Holding

A legislator who incurs a disqualification under Section 9A of the R.P. Act becomes disqualified and his seat vacates immediately by operation of law, and the Governor’s declaration is reviewable, allowing the High Court to stay the ensuing bye‑election.

Summary

Bajrang Bahadur Singh was elected to the Uttar Pradesh Legislative Assembly in 2012 and subsequently entered into four contracts with the State. The Governor, under Article 192, declared Singh disqualified under Section 9A of the Representation of the People Act, 1951, causing his seat to be declared vacant and a bye‑election to be scheduled. Singh challenged the Governor’s order and the election schedule; the High Court stayed the bye‑election. The Supreme Court held that acquisition of a disqualification under Article 191 (including that created by Section 9A) vacates the seat immediately by operation of law, that the Governor’s decision is subject to limited judicial review, and that the High Court’s interim stay was justified despite Article 329(b). The Court also clarified the time‑frame for approaching the High Court under Article 192. The SLP was dismissed and the transferred writ petition was dismissed.

Issues considered

The effect of a contract entered into by a sitting legislator with the government on disqualification under Section 9A of the Representation of the People Act, 1951.
Whether the disqualification under Section 9A persists only while the contract subsists and whether a Governor’s declaration can be made after the contract is performed.
The jurisdiction of the High Court to stay a bye‑election in view of Article 329(b) of the Constitution.
The procedural time‑limit for a person aggrieved by a Governor’s decision under Article 192 to approach the High Court.

Legislation cited

Constitution of Indias. Article 190, s. Article 191, s. Article 192, s. Article 329(b)
Representation of the People Act, 1951s. Section 102, s. Section 103, s. Section 10A, s. Section 150, s. Section 151A, s. Section 8, s. Section 8A, s. Section 9, s. Section 9A

Subjects

DisqualificationSection 9ARepresentation of the People ActGovernor's decisionArticle 191Article 192Bye‑electionHigh Court jurisdictionArticle 329(b)Legislative Assembly

Judgment

(2015) 6 S.C.R. 67

ELECTION COMMISSION OF INDIA A
v.
BAJRANG BAHADUR SINGH & ORS.
(Special Leave Petition (Civil) No.8850 of 2015)
B
APRIL 09, 2015
[J. CHELAMESWAR AND R. K. AGRAWAL, JJ.]
Representation of the People Act, 1951 - s. 9A - Dis-
qualification for Government contracts, etc. - Petitioner c
elected,to State Legislative Assembly from an Assembly
Constituency - Thereafter, declaration by Governor that
petitioner incurred disqualification stipulated u/s. 9A since
the petitioner entered into culprit contracts with the State
after his election to the Legislative Assembly - Issuance of D
Notification that seat occupied by the petitioner fell vacant
and press note announcing election schedule for filling up
vacancy in the said Constituency- Writ petition by the peti-
tioner- Subsequently, issuance of Notification, notifying the
election to fill up the said Assembly Constituency - Interim E
order by the High Court staying the election process - On
appeal, held: Purpose of s. 9A is to maintain the purity of the
legislature and to avoid conflict of personal interest and duty
of the legislators - It would be strange logic that persons
with a subsisting contract with the government are perceived F
to be undesirable to become members of the legislature as
there is a likelihood of conflict between their duty as legisla-
tors, if elected and their personal interest as contractors, but
legislators can enter into contracts with the government with G
impunity-Any interpretation of s. 9A which goes to assist a
legislator who directly enters into a contractual relationship
with the State for deriving monetary benefits should be
avoided and be given a construction which eliminates the
possibility of creating such situation where the duty is cer- H
67
68 SUPREME COURT REPORTS [2015] 6 S.C.R.

A tainly bound to conflict with personal interest- On facts, sub-
mission that the disqualification prescribed uls. 9A operates
only at the threshold thereby rendering a person ineligible
for contesting any election thus, the petitioner did not incur
any disqualification; and that disqualification operate only
B during the subsistence of the culprit contracts but not after
they ceased to subsist, cannot be accepted - Instant case
does not fall within the blanket ban on ttie /itigative challenges
to the electoral steps - Interim order granted by High Court
justified - Person aggrieved by a decision of the Governor
C u!Art. 192 can approach the High Court within the period
specified.

Dismissing the transferred case and disposing of
the SLP, the Court
D
HELD: 1.1 Acquisition of a disqualification
contemplated under Article 191 of the Constitution is an
incident which entails a legal consequence of rendering
the seat (occupied by such a Legislator who acquired
E the disqualification) vacant by operation of law. Article
192 only prescribes the forum and stipulates the
procec;lure for determination of the fact whether a
Legislator has incurred the disqualification. Article 192
does not provide for removal of a member from the
F Legislature by an action of the Governor. It only obligates
the Governor to decide whether a Legislator has incurred
anyone of the disqualifications mentioned in clause (1)
of Article 191. The vacancy occurs by virtue of
constitutional declaration contained in Article 190 clause
G (3). The removal takes place by virtue of the operation
of law on the happening of the event, that is, the
acquisition of a disqualification. The fact that the
disqualification uls. 9A of the Representation of the
H People Act, 1951 subsists only for a limited period of
time, makes no difference to the consequences flowing
ELECTION COMMISSION OF INDIA v. BAJRANG 69
BAHADUR SINGH & ORS.

from the occurrence of such disqualifying EVENT. [Paras A
33) {88-A-D]

1.2. The happening of any one of the disqualifying
EVENTS has the effect of making the seat occupied by
such a disqualified person vacant immediately by B
operation of law. The effect of the decision of the
Governor under Article 192 is only to decide whether a
legislator acquir~d the disqualification on a particular
date on the hiP.pening of one of the disqualifying
EVENTS contemplated u/s. 191. The consequence is that C
the legislator who acquires the disqualification ceases
to be a Member of the Legislature with effect from the
date of the acquisition of the disqualification. However,
the cessation of the disqualifying factor cannot put such
a person back in the legislature without his being elected D
once again, of course such person is entitled to contest
· any election under the R.P. Act, the moment the
·disqualifying factor ceases to exist as the
disqualification is co-terminus with the disqualifying
EVENT. [Para 34, 35, 37, 38] [90-F-G; 91-C-D] E

1.3 The language of Section 9A which declares a
person shall be disqualified "if and for so long as there
subsists a contract", must be understood in the
background of the scheme of Chapter Ill of the R.P. Act. F
All other provisions except Sections 9A and 10 of the
Chapter prescribe a fixed tenure of disqualification and
make it co-terminus with the currency of the EVENT
which creates a disqualification. That tenure has nothing
to do with the duration of the currency of the event which G
brings about the legal consequence of disqualification.
Therefore, the clause "if and for so long as" in these
two provisions must be understood only to convey (in
the context of a Legislator who incurs a disqualification) H .
that he is not debarred from contesting any election
70 SUPREME COURT REPORTS [2015) 6 S.C.R.

A under the Act including a bye-election arising as a direct
consequence of his vacating the seat in the Legislature
if the EVENT (the subsistence of which brought about
the consequence of disqualification) ceases to subsist
by the relevant date. The interpretation such as the one
B sought to be placed by the petitioner would amount to
Parliament nullifying the constitutional declaration
contained in Article 190(3) read with Article 191. [Para 43]
[92-C-G]

C 1.4 The purpose of Section 9A is to maintain the
purity of the legislature and to avoid conflict of personal
interest and duty of the legislators. It would be strange
logic that persons with a subsisting contract with the
government are perceived to be undesirable to become
D members of the legislature as there is a likelihood of
conflict between their duty as legislators, if elected and
their personal interest as contractors, but legislators can
enter into contracts with the government with impunity.
E [Para 53] [97-D-E]

1.5 The eyes cannot be closed to the reality of the
unwholesome influence which money power exerts on
the political system in this country. Any interpretation
of Section 9A which goes to assist a legislator who
F directly enters into a contractual relationship with the
State for deriving monetary benefits (in some cases of
enormous proportions) should be avoided and be given
a construction which as far as possible eliminates the
possibility of creating such situation where the duty is
G certainly bound to conflict with personal interest. The
expression 'office of profit' is that "it should be
interpreted with the flavour of reality bearing in mind
the object for enactment of Article 102(1 )(a), namely, to
H eliminate or in any event to reduce the risk of conflict
between the duty and interest amongst members of the
ELECTION COMMISSION OF INDIA v. BAJRANG 71
BAHADUR SINGH & ORS.

