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2014 (2) TMI 1410 - HC - Indian LawsConstitutional validity of the Representation of the People (Amendment and Validation) Act, 2013 - Vires of Constitution of India or not - Whether mala fides can be attributed to the Parliament? - HELD THAT - The impugned Amendment and Validation Act, 2013 was passed by the Parliament by virtue of the powers conferred under the provisions of the Constitution. It needs no reiteration that mala fides cannot be attributed to the Parliament/Legislature, as has been held by the Apex Court in a catena of decisions. It has been held by the Apex court in K. NAGARAJ / D. SUBBA RAJU VERSUS STATE OF AP. / CHIEF SECY. OF AP. 1985 (1) TMI 337 - SUPREME COURT that, The Ordinance-making power, being a legislative power, the argument of mala fides is misconceived. The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the Objects and Reasons and if no reasons are so stated, as appear from the provisions enacted by it. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation . In KC. GAJAPATI NARAYAN DEO VERSUS STATE OF ORISSA 1953 (5) TMI 14 - SUPREME COURT , and it has been held that The doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. Thus, there is no merit in the submission raised by the petitioner that the impugned Amendment and Validation Act, 2013 is a fraud upon the Constitution. Whether the Validation and Amendment Act, 2013 is legally permissible? - Can the Legislature make the impugned amendment by enacting a Validating Act, as contended by the petitioner? - HELD THAT - It is settled principle of law that the Legislature can change the basis on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large. The Legislature can render judicial decisions ineffective by enacting a valid law on the topic within its legislative field, fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid. Through the impugned Validation and Amendment Act, 2013, it is apparent, the Parliament has sought to widen the definition of Elector , which is more in the nature of curing the defects pointed out by the Court(s) and to obviate any difficulties that have arisen during the course of implementation of the provisions of the RP Act of 1951. Right to vote is not a constitutional right; it is only a statutory right - Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India? - HELD THAT - It is trite that 'right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed by the people of India. Section 62(5) of the RP Act of 1951 explicitly states, No person shall vote at any election, if he is confined in a prison, or is in the lawful custody of the police - The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute and that challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-Section (5) of Section 62 of the RP Act of 1951 was, therefore, held to be not available. Through the impugned Amendment and Validation Act, 2013, the Parliament seeks to amend the definition of the term Disqualified' as defined under Section 7(b) of the RP Act of 1951 and incorporated proviso to sub-Section (5) of Section 62, which deals with right to vote . The impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction under certain offences as prescribed under Chapter-III of Part-II of the RP Act of 1951. Constitutional validity of a statute - Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid? - HELD THAT - In order to examine the constitutionality or otherwise of a statute and/or any of its provisions, one of the most relevant consideration is the object and reasons as well as the legislative history of the statute. It would help the Court in arriving at a more objective and just approach. It would be imperative for the Court to examine the reasons for enactment of a particular statute/provision so as to find out its ultimate impact vis- -vis other constitutional provisions. The legislative competence of the Parliament does not come from Articles 102 and 191, but from Articles 246 and 327 read with Entry 72 of List-I, Schedule-VII of the Constitution, according to which, the Parliament is competent to enact laws with respect to the issues mentioned therein. Thus, one of the criteria for determining the constitutional validity of a law, i.e., the competence of the law-making authority, would depend on the ambit of the legislative power and limitation imposed thereon as also on the mode of exercise of such power. In fact, the RP Act of 1951 was also an enactment, which was enacted by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List-I of the Constitution - Further, the Parliament has the power, rather an exclusive one, under Article 246 of the Constitution to make laws with respect to any of the matters enumerated in the Union List of the Schedule-VII. In exercise of such a power, the Parliament has enacted the impugned Amendment and Validation Act, 2013 and the same cannot be held to be beyond its legislative competence. There is no legal basis to hold the impugned Amendment and Validation Act, 2013 as unconstitutional. Whether the Petitioner's plea that criminalisation of politics would gain momentum as the impugned Amendment and Validation Act, 2013 is a case of remedy being worse than the disease? - HELD THAT - This Court is also of the view that the petitioner's plea to bar any person who is in jail or in police custody from contesting an election on the ground that it would lead to criminalisation