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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 490 OF 2005
Lily Thomas

Petitioner
Versus

Union of India & Ors.

Respondents
WITH

WRIT PETITION (CIVIL) NO. 231 OF 2005

Lok Prahari, through its General Secretary
S.N. Shukla

Petitioner

Versus
Union of India & Ors.

Respondents

JUDGEMENT
A. K. PATNAIK, J.
These two writ petitions have been filed as Public
Interest Litigations for mainly declaring sub-section (4) of
Section 8 of the Representation of the People Act, 1951 as
ultra vires the Constitution.
The background facts

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2.

The background facts relevant for appreciating the

challenge to sub-section (4) of Section 8 of the Act are

that

the

Constituent

Assembly

while

drafting

the

Constitution intended to lay down some disqualifications

for persons being chosen as, and for being, a member of
either House of Parliament as well as a member of the
Legislative Assembly or Legislative Council of the State.
Accordingly, in the Constitution which was finally adopted
by the Constituent Assembly, Article 102(1) laid down the
disqualifications for membership of either House of
Parliament

and

disqualifications

Article
for

191(1)

membership

laid
of

the

down

the

Legislative

Assembly or Legislative Council of the State. These two

Articles are extracted hereinbelow:
102.
Disqualifications
for
membership. (1) A person shall be
disqualified for being chosen as, and for
being, a member of either House of
Parliament
(a) if he holds any office of profit under
the Government of India or the
Government of any State, other than an
office declared by Parliament by law not
to disqualify its holder;
(b) if he is of unsound mind and stands
so declared by a competent court;

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(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India, or has
voluntarily acquired the citizenship of a
foreign
State,
or is under any
acknowledgment
of
allegiance
or
adherence to a foreign State;
(e) if he is so disqualified by or under
any law made by Parliament.

191.
Disqualifications
for
membership. (1) A person shall be
disqualified for being chosen as, and for
being, a member of the Legislative
Assembly or Legislative Council of a
State
(a) if he holds any office of profit under
the Government of India or the
Government of any State specified in
the First Schedule, other than an office
declared by the Legislature of the State
by law not to disqualify its holder;
(b) if he is of unsound mind and stands
so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has
voluntarily acquired the citizenship of a
foreign
State,
or is under any
acknowledgment
of
allegiance
or
adherence to a foreign State;
(e) if he is so disqualified by or under
any law made by Parliament.

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[Explanation.For the purposes of this

clause], a person shall not be deemed to
hold an office of profit under the
Government of India or the Government
of any State specified in the First
Schedule by reason only that he is a
Minister either for the Union or for such
State.

A reading of the aforesaid constitutional provisions will

show that besides the disqualifications laid down in
clauses (a), (b), (c) and (d), Parliament could lay down by
law other disqualifications for membership of either House
of Parliament or of Legislative Assembly or Legislative
Council of the State. In exercise of this power conferred
under Article 102(1)(e) and under Article 191(1)(e) of the
Constitution, Parliament provided in Chapter-III of the
Representation of the People Act, 1951 (for short the
Act), the disqualifications for membership of Parliament
and State Legislatures. Sections 7 and 8 in Chapter-III of
the Act, with which we are concerned in these writ
petitions, are extracted hereinbelow:

7. Definitions.In this Chapter,

(a) "appropriate Government" means in
relation to any disqualification for being
chosen as or for being a member of
either House of Parliament, the Central

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Government, and in relation to any

disqualification for being chosen as or
for being a member of the Legislative
Assembly or Legislative Council of a
State, the State Government;
(b) "disqualified" means disqualified for
being chosen as, and for being, a
member of either House of Parliament
or of the Legislative Assembly or
Legislative Council of a State.
8. Disqualification on conviction for
certain offences. (1) A person
convicted of an offence punishable
under
(a) section 153A (offence of promoting
enmity between different groups on
ground of religion, race, place of birth,
residence, language, etc., and doing
acts prejudicial to maintenance of
harmony) or section 171E (offence of
bribery) or section 171F (offence of
undue influence or personation at an
election) or sub-section (1) or subsection (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 subsection (3) of section 505 (offence of
making statement creating or promoting
enmity, hatred or ill-will between classes
or offence relating to such statement in
any place of worship or in any assembly
engaged in the performance of religious
worship or religious ceremonies) of the
Indian Penal Code (45 of 1860); or

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(b) the Protection of Civil Rights Act,

1955 (22 of 1955) which provides for
punishment for the preaching and
practice of "untouchability", and for the
enforcement of any disability arising
therefrom; or
(c) section 11 (offence of importing or
exporting prohibited goods) of the
Customs Act, 1962 (52 of 1962); or
(d) sections 10 to 12 (offence of being a
member of an association declared
unlawful, offence relating to dealing with
funds of an unlawful association or
offence relating to contravention of an
order made in respect of a notified
place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation)
Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic
Substances Act, 1985 (61 of 1985); or
(g) section 3 (offence of committing
terrorist acts) or section 4 (offence of
committing disruptive activities) of the
Terrorist
and
Disruptive
Activities
(Prevention) Act, 1987 (28 of 1987); or
(h) section 7 (offence of contravention
of the provisions of sections 3 to 6) of
the Religious Institutions (Prevention of
Misuse) Act, 1988 (41 of 1988); or
(i) section 125 (offence
enmity between classes
with the election) or
(offence of removal of
from polling stations) or

of promoting
in connection
section 135
ballot papers
section 135A

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(offence of booth capturing) of clause

