Supreme Court of India
LILY THOMASversusUNION OF INDIA & ORS.
- Citation
- 2013 INSC 456
- Decided
- 10 July 2013
- Disposal
- Case Allowed
- Bench
- A K PATNAIK
Holding
Sub‑section (4) of Section 8 of the Representation of the People Act, 1951 is ultra vires the Constitution because Parliament’s power to prescribe disqualifications is confined to Articles 102(1)(e) and 191(1)(e), which do not allow deferral of the date of disqualification for sitting members.
Summary
The Supreme Court examined whether Parliament had the constitutional authority to enact sub‑section (4) of Section 8 of the Representation of the People Act, 1951, which postpones the operation of disqualification for sitting members of Parliament or State Legislatures pending an appeal. The Court held that the power to prescribe disqualifications resides solely in Articles 102(1)(e) and 191(1)(e) of the Constitution, which require a single uniform rule and do not permit deferral of the date of disqualification. Consequently, the residuary powers under Articles 246(1) and 248 cannot be invoked to justify the saving provision. The provision was declared ultra vires, but the Court limited the effect of the declaration to future cases, preserving disqualifications already incurred by members with pending appeals. The writ petitions were allowed, striking down the saving clause.
Issues considered
- Whether Parliament can, under Articles 102(1)(e) and 191(1)(e) of the Constitution, enact a provision that defers the operation of disqualification for sitting members of Parliament or State Legislatures (sub‑section (4) of Section 8, RPA, 1951).
- Whether Parliament may rely on residuary legislative powers under Articles 246(1) read with Entry 97 of List I and Article 248 to enact such a saving provision.
- What is the prospective effect of declaring sub‑section (4) ultra vires on disqualifications already incurred by sitting members with pending appeals or revisions.
Legislation cited
- Constitution of Indias. Article 101(3)(a), s. Article 102(1)(e), s. Article 190(3)(a), s. Article 191(1)(e), s. Article 246(1), s. Article 248
- Representation of the People Act, 1951s. 8(1), s. 8(2), s. 8(3), s. 8(4)
Subjects
disqualificationparliamentary membershipRepresentation of the People Actconstitutional validityultra vireslegislative competenceArticle 102Article 191Article 101Article 190residuary powerspublic interest litigation
Judgment
[2013] 10 S.C.R. 1130
A LILY THOMAS
v.
UNION OF INDIA & ORS.
(Writ Petition (Civil) No. 490 of 2005)
JULY 10, 2013
B
[A.K. PATNAIK AND SUDHANSU JYOTI
MUKHOPADHAYA, JJ.]
Representation of the People Act, 1951 - s.8(4) - Vires
c of - Challenge to - Legislative power of the Parliament to enact
s.8(4) - Held: The Parliament exceeded its powers confeffed
by the Constitution in enacting sub-section (4) of s.8 and
accordingly sub-section (4) of s.8 is ultra vires the Constitution
- Sub-section (4) of s.8 which carves out a saving in the case
0 of sitting members of Parliament or State Legislature from the
disqualifications under sub-sections (1 ), (2) and (3) of s. 8 or
which defers the date on which the disqualification will take
effect in the case of a sitting member of Parliament or a State
Legislature is beyond the powers confeffed on Parliament by
E the Constitution - Sitting members of Parliament and State
Legislature who have already been convicted for any of the
offences mentioned in sub-section (1), (2) and (3) of s.8 and
who have filed appeals or revisions which are pending and
are accordingly saved from the disqualifications by virtue of
F sub-section (4) of s.8 not to be affected by the declaration now
made in this judgment - However, if any sitting member of
Parliament or a State Legislature is convicted of any of the
offences mentioned in sub-sections (1), (2) and (3) of s.8 and
by virtue of such conviction and/or sentence suffers the
disqualifications mentioned in sub-sections (1), (2) and (3) of
G s. 8 after the pronouncement of this judgment, his membership
of Parliament or the State Legislature, as the case may be,
will not be saved by sub-section (4) of s.8 which is now
declared as ultra vires the Constitution notwithstanding that
H 1130
LILY THOMAS v. UNION OF INDIA & ORS. 1131
he files the appeal or revision against the conviction and /or A
sentence - Constitution of India, 1950 - Arts. 101 (3)(a),
102(1)(e), 190(3)(a) and 191(1)(e).
In exercise of power conferred under Article 102(1)(e)
and under Article 191(1)(e) of the Constitution, the 8
Parliament has provided in the Representation of the .
People Act, 1951, the disqualifications for membership of
Parliament and State Legislatures. Sub-sections (1 ), (2)
and (3) of Section 8 of the Act provide that a person
convicted of an offence mentioned in any of these sub- C
sections shall stand disqualified from the date of
conviction and the disqualification was to continue for
the specific period mentioned in the sub-section.
However, sub-section (4) of Section 8 of the Act
provides that !10twithstanding anything in sub-section (1 ), D
sub-section (2) or sub-section (3) in Section 8 of the Act,
a disqualification under either subsection shall not, in the
case of a person who on the date of the conviction is a
member of Parliament or the Legislature of a State, take
effect until three months have elapsed from that date or, E
if within that period an appeal or application for revision
is brought in respect of the conviction or the sentence,
until that appeal or application is disposed of by the
court. The saving or protection provided in sub-section
(4) of Section 8 of the Representation of the People Act, F
1951 for a member of Parliament or the Legislature of a
State was challenged in the present writ petitions as ultra
vires the Constitution.
Allowing the writ petitions, the Court
G
HELD: 1. When a question is raised whether
Parliament has exceeded the limits of its powers, courts
have to decide the question by looking to the terms of
the instrument by which affirmatively, the legislative
powers were created, and by which negatively, they are H
1132 SUPREME COURT REPORTS [2013] 10 S.C.R.
A restricted. [Para 14] [1153-D]
Kesavananda Bharti v. State of Kera/a AIR 1973 SC
1465 - relied on.
K. Prabhakaran v. P. Jayarajan etc. (2005) 1 SCC 754:
B 2005 (1) SCR 296 - referred to.
The Empress v. Burah and Another (1878) 5 I.A. 178 -
referred to.
C Shri Manni Lal v. Shri Parma/ Lal and Others (1970) 2
SCC 462: 1971 (1) SCR 798; B.R. Kapur v. State of T.N. and
Another (2001) 7 SCC 231: 20<11 (3) Suppl. SCR 191;
Navjot Singh Sidhu v. State of Punjab and Another (2007) 2
sec 574: 2001 (1) SCR 1143 - cited.
D Constitutional, Law of India, by H.M. Seervai, Fourth
Edition, Vol. I, para 2.4 at page 174 - referred to.
2. The legislative power of Parliament to enact any
law relating to disqualification for membership of either
E House of Parliament or Legislative Assembly or
Legislative Council of the State can be located only in
Articles 102(1 )(e) and 191 (1 )(e) of the Constitution and not
in Articles 246(1) read with Entry 97 of List I of the
Seventh Schedule and Article 248 of the Constitution. It
F cannot be said that the power to enact sub-section (4) of
Section 8 of the Act is vested in Parliament under Articles
246(1) read with Entry 97 of List I of the Seventh Schedule
and 248 of the Constitution, if not in Articles 102 (1 )(e) and
191 (1 )(e) of the Constitution. [Para 15] [1155-A-C]
G Commentary on the Constitution of India by Durga
Das Basu (8th Edition) Volume 8 at page 8988 - referred
to.
