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LB-301-Constitutional Law-I |2022
(Parliament had no power to enact S. 8(4)- Disqualification for being chosen as, or, for being MP or MLA/MLC upon conviction as provided in Ss. 8(1), (2) or (3) shall come into effect im- mediately upon such conviction and such disqualification cannot be postponed/suspended as was sought to be done by S.8(4))
(A. K. PATNAIK AND S.J. MUKHOPADHAYA, JJ.)
These two writ petitions (WRIT PETITION (CIVIL) NO. 490 OF 2005 and WRIT PETITION (CIVIL) NO. 231 OF 2005) have been filed as Public Interest Litigations for mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as ultra vires the Constitution.
The background facts
2. The background facts relevant for appreciating the challenge to sub-section (4) of Section 8 of the Act are that the Constituent Assembly while drafting the Constitution intended to lay down some disqualifications for persons being chosen as, and for being, a member of either House of Parliament as well as a member of the Legislative Assembly or Legislative Council of the State. Accordingly, in the Constitution which was finally adopted by the Constituent Assembly, Article 102(1) laid down the disqualifications for membership of either House of Parliament or Article 191(1) laid down the disqualifications for membership of the Legislative Assembly or Legisla- tive Council of the State.
These two Articles are extracted hereinbelow:
102. Disqualifications for membership.
–(1) A person shall be disqualified for being chosen as, and for being, a member
of either House of Parliament—
(a) if he holds any office of profit under the Government of India or theGovernment of any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or hasvoluntarily acquired the citizenship of a foreign State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
191. Disqualifications for membership.
– (1) A person shall be disqualified for being chosen as, and for being, a member of the Legisla- tive Assembly or Legislative Council of a State—
(a)
(b) (c) (d)
(e)
if he holds any office of profit under the Government of India or the Government of any State specified in the First Schedule, other than an office declared by the Legislature of the State by law not to disqualify its holder;
if he is of unsound mind and stands so declared by a competent court;
if he is an undischarged insolvent;
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; if he is so disqualified by or under any law made by Parliament.
118 Lily Thomas v. Union of India
[Explanation.—For the purposes of this clause], a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union or for such State.
3. A reading of the aforesaid constitutional provisions will show that besides the disqualifications laid down in clauses (a), (b), (c) and (d), Parliament could lay down by law other disqualifica- tions for membership of either House of Parliament or of Legislative Assembly or Legislative Council of the State. In exercise of this power conferred under Article 102(1)(e) and under Arti- cle 191(1)(e) of the Constitution, Parliament provided in Chapter-III of the Representation of the People Act, 1951 (for short ‘the Act’), the disqualifications for membership of Parliament and State Legislatures. Sections 7 and 8 in Chapter-III of the Act, with which we are concerned in these writ petitions, are extracted hereinbelow:
7. Definitions.—In this Chapter,—
(a) “appropriate Government” means in relation to any disqualification for being chosen as or for being a member of either House of Parliament, the Central Government, and in relation to anydisqualification for being chosen as or for being a member of the Legislative Assembly or Legislative Council of a State, the State Government;
(b) “disqualified”meansdisqualifiedforbeingchosenas,andforbeing,amemberofeitherHouse of Parliament or of the Legislative Assembly or Legislative Council of a State.