(a) of sub-section (2) of section 136
(offence of fraudulently defacing or
fraudulently destroying any nomination
paper) of this Act; [or]
[(j) section 6 (offence of conversion of a
place of worship) of the Places of
Worship (Special Provisions) Act, 1991],
[or]
[(k) section 2 (offence of insulting the
Indian National Flag or the Constitution
of India) or section 3 (offence of
preventing singing of National Anthem)
of the Prevention of Insults to National
Honour Act, 1971 (69 of 1971), [or]
[(l) the Commission of Sati (Prevention)
Act, 1987 (3 of 1988); or]
[(m) the Prevention of Corruption Act,
1988 (49 of 1988); or]
[(n) the Prevention of Terrorism Act,
2002 (15 of 2002),]
[shall be disqualified, where the
convicted person is sentenced to
(i) only fine, for a period of six years
from the date of such conviction;
(ii) imprisonment, from the date of such
conviction and shall continue to be
disqualified for a further period of six
years since his release.]
(2) A person convicted
contravention of

for

the

(a) any law providing for the prevention

of hoarding or profiteering; or

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(b) any law relating to the adulteration

of food or drugs; or
(c) any provisions of the Dowry
Prohibition Act, 1961 (28 of 1961); and
sentenced to imprisonment for not less
than six months, shall be disqualified
from the date of such conviction and
shall continue to be disqualified for a
further period of six years since his
release.]
(3) A person convicted of any offence
and sentenced to imprisonment for not
less than two years [other than any
offence referred to in sub-section (1) or
sub-section (2)] shall be disqualified
from the date of such conviction and
shall continue to be disqualified for a
further period of six years since his
release.]
[(4)] Notwithstanding anything [in subsection (1), sub-section (2) or subsection (3)] a disqualification under
either subsection shall not, in the case
of a person who on the date of the
conviction is a member of Parliament or
the Legislature of a State, take effect
until three months have elapsed from
that date or, if within that period an
appeal or application for revision is
brought in respect of the conviction or
the sentence, until that appeal or
application is disposed of by the court.
Explanation. In this section,
(a) "law providing for the prevention of
hoarding or profiteering" means any

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law, or any order, rule or notification

having the force of law, providing for
(I)

the regulation of production or

manufacture of any essential
commodity;
(II) the control of price at which any
essential commodity may be
bought or sold;
(III) the
regulation
of
acquisition,
possession,
storage,
transport,
distribution,
disposal,
use
or
consumption of any essential
commodity;
(IV) the prohibition of the withholding
from
sale
of
any
essential
commodity ordinarily kept for sale;
(b) "drug" has the meaning assigned to
it in the Durgs and Cosmetics Act, 1940
(23 of 1940);
(c) "essential commodity" has the
meaning assigned to it in the Essential
Commodity Act, 1955 (10 of 1955);
(d) "food" has the meaning assigned to
it in the Prevention of Food Adulteration
Act, 1954 (37 of 1954).
3.

Clause (b) of Section 7 of the Act quoted above

defines the word disqualified to mean disqualified for

being chosen as, and for being, a member of either House
of Parliament or of the Legislative Assembly or of
Legislative Council of State. Sub-sections (1), (2) and (3)
of Section 8 of the Act provide that a person convicted of

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an offence mentioned in any of these sub-sections shall

stand disqualified from the date of conviction and the
disqualification was to continue for the specific period
mentioned in the sub-section. However, sub-section (4) of
Section 8 of the Act provides that notwithstanding
anything in sub-section (1), sub-section (2) or sub-section
(3) in Section 8 of the Act, a disqualification under either
subsection shall not, in the case of a person who on the
date of the conviction is a member of Parliament or the
Legislature of a State, take effect until three months have
elapsed from that date or, if within that period an appeal
or application for revision is brought in respect of the
conviction or the sentence, until that appeal or application
is disposed of by the court. It is this saving or protection
provided in sub-section (4) of Section 8 of the Act for a
member of Parliament or the Legislature of a State which
is challenged in these writ petitions as ultra vires the
Constitution.
Contentions on behalf of the Petitioners
4.

Mr.

Fali

S.

Nariman,

learned

Senior

Counsel

appearing for the petitioner in Writ Petition No. 490 of

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2005 and Mr. S.N. Shukla, the General Secretary of the

Petitioner in Writ Petition No. 231 of 2005, submitted that
the opening words of clause (1) of Articles 102 and 191 of
the

Constitution

make

it

clear

that

the

same

disqualifications are provided for a person being chosen as

a member of either House of Parliament, or the State
Assembly or Legislative Council of the State and for a
person being a member of either House of Parliament or of
the Legislative Assembly or Legislative Council of a State
and therefore the disqualifications for a person to be
elected as a member of either House of the Parliament or
of the Legislative Assembly or Legislative Council of the
State and for a person to continue as a member of either
House of Parliament or of the Legislative Assembly or
Legislative Council of the State cannot be different.
support

of

this

submission,

Mr.

Nariman

cited

In
a

Constitution Bench judgment of this Court in Election

Commission, India v. Saka Venkata Rao (AIR 1953 SC 210)
in which it has been held that Article 191 lays down the
same set of disqualifications for election as well as for
continuing as a member.

Mr. Nariman and Mr. Shukla

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submitted that sub-section (4) of Section 8 of the Act,

insofar as it provides that the disqualification under 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 Legislature of a State on the date of the
conviction if he files an appeal or a revision in respect of
the conviction or the sentence within three months till the
appeal or revision is disposed of by the Court,

is in

contravention of the provisions of clause (1) of Articles

102 and 191 of the Constitution.
5.

Mr. Shukla referred to the debates of the Constituent

Assembly on Article 83 of the Draft Constitution, which

corresponds to Article 102 of the Constitution.

