemed to be set aside from the
date they are recorded. He submitted that in B.R. Kapur v. State of T.N.
and Another [(2001) 7 SCC 231] a Constitution Bench of this Court reversed
the aforesaid judicial view and held that conviction, and the sentence it
carries, operate against the accused in all their rigour until set aside in
appeal, and a disqualification that attaches to the conviction and sentence
applies as well. He submitted that this later view has been reiterated by
a Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc.
[(2005) 1 SCC 754]. Mr. Nariman argued that thus as soon as a person is
convicted of any of the offences mentioned in sub-sections (1), (2) and (3)
of Section 8 of the Act, he becomes disqualified from continuing as a
member of Parliament or of a State Legislature notwithstanding the fact
that he has filed an appeal or a revision against the conviction and there
is no legal basis for providing in sub-section (4) of Section 8 of the Act
that his disqualification will not take effect if he files an appeal or
revision within three months against the order of conviction. He submitted
that in case a sitting member of Parliament or State Legislature feels
aggrieved by the conviction and wants to continue as a member
notwithstanding the conviction, his remedy is to move the Appellate Court
for stay of the order of conviction. He cited the decision in Navjot Singh
Sidhu v. State of Punjab and Another ([2007) 2 SCC 574] in which this Court
has clarified that under sub-section (1) of Section 389 of the Code of
Criminal Procedure, 1973 power has been conferred on the Appellate Court
not only to suspend the execution of the sentence and to grant bail, but
also to suspend the operation of the order appealed against, which means
the order of conviction. He submitted that in appropriate cases, the
Appellate Court may stay the order of conviction of a sitting member of
Parliament or State Legislature and allow him to continue as a member
notwithstanding the conviction by the trial court, but a blanket provision
like sub-section (4) of Section 8 of the Act cannot be made to keep the
disqualification pursuant to conviction in abeyance till the appeal or
revision is decided by the Appellate or Revisional Court.
8. Mr. Nariman and Mr. Shukla submitted that in K. Prabhakaran v. P.
Jayarajan etc. (supra) the validity of sub-section (4) of Section 8 of the
Act was not under challenge and only a reference was made to the
Constitution Bench of this Court on certain questions which arose in civil
appeals against judgments delivered by the High Court in election cases
under the Act. They submitted that the Constitution Bench of this Court
framed three questions with regard to disqualification of a candidate under
Section 8 of the Act and while answering question no.3, the Constitution
Bench indicated reasons which seem to have persuaded Parliament to classify
sitting members of the House into a separate category and to provide in sub-
section (4) of Section 8 of the Act that if such sitting members file
appeal or revision against the conviction within three months, then the
disqualification on account of their conviction will not take effect until
the appeal or revision is decided by the appropriate court. They submitted
that the opinion expressed by the Constitution Bench of this Court in K.
Prabhakaran v. P. Jayarajan etc. (supra) regarding the purpose for which
Parliament classified sitting members of Parliament and State Legislatures
into a separate category and protected them from the disqualifications by
the saving provision in sub-section (4) of Section 8 of the Act are obiter
dicta and are not binding ratio on the issue of the validity of sub-section
(4) of Section 8 of the Act.
9. Mr. Nariman and Mr. Shukla submitted that sub-section (4) of Section
8 of the Act, in so far as it does not provide a rationale for making an
exception in the case of members of Parliament or a Legislature of a State
is arbitrary and discriminatory and is violative of Article 14 of the
Constitution. They submitted that persons to be elected as members of
Parliament or a State Legislature stand on the same footing as sitting
members of Parliament and State Legislatures so far as disqualifications
are concerned and sitting members of Parliament and State Legislatures
cannot enjoy the special privilege of continuing as members even though
they are convicted of the offences mentioned in sub-sections (1), (2) and
(3) of Section 8 of the Act.
Contentions of behalf of the respondents
10. Mr. Siddharth Luthra, learned ASG appearing for the Union of India in
Writ Petition (C) 231 of 2005, submitted that the validity of sub-section
(4) of Section 8 of the Act has been upheld by the Constitution Bench of
this Court in K. Prabhakaran v. P. Jayarajan etc. (supra). He submitted
that while answering question no.3, the Constitution Bench has held in
Prabhakaran's case that the purpose of carving out a saving in sub-section
(4) of Section 8 of the Act is not to confer an advantage on sitting
members of Parliament or of a State Legislature but to protect the House.
