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TMI Blog2014 (2) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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. - W.P. (C) 7459/2013 & CM APPL. 15956/2013 - - - Dated:- 6-2-2014 - N.V. RAMANA, C.J. AND MANMOHAN, J. For the Appellant : Party-in-Person, Ms. Suman and Mr. Sadashir Gupta, Advocates For the Respondent : Mr. Rajeeve Mehra, ASG, Mr. Sachin Datta, CGSC, Mr. Vineet Tayal and Mr. Aditya Malhotra, Advocates JUDGMENT N.V. Ramana, C.J. 1. The present writ petition has been filed challenging the constitutional validity of the Representation of the People (Amendment and Validation) Act, 2013 (for short, 'impugned Amendment and Validation Act, 2013) as being ultra vires the Constitution of India (for short, 'the Constitution'), vitiated by mala fides and against the general public interest. Amendment and Validation Act, 2013 At the outset, it would be appropriate to reproduce the impugned Amendment and Validation Act, 2013, which reads as under:- Be it enacted by Parliament in the Sixty-f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in the impugned common order that a person who has no right to vote by virtue of the provisions of subsection (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. ii.) It was submitted that the Parliament by the impugned Amendment and Validation Act, 2013 had virtually set aside the judgment of the Supreme Court in Jan Chaukidar (Peoples Watch) Ors.'s case (supra) as the appellate court would have done in an appeal. iii.) It was further submitted that the impugned Amendment and Validation Act, 2013 would give fillip to criminalization of politics and would violate the fundamental right of the public at large to elect the people with good antecedents as their representatives. iv.) It was also submitted that the constitutional validity of Section 62(5) of the Representation of the People Act, which debarred a person in lawful custody from voting in an election was upheld by the Supreme court of India in the case of Anukul Chandra Pradhan, Advocate, Supreme Court v. Union of Indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive Assembly or Legislative Council in the State. In the language of the Constitution Bench of this Court in Election Commission v. Saka Venkata Rao, 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 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. .... 30. Thus, Article 101(3)(a) provides that if a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is entered in the electoral roll of that constituency for the time being in force and was not subject to any of the disqualifications mentioned in Section 16 of the Representation of the People Act, 1950 . 4. It was submitted that as per Section 16(1) of the Representation of the People Act 1950 (for short, 'RP Act of 1950), a person shall be ineligible for registration in an electoral roll as an elector if he- (a) is not a citizen of India; or (b) is of unsound mind and stands declared so by a competent court; or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with the elections. 5. It was pointed out that Chapter-III of Part-II of the RP Act of 1951 deals with Disqualifications for Membership of Parliament and State Legislatures . Disqualification is attracted for being chosen as and for being a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State, upon conviction of certain offences. 6. It was also contended that in the case of Lily Thomas v. Union of India Ors.'s case (supra), the Supreme Court declared Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is supplied) 10. After perusing the rival contentions put forth by and on behalf of the respective parties, we are of the view that, broadly, the following issues arise for consideration in the present case: i) Whether mala fides can be attributed to the Parliament? ii) Whether the Validation and Amendment Act, 2013 is legally permissible? In other words, can the Legislature make the impugned amendment by enacting a Validating Act, as contended by the petitioner? iii) Whether the Legislature can determine the terms on which the right to vote is enjoyed by the people of India? iv) Whether the impugned Amendment and Validation Act, 2013 is constitutionally valid? i) Whether mala fides can be attributed to the Parliament? 11. In so far as the allegation of mala fides is concerned, it is well settled proposition of law that if the Legislature is competent to pass a particular law, the motives, which impelled it to act, are really irrelevant. On the other hand, if the Legislature lacks competency, the question of motive does not arise. If the Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive, which persuaded Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 . 15. It has been held by the Supreme Court in Dharam Dutt and Ors. v. Union of India and Ors., 2004) 1 SCC 712 as under: 16. Though the petition alleges the impugned Act (with the history of preceding ordinances) to be the outcome of political malice, no particulars thereof have been given by the writ petitioner. However, that aspect need not be deliberated upon any further in view of two Constitution Bench decisions of this Court. It has been held in K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375: 1954 SCR 1 and in Board of Trustees, Ayurvedic and Unani Tibia College v. State of Delhi (now Delhi Admn.), AIR 1962 SC 458: 1962 Supp (1) SCR 156 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 real ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 19. It has been held that the Legislature is competent to pass a new law or amend the existing law, to remove the unconstitutionality or illegality and then provide that anything done under the offending law shall be deemed to have been done under the new law and subject to its provisions. [See Commentary on the Constitution of India, 8th Edition 2007 by Durga Das Basu] 20. In Rai Ramakrishna v. State of Bihar, AIR 1963 SC 1667, it was held that if a law passed by the legislature is struck down by the Courts as being invalid for one infirmity or the other, it would be competent for the appropriate legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. 21. 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... right like this created by statute. 11. In Jyoti Basu v. Debi Ghosal (SCC at p. 696), the Hon'ble Apex Court held that- 7. The nature of the right to elect, the right to be elected and the right to dispute an election and the scheme of the constitutional and statutory provisions in relation to these rights have been explained by the Court in N.P. Ponnuswami v. Returning Officer, Namakkal Constituency, 1952 SCR 218 and Jagan Nath v. Jaswant Singh, 1954 SCR 892 = AIR 1954 SC 210. We proceed to state what we have gleaned from what has been said, so much as necessary for this case. 8. The right to elect, fundamental though it is to democracy, is, anomalously enough, neither a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the right to be elected. So is the right to dispute an election. Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election. Statutory creations they are, and therefore, subject to statutory limitation. 25. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. As such, the judgment in Lily Thomas's case (supra) would have no application in this case. iv) Constitutional validity of a statute. 28. There can be no quibble with the proposition that an enacted law can be declared unconstitutional on the following grounds: (i) Lack of legislative competence; (ii) Violation of Part-III of the Constitution; and (iii) Arbitrariness of the law. 29. 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. 30. 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight 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. 37. During the Rajya Sabha debate on the impugned Amendment and Validation Act, 2013, the Leader of Opposition stressed that police cannot become the final arbiter as to who can contest and who cannot contest. The relevant extracts of the Law Minister's and Leader of Opposition's statement(s), as available on the website http://rajyasabha.nic.in, are reproduced here-in-below:- A) Law Minister's statement while introducing the impugned Bill: ... As I have already indicated to you, these are two separate statutory rights. The right to vote is subject to limitations under Section 62(5) of 1951 Act; the right to be on the electoral roll is also subject to limitations under Section 16 of the 1950 Act. Under the 1950 Act, your name can only be removed from the electoral register if you are convicted of an offence either under Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al suffrage and the presumption of innocence of the accused until proven guilty 38. In our opinion, 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. 39. Consequently, we are of the opinion that 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. Conclusion: 40. In view of the above, we are of the view that 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 Sect ..... 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