In these

debates, Mr. Shibban Lal Saksena, a member of the

Constituent Assembly moved an Amendment No. 1590 on
19.05.1949 to provide that when a person who, by virtue
of conviction becomes disqualified and is on the date of
disqualification a member of Parliament, his seat shall,
notwithstanding anything in this Article, not become

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vacant by reason of the disqualification until three months

have elapsed from the date thereof or, if within those
three months an appeal or petition for revision is brought
in respect of the conviction or the sentence, until that
appeal or petition is disposed of, but during any period
during which his membership is preserved by this
provision, he shall not sit or vote. Mr. Shukla submitted
that this amendment to Article 83 of the Draft Constitution
was not adopted in the Constituent Assembly. Instead, in
sub-clause (e) of clause (1) of Articles 102 and 191 of the
Constitution, it was provided that Parliament may make a
law providing disqualifications besides those mentioned in
sub-clauses (a), (b), (c) and (d) for a person being chosen
as, and for being, a member of either House of Parliament
and of the Legislative Assembly or Legislative Council of a
State. Mr. Shukla submitted that despite the fact that a
provision similar to sub-section (4) of Section 8 of the Act
was

not

incorporated

in

the

Constitution

by

the

Constituent Assembly, Parliament has enacted sub-section

(4) of Section 8 of the Act.

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6.

According to Mr. Nariman and Mr. Shukla, in the

absence of a provision in Articles 102 and 191 of the

Constitution conferring power on Parliament to make a
provision protecting sitting members of either House of
Parliament or the Legislative Assembly or the Legislative
Council of a State, from the disqualifications it lays down
for a person being chosen as a member of Parliament or a
State Legislature, Parliament lacks legislative powers to
enact sub-section (4) of Section 8 of the Act and subsection (4) of Section 8 of the Act is therefore ultra vires
the Constitution.
7.

Mr. Nariman next submitted that the legal basis of

sub-section (4) of Section 8 of the Act is based on an

earlier judicial view in the judgment of a Division Bench of
this Court in Shri Manni Lal v. Shri Parmal Lal and Others
[(1970) 2 SCC 462] that when a conviction is set aside by
an appellate order of acquittal, the acquittal takes effect
retrospectively and the conviction and the sentence are
deemed to be set aside from the date they are recorded.
He submitted that in B.R. Kapur v. State of T.N. and
Another [(2001) 7 SCC 231] a Constitution Bench of this

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Court reversed the aforesaid judicial view and held that

conviction, and the sentence it carries, operate against
the accused in all their rigour until set aside in appeal, and
a disqualification that attaches to the conviction and
sentence applies as well.

He submitted that this later

view has been reiterated by a Constitution Bench of this

Court in K. Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC
754]. Mr. Nariman argued that thus as soon as a person is
convicted of any of the offences mentioned in sub-sections
(1), (2) and (3) of Section 8 of the Act, he becomes
disqualified from continuing as a member of Parliament or
of a State Legislature notwithstanding the fact that he has
filed an appeal or a revision against the conviction and
there is no legal basis for providing in sub-section (4) of
Section 8 of the Act that his disqualification will not take
effect if he files an appeal or revision within three months
against the order of conviction. He submitted that in case
a sitting member of Parliament or State Legislature feels
aggrieved by the conviction and wants to continue as a
member notwithstanding the conviction, his remedy is to
move the Appellate Court for stay of the order of

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conviction. He cited the decision in Navjot Singh Sidhu v.

State of Punjab and Another ([2007) 2 SCC 574] in which
this Court has clarified that under sub-section (1) of
Section 389 of the Code of Criminal Procedure, 1973
power has been conferred on the Appellate Court not only
to suspend the execution of the sentence and to grant
bail, but also to suspend the operation of the order
appealed against, which means the order of conviction.
He submitted that in appropriate cases, the Appellate
Court may stay the order of conviction of a sitting member
of Parliament or State Legislature and allow him to
continue as a member notwithstanding the conviction by
the trial court, but a blanket provision like sub-section (4)
of Section 8 of the Act cannot be made to keep the
disqualification pursuant to conviction in abeyance till the
appeal or revision is decided by the Appellate or
Revisional Court.
8.

Mr. Nariman and Mr. Shukla submitted that in K.

Prabhakaran v. P. Jayarajan etc. (supra) the validity of subsection (4) of Section 8 of the Act was not under challenge
and only a reference was made to the Constitution Bench

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of this Court on certain questions which arose in civil

appeals against judgments delivered by the High Court in
election cases under the Act.

They submitted that the

Constitution Bench of this Court framed three questions

with regard to disqualification of a candidate under
Section 8 of the Act and while answering question no.3,
the Constitution Bench indicated reasons which seem to
have persuaded Parliament to classify sitting members of
the House into a separate category and to provide in subsection (4) of Section 8 of the Act that if such sitting
members file appeal or revision against the conviction
within three months, then the disqualification on account
of their conviction will not take effect until the appeal or
revision is decided by the appropriate court.

They

submitted that the opinion expressed by the Constitution

Bench of this Court in K. Prabhakaran v. P. Jayarajan etc.
(supra) regarding the purpose for which Parliament
classified

sitting

members

of

Parliament

and

State

Legislatures into a separate category and protected them

from the disqualifications by the saving provision in subsection (4) of Section 8 of the Act are obiter dicta and are

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not binding ratio on the issue of the validity of sub-section

(4) of Section 8 of the Act.
9.

Mr. Nariman and Mr. Shukla submitted that sub-

section (4) of Section 8 of the Act, in so far as it does not

provide a rationale for making an exception in the case of
members of Parliament or a Legislature of a State is
arbitrary and discriminatory and is violative of Article 14 of
the Constitution.