He submitted that in para 58 of the judgment the Constitution Bench has
explained that if a member of the House was debarred from sitting in the
House and participating in the proceedings, no sooner the conviction was
pronounced followed by sentence of imprisonment, entailing forfeiture of
his membership, then two consequences would follow: first, the strength of
membership of the House shall stand reduced, so also the strength of the
political party to which such convicted member may belong and the
Government in power may be surviving on a razor-edge thin majority where
each member counts significantly and disqualification of even one member
may have a deleterious effect on the functioning of the Government; second,
a bye-election shall have to be held which exercise may prove to be futile,
also resulting in complications in the event of the convicted member being
acquitted by a superior criminal court. Mr. Luthra submitted that for the
aforesaid two reasons, Parliament has classified the sitting members of
Parliament or a State Legislature in a separate category and provided in
sub-section (4) of Section 8 of the Act that if on the date of incurring
disqualification, a person is a member of Parliament or of a State
Legislature, such disqualification shall not take effect for a period of
three months from the date of such disqualification to enable the sitting
member to file appeal or revision challenging his conviction, and sentence
and if such an appeal or revision is filed, then applicability of the
disqualification shall stand deferred until such appeal or revision is
disposed of by the appropriate Court.
11. Mr. Luthra next submitted that the reality of the Indian judicial
system is that acquittals in the levels of the Appellate Court such as the
High Court are very high and it is for this reason that Parliament has
provided in sub-section (4) of Section 8 of the Act that disqualification
pursuant to conviction or sentence in the case of sitting members should
stand deferred till the appeal or revision is decided by the Appellate or
the Revisional Court. He submitted that the power to legislate on
disqualification of members of Parliament and the State Legislature
conferred on Parliament carries with it the incidental power to say when
the disqualification will take effect. He submitted that the source of
legislative power for enacting sub-section (4) of Section 8 of the Act is,
therefore, very much there in Articles 101(1)(e) and 191(1)(e) of the
Constitution and if not in these articles of the Constitution, in Article
246(1) read with Entry 97 of List I of the Seventh Schedule of the
Constitution and Article 248 of the Constitution, which confer powers on
Parliament to legislate on any matter not enumerated in List II and List
III of the Seventh Schedule of the Constitution.
12. Mr. Paras Kuhad, learned ASG, appearing for the Union of India in
Writ Petition (C) No.490 of 2005 also relied on the judgment of the
Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc.
(supra) on the validity of sub-section (4) of Section 8 of the Act and the
reasoning given in the answer to question no.3 in the aforesaid judgment of
this Court. He further submitted that sub-section (4) of Section 8 of the
Act does not lay down disqualifications for members of Parliament and the
State Legislatures different from the disqualifications laid down for
persons to be chosen as members of Parliament and the State Legislatures in
sub-sections (1), (2) and (3) of Section 8 of the Act. He submitted that
sub-section (4) of Section 8 of the Act merely provides that the very same
disqualifications laid down in sub-sections (1), (2) and (3) of Section 8
of the Act shall in the case of sitting members of Parliament and State
Legislatures take effect only after the appeal or revision is disposed of
by the Appellate or Revisional Court as the case may be if an appeal or
revision is filed against the conviction. He submitted that Parliament has
power under Article 102(1)(e) of the Constitution and Article 191(1)(e) of
the Constitution to prescribe when exactly the disqualification will become
effective in the case of sitting members of Parliament or the State
Legislature with a view to protect the House. He also referred to the
provisions of Articles 101(3)(a) and 190 (3)(a) of the Constitution to
argue that a member of Parliament or a State Legislature will vacate a seat
only when he becomes subject to any disqualification mentioned in clause
(1) of Article 102 or clause (1) of Article 191, as the case may be, and
this will happen only after a decision is taken by the President or the
Governor that the member has become disqualified in accordance with the
mechanism provided in Article 103 or Article 192 of the Constitution.
