Consumer
Education & Research Society Vs. Union of India & Ors [2009] INSC 1476
(24 August 2009)
Judgment
IN THE
SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.
448 OF 2006 Consumer Education & Research Society ....Petitioner Versus
Union of India & Ors. ...Respondents WITH WRIT PETITION (CIVIL) NO. 411 OF
2006
K. G.
BALAKRISHNAN, CJI
1.
These two writ petitions filed under Article 32 of the
Constitution by way of public interest litigation, challenge the constitutional
validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006
(Act No. 31/2006, Hereinafter 'Amendment Act'). It amended the Parliament
(Prevention of Disqualification) Act, 1959 (Hereinafter `Principal Act'). The
Amendment Act adds to the list of `Offices of Profit' which do not disqualify
the holders thereof for being chosen as, or for being the Members of
Parliament. Historical background
2.
The expression `Office of Profit' is not defined in the Constitution.
The view that certain offices or positions held by a Member of Parliament
(Hereinafter also referred to as `MP') may be either incompatible with his/her
duty as an elected representative of the people, or affect his/her
independence, and thus weaken the loyalty to his/her constituency and,
therefore, should disqualify the holder thereof, had its origin in the
Parliamentary history of the United Kingdom. (See: The Introduction to the
Bhargava Committee Report on Office of Profit, dated 22.10.1955). The concept
of `office of profit' has a history of more than four centuries in United
Kingdom and it has evolved through many phases. The first was the
"privilege" phase (prior to 1640). The second was the
"corruption" phase (from 1640). The third was the "ministerial
responsibility" phase (after 1705).
Initially
the English Parliament claimed priority over the services of its Members and it
was considered derogatory to its privilege if any of its Members accepted some
other office which would require a great deal of their time and attention. This
led to the evolution of the idea that the holding of certain offices would be
incompatible with the responsibilities of a Member of Parliament. This was the
first phase. During the second phase, there was a protracted conflict between
the Crown 3 and the House of Commons. Loyalty to the King and the loyalty to
the House of Commons representing the will of the people became growingly
irreconcilable and it was thought that if any Member accepted an `Office of
Profit' under the Crown, there was every chance of his loyalty to Parliament
being compromised.
Subsequently
came the third phase. The King was reduced to the position of a constitutional
head and the cabinet, functioning in the name of the Crown became the centre of
the executive government. The Privy Councilors, who during the second phase
were invariably considered to be the henchmen of the King and were as such
looked upon with suspicion by the House of Commons, yielded place to the
Ministers, who for some time were also disqualified from holding a seat in the
House. Later it came to be recognized that the application of the
disqualification rule to incumbent ministers was too extreme and with the
intent of ensuring effective coordination between the executive and the
legislature, it was accepted that the Members of the executive should be
represented in the Parliament. This recognition led to the passing of several
enactments by the British Parliament. The Re-Election of Ministers Act enacted
by the British Parliament in 1919 and 1926 required any Member who was
appointed to a `political office' to seek re-election.
3.
As we have adopted the British Parliamentary form of Government,
the concept of `office of profit' was also adopted with some modifications. The
concept of `office of profit' began to develop with the entry of non-official
members in the Legislature. A clear and precise statement in this regard was
made in Section 26(1)(a) of the Government of India Act, 1935 which provided
that a person shall be disqualified for being chosen as, and for being, a
Member of either Chamber if he held any office of profit under the Crown of
India, other than an office declared by Act of the Federal Legislature not to
disqualify its holder.
4.
When the Constitution of India came into force on 26th January,
1950 declaring that a person holding an office of profit would be disqualified,
the explanation to Article 102 clarified that a person who is a Minister
(either for the Union or for any State) shall not be deemed to hold an office
of profit. However, there existed Ministers of State as also Deputy Ministers
in the Union Government who were not specifically exempted from
disqualification under Article 102 because the expression `minister' was
construed as referring only to a Cabinet Minister. In order to address this
situation, the Parliament (Prevention of Disqualification) Act, 1950 was
enacted. Section 2 of the said Act provided:
5
"2. Prevention of disqualification for membership of Parliament: A person
shall not be disqualified for being chosen as, and for being a member of
Parliament by reason only of the fact that he holds any of the following
offices of profit under the Government of India or the Government of any State,
namely, an office of Minister of State or a Deputy Minister, or a Parliamentary
Secretary or a Parliamentary Under Secretary."
5.
This was followed by the Parliament (Prevention of
Disqualification) Act, 1951 declaring that certain offices (specified in
Section 2 thereof) under the government shall not disqualify, and shall be
deemed never to have disqualified the holders thereof for being chosen as, or
for being, Members of Parliament. The said Act was given retrospective effect
from 26.1.1950.
6.
In 1954, a Committee was constituted under the chairmanship of
Pandit Thakur Das Bhargava to study the various matters connected with the
disqualification of MP's and to make recommendations in order to enable the
government to consider the manner in which a comprehensive legislation should
be brought. The Committee submitted its report in 1955. In 1959 the Parliament
(Prevention of Disqualification) Act, 1959 was enacted, thereby declaring that
certain offices of profit under the government shall not disqualify the holders
thereof for being chosen as or for being, Members of Parliament. Section 3 of
the Principal Act (amended from time to time) declared that none of the
following offices in so far as it is an office of profit under the government
of India or the 6 government of any State, shall disqualify the holder thereof
for being chosen as, or for being, a Member of Parliament:
"(a)
any office held by a Minister, Minister of State or Deputy Minister for the
Union or for any State, whether ex officio or by name;
(aa) the
office of a Leader of the Opposition in Parliament;
(ab) the
office of Deputy Chairman, Planning Commission;
(ac) the
office of each leader and deputy leader of a recognized party and recognized
group in either House of Parliament;
(b) the
office of Chief Whip. Deputy Chief Whip or Whip in Parliament or of a
Parliamentary Secretary;
(ba) the
office of Chairperson of - (i) the National Commission for Minorities
constituted under Section 3 of the National Commission for Minorities Act, 1992
(19 of 1992);
(ii) the
National Commission for the Scheduled Castes and Scheduled Tribes constituted
under clause (I) of article 338 of the Constitution;
(iii)the
National Commission for Women constituted under Section 3 of the National
Commission for Women Act, 1990 (20) of 1990;
(c) the
office of member of any force raised or maintained under the National Cadet
Corps Act, 1948 (56 of 1948), or the Reserve and Auxiliary Air Forces Act, 1952
(62 of 1952);
(d) the
office of a member of a Home Guard constituted under any law for the time being
in force in any State;
(e) the
office of sheriff in the city of Bombay, Calcutta or Madras;
(f) the
office of chairman or member of the syndicate, senate, executive committee,
council or court of a university or other body connected with a university;
7 (g) the
office of a member of any delegation or mission sent outside India by the
Government for any special purpose;
(h) the
office of chairman or member of a committee (whether consisting of one or more
members), set up temporarily for the purpose of advising the Government or any
other authority in respect of any matter of public importance or for the
purpose of making an inquiry into, or collecting statistics in respect of, any
such matter, if the holder of such office is not entitled to any remuneration
other than compensatory allowance;
(i) the
office of Chairman, director or member of any statutory or non- statutory body
other than any such body as is referred to in clause (h), if the holder of such
office is not entitled to any remuneration other than compensatory allowance,
but excluding (i) the office of chairman of any statutory or non-statutory body
specified in Part I of the Schedule, (ii) the office of chairman or secretary
of any statutory or non-statutory body specified in Part II of the Schedule;
(j) the
office of village revenue officer, whether called a lambardar, malguzar, patel,
deshmukh or by any other name, whose duty is to collect land revenue and who is
remunerated by a share of, or commission on, the amount of land revenue collected
by him, but who dies not discharge any police functions."