They submitted that persons to be

elected as members of Parliament or a State Legislature

stand on the same footing as sitting members of
Parliament

and

State

Legislatures

so

far

as

disqualifications are concerned and sitting members of

Parliament and State Legislatures cannot enjoy the special
privilege of continuing as members even though they are
convicted of the offences mentioned in sub-sections (1),
(2) and (3) of Section 8 of the Act.
Contentions of behalf of the respondents
10. Mr. Siddharth Luthra, learned ASG appearing for the
Union of India in Writ Petition (C) 231 of 2005, submitted
that the validity of sub-section (4) of Section 8 of the Act
has been upheld by the Constitution Bench of this Court in

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K. Prabhakaran v. P. Jayarajan etc. (supra). He submitted

that while answering question no.3, the Constitution
Bench has held in Prabhakarans case that the purpose of
carving out a saving in sub-section (4) of Section 8 of the
Act is not to confer an advantage on sitting members of
Parliament or of a State Legislature but to protect the
House. He submitted that in para 58 of the judgment the
Constitution Bench has explained that if a member of the
House was debarred from sitting in the House and
participating in the proceedings, no sooner the conviction
was pronounced followed by sentence of imprisonment,
entailing

forfeiture

consequences

would

of

his

follow:

membership,
first,

the

then
strength

two
of

membership of the House shall stand reduced, so also the

strength of the political party to which such convicted
member may belong and the Government in power may
be surviving on a razor-edge thin majority where each
member counts significantly and disqualification of even
one member may have a deleterious effect on the
functioning of the Government; second, a bye-election
shall have to be held which exercise may prove to be

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futile, also resulting in complications in the event of the

convicted member being acquitted by a superior criminal
court. Mr. Luthra submitted that for the aforesaid two
reasons, Parliament has classified the sitting members of
Parliament or a State Legislature in a separate category
and provided in sub-section (4) of Section 8 of the Act that
if on the date of incurring disqualification, a person is a
member of Parliament or of a State Legislature, such
disqualification shall not take effect for a period of three
months from the date of such disqualification to enable
the sitting member to file appeal or revision challenging
his conviction, and sentence and if such an appeal or
revision is filed, then applicability of the disqualification
shall stand deferred until such appeal or

revision is

disposed of by the appropriate Court.

11. Mr. Luthra next submitted that the reality of the
Indian judicial system is that acquittals in the levels of the
Appellate Court such as the High Court are very high and
it is for this reason that Parliament has provided in subsection (4) of Section 8 of the Act that disqualification
pursuant to conviction or sentence in the case of sitting

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members should stand deferred till the appeal or revision

is decided by the Appellate or the Revisional Court.

He

submitted that the power to legislate on disqualification of

members

of

Parliament

and

the

State

Legislature

conferred on Parliament carries with it the incidental

power to say when the disqualification will take effect. He
submitted that the source of legislative power for enacting
sub-section (4) of Section 8 of the Act is, therefore, very
much there in Articles 101(1)(e) and 191(1)(e) of the
Constitution and if not in these articles of the Constitution,
in Article 246(1) read with Entry 97 of List I of the Seventh
Schedule of the Constitution and Article 248 of the
Constitution, which confer powers on Parliament to
legislate on any matter not enumerated in List II and List
III of the Seventh Schedule of the Constitution.
12. Mr. Paras Kuhad, learned ASG, appearing for the
Union of India in Writ Petition (C) No.490 of 2005 also
relied on the judgment of the Constitution Bench of this
Court in K. Prabhakaran v. P. Jayarajan etc. (supra) on the
validity of sub-section (4) of Section 8 of the Act and the
reasoning given in the answer to question no.3 in the

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aforesaid judgment of this Court.

He further submitted

that sub-section (4) of Section 8 of the Act does not lay

down disqualifications for members of Parliament and the
State Legislatures different from the disqualifications laid
down for persons to be chosen as members of Parliament
and the State Legislatures in sub-sections (1), (2) and (3)
of Section 8 of the Act. He submitted that sub-section (4)
of Section 8 of the Act merely provides that the very same
disqualifications laid down in sub-sections (1), (2) and (3)
of Section 8 of the Act shall in the case of sitting members
of Parliament and State Legislatures take effect only after
the appeal or revision is disposed of by the Appellate or
Revisional Court as the case may be if an appeal or
revision is filed against the conviction. He submitted that
Parliament has power under Article 102(1)(e) of the
Constitution and Article 191(1)(e) of the Constitution to
prescribe when exactly the disqualification will become
effective in the case of sitting members of Parliament or
the State Legislature with a view to protect the House. He
also referred to the provisions of Articles 101(3)(a) and
190 (3)(a) of the Constitution to argue that a member of

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Parliament or a State Legislature will vacate a seat only

when

he

becomes

subject

to

any

disqualification

mentioned in clause (1) of Article 102 or clause (1) of

Article 191, as the case may be, and this will happen only
after a decision is taken by the President or the Governor
that the member has become disqualified in accordance
with the mechanism provided in Article 103 or Article 192
of the Constitution.
13. Mr. Kuhad further submitted that Mr. Nariman is not
right in his submission that the remedy of a sitting
member who is convicted or sentenced and gets
disqualified under sub-sections (1), (2) or (3) of
Section 8 of the Act is to move the Appellate Court
under Section 389 of the Code of Criminal Procedure
for stay of his conviction.

He submitted that the

Appellate Court does not have any power under

Section 389, Cr.P.C. to stay the disqualification which
would take effect from the date of conviction and
therefore a safeguard had to be provided in subsection (4) of Section 8 of the Act that the
disqualification, despite the conviction or sentence,

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will not have effect until the appeal or revision is

decided by the Appellate or the Revisional Court. He
submitted that there is, therefore, a rationale for
enacting sub-section (4) of Section 8 of the Act.
Findings of the Court
14. We will first decide the issue raised before us in these
writ petitions that Parliament lacked the legislative
power to enact sub-section (4) of Section 8 of the Act
as this issue was not at all considered by the
Constitution Bench of this Court in the aforesaid case
of K. Prabhakaran (supra).

