Friends,
I have today sent a representation in my individual capacity to the President of India as regards the Ordinance being proposed for certain amendments in section 8, sub section 4 of the Representation of People's Act.
In Lily Thomas vs Union of India & Ors., the Supreme Court has struck down section 8(4) as being ultra-vires because it provides different dates of disqualification for sitting MP/MLA vis-à-vis those qualified to be chosen so.
Later the Representation of the People (Second Amendment and Validation) Act, 2013 which proposes amendment in section 8(4) in a minor way was introduced in the Parliament and recently an Ordinance to the same effect has been proposed by the Union Cabinet.
I have stated my personal disagreement to the proposed Ordinance because previously in PUCL vs Union of India, challenging the validity of the Representation of the People (Amendment) Ordinance, 2002, Supreme Court has already said that 'the Legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Courts', a fact which seems to hold completely true for the proposed Ordinance as well.
Amitabh Thakur
Lucknow
# 094155-34526
Lucknow
# 094155-34526
Copy of representation--
To,
The Hon'ble President of India,
New Delhi
Subject- Regarding the Ordinance being proposed as regards certain amendments in the Representation of People's Act
The Hon'ble President of India,
New Delhi
Subject- Regarding the Ordinance being proposed as regards certain amendments in the Representation of People's Act
Hon'ble Sir,
The petitioner Amitabh Thakur is an officer of the Indian Police Service in the UP Cadre but he presents this representation in his individual capacity as a responsible citizen of this Nation.
The petitioner Amitabh Thakur is an officer of the Indian Police Service in the UP Cadre but he presents this representation in his individual capacity as a responsible citizen of this Nation.
2. That as is quite well known, in the Constitution, Article 102(1) lays down the disqualifications for membership of either House of Parliament and Article 191(1) lays down the disqualifications for membership of the Legislative Assembly or Legislative Council of the State. In exercise of the power conferred under Article 102(1)(e) and under Article 191(1)(e) of the Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951 (for short 'the Act'), the disqualifications for membership of Parliament and State Legislatures. Section 7 of the Act is as regards definitions of "appropriate Government" and "disqualified". Section 8 is as regards disqualification on conviction for certain offences.
3. That in section 8 of the Act, a sub-section (4) was subsequently introduced which said-"Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court."
4. That recently in Lily Thomas vs Union of India & Ors.(Writ Petition (Civil) No. 490 of 2005) filed as Public Interest Litigations for mainly declaring sub-section (4) of Section 8 of the Act as ultra vires the Constitution, the Hon'ble Supreme Court through its order on 10/07/2013 conclusively said-"The result of our aforesaid discussion is that the affirmative words used in Articles 102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same disqualifications for a person who is to be chosen as member of either House of Parliament or as a member of the Legislative Assembly or Legislative Council of a State and for a person who is a sitting member of a House of Parliament or a House of the State Legislature and the words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such powers of the Parliament to defer the date on which the disqualifications would have effect. Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of sitting members of Parliament or State Legislature from the disqualifications under sub-sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond the powers conferred on Parliament by the Constitution."
5. That hence the Hon'ble Supreme Court said-"Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution."
5. That hence the Hon'ble Supreme Court said-"Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution."
6. That after this order of the Hon'ble Supreme Court, a Bill was introduced in the Parliament by the name of "the Representation of the People (Second Amendment and Validation) Act, 2013. Section 2 of this Bill says- "In the Representation of the People Act, 1951, in section 8, for sub-section (4), the following sub-section shall be substituted, namely:––(4) Notwithstanding anything contained in sub-section (1), sub-section (2) or sub-section (3), a disqualification under any of the said sub-sections shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect, if an appeal or application for revision is filed in respect of the conviction and sentence within a period of ninety days from the date of conviction and such conviction or sentence is stayed by the court: Provided that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State, as the case may be.'' Similarly section 3 of this Bill says-"Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951, as amended by this Act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this Act had been in force at all material times."
7. That to the best of the petitioner's understanding, a perusal of the above two sections 8(4) as it existed before being stuck down by the Hon'ble Supreme Court and the new section being introduced as section 8(4) shows that the only difference between the two are as follows-
(A) In the newly introduced sub-section, the words "such conviction or sentence is stayed by the court" has been introduced which was not there previously
(B) A Proviso is being introduced that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State.
(A) In the newly introduced sub-section, the words "such conviction or sentence is stayed by the court" has been introduced which was not there previously
(B) A Proviso is being introduced that after the date of the conviction and until the date on which the conviction is set aside by the court, the member shall neither be entitled to vote nor draw salary and allowances, but may continue to take part in the proceedings of Parliament or the Legislature of a State.
8. That while the Bill was still in the process of being cleared in the two Houses of Parliament, the session of Parliament got expired.