7.
The trigger for the present controversy arose when a Member of the
Rajya Sabha - Mrs. Jaya Bachchan was appointed as the Chairperson of the Uttar
Pradesh Film Development Council on 14.7.2004. A complaint was made that this
amounting to the holding of an `office of profit' on her part and thus, she was
not entitled to continue as a Member of the Rajya Sabha in view of Article
102(1)(a) of the Constitution. A Presidential Order was passed under Article
103(1) of the Constitution of India by which the said Member of the Rajya Sabha
was disqualified from being a Member of the Rajya Sabha on the ground that she
was 8 holding an `office of profit'. That order was challenged before this
Court in Jaya Bachan v. Union of India, (2006) 5 SCC 266, and the challenge was
rejected by this Court. Thereafter, it was discovered that a large number of
MPs' were holding `Offices of Profit' and they also would incur the same
disqualification. A Bill titled the Parliament (Prevention of Disqualification)
Amendment Bill, 2006 was therefore introduced on 16th of May, 2006 in the Lok
Sabha and was passed on the same day. On the next day, it was introduced in the
Rajya Sabha and was debated on and passed on the same day. The Bill was sent to
the President of India for his assent on 25th May, 2006. The President returned
the Bill on 30th May, 2006 to the Parliament for reconsideration under Article
111 of the Constitution of India. The Bill was passed again by both the Houses
without amendment and presented to the President for assent and the said assent
was given on 18.8.2006. Thus, the Amendment Act came into existence.
8.
Section 2 of the Amendment Act inserted the following clauses as
(ad) after clause (ac) of section 3 of the Principal Act:
"(ad)
the office of the chairperson of the National Advisory Council constituted by
the Government of India in the Cabinet Secretariat vide Order No.
631/2/1/2004-Cab, dated the 31st May, 2004;"
9 Section
2 of Amendment Act also inserted after clause (j) the following clauses, which
were to be deemed to have been inserted with effect from the 4th day of April,
1959, namely:
"(k)
the office of Chairman, Deputy Chairman, Secretary or Member (by whatever name
called) in any statutory or non-statutory body specified in the Table;
(l) the
office of Chairperson or trustee (by whatever name called) of any Trust,
whether public or private, not being a body specified in the Schedule;
(m) the
office of Chairman, President, Vice-President or Principal Secretary or
Secretary of the Governing Body of any society registered under the Societies
Registration Act, 1860 or under any other law
relating to registration of societies, not being a body specified in the
Schedule."
Section 3
of the Amendment Act inserted a Table referred to in Section 2(k), listing 55
statutory and non-statutory bodies, following the Schedule in the Principal
Act, which was also deemed to have been inserted with effect from 4th April,
1959.
Section 4
contained a special provision as to validation and other matters and it is
extracted below:
"4.(1)
Notwithstanding any judgment or order of any court or tribunal or any order or
opinion of any other authority, the offices mentioned in clauses (ad), (k), (l)
and (m) of Section 3 of the Principal Act shall not disqualify or shall be
deemed never to have disqualified the holders thereof for being chosen as, or
for being, as member of either House of Parliament as if the Principal Act as
amended by this Act and been in force at all material times.
(2)
Nothing contained in sub-section (l) shall be construed as to entire any person
who has vacated a seat owing to any order or judgment, as aforesaid, to claim
any reinstatement or any other claim in that behalf.
10 (3)
For the removal of doubts, it is hereby clarified that any petition or
reference pending before any court or other authority on the date of
commencement of this Act, shall be disposed of in accordance with the
provisions of the Principal Act, as amended by this Act."
Relevant
constitutional provisions:
9.
In order to understand the scope, applicability and impact of the
Amendment Act, it is necessary to refer to the constitutional provisions (Article
101 to 104 of the Constitution of India) which deal with the disqualification
of Members of Parliament. Article 101 enumerates the circumstances in which the
seats of Members of Parliament will become vacant. Portions of Article 101 are
extracted below:
"101.
Vacation of seats.-(1) No person shall be a member of both houses of Parliament
and provision shall be made by Parliament by law for the vacation by a person
who is chosen a member of both houses of his seat in one house or the other.
(2) No
person shall be a member both of Parliament and of a House of the Legislature
of a State, and if a person is chosen a member both of Parliament and of a
House of the Legislature of (a State), then, at the expiration of such period
as may be specified in rules made by the President, that person's seat in
Parliament shall become vacant, unless he has previously resigned his seat in
the Legislature of the State.
(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], or
(b) resigns his seat by writing under his hand addressed to the Chairman or the
Speaker, as the case may be, and his resignation is accepted by the Chairman or
the Speaker, as the case may be.
his seat
shall thereupon become vacant:"
10.
11 Article 102 enumerates the various disqualifications for
membership and it is extracted below:
"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 un-discharged 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
by reason only that he is a Minister either for the Union or for such State.
(2) A
person shall be disqualified for being a member of either House of Parliament
if he is so disqualified under the Tenth Schedule."
[emphasis
supplied] Article 103 deals with the procedure to be followed in case a
decision is required as to the disqualification of sitting MPs. Article 104
lays down the penalty for sitting and voting, by disqualified Members. The said
Articles are extracted below:
12
"103. Decision on questions as to disqualifications of members (1) If any
question arises as to whether a member of either House of Parliament has become
subject to any of the disqualifications mentioned in clause (1) of article 102,
the question shall be referred for the decision of the President and his
decision shall be final.
(2)
Before giving any decision on any such question, the President shall obtain the
opinion of the Election Commission and shall act according to such
opinion."
"104.
Penalty for sitting and voting before making oath or affirmation under article
99 or when not qualified or when disqualified - If a person sits or votes as a
member of either House of Parliament before he has complied with the
requirement of article 99, or when he knows that he is not qualified or that he
is disqualified for membership thereof, or that he is prohibited from so doing
by the provision of any law made by Parliament, he shall be liable in respect
of each day on which he so sits or votes to a penalty of five hundred rupees to
be recovered as a debt due to the Union."