In The Empress v. Burah

and Another [(1878) 5 I.A. 178] the Privy Council

speaking through Selborne J. laid down the following
fundamental principles for interpretation of a written
constitution laying down the powers of the Indian
Legislature:
The Indian Legislature has powers
expressly limited by the Act of the
Imperial Parliament which created it; and
it can, of course, do nothing beyond the
limits which circumscribes these powers.
But, when acting within these limits, it is
not in any sense an agent or delegate of
the Imperial Parliament, but has, and was
intended to have, plenary powers of

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legislation, as large, and of the same

nature, as those of Parliament itself. The
established Courts of Justice, when a
question arises whether the prescribed
limits have been exceeded, must of
necessity determine that question; and
the only way in which they can properly
do so, is by looking to the terms of the
instrument by which, affirmatively, the
legislative powers were created, and by
which, negatively, they are restricted. If
what has been done is legislation within
the general scope of the affirmative
words which give the power, and if it
violates
no
express
condition
or
restriction by which that power is limited
(in which category would, of course, be
included any Act of the Imperial
Parliament at variance with it), it is not
for any Court of Justice to inquire further,
or to enlarge constructively those
conditions and restrictions.
The correctness of the aforesaid principles with regard to
interpretation of a written constitution has been reaffirmed by the majority of Judges in Kesavananda Bharti
v.

State

of

Kerala

(AIR

1973

SC

1465)

(See

the

Constitutional Law of India, H.M. Seervai, Fourth Edition,

Vol.I, para 2.4 at page 174). Hence, when a question is
raised whether Parliament has exceeded the limits of its
powers, courts have to decide the question by looking to
the terms of the instrument by which affirmatively, the

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2

legislative powers were created, and by which negatively,

they are restricted.
15.We must first consider the argument of Mr. Luthra,
learned Additional Solicitor General, that the legislative
power to enact sub-section (4) of Section 8 of the Act is
located in Article 246(1) read with Entry 97 of List I of
the

Seventh

Schedule

and

Article

248

of

the

Constitution, if not in Articles 102(1)(e) and 191(1)(e)

of the Constitution.

Articles 246 and 248 of the

Constitution are placed in Chapter I of Part XI of the

Constitution of India.

Part XI is titled Relations

between the Union and the States and Chapter I of

Part XI is titled Legislative Relations. In Chapter I of
Part XI, under the heading Distribution of Legislative
Powers Articles 245 to 255 have been placed.

reading of Articles 245 to 255 would show that these

relate to distribution of legislative powers between the
Union and the Legislatures of the States. Article 246(1)
provides that Parliament has exclusive power to make
laws with respect to any of the matters enumerated in
List I in the Seventh Schedule of the Constitution and

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under Entry 97 of List I of the Seventh Schedule of the

Constitution, Parliament has exclusive power to make
law with respect to any other matter not enumerated in
List II or List III.

Article 248 similarly provides that

Parliament has exclusive power to make any law with

respect

to

any

matter

not

enumerated

in

the

Concurrent List (List III) or State List (List II) of the

Seventh Schedule of the Constitution.

Therefore,

Article 246(1) read with Entry 97 and Article 248 only

provide that in residuary matters (other than matters
enumerated in List II and List III) Parliament will have
power to make law. To quote from Commentary on the
Constitution of India by Durga Das Basu (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 because
that subject has not been specifically
mentioned nor can be reasonably
comprehended by judicial interpretation
to be included in any of the Entries in
the Legislative Lists. To meet such a
situation, a residuary power is provided,

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2

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 subjectmatter in question.
Articles 102(1)(e) and 191(1)(e) of the Constitution, on the
other hand, have conferred specific powers on Parliament
to make law providing disqualifications for membership of
either House of Parliament or Legislative Assembly or
Legislative Council of the State other than those specified
in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles
102 and 191 of the Constitution.

We may note that no

power is vested in the State Legislature to make law

laying down disqualifications of membership of the
Legislative Assembly or Legislative Council of the State
and power is vested in Parliament to make law laying
down disqualifications also in respect of members of the
Legislative Assembly or Legislative Council of the State.
For these reasons, we are of the considered opinion that
the legislative power of Parliament to enact any law
relating to disqualification for membership of either House

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2

of Parliament or Legislative Assembly or Legislative

Council of the State can be located only in Articles 102(1)
(e) and 191(1)(e) of the Constitution and not in Articles
246(1) read with Entry 97 of List I of the Seventh Schedule
and Article 248 of the Constitution. We do not, therefore,
accept the contention of Mr. Luthra that the power to
enact sub-section (4) of Section 8 of the Act is vested in
Parliament under Articles 246(1) read with Entry 97 of List
I of the Seventh Schedule and 248 of the Constitution, if
not

in

Articles

102

(1)(e)

and

191

(1)(e)

of

the

Constitution.

16. Articles 102(1)(e) and 191(1)(e) of the Constitution,

which contain the only source of legislative power to
lay down disqualifications for membership of either
House of Parliament and Legislative Assembly or
Legislative Council of a State, provide as follows:
102(1)(e).
A
person
shall
be
disqualified for being chosen as, and for
being, a member of either House of
Parliament-(e) if he is so disqualified by
or under any law made by Parliament.

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191(1)(e).
A
person
shall
be
disqualified for being chosen as, and for
being, a member of the Legislative
Assembly or Legislative Council of a
State(e) if he is so disqualified by or
under any law made by Parliament.
A reading of the aforesaid two provisions in Articles 102(1)
(e) and 191(1)(e) of the Constitution would make it
abundantly clear that Parliament is to make one law for a
person to be disqualified for being chosen as, and for
being, a member of either House of Parliament or
Legislative Assembly or Legislative Council of the State. In
the language of the Constitution Bench of this Court in
Election Commission, India v. Saka Venkata Rao (supra),
Article 191(1) [which is identically worded as Article
102(1)] lays down the same set of disqualifications for
election as well as for

continuing as a member.

Parliament thus does not have the power under Articles

102(1)(e) and 191(1)(e) of the Constitution to make
different laws for a person to be disqualified for being
chosen as a member and for a person to be disqualified
for continuing as a member of Parliament or the State
Legislature.