3. A reading of the provisions in Articles 102(1)(e)
H and 191 (1 )(e) of the Constitution would make it
LILY THOMAS v. UNION OF !NOIA & ORS. 1133
abundantly clear that Parliament is to make one law for A
a person to be disqualifiec! for being chosen as, and for
being, a member of either House of Parliament or
Legislative Assembly or Legislative Council of the State.
The Parliament does not have the power under Articles
102(1)(e) and 191(1)(e) of the Constitution to make B
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 c
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
0
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. [Para 16] [1155-G-H; 1156-
A-D]
E
Election Commission, India v. Saka Venkata Rao AIR
1953 SC 210: 1953 SCR 1144 - relied on .
. 4. Article 101(3)(a) provides that if a member of either
House of Parliament becomes subject to any of the F
disqualifications mentioned in clause (1 ), his seat shall
thereupon become vacant and similarly Article 190(3)(a)
provides that if a member of a House of the Legislature
of a State becomes subject to any of the disqualifications
mentioned in clause (1), his seat ~hall thereupon become . G
vacant. This is the effect of a disqualification under
Articles 102(1) and 190(1) incurred by a member of either
House of Parliament or a House of the State Legislature.
Accordingly, once a person who was a member of either
House of Parliament or House of the State Legislature
H
1134 SUPREME COURT REPORTS (2013] 10 S.C.R.
A becomes disqualified by or under any law made by
Parliament under Articles 102(1 )(e) and 191 (1 )(e) of the
Constitution, his seat· automatically falls vacant by virtue .
of Articles 101(3)(a) and 190(3)(a) of the Constitution and
Parliament cannot make a provision as in sub-section (4)
B of Section 8 of the Act to defer the date on which the
disqualification of a sitting member will have effect and
prevent his seat becoming vacant on account of the
disqualification under Article 102(1 )(e) or Article 191 (1 )(e)
of the Constitution. [Para 17] [1157-D-GJ
c 5. It cannot be sa;id that until the decision is taken by
the President or Governor on whether a member of
Parliament or State Legislature has become subject to
any of the disqualifications mentioned in clause (1) of
Article 102 and Article 191 of the Constitution, the seat of
D the member alleged to have been disqualified will not
become vacant under Articles 101(3)(a) and 190(3)(a) of
the Constitution. Articles 101(3)(a) and 190(3)(a) of the
Constitution provide that if a member of the House
becomes subject to any of the disqualifications
E mentioned in clause (1 ), "his seat shall thereupon
become vacant". Hence, the seat of a member who
becomes subject to any of the disqualifications
mentioned in clause (1) will fall vacant on the date on
which the member incurs the disqualification and cannot
F await the decision of the President or the Governor, as
the case may be, under Articles 103 and 192 respectively
of the Constitution. The filling of the seat which falls
vacant, however, may await the decision of the President
or the Governor under Articles 103 and 192 respectively
G of the Constitution and if the President or the Governor
takes a. view that the member has not become subject to
any of the disqualifications mentioned in clause (1) of
Articles 102 and 191 respectively of the Constitution, it
has to be held that the seat of the member so held not to
.· H be disqualified did not become vacant on the date on
LILY THOMAS v. UNION OF INDIA & ORS. 1135
which the member was alleged to have been subject to A
the disqualification. [Para 18] [1157-G-H; 1158-A-E]
6. The affirmative words used in Articles 102(1)(e) and
191(1)(e) confer power on Parliament to make one law
laying down the same disqualifications for a person who
8
is to be chosen as member of either House of Parliament
or as a member of the Legislative Assembly or
Legislative Council of a State and for a person who is a
sitting member of a House of Parliament or a House of
the State Legislature and the words in Articles 101(3)(a)
and 190(3)(a) of the Constitution put express limitations C
on such powers of the Parliament to defer the date on
which the disq~alifications would have effect.
Accordingly, sub-section (4) of Section 8 of the Act which
carves out a saving in the case of sitting members of
Parliament or State Legislature from the disqualifications D
under sub-sections (1), (2) and (3) of Section 8 of the Act
or which defers the date on which the disqualification will
take effect in the case of a sitting member of Parliament
or a State Legislature is beyond the powers conferred on
Parliament by the Constitution. [Para 19] [1158-F-H; 1159- E
A-B]
7. Looking at the affirmative terms of Articles
102(1)(e) and 191{1)(e) of the Constitution, it is clear that
Parliament has been vested with the powers to make law
F
laying down the same disqualifications for person to be
chosen as a member of Parliament or a State Legislature
and for a sitting member of a House of Parliament or a
House of a State Legislature. Also, the provisions of
Article 101 (3)(a) and 190(3)(a) of the Constitution
expressly prohibit Parliament to defer the date from G
which the disqualification will come into effect in case of
a sitting member of Parliament or a State Legislature.
Parliament, therefore, has exceeded its powers conferred
by the Constitution in enacting sub-section (4) of Section
8 of the Act and accordingly sub-section (4) of Section 8 H
1136 SUPREME COURT REPORTS [2013] 10 S.C.R.
A of the Act is ultra vires the Constitution. [Para 20] [1159-
B-D]
8. There is no merit in the submission that if a sitting .
member of Parliament or the State Legislature suffers
from a frivolous conviction by the trial court for an
8
offence given under sub-section (1 ), (2) or (3) of Section
8 of the Act, he will be remediless and he will suffer
immense hardship as he would stand disqualified on
account of such conviction in the absence of sub-section
C (4) of Section 8 of the Act. [Para 21] [1159-E-F]
Rama Narang v. Ramesh Narang & Ors. (1995) 2 SCC
513: 1995 (1) SCR 456 and Ravikant S. Patil v.
Sarvabhouma S. Bagali (2007) 1 SCC 673: 2006 (8) Suppl.
SCR 1156 - referred to.
D
9.1. Under sub-sections (1 ), (2) and (3) of Section 8
of the Act, the disqualification takes effect from the date
of conviction for any of the offences mentioned in the
sub-sections and remains in force for the periods
E mentioned in the sub-sections. Thus, there may be
several sitting members of Parliament and State
Legislatures who have already incurred disqualification
by virtue of a conviction covered under sub-section (1 ),
or sub-section (2) or sub-section (3) of Section 8 of the
Act. However, the Supreme Court has the power not only
F to declare the law but also to restrict the operation of the
law as declared to future and save the transactions,
whether statutory or otherwise, that were effected on the
basis of the earlier l~w. [Para 23] (1161-E-G, H; 1162-A]
G 9.2. Sitting members of Parliament and State
Legislature who have already been convicted for any of
the offences mentioned in sub-section (1), (2) and (3) of
Section 8 of the Act and who have filed appeals or
revisions which are. pending and are accordingly saved
H from the disqualifications by virtue of sub-section (4) of
LILY THOMAS v. UNION OF INDIA & ORS. 1137
Section 8 of the Act should not be affected by the A
declaration now made in this judgment. This is because
the knowledge that sitting members of Parliament or State
Legislatures· will no longer be protected by sub-section
(4) of Section 8 of the Act will be acquired by all
concerned only on the date this judgment is pronounced 8
by this Court. [Para 23] [1162-A-D]
9.3. However, if any sitting member of Parliament or
a State Legislature is convicted of any of the offences
mentioned in sub-sections (1), (2) and (3) of Section 8 of
the Act and by virtue of such conviction and/or sentence C
suffers the disqualifications mentioned in sub-sections
(1 ), (2) and (3) of Section 8 of the Act after the
pronouncement of this judgment, his membership of
Parliament or the State Legislature, as the case may be,
will not be saved by sub-section (4) of Section 8 of the D
Act which by this judgment have been declared as ultra
.vires the Constitution notwithstanding that he files the
appeal or revision against the conviction and /or
sentence. [Para 23] [1162-E-G]
Go/ak Nath and Others vs. State of Punjab and Another E
AIR 1967 SC 1643: 1967 SCR 762 - followed.