The
corresponding provisions relating to disqualification of members of the State
Legislature are Articles 190, 191, 192 and 193. They correspond to and are
substantially similar to Articles 101, 102, 103 and 104 which are applicable to
Parliament.
10.
Article 102(1)(a) lays down that a Member of either House of Parliament shall
be disqualified 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. Section 101(3)(a) provided that
if a Member of either House of Parliament becomes subject to any of the
disqualifications mentioned in Article 102(1), his seat shall thereupon become
vacant. Article 103 13 provides for reference of any question as to whether a
Member of either House of Parliament has become subject to any of the
disqualifications mentioned in Article 102(1) to the decision of the President,
whose decision on the question is made final.
Contentions
11.
The learned senior counsels Shri Harish Salve and Shri Ravinder
Srivastava who appeared on behalf of the petitioners contended that the
amendment that retrospectively exempted certain offices of profit from the
disqualification rule was violative of the constitutional scheme of Articles
101 to 104 of the Constitution. It was submitted that the purpose of removal of
disqualification by a retrospective amendment to the Act was to ensure that
persons who had ceased to be MP's on account of incurring disqualifications
would be re-inducted to Parliament without election, and that was impermissible
and unconstitutional. It was asserted that several MP's were holding
"offices of profit under the Government of India or the State Government,
other than offices declared by Parliament by law not to disqualify their
holder" (for short `the disqualifying offices of profit') when they were
elected. It was further stated that several others had accepted the
disqualifying offices of profit, after becoming Members, i.e. during their
tenure as Members of Parliament. Hence , it was reasoned that a person holding
such office of profit, was 14 disqualified to become or be a Member of
Parliament and that such Member's seat would become vacant on the very day when
they were elected (with respect to those who were already holding the
disqualifying office of profit, when they were elected) and on the day they
accepted the disqualifying office of profit (with respect to those who accepted
such disqualifying offices of profit during their tenure as Members of
Parliament). It was submitted that when a Member's seat had already became
vacant by virtue of incurring a constitutional disqualification, his/her
membership cannot be revived by enacting a legislation which retrospectively
removed the applicable disqualification. According to the petitioner, a
legislation retrospectively removing the disqualification will help a person to
continue to be a Member, only if he/she had continued as a Member and his/her
seat had not fallen vacant. The reasoning advanced was that in instances where
the seat had already become vacant on account of incurring a constitutional
disqualification, any legislative attempt to revive the membership of the
Member whose seat had become vacant, would violate Articles 102(1) read with
Article 101(3)(a) of the Constitution.
12.
Alternatively, it was submitted that the objects and reasons as
well as the provisions of the Amendment Act made it obvious that retrospective
operation had 15 been given to its provisions with the sole intention of
enabling the continuance of MPs' who would have otherwise been disqualified
under Article 102(1)(a) of the Constitution. Therefore, such retrospective
operation is unconstitutional. It is submitted that ever since the
recommendations of the Bhargava Committee in November, 1955, a constitutional
convention had evolved wherein every Lok Sabha had a Joint Committee for the
purpose of identifying and classifying `offices of profit'. Whenever a
particular `office" had to be exempted from the disqualification rule, the
Joint Committee's opinion was sought on the question of whether the said office
was an `office of profit' or not, whether the holding of such office by a MP
would conflict with his duties, and whether or not the office should be granted
exemption. It was only after a report was given by the Joint Committee
recommending exemption, that a particular `office' would be exempted. It was
contended that the said constitutional convention which has been followed for
more than half a century was violated when 55 offices were given a `wholesale'
exemption with retrospective effect without obtaining any report from the Joint
Committee on the question of whether the said "offices of profit"
deserved to be exempted or not. It was hence argued that the Amendment Act was
a colourable legislation which violated a well established constitutional
convention. It was also contended that the provisions of the impugned
legislation violated the guarantee of 16 "equality before law and equal
protection of the laws" that has been enshrined in Article 14 of the
Constitution. It was contended that the offices under certain bodies which had
been enumerated in the Schedule, were included without any basis in discernible
principles. It was argued that there was no rational criterion for the
wholesale exemption of the enumerated 55 `offices of profit' from the
disqualification rule, by means of the impugned legislation.
13.
On the other hand, Shri Gopal Subramaniam and Shri Mohan
Parasaran, learned Additional Solicitors General, opposed these contentions on
behalf of the respondents. In response to the first contention, it was
submitted that the power of Parliament to enact a law declaring with
retrospective effect that certain offices of profit will not disqualify the holder
from being chosen as, and for being a Member of Parliament has already been
upheld by this court in Srimati Kanta Kathuria v. Manak Chand Surana, (1969) 3
SCC 268. It was further submitted that a Member's seat would become vacant, not
at the point of accepting the disqualifying office of profit, but after the
President of India has decided and declared under Article 103(1) of the
Constitution, with the aid and advice of Election Commission of India, that the
Member had incurred the alleged disqualification. Hence it was contended that
till such a decision by the President, a 17 Member who is alleged to have
incurred a disqualification continues to be a Member. It was submitted that
since there was no declaration of disqualification by the President and because
the Amendment Act had retrospectively removed the disqualifications, the seats
of Members (who had accepted the disqualifying office of profit) did not fall
vacant. Reference was made to section 4(2) of the Amendment Act which makes it
clear that nothing contained in sub- section (1) thereof, shall be construed as
to entitle any person who has vacated a seat owing to any order or judgment as
aforesaid, to claim any reinstatement or any other claim in that behalf. It was
submitted that no Member who held an office of profit in respect of which the
grounds for disqualification was removed by the Amendment Act, would incur
disqualification and consequently all of them would continue to be Members and
their seats did not fall vacant under Article 101(3).
14.
The respondents also contended that the Amendment Act did not
violate Article 14. They submitted that the past practice of seeking the
opinion of a Joint committee on any proposal to add to the list of exempted
offices of profit cannot be described as `Constitutional Convention'. It was
submitted that even if there was a practice of referring such questions to a
Joint Committee, the same cannot denude the power of Parliament to make a law
under Article 102(1)(a) of the Constitution.
15.
The aforesaid contentions give rise to the following questions for
consideration by this Court:
(i)
Whether the Amendment Act retrospectively exempting certain offices of profit
from disqualification, violates Articles 101 to 104 of the Constitution and is
therefore invalid? (ii) Whether exemption of as many as 55 offices relating to
statutory bodies/non- statutory bodies, without referring the proposal to the
Joint Committee would render the Amendment a colourable legislation which
violated any `constitutional convention' or Article 14 of the Constitution ? Re
: Question (i)
16.