8. Disqualification on conviction forcertain offences.— (1) A person convicted of an offence punishable under—
(a) section 153A (offence of promoting enmity between different groups on ground of religion, race, place of birth, residence, language, etc., and doing act prejudicial to maintenance of harmo- ny) or section 171E (offence of bribery) or section 171F (offence of undue influence or persona- tion at an election) or subsection (1) or sub-section (2) of section 376 or section 376A or section 376B or section 376C or section 376D (offences relating to rape) or section 498A (offence of cruelty towards a woman by husband or relative of a husband) or sub-section (2) or sub-section (3) of section 505 (offence of making statement creating or promoting enmity, hatred or ill-will between classes or offence relating to such statement in any place of worship or in any assembly engaged in the performance of religious worship or religious ceremonies) of the Indian PenalCode (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment for the preaching and practice of “untouchability”, and for the enforcement of any disability arising therefrom; or
(c) section 11 (offence of importing of exporting prohibited goods) of the Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a member of an association declared unlawful, offence relating to dealing with funds of an unlawful association or offence relating to contravention of an order made in respect of a notified place) of the Unlawful Activities (Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) theNarcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or section 4 (offence of committing disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of sections 3 to 6) of the Religious Insti- tutions (Prevention of Misuse) Act, 1988 (41 of 1988); or (i) section 125 (offence of promoting enmity between classes in connection with the election) or section 135 (offence of removal of
119 Lily Thomas v. Union of India
ballot papers from polling stations) or section 135A (offence of booth capturing) of clause (a) of sub-section (2) of section 136 (offence of fraudulently defacing or fraudulently destroying any nomination paper) of this Act; [or]
[(j) section 6 (offence of conversion of a place of worship) of the Places of Worship (Special Provisions) Act, 1991], [or]
[(k) section 2 (offence of insulting theIndian National Flag or the Constitution of India) or sec- tion 3 (offence of preventing singing of National Anthem) of the Prevention of Insults to Nation- al Honour Act, 1971 (69 of 1971), [or]
[(l) theCommission of Sati (Prevention) Act, 1987 (3 of 1988); or]
[(m) the Prevention of Corruption Act, 1988 (49 of 1988); or][(n) the Prevention of Terrorism Act, 2002 (15 of 2002),] [shall be disqualified, where the convicted person is sentenced to—
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or profiteering; or (b) any law relating to the adulteration of food or drugs; or (c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to imprisonment for not less than six months, shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
(3) A person convicted of any offence and sentenced to imprisonment for not less than two years [other than any offence referred to in sub-section (1) or subsection (2)] shall be disqualified from the date of such conviction and shall continue to be disqualified for a further period of six years since his release.]
[(4)] Notwithstanding anything [in subsection (1), sub-section (2) or sub-section (3)] a disquali- fication under eithersubsection shall not, in the case of aperson who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application for revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court. Explanation. —In this section, —
(a) “law providing for the prevention of hoarding or profiteering” means any law, or any order, rule or notification having the force of law, providing for—
(I) the regulation of production or manufacture of any essential commodity;
(II) the control of price at which any essential commodity may be bought or sold; (III) the regu- lation of acquisition, possession, storage, transport, distribution, disposal, use or consumption of any essential commodity;
(IV) the prohibition of the withholdingfrom sale of any essential commodity ordinarily kept for sale;
(b) “drug” has the meaning assigned to itin the Durgs and Cosmetics Act, 1940 (23
of 1940);
(c) “essential commodity” has the meaning assigned to it in the Essential Commodity Act, 1955 (10 of 1955);
(d) “food” has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954 (37 of 1954).
120 Lily Thomas v. Union of India
4. Clause (b) of Section 7 of the Act quoted above defines the word “disqualified” to mean dis- qualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or of Legislative Council of State. Sub-sections (1), (2) and (3) of Section 8 of the Act provide that a person convicted of an offence mentioned in any of these sub-sections shall stand disqualified from the date ofconviction and the disqualification was to continue for thespecific period mentioned in the sub-section. However, subsection (4) of Section 8 of the Act provides that notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) in Section 8 of the Act, a disqualification under either subsection shall not, in the case of a person who on the date of the conviction is a member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or appli- cation for revision is brought in respect of the conviction or the sentence, until that appeal or ap- plication is disposed of by the court. It is this saving or protection provided in sub-section (4) of Section 8 of the Act for a member of Parliament or the Legislature of a State which is challenged in these writ petitions as ultra vires the Constitution.