Har/a v. State of Rajasthan AIR 1951 SC 467: 1952
SCR 110 - relied on.
Case Law Reference: F
1953 SCR 1144 relied on Para 4
1971 (1) SCR 798 cited Para 7
2001 (3) Suppl. SCR 191 cited Para 7
G
2005 (1) SCR 296 referred to Para 7
2007 (1) SCR 1143 cited Para 7
(1878) 5 I.A. 178 referred to Para 14
AIR 1973 SC 1465 relied on Para 14 H
1138 SUPREME COURT REPORTS (2013) 10 S.C.R.
A 1995 (1) SCR 456 referred to Para 21
2006 (8) Suppl. SCR 1156 referred to Para 21
1967 SCR 762 followed Para 23
1952 SCR 110 relied on Para 23
B
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
490 of 2005.
Under Article 32 of the Constitution of India.
WITH
c W.P. (C) No. 231 of 2005.
Paras Kuhad, Siddharth Luthra, ASG, F.S. Nariman,
Harish Chander, Mukul Gupta, Subhash Sharma, Lily Thomas
(Petitioner-In-Person), Meenakshi Arora, Amit Pawan, Rajiv
o Kumar Sinha, S. Chandra Shekhar, Satya Narain Shukla
(Petitioner-In-Person), Saurabh Suman Sinha, Shipla Singh,
Kamini Jaiswal, Abhimanue Shrestha, Amit Kumar, Abhinav
Mukerji, Tufail A. Khan, Mrinmayee Shau, Yatin Bhushan, B.V.
Balaram Das, Angad Kochhar, V.K. Biju, Satya Siddiqui,
E Sarfraz Ahmed Siddiqui, S.K. Mishra, S.S. Rawat, V.N.
Subramaniam, S. Wasim A. Qadri, P. Parmeswaran, D.S.
Mahra, S. Ahmed Siddiqui, Priyanka, V.N. Raghupathi, Vasav
Anantharaman, Sibo Sankar Mishra, Vijaya Lakshmi, Pragya
Singh, Saurabh Kumar, Abhisth Kumar, Vikrant Yadav, Raman
Yadav, lrshad Ahmad, Mohd. lrshad Hanif, Anil Kumar Jha for
F the appearing parties.
The Judgment of the Court was delivered by
A.K. PATNAIK, J. 1. These two writ petitions have been
filed as Public Interest Litigations for mainly declaring sub'-
G section (4) of Section 8 of the Representation of the People
Act, 1951 as ultra vires the Constitution.
The background facts
2. The background facts relevant for appreciating the
H challenge to sub-section (4) of Section 8 of the Act are that the
LILY THOMAS v. UNION OF INDIA & ORS. 1139
[A.K. PATNAIK, J.]
Constituent Assembly while drafting the Constitution intended A
to lay down some disqualifications for persons being chosen
as, and for being, a member of either House of Parliament as
well as a member of the Legislative Assembly or Legislative
Council of the State. Accordingly, in the Constitution which was
finally adopted by the Constituent Assembly, Article 102(1) laid B
down the disqualifications for membership of either House of
Parliament and Article 191(1) laid down the disqualifications
for membership of the Legislative Assembly or Legislative
Council of the State. These two Articles are extracted
herein below: c
102. Disqualifications for membership. -(1) A person
shall be disqualified for being chosen as, and for being, a
member of either House of Parliament-
(a) if he holds any office of profit under the Government of 0
India or the Government of any State, other than an office
declared by Parliament 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; E
(d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign
State;
F
(e) if he is so disqualified by or under any law made by
Parliament.
191. Disqualifications for membership. - (1) A person
shall be disqualified for being chosen as, and for being, a
member of the Legislative Assembly or Legislative Council G
of a State-
(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 H
1140 SUPREME COURT REPORTS [2013] 10 S.C.R.
A of 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:
B (d) if he is not a citizen of India, or has voluntarily acquired
the citizenship of a foreign State, or is under any
acknowledgment of allegiance or adherence to a foreign
State;
(e) if he is so disqualified by or under any law made by
c Parliament.
[Explanation.-For the purposes of this clause], a person
shall not be deemed to hold an office of profit under the
Government of India or the Government of any State
specified in the First Schedule by reason only that he is a
D
Minister either for the Union or for such State.
A reading of the aforesaid constitutional provisions will show
that besides the disqualifications laid down in clauses (a), (b),
(c) and (d), Parliament could lay down by law other
E disqualifications for membership of either House of Parliament
or of Legislative Assembly or Legislative Council of the State.
In exercise of this power conferred under Article 102(1)(e) and
under Article 191 (t)(e) of the Constitution, Parliament provided
in Chapter-Ill of the Representation of the People Act, 1951 (for
F short 'the Act'), the disqualifications for membership of
Parliament and State Legislatures. Sections 7 and 8 in
Chapter-Ill of the Act, with which we are concerned in these writ
petitions, are extracted hereinbelow:
7. Definitions.-ln this Chapter,-
,G (a) "appropriate Government" means in relation to any
disqualification for being chosen as or for being a member
of either House of Parliament, the Central Government,
and in relation to any disqualification for being chosen as
or for being a member of the Legislative Assembly or
H
LILY THOMAS v. UNION OF INDIA & ORS. 1141
[A.K. PATNAIK, J.]