legislature by ensuring that the legislature does not have A
persons who receive benefits from the executive and may
thus, be amenable to its influence. [Para 56) [98-C-G]

1.6 The authority and jurisdiction of the High
. Courts u/Article 226 to adjudicate the disputes which B
are brought before them is a grant of the Constitution,
though such authority and jurisdiction have well known
limitations. Such limitations are self-imposed based on
the structure of the Constitution the distribution of the
functions of the various organs of the Constitution and C
other well established legal principles. The jnte!iference ---- -
of the High Court in exercise of the jurisdiction under
Article 226 with the issuance of notification for filling up
of casual vacancy in the Legislative Assembly of U.P.
(Pharenda constituency) arises out of an absolute D
necessity. The election is inextricably interlinked with
the legality of the decision of the Governor which
resulted in the declaration of the vacancy in the
Legislative Assembly representing the Pharenda
constituency. [Paras 61and65) [99-H; 100-A-B; 101-G- E
H;102-A]

1.7 The decision of the Governor declaring that
the petitioner incurred a disqualification u/s. 9A is under
challenge before the High Court. That being the case, F
there· is always a possibility in a given case that the
decision of the Governor could be held to be
unsustainable. In the eventuality of such a conclusion
by the High Court, the Legislator who is unseated
consequent upon decision of the Governor under Article G
192 is entitled to continue as a Member of the Legislature
if the tenure to which he is elected still survives. But in
the meanwhile if a bye-election were to be held to fill up
the vacancy arising as a consequence of the decision H
of the Governor and in such an election if a person other
72 SUPREME COURT REPORTS [2015] 6 S.C.R.

A than unseated legislator gets elected, there would be a
very anomalous situation of two persons validly elected
to the same seat in the Legislature. Therefore, the case
on hand does not fall within the "blanket ban on the
litigative challenges to the electoral steps". The interim
B order granted by the High Court is perfectly justified.
However, the COMMISSION is under a statutory
obligation to hold a bye-election within a period of six
months from the date of the occurrence of the vacancy.
Any person aggrieved by a decision of the Governor
C under Article 192 must approach the High Court by
initiating appropriate proceedings, (if he is so desirous)
within the period specified. (Paras 66, 67, 68 and 70)
(102-B-C; 105-E-F]
D Election Commission India v. Saka Venkata Subba
Rao (1953) 4 SCR 1144; P.V Narasimha Rao v. State
(CBI/SPEC) 1998 (2) SCR 870: (1998) 4 sec 626;
Prakash Khandre v. Dr. Vijay Kumar Khandre & Others
2002 !~) SCR 994 : (2002) 5 SCC 568; Konappa
E Rudr_appa Nadgouda v. Vishwanath Reddy & another
AIR 1969 SC 447: 1969 SCR 395; Shrikant v.
Vasantrao and Others 2006 (1) SCR 496 : 2006 (2)
SCC 682; Madhukar G.E. Pankakar v. Jaswant
Chobbildas Rajani & others 1976 (3) SCR 832 : (1977)
F 1 SCC 70; M. V Rajashekaran & Others v. Vatal Nagaraj
& Others 2002 (1) SCR 412 : (2002) 2 sec 704;
Ashok Kumar Bhattacharyya v. Ajoy Biswas 1985 (2)
SCR 50 : (1985)1 SCC 151; Shrikant v. Vasantrao &
G others 2006 (1) SCR 496 : (2006) 2 sec 682; N.P.
Ponnuswami v. Returning Officer, Namakkal
Constituency & Others (1952) 3 SCR 218; Mohinder
Singh Gill & another v. The Chief Election
Commissioner, New Delhi &others 1978 (2) SCR 272:
H (1978) 1 sec 405- referred to.
ELECTION COMMISSION OF INDIA v. BAJRANG 73
BAHADUR SINGH & ORS.

Case Law Reference A
(1953) 4 SCR 1144 Referred to Para 6
1998 (2) SCR 870 Referred to Para 29
2002 (3) SCR 994 Referred to Para 48
1969 SCR 395 Referred to Para 50 B
2006 (1) SCR 496 Referred to Para 51
1976 (3) SCR 832 Referred to Para 54
2002 (1) SCR 412 Referred to Para 54
1985 (2) SCR 50 Referred to Para 56 c
2006 (1) SCR 496 Referred to Para 58
(1952) 3 SCR 218 Referred to Para 62
1978 (2) SCR 272 Referred to Para 62
CIVIL APPELLATE JURISDICTION : SLP (Civil) No. D
8850 of 2015.

From the Judgment and Order dated 20.03.2015 of the
High Court of Judicature atAllahabad in Writ-C No. 14270 of
2015. E

WITH

T.C. (C) No. 60 OF 2015.

Meen8ikshi Arora, Harin P. Raval, S. K. Mehdiratta, F
Neeraj Kumar, Mohit D. Ram, Prashant Kumar, Saurabh S.
Sinha, Subramanium Prasad, Joseph Pookkatti,Avdhesh Kr.
Singh, Anish Kumar Gupta, Ravi Prakash Mehrotra, Abhinav
K. Malik for tll~ appearing parties.
G
The Judgment of the Court was delivered by

CHELAMESWAR, J. 1. One Bajrang Bahadur Singh
respondent no. 1 in SLP(C) No. 8850/2015 and the petitioner
in Transferred Case No. 60/2015 (hereinafter being referred H
74 SUPREME COURT REPORTS [2015) 6 S.C.R.

A to as the petitioner for the sake of convenience) contested in
the general elections held in the year 2012 to the UP Legislative
Assembly from 315 Pharenda Assembly Constituency. On
6.3.2012, he was declared elected.

B 2. On 29.1.2015, the Governor of Uttar Pradesh made
a declaration in exercise of the authority conferred under
Article 192 of the Constitution of India that the petitioner
incurred the disqualification stipulated under Section 9A of
the Representation of the People Act, 1951 (hereinafter
C referred to as "the R.P. Act"). Such a declaration came to
be made on an undisputed finding of fact that the petitioner
entered into four contracts (hereinafter referred to as the
CULPRIT CONTRACTS for the sake of convenience) with
the State of U.P. sometime in the year 2013 after his election
0
to the Legislative Assembly and performed his obligations
arising under the said contracts.

The Governor made the following order on
E 29.01.2015:

Therefore, I, Ram Naik, Governor, Uttar Pradesh, upon
exercising the powers under Article 192(1) of the
Constitution of India hereby declare that Shri Uma
Shankar Singh from 06.03.2012 and Shri Bajrang
F Bahadur Singh from 15.10.2012 have become
disqualified from the membership of Uttar Pradesh
Legislative Assembly.

(Original in Hindi, translated by Court staff)
G
3. As a consequence of the above-mentioned decision
of the Governor, a notification came to be issued by the
Secretariat of the Legislative Assembly on 17 .2.2015 stating
that a seat occupied by the petitioner representing 315
H PharendaAssembly Constituency fell vacant. On 10.3.2015,
ELECTION COMMISSION OF'fNDIA v. BAJRANG 75
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

the Election Commission of India (hereinafter referred to as A
"COMMISSION" forthe sake of convenience) issued a press
note by which the election schedule for filling up 7 casual
vacancies in 7 different Assembly constituencies in four
different States was announced, one of them being 315
Pharenda Assembly Constituency. B

4. On 13.3.2015, the petitioner filed a writ petition
challenging the decision of the Governor dated 29.01.2015
and sought various reliefs. On 17.3.2015, a notification under
Section 150( 1) of the R. P. Act came to be issued by C
COMMISSION notifying, inter alia, the election to fill up 315
Pharenda Assembly Constituency. Thereupon, on an
application by the petitioner, the High Court of Allahabad
passed an interim order on 20.3.2015 - staying the election
process to the above-mentioned constituency. D

5. Aggrieved by the said interim order, the
COMMISSION moved SLP(C)No. 8850/2015. On
23.3.2015, notice was issued and also an interim suspension
of the impugned order of the High Court was granted. E
However, by subsequent order dated 30.3.2015, for reasons
recorded therein, this Court thought it fit to withdraw the writ
petition filed by the petitioner to this Court and also to keep
the notification dated 17.3.2015 in abeyance.
F
6. Learned Senior Counsel forthe petitioner Mr. Harish
Raval made two principal submissions:

(i) that the disqualification prescribed under Section
9A of the R.P. Act operates only at the threshold G
thereby rendering a person ineligible for contesting
any election contemplated in the R.P. Act. In other
words, Section 9A prescribes only a disqualification
for a person seeking to contest an election -
described by this Court in the case of Election H
76 SUPREME COURT REPORTS [2015] 6 S.C.R.