Contentions on behalf of the Petitioners
5. Mr. Fali S. Nariman, learned Senior Counsel appearing for the petitioner in Writ Petition No. 490 of 2005 and Mr. S.N. Shukla, the General Secretary of the Petitioner in Writ Petition No. 231 of 2005, submitted that the opening words of clause (1) of Articles 102 and 191 of the Con- stitution make it clear that the same disqualifications are provided for a person being chosen as a member of either House of Parliament, or the State Assembly or Legislative Council of the State and for a person being a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State and therefore the disqualifications for a person to be elected as a member of either House of the Parliament or of the Legislative Assembly or Legislative Council of the State and for a person to continue as a member of either House of Parliament or of the Legislative Assembly or Legislative Council of the State cannot be different. In support of this submission, Mr. Nariman cited a Constitution Bench judgment of this Court in Election Commis- sion, India v. Saka Venkata Rao (AIR 1953 SC 210) in which it has been held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member. Mr. Nariman and Mr. Shukla submitted that sub-section (4) of Section 8 of the Act, insofar as it provides that the disqualification under subsections (1), (2) and (3) of Section 8 for being elected as a member of either House of Parliament or the Legislative Assembly or Legislative Council of State shall not take effect in the case of a person who is already a member of Parliament or Leg- islature of a State on the date of the conviction if he files an appeal or a revision in respect of the conviction or the sentence within three months till the appeal or revision is disposed of by the Court, is in contravention of the provisions of clause (1) of Articles 102 and 191 of the Constitu- tion.
8. According to Mr.Nariman and Mr. Shukla, in the absence of a provision in Articles 102 and 191 of the Constitution conferring power on Parliament to make a provision protecting sitting members of either House of Parliament or the Legislative Assembly or the Legislative Council ofa State, from the disqualifications it lays down for a person being chosen as a member of Parlia- ment or a State Legislature, Parliament lacks legislative powers to enact sub-section (4) of Sec- tion 8 of the Act and sub-section (4) oSection 8 of the Act is therefore ultra vires the Constitu- tion.
9. Mr. Nariman next submitted that the legal basis of sub-section (4) of Section 8 of the Act is based on an earlier judicial view in the judgment of a Division Bench of this Court in Shri Manni Lal v. Shri Parmal Lal and Others [(1970) 2 SCC 462] that when a conviction is set aside by an
121 Lily Thomas v. Union of India
appellate order of acquittal, the acquittal takes effect retrospectively and the conviction and the sentence are deemed to be set aside from the date they are recorded. He submitted that in B.R. Kapur v. State of T.N. and Another [(2001) 7 SCC 231] a Constitution Bench of this Court re- versed the aforesaid judicial view and held that conviction, and the sentence it carries, operate against the accused in all their rigour until set aside in appeal, and a disqualification that attaches to the conviction and sentence applies as well. He submitted that this later view has been reiter- ated by a Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754].
10. Mr. Nariman argued that thus as soon as a person is convicted of any of the offences men- tioned in sub-sections (1), (2) and (3) of Section 8 of the Act , he becomes disqualified from con- tinuing as a member of Parliament or of a State Legislature notwithstanding the fact that he has filed an appeal or a revision against the conviction and there is no legal basis for providing in sub- section (4) of Section 8 of the Act that his disqualification will not take effect if he files an appeal or revision within three months against the order of conviction. He submitted that in casea sitting member of Parliament or State Legislature feels aggrieved by the conviction and wants to continue as a member notwithstanding the conviction, his remedy is to move the Appellate Court for stay of the order of conviction.
11. Mr. Nariman cited the decision in Navjot Singh Sidhu v. State of Punjab and Another ([2007) 2 SCC 574] in which this Court has clarified that under sub-section (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been conferred on the Appellate Court not only to suspend the execution of the sentence and to grant bail, but also to suspend the operation of the order appealed against, which means the order of conviction. He submitted that in appropriate cases, the Appellate Court may stay the order of conviction of a sitting member of Parliament or State Legislature and allow him to continue as a member notwithstanding theconviction by the trial court, but a blanket provision likesub-section (4) of Section 8 of the Act cannot be made to keep the disqualification pursuant to conviction in abeyance till the appeal or revision is decided by the Appellate or Revisional Court.
13. Mr. Nariman and Mr. Shukla submitted that subsection (4) of Section 8 of the Act, in so far as it does not provide a rationale for making an exception in the case of members of Parliament or a Legislature of a State is arbitrary and discriminatory and is violative of Article 14 of the Constitution. They submitted that persons to be elected as members of Parliament or a State Leg- islature stand on the same footing as sitting members of Parliament and State Legislatures so far as disqualifications are concerned and sitting members of Parliament and State Legislatures can- not enjoy the special privilege of continuing as members even though they are convicted of the offences mentioned in subsections (1), (2) and (3) of Section 8 of the Act.