Legislative Council of a State, the State Government; A
(b) "disqualified" means disqualified for being chosen as,
and for being, a member of either House of Parliament or
of the Legislative Assembly or Legislative Council of a
State. ·
8
8. Disqualification on conviction for certain
offences.- (1) A person convicted of an offence
punishable under-
(a) section 153A (offence of promoting enmity between
different groups on ground of religion, race, place of birth, c
residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or section 171 E (offence of
bribery) or section 171 F (offence of undue influence or
personation at an election) or sub-section (1) or sub-
section (2) of section 376 or section 376A or section 3768 D
or section 376C or section 3760 (offences relating to rape)
or section 498A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or
sub-section (3) of section 505 (offence of making
statement creating or promoting enmity, hatred or ill-will E
between classes or offence relating to such statement in
any place of worship or in any assembly engaged in the
performance of religious worship or religious ceremonies)
of the Indian Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) F
which provides for punishment for the preaching and
practice of "untouchability'', and for the enforcement of any
disability arising therefrom; or
(c) section 11 (offence of importing or exporting prohibited
goods) of the Customs Act, 1962 (52 of 1962); or G
(d) sections 10 to 12 (offence of being a member of an
association declared unlawful, offence relating to dealing
with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified
H
1142 SUPREME COURT REPORTS [2013] 10 S.C.R.
A place) of the Unlawful Activities (Prevention) Act, 1967 (37
of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of
1973); or
B (f) the Narcotic Drugs and Psychotropic Substances Act,
1985 (61 of 1985); or
(g) section 3 (offence of committing terrorist acts) or
section 4 (offence of committing disruptive activities) of the
Terrorist and Disruptive Activities (Prevention) Act, 1987
c (28 of 1987); or
(h) section 7 (offence of contravention of the provisions of
sections 3 to 6) of the Religious Institutions (Prevention of
Misuse) Act, 1988 (41 of 1988); or
(i) section 125 (offence of promoting enmity between
D
classes in connection with the election) or section 135
(offence of removal of ballot papers from polling stations)
or section 135A (offence of booth capturing) of clause (a)
of sub-section (2) of section 136 (offence of fraudulently
defacing or fraudulently destroying any nomination paper)
E
of this Act; [or]
[O) section 6 (offence of conversion of a place of worship)
of the Places of Worship (Special Provisions) Act, 1991],
[or]
F [(k) section 2 (offence of insulting the Indian National Flag
or the Constitution of India) or section 3 (offence of
preventing singing of National Anthem) of the Prevention
of Insults to National Honour Act, 1971 (69 of 1971), [or]
[(I} the Commission of Sati (Prevention) Act, 1987 (3 of
G
1988); or]
[(m} the Prevention of Corruption Act, 1988 (49 of 1988);
or]
[(n} the Prevention of Terrorism Act, 2002 (15 of 2002),]
H
LILY THOMAS v. UNION OF INDIA & ORS. 1143
[A.K. PATNAIK, 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 shall B
continue to be disqualified for a further period of six years
since his release.]
(2) A person convicted for the contravention of-
(a) any iaw providing for the prevention of hoarding or
profiteering; or
c
(b) any law relating to the adulteration of food or drugs; or
(c) 11Jny provisions of the Dowry Prohibition Act, 1961 (28
of 1961); and sentenced to imprisonment for not less than
six months, shall be disqualified from the date of such D
conviction and shall continue to be disqualified for a further
period of six years since his release.]
(3) A person convicted of any offence and sentenced to
imprisonment for not less than two years [other than any
E
offence referred to in sub-section (1) or sub-section (2)]
sh.all be disqualified from the date of such conviction and
shall continue to be disqualified for a further period of six
years since his release.]
[(4)] Notwithstanding anything [in sub-section (1 ), sub- F
section (2) or sub-section (3)] a disqualification under
either subsection shall not, in the case of a person who
on the date of the conviction is a member of Parliament
or the Legislature of a State, take effect until three months
have elapsed from that date or, if within that period an G
appeal or application for revision is brought in respect of
the conviction or the sentence, until that appeal or
application is disposed of by the court.
Explanation. -In this section, -
H
1144 SUPREME COURT REPORTS [2013] 10 S.C.R.
A (a) "law providing for the prevention of hoarding or
profiteering" means any law, or any order, rule or
notification having the force of law, providing for-
(1) the regulation of production or manufacture of any
essential c~mmodity;
B
(II) the control of price at which any essential commodity
may be bought or sold;
(Ill) the regulation of acquisition, possession, storage,
transport, distribution, disposal, use or consumption
C of.any essential commodity;
(IV) the prohibition of the withholding from sale of any
essential commodity ordinarily kept for sale;
(b) "drug" has the meaning assigned to it in the Durgs and
o Cosmetics Act, 1940 (23 of 1940);
(c) "essential commodity" has the meaning assigned to it
in the Essential Commodity Act, 1955 (10 of 1955);
(d) "food" has the meaning assigned to it in the Prevention
of Food Adulteration Act, 1954 (37 of 1954).
E
3. Clause (b) of Section 7 of the Act quoted above defines
the word "disqualified" to mean disqualified for being chosen
as, and for being, a member of either House of Parliament or
of the Legislative Assembly or of Legislative Council of State.
F Sub-sections (1), (2) and (3) of Section 8 of the Act provide
that a person convicted of an offence mentioned in any of these
sub-sections shall stand disqualified from the date of conviction
and the disqualification was to continue for the specific period
mentioned in the sub-section. However, sub-section (4) of
G Section 8 of the Act provides that notwithstanding anything in
sub-section (1), sub-section (2) or sub-section (3) in Section 8
of the Act, a disqualification under either subsection shall not,
in the case of a person who on the date of the conviction is a
member of Parliament or the Legislature of a State, take effect
H until three months have elapsed from that date or, if within that
LILY THOMAS v. UNION OF INDIA & ORS. 1145
[A.K. PATNAIK, J.]
period an appeal or application for revision is brought in A
respect of the conviction or the sentence, until that appeal or
application is disposed of by the court. It is this saving or
protection provided in sub-section (4) of Section 8 of the Act
for a member of Parliament or the Legislature of a State which
is challenged in these writ petitions as ultra vires the 8
Constitution.
Contentions on behalf of the Petitioners
4. Mr. Fali S. Nariman, learned Senior Counsel appearing
for the petitioner in Writ Petition No. 490 of 2005 and Mr. S.N.
Shukla, the General Secretary of the Petitioner in Writ Petition C
No. 231 of 2005, submitted that the opening words of clause
(1) of Articles 102 and 191 of the Constitution make it clear
that the same disqualifications are provided for a person being
chosen as a member of either House of Parliament, or the
State Assembly or Legislative Council of the State and for a D
person being a member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State and
therefore the disqualifications for a person to be elected as a
member of either House of the Parliament or of the Legislative
Assembly or Legislative Council of the State and for a person E
to continue as a member of either House of Parliament or of
the Legislative Assembly or Legislative Council of the State
cannot be different. In support of this submission, Mr. Nariman
cited a Constitution Bench judgment of this Court in Election
Commission, India v. Saka Venkata Rao (AIR 1953 SC 210) F
in which it has been held that Article 191 lays down the same
set of disqualifications for election as well as for continuing as
a member. Mr. Nariman and Mr. Shukla submitted that sub-
section (4) of Section 8 of the Act, insofar as it provides that
the disqualification under sub-sections (1 ), (2) and (3) of G
Section 8 for being elected as a member of either House of
Parliament or the Legislative Assembly or Legislative Council
of State shall not take effect in the case of a person who is
already a member of Parliament or Legislature of a State on
the date of the conviction if he files an appeal or a revision in H
1146 SUPREME COURT REPORTS [2013] 10 S.C.R.
A respect of the conviction or the sentence within three months
till the appeal or revision is disposed of by the Court, is in
contravention of the provisions of clause (1) of Articles 102 and
191 of the Constitution.