The question of whether a law can be made retrospectively to
remove the disqualification incurred on account of holding offices of profit is
no longer res integra. This Court in Srimati Kanta Kathuria (supra) has clearly
laid down that the power of Parliament to enact a law under Article 102(1)(a)
includes the power of Parliament to enact such law retrospectively. In that
case, the appellant Mrs. Kanta Kathuria, an Advocate practicing at Bikaner was
appointed as a Special Government Pleader. She was subsequently elected to the
Rajasthan Legislative Assembly. The respondent therein challenged her election
alleging that she was disqualified to be chosen as a Member of the Legislative
Assembly since she held the office of Special Government Pleader, which was an
office of profit under the Government of Rajasthan. The High Court accepted the
contention and allowed the Election Petition. The elected candidate preferred
an appeal to the Supreme Court 19 on August 2, 1968. During the pendency of the
appeal, The Rajasthan State Legislature passed the Rajasthan Legislative
Assembly Members (Prevention of Disqualification) Act, 1969 which removed the
disqualification that had been applicable to Government pleaders, Government
Advocates and Special Government Pleaders with retrospective effect. The
respondent contended that the Rajasthan State Legislature was not competent to
remove the disqualification retrospectively. Two opinions were delivered - one
by Hidayatullah.C.J. (for himself and Mitter J), and another by Sikri, J, (as
he then was) (for himself, Ray, J. and Jaganmohan Reddy, J) since there was a
difference of opinion on the question whether, on the date of her election, the
appellant held an office of profit. The minority view was that she did, whereas
the majority view was that she did not.
However,
there was unanimity in respect of the finding that the state legislature was
competent to enact a law for the purpose of removing the disqualification with
retrospective effect. Hidayatullah, C.J. had made the following observations in
the majority opinion (at Para. 26, 40 and 43 respectively):
"...
In other words, the Legislature of a State is empowered to declare that an
office of profit of a particular description or name would not disqualify its
holder." (Para. 26) "... It has been held in numerous cases by this
Court that the State Legislatures and Parliament can legislate retrospectively
subject to the provisions of the Constitution. Apart from the question of
fundamental rights, no express restriction has been placed on the power of the
Legislature of the State, and we are unable to imply, in the context, any
restriction." (Para. 40) 20 "... The apprehension that it may not be a
healthy practice and this power might be abused in a particular case are again
no grounds for limiting the powers of the State Legislature." (Para. 43)
(emphasis supplied) The minority concurred and held as follows (Sikri, J. at
Para. 12 and 13):
"12.
At the hearing our attention was drawn to a number of such Acts passed by our
Parliament and the Legislatures of the States. It seems that there is a settled
legislative practice to make validation laws. It is also well-recognised that
Parliament and the Legislatures of the States can make their laws operate
retrospectively. Any law that can be made prospectively may be made with
retrospective operation except that certain kinds of laws cannot operate
retroactively. This is not one of them.
13. This
position being firmly grounded we have to look for limitations, if any, in the
Constitution. Article 191 (which has been quoted earlier) itself recognises the
power of the Legislature of the State to declare by law that the holder of an
office shall not be disqualified for being chosen as a member.
The
Article says that a person shall be disqualified if he holds an office of
profit under the Government of India or the Government of any State unless that
office is declared by the Legislature not to disqualify the holder. Power is
thus reserved to the Legislature of the State to make the declaration. There is
nothing in the words of the article to indicate that this declaration cannot be
made with retrospective effect. It is true that it gives an advantage to those
who stand when the disqualification was not so removed as against those who may
have kept themselves back because the disability was not removed. That might
raise questions of the propriety of such retrospective legislation but not of
the capacity to make such laws. Regard being had to the legislative practice in
this country and in the absence of a clear prohibition either express or
implied we are satisfied that the Act cannot be declared ineffective in its
retrospective operation." (emphasis supplied)
17.
In Indira Nehru Gandhi v. Raj Narain, (1975) Supp. SCC 1, another
Constitution Bench of this Court reiterated Kantha Kathuria. The following
observations were made by A.N. Ray, C.J. (at Para. 138 and 139):
21
"... The power of the Legislature to pass a law includes a power to pass
it retrospectively. An important illustration with reference to retrospective
legislation in regard to election is the decision of this court in Kantha
Kathuria's case." (Para. 138) "... A contention was advanced that the
legislative measure could not remove the disqualification retrospectively,
because the Constitution contemplates disqualification existing at certain time
in accordance with law existing at that time. One of the views expressed in
that case is that Article 191 recognizes the power of the Legislature of the
State to declare by law that the holder of the office shall not be disqualified
for being chosen as a member.
Power is
reserved to a Legislature of the State to make the declaration. There is
nothing in the Article to indicate that this declaration cannot be made with
retrospective effect. The act was held not to be ineffective in its
retrospective operation on the ground that it is well recognized that
Parliament and State Legislatures can make their laws operate retrospectively.
Any law that can be made prospectively can be made with retrospective
operation." (Para. 139) (emphasis supplied)
18.
Kanta Kathuria and Indira Gandhi were followed by a three judge
bench of this Court in Nongthombam Ibomcha Singh v. Leisangthem Chandramani
Singh & Ors., (1976) 4 SCC 291, where this Court affirmed the decision of
the High Court that the respondent therein was not disqualified from seeking
election because of the fact that he held the office of the Speaker. The following
reasoning was given by H.R. Khanna, J. (at Para. 3):
"...
We find that the Manipur Legislature has now passed the Manipur Legislature
(Removal of Disqualifications) (Amendment) Act, 1975 (Manipur Act 1 of 1975).
As a result of this amendment, a person holding the office of Speaker of
Manipur Legislative Assembly shall not be disqualified from seeking election to
the Legislative Assembly of that State because of his holding that office. The
amending Act, according to Clause (2) of Section 1, shall be deemed to have
come into force on February 6, 1973. The fact that the legislature is competent
to enact such a law with retrospective operation is well -established (see
Kanta Kathuria v. Manak Chand Surana - 1969 (2) SCC 268 and Indira Nehru Gandhi
v. Raj Narain - 1975 Supp. SCC 1. In 22 view of the above amending Act, the
respondent cannot be held to be disqualified from seeking election to the
Legislative Assembly of Manipur on account of his having held the office of the
Speaker of the Legislative Assembly,"
(emphasis
supplied)
19.
We now proceed to examine another aspect of the first question.
Article 101(3) provides that if a Member of either House of Parliament becomes
subject to any of the disqualifications mentioned in Article 102, his seat will
thereupon become vacant. Article 103 provides that if any question arises as to
whether a Member of either House of Parliament has become subject to any of the
disqualifications mentioned in clause (1) of Article 102, the question shall be
referred to the decision of the President and his decision shall be final. The
use of the words "becomes subject to" in Article 101 and in Article
103 clearly demonstrates that these Articles contemplate a situation where a
sitting MP incurs the disqualification during his tenure and they do not apply
to a candidate who held a disqualifying office of profit before being elected
as a Member of Parliament.
20.
This does not mean that a Member, who was holding a disqualifying
office of profit when he was elected and sworn in as a MP, is immune from
challenge.