13. Mr. Kuhad further submitted that Mr. Nariman is not right in his
submission that the remedy of a sitting member who is convicted or
sentenced and gets disqualified under sub-sections (1), (2) or (3) of
Section 8 of the Act is to move the Appellate Court under Section 389
of the Code of Criminal Procedure for stay of his conviction. He
submitted that the Appellate Court does not have any power under
Section 389, Cr.P.C. to stay the disqualification which would take
effect from the date of conviction and therefore a safeguard had to be
provided in sub-section (4) of Section 8 of the Act that the
disqualification, despite the conviction or sentence, will not have
effect until the appeal or revision is decided by the Appellate or the
Revisional Court. He submitted that there is, therefore, a rationale
for enacting sub-section (4) of Section 8 of the Act.
Findings of the Court
14. 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). In The Empress v. Burah and Another [(1878)
5 I.A. 178] the Privy Council speaking through Selborne J. laid down the
following fundamental principles for interpretation of a written
constitution laying down the powers of the Indian Legislature:
"The Indian Legislature has powers expressly limited by the Act
of the Imperial Parliament which created it; and it can, of
course, do nothing beyond the limits which circumscribes these
powers. But, when acting within these limits, it is not in any
sense an agent or delegate of the Imperial Parliament, but has,
and was intended to have, plenary powers of legislation, as
large, and of the same nature, as those of Parliament itself.
The established Courts of Justice, when a question arises whether
the prescribed limits have been exceeded, must of necessity
determine that question; and the only way in which they can
properly do so, is by looking to the terms of the instrument by
which, affirmatively, the legislative powers were created, and by
which, negatively, they are restricted. If what has been done is
legislation within the general scope of the affirmative words
which give the power, and if it violates no express condition or
restriction by which that power is limited (in which category
would, of course, be included any Act of the Imperial Parliament
at variance with it), it is not for any Court of Justice to
inquire further, or to enlarge constructively those conditions
and restrictions."
The correctness of the aforesaid principles with regard to interpretation
of a written constitution has been re-affirmed by the majority of Judges in
Kesavananda Bharti v. State of Kerala (AIR 1973 SC 1465) (See the
Constitutional Law of India, H.M. Seervai, Fourth Edition, Vol.I, para 2.4
at page 174). 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.
Articles 246 and 248 of the Constitution are placed in Chapter I of Part
XI of the Constitution of India. Part XI is titled "Relations between
the Union and the States" and Chapter I of Part XI is titled
"Legislative Relations". In Chapter I of Part XI, under the heading
"Distribution of Legislative Powers" Articles 245 to 255 have been
placed. A reading of Articles 245 to 255 would show that these relate
to distribution of legislative powers between the Union and the
Legislatures of the States. Article 246(1) provides that Parliament has
exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule of the Constitution and
under Entry 97 of List I of the Seventh Schedule of the Constitution,
Parliament has exclusive power to make law with respect to any other
matter not enumerated in List II or List III. Article 248 similarly
provides that Parliament has exclusive power to make any law with
respect to any matter not enumerated in the Concurrent List (List III)
or State List (List II) of the Seventh Schedule 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. To quote from
Commentary on the Constitution of India by Durga Das Basu (8th Edition)
Volume 8 at page 8988:
"In short, the principle underlying Article 248, read with Entry
97 of List I, is that a written Constitution, which divides
legislative power as between two legislatures in a federation,
cannot intend that neither of such Legislatures shall go without
power to legislate with respect of any subject simply because
that subject has not been specifically mentioned nor can be
reasonably comprehended by judicial interpretation to be
included in any of the Entries in the Legislative Lists. To
meet such a situation, a residuary power is provided, and in the
Indian Constitution, this residuary power is vested in the Union
Legislature. Once, therefore, it is found that a particular
subject-matter has not been assigned to the competence of the
State Legislature, "it leads to the irresistible inference that
(the Union) Parliament would have legislative competence to deal
with the subject-matter in question."
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.