5. Mr. Shukla referred to the debates of the Constituent
8 Assembly on Article 83 of the Draft Constitution, which
corresponds to Article 102 of the Constitution. In these debates,
Mr. Shibban Lal Saksena, a member of the Constituent
Assembly moved an Amendment No. 1590 on 19.05.1949 to
provide that when a person who, by virtue of conviction
c becomes disqualified and is on the date of disqualification a
member of Parliament, his seat shall, notwithstanding anything
in this Article, not become vacant by reason of the
disqualification until three months have elapsed from the date
thereof or, if within those three months an appeal or petition for
0 revision is brought in respect of the conviction or the sentence,
until that appeal or petition is disposed of, but during any period
during which his membership is preserved by this provision, he
shall not sit or vote. Mr. Shukla submitted that this amendment
to Article 83 of the Draft Constitution was not adopted in the
E Constituent Assembly. Instead, in sub-clause (e) of clause (1)
of Articles 102 and 191 of the Constitution, it was provided that
Parliament may make a law providing disqualifications besides
those mentioned in sub-clauses (a), (b), (c) and (d) for a person
being chosen as, and for being, a member of either House of
Parliament and of the Legislative Assembly or Legislative
F Council of a State. Mr. Shukla submitted that despite the fact
that a provision similar to sub-section (4) of Section 8 of the
Act was not incorporated in the Constitution by the Constituent
Assembly, Parliament has enacted sub-section (4) of Section
8 of the Act.
G
6. According to Mr. Nariman and Mr. Shukla, in the
absence of a provision in Articles 102 and 191 of the
Constiiution conferring power on Parliament to make a
provision protecting sitting members of either House of
H Parliament or the Legislative Assembly or the Legislative
LILY THOMAS v. UNION OF INDIA & ORS. 1147
[A.K. PATNAIK, J.]
Council of a State, from the disqualifications it lays down for a A
person being chosen as a member of Parliament or a State
Legislature, Parliament lacks legislative powers to enact sub-
section (4) of Section 8 of the Act and sub-section (4) of
Section 8 of the Act is therefore ultra vires the Constitution.
B
7. Mr. Nariman next submitted that the legal basis of sub-
section (4) of Section 8 of the Act is based on an earlier judicial
view in the judgment of a Division Bench of this Court in Shri
Manni Lal v. Shri Parma/ Lal and Others [(1970) 2 SCC 462]
that when a conviction is set aside by an appellate order of
acquittal, the acquittal takes effect retrospectively and the c
conviction and the sentence are deemed to be set aside from
the date they are recorded. He submitted that in B.R. Kapur v.
State of T.N. and Another [(2001) 7 SCC 231] a Constitution
Bench of this Court reversed the aforesaid judicial view and
held that conviction, and the sentence it carries, operate against D
the accused in all their rigour until set aside in appeal, and a
disqualification that attaches to the conviction and sentence
applies as well. He submitted that this later view has been
reiterated by a Constitution Bench of this Court in K.
Prabhakaran v. P. Jayarajan etc. [(2005) 1 SCC 754]. Mr. E
Nariman argued that thus as soon as a person is convicted of
any of the offences mentioned in sub-sections (1 ), (2) and (3)
of Section 8 of the Act, he becomes disqualified from
continuing as a member of Parliament or of a State Legislature
notwithstanding the fact that he has filed an appeal or a revision F
against the conviction and there is no legal basis for providing
in sub-section (4) of Section 8 of the Act that his disqualification
will not take effect if he files an appeal or revision within three
months against the order of conviction. He submitted that in
case a sitting member of Parliament or State Legislature feels G
aggrieved by the conviction and wants to continue as a
member notwithstanding the conviction, his remedy is to move
the Appellate Court for stay of the order of conviction. He cited
the decision in Navjot Singh Sidhu v. State of Punjab and
Another ([2007) 2 SCC 574] in which this Court has clarified
H
1148 SUPREME COURT REPORTS [2013] 10 S.C.R.
A that under sub-section (1) of Section 389 of the Code of
Criminal Procedure, 1973 power has been conferred on the
Appellate Court not only to suspend the execution of the
sentence and to grant bail, but also to suspend the operation
of the order appealed against, which means the order of
B conviction. He submitted that in appropriate cases, the
Appellate Court may stay the order of conviction of a sitting
member of Parliament or State Legislature and allow him to
continue as a member notwithstanding the conviction by the trial
court, but a blanket provision like sub-section (4) of Section 8
c of the Act cannot be made to keep the disqualification pursuant
to conviction in abeyance till the appeal or revision is decided
by the Appellate or Revisional Court.
8. Mr. Nariman and Mr. Shukla submitted that in K.
Prabhakaran v. P. Jayarajan etc. (supra) the validity of sub-
D section (4) of Section 8 of the Act was not under challenge and
only a reference was made to the Constitution Bench of this
Court on certain questions which arose in civil appeals against
judgments delivered by the High Court in election cases under
the Act. They submitted that the Constitution Bench of this Court
E framed three questions with regard to disqualification of a
candidate under Section 8 of the Act and while answering
question no.3, the Constitution Bench indicated reasons which
seem to have persuaded Parliament to classify sitting
members of the House into a separate category and to provide
F in sub-section (4) of Section 8 of the Act that if such sitting
members file appeal or revision against the conviction within
three months, then the disqualification on account of their
conviction will not take effect until the appeal or revision is
decided by the appropriate court. They submitted that the
G opinion expressed by the Constitution Bench of this Court in
K. Prabhakaran v. P. Jayarajan etc. (supra) regarding the
purpose for which Parliament classified sitting members of
Parliament and State Legislatures into a separate category and
protected them from the disqualifications by the saving provision
H in sub-section (4) of Section 8 of the Act are obiter dicta and
LILY THOMAS v. UNION OF INDIA & ORS. 1149
[A.K. PATNAIK, J.]
are not binding ratio on the issue of the validity of sub-section A
(4) of Section 8 of the Act.
9. Mr. Nariman and Mr. Shukla submitted that sub-section
(4) of Section 8 of the Act, in so far as it does not provide a
rationale for making an exception in the case of members of B
Parliament or a Legislature of a State is arbitrary and
discriminatory and is violative of Article 14 of the Constitution.
They submitted that persons to be elected as members of
Parliament or a State Legislature stand on the same footing
as sitting members of Parliament and State Legislatures so far
as disqualifications are concerned and sitting members of C
Parliament and State Legislatures cannot enjoy the special
privilege of continuing as members even though they are
convicted of the offences mentioned in sub-sections (1 ), (2) and
(3) of Section 8 of the Act.