To put it differently, if because of a

disqualification a person cannot be chosen as a member

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of

Parliament

or

State

Legislature,

for

the

same

disqualification, he cannot continue as a member of

Parliament or the State Legislature. This is so because the
language of Articles 102(1)(e) and 191(1)(e) of the
Constitution is such that the disqualification for both a
person to be chosen as a member of a House of
Parliament or the State Legislature or for a person to
continue as a member of Parliament or the State
Legislature has to be the same.
17.Mr. Luthra and Mr. Kuhad, however, contended that the
disqualifications laid down in sub-sections (1),(2) and
(3) of Section 8 of the Act are the same for persons
who are to continue as members of Parliament or a
State Legislature and sub-section (4) of Section 8 of the
Act

does

not

lay

down

different

set

of

disqualifications for sitting members but merely states

that the same disqualifications will have effect only
after the appeal or revision, as the case may be,
against the conviction is decided by the Appellate or
the Revisional Court if such appeal or revision is filed
within 3 months from the date of conviction.

We

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3

cannot accept this contention also because of the

provisions of Articles 101(3)(a) and 190(3)(a) of the
Constitution which are quoted hereinbelow:

101(3)(a). Vacation of seats.(1) .

(2) .
(3)
If a member of either House of
Parliament(a) becomes subject to any of the
disqualifications mentioned in clause (1) or
clause (2) of article 102.
his seat shall thereupon become vacant
190(3)(a). Vacation of seats.(1) .
(2) .
(3) If a member of a House of the Legislature
of a State- (a) becomes subject to any of the
disqualifications mentioned in clause (1) or
clause (2) of article 191.
his seat shall thereupon become vacant
Thus, Article 101(3)(a) provides that if a member of either
House of Parliament becomes subject to any of the
disqualifications mentioned in clause (1), his seat shall
thereupon become vacant and similarly Article 190(3)(a)
provides that if a member of a House of the Legislature of
a State becomes subject to any of the disqualifications
mentioned in clause (1), his seat shall thereupon become
vacant.

This is the effect of a disqualification under

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Articles 102(1) and 190(1) incurred by a member of either

House of Parliament or a House of the State Legislature.
Accordingly, once a person who was a member of either
House of Parliament or House of the State Legislature
becomes disqualified by or under any law made by
Parliament under Articles 102(1)(e) and 191(1)(e) of the
Constitution, his seat automatically falls vacant by virtue
of Articles 101(3)(a) and 190(3)(a) of the Constitution and
Parliament cannot make a provision as in sub-section (4)
of Section 8 of the Act to defer the date on which the
disqualification of a sitting member will have effect and
prevent his seat becoming vacant on account of the
disqualification under Article 102(1)(e) or Article 191(1)(e)
of the Constitution.
18. We cannot also accept the submission of Mr. Kuhad
that until the decision is taken by the President or
Governor on whether a member of Parliament or State
Legislature

has

become

subject

to

any

of

the

disqualifications mentioned in clause (1) of Article 102 and

Article 191 of the Constitution, the seat of the member
alleged to have been disqualified will not become vacant

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3

under Articles 101(3)(a) and 190(3)(a) of the Constitution.

Articles 101(3)(a) and 190(3)(a) of the Constitution
provide that if a member of the House becomes subject to
any of the disqualifications mentioned in clause (1), his
seat shall thereupon become vacant. Hence, the seat of
a

member

who

becomes

subject

to

any

of

the

disqualifications mentioned in clause (1) will fall vacant on

the date on which the member incurs the disqualification
and cannot await the decision of the President or the
Governor, as the case may be, under Articles 103 and 192
respectively of the Constitution. The filling of the seat
which falls vacant, however, may await the decision of the
President or the Governor under Articles 103 and 192
respectively of the Constitution and if the President or the
Governor takes a view that the member has not become
subject to any of the disqualifications mentioned in clause
(1)

of

Articles

102

and

191

respectively

of

the

Constitution, it has to be held that the seat of the member

so held not to be disqualified did not become vacant on
the date on which the member was alleged to have been
subject to the disqualification.

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3

19. The result of our aforesaid discussion is that the

affirmative words used in Articles 102(1)(e) and 191(1)(e)
confer power on Parliament to make one law laying down
the same disqualifications for a person who is to be
chosen as member of either House of Parliament or as a
member of the Legislative Assembly or Legislative Council
of a State and for a person who is a sitting member of a
House of Parliament or a House of the State Legislature
and the words in Articles 101(3)(a) and 190(3)(a) of the
Constitution put express limitations on such powers of the
Parliament to defer the date on which the disqualifications
would have effect. Accordingly, sub-section (4) of Section
8 of the Act which carves out a saving in the case of
sitting members of Parliament or State Legislature from
the disqualifications under sub-sections (1), (2) and (3) of
Section 8 of the Act or which defers the date on which the
disqualification will take effect in the case of a sitting
member of Parliament or a State Legislature is beyond the
powers conferred on Parliament by the Constitution.

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3

20. Looking at the affirmative terms of Articles 102(1)(e)

and 191(1)(e) of the Constitution, we hold that
Parliament has been vested with the powers to make
law laying down the same disqualifications for person
to be chosen as a member of Parliament or a State
Legislature and for a sitting member of a House of
Parliament or a House of a State Legislature. We also
hold that the provisions of Article 101(3)(a) and
190(3)(a)

of

Parliament

to

the

Constitution

defer

the

date

expressly
from

prohibit

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 subsection (4) of Section 8 of the Act is ultra vires the
Constitution.
21. We do not also find merit in the submission of Mr.
Luthra and Mr. Kuhad that if a sitting member of
Parliament or the State Legislature suffers from a
frivolous conviction by the trial court for an offence

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3

given under sub-section (1), (2) or (3) of Section 8 of

the Act, he will be remediless and he will suffer
immense hardship as he would stand disqualified on
account of such conviction in the absence of subsection (4) of Section 8 of the Act.