Separate
provisions deal with pre-election disqualifications. Section 36 of
Representation of the People Act, 1951 (Hereinafter `RP Act') provides that the
23 Returning Officer shall examine the nomination papers and shall decide all
objections which may be made to any nomination and may after a summary inquiry,
if any, reject the nomination if he is of the view that on the date fixed for
the scrutiny of nominations the candidate was either not qualified or was
disqualified for being chosen to fill the seat under the provisions of Article
102 or 191. Even if his/her nomination is not rejected and a person holding a
disqualifying office of profit, is elected as a MP, an election petition can be
filed under section 100(1)(a) of RP Act which provides that if the High Court
is of opinion that on the date of his election, a returned candidate was
disqualified from being chosen to fill the seat under the Constitution, the
High Court shall declare the election of the returned candidate to be void.
21.
This position was clearly settled by the decisions of two
Constitution Benches of this Court in Election Commission, India v. Saka
Venkata Subba Rao & Union of India, 1953 SCR 1144, and Brundaban Nayak vs.
Election Commission of India, (1965) 3 SCR 53. Both these decisions referred to
and dealt with Article 190 and 192 which are applicable to State Legislatures
and whose provisions are identical with the provisions of Articles 101 and 103
relating to 24 Parliament. In Saka Venkata Subba Rao, this Court observed thus
(Patanjali Shastri, C.J. at Para. 17):
"17.
The Attorney-General argued that the whole fasciculus of the provisions dealing
with "disqualifications of members", viz., articles 190 to 193,
should be read together, and as articles 191 to 193 clearly cover both
pre-existing and supervening disqualifications, articles 190 to 192 should also
be similarly understood as relating to both kinds of disqualification.
According to him all these provisions together constitute an integral scheme
whereby disqualifications are laid down and machinery for determining questions
arising in regard to them is also provided. The use of the word
"become" in articles 190(3) and 192(1) is not inapt, in the context,
to include within its scope pre-existing disqualifications also, as becoming
subject to a disqualification is predicated of "a member of a House of
Legislative", and a person who, being already disqualified, gets elected,
can, not inappropriately, be said to "become" subject to the disqualification
as a member as soon as he is elected. The argument is more ingenious than
sound. Article191, which lays down the same set of disqualifications for
election as well as for continuing as a member, and article 193 which
prescribes the penalty for sitting and voting when disqualified, are naturally
phrased in terms wide enough to cover both pre-existing and supervening
disqualifications; but it does not necessarily follow that articles 190(3) and
192(1) must also be taken to cover both. Their meaning must depend on the
language used which, we think, is reasonably plain. In our opinion these two
articles go together and provide a remedy when a member incurs a
disqualification after he is elected as a member. Not only do the words
"becomes subject" in article 190(3) and "has become
subject" in article 192(1) indicate a change in the position of the member
after he was elected, but the provision that his seat is to become thereupon
vacant, that is to say, the seat which the member was filling theretofore becomes
vacant on his becoming disqualified, further reinforces the view that the
article contemplates only a sitting member incurring the disability while so
sitting. The suggestion that the language used in article 190(3) can equally be
applied to a pre-existing disqualification as a member can be supposed to
vacate his seat the moment he is elected is a strained and farfetched
construction and cannot be accepted. ... "
(emphasis
supplied) 25 In Brundaban Nayak (supra), This Court reiterated the principle
enunciated in Saka Venkata Subba Rao. Gajendragadkar, C.J. held as follows (at
Para. 7):
"...
As we have already indicated, respondent No. 2's case is that the appellant has
incurred the disqualification under Art. 191(1)(e) read with section 7(d) of
the Act, and this disqualification has been incurred by him subsequent to his
election. It is well-settled that the disqualification to which Art. 191(1)
refers, must be incurred subsequent to the election of the member. This
conclusion follows from the provisions of Art. 190(3)(a). This Article refers
to the vacation of seats by members duly elected. Sub-Article (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) of Art.191, his seat shall
thereupon become vacant. Incidentally, we may add that corresponding provisions
with regard to the disqualification of members of both Houses of Parliament are
prescribed by Articles 101, 102 and 103 of the Constitution. ..."
[emphasis
supplied]
22.
Thus, it is clear that where a person was under a disqualification
at the time of his election, the provisions of Articles 101(3)(a) and 103 will
not apply. He/She will continue as a Member unless the High Court in an
election petition filed on that ground, declares that on the date of election,
he/she was disqualified and consequently, declares his/her election to be void.
It follows therefore that if an elected candidate was under a disqualification
when he was elected, but no one challenges his/her election, he/she would
continue as a Member irrespective of the fact that he/she was under a
disqualification when elected.
23.
We now consider the third aspect of the first question. Article
102(1)(a) provides that a person shall be disqualified for being a Member of
either House of 26 Parliament if he holds any office of profit under the
Government of India or Government of any State other than an office declared by
Parliament by law not to disqualify its holder. 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) of Article 102, his seat shall
thereupon become vacant. Article 103 provides that if any question arises as to
whether a Member of either House of Parliament has become subject to any of the
disqualifications mentioned in clause (1) of Article 102, the question shall be
referred for the decision of the President and his decision shall be final.
Article 104 provides that if a person sits or holds as a Member of either House
of Parliament when he knows that he is disqualified for membership thereof, he
shall be liable in respect of each day on which he so sits or votes, to a
penalty of five hundred rupees to be recovered as a debt due to the Union.
24.
The constitutional scheme therefore is that a person shall be
disqualified from continuing as a Member of Parliament if he/she holds any
disqualifying office of profit. Such a disqualification can result in the
vacation of his/her seat when the Member admits or declares that he/she is
holding the disqualifying office of profit.
However,
If he/she does not make a voluntary declaration about the same, the question of
whether he/she is disqualified or not, if raised, shall have to be referred 27
for a decision by the President of India the same will be made after obtaining
the opinion of the Election Commission of India. The question of whether a
particular member has incurred a disqualification can be referred for the
decision of the President by any citizen by means of making an application to
the President. It is only after the President decides that the Member has
incurred an alleged disqualification that the particular member's seat would
become vacant. The words "if any question arises as to whether a Member of
either House of Parliament has become subject to any disqualifications"
conclusively shows that the question of whether a Member has become subject to
any disqualification under clause (1) of Article 102 has to be decided only by the
President. Such a question would of course be a mixed question of fact and law.
The Constitution provides the manner in which that question is to be decided.
We are of the view that it is only after such a decision is rendered by the
President, that the seat occupied by an incumbent MP becomes vacant. The
question of a person being disqualified under Article 102(1) and the question
of his seat becoming vacant under Article 101(3)(a) though closely interlinked,
are distinct and separate issues.
25.
The constitutional scheme in Articles 101 to 104 contains several
irrefutable indications that the vacancy of the seat would occur only when a
decision is 28 rendered by the President under Article 103 which declares that
a Member has incurred a disqualification under Article 102(1) and not at the
point of time when the Member is alleged to have incurred the disqualification.
26.
We may first refer to the different circumstances in which a seat
of a Member becomes vacant:
(i)
Clause (2) of Article 101 provides that where a person is chosen as a Member
both of the Parliament and of a House of Legislature of a State then at the
expiry of such period as may be specified in the rules made by the President,
that person's seat in Parliament shall become vacant unless he/she has
previously resigned from his/her seat in the legislature of the State.