A Commission India v. Saka Venkata Subba Rao,
(1953) 4 SCR 1144 as "existing disqualification" but
it does not render a legislator disqualified from
continuing as such on the ground that such legislator
subsequent to his election entered into a contract with
B the appropriate government. Therefore, the petition
did not incur any disqualification.

(ii) Even if the petitioner is to be held to have incurred
a disqualification, such disqualification ceased to
c exist, the moment petitioner discharged his
obligations arising out of the CULPRIT
CONTRACTS. Therefore, he cannot be held to
be ineligible for continuing as a member of the
legislature on a true and proper interpretation of
D Section 9AoftheAct. In other words, a declaration
such as the one made by the governor of U. P. on
29.1.2015 could have been made and operate only
during the subsistence of the CULPRIT
CONTRACTS but not after they ceased to subsist.
E
7. On the other hand, Ms. Meenakshi Arora, learned
senior counsel for the COMMISSION submitted that
disqualification contemplated under Section 9A takes within
its sweep both "pre-existing" and "supervening" contracts.
F There is no warrant to give a restricted interpretation to the
language of Section 9A, such as the one suggested by the
learned counsel for the petitioner. Therefore, the Governor's
decision cannot be faulted. The interpretation sought to be
placed on Section 9A by the learned counsel runs directly
G contrary to the purpose sought to be achieved by the
provision.

8. Learned counsel also submitted that the decision
of the Governor is rendered in exercise of the authority
H conferred under Article 192 of the Constitution on the question
ELECTION COMMISSION OF INDIA v. BAJRANG 77
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.)

whether a member of the legislature "has become subject to A
any disqualification",. By a constitutional declaration under
the said Article, the same 'shall be final'. The correctness of
such a decision though is amenable to judicial review, such a
review is possible only on a few limited grounds as expounded
and settled by this Court. The petitioner's case does not fall B
within the ambit of such permissible judicial review.

9. Another important question that arises in this matter,
is, the legality and propriety of the High Court's interim order
dated 20.3.2015, whether the High Court was acting within C
its jurisdiction when it intercepted the election process after
the issuance of a notification under Section 150( 1) of the
Act calling upon the constituency fo elect its representative,
in view of the prohibition contained in Article 329(b) of the
Constitution of India. The details of the submissions will be D
considered later in this judgment.

10. Before we examine the correctness of the rival
submissions, we deem it appropriate to examine the scheme
of the relevant provisions of the Constitution and of the R.P. E
Act.

11. The Constitution of India declares that there shall
be a bi-camera I legislature at the national level. In so far as
States are concerned, Article 168 of the Constitution declares F
that certain States specified therein shr have a bi-camera!
legislature and the remaining States shall have a legislature
consisting of onlY_ one House.

Article 168- Constitution of Legislatures in States- G
(1) For every State there shall be a Legislature which
shall consist of the Governor, and

(a) in the States of Andhra Pradesh, Bihar,Maharashtra,
Karnataka, Tamilnadu and Uttar Pradesh, two
H
78 SUPREME COURT REPORTS [2015] 6 S.C.R.

A Houses:

(b) in other States, one House.

(2) Where there are two Houses of the Legislature of a
State, one shall be known as the Legislative Council and
B
the other as the Legislative Assembly, and where there
is only one House, it shall be known as the Legislative
Assembly."

Elaborate provisions are made in the Constitution
C regarding the composition of these bodies, the periodicity
with which the election to these bodies are to be conducted,
the qualifications and disqualificati~ns for seeking the
membership of any one of these bodies and matters
incidental thereto.
D
12. Article 173 of the Constitution prescribes that
persons seeking to become members of the legislative
bodies must possess certain qualifications. Any person who
doesn't possess the qualifications mentioned in Article 173
E is declared not to be qualified "to be chosen to fill a seat in
the legislature of a State". Briefly stated to become a member
of the State legislature, a person must be (i) a citizen of
India, (ii) must be of the minimum age specified (iii) must
F subscribe to an "oath of faith and allegianc.e". Article 173
also postulates that a person seeking election to the
legislature of the State is required to possess such other
qualifications as may be prescribed by or under any law made
by the Parliament.
G "Article 173. Qualification for membership of the State
Legislature - A person shall not be qualified to be
chosen to fill a seat in the Legislature of a State unless
he-

H (a) is a citizen of India, and makes and
ELECTION COMMISSION OF INDIA v. BAJRANG 79
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

subscribes before some person authorised in A
that behalf by the Election Commission an oath or
affirmation according to the form set out for the
purpose in the Third Schedule;

(b) is, in the case of a seat in the Legislative B
Assembly, not less than twenty-five years of age
and in the case of a seat in the Legislative Council,
not less than thirty years of age; and

c) possesses such other qualifications as may be c
prescribed in that behalf by or under any law made
by Parliament."

13. Article 191 stipulates certain persons to be
disqualified for "being chosen as and for being" a member
0
of the Legislature. It reads as follows:-

"Article 191. Disqualifications for membership- (1) A
person shall be disqualified for being chosen as, and
for being, a member of the Legislative Assembly of
Legislative Council of a State- E

(a) if he holds any office of profit under the
Government of India or the Government of any
State specified in the First Schedule, other
than an office declared by the Legislature of F
the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so
declared by a competent court;

(c) if he is an undischarged insolvent; G

d) if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State,
or is under any acknowledgement of
allegiance or adherence to a foreign State;" H
80 SUPREME COURT REPORTS [2015] 6 S.C.R.

A e) if he is so disqualified by or under any law
made by Parliament."

14. It can be seen from Article 191 that under clauses
(a) to (d) of sub-Article (1 ), the Constitution itself prescribes
B certain conditions which render a person disqualified for the
membership of the Legislature. Whereas clause (e)
authorises the Parliament to prescribe by law other conditions
which render persons disqualified for membership of the
Legislature.
c
15. The R.P. Act, 1951 under Chapter II prescribes
certain additional qualifications for membership of the state
Legislature in certain cases. Such prescription is referable
to Article 173(c). Section 5 prescribes qualifications for
o filling up a seat in a State Legislature which is reserved in
favour of Scheduled Castes and Scheduled Tribes. Such
reservation is mandatory under the Constitution'.

16. Chapter Ill prescribes the disqualifications for the
E ·membership of the legislature. Section 8 declares that
persons convicted of any one of the offences enumerated in
Section 8 are disqualified. It further provides that upon such
conviction, if the convict is sentenced only to fine the
disqualification is for a period of 6 years running from the
F date of such conviction. On the other hand, if the convict is
sentenced to imprisonment, such disqualification runs from the
date of such conviction and continues for a further period of 6
years after the release of the convict from jail.

G "Section 8. Disqualification on conviction for
certain offences. -(1 )A person convicted of an offence
punishable under -
xxxx xxxx xxxx xxxx
H 1 See Articles 330 and 332
ELECTION COMMISSION OF INDIA v. BAJRANG 81
•
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

shall be disqualified, where the convicted person is A
sentenced to -

(i) only fine, for a period of six years from the date of
such conviction;
(ii) imprisonment, from the date of such conviction and B
shall continue to be disqualified for a further period
of six years since his release."

17. Sub-section (2) of Section 8 makes a special
provision regarding the period of disqualification on the basis c
of (i) the offences specified under sub-section (2) and (ii)
the term of imprisonment to which a convict is sentence,d.