Saka Venkata Rao (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 because of the provisions of Articles
101(3)(a) and 190(3)(a) of the Constitution which are quoted
hereinbelow:
"101(3)(a). Vacation of seats.-
(1) …….
(2) …….
(3) If a member of either House of Parliament-
(a) becomes subject to any of the disqualifications mentioned in
clause (1) or clause (2) of article 102.
his seat shall thereupon become vacant"
"190(3)(a). Vacation of seats.-
(1) …….
(2) …….
(3) If a member of a House of the Legislature of a State- (a)
becomes subject to any of the disqualifications mentioned in clause
(1) or clause (2) of article 191.
his seat shall thereupon become vacant"
Thus, 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.
18. We cannot also accept the submission of Mr. Kuhad that until the
decision is taken by the President or Governor on whether a member of
Parliament or State Legislature has become subject to any of the
disqualifications mentioned in clause (1) of Article 102 and Article 191 of
the Constitution, the seat of the member alleged to have been disqualified
will not become vacant under Articles 101(3)(a) and 190(3)(a) of the
Constitution. Articles 101(3)(a) and 190(3)(a) of the Constitution provide
that if a member of the House becomes subject to any of the
disqualifications mentioned in clause (1), "his seat shall thereupon become
vacant". Hence, the seat of a member who becomes subject to any of the
disqualifications mentioned in clause (1) will fall vacant on the date on
which the member incurs the disqualification and cannot await the decision
of the President or the Governor, as the case may be, under Articles 103
and 192 respectively of the Constitution. The filling of the seat which
falls vacant, however, may await the decision of the President or the
Governor under Articles 103 and 192 respectively of the Constitution and if
the President or the Governor takes a view that the member has not become
subject to any of the disqualifications mentioned in clause (1) of Articles
102 and 191 respectively of the Constitution, it has to be held that the
seat of the member so held not to be disqualified did not become vacant on
the date on which the member was alleged to have been subject to the
disqualification.
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)
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.
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.
21. We do not also find merit in the submission of Mr. Luthra and Mr.
Kuhad that if a sitting member of Parliament or the State Legislature
suffers from a frivolous conviction by the trial court for an offence
given under sub-section (1), (2) or (3) of Section 8 of the Act, he
will be remediless and he will suffer immense hardship as he would
stand disqualified on account of such conviction in the absence of sub-
section (4) of Section 8 of the Act. A three-Judge Bench of this
Court in Rama Narang v. Ramesh Narang & Ors. [(1995) 2 SCC 513] has
held that when an appeal is preferred under Section 374 of the Code of
Criminal Procedure [for short 'the Code'] the appeal is against both
the conviction and sentence and, therefore, the Appellate Court in
exercise of its power under Section 389(1) of the Code can also stay
the order of conviction and the High Court in exercise of its inherent
jurisdiction under Section 482 of the Code can also stay the
conviction if the power was not to be found in Section 389(1) of the
Code. In Ravikant S. Patil v. Sarvabhouma S. Bagali [(2007) 1 SCC
673], a three-Judge Bench of this Court, however, observed:
"It deserves to be clarified that an order granting stay of conviction
is not the rule but is an exception to be resorted to in rare cases
depending upon the facts of a case. Where the execution of the
sentence is stayed, the conviction continues to operate. But where the
conviction itself is stayed, the effect is that the conviction will
not be operative from the date of stay. An order of stay, of course,
does not render the conviction non-existent, but only non-operative.
Be that as it may. Insofar as the present case is concerned, an
application was filed specifically seeking stay of the order of
conviction specifying the consequences if conviction was not stayed,
that is, the appellant would incur disqualification to contest the
election. The High Court after considering the special reason, granted
the order staying the conviction. As the conviction itself is stayed
in contrast to a stay of execution of the sentence, it is not possible
to accept the contention of the respondent that the disqualification
arising out of conviction continues to operate even after stay of
conviction.
