Lily Thomas Vs Union of India .

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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

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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;

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(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.

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[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

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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

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(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

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(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

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(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

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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

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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

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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

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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

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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.

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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

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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

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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

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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

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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

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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

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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

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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

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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

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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,

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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

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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

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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

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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,

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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

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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.”

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“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

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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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

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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.

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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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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.

Page 45

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.

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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

Page 47

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

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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.

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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,

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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)

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New Delhi, July 10, 2013.

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