"8(2) A person convicted for the contravention of-
(a) any law providing for the prevention of hoarding or o
profiteering;
or
(b) any law relating to the adulteration of food or drugs;
or E
(c) any provisions of the Dowry Prohibition Act, [1961
(28of1961)

and sentenced to imprisonment for not less than six
months, shall be disqualified from the date of such F
conviction and shall continue to be disqualified for a
further period of six years since his release."

18. Section BA prescribes the disqualification on the
ground of corrupt practices. The period of disqualification G
may extend to a maximum of 6 years. Section 9 stipulates
the disqualification for dismissal of a person from the service
of the Union of hldia or the State or on the ground of disloyalty
or corruption, the period of disqualification being 5 years from
the date of the dismissal. H
82 SUPREME COURT REPORTS [2015] 6 S.C.R.

A 19. Section 9A is relevant in the context of the present
case and it reads as follows:-

"Section 9A. Disqualification for Government
contracts, etc.-A person shall be disqualified if, and for
s so long as, there subsists a contract entered into by him
in the course of his trade or business with the appropriate
Government for the suppl:,· of goods to, or for the
executions of any works, undertaken by that Government.

c Explanation-For the purposes of this section, where
a contract has been fully performed by the person by
whom it has been entered into with the appropriate
Government, the contract shall be deemed not to subsist
by reason only of the fact that the Government has not
D performed its part of the contract either wholly or in part."

20. Section 102 stipulates a disqualification which
subsists only so long as the disqualifying EVENT subsists and
it is similar to Section 9A in its operation. Section 1OA 3
E prescribes a disqualification which last for three years from
the relevant date. We are not really concerned with other details
of Chapter Ill except Section 11' which empowers the Election
2 1 o. Disqualification for office under Governrnent company - A person shall be
disqualified if, and for so long as, he is a managing agent, manager or secretary of any
F company or corporation (other than a co-operative society) in the capital of which the
appropriate Government has r.ot less than twenty-five per cent share.
3 10A. Di'squalification for failure to lodge account of election expenses - If the
Election Commission is satisfied 1 : 1t a person -
(a) has failed to lodge an account of election expenses, within the time and in
the manner required by or under this Act, and
G (b) has no good reason or justification for the failure,
the Election Commission shall, by order published in the Off1c1al Gazette,
declare him to be disqualified and any such person shall be disqualified for a r·eriod of
three years from the date of the order
d 11. Ren1oval or reduction of period of disqualification. -The Eler:tion Commission

may, for reasons to be recorded, remove any disqualification under this Chapter 1 (except
·.1.:J~r sectior. BA) or reduce the oeriod of ar1y such disqualification.
ELECTION COMMISSION OF INDIA v. BAJRANG 83
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

Commission to remove any disqualification under the Chapter A
except the disqualification prescribed under Section 8/4.. It
also authorises the Election Commission to reduce the period
of any such disqualification notwithstanding the fact that period
of disqualification is fixed under the various other provisions 8
of the Chapter.

21. Article 192 stipulates that if any question arises as
to whether a member of the Legislature of a State "has become
subject to any disqualification" mentioned in clause 1 of Article C
191, such a question is required to be referred to the decision
of the Governor. The Article also declares that the decision of
the Governor shall be final. Sub Article (2) obligates the
Governor to obtain the opinion of the Election Commission D
before giving any decision. Article 192 reads as follows:-

"Article 192. Decision on questions as to
disqualifications of members- (1) If any question
arises as to whether a member of a House of the E
Legislature of a State has become subject to any of
the disqualifications mentioned in clause (1) of article
191, the question shall be referred for the decision
of the Governor and his decision shall be final. F

(2) Before giving any decision on any such
question, the Governor shall obtain the opinion of
the Election Commission and shall act according to
such opinion." G

22. The scope of authority of the Governor acting under
Article 192 first fell for the consideration of this Court in the

H
84 SUPREME COURT REPORTS [2015) 6 S.C.R.

A case of Saka Venkata Subba Rao (supra) 5 .

By a unanimous decision of a Constitution Bench of
this Court, itwasheld:-

B "16. For the reasons indicated we agree with the learned
Judge below in holding that Articles 190 (3) and 192 (1)
are applicable only to disqualifications to which a member
becomes subject after he is elected as such, and that
neither the Governor nor the Commission has jurisdiction
c to enquire into the respondent's disqualification which
arose long before his election."

23. This Court took note o( the fact that a person can
incur any one of the disqualifications contemplated in Article
D 191 either before the election or after the election - elegantly
classified by the then Attorney General M.C. Setalvad as "pre-
existing disqualifications" and "supervening disqualifications".

24. Dealing with the scope of Article 192, this Court
E concluded that the authority of the Governor to examine the
question of disqualification extended only to the 2nd of the
above-mentioned two categories of disqualification i.e., the
supervening disqualifications acquired subsequent to the
election of a person to the Legislature.
F
25. In the case on hand, the disqualification if any is
5 Subba Rao was convicted by the Sessions Court and sentenced to a term of 7 years
rigorous imprisonment in the year 1942 and released on the occasion of the celebration
of Independence Day on 151h August, 1947, he desired to contest in the election held in
1952 to Kakinada Legislative Assembly in the erstwhile Madras Legislative Assembly.
G As he was under a disqualification having had suffered imprisonment, he made an
application under Section 11 to the Election Comm1ssion seeking an exemption.
As there was no response from the Election Commission, he went ahead and filed his
nomination and contested the election successfully. He took his seat in the Legislative
Assembly. In the interregnum between the date of the nomination and the declaration
oftht: election of the respondent, the Election Commission had rejected the respondent's
application seeking exemption. On receipt of the communication from the Election
Commission, the Speaker referred the matter to the Governor for his decision under
H Article 192. At that stage, the respondent approached the High Court challenging the
competence of the reference of the Speaker.
ELECTION COMMISSION OF INDIA v. BAJRANG 85
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

only supervening disqualification. As we already noticed, that A
all the relevant facts on the basis of which the petitioner is
declared disqualified are facts which occurred subsequent to
the election of the petitioner. Therefore, the Governor
necessarily has the authority to examine the question.
B
26. The issue before us is not really whether the
Governor has necessary authority in law to examine the
question of disqualification of the petitioner herein. The
question is whether CULPRIT CONTRACTS render the
petitioner disqualified from continuing to be a member of the C
legislative assembly. i

27. In support of the 1st submission that Section 9A
does not prescribe any supervening disqualification, Shri
Rawal emphasised on the language of Section 9A more D
particularly the clause which says "for so long as there
subsists a contract. ..... ". According to the learned counsel,
the Legislature never contemplated that any person who
enters into contractual relationship with the Government
either to supply goods or for execution of any works E
undertaken by the Government be eternally disqualified for
contesting an election to the Legislature. The disqualification
subsists only so long as the contract subsists. The moment
the contract ceases to subsist the disqualification also ceases F
to exist. It is therefore, submitted that if the construction
suggested by the petitioner is not accepted, Section 9A would
lead to a situation that a legislator who enters into a contract
with the government which subsists only for a fraction of the
tenure of the legislator would deprive a validly elected legislator G
his right to be a legislator even for that period for which he
suffers no disqualification. Therefore, the Section must be
interpreted to cover only the pre-existing disqualifications. It
is further submitted that the language of Section 9A in contra-
distinction to the language of Article 191 (1) 6 does not specify H
6
~disqualified for being chosen as and for being"
86 SUPREME COURT REPORTS [2015] 6 S.C.R.

A whether the disqualification under the Section takes within its
sweep the events which occur subsequent to the election.

28. On the other hand, Ms. MeenakshiArora submitted
that a person acquires the disqualification the moment he
B enters into a contract with the government by virtue of the
operation of law i.e., Article 190(3). 7 As a sequel the seat
occupied by such legislator falls automatically vacant. Article
192 only prescribes the forum and procedure for the
adjudic:ation of the question whether any one of the events
C contemplated under Article 190(1) took place. The argument
of the petitioner is nottenable.

