2013 Supreme(SC) 619

Supreme Court of India
A.K. PATNAIK, SUDHANSU JYOTI MUKHOPADHAYA, JJ.
Lily Thomas & Others
Versus
Union of India & Others
WRIT PETITION (CIVIL) NOS. 490 OF 2005, 231 OF 2005, 694 OF 2004, CIVIL APPEAL NOS. 3040-3041 OF 2004
Decided on : 10-07-2013

Headnote:Constitution of India—Articles 102(1)(e) and 191(1)(e) read with Articles 246(1) read with Entry 97 of List I of Seventh Schedule and Article 248—Representation of the People Act, 1951—Section 8(4)—Legislative competence to enact Section 8(4) of Act of 1951—When a question is raised whether Parliament has exceeded limits of its powers, courts have to decide the question by looking to terms of instrument by which affirmatively, legislative powers were created, and by which negatively, they are restricted—No power is vested in State Legislature to make law laying down disqualifications of membership of Legislative Assembly or Legislative Council of State and power is vested in Parliament to make law laying down disqualification also in respect of members of Legislative Assembly or Legislative Council of State—Legislative power of Parliament to enact any law relating to disqualification for membership of either House of Parliament or Legislative Assembly or Legislative Council of State can be located only in Articles 102(1) (e) and 191(1)(e) of Constitution and not in Articles 246(1) read with Entry 97 of List I of Seventh Schedule and Article 248 of Constitution. (Paras 14 and 15)

       Constitution of India—Articles 102(1)(e) and 191(1)(e) read with Articles 246(1) read with Entry 97 of List I of Seventh Schedule and Article 248—Representation of the People Act, 1951—Section 8(4)—Parliament does not have power under Articles 102(1)(e) and 191(1)(e) of 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 State Legislature—If because of a disqualification a person cannot be chosen as a member of Parliament or State Legislature, for same disqualification, he cannot continue as a member of Parliament or State Legislature—Disqualification for both a person to be chosen as a Member of a House of Parliament or State Legislature or for a person to continue as a member of Parliament or State Legislature has to be same. (Para 16)

       Representation of the People Act, 1951—Section 8(4)—Constitution of India—Articles 102(1)(e) and 191(1)(e)—Once a person who was a member of either House of Parliament or House of State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of Constitution and Parliament cannot make a provision as in sub-section (4) of Section 8 of 1951 Act to defer date on which disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of disqualification under Article 102(1)(e) or Article 191(1)(e) of Constitution—Filling of seat which falls vacant, however, may await decision of President or Governor under Articles 103 and 192 respectively of Constitution—If President or Governor takes a view that member has not become subject to any of disqualifications mentioned in clause (1) of Articles 102 and 191 respectively of Constitution, it has to be held that seat of member so held not to be disqualified did not become vacant on the date on which member was alleged to have been subject to disqualification—Sub-section (4) of Section 8 of 1951 Act which carves out a saving in the case of sitting members of Parliament or State Legislature from disqualifications under sub-sections (1), (2) and (3) of Section 8 of 1951 Act or which defers date on which disqualification will take effect in the case of a sitting member of Parliament or a State Legislature is beyond powers conferred on Parliament by Constitution—Sub-section (4) of Section 8 of 1951 Act is ultra vires Constitution. (Para 17 to 20)

       Representation of the People Act, 1951—Section 8(4)—Code of Criminal Procedure, 1973—Sections 389 and 482—Disqualification to contest election under sub-section (1), (2) or (3) of Section 8 of 1951 Act will not operate from date of order of stay of conviction passed by Appellate Court under Section 389 of Code or High Court under Section 482 of Code—Appellate Court in exercise of its power under Section 389(1) of Code can also stay order of conviction and High Court in exercise of its inherent jurisdiction under Section 482 of Code can also stay conviction if power was not to be found in Section 389(1) of Code. (Para 21)

       Representation of the People Act, 1951—Section 8(4)—Disqualification to contest election—Sitting members of Parliament and State Legislature who have already been convicted for any of offences mentioned in sub-sections (1), (2) and (3) of Section 8 of 1951 Act and who have filed appeals or revisions which are pending and are saved from disqualifications by virtue of sub-section (4) of Section 8 of 1951 Act should not, be affected by declaration now made by this judgment—However, if any sitting member of Parliament or a State Legislature is convicted of any of offences mentioned in sub-sections (1), (2) and (3) of Section 8 of 1951 Act and by virtue of such conviction and/or sentence suffers disqualifications mentioned in sub-sections (1), (2) and (3) of Section 8 of 1951 Act after pronouncement of this judgment, his membership of Parliament or State Legislature, will not be saved by sub-section (4) of Section 8 of 1951 Act. (Para 23)

       (AIR 1953 SC 210); [(2001) 7 SCC 231]; [(2005) 1 SCC 754]; ([2007) 2 SCC 574]—Referred.

       [(1878) 5 I.A. 178]; (AIR 1973 SC 1465); [(1995) 2 SCC 513;] [(2007) 1 SCC 673]; (AIR 1967 SC 1643); (AIR 1951 SC 467)—Relied.