(ii)
Clause 3(a) of Article 101 provides that if a Member of either House of
Parliament becomes subject to any disqualification mentioned in clause (1) of
Article 102, his/her seat shall thereupon become vacant.
Clause
(1) of Article 102 refers to five circumstances in which a person shall be
disqualified for being chosen and for being a Member of Parliament, (one of
which is if he/she holds any office of profit under the government of India or
government of any State other than an office declared by the Parliament by law
not to disqualify its holder). Article 103 provides that if any question arises
as to whether a Member of either House of Parliament has become subject to any of
the disqualifications mentioned in clause (1) of Article 102, the 29 question
shall be referred for the decision of the President whose decision shall be
final.
(iii)
Clause 3(a) of Article 101 also provides that if a Member of either House of
Parliament becomes subject to any of the disqualifications mentioned in clause
(2) of Article 102, his/her seat shall thereupon become vacant. Clause (2) of
Article 102 refers to a person being disqualified for being a Member of either
House of Parliament on ground of defection under the Tenth Schedule to the
Constitution.
Paragraph
(6) of Tenth Schedule provides that if any question arises about whether a
Member of a House has become subject to disqualification under the Tenth
Schedule, the question shall be referred for the decision of the Chairman, or
as the case may be, the Speaker of such House and his/her decision shall be
final.
(iv)
Clause 3(b) of Article 101 provides that if a Member of either House of
Parliament resigns his/her seat and his/her resignation is accepted by the
Chairman or the Speaker, as the case may be, his/her seat shall thereupon
become vacant.
(v)
Clause (4) of Article 101 provides that if for a period of 60 days a Member of
either House of Parliament is without permission of the House absent from all
meetings thereof, the House may declare his/her seat vacant.
27.
It can be seen from the above-mentioned permutations that there
are several possibilities may lead to a seat becoming vacant. It is also clear
that a seat becomes vacant only on after an adjudication in cases falling under
Article 101(3)(a), whereas, the seats become vacant without any adjudication on
the happening of specified events in respect of vacancies arising under Article
101(2), 101(3)(b) and 101(4). A vacancy under Article 101(3)(a) would occur in
the case of disqualifications enumerated under Article 102(1) only after there
has been a decision on the subject of such disqualification by the President.
The exception to this proposition would of course arise when there is a
voluntary admission of the disqualification by a particular Member to the
Speaker/Chairman of the House, as the case may be. The vacancy under Article
101(3)(a) will occur in the case of the disqualification mentioned under
Article 102(2), only after a decision has been made on the subject of such
disqualification by the Chairman or the Speaker of such House as the case may
be. Thus, Para. 6(1) of Tenth Schedule of the Constitution is analogous to
Article 103(1) of the Constitution and both contemplate adjudication by an
authority on the subject of disqualification, albeit with respect to distinct
grounds. On the other hand, in case of a person who resigns, the vacancy occurs
[as per Art. 103(3)(b)] when the resignation is accepted by the Chairman or the
Speaker and in such case, the Constitution does not 31 contemplate any
adjudication on the subject of disqualification. Similarly, in the case of a
Member being absent without permission for a period of 60 days the vacancy
arises when the House declares his seat vacant and there is no provision for
adjudication about such disqualification. In the case of a person having a dual
membership of Parliament and a State Legislature, on the expiration of 15 days
(provided by the Prohibition of Simultaneous Membership Rules 1950), the
person's seat in Parliament becomes vacant without any further adjudication.
28.
Thus we find that for a vacancy to occur under Article 101(4),
there should be a declaration by the House, for a vacancy to occur under
Article 101(3)(b) there should be acceptance of resignation by the Chairman or
the Speaker of the House and under Article 101(2) the vacancy arises
automatically on the expiry of 15 days after the point of time that the
particular MP became a Member of the State Legislature. However, the vacancies
contemplated in Article 101(3)(a) will arise only when the disqualification is
decided upon and declared by the President under Article 103(1) or declared by
the Chairman or the Speaker of the House under Para. 6(1) of Tenth Schedule.
Therefore in the case of vacancy under Article 101(3)(a), the vacancy of the
seat is not automatic consequent upon incurring the disqualification but would
occur only upon a declaration of the disqualification by 32 the designated
authority. For example, if a Member gives up membership of a political party or
votes or abstains from voting in the House in a manner that is contrary to the
directions issued by his/her political party, Para. 2 of Tenth Schedule
provides that the said Member of the House shall be disqualified.
However,
the vacancy of his/her seat does not become operative on the day he/she gives
up membership of the political party or when he/she votes or abstains from
voting in a manner that is contrary to the directions issued by his/her
political party. With regard to disqualification on the ground of defection,
the vacancy of the seat would become operative only when a decision is rendered
by the Chairman or the Speaker of the House as the case may be declaring his
disqualification.
Similarly
in respect of the disqualification on the ground of holding an office of
profit, the vacancy of the seat would become operative only when the President
decides the issue on the subject of the alleged disqualification and declares
that a particular Member has incurred the same. Such a decision may be made
either on the basis of an adjudication where the question is disputed, or on
the basis of an admission by the Member concerned.
29.
We also find support for this view from a reading of Sections 147,
149 and 151A of the RP Act. Section 147 deals with a casual vacancy in the
Council of 33 States and Section 149 deals with casual vacancies in the House
of People, on account of the seat of a Member becoming vacant or being declared
vacant or his election being declared void. Section 151A provides that when
such casual vacancy arises, the Election Commission shall have to fill up the
vacancy by holding bye-elections within a period of six months from the date of
occurrence of the vacancy. There is no difficulty in calculating this six month
period where a Member's seat becomes vacant on account of his/her seat being
declared vacant under Article 101(4) or when it becomes vacant on account of
his/her resignation being accepted by the Chairman or the Speaker under Article
101(3)(b). However, the position will be different when the vacancy to be
filled up arises on account of any of the disqualifications mentioned in clause
(1) or clause (2) of Article 102.
For
example if a person gives up his membership of a political party or if he votes
or abstains from voting in a manner that is contrary to the directions issued
by his/her political party, the election cannot be held within six months from
that date.
Similarly
when a Member accepts an office of profit on a particular day, it is not
possible to hold election within six months from the date of such acceptance of
office of profit on the ground that he/she was disqualified on that day. In
such cases if the vacancy of the seat is automatic, the bye-elections will have
to be held within six months from such date of incurring disqualification.
However in many 34 cases, the Election Commission may not even know about the
occurrence of the disqualification. Furthermore, the very occurrence of
disqualification is likely to be disputed in most cases. Therefore, even though
the occurrence of a vacancy is an automatic consequence of incurring a
disqualification, the same would arise only after the disqualification is
declared by the decision of the appropriate authority (President, Speaker, or
Chairman of the House as the case may be).