29. In support of the submission, learned counsel relied
on the judgment of this Court in P. II. Narasimha Rao ~~ State
D (CBI/SPEC), (1998) 4 sec 626.

30. The main questions which were debated by this
Court in that case were (i) whether a member of the
Parliament is a public servant within the meaning of Section
E 2(c) of the Prevention of Corruption Act, 1988, and, therefore,
whether any sanction was required for prosecuting such a
person under the said Act, (ii) if sanction is required, who is
the competent authority to grant the sanction. It is in that
context, this Court considered the scope of Articles 101, 102
F and 103 which were substantially similar to Articles 190 to 192.

31. We now examine the 1" submission of the petitioner.
7 "(3) If a men1ber of a House of the Legislature of a State.-
(a) becomes a subject to any of the disquaiifications mentioned in
clause (1) or clause {2) of article 191
G (b) resigns his seat by writing under his hand addressed to the Speaker
or the Chairman, as the case may be, and his resignation is accepted by the Speaker or
the Chairman, as the case.n:i~y be,
his seat shall thereupon become vacant.
Provided that in the case of any resignation referred to .in sub-clause (b). if from infor-
mation received or otherwise and after n1aking such inquiry as he thinks fit, the Spea
ker or the Chairman, as the case may be, is satisfied U1at such resignation is not volun·
H tary or genuine, he shall not accept such resignation"
ELECTION COMMISSION OF INDIA v. BAJRANG 87
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

The logic of the petitioner is that disqualifications prescribed A
unde,· Sections 8, 9, 1OA of the R.P. Act run for a statutorily
fixed time frame which is totally unrelated to the duration of the
disqualifying EVENT. Whereas for the disqualification under
Section 9A, the period of disqualification is co-terminus with
subsistence of the contract (the disqualifying event). Therefore, B
the submission: if the interpretation of the petitioner is not
accepted in a case such as the one at hand though the
disqualification subsists only for a limited period i.e. a fraction
of the tenure of the legislator, the same would have the effect
of terminating the membership of the Legislator even for that C
period during vyhich there is no subsisting contract.

32. In our opinion, the submission of the petitioner
overlooks the language of Article 190 sub-clause (3). It reads
as follows:- D

(3) "If a member of a house of the Legislature of a State-

(a) becomes subject to any of the disqualifications
mentioned in clause (1) or clause (2) of Article 191; or E

(b) .. ·················
his seat shall thereupon become vacant."

33. It can be seen from the language of the sub-section F
(3) that if a member of a House of the Legislature becomes
subject to any of the disqualifications mentioned in clause(1)
or clause (2) of Article 191, his seat shall thereupon become
vacant. In other words, the vacancy occurs the moment a
person incurs the disqualification by operation of law. The G
duration of the currency of the disqualifying EVENT is irrelevant.
While Article 191 deals with the disqualifications for two classes
of people (I) those who are aspiring to be the members of the
Legislature (ii) those who are already Members of the
Legislature, Article 190(3) deals only with the vacation of the H
88 SUPREME COURT REPORTS [2015] 6 S.C.R.

A seats by the members of the Legislature - therefore, applicable
only to the 2"d of the two classes covered by Article 191.
Acquisition of a disqualification contemplated under Article 191
is an incident which entails a legal consequence of rendering
the seat (occupied by such a Legislator who acquired the
B disqualification) vacant by operation of law. Article 192 only
prescribes the forum and stipulates the procedure for
determination of the fact whether a Legislator has incurred the
disqualification. As pointed out by this Court in Narasimha
Rao's case (supra), Article 192 does not provide for removal
C of a member from the Legislature by an action of the Governor.
The removal takes place by virtue of the operation of law on
the happening of the event, that is, the acquisition of a
disqualification. The fact that the disqualification under Section
9A subsists only for a limited period of time in our view makes
0
no difference to the consequences flowing from the occurrence
of such disqualifying EVENT.

34. Each one of the events contemplated under the
various clauses of Article 191 (1) can subsist for a limited
E period of time depending upon the facts and circumstances
of the case. For example, under clause(a), the holding of office
of profit specified therein renders a person disqualified. Goes
without saying, the tenure of such an office of profit may differ
F from case to case. Under clause (b), a person who is of
unsound mind and stands so declared by a competent Court
is disqualified. The event which renders a person disqualified
has two components in it. (i) a person must be of unsound
mind and (ii) stands so declared by competent Court. It is only
G on the happening of both the events, such a person becomes
disqualified. But there is nothing in nature that a person who
is of unsound mind and declared so by a competent Court
need to continue in the same state of mind forever. It is possible
in some cases that with appropriate medical treatment, that
H unsoundness of mind could be cured and on proof of the same,
ELECTION COMMISSION OF INDIA v. BAJRANG 89
BAHADUR SINGH & ORS. (J. CHELAMESWAR, J.]

an appropriate declaration from the competent Court revoking A
the earlier declaration can always be obtained upon such
declaration, the disqualification ceases. So is the case of
status of undischarge insolvency and citizenship of India. The
citizenship status of a person can change from time to time.
B
35. In all the above-mentioned situations on the
happening of the disqualifying EVENT, a Legislator ceases
to be Legislator and his seat falls vacant by operation of law
but not because of any declaratory adjudication. Article 192
does not contemplate the Governor making a declaration C
that the seat has fallen vacant. It only obligates the Governor
to decide whether a Legislator has incurred anyone of the
disqualifications mentioned in clause( 1) of Article 191. The
vacancy occurs by virtue of constitutional declaration
contained in Article 190 clause(3) which we have already D
noticed. Dealing with the parallel provisions of Article 101,
102 and 103 of the Constitution, which deal with the
disqualification of members of the Parliament, this Court in
Narasimha Rao's case (supra) held that "if the President holds
that the Member has become subject to a disqualification, the E
member would be treated to have ceased to be a member
on the date when he became subject to such disqualification."
(Para 93)(Agrawal, J).

36. Justice S.P. Bharucha also reached the same F
conclusion and held as follows:-

"180. The question for our purposes is whether, having
regard to the terms of Articles 101, 102 and 103, the
President can be said to be the authority competent to G
remove a Member of Parliament from his office. It is
clear from Article 101 that the seat of a Member of
Parliament becomes vacant immediately upon his
becoming subject to the disqualifications mentione.d in
Article 102, without more. The removal of a Member H
90 SUPREME COURT REPORTS [2015] 6 S.C.R.

A of Parliament is occasioned by operation of law and
is self-operative. Reference to the President under
Article 103 is required only if a question arises as to
whether a Member of Parliament has earned such
disqualification; that is to say, if it is disputed. The
B President would then have to decide whether the
Member of Parliament had become subject to the
automatic disqualification contemplated by Article 101.
His order would not remove the Member of
Parliament from his seat or office but would declare
c that he stood disqualified. It would operate not with
effect from the date upon which it was made but would
relate back to the date upon which the disqualification
was earned. Without, therefore, having to go into the
connotation of the word "removal" in service law, it
D
seems clear that the P-esident cannot be said to be
the authority competent to remove a Member of
Parliament from his office."

37. Therefore, now it is a settled proposition of law that
E the happening of any one of the disqualifying EVENTS has
the effect of making the seat occupied by such a disqualified
person vacant immediately by operation of law. The effect of
the decision of the Governor under Article 192 is only to decide
F whether a legislator acquired the disqualification on a particular
date on the happening of one of the disqualifying EVENTS
contemplated under Section 191. The consequence is that
the legislator who acquires the disqualification ceases to be a
Member of the Legislature with effect from the date of the
G acquisition of the disqualification.

38. We have already noticed that there are two
classes of disqualification contemplated under Article
191, (i) disqualifications which last only for a limited period
H that is, during the currency of certain events specified under
ELECTION COMMISSION OF INDIA v. BAJRANG 91
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

Article 191, (ii) statutory disqualifications prescribed under A
Section 8, Section 8A, Section 9 and Section 10A which
render a person ineligible for a period specified under each
of the above-mentioned provisions. The disqualifications
under Sections 9A and 1O of the Act are akin to the
disqualifications contemplated under clauses (a) to (d) of B
Article 191 (1) where the period of disqualification is co-
terminus with the currency of the event which renders a
person ineligible both for being chosen as or for being a
Member of the Legislature. Nonetheless on the acquisition
of the disqualification by a legislator, he ceases to be a c
legislator forthwith by operation of law. However, the
cessation of the disqualifying factor cannot put such a person
back in the legislature without his being elected once again,
of course such person is entitled to contest any election under
0
the R.P. Act, the moment the disqualifying factor ceases to
exist as the disqualification is co-terminus with the
disqualifying EVENT.