17. Mr. Paras Kuhad, learned ASG, appearing for the Union of India in Writ Petition (C) No.490 of 2005 also relied on the judgment of the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan etc. (supra) on the validity of sub-section (4) of Section 8 of the Act and the reason- inggiven in the answer to question no.3 in the aforesaid judgment of this Court. He further sub- mitted that subsection (4) of Section 8 of the Act does not lay down disqualifications for mem- bers of Parliament and the State Legislatures different from the disqualifications laid down for persons to be chosen as members of Parliament and the State Legislatures in sub-sections (1), (2) and (3) of Section 8 of the Act. He submitted that sub-section (4) of Section 8 of the Act merely provides that the very same disqualifications laid down in sub-sections (1), (2) and (3) of Section 8 of the Act shall in the case of sitting members of Parliament and State Legislatures take effect
122 Lily Thomas v. Union of India
only after the appeal or revision is disposed of by the Appellate or Revisional Court as the case may be if an appeal or revision is filed against the conviction.
18. Mr. Paras Kuhad submitted that Parliament has power under Article 102(1)(e) of the Consti- tution and Article 191(1)(e) of the Constitution to prescribe when exactly the disqualification will become effective in the case of sitting members of Parliament or the State Legislature with a view to protect the House. He also referred to the provisions of Articles 101(3)(a) and 190 (3)(a) of the Constitution to argue that a member of Parliament or a State Legislature will vacate a seat only when he becomessubject to any disqualification mentioned in clause (1) of Article 102 or clause (1) of Article 191, as the case may be, and this will happen only after a decision is taken by the President or the Governor that the member has become disqualified in accordance with the mechanism provided in Article 103 or Article 192 of the Constitution.
19. Mr. Kuhad further submitted that Mr. Nariman is not right in his submission that the remedy of a sitting member who is convicted or sentenced and gets disqualified under sub-sections (1), (2) or (3) of Section 8 of the Act is to move the Appellate Court under Section 389 of the Code of Criminal Procedure for stay of his conviction. He submitted that the Appellate Court does not have any power under Section 389, Cr.P.C. to stay the disqualification which would take effect from the date of conviction and therefore a safeguard had to be provided in sub-section (4) of Section 8 of the Act that the disqualification, despite the conviction or sentence, will not have effect until the appeal or revision is decided by the Appellate or the Revisional Court. He submit- ted that there is, therefore, a rationale for enacting sub-section (4) of Section 8 of the Act. Findings of the Court
20. We will first decide the issue raised before us in thesewrit petitions that Parliament lacked the legislative power to enact sub-section (4) of Section 8 of the Act as this issue was not at all considered by the Constitution Bench of this Court in the aforesaid case of K. Prab- hakaran(supra).
21. In R. v. Burah the Privy Council speaking through Selborne J. laid down the following fun- damental principles for interpretation of a written constitution laying down the powers of the In- dian Legislature (IA pp.193-94)
“………The Indian Legislature has powers expressly limited by the Act of the Impe- rial Parliament which created it; and it can, of course, do nothing beyond the limits which cir- cumscribes these powers. But, when acting within these limits, it is not in any sense an agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary powers of legisla- tion, as large, and of the same nature, as those of Parliament itself. The established Courts of Jus- tice, when aquestion arises whether the prescribedlimits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they are restricted. If what has been done is legislation within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to inquire further, or to enlarge constructively those conditions and restrictions.”
22.The correctness of the aforesaid principles with regard to interpretation of a written constitu- tion has been re-affirmed by the majority of Judges in Kesavananda Bharti v. State of kerala (AIR 1973 SC 1465) (See the Constitutional Law of India, H.M. Seervai, Fourth Edition, Vol.I, para 2.4 at page 174). Hence, when a question is raised whether Parliament has exceeded the limits of its powers, courts have to decide the question by looking to the terms of the instrument
123 Lily Thomas v. Union of India
by which affirmatively, the legislative powers were created, and by which negatively, they are restricted.
23. We must first consider the argument of Mr. Luthra, learned Additional Solicitor General, that the legislative power to enact sub-section (4) of Section 8 of the Act is located in Article 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the Constitution.