30.
Therefore, upon a proper construction of the provisions of
Articles 101 to 103, it is evident that a declaration by the President under
Article 103(1) in the case of a disqualification under Art. 102(1) and a
declaration by the Speaker or the Chairman under Para. 6 of Tenth Schedule in
the case of a disqualification under Article 102(2) is a condition precedent
for the vacancy of the seat. If Article 101(3)(a) is interpreted otherwise, it
will lead to absurd results thereby making it impossible to implement or
enforce the relevant provisions of the Constitution or the RP Act. Let us
visualize some of these possibilities. Assume a scenario where a political
party states that one of its Members gave up his/her membership, and on the
other hand the concerned member denies the same fact. The six month period
prescribed for conducting a bye-election cannot obviously be computed from the
alleged date of surrender of membership. The said period should be properly 35
computed from the date on which a decision on the subject of disqualification
is given by the Chairman or Speaker of the House. Similarly when somebody
alleges that a sitting MP had accepted an office of profit, there would be no
automatic vacancy of the seat, as the question whether the Member accepted any
office of profit or not, may be a disputed issue. Therefore under the
constitutional scheme, the vacancy would occur only when the dispute is
resolved by a decision of the President which could then result in a
declaration of disqualification. Hence, it is tenable to hold that when Article
101(3)(a) states that when a Member of House of Parliament becomes subject to
any of the disqualifications mentioned in clause (1) or clause (2) of Article
102, it means when the President or the Speaker/Chairman as the case may be, by
his decision declares that Member had incurred the disqualification and not
earlier. There is however no doubt that the decision of the President or
Chairman/Speaker of the House, is merely an adjudication and confirmation of a
pre-existing fact. Therefore the disqualification is not created by the
decision of the President. However, the vacancy of the seat is a consequence of
the decision arrived at by the designated authority.
31.
In this context, we may refer to the following observations of the
Constitution Bench in Brundaban Nayak in respect of Article 192 (which equally
36 apply to Article 103) which makes it clear that a decision/declaration by
the Governor/President is not optional, but a necessity in cases under 191(1)
and 101(1). It was held that, [(1965) 3 SCR 53, Gajendragadkar, J. at Para.
14]:
"It
is true that Art. 192(2) requires that whenever a question arises as to the
subsequent disqualification of a member of the Legislative Assembly, it has to
be forwarded by the Governor to the Election Commission for its opinion. It is
conceivable that in some cases, complaints made to the Governor may be
frivolous or fantastic; but if they are of such a character, the Election
Commission will find no difficulty in expressing its opinion that they should
be rejected straightaway. The object of Art.192 is plain. No person who has
incurred any of the disqualifications specified by Art.191(1), is entitled to
continue to be a member of the Legislative Assembly of a State, and since the
obligation to vacate his seat as a result of his subsequent disqualification
has been imposed by the Constitution itself by Art.190(3)(a), there should be
no difficulty in holding that any citizen is entitled to make a complaint to
the Governor alleging that any member of the Legislative Assembly has incurred
one of the disqualifications mentioned in Art.191(1) and should, therefore,
vacate his seat. The whole object of democratic elections is to constitute
legislative chambers composed of members who are entitled to that status, and
if any member forfeits that status by reason of a subsequent disqualification,
it is in the interest of the constituency which such a member represents that
the matter should be brought to the notice of the Governor and decided by him
in accordance with the provisions of Art.192(2)."
(emphasis
supplied) Kanta Kathuria also clearly held that when a Member accepts an office
of profit and incurs a disqualification, and such disqualification is
retrospectively removed, the Member would continue to be a Member.
32.
However, the petitioners have contended that Kanta Kathuria had
failed to notice the two earlier Constitution Bench judgments on this aspect in
Saka Venkata Subba Rao and Brundaban Nayak and therefore, may not be good law.
On a careful examination of these precedents, we find no merit in this
contention. The petitioners contended that Saka Venkata Subba Rao had held that
the seat became vacant automatically when the Member accepted the office of
profit and therefore, retrospective removal of disqualification will not revive
the membership. The issue in Saka Venkata Subba Rao was whether Articles 190(3)
and 192(1) applied to a Member who had already incurred a disqualification at
the time of being elected.
The issue
as to when a Member's seat would become vacant, if he accepts an office of
profit during his tenure as a legislator did not arise in that case. The
observations relied on (extracted in Para. 21 above) was made in the context of
distinguishing between a person who had already incurred under a disqualification
at the time of being elected and a person who allegedly incurred a
disqualification after having becoming a Member. What this Court stated was
that a person under disqualification when elected does not vacate his seat
under Article 190(3)(a), but will continue until his/her election is set aside
under Section 100 of RP Act. The question of when the seat of a sitting member
(who incurs disqualification by accepting an office of profit during the tenure
of his membership) would become 38 vacant, neither arose for consideration and
nor was it decided in the said case.
33.
Therefore Saka Venkata Subba Rao is of no assistance to contend
that there is an automatic vacation of seat when a Member accepts an office of
profit and incurs a disqualification during his tenure.
34.
In Brundaban Nayak, a private citizen (second respondent)
complained to the Governor that the appellant had incurred disqualification
under Article 191(e), subsequent to his election as a Member of the Orissa
Legislative Assembly. The Governor forwarded the said complaint of the second
respondent to the Election Commission which issued a notice to the appellant
for an enquiry into the complaint. The appellant challenged the jurisdiction of
the Election Commission to hold an enquiry into such complaint. This court
while examining the said issue observed that no person who has incurred any of
the disqualifications specified by Art.191(1), is entitled to continue to be a
Member of the Legislative Assembly of a State, and since the obligation to
vacate his seat as a result of his subsequent disqualification has been imposed
by the Constitution itself by Article 190(3)(a) there should be no difficulty
in holding that any citizen is entitled to make a complaint to the Governor
alleging that any Member of the Legislative Assembly has incurred one of the
disqualifications mentioned in Article 191(1) and should, 39 therefore, vacate
his seat. The observation was thus in the context of considering the
jurisdiction of the Election Commission and the right of a citizen to make a
complaint under Article 191(1). In fact, the observations lend support to the
view that it is only after the decision by the Governor under Art. 192
(corresponding to the decision by the President under Art. 103) declaring that a
Member has incurred a disqualification, that such a Member's seat would become
vacant.
35.
The petitioners next placed reliance on observations in another
Constitution Bench decision in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4
SCC 626. S.P. Bharucha, J. noted as follows (at Para. 80):
"The
question for our purposes is whether having regard to the terms of Articles
101, 102 and 103, the President can be said to be an authority competent to
remove a member of Parliament. It is clear from Art. 101, that the seat of the
member of the Parliament becomes vacant immediately upon his becoming subject
to the disqualifications mentioned in Article 102, without more. The removal of
a member of Parliament is occasioned by operation of law and is self operative.
Reference to the President under Article 103 is required only if a question
arises as to whether a Member of Parliament has earned such disqualification;
that is to say, if it is disputed.