39. We, therefore, reject the 1st submission of the
petitioner. E

40. We now deal with the second submission of the
petitioner that on the true and proper construction of the
language of Section 9-A of the R.P. Act, a declaration such
as the one which Is a subject matter of the dispute on hand F
could not have been given after the petitioner executed the
CULPRIT contracts.

41. Shri Rawal submitted that a disqualification for the
membership of the Legislature on the ground of a 'subsisting G
contract' with the government (the State of U.P. in the case on
hand) cannot be an everlasting disqualification. Section 9A
categorically declares that a person entering into contractual
relationship with the appropriate Government shall be
disqualified only "for so long as there subsists a contract". H
92 SUPREME COURT REPORTS [2015) 6 S.C.R.

A Therefore, learned counsel submitted that the moment the
contractual relationship comes to an end, the disqualification
also ceases. An adjudication (under Article 192 by the
Governor that the petitioner incurred a disqualification) after
the execution of the contracts is neither contemplated nor
B justified on the language of Section 9A.

42. The submission of Shri Rawal, in our opinion, is in
fact only a facet of the first submission.

c 43. The language of Section 9A which declares a
person shall be disqualified "if and for so long as there
subsists a contract", must be understood in the background
of the scheme of Chapter Ill of the R.P. Act. All other
provisions except Sections 9A and 10 of the Chapter
o prescribe a fixed tenure of disqualification. That tenure has
nothing to do with the duration of the currency of the event
which brings about the legal consequence of disqualification.
Only Section 9A and Section 10 limit the tenure of
disqualification and make it co-terminus with the currency of
E the EVENT which creates a disqualification. Therefore, the
clause "if and for so long as" in our view, in these two provisions
must be understood only to convey (in the context of a Legislator
who incurs a disqualification) that he is not debarred from
contesting any election under the Act including a bye-election
F arising as a direct consequence of his vacating the seat in the
Legislature if the EVENT (the subsistence of which brought
about the consequence of disqualification) ceases to subsist
by the relevant date. The interpretation such as the one sought
to be placed by the petitioner would amount to Parliament
G nullifying the constitutional declaration contained in Article
190(3) read with Article 191.

44. Shri Rawal very painstakingly placed before us the
evolution and history of the disqualification on account of a
H subsisting contract under the Representation of People Act,

•
ELECTION COMMISSION OF INDIA v. BAJRANG 93
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.)

1951. The disqualification which is mentioned in Section 9A A
of the Representation of People Act 1951 as it stands today
was originally contained in Section 7(d) oftheAct8 .

45. By Act 47of1966, Chapter Ill of the R.P. Act came
to be substituted making substantial changes in the B
provisions of Chapter Ill. Relevant for our purpose is to
note that Section 7 of the R.P. Act no more deals with
disqualification on the ground of subsisting contracts. It only
deals with certain definitions for the purpose of Chapter Ill.
The provision regarding the disqualification on account of C
subsisting contract with the Government is now incorporated
under Section 9A of the Act.

46. Shri Rawal argued that an examination of the
evolution of the provision dealing with disqualification on the o
ground of 'subsisting contract' with the Government coupled
with the existence of authority in COMMISSION to remove the
disqualification or reduce the period for which a person is
rendered disqualified must lead to a construction of Section
9A which would as far as possible eliminate tl'le unseating of a E
legislator after the contract ceases to subsist.

8 "Disqualifications

7. Disqualifications for membership of Parliament or of a State Legislature. A
person shall be disqualified for being chosen as and for being, a member of either F
House of Parliament or of the Legislative Assembly or Legislative Council of a State.

(d) If, whether by himself or by any person or bociy of persons in trust for him
or for his benefit or on his account, he has any share or interest in a contract for the
supply of goods to, or for the execution of any works or the performance of any services
undertaken by, the appropriate Government."
It can be seen from the language offhe said Section was couched in language
casting the net was much wider. However, by Act 58 of 1958, Section 7(d) was amended G
and it reads as follows:-
"PART Ill.
AMENDMENTS OF THE REPRESENTATION OF THE PEOPLE ACT, 1951
15. In Section 7 of the 1951 Act,·
(a) for clause (d), the following clause shall be substituted, namely:-
(d) if there subsists a contract entered into in the course of his trade or business
by him with the appropriate Government for the supply of goods to, or for the execution H
of any works undertaken by, that Government;~
94 SUPREME COURT REPORTS (2015] 6 S.C.R.

A 4 7. Per contra Ms. Arora submitted that the submission
of the petitioner, if accepted would lead to anamolous
consequences defeating the very purpose behind Section 9A.
The learned counsel also argued that the possibility of the
COMMISSION removing the disqualification cannot determine
B the scope and amplitude of Section 9A.

48. In support of his submission, Shri Rawal relied upon
the objects and reasons of the Act 4 7 of 1966 which were
referred to by this Court in the case of Prakash Khandre v.
C Dr. VijayKumarKhandre & Others, (2002). 5 SCC 568, this
Court extracted the objects and reasons which prompted the
amendment of old Section 7(d) and insertion of Section 9A.

"30. The objects and reasons for substituting Section 7(d)
o by Section 9-A are as under:-

Apart from the grouping of the sections effected by
clause 20, some changes have also been made in the
·relevant provisions. In the new Section 9-A, an
E Explanation has been added to make it clear that a
contract with the Government shall be deemed not to
subsist by reason only of the Government has not
performed its part of the contract either wholly or in
part. This change has become necessary in order to
F do away with the disqualification that attached to a
person for being chosen as or for being a Member of
Parliament or State Legislature even after he has fully
performed his part of the ~ontract, since it would hardly
be justifiable to retain such a disqualification provision
G in a modern welfare State when State activities extend
almost every domain of the citizen's affairs where very
many persons, in one way or the other, have contractual
relationship with the Government. That being the case,
an unduly strict view about government contract in the
H present day might lead to the disqualification of a large
ELECTION COMMISSION OF INDIA v. BAJ RANG 95
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J]

number of citizens many of whom may prove to be able A
and capable Members of Parliament or State
Legislatures. It would be of interest to note in this
connection that in the United Kingdom, any
disqualification arising out of any contract with the Crown
has been done away with by the House of Commons B
Disqualification Act, 1957."

49. Shri Rawal laid stress on the fact that the Parliament
was conscious of the fact that an.unduly strict vieww.r.t. to the
disqualification on the ground of subsisting contract with the C
Government might lead to a "disqualification of a large number
of citizens many of whom may prove to be able to and capable
of "Members of Parliament or State Legislatures."