24. Articles 246 and 248 of the Constitution are placed in Chapter I of Part XI of the Constitution of India. Part XI is titled “Relations between the Union and the States” and Chapter I of Part XI is titled “Legislative Relations”. In Chapter I of Part XI, under the heading “Distribution of Leg- islative 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 Legisla- tures of the States. Article 246(1) provides that Parliament has exclusive power to make lawswith respectto any of the matters enumerated in List I in the Seventh Schedule of the Constitu- tion and under Entry 97 of List I of the Seventh Schedule of the Constitution, Parliament has ex- clusive 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 Sev- enth Schedule of the Constitution. Therefore, Article 246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than matters enumerated in List II and List III) Par- liament will have power to make law.
25. To quote from Commentary on the Constitution of India by Durga Das Basu (8th Edition) Volume 8 at page 8988:
“In short, the principle underlying Article 248, read with Entry 97 of List I, is that a written Constitution, which divides legislative power as between two legislatures in a federation, cannot intend that neither of such Legislatures shall go without power to legislate with respect of any subject simply because that subject has not been specifically mentioned nor can be reasonably comprehended by judicial interpretation to be included in any of the Entries in the Legislative Lists. To meet such a situation, a residuary power is provided, and in the Indian Constitution, this residuary power is vested in the Union Legislature. Once, therefore, it is found that a particular subject-matter has not been assigned to the competence of the State Legislature, “it leads to the irresistible inference that (the Union) Parliament would have legislative competence to deal with the subject-matter in question.”
26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred spe- cific powers on Parliament to make law providing disqualifications for membership of either House of Parliament or Legislative Assembly or Legislative Council of the State other than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of the Constitu- tion. We may note that no power isvested in the State Legislature to make law laying downdis- qualifications 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 mem- bers of the Legislative Assembly or Legislative Council of the State. For these reasons, we are of the considered opinion that the legislative power of Parliament to enact any law relating to dis- qualification for membership of either House of Parliament or Legislative Assembly or Legisla- tive Council of the State can be located only in Articles 102(1)(e) and 191(1)(e) of the Constitu- tion and not in Articles 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. We do not, therefore, accept the contention of Mr. Luthra that the power to enact sub-section (4) of Section 8 of the Act is vested in Parliament under Articles 246(1) read
124 Lily Thomas v. Union of India
with Entry 97 of List I of the Seventh Schedule and 248 of the Constitution, if not in Articles 102 (1)(e) and 191 (1)(e) of the Constitution.
27. Articles 102(1)(e) and 191(1)(e) of the Constitution, which contain the only source of legisla- tive power to lay down disqualifications for membership of either House of Parliament and Leg- islative Assembly or Legislative Council of a State, provide as follows:
“102. Disqualification for Membership -(1) A person shall be disqualified for being cho- sen as, and for being, a member of either House of Parliament-(e) if he is so disqualified by or under any law made by Parliament.”
“191. Disqualification for Membership (1) “A person shall be disqualified for being cho- sen as, and for being, a member of the Legislative Assembly or Legislative Council of a State— (e) if he is so disqualified by or under any law made by Parliament.
28. A reading of the aforesaid two provisions in Articles 102(1)(e) and 191(1)(e) of the Constitu- tion would make it abundantly clear that Parliament is to make one law for a person to be dis- qualified for being chosen as, and for being, a member of either House of Parliament or Legisla- tive Assembly or Legislative Council of the State. In the language of the Constitution Bench of this Court in Election Commission, India v. Saka Venkata Rao (supra), Article 191(1) [which is identically worded as Article 102(1)] lays down “the same setof disqualifications for election as well as for continuing as amember”. Parliament thus does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make different laws for a person to be disqualified for being chosen as a member and for a person to be disqualified for continuing as a member of Parliament or the State Legislature. To put it differently, if because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for the same disqualification, he cannot continue as a member of Parliament or the State Legislature. This is so because the language of Articles 102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person to be chosen as a member of a House of Parliament or the State Legislature or for a person to continue as a member of Parliament or the State Legislature has to be the same.
33. 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 disqual- ifications for person to be chosen as a member of Parliament or a State Legislature and for a sit- ting 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.