The
President would then have to decide whether the Member of Parliament had become
subject to the automatic disqualification contemplated by Article 101. His
order would not remove the Member of Parliament from his seat or office but
would declare that he stood disqualified. It would operate not with effect from
the date upon which it was made but would relate back to the date upon which
the disqualification was earned"
(emphasis
supplied) 40 The aforesaid observations are made, as noticed above, in the
context of examining whether the President can be said to be an authority
competent to remove a Member. The question was answered by holding that he/she
merely adjudicates whether a Member had incurred disqualification and he/she
does not disqualify a Member. The observations relied on by the petitioner that
"the removal of a Member is occasioned by operation of law and is self
operative" and that "the seat of the Member of Parliament becomes
vacant immediately upon his becoming subject to the disqualifications mentioned
in Article 102, without more" are therefore to be understood in relation
to the nature of powers vested with the President under Article 103. The
question which was being considered and the context in which these observations
were made was completely different. It is also of some interest to note that the
said observations were made by Bharucha and Rajendra Babu, JJ (as they then
were). S.C. Agrawal, J. [for himself and Dr. Anand J. (as he then was)]
explained the position differently (at Para. 183):
"...
The said function of the President is in the nature of an adjudicatory function
which is to be exercised in the event of a dispute giving rise to the question
whether a Member of either House of Parliament has become subject to any of the
disqualifications mentioned in clause (1) of Article 102 being raised. If the
President hold that the Member has become subject to a disqualification
mentioned in clause (1) of Article 102, the Member would be treated to have
ceased to be a Member on the date when he became subject to such
disqualification. If it is not disputed that a Member has incurred a
disqualification mentioned in clause (1) of Article 102, the matter does not go
to the President and the Member ceases to be a Member on the date when he
incurred the disqualification. The power conferred under Article 103(1) 41
cannot, therefore, be regarded as a power of removal of a Member of Parliament.
..."
(emphasis
supplied) The fifth Member of the Bench (G.N. Ray, J.) in his separate opinion
agreed with S.C. Agrawal and Dr. Anand, JJ. with respect to one issue and with
S.P. Bharucha & Rajendra Babu, JJ., in respect of another issue. The
learned judge did not express any view with regard to Article 101. Therefore
reliance on the observations of Bharucha and Rajendra Babu, JJ (as they then
were) to contend that the seat of a sitting MP stands vacated on the date on
which he/she accepts the disqualifying office of profit and not on the date
when the President declares him/her to be disqualified, would be contrary to
the provisions of Article 101 to 104 as well as the Constitution Bench
decisions of this Court in Kanta Kathuria, Brundaban Nayak and Indira Gandhi.
It is evident from the said decision in P.V. Narasimha Rao that when the
President adjudicates on the subject of whether a Member was disqualified or
not and gives a finding that he/she is disqualified, he/she is merely deemed to
have ceased being a Member from the date that he/she had incurred the
disqualification. It follows that a member continues to be one until the
decision of the President and when the outcome of the decision is that he/she
is disqualified it relates back to the date when the said disqualification was
incurred. If the President 42 holds that the Member has not incurred the
disqualification, the person continues as a Member.
36.
There is no doubt that the disqualification, when declared by the
President will become operative from the date the Member accepted the `office
of profit'. It is also not in doubt that the vacation of the seat is
consequential. However, the question is whether the seat of the Member become
vacant without anything more when a person accepts an `office of profit'? The
obvious answer is `no'. If the Member does not make a voluntary declaration
that he/she has incurred a disqualification and if no one raises a dispute about
the same, the Member would continue in spite of accepting an office of profit.
There is nothing strange about this position. We have already noted that when a
person who has incurred a disqualification offers himself /herself as a
candidate and is subsequently elected and if no one objects and if the
Returning Officer accepts the nomination and if no election petition is filed
challenging the election, then he/she would continue as a Member in spite of
the disqualification. Therefore, our considered opinion is that while a
disqualification results in the vacation of the seat of a Member, the vacancy
occurs only when the President decides and declares the disqualification under
Article 103.
37.
When the Amending Act retrospectively removed the disqualification
with regard to certain enumerated offices, any Member who was holding such
office of profit, was freed from the disqualification retrospectively. As of
the date of the passage of the Amendment Act, none of the Members who were
holding such offices had been declared to be disqualified by the President,
Section 4(2) was not attracted and consequently they continued as Members.
Re :
Question (ii)
38.
Which 'offices' should be excluded for the purpose of
disqualification, is a question that properly lies in the legislative domain.
In this case, what kind of office would amount to an 'office of profit' under
the Government and whether such an office of profit is to be exempted is a
matter to be considered by the Parliament. The key concern that certain offices
or places held by a MP may be either incompatible with his/her duty as an
elected representative of the people or affect his/her independence and thus
weaken his/her loyalty to his/her constituency and, therefore, should
disqualify the holder thereof, is a matter to be addressed by the Parliament.
It is also not possible to classify and include the offices exempted from the
said disqualification in a generic sense. While making the legislation
exempting any office, the question whether such office is incompatible with
his/her 44 position as a MP and whether his/her independence would be
compromised and whether his/her loyalty to his/her constituency will be
affected, should no doubt be kept in mind to safeguard the independence of the
Members of the legislature and to ensure that they are free from any kind of
undue influence from the executive.
The
learned counsel for the petitioners have not advanced any contention that any
of the newly exempted 'offices' suffer from any such impropriety or will be
prejudicial to the constituency or affect the independence of the member. The
plea regarding violation of Article 14 merely because several other similar
offices of profit are not included in the exempted category, has no basis. As
each office of profit may have different effects and consequences on the
Member, there is no viable basis for the assumption that all offices of profit
are equal and that all offices of profit should be excluded. The argument based
on Article 14 of the Constitution is highly illogical and without any force.
39.
This brings us to the last question. It is not in serious dispute
that ever since Bhargava Committee submitted its report in November, 1955,
whenever an office of profit had to be exempted the matter used to be referred
to a Joint Committee and its opinion whether the office should be exempted or
not, was being taken and only when there was a recommendation that a particular
office should be exempted, the Act was being amended to add that office to the
list of exemptions.
45
However, this was merely a parliamentary procedure and not a constitutional
convention. Once the Parliament is recognized as having the power to exempt
from disqualification and to do so with retrospective effect, any alleged
violation of any norm or traditional procedure cannot denude the power of
Parliament to make a law. Nor can such law which is otherwise valid be
described as unconstitutional merely because a procedure which was followed on
a few occasions was not followed for the particular amendment.
40.
For the aforesaid reasons, we are of the opinion that the impugned
legislation is constitutionally valid and the writ petitions are without any
merits and are dismissed, however, without costs.
.....................................CJI (K. G. BALAKRISHNAN)
.......................................J. (R. V. RAVEENDRAN)
.......................................J. (J. M. PANCHAL)
New Delhi;
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