of politics is a case of the remedy being worse than the disease. Extending curtailment of the right to vote of a person in prison to the right to stand in election would, in our opinion, leave the door open for practice of 'vendetta politics' by ruling parties. All that a politician/ruling party-in-power would need to do to prevent rivals from contesting an election, is to ask the police to file a case and to arrest the rivals. Impugned Amendment and Validation Act, 2013 is consistent with the principle of universal suffrage and the presumption of innocence of the accused until proven guilty or not - HELD THAT - One must distinguish between convicted prisoners on the one hand and the under trials on the other. Further, as our criminal justice system is based on the principle of 'innocent until proven guilty', we cannot presume our under trials in custody to be guilty as far as right to contest elections is concerned. In fact, Rule 84(2) of the United Nations Standard Minimum Rules for Treatment of Prisoners mandates that prisoners who have not been convicted should be presumed as innocent and treated as such - the impugned Amendment and Validation Act, 2013 is consistent with the principle of universal and equal suffrage and the presumption of innocence of the accused until proven guilty. The impugned Amendment and Validation Act, 2013 is within the legislative competence of the Parliament. In fact, by the impugned Amendment and Validation Act, 2013, the Parliament has by explicit words overruled the intent which had been read by implication by the Courts into Section 62(5) and consequently, changed the basis of Court's decision and is, thus, valid - Petition dismissed.
Issues Involved:
1. Whether mala fides can be attributed to the Parliament. 2. Whether the Validation and Amendment Act, 2013 is legally permissible. 3. Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India. 4. Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid. Issue-wise Analysis: i) Whether mala fides can be attributed to the Parliament: The court ruled that mala fides cannot be attributed to the Parliament. It is a well-settled proposition that if the Legislature is competent to pass a particular law, the motives which impelled it to act are irrelevant. The Parliament is fully competent to enact the impugned Amendment and Validation Act, 2013 by virtue of the power conferred under Article 327 read with Entry 72 of the Constitution. The court cited several precedents, including K. Nagaraj and Ors. v. State of Andhra Pradesh and Anr., and Dharam Dutt and Ors. v. Union of India and Ors., to support this view. The court concluded that there is no merit in the submission that the impugned Amendment and Validation Act, 2013 is a fraud upon the Constitution. ii) Whether the Validation and Amendment Act, 2013 is legally permissible: The court held that a competent Legislature can always validate a law declared invalid by courts, provided the infirmities and vitiating factors are removed or cured. The Legislature can pass a new law or amend the existing law to remove the unconstitutionality or illegality and provide that anything done under the offending law shall be deemed to have been done under the new law. The court referenced several cases, including K. Sankaran Nair v. Devaki Amma Malathy Amma and Rai Ramakrishna v. State of Bihar, to support this principle. The court found that the impugned Validation and Amendment Act, 2013 sought to widen the definition of "Elector" and cure the defects pointed out by the courts. iii) Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India: The court reiterated that the right to vote is not a fundamental or constitutional right but a statutory right. The Legislature can determine the terms on which the right to vote is enjoyed. Section 62(5) of the RP Act of 1951 explicitly states that no person shall vote if confined in prison or in lawful custody of the police. The constitutional validity of this section was upheld by the Supreme Court in Ankul Chandra Pradhan, Advocate, Supreme Court v. Union of India and Ors. The court noted that the impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction but only with the right to vote. The court concluded that the judgment in Lily Thomas v. Union of India & Ors. does not apply to this case. iv) Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid: The court examined the constitutionality of the statute and found that the Parliament has the legislative competence to enact the impugned Amendment and Validation Act, 2013 under Articles 246 and 327 read with Entry 72 of List-I, Schedule-VII of the Constitution. The court referenced Hari Prasad Mul Shankar Trivedi v. V.B. Raju and Charanlal Sahu v. Union of India to support this view. The court concluded that the impugned Amendment and Validation Act, 2013 is consistent with the principle of universal suffrage and the presumption of innocence of the accused until proven guilty. Conclusion: The court held that the impugned Amendment and Validation Act, 2013 is within the legislative competence of the Parliament. By the impugned Amendment and Validation Act, 2013, the Parliament explicitly overruled the intent read by implication by the courts into Section 62(5) and changed the basis of the "Court's decision." The writ petition and pending application were dismissed, with no order as to costs.
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