D
Contentions of behalf of the respondents
10. Mr. Siddharth Luthra, learned ASG appearing for the
Union of India in Writ Petition (C) 231 of 2005, submitted that
the validity of sub-section (4) of Section 8 of the Act has been
upheld by the Constitution Bench of this Court in K. E
Prabhakaran v. P. Jayarajan etc. (supra). He submitted that
while answering question no.3, the Constitution Bench has held
in Prabhakaran's case that the purpose of carving out a saving
. in sub-section (4) of Section 8 of the Act is not to confer an
advantage on sitting members of Parlia~ent or of a State F
Legislature but to protect the House. He submitted that in para
58 of the judgment the Constitution Bench has explained that
if a member of the House was debarred from sitting in the
House and participating in the proceedings, no sooner the
conviction was pronounced followed by sentence of G
imprisonment, entailing forfeiture of his membership, then two
consequences would follow: first, the strength of membership
of the House shall stand reduced, so also the strength of the
political party to which such convicted member may belong and
the Government in power may be surviving on a razor-edge thin H
1150 SUPREME COURT REPORTS [2013] 10 S.C.R.
A majority where each member counts significantly and
disqualification of even one member may have a deleterious
effect on the functioning of the Government; second, a bye-
election shall have to be held which exercise may prove to be
futile, also resulting in complications in the event of the
B convicted member being acquitted by a superior criminal court.
Mr. Luthra submitted that for the aforesaid two reasons,
Parliament has classified the sitting members of Parliament or
a State Legislature in a separate category and provided in sub-
section (4) of Section 8 of the Act that if on the date of incurring
c disqualification, a person is a member of Parliament or of a
State Legislature, such disqualification shall not take effect for
a period of three months from the date of such disqualification
to enable the sitting member to file appeal or revision
challenging his conviction, and sentence and if such an appeal
or revision is filed, then applicability of the disqualification shall
0
stand deferred until such appeal or revision is disposed of by
the appropriate Court.
11. Mr. Luthra next submitted that the reality of the Indian
judicial system is that acquittals in the levels of the Appellate
E Court such as the High Court are very high and it is for this
reason that Parliament has provided in sub-section (4) of
Section 8 of the Act that disqualification pursuant to conviction
or sentence in the case of sitting members should stand
deferred till the appeal or revision is decided by the Appellate
F or the Revisional .Court. He submitted that the power to
legislate on disqualification of members of Parliament and the
State Legislature conferred on Parliament carries with it the
incidental power to say when the disqualification will take effect.
He submitted that the source of legislative power for enacting
sub-section (4) of Section 8 of the Act is, therefore, very much
G there in Articles 101(1)(e) and 191(1)(e) of the Constitution and
if not in these articles of the Constitution, in Article 246(1) read
with Entry 97 of List I of the Seventh Schedule of the Constitution
and Article 248 of the Constitution, which confer powers on
Parliament to legislate on any matter not enumerated in List II
H
LILY THOMAS v. UNION OF INDIA & ORS. 1151
[A.K. PATNAIK, J.]
and List Ill of the Seventh Schedule of the Constitution. A
12. Mr. Paras Kuhad, learned ASG, appearing for the
Union of India in Writ Petition (C) No.490 of 2005 also relied
on the judgment of the Constitution Bench of this Court in K.
Prabhakaran v. P. Jayarajan etc. (supra) on the validity of sub-
B
section (4) of Section 8 of the Act and the reasoning given in
the answer to question no.3 in the aforesaid judgment of this
Court. He further submitted that sub-section (4) of Section 8 of
the Act does not lay down disqualifications for members of
Parliament and the State Legislatures different from the
disqualifications laid down for persons to be chosen as C
members of Parliament and the State Legislatures in sub-
sections (1), (2) and (3) of Section 8 of the Act. He submitted
that sub-section (4) of Section 8 of the Act merely provides that
the very same disqualifications laid down in sub-sections (1 ),
(2) and (3) of Section 8 of the Act shall in the case of sitting D
members of Parliament and State Legislatures take effect only
after the appeal or revision is disposed of by the Appellate or
Revisional Court as the case may be if an appeal or revision
is filed against the conviction. He submitted that Parliament has
. power under Article 102(1)(eJ of the Constitution and Article E
191 (1 )(e) of the Constitution to'prescribe when exactly the
disqualification will become effective in the case of sitting
members of Parliament or the State Legislature with a view to
protect the House. He also referred to the provisions of Articles
101 (3)(a) and 190 (3)(a) of the Constitution to argue that a F
member of Parliament or a State Legislature will vacate a seat
only when he becomes subject to any disqualification
mentioned in clause (1) of Article 102 or clause (1) of Article
191, as the case may be, and this will happen only after a
decision is taken by the President or the Governor that the G
member has become disqualified in accordance with the
mechanism provided in Article 103 or Article 192 of the
Constitution.
13. Mr. Kuhad further submitted that Mr. Nariman is not
right in his submission that the remedy of a sitting member who H
1152 SUPREME COURT REPORTS [2013) 10 S.C.R.
A is convicted or sentenced and gets disqualified under sub-
sections (1 ), (2) or (3) of Section 8 of the Act is to move the
Appellate Court under Section 389 of the Code of Criminal
Procedure for stay of his conviction. He submitted that the
Appellate Court does not have any power under Section 389,
B Cr.P.C. to stay the disqualification which would take effect from
the date of conviction and therefore a safeguard had to be
provided in sub-section (4) of Section 8 of the Act that the
disqualification, despite the conviction or sentence, will not have
effect until the appeal or revision is decided by the Appellate
c or the Revisional Court. He submitted that there is, therefore,
a rationale for enacting sub-section (4) of Section 8 of the Act.
Findings of the Court
14. We will first decide the issue raised before us in these
0 writ petitions that Parliament lacked the legislative power to
enact sub-section (4) of Section 8 of the Act as this issue was
not at all considered by the Constitution Bench of this Court in
the aforesaid case of K. Prabhakaran (supra}. In The Empress
v. Burah and Another [(1878) 5 I.A. 178] the Privy Council
speaking through Selborne J. laid down the following
E fundamental principles for interpretation of a written constitution
laying down the powers of the Indian Legislature:
"The Indian Legislature has powers expressly limited by the
Act of the Imperial Parliament which created it; and it can,
F of course, do nothing beyond the limits which
circumscribes these powers. But, when acting within these
limits, it is not in any sense an agent or delegate of the
Imperial Parliament, but ha!i; and was intended to have,
plenary powers of legislation, as large, and of the same
nature, as those of Parliament itself. The established
G
Courts of Justice, when a question arises whether the
prescribed limits have been exceeded, must of necessity
determine that question; and the only way in which they can
properly do so, is by looking to the terms of the instrument
by which, affirmatively, the legislative powers were created,
H
LILY THOMAS v. UNION OF INDIA & ORS. 1153
[A.K. PATNAIK, J.]
and by which, negatively, they are restricted. If what has A
been done is legislation within the general scope of the
affirmative words which give the power, and if it violates
no express condition or restriction by which that power is
limited (in wh~h category would, of course, be included
any Act of the Imperial Parliament at variance with it), it is B
not for any Court of Justice to inquire further, or to enlarge
constructively those conditions and restrictions."
The correctness of the aforesaid principles with regard to
interpretation of a written constitution has been re-affirmed by
the majority of Judges in Kesavananda Bharti v. State of Kera/a C
(AIR 1973 SC 1465) (See the Constitutional Law of India, H.M.
Seervai, Fourth Edition, Vol.I, para 2.4 at page 174). Hence,
when a question is raised whether Parliament has exceeded
the limits of its powers, courts have to decide the question by
looking to the terms of the instrument by which affirmatively, the D
legislative powers were created, and by which negatively, they
are restricted.
