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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 Sectio
n 8 of the Act as this issue
was not at all considered by th
e 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:
24
"The Indian Legislature has powers
expressly limited by th
e Act of the Imperial
Parliament which create
d it; and it can, of
course, do nothing beyond the limits
which circumscribes these powers. But,
when acting within thes
e limits, it is not in
any sense an agent or delegate of the
Imperial Parliament, but has, and was
intended to have, plenary powers of
legislation, as large, and of the same
nature, as those of Pa
rliament 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, an
d 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 aforesai
d principles with regard to
interpretation of a written cons
titution 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 Editio
n, Vol.I, para 2.4 at page
25
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 th
e terms of the instrument by
which affirmatively, the legislat
ive powers were created, and
by which negatively, they are restricted.
15.
We must first consider the argument of Mr. Luthra,
learned Additional Solicitor Ge
neral, that th
e 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 24
8 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 Consti
tution of India. Part XI is
titled "Relations between th
e 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
26
to any of the matters enumer
ated in List I in the Seventh
Schedule of the Constitution an
d 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 Consti
tution. Therefore, Article
246(1) read with Entry 97 and
Article 248 only provide that
in residuary matters (o
ther than matters enumerated in List
II and List III) Parliament will
have power to make law. To
quote from Commentary on th
e Constitution of India by
Durga Das Basu (8
th
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 b
ecause that subject
has not been specifically mentioned nor
can be reasonably comprehended by
judicial interpretatio
n to be included in
any of the Entries in the Legislative Lists.
To meet such a situ
ation, a residuary
power is provided, and in the Indian
27
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 specifi
c powers on Parliament to
make law providing disqualifi
cations 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 th
e Legislative Assembly or
Legislative Council of the State.
For these reasons, we are
of the considered opinion th
at the legislative power of
Parliament to enact any law re
lating to disqualification for
membership of either House of
Parliament or Legislative
28
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 24
8 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 Arti
cles 246(1) read with Entry
97 of List I of the Seventh
Schedule and 248 of the
Constitution, if not in Articles 10
2 (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 memb
ership of eith
er House of
Parliament and Legislative Asse
mbly 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 Hous
e of Parliament-(e)
if he is so disquali
fied by or under any
law made by Parliament."
"191(1)(e). "A person shall be disqualified
for being chosen as, and for being, a
member of the Legisl
ative Assembly or
Legislative Council of a State—(e) if he is
29
so disqualified by or under any law made
by Parliament.
A reading of the aforesaid two pr
ovisions in Articles 102(1)(e)
and 191(1)(e) of the Constitution would make it abundantly
clear that Parliament is to ma
ke 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 Stat
e. 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 10
2(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 pe
rson 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 canno
t be chosen as a member of
Parliament or State Legi
slature, for the same
disqualification, he cannot
continue as a member of
Parliament or the State Legislat
ure. This is so because the
30
language of Articles 102(
1)(e) and 191(1)(e) of the
Constitution is such that th
e disqualification for both a
person to be chosen as a memb
er of a House of Parliament
or the State Legislature or fo
r a person to continue as a
member of Parliament or the St
ate 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 th
e same for persons who are to
continue as members of Parlia
ment or a State Legislature
and sub-section (4) of Section 8
of the Act does not lay down
a different set of disqualificat
ions for sitting members but
merely states that the same disq
ualifications will have effect
only after the appeal or revisi
on, as the case may be, against
the conviction is decided by th
e Appellate or the Revisional
Court if such appeal or revi
sion is filed within 3 months
from the date of conviction
. We cannot accept this
contention also because of
the provisions of Articles
101(3)(a) and 190(3)(a) of the
Constitution which are quoted
hereinbelow:
31
"
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 thereu
pon become vacant"
"
190(3)(a).
Vacation of seats
.-
(1) .......
(2) .......
(3) If a member of a Ho
use 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 thereu
pon become vacant"
Thus, Article 101(3)(a) provides
that if a member of either
House of Parliament becom
es 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 an
y of the disqualifications
mentioned in clause (1), hi
s seat shall thereupon become
vacant. This is the effect of
a disqualification under Articles
102(1) and 190(1) in
curred by a member
of either House of
Parliament or a House of the St
ate Legislature. Accordingly,
once a person who was a memb
er of either House of
Parliament or House of the State Legislature becomes
32
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 vi
rtue 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 an
d 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 take
n by the President or Governor
on whether a member of Parlia
ment or State Legislature has
become subject to any of the
disqualifications mentioned in
clause (1) of Article 102 and Ar
ticle 191 of the Constitution,
the seat of the member alleged to
have been disqualified will
not become vacant under Articl
es 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 disquali
fications mentioned in clause
(1), "his seat shall thereupon
become vacant". Hence, the
seat of a member who become
s subject to any of the
33
disqualifications mentioned in cl
ause (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 disqua
lifications mentioned in clause
(1) of Articles 102
and 191 respectively of the Constitution,
it has to be held that the seat
of the member so held not to
be disqualified did not become
vacant on the date on which
the member was alleged to
have been subject to the
disqualification.
19. The result of our aforesa
id discussion is that the
affirmative words used in Ar
ticles 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 Le
gislative Council of a State
34
and for a person who is a sitt
ing member of a House of
Parliament or a House of th
e 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 th
e case of sitting members of
Parliament or State Legislatur
e from the disqualifications
under sub-sections (1), (2) and (3
) of Section 8
of the Act or
which defers the date on whic
h the disqualification will take
effect in the case of a sittin
g member of Parliament or a
State Legislature is beyond the powers conferred on
Parliament by the Constitution.