9. That as per the news reports, an Ordinance has been proposed by the Union Cabinet whereby the same amendments in section 8(4) of the Act as being introduced through the Representation of the People (Second Amendment and Validation) Act, 2013 has been passed by the Union Cabinet and sent to the Hon'ble Sir for promulgation of Ordinance under Article 123 of the Constitution.
10. That again as per the news reports, Hon'ble Sir has already sought certain clarification as regards this Ordinance where, as per an Indian Express report-"Sources said Mukherjee asked the ministers about the "urgency" behind issuing the ordinance, since a Bill in this regard is pending in Parliament. He is also learnt to have asked questions about the Supreme Court judgment of July 10, and wanted to know whether the government could issue an ordinance on a matter that is before a standing committee of Parliament."
11. That in this context the petitioner would like to bring into Hon'ble Sir's kind notice the facts that had arisen in almost similar circumstances when the Hon'ble Supreme Court passed a landmark judgment in May 2002 ordering all candidates seeking to be elected to the Parliament or the state assembly to disclose their criminal backgrounds, their financial assets and educational qualifications, the Government within four months promulgated an ordinance amending the Representation of People Act to negate the Hon'ble Apex court order.
12. That this was later challenged in Writ Petition (Civil) No.490 of 2002 (People's Union for Civil Liberties (PUCL) & another Versus Union of India and another) filed challenging the validity of the Representation of the People (Amendment) Ordinance, 2002 (No.4 of 2002) ("Ordinance" for short) promulgated by the President of India on 24/08/2002.
13. That in its order in PUCL vs UOI (supra), the Hon'ble Supreme Court had said-"At the outset, we would state that such exercise of power by the Legislative giving similar directions undertaken in the past and this Court in unequivocal words declared that the Legislature in this country has no power to ask the instrumentalities of the State to disobey or disregard the decisions given by the Courts. For this, we would quote some observations on the settled legal position having direct bearing on the question involved in these matters:-- A. Dealing with the validity of Bombay Provincial Municipal Corporation (Gujarat Amendment and Validating Provisions) Ordinance 1969, this Court in The Municipal Corporation of the City of Ahmedabad and Anr. v. The New Shrock Spg. and Wvg. Co. Ltd. : [1971]1SCR288 observed thus-"But no Legislature in this country has power to ask the instrumentalities of the State to disobey or disregard the decisions given by courts...'
14. That in the above case, the Hon'ble Supreme Court also said-"Further, Khanna, J. In Smt. Indira Nehru Gandhi v. Shri Raj Narain : [1976]2SCR347 succinctly and without any ambiguity observed thus:--'190. A declaration that an order made by a court of law is void is normally part of the judicial function and is not a legislative function. Although there is in the Constitution of India no rigid separation of powers, by and large the spheres of judicial function and legislative function have been demarcated and it is not permissible for the Legislature to encroach upon the judicial sphere. It has accordingly been held that a Legislature while it is entitled to change with retrospective effect the law which formed the basis of the judicial decision, it is not permissible to the Legislature to declare the judgment of the court to be void or not binding."
15. That the current situation seems no different from the one that lead to the Ordinance being challenged in the PUCL vs UOI (supra) case.
16. That similarly, the expressions made by the Hon'ble Supreme Court in PUCL vs UOI, The Municipal Corporation of the City of Ahmedabad and Anr. v. The New Shrock Spg. and Wvg. Co. Ltd and Smt. Indira Nehru Gandhi v. Shri Raj Narain seem to completely hold true as the law of the land.
17. That in the prevailing circumstances, as a concerned citizen of this Nation and as a person who strives to the best of his abilities in his individual capacity for transparency and accountability in governance and for better governance, the petitioner humbly prays before Hon'ble Sir to kindly have a look at the above mentioned facts and the legal conditions, which to the best of the petitioner's ability seem to suggest that once the Hon'ble Supreme Court has struck down section 8(4) of the Act as being ultra-vires, should not be re-introduced through the Ordinance way or otherwise, in the same form or with minor transformations because the Hon'ble Supreme Court has stated in unequivocal terms that "Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature" while such a feature seems to be attempted through the Ordinance in question.
PRAYER
A. That having stated all the facts and its legal interpretation to the best of the petitioner's abilities, the petitioner a humble citizen of this Nation, prays before the Hon'ble Sir to kindly uphold the law of the land to the best of its tradition, in keeping with the immense glory and dignity of your august and elevated office.
Lt No- AT/Des/MP/01
Dated- 27/09/2013 Regards,
Yours,
(Amitabh Thakur)
5/426, Viram Khand,
Gomti Nagar, Lucknow
# 094155-34526
amitabhthakurlko@gmail.com
Dated- 27/09/2013
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