1_5. We must first consider the argument of Mr. Luthra,
learned Additional Solicitor General, that the legislative power
E
to enact sub-section (4) of Section 8 of the Act is located in
Article 246(1) read with Entry 97 of List I of the Seventh
Schedule and Article 248 of the Constitution, if not in Articles
102(1)(e) and 191(1)(e) of the Constitution. Articles 246 and
248 of the Constitution are placed in Chapter I of Part XI of the
Constitution of India. Part XI is titled "Relations between the F
Union and the States" and Chapter I of Part XI is titled
"Legislative Relations". In Chapter I of Part XI, under the
heading "Distribution of Legislative Powers" Articles 245 to 255
have been placed. A reading of Articles 245 to 255 would show
that these relate to distribution of legislative powers between G
the Union and the Legislatures of the States. Article 246(1)
provides that Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in the Seventh
Schedule of the Constitution and under Entry 97 of List I of the
Seventh Schedule of the Constitution, Parliament has exclusive H
1154 SUPREME COURT REPORTS [2013) 10 S.C.R.
A power to make law with respect to any other matter not
enumerated in List II or List Ill. Article 248 similarly provides that
Parliament has exclusive power to make any law with respect
to any matter not enumerated in the Concurrent List (List Ill) or
State List (List II) of the Seventh Schedule of the Constitution.
8 Therefore, Article 246(1) read with Entry 97 and Article 248 only
provide that in residuary matters (other than matters
enumerated in List II and 'List Ill) Parliament will have power to
make law. To quote from Commentary on the Constitution of
India by Durga Das Basu (8th Edition) Volume 8 at page 8988:
c "In short, the principle underlying Article 248, read with Entry
97 of List I, is that a written Constitution, which divides
legislative power as between two legislatures in a
federation, cannot intend that neither of such Legislatures
shall go without power to legislate with respect of any
D subject simply because that subject has not been
specifically mentioned nor can be reasonably
comprehended by judicial interpretation to be included in
any of the Entries in the Legislative Lists. To meet such a
situation, a residuary power is provided, and in the Indian
E Constitution, this residuary power is vested in the Union
Legislature. Once, therefore, it is found that a particular
subject-matter has not been assigned to the competence
of the State Legislature, "it leads to the irresistible
inference that (the Union) Parliament would have legislative
F competence to deal with the subject-matter in question. n
Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other
hand, have conferred specific powers on Parliament to make
law providing disqualifications for membership of either House
of Parliament or Legislative Assembly or Legislative Council
G of the State other than those specified in sub-clauses (a), (b),
(c) and (d) of clause (1) of Articles 102 and 191 of the
Constitution. We may note that no power is vested in the State
Legislature to make law laying down disqualifications of
membership of the Legislative Assembly or Legislative Council
H of the State and power is vested in Parliament to make law
LILY THOMAS v. UNION OF INDIA & ORS. 1155
[A.K. PATNAIK, J.]
laying down disqualifications also in respect of members of the A
Legislative Assembly or Legislative Council of the State. For
these reasons, we are of the considered opinion that the
legislative power of Parliament to enact any law relating to
disqualification for membership of either House of Parliament
or Legislative Assembly or Legislative Council of the State can B
be located only in Articles 102(1)(e) and 191(1)(e) of the
Constitution and not in Articles 246(1) read with Entry 97 of List
I of the Seventh Schedule and Article 248 of the Constitution.
We do not, therefore, accept the contention of Mr. Luthra that
the power to enact sub-section (4) of Section 8 of the Act is C
vested in Parliament under Articles 246(1) read with Entry 97
of List I of the Seventh Schedule and 248 of the Constitution, if
not in Articles 102 (1)(e) and 191 (1)(e) of the Constitution.
16. Articles 102(1)(e) and 191(1)(e) of the Constitution,
which contain the only source of legislative power to lay down D
disqualifications for membership of either House of Parliament
and Legislative Assembly or Legislative Council of a State,
. provide as follows:
"102(1 )(e). A person shall be disqualified for being chosen
E
as, and for being, a member of either House of Parliament-
(e) if he is so disqualified by or under any law made by
Parliament."
"191(1)(e). "A person shall be disqualified for being chosen
as, and for being, a member of the Legislative Assembly F
or Legislative Council of a State-(e) if he is so
disqualified by or under any law made by Parliament.
A reading of the aforesaid two provisions in Articles
102(1 )(e) and 191 (1 )(e) of the Constitution would make it
abundantly clear that Parliament is to make one law for a G
person to be disqualified for being chosen as, and for being,
a member of either House of Parliament or Legislative
Assembly or Legislative Council of the State. In the language
of the Constitution Bench of this Court in Election Commission,
India v. Saka Venkata Rao (supra), Article 191 (1) [which is H
1156 SUPREME COURT REPORTS [2013] 10 S.C.R.
A 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
B as a member and for a person to be disqualified for continuing
as a member of Parliament or the State Legislature. To put it
di.fferently, 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
c 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
D State Legislature has to be the same.
17. Mr. Luthra and Mr. Kuhad, however, contended that the
disqualifications laid down in sub-sections (1),(2) and (3) of
Section 8 of the Act are the same for persons who are to
continue as members of Parliament or a State Legislature and
E sub-section (4) of Section 8 of the Act does not lay down a
different set of disqualifications for sitting members but merely .
states that the same disqualifications will have effect only after
the appeal or revision, as the case may be, against the
conviction is decided by the Appellate or the Revisional Court
F if such appeal or revision is filed within 3 months from the date
of conviction. We cannot accept this contention also because
of the provisions of Articles 101(3)(a) and 190(3)(a) of the
Constitution which are quoted hereinbelow:
"101(3)(a). Vacation of seats.-
G
(1) ...... .
(2) ..... ..
(3) If a member of either House of Parliament-
( a) becomes subject to any of the disqualifications
H
LILY THOMAS v. UNION OF INDIA & ORS. 1157
[A.K. PATNAIK, J.]
mentioned in clause (1) or clause (2) of article 102. A
his seat shall thereupon become vacant"
"190(3)(a). Vacation of seats.-
(1) ...... .
B
(2) ...... .
(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.
his seat shall thereupon become vacant"
c
Thus, Article 101 (3)(a) provides that if a member of either
House of Parliament becomes subject to any of the
disqualifications mentioned in clause (1 ), his seat shall
thereupon become vacant and similarly Article 190(3)(a) D
provides that if a member of a House of the Legislature of a
State becomes subject to any of the disqualifications mentioned
in clause (1 ), his seat shall thereupon become vacant. This is
the effect of a disqualification under Articles 102(1) and 190(1) .