A three-Judge

Bench of this Court in Rama Narang v. Ramesh

Narang & Ors. [(1995) 2 SCC 513] has held that when
an appeal is preferred under Section 374 of the Code
of Criminal Procedure [for short the Code] the
appeal is against both the conviction and sentence
and, therefore, the Appellate Court in exercise of its
power under Section 389(1) of the Code can also stay
the order of conviction and the High Court in exercise
of its inherent jurisdiction under Section 482 of the
Code can also stay the conviction if the power was
not to be found in Section 389(1) of the Code.

In

Ravikant S. Patil v. Sarvabhouma S. Bagali [(2007) 1

SCC 673],

a three-Judge Bench

of this Court,

however, observed:

It deserves to be clarified that an order granting

stay of conviction is not the rule but is an

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3

exception to be resorted to in rare cases

depending upon the facts of a case. Where the
execution of the sentence is stayed, the
conviction continues to operate. But where the
conviction itself is stayed, the effect is that the
conviction will not be operative from the date of
stay. An order of stay, of course, does not render
the conviction non-existent, but only nonoperative. Be that as it may. Insofar as the
present case is concerned, an application was
filed specifically seeking stay of the order of
conviction specifying the consequences if
conviction was not stayed, that is, the appellant
would incur disqualification to contest the
election. The High Court after considering the
special reason, granted the order staying the
conviction. As the conviction itself is stayed in
contrast to a stay of execution of the sentence, it
is not possible to accept the contention of the
respondent that the disqualification arising out of
conviction continues to operate even after stay
of conviction.

In the aforesaid case, a contention was raised by the

respondents that the appellant was disqualified from
contesting the election to the Legislative Assembly under
sub-section (3) of Section 8 of the Act as he had been
convicted for an offence punishable under Sections 366
and 376 of the Indian Penal Code and it was held by the
three-Judge Bench that as the High Court for special
reasons had passed an order staying the conviction, the
disqualification arising out of the conviction ceased to

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3

operate after the stay of conviction.

Therefore, the

disqualification under sub-section (1), (2) or (3) of Section

8 of the Act will not operate from the date of order of stay
of conviction passed by the Appellate Court under Section
389 of the Code or the High Court under Section 482 of
the Code.
22. As we have held that Parliament had no power to
enact sub-section (4) of Section 8 of the Act and
accordingly sub-section (4) of Section 8 of the Act is ultra
vires the Constitution, it is not necessary for us to go into
the other issue raised in these writ petitions that subsection (4) of Section 8 of the Act is violative of Article 14
of the Constitution. It would have been necessary for us
to go into this question only if sub-section (4) of Section 8
of the Act was held to be within the powers of the
Parliament. In other words, as we can declare sub-section
(4) of Section 8 of the Act as ultra vires the Constitution
without going into the question as to whether sub-section
(4) of Section 8 of the Act is violative of Article 14 of the
Constitution, we do not think it is necessary to decide the

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4

question as to whether sub-section (4) of Section 8 of the

Act is violative of Article 14 of the Constitution.

23. The only question that remains to be decided is

whether our declaration in this judgment that sub-section
(4) of Section 8 of the Act is ultra vires the Constitution
should affect disqualifications already incurred under subsections (1), (2) and (3) of Section 8 of the Act by sitting
members of Parliament and State Legislatures who have
filed appeals or revisions against their conviction within a
period of three months and their appeals and revisions are
still pending before the concerned court.

Under sub-

sections (1), (2) and (3) of Section 8 of the Act, the

disqualification takes effect from the date of conviction for
any of the offences mentioned in the sub-sections and
remains in force for the periods mentioned in the subsections. Thus, there may be several sitting members of
Parliament and State Legislatures who have already
incurred disqualification by virtue of a conviction covered
under sub-section (1), or sub-section (2) or sub-section (3)
of Section 8 of the Act. In Golak Nath and Others vs. State

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4

of Punjab and Another (AIR 1967 SC 1643), Subba Rao, C.J.

speaking on behalf of himself, Shah, Sikri, Shelat and
Vaidialingam, JJ. has held that Articles 32, 141, 142 of the
Constitution are couched in such a wide and elastic terms
as to enable this Court to formulate legal doctrines to
meet the ends of justice and has further held that this
Court has the power not only to declare the law but also to
restrict the operation of the law as declared to future and
save the transactions, whether statutory or otherwise, that
were effected on the basis of the earlier law.

Sitting

members of Parliament and State Legislature who have

already been convicted for any of the offences mentioned
in sub-section (1), (2) and (3) of Section 8 of the Act and
who have filed appeals or revisions which are pending and
are accordingly saved from the disqualifications by virtue
of sub-section (4) of Section 8 of the Act should not, in our
considered opinion, be affected by the declaration now
made by us in this judgment.

This is because the

knowledge that sitting members of Parliament or State

Legislatures will no longer be protected by sub-section (4)
of Section 8 of the Act will be acquired by all concerned

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4

only on the date this judgment is pronounced by this

Court.

As has been observed by this Court in Harla v.

State of Rajasthan (AIR 1951 SC 467):

..it would be against the principles

of natural justice to permit the subjects
of a State to be punished or penalized
by laws of which they had no knowledge
and of which they could not even with
exercise of due diligence have acquired
any knowledge.

However, if any sitting member of Parliament or a State

Legislature is convicted of any of the offences mentioned
in sub-sections (1), (2) and (3) of Section 8 of the Act and
by virtue of such conviction and/or sentence suffers the
disqualifications mentioned in sub-sections (1), (2) and (3)
of Section 8 of the Act after the pronouncement of this
judgment, his membership of Parliament or the State
Legislature, as the case may be, will not be saved by 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.

