Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 1479

Supreme Court of India
THE HONOURABLE CHIEF JUSTICE MR. K.G. BALAKRISHNAN, THE HONOURABLE MR. JUSTICE R.V. RAVEENDRAN & THE HONOURABLE MR. JUSTICE J.M. PANCHAL
Consumer Education & Research Society
Versus
Union of India & Others
WRIT PETITION (CIVIL) NO.448 OF 2006 WITH WRIT PETITION (CIVIL) NO. 411 OF 2006
Decided On : 24-08-2009

Advocates Appeared: For the Appearing Parties:Gopal Subramanium, Mohan Parasaran, ASG, Ravindra Shrivastava, Sr. Advocate, M/s. E.R. Kumar, Sameer Parekh, Kunal Verma, Ranjeeta Rohtagi, Diksha Rai, Rajul Shrivastav, Anup Jain, K. Krisna, Supriya Jain, Ajay K. Jha (for M/s. Parekh & Co.), M/s. P. Parmeswaran, Raghenth Basant, Aman Ahluwalia, Balaji Subramaniam, Gaurav Agrawal, Tapesh K. Singh, B.K. Prasad, D.L. Chidananda, Gaurav Dhingra, K.K. Senthivelan, C.S. Bhardwaj, Advocates.

IMPORTANT POINT
The Parliament (Prevention of Disqualification) Amendment Act, 2006 is constitutionally valid.
Aticles101(3) and 102(1) of the Constitution apply to sitting Members only.
Identification, exemption and declaration of office of profit is within exclusive domain of Parliament.
Violation of the norm of getting the bill vetted by Joint Committee will not denude Parliament of its power to make law.

Headnote:(a) Constitution of India – Article 102(1)(a) – Power of Parliament to enact a law includes the power of Parliament to enact such law retrospectively – Parliament or Legislature of a State is competent to enact law to remove disqualification owing to office of profit retrospectively (Para 16)
       (1969) 3 SCC 268; (1975) Supp. SCC 1; (1976) 4 SCC 291 – Relied upon
       (2006) 5 SCC 266 – Referred
       (b) Constitution of India – Aticle101(3) and 102(1) – Words "becomes subject to" – Indicate post election disqualification – Apply to sitting MP incurring disqualification during his tenure – Do not apply to a candidate who held a disqualifying office of profit before being elected as a Member of Parliament – Pre-election disqualification dealt with in Representation of the People Act, 1951 – Sections 36 and 100(1)(a) – Articles 101(3)(a) and 103 will not apply – A person under disqualification at the time of his election will continue as a Member unless his/her election is declared to be void or nobody challenges his/her election, (Para 19, 20, 22)
       1953 SCR 1144; (1965) 3 SCR 53 – Relied upon
       (c) Constitution of India – Articles 102(1), 101(3)(a) and 103 – Disqualification of a Member and his seat becoming vacant – Two different things – A Member may become disqualified under Articles 102(1) – But his/her seat will become vacant only after a decision is taken by the President under Article 103. (Para 22, 23, 24)
       (d) Constitution of India – Article 101 – Vacancy in the House may occur in many ways – By a declaration by the House under Article 101(4) – By acceptance of resignation under Art. 101(3)(b) – In case of dual membership vacancy arises automatically after 15 days under Art. 101(2) – Vacancies under Art.101(3)(a) will arise only when the disqualification is decided upon and declared by the President under Article 103(1) or declared by the Chairman or the Speaker of the House under Para. 6(1) of Tenth Schedule – Representation of Peoples Act, 1951 – Sections 147, 149 and 151A (Para 28, 29)
       (1965) 3 SCR 53 – Relied upon
       1953 SCR 1144; (1998) 4 SCC 626 – Distinguished
       (e) Constitution of India – Article 102(1)(a) – Office of profit – Identification, exemption and declaration thereof – Exclusive domain of Parliament – Each office may have different effects and consequences on the Member – Cannot be tested on the touchstone of Article 14. (Para 37)
       (f) Constitution of India – Article 102(1)(a) – Power of Parliament to make laws exempting offices of profit from disqualification retrospectively – Norm of getting the bill vetted by Joint Committee – Merely a Parliamentary procedure, not a Constitutional convention – Violation of or deviation from such norms – Will not denude Parliament of its power. (Para 38)
       Facts of the case:
       These two writ petitions filed by way of public interest litigation challenge the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006.
       It amended the Parliament (Prevention of Disqualification) Act, 1959.
       The Amendment Act adds to the list of ‘Offices of Profit’ which do not disqualify the holders thereof for being chosen as, or for being the Members of Parliament.
       Finding of the Court:
       The Parliament (Prevention of Disqualification) Amendment Act, 2006 is constitutionally valid.
       Result:
       Writ petitions dismissed.