In the aforesaid case, a contention was raised by the respondents that the
appellant was disqualified from contesting the election to the Legislative
Assembly under sub-section (3) of Section 8 of the Act as he had been
convicted for an offence punishable under Sections 366 and 376 of the
Indian Penal Code and it was held by the three-Judge Bench that as the High
Court for special reasons had passed an order staying the conviction, the
disqualification arising out of the conviction ceased to operate after the
stay of conviction. Therefore, the disqualification under sub-section (1),
(2) or (3) of Section 8 of the Act will not operate from the date of order
of stay of conviction passed by the Appellate Court under Section 389 of
the Code or the High Court under Section 482 of the Code.
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.
23. The only question that remains to be decided is whether our
declaration in this judgment that sub-section (4) of Section 8 of the Act
is ultra vires the Constitution should affect disqualifications already
incurred under sub-sections (1), (2) and (3) of Section 8 of the Act by
sitting members of Parliament and State Legislatures who have filed appeals
or revisions against their conviction within a period of three months and
their appeals and revisions are still pending before the concerned court.
Under sub-sections (1), (2) and (3) of Section 8 of the Act, the
disqualification takes effect from the date of conviction for any of the
offences mentioned in the sub-sections and remains in force for the periods
mentioned in the sub-sections. Thus, there may be several sitting members
of Parliament and State Legislatures who have already incurred
disqualification by virtue of a conviction covered under sub-section (1),
or sub-section (2) or sub-section (3) of Section 8 of the Act. In Golak
Nath and Others vs. State of Punjab and Another (AIR 1967 SC 1643), Subba
Rao, C.J. speaking on behalf of himself, Shah, Sikri, Shelat and
Vaidialingam, JJ. has held that Articles 32, 141, 142 of the Constitution
are couched in such a wide and elastic terms as to enable this Court to
formulate legal doctrines to meet the ends of justice and has further held
that this Court has the power not only to declare the law but also to
restrict the operation of the law as declared to future and save the
transactions, whether statutory or otherwise, that were effected on the
basis of the earlier law. 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 Section 8 of the Act and who
have filed appeals or revisions which are pending and are accordingly saved
from the disqualifications by virtue of sub-section (4) of Section 8 of the
Act should not, in our considered opinion, be affected by the declaration
now made by us in this judgment. This is because the knowledge that
sitting members of Parliament or State Legislatures will no longer be
protected by sub-section (4) of Section 8 of the Act will be acquired by
all concerned only on the date this judgment is pronounced by this Court.
As has been observed by this Court in Harla v. State of Rajasthan (AIR 1951
SC 467):
"……..it would be against the principles of natural justice to
permit the subjects of a State to be punished or penalized by
laws of which they had no knowledge and of which they could not
even with exercise of due diligence have acquired any
knowledge."
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 Section 8 of the Act and by virtue of such conviction and/or sentence
suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of
Section 8 of the Act 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 Section 8 of the Act which we have by
this judgment declared as ultra vires the Constitution notwithstanding that
he files the appeal or revision against the conviction and /or sentence.
24. With the aforesaid declaration, the writ petitions are allowed. No
costs.
..……………..……………………….J.
(A. K. Patnaik)
...…………..………………………..J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 694 OF 2004
Basant Kumar Chaudhary … Petitioner
Versus
Union of India & Ors. … Respondents
ORDER
The petitioner is a practicing Advocate in the Patna High Court and has
filed this writ petition as a Public Interest Litigation challenging sub-
section (4) of Section 8 of the Representation of the People Act, 1951 (for
short 'the Act'), as ultra vires the Constitution.
2. This writ petition was heard along with W.P.(C) No.490 of 2005 and
W.P.(C) No.231 of 2005 in which sub-section (4) of Section 8 of the of the
Act is also challenged as ultra vires the Constitution.
3. We have today delivered the judgment in W.P.(C) No.490 of 2005 and
W.P.(C) No.231 of 2005. Hence, this writ petition is disposed of in terms
of the aforesaid judgment in W.P.(C) No.490 of 2005 and W.P.(C) No.231 of
2005. No costs.
..……………..……………………….J.
(A. K. Patnaik)
...…………..………………………..J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3040-3041 OF 2004
The Chief Election Commissioner Etc. … Petitioners
Versus
Jan Chaukidar (Peoples Watch) & Ors. … Respondents
ORDER
These are appeals by way of Special Leave under Article 136 of the
Constitution against the common order dated 30.04.2004 of the Patna High
Court in C.W.J.C. No.4880 of 2004 and C.W.J.C. No.4988 of 2004.