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4

24. With the aforesaid declaration, the writ petitions are

allowed. No costs.

.....J.
(A. K. Patnaik)

.......J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 694 OF 2004

Basant Kumar Chaudhary

Petitioner
Versus

Union of India & Ors.

Respondents

ORDER
The petitioner is a practicing Advocate in the Patna High
Court and has filed this writ petition as a Public Interest
Litigation challenging sub-section (4) of Section 8 of the
Representation of the People Act, 1951 (for short the
Act), as ultra vires the Constitution.
2.

This writ petition was heard along with W.P.(C)

No.490 of 2005 and W.P.(C) No.231 of 2005 in which subsection (4) of Section 8 of the of the Act is also challenged
as ultra vires the Constitution.

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45

3.

We have today delivered the judgment in W.P.(C)

No.490 of 2005 and W.P.(C) No.231 of 2005. Hence, this

writ petition is disposed of in terms of the aforesaid
judgment in W.P.(C) No.490 of 2005 and W.P.(C) No.231 of
2005. No costs.

.....J.
(A. K. Patnaik)

.......J.
(Sudhansu Jyoti Mukhopadhaya)
New Delhi,
July 10, 2013.

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IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 3040-3041 OF 2004
The Chief Election Commissioner Etc.
Petitioners

Versus
Jan Chaukidar (Peoples Watch) & Ors.
Respondents

ORDER
These are appeals by way of Special Leave under Article
136 of the Constitution against the common order dated
30.04.2004 of the Patna High Court in C.W.J.C. No.4880 of
2004 and C.W.J.C. No.4988 of 2004.
2.

The facts very briefly are that Article 326 of the

Constitution provides that the elections to the House of

the People and to the Legislative Assembly of every State
shall be on the basis of adult suffrage and every person
who is a citizen of India and who is not less than eighteen
years of age on such date as may be fixed in that behalf
by or under any law made by the appropriate Legislature
and is not otherwise disqualified under the Constitution or

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47

any law made by the appropriate Legislature on the

grounds of non-residence, unsoundness of mind, crime or
corrupt or illegal practice, shall be entitled to be registered
as a voter for any such election.

In accordance with

Article 326 of the Constitution, Parliament has enacted the

Representation of the People Act, 1950 (for short the
1950 Act) for registration of voters at such elections to
the House of the People and to the Legislative Assembly of
every State and has also enacted the Representation of
the People Act, 1951 (for short the 1951 Act) for the
conduct of elections to the Houses of Parliament and to
the Houses of Legislature of each State.
3.

The word elector is defined in the 1951 Act in

relation to the constituency to mean a person whose name

is entered in electoral rolls of the constituency for the time
being in force and who is not subject to any of the
disqualifications mentioned in Section 16 of the 1950 Act.
Section 16(1)(c) of the 1950 Act provides that a person
shall be disqualified for registration in an electoral roll if he
is for the time being disqualified from voting under the

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48

provisions of any law relating to corrupt practices and

other offences in connection with elections.
4.

Section 4 of the 1951 Act lays down the qualifications

for membership of the House of the People and one of the

qualifications laid down is that he must be an elector for
any Parliamentary constituency. Similarly, Section 5 of the
1951 Act lays down the qualifications for membership of a
Legislative

Assembly

of

State

and

one

of

the

qualifications laid down is that he must be an elector for

any Assembly constituency in that State.

Section 62 of

the 1951 Act is titled Right to vote and it provides in

sub-section (5) that no person shall vote at any election if
he is confined in a prison, whether under a sentence of
imprisonment or transportation or otherwise, or is in the
lawful custody of the police.

The proviso to sub-section

(5) of Section 62 of the 1951 Act, however, states that the

sub-section will not apply to a person subjected to
preventive detention under any law for the time being in
force.

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49

5.

Writ petitions C.W.J.C. No.4880 of 2004 and C.W.J.C.

No.4988 of 2004 were filed in the Patna High Court

contending that a person, who is confined in prison,
whether

under

sentence

of

imprisonment

or

transportation or otherwise, or is in the lawful custody of

the police is not entitled to vote by virtue of sub-section
(5) of Section 62 of the 1951 Act and accordingly is not an
elector and is, therefore, not qualified to contest
elections to the House of People or the Legislative
Assembly of a State because of the provisions in Sections
4 and 5 of the 1951 Act. By the impugned common order,
the High Court accepted this contention in the writ
petitions and held:
A right to vote is a statutory right, the
Law gives it, the Law takes it away.
Persons convicted of crime are kept
away from elections to the Legislature,
whether
to
State
Legislature
or
Parliament,
and
all
other
public
elections. The Court has no hesitation in
interpreting the Constitution and the
Laws framed under it, read together,
that persons in the lawful custody of the
Police also will not be voters, in which
case, they will neither be electors. The
Law temporarily takes away the power
of such persons to go anywhere near
the election scene.
To vote is a
statutory right. It is privilege to vote,

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50

which privilege may be taken away. In

that case, the elector would not be
qualified, even if his name is on the
electoral rolls. The name is not struck
off, but the qualification to be an elector
and the privilege to vote when in the
lawful custody of the police is taken
away.
6.

Aggrieved, by the findings of the High Court, the

appellants have filed these appeals.

We have heard

learned counsel for the parties and we do not find any

infirmity in the findings of the High Court in the impugned
common order that a person who has no right to vote by
virtue of the provisions of sub-section (5) of Section 62 of
the 1951 Act is not an elector and is therefore not
qualified to contest the election to the House of the People
or the Legislative Assembly of a State.
7.

These civil appeals are accordingly dismissed.

No

costs.

.....J.
(A. K. Patnaik)

.......J.
(Sudhansu Jyoti Mukhopadhaya)

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New Delhi,
July 10, 2013.

Page 51