Judgment :-

K.G. Balakrishnan, CJI.

1. These two writ petitions filed under Article 32 of the Constitution by way of public interest litigation, challenge the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006 (Act No. 31/2006, Hereinafter Amendment Act). It amended the Parliament (Prevention of Disqualification) Act, 1959 (Hereinafter `Principal Act). The Amendment Act adds to the list of `Offices of Profit which do not disqualify the holders thereof for being chosen as, or for being the Members of Parliament.

Historical background

2. The expression `Office of Profit is not defined in the Constitution. The view that certain offices or positions held by a Member of Parliament (Hereinafter also referred to as `MP) may be either incompatible with his/her duty as an elected representative of the people, or affect his/her independence, and thus weaken the loyalty to his/her constituency and, therefore, should disqualify the holder thereof, had its origin in the Parliamentary history of the United Kingdom. (See: The Introduction to the Bhargava Committee Report on Office of Profit, dated 22.10.1955). The concept of `office of profit has a history of more than four centuries in United Kingdom and it has evolved through many phases. The first was the "privilege" phase (prior to 1640). The second was the "corruption" phase (from 1640). The third was the "ministerial responsibility" phase (after 1705). Initially the English Parliament claimed priority over the services of its Members and it was considered derogatory to its privilege if any of its Members accepted some other office which would require a great deal of their time and attention. This led to the evolution of the idea that the holding of certain offices would be incompatible with the responsibilities of a Member of Parliament. This was the first phase. During the second phase, there was a protracted conflict between the Crown and the House of Commons. Loyalty to the King and the loyalty to the House of Commons representing the will of the people became growingly irreconcilable and it was thought that if any Member accepted an `Office of Profit under the Crown, there was every chance of his loyalty to Parliament being compromised. Subsequently came the third phase. The King was reduced to the position of a constitutional head and the cabinet, functioning in the name of the Crown became the centre of the executive government. The Privy Councilors, who during the second phase were invariably considered to be the henchmen of the King and were as such looked upon with suspicion by the House of Commons, yielded place to the Ministers, who for some time were also disqualified from holding a seat in the House. Later it came to be recognized that the application of the disqualification rule to incumbent ministers was too extreme and with the intent of ensuring effective coordination between the executive and the legislature, it was accepted that the Members of the executive should be represented in the Parliament. This recognition led to the passing of several enactments by the British Parliament. The Re-Election of Ministers Act enacted by the British Parliament in 1919 and 1926 required any Member who was appointed to a `political office to seek reelection.

3. As we have adopted the British Parliamentary form of Government, the concept of `office of profit was also adopted with some modifications. The concept of `office of profit began to develop with the entry of non-official members in the Legislature. A clear and precise statement in this regard was made in Section 26(1)(a) of the Government of India Act, 1935 which provided that a person shall be disqualified for being chosen as, and for being, a Member of either Chamber if he held any office of profit under the Crown of India, other than an office declared by Act of the Federal Legislature not to disqualify its holder.

4. When the Constitution of India came into force on 26th January,