36. As we have held that Parliament had no power to enact sub-section (4) of Section 8 of the Act and accordingly subsection (4) of Section 8 of the Act is ultra vires the Constitution, it is not necessary for us to go into the other issue raised in these writ petitions that sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been necessary for us to go into this question only if sub-section (4) of Section 8 of the Act was held to be withinthe powers of the Parliament. In other words, as we can declare sub-section (4) of Section 8 of the Act as ultra vires the Constitution without going into thequestion as to whether sub-section
(4) of Section 8 of the Act is violative of Article 14 of the Constitution, we do not think it is nec- essary to decide the question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution.
125 Lily Thomas v. Union of India
37. The only question that remains to be decided is whether our declaration in this judgment that sub-section (4) of Section 8 of the Act is ultra vires the Constitution should affect disqualifica- tions already incurred under subsections (1), (2) and (3) of Section 8 of the Act by sitting mem- bers of Parliament and State Legislatures who have filed appeals or revisions against their con- viction within a period of three months and their appeals and revisions are still pending before the concerned court.
38. Under subsections (1), (2) and (3) of Section 8 of the Act, the disqualification takes effect from the date of conviction for any of the offences mentioned in the sub-sections and remains in force for the periods mentioned in the subsections. Thus, there may be several sitting members of Parliament and State Legislatures who have already incurred disqualification by virtue of a con- viction 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), SubbaRao, C.J. speaking on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. has held that Articles 32, 141, 142 of the Constitution are couched in such a wide and elastic terms as to ena- ble this Court to formulate legal doctrines to meet the ends of justice and has further held that this Court has the power not only to declare the law but also to restrict the operation of the law asdeclared to future and save the transactions, whether statutory or otherwise, that were effected onthe basis of the earlier law. Sitting members of Parliament and State Legislature who have al- ready been convicted for any of the offences mentioned in sub-section (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which are pending and are accordinglysaved from the disqualifications by virtue of sub-section (4) of Section 8 of the Act should not, inour considered opinion, be affected by the declaration now made by us in this judgment. This is because the knowledge that sitting members of Parliament or State Legislatures will no longer beprotected by sub-section (4) of Section 8 of the Act will be acquired by all concerned only on thedate 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 ofnatural justice to permit the subjects of aState to be punished or penalized by laws of which they had no knowledge and of which they could not even with exercise of due diligence have acquired any knowledge.”
However, if any sitting member of Parliament or a State Legislature is convicted of any of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership of Parliament or the State Legislature, as the case may be, will not be saved by subsection(4) of Section 8 of the Act which we have by this judgment declared as ultra vires the Constitution notwithstanding that he files the appeal or revision against the conviction and /or sentence.
39. With aforesaid declaration, the writ petitions are allowed. No costs.
.
126 Lily Thomas v. Union of India Lok Prahari (through General Secretary S N Shukla) v. Election Commission of
India, (2018)18 SCC 114
Coram: Dipak Misra, C.J. and AM Khanwelker And Dr. Dhananjaya Chandrachud, JJ.
The petitioner sought declaration that since the law does not provide for stay of conviction, even in case of the stay of conviction by the appellate court for an offence attracting disqualification under Section 8 of the R P Act, 1951, any such order does not have the effect of wiping out the disqualification and the seat of the member concerned is deemed to have become vacant with effect from the date of conviction in terms of Articles 101(3)(a) and 190(3)(a). The Election Commission of India supported this prayer in its counter-affidavit. The Court held that it is set- tled in Lily Thomas v. Union of India (2013) 7 SCC 653 and Ravikant S. Patil v. Sarvabhaou- ma S. Bagali (2007) 1 SCC 673 that upon stay of a conviction under Section 389 of the CrPC thedisqualification under Section 8 will not operate.
Consumer Education and Research Society v. Union of India & Ors., (2009) 9 SCC 648.
Coram: K.G. Balakrishnan CJI, R.V. Raveendran J., J.M. Panchal J.
Post the Jaya Bachchan case (Jaya Bachchan v. Union of India (2005) 3 SCC 87), the Parlia- ment (Prevention of Disqualification) Amendment Act, 2006 added 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. The constitutional validity of this Amendment Act was challenged by way of PIL on the ground that it retrospectively exempted certain offices. The court held that a disqualifica- tion results in vacation of the seat of a Member only when under Article 103 the President, onthe advice of the Election Commission, declares that Member as disqualified. Therefore, till the time the President makes the declaration, the Parliament can bring an amendment for retrospec- tively exempting the disqualification.
