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2013 (7) TMI 878 - SC - Indian LawsConstitutional validity of sub-section (4) of Section 8 of the Representation of the People Act, 1951 - 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 - Held that - 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. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution, we hold that Parliament has been vested with the powers to make law laying down the same disqualifications for person to be chosen as a member of Parliament or a State Legislature and for a sitting member of a House of Parliament or a House of a State Legislature. We also hold that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit Parliament to defer the date from which the disqualification will come into effect in case of a sitting member of Parliament or a State Legislature. Parliament, therefore, has exceeded its powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution. 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 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 sub- section (4) of Section 8 of the Act. A three-Judge Bench of this Court in Rama Narang v. Ramesh Narang & Ors. 1995 (1) TMI 268 - SUPREME COURT OF INDIA 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. 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 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 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 question as to whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution. 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 only on the date this judgment is pronounced by this Court. Refer Judgement in case of Harla v. State of Rajasthan 1951 (9) TMI 37 - SUPREME COURT . - Decided in favour of appellants.
Issues Involved:
1. Constitutionality of sub-section (4) of Section 8 of the Representation of the People Act, 1951. 2. Legislative power of Parliament to enact sub-section (4) of Section 8. 3. Impact of sub-section (4) on Articles 102(1)(e) and 191(1)(e) of the Constitution. 4. Whether sub-section (4) violates Article 14 of the Constitution. 5. Impact of the judgment on sitting members of Parliament and State Legislatures. Issue-wise Detailed Analysis: 1. Constitutionality of sub-section (4) of Section 8 of the Representation of the People Act, 1951: The writ petitions primarily challenged sub-section (4) of Section 8 of the Representation of the People Act, 1951, as ultra vires the Constitution. The petitioners argued that the disqualifications for a person to be elected as a member of Parliament or State Legislature and for a person to continue as a member cannot be different. This argument was supported by the Constitution Bench judgment in Election Commission, India v. Saka Venkata Rao, which held that Article 191 lays down the same set of disqualifications for election as well as for continuing as a member. 2. Legislative power of Parliament to enact sub-section (4) of Section 8: The petitioners contended that Parliament lacked the legislative power to enact sub-section (4) of Section 8 of the Act, as Articles 102(1)(e) and 191(1)(e) of the Constitution do not confer such power. The respondents argued that the legislative power could be located in Article 246(1) read with Entry 97 of List I of the Seventh Schedule and Article 248 of the Constitution. However, the Court held that the legislative power to enact any law relating to disqualification for membership of Parliament or State Legislature can only be located in Articles 102(1)(e) and 191(1)(e) of the Constitution. 3. Impact of sub-section (4) on Articles 102(1)(e) and 191(1)(e) of the Constitution: Articles 102(1)(e) and 191(1)(e) of the Constitution provide that Parliament is to make one law for disqualification for both being chosen as a member and for continuing as a member of Parliament or State Legislature. The Court held that Parliament does not have the power to make different laws for these purposes. Additionally, Articles 101(3)(a) and 190(3)(a) of the Constitution state that if a member becomes subject to any disqualification, his seat shall become vacant. Therefore, sub-section (4) of Section 8, which defers the disqualification of a sitting member, is beyond Parliament's powers. 4. Whether sub-section (4) violates Article 14 of the Constitution: The petitioners argued that sub-section (4) of Section 8 is arbitrary and discriminatory, violating Article 14 of the Constitution, as it provides special privileges to sitting members of Parliament and State Legislatures. However, the Court did not find it necessary to decide this issue, as it had already declared sub-section (4) ultra vires the Constitution. 5. Impact of the judgment on sitting members of Parliament and State Legislatures: The Court held that sitting members of Parliament and State Legislatures who have already been convicted and filed appeals or revisions within three months, and whose appeals are pending, should not be affected by the declaration. However, any sitting member convicted after the pronouncement of this judgment will not be protected by sub-section (4) of Section 8. Conclusion: The Supreme Court declared sub-section (4) of Section 8 of the Representation of the People Act, 1951, as ultra vires the Constitution. The judgment clarified that Parliament does not have the power to defer the disqualification of sitting members of Parliament or State Legislatures and that such disqualifications must take effect immediately upon conviction. The writ petitions were allowed, and sub-section (4) was struck down.
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