50. To test the soundness of the submission, we must D
examine the rationale behind Section 9A. This Court in
Konappa Rudrappa Nadgouda v. Vishwanath Reddy &
another, AIR 1969 SC 447 dealt with the rationale behind
the disqualification prescribed under Section 9A of the R.P.
Act and observed as follows:- E

" ... But if the contract subsists in such manner that it
cannot be said to have been substantially completed,
the law must take its own course. It is of the essence
of the law of Elections that candidates must be free to F
perform their duties without any personal motives being
attributed to them. A contractor who is still holding a
contract with Government is considered disqualified,
because he is in a position after successful election to
get concession for himself in the performance of his G
contract. That he may not do so is not relevant. The
possibility being there, the law regards it necessary to
keep him out of the elections altogether. .. "

51. In Shrikant v. Vasantrao and Others 2006(2) H
96 SUPREME COURT REPORTS [2015] 6 S.C.R.

A SCC 682, once again this Court had an occasion to deal with
Section 9Aand the cbject behind Section 9A. At para 20, this
Court observed as follows:-

"20. The object and intent of Section 9-AoftheAct is to
B maintain the purity of the legislature and to avoid conflicts
between duty and interest of Members of the Legislative
Assembly and the Legislative Council. The said object
is sought to be achieved by ensuring that a person who
has entered into a contract with the State Government
c and therefore liable to perform certain obligations towards
the State Government, is not elected as a Member of the
Legislative Assembly or Legislative Council, lest he
should use his influence as an elected member of the
Legislature to dilute the obligations or to seek and secure
D undue advantages and benefits in respect of the
subsisting contracts. It seeks to ensure that personal
interests will not override his duties and obligations as a
member of the legislature or Legislative Council .. For
the purpose of Section 9-A, what is relevant is whether
E the candidate has a subsisting contract with the
appropriate Government (in this case, the State
Government) either for supply of goods to the State
Government or for execution of any work undertaken by
the State Government. .. "
F
52. In the light of the observations made by this Court
in the case of Konappa and Shrikant referred to above, the
observations made in Prakash Khandre's case (supra) must
be understood in the right perspective. Prakash Kandre had
G entered into a contract with the State of Karnataka in connection
with a particular road work. He decided to contest the election
to the legislative assembly of the Karnataka. Before filing the
nomination at the election, Prakash intimated the authorities
H of the State in writing that he was terminating the contract. The
ELECTION COMMISSION OF INDIA v. BAJRANG 97
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

authorities of the State accepted the same and the registration A
of Prakash was cancelled. Prakash became an MLA and his
election was challenged on the ground of Section 9A. The
question before this Court was whether the contract between
Prakash and the State of Karnataka subsisted on the relevant
date. It is in the process of the examination of such a question, B
incidentally, this Court examined the history of Section 9Aand
the objects and reasons behind Section 9A. The decision did
not in fact rest upon anything connected with the objects and
reasons behind Section 9A.
c
53. In the circumstances, it is difficult to accept the
submission of the learned counsel for the petitioner on the
basis of the objects and reasons appended to the
Amendment Act by which Section 9A was introduced. The
purpose of Section 9A as repeatedly held by this Court is to D
maintain the purity of the legislature and to avoid conflict of
personal interest and duty of the legislators. It would be
strange logic that persons with a subsisting contract with
the government are perceived to be undesirable to become
members of the legislature as there is a likelihood of conflict E
between their duty as legislators, if elected and their personal
interest as contractors, but legislators can enter into contracts
with the government with impunity.

54. Shri Rawal also relied upon certain observations F
made by this Court in Madhukar G.E. Pankakar v. Jaswant
Chobbildas Rajani & others, (1977) 1 SCC 70 and M.11.
Rajashekaran & Others v. Vatal Nagaraj & Others, (2002)
2 SCC 704 in support of his submissions that Section 9A
must be construed as suggested by him. G

55. In both the cases, the question which fell for the
consideration of this Court was the interpretation of the
expression "office of profit". In Mahdukar's case, the said
expression occurred in the Maharashtra Municipalities Act in H
98 SUPREME COURT REPORTS [2015] 6 S.C.R.

A the context of election to the Presidency of the Municipal
Council. In Rajashekharan's case, it was in the context of
an election to the Legislative Council of Karnataka. It is true
that in both the cases, this Court took the view that a construction
which would have the effect of shutting out of many prominent
B and eligible persons from contesting the election should not
be adopted.

56. In our opinion, the observations made by this Court
in the context of the expression 'office of profit' may not be
C extended to the cases of the persons with subsisting
contracts with the Government without any further scrutiny.
We can't close our eyes to the reality of the unwholesome
influence which money power exerts on the political system
in this country. Any interpretation of Section 9A which goes
D to assist a legislator who directly enters into a contractual
relationship with the State for deriving monetary benefits (in
some cases of enormous proportions) should be avoided
and be given a construction which as far as possible
eliminates the possibility of creating such situation where
E the duty is certainly bound to conflict with personal interest.
We are fortified in our view by the observations of this Court in
Ashok Kumar Bhattacharyya v. Ajoy Biswas (1985) 1 SCC
151 that the approach which appeals to us to interpret the
F expression 'office of profit' is that "it should be interpreted with
the flavour of reality bearing in mind the object for enactment
of Article 102(1)(a), namely, to eliminate or in any event to
reduce the risk of conflict between the duty and interest
amongst members of the legislature by ensuring that the
G legislature does not have persons who receive benefits from
the executive and may thus be amenable to its influence.

57. Rajashekharan's case quotes the above passage
with approval.

H 58. In fact, a three Judge Bench of this Court in Shrikant
ELECTION COMMISSION OF INDIA v. BAJRANG 99
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

v. Vasantrao &Others, (2006) 2 SCC 682 had an occasion A
to consider the object of Section 9A of the R. P. Act.

This Court in Para 20 held as follows:-

"20. The object and intent of Section 9-A of the Act is to
B
maintain the purity of the legislature and to avoid conflicts
between duty and interest of Members of the Legislative
Assembly and the Legislative Council. The said object
is sought to be achieved by ensuring that a person who
has entered into a contract with the State Government c
and therefore liable to perform certain obligations towards
the State Government, is not elected as a Member of the
Legislative Assembly or Legislative Council, lest he
should use his influence as an elected member of the
legislature to dilute the obligations or to seek and secure D
undue advantages and benefits in respect of the
subsisting contracts. It seeks to ensure that personal
interests will not override his duties and obligations as a
member of the legislature or Legislative Council. .. "
E
59. For all the abovementioned reasons, we reject the
2nd submission made by the learned counsel for the petitioner.
As a consequence, the transferred case (Civil Miscellaneous
Writ Petition No. C14270 of 2015 filed before the High Court)
·shall be liable to be dismissed and is accordingly dismissed. F

60. Though, in view of our above conclusion, it may be
really not necessary for the purpose of this case to go into the
other question regarding the legality and propriety of the High
Court's Order dated 20.3.2015 by which the High Court stayed G
the election process of the bye-election to Pheranda Assembly
Constituency. We deem it appropriate to examine the matter
as such questions are likely to arise if not regularly at least
occasionally.
H
61.. The authority and jurisdiction of the High Courts
100 SUPREME COURT REPORTS (2015] 6 S.C.R.

A under Article 226 to adjudicate the disputes which are brought
before them is a grant of the Constitution, though such authority
and jurisdiction have well known limitations. Such limitations
are self-imposed based on the structure of the Constitution
the distribution of the functions of the various organs of the
B Constitution and other well established legal principles. One
of such limitations emanates from the mandate under Article
329(b) which reads as follows:-

"Article 329. Barto interference by courts in electoral
C matters.- Notwithstanding anything in this Constitution-
(b) No election to either House of Parliament or to the
House or either House of the Legislature of a State
shall be called in question except by an election
o petition presented to such authority and in such
manner as may be provided for by or under any
law made by the appropriate Legislature."

62. The sweep of the Article fell for the consideration
E before this Court on more than one occasion. Two of the most
prominent decisions of this subject are N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency & Others,
(1952) 3 SCR 218 and Mohinder Singh Gill & another v.
The Chief Election Commissioner, New Delhi & others
F (1978) 1 sec 405, Both the cases were decided by
Constitution benches of this Court. The question which arose
in those two cases was whether the jurisdiction of the High
Court's could be invoked to intercept the election process
which is already set in motion. This Court on a construction of
G Article 329(b) held in N.P. Ponnuswami (supra) that "Article
329(b) : was primarily intended to exclude or oust the
jurisdiction of all Courts in regard to electoral matters and to
lay qown the only mode in which the election could be
challenged.•.
H
ELECTION COMMISSION OF INDIA v. BAJRANG 101
BAHADUR SINGH & ORS. (J. CHELAMESWAR, J.]