20.
Looking at the affirmative
terms of Articles 102(1)(e)
and 191(1)(e) of the Constituti
on, 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
35
Parliament to defer the date
from which the disqualification
will come into effect in ca
se of a sitting member of
Parliament or a State Legislat
ure. Parliament, therefore,
has exceeded its powers confer
red 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 Legisl
ature suffers from a frivolous
conviction by the trial court
for an offence given under sub-
section (1), (2) or (3) of Sect
ion 8 of the Act, he will be
remediless and he will suffer i
mmense hardship as he would
stand disqualified on account of such conviction in the
absence of sub-section (4) of Se
ction 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)
36
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 Sect
ion 389(1) of the Code. In
Ravikant S. Patil v. Sarvabhouma S. Bagali
[(2007) 1 SCC
673], a three-Judge Bench of th
is Court, however, observed:
"It deserves to be clarifie
d that an order granting
stay of conviction is
not the rule but is an
exception to be resort
ed to in rare cases
depending upon the fact
s of a case. Where the
execution of the sentence is stayed, the conviction
continues to operate. Bu
t 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 specif
ically seeking stay of
the order of convicti
on 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 re
ason, 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 re
spondent that the
disqualification arising ou
t of conviction continues
to operate even after
stay of conviction.
In the aforesaid case, a cont
ention was raised by the
respondents that the appella
nt was disqualified from
37
contesting the election to th
e Legislative Assembly under
sub-section (3) of Section 8 of the Act as he had been
convicted for an offence punish
able 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 co
nviction, the disqualification
arising out of the conviction ceased to operate after the stay
of conviction. Therefore, the disqualification under sub-
section (1), (2) or (3
) of Section 8 of the
Act will not operate
from the date of order of stay
of conviction passed by the
Appellate Court under Section 38
9 of the Code or the High
Court under Section 482 of the Code.
22. As we have held that Parl
iament 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 necessar
y 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-secti
on (4) of Sectio
n 8 of the Act
was held to be within the powers
of the Parliame
nt. In other
38
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-sect
ion (4) of Section 8 of the
Act is violative of Article 14
of the Constitution, we do not
think it is necessary to decide the question as to whether
sub-section (4) of Section 8 of
the Act is violative of Article
14 of the Constitution.
23. The only question that remains to be decided is
whether our declaration in th
is judgment that sub-section
(4) of Section 8 of the Act is
ultra vires
the Constitution
should affect disqualificatio
ns already incurred under sub-
sections (1), (2) and (3) of S
ection 8 of the Act by sitting
members of Parliament and St
ate Legislatures who have
filed appeals or revisions aga
inst their conviction within a
period of three months and their appeals and revisions are
still pending before the co
ncerned 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 mentione
d in the sub-sections and
remains in force for the periods mentioned in the sub-
sections. Thus, there may be
several sitting members of
39
Parliament and State Legislatures who have already
incurred disqualification by vi
rtue of a conviction covered
under sub-section (1), or sub-
section (2) or
sub-section (3)
of Section 8 of the Act. In
Golak Nath and Others
vs.
State
of Punjab and Another
(AIR 1967 SC 1643), Subba Rao, C.J.
speaking on behalf of himsel
f, Shah, Sikri, Shelat and
Vaidialingam, JJ. has held that
Articles 32, 141, 142 of the
Constitution are couched in su
ch a wide and elastic terms
as to enable this Court to formulate legal doctrines to meet
the ends of justice and has furt
her held that this Court has
the power not only to declare the law but also to restrict the
operation of the law as decl
ared to future and save the
transactions, whether statutor
y or otherwise, that were
effected on the basis of the ea
rlier law. Sitting members of
Parliament and State Legislature who have already been
convicted for any of the o
ffences mentioned in sub-section
(1), (2) and (3) of Section 8 of the Act and who have filed
appeals or revisions which ar
e pending and are accordingly
saved from the disqualifications
by virtue of sub-section (4)
of Section 8 of the Act shou
ld not, in our considered
opinion, be affected by the de
claration now made by us in
40
this judgment. This is b
ecause the knowledge that sitting
members of Parliament or State
Legislatures will no longer
be protected by sub-section (4) of
Section 8 of
the Act will be
acquired by all concerned only
on the date this judgment is
pronounced by this Court.
As has been observed by this
Court in
Harla
v. State of Rajasthan
(AIR 1951 SC 467):
"........it would be against the principles of
natural justice to permit the subjects of a
State to be punished or
penalized by laws
of which they had no
knowledge and of
which they could not
even with exercise
of due diligence have acquired any
knowledge."
However, if any sitting member
of Parliament or a State
Legislature is convicted of any of the offences mentioned in
sub-sections (1), (2) and (3) of
Section 8 of the Act and by
virtue of such conviction
and/or sentence suffers the
disqualifications mentioned in su
b-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 th
e Act which we have by this
judgment declared as
ultra vires
the Constitution
41
notwithstanding that he files th
e appeal or revision against
the conviction and /or sentence.
24. With the aforesaid declaration, the writ petitions are
allowed. No costs.
...............................................J.
(A. K. Patnaik)
.............................
.................J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.
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