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 LegislativeAssembly 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 subsection (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
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 subsection
(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 subsection
(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, subsection (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 subsections
(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 subclause
(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 subsection (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 subsection
(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 subsections
(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 subsection
(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 subsection
(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 subsection
(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
quotedhereinbelow:
“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 subsection
(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 subsection (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 subsection (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 subsections
(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 subsections
(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 subsections.
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 subsection
(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.
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