63. In Mohinder Singh Gill (supra), this Court held: A

"Article 329(b) is a blanket ban on litigative challenges
to electoral steps taken by the Election Commission and
its officers for carrying forward the process of election to
its culmination in the formal declaration of the result.. B

This Court further held as follows:-

" ... The plenary bar of Article 329(b) rests on two
principles: (i) the peremptory urgency and prompt
engineering of the whole election process without c
intermediate interruptions by way of legal proceedings
challenging the steps and stages in between the
commencement and the conclusion; and (ii) the
provision of the special jurisdiction which can be
D
invoked by an aggrieved party at the end of the election
excludes the other forms, the right and remedy being
creatures of the statute and controlled by the
Constitution. The conclusion is, therefore, irresistible that
jurisdiction under Article 226 cannot consider the E
correctness, legality or otherwise of the direction .... "

64. However, in the case on hand, the primary
challenge of the petitioner is not to the electoral process but
the decision of the Governor which resulted in the unseating F
of the petitioner as a consequence of which a bye-election
ensued. In other words, the very existence of a vacancy in
the legislature is in question.

65. The interference of the High Court in exercise of
the jurisdiction under Article 226 with the issuance of G
notification for filling up of casual vacancy in the Legislative
Assembly of Uttar Pradesh (Pharenda constituency) in our
opinion arises out of an absolute necessity. The election in
question is inextricably interlinked with the legality of the H
102 SUPREME COURT REPORTS (2015) 6 S.C.R.

A decision of the Governor which resulted in the declaration of
the vacancy in the Legislative Assembly representing the
Pharenda constituency.

66. The decision of the Governor dated 29 111 January,
B 2015 declaring that the petitioner incurred a disqualification
under Section 9A of the R.P. Act is under challenge before
the High Court.

67. That being the case, there is always a possibility in
c a given case that the decision of the Governor could be held
to be unsustainable. 9 In the eventuality of such a conclusion by
9 The le~rned counsel for the COMMISSION very fairly submitted that notwithstanding
the declaration under Article 191 that the decision of the Governor shall be final, the
decision is amenable to the scrutiny of the Constitutional courts although on very limited
grounds. Such grounds are explained by a Constitution Bench of this Court in Kihoto
D Hol/ohsn v. Zachlllhu, 1992 Supp (2) SCC 651 which was relied upon in Dr.
Mahachandra Prasad Singh v. Chairman, Bihar Legislative Council & Others, (2004)
asec 747.
In Kihoto's case, this Cou1t was dealing with the validity of the Constitution
52"' Amendment Act. 1985 by which the X'" Schedule was added to the Constitution.
Para 6 of the Xth Schedule contains a declaration such as the one contained
in Article 192 saying that the "decision of the Chairman ..... shall be final." Apart from
such a declaration, Para 7 of the X111 Schedule makes an express declaration ~that no
E Court shall have any jurisdiction in respect of any matter ....... under this Schedule".
Dealing with the above two provisions, this Court held that "the concept of
statutory finality embodied in paragraph 6(1) does not detract from or abrogate the
judicial review under Articles 136, 226 and 227 of the Constitution in so far as infirmities
based on violations of constitutional mandates, malafides, non-compliance with rules
of natural justice and perversity are concerned."
A similar declaration of finality exists in Article 217(3). The scope of such
F a declaration fell for the consideration of a Constitution Bench of this Court in
Union of India v. Jyoti Prakash Mitter
(1971) 1 SCC 496 wherein this Court held:-
~32. The President acting under Article 217(3) performs a judicial function of
grave importance under the scheme of our.Constitution. He cannot act on the
advice of his Ministers. Notwithstanding the declared finality of the order of the
resident the Court has jurisdiction in appropriate cases to set aside the order, if
it appears that it was passed on collateral considerations or the Rules of natural
G justice were not observed, or that the President's judgment was coloured by the
advice or representation made by the executive or it was founded on no evidence.
But this Court will not sit in appeal over the judgment of the President, nor will
the Courts determine the weight which should be attached to the evidence."
Jn view of the legal position emerging from the above decisions, a declaration
of finality contained in Article 192 cannot be considered to be conclusive and the decision
of the Governor is amenable to the judicial review on the limited grounds as indicated in
H the above-mentioned two judgments.
ELECTION COMMISSION OF INDIA v. BAJRANG 103
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

the High Court, the Legislator who is unseated consequent A
upon decision of the Governor under Article 192 is entitled to
continue as a Member of the Legislature if the tenure to which
he is elected still survives. But in the meanwhile if a bye-
election were to be held to fill up the vacancy arising as a
consequence of the decision of the Governor and in such an B
election if a person other than unseated legislator gets elected,
there would be a very anomalous situation of two persons validly
elected to the same seat in the Legislature. Therefore, in our
opinion, the case on hand does not fall within the "blanket ban
on the litigative challenges to the electoral steps". The interim C
order granted by the High Court is perfectly justified.

68. However, we noticethatthe COMMISSION is under
a statutory obligation to hold a bye-election within a period of
six months from the date of the occurrence of the vacancy. D
Such obligation emanates from Section 150 and Section
151A. They read as follows:-

150. Casual vacancies in the State Legislative
Assemblies.-(1) When the seat of a member E
elected to the Legislative Assembly of a State
becomes vacant or is declared vacant or his
election to the Legislative Assembly is declared
void, the Election Commission shall, subject to the
F
provisions of sub-section (2), by a notification in
the Official Gazette, call upon the Assembly
constituency concerned to elect a person for the
purpose of filling the vacancy so caused before
such date as may be specified in the notification, G
and the provisions of this Act and of the rules and
orders made thereunder shall apply, as far as may
be, in relation to the.election of a member to fill such
vacancy.
H
104 SUPREME COURT REPORTS [2015] 6 S.C.R.

A (2) If the vacancy so caused be a vacancy in a seat
reserved in any such constituency for the Scheduled
Castes or for any Scheduled Tribes, the notification
issued under sub-section (1) shall specify that the
person to fill that seat shall belong to the Scheduled
B
Castes or to such Scheduled Tribes, as the case
maybe.

Section 151A. Time limit for filling vacancies
referred to in sections 147, 149, 150 and 151.-
c
Notwithstanding anything contained in section 147,
section 149, section 150 and section 151, a bye-
election for filling any vacancy referred to in any of
the said sections shall be held within a period of
D six months from thedate of the occurrence of the
vacancy:

Provided that nothing contained in this section shall
apply if-
E
(a) the remainder of the term of a member in
relation to a vacancy is less than one year;
or

F (b) the Election Commission in consultation with
the Central Government certifies that it is
difficult to hold the bye election within the
said period.

G The purpose behind the command is obvious.

"Having regard to the important functions which t'"le
legislatures have to perform in democratic
countries, it has always been recognised to be a
H
ELECTION COMMISSION OF INDIA v. BAJRANG 105
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]

matter of first importance that elections should be A
concluded as early as possible according to time
schedule and all controversial matters and all
disputes arising out of elections should be
postponed till after the elections are over, so that
B
the election proceedings may not be unduly
retarded or protracted." [See: N.P. Ponnuswami
v. Returning Officer, Namakkal Constituency &
Others, (1952) SCR 218]
c
69. The question, therefore, is as to how to reconcile
the two apparently conflicting constitutional obligations, (i) of
the High Court to adjudicate the dispute regarding the legality
of the Governor's decision under Article 192 and (ii) the
COMMISSION's obligation to hold the election within a period o
of six months from the date of occurrence of the vacancy.

70. Unfortunately, there is no period of limitation
prescribed by law within which a person aggrieved by the
decision of the Governor under Article 192 can approach E
the High Court. Until such law is made, we deem it
appropriate to hold that any person aggrieved by a decision
of the Governor under Article 192 must approach the High
·Court by initiating appropriate proceedings, (if he is so
desirous) within a period of eight weeks from the date of the F
decision of the Governor.

71. Such proceedings must be heard by a Bench of at
least two Judges and be disposed of within a period of eight
weeks from the date of initiation without fail. The Chief Justice G
of the concerned High Court will make an appropriate
arrangement in this regard. If the above-mentioned time
frame is strictly followed, the Commission would still be left
with another eight weeks of time to comply with the obligations
emanating from Section 151 A of the R.P. Act.
106 SUPREME COURT REPORTS.. [2015) 6 S.C.R.

A 72.Application(s) for impleadment allowed.

73. In view of the dismissal of the transferred case, the
special leave petition is disposed of.

B Nidhi Jain SLP disposed of & T.C. dismissed.

.,

•