2. The facts very briefly are that Article 326 of the Constitution
provides that the elections to the House of the People and to the
Legislative Assembly of every State shall be on the basis of adult suffrage
and every person who is a citizen of India and who is not less than
eighteen years of age on such date as may be fixed in that behalf by or
under any law made by the appropriate Legislature and is not otherwise
disqualified under the Constitution or any law made by the appropriate
Legislature on the grounds of non-residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled to be registered as a voter
for any such election. In accordance with Article 326 of the Constitution,
Parliament has enacted the Representation of the People Act, 1950 (for
short 'the 1950 Act') for registration of voters at such elections to the
House of the People and to the Legislative Assembly of every State and has
also enacted the Representation of the People Act, 1951 (for short 'the
1951 Act') for the conduct of elections to the Houses of Parliament and to
the Houses of Legislature of each State.
3. The word "elector" is defined in the 1951 Act in relation to the
constituency to mean a person whose name is entered in electoral rolls of
the constituency for the time being in force and who is not subject to any
of the disqualifications mentioned in Section 16 of the 1950 Act. Section
16(1)(c) of the 1950 Act provides that a person shall be disqualified for
registration in an electoral roll if he is for the time being disqualified
from voting under the provisions of any law relating to corrupt practices
and other offences in connection with elections.
4. Section 4 of the 1951 Act lays down the qualifications for membership
of the House of the People and one of the qualifications laid down is that
he must be an "elector" for any Parliamentary constituency. Similarly,
Section 5 of the 1951 Act lays down the qualifications for membership of a
Legislative Assembly of a State and one of the qualifications laid down is
that he must be an "elector" for any Assembly constituency in that State.
Section 62 of the 1951 Act is titled "Right to vote" and it provides in sub-
section (5) that no person shall vote at any election if he is confined in
a prison, whether under a sentence of imprisonment or transportation or
otherwise, or is in the lawful custody of the police. The proviso to sub-
section (5) of Section 62 of the 1951 Act, however, states that the sub-
section will not apply to a person subjected to preventive detention under
any law for the time being in force.
5. Writ petitions C.W.J.C. No.4880 of 2004 and C.W.J.C. No.4988 of 2004
were filed in the Patna High Court contending that a person, who is
confined in prison, whether under a sentence of imprisonment or
transportation or otherwise, or is in the lawful custody of the police is
not entitled to vote by virtue of sub-section (5) of Section 62 of the 1951
Act and accordingly is not an "elector" and is, therefore, not qualified to
contest elections to the House of People or the Legislative Assembly of a
State because of the provisions in Sections 4 and 5 of the 1951 Act. By
the impugned common order, the High Court accepted this contention in the
writ petitions and held:
"A right to vote is a statutory right, the Law gives it, the Law
takes it away. Persons convicted of crime are kept away from
elections to the Legislature, whether to State Legislature or
Parliament, and all other public elections. The Court has no
hesitation in interpreting the Constitution and the Laws framed
under it, read together, that persons in the lawful custody of
the Police also will not be voters, in which case, they will
neither be electors. The Law temporarily takes away the power
of such persons to go anywhere near the election scene. To vote
is a statutory right. It is privilege to vote, which privilege
may be taken away. In that case, the elector would not be
qualified, even if his name is on the electoral rolls. The name
is not struck off, but the qualification to be an elector and
the privilege to vote when in the lawful custody of the police
is taken away."
6. Aggrieved, by the findings of the High Court, the appellants have
filed these appeals. We have heard learned counsel for the parties and we
do not find any infirmity in the findings of the High Court in the impugned
common order that a person who has no right to vote by virtue of the
provisions of sub-section (5) of Section 62 of the 1951 Act is not an
elector and is therefore not qualified to contest the election to the House
of the People or the Legislative Assembly of a State.
7. These civil appeals are accordingly dismissed. No costs.
..……………..……………………….J.
(A. K. Patnaik)
...…………..………………………..J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.
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