incurred by a member of either House of Parliament or a House
E
of the State Legislature. Accordingly, once a person who was
a member of either House of Parliament or House of the State
Legislature becomes disqualified by or under any law made by
Parliament under Articles 102(1)(e) and 191(1)(e) of the
Constitution, his seat automatically falls vacant by virtue of
F
Articles 101 (3)(a) and 190(3)(a) of the Constitution and
Parliament cannot make a provision as in sub-section (4) of
Section 8 of the Act to defer the date on which the
disqualification of a sitting member will have effect and prevent
his seat becoming vacant on account of the disqualification
under Article 102(1 )(e) or Article 191 (1 )(e) of the Constitution. G
18. We cannot also accept the submission of Mr. Kuhad
that until the decision is taken by the President or Governor on
whether a member of Parliament or State Legislature has
become subject to any of the disqualifications mentioned in
H
1158 SUPREME COURT REPORTS [2013] 10 S.C.R.
A clause (1) of Article 102 and Article 191 of the Constitution, the
seat of the member alleged to have been disqualified will not
become vacant under Articles 101(3)(a) and 190(3)(a) of the
Constitution. Articles 101 (3)(a) and 190(3)(a) of the Constitution
provide that if a member of the House becomes subject to any
B of the disqualifications mentioned in clause (1), "his seat shall
thereupon become vacant". Hence, the seat of a member who
becomes subject to any of the disqualifications mentioned in
clause (1) will fall vacant on the date on which the member
incurs the disqualification and cannot await the decision of the
c President or the Governor, as the case may be, under Articles
103 and 192 respectively of the Constitution. The filling of the
seat which falls vacant, however, may await the decision of the
President or the Governor under Articles 103 and 192
respectively of the Constitution and if the President or the
0 Governor takes a view that the member has not become
subject to any of the disqualifications mentioned in clause (1)
of Articles 102 and 191 respectively of the Constitution, it has
to be held that the seat of the member so held not to be
disqualified did not become vacant on the date on which the
E member was alleged to have been subject to the
disqualification.
19. The result of our aforesaid discussion is that the
affirmative words used in Articles 102(1 )(e) and 191 (1 )(e)
confer power on Parliament to make one law laying down the
F same disqualifications for a person who is to be chosen as
member of either House of Parliament or as a member of the
Legislative Assembly or Legislative Council of a State and for
a person who is a sitting member of a House of Parliament or
a House of the State Legislature and the words in Articles
G 101 (3)(a) and 190(3)(a) of the Constitution put express
limitations on such powers of the Parliament to defer the date
on which the disqualifications would have effect. Accordingly,
sub-section (4) of Section 8 of the Act which carves out a saving
in the case of sitting members of Parliament or State
H Legislature from the disqualifications under sub-sections (1),
LILY THOMAS v. UNION OF INDIA & ORS. 1159
[A.K. PATNAIK, J.]
(2) and (3) of Section 8 of the Act or which defers the date on A
which the disqualification will take effect in the case of a sitting
member of Parliament or a State Legislature is beyond the
powers conferred on Parliament by the Constitution.
20. Looking at the affirmative terms of Articles 102(1)(e)
B
and 191(1)(e) of the Constitution, we hold that Parliament has
been vested with the powers to make law laying down the same
disqualifications for person to be chosen as a member of
Parliament or a State Legislature and for a sitting member of
a House of Parliament or a House of a State Legislature. We
also hold that the provisions of Article 101(3)(a) and 190(3)(a) C
of the Constitution expressly prohibit Parliament to defer the
date from which the disqualification will come into effect in case
of a sitting member of Parliament or a State Legislature.
Parliament, therefore, has exceeded its powers conferred by
the Constitution in enacting sub-section (4) of Section 8 of the D
Act and accordingly sub-section (4) of Section 8 of the Act is
ultra vires the Constitution.
21. We do not also find merit in the submission of Mr.
Luthra and Mr. Kuhad that if a sitting member of Parliament or
the State Legislature suffers from a frivolous conviction by the
E
trial court for an offence given under sub-section (1 ), (2) or (3)
of Section 8 of the Act, he will be remediless and he will suffer
immense hardship as he would stand disqualified on account
of such conviction In the absence of sub-section (4) of Section
8 of the Act. A three-Judge Bench of this Court in Rama F
Narang v. Ramesh Narang & Ors. [(1995) 2 SCC 513] has
held that when an appeal is preferred under Section 374 of the
Code of Criminal Procedure [for short 'the Code'] the appeal
is against both the conviction and sentence and, therefore, the
Appellate Court in exercise of its power under Section 389(1) G
of the Code can also stay the order of conviction and the High
Court in exercise of its inherent jurisdiction under Section 482
of the Code can also stay the conviction if the power was not
to be found in Section 389(1) of the Code. In Ravikant S. Patil
v. Sarvabhouma S. Baga/i [(2007} 1 SCC 673], a three-Judge H
1160 SUPREME COURT REPORTS [2013] 10 S.C.R.
A Bench of this Court, however, observed:
"It deserves to be clarified that an order granting stay of
conviction is not the rule but is an exception to be resorted
to in rare cases depending upon the facts of a case.
Where the execution of the sentence is stayed, the
B
conviction continu~s to operate. But where the conviction
itself is stayed, the effect is that the conviction will not be
operative from the date of stay. An order of stay, of course,
does not render the conviction non-existent, but only non-
operative. Be that as it may. Insofar as the present case
c is concerned, an application was filed specifically seeking
stay of the order of conviction specifying the
consequences if c<:>nviction was not stayed, that is, the
appellant would incur disqualification to contest the
election. The High Court after considering the special
D reason, granted the order staying the conviction. As the
conviction itself is stayed in contrast to a stay of execution
of the sentence, it is not possible to accept the contention
of the respondent that the disqualification arising out of
conviction continues to operate even after stay of
E conviction.
In the aforesaid case, a contention was raised by the
respondents that the appellant was disqualified from contesting
the election to the Legislative Assembly under sub-se,ction (3)
of Section 8 of the Act as he had been convicted for an offence
F punishable under Sections 366 and 376 of the Indian Penal
Code and it was held by the three-Judge Bench that as the High
Court for special reasons had passed an order staying the
conviction, the disqualification arising out of the conviction
ceased to operate after the stay of conviction. Therefore, the
G disqualification under sub-section (1 ), (2) or (3) of Section 8 of
the Act will not operate from the date of order of stay of
conviction passed by the Appellate Court under Section 389
of the Code or the High Court under Section 482 of the Code.
22. As we have held that Parliament had no power to enact
H sub-section (4) of Section 8 of the Act and accordingly sub-
LILY THOMAS v. UNION OF INDIA & ORS. 1161
[A.K. PATNAIK, J.]
section (4) of Section 8 of the Act is ultra vires the Constitution, A
it is not necessary for us to go into the other issue raised in
these writ petitions that sub-section (4) of Section 8 of the Act
is violative of Article 14 of the Constitution. It would have been
necessary for us to go into this question only if sub-section (4)
of Section 8 of the Act was held to be within the powers of the B
Parliament. In other words, as we can declare sub-section (4)
of Section 8 of the Act as ultra vires the Constitution without
going into the question as to whether sub-section (4) of Section
8 of the Act is violative of Article 14 of the Constitution, we do
not think it is necessary to decide the question as to whether C
sub-section (4) of Section 8 of the Act is violative of Article 14
of the Constitution.
23. The only question that remains to be decided is
whether our declaration in this judgment that sub-section (4) of
Section 8 of the Act is ultra vires the Constitution should affect D
disqualifications already incurred under sub-sections (1 ), (2)
and (3) of Section 8 of the Act by sitting members of Parliament
and State Legislatures who have filed appeals or revisions
against their conviction within a period of three months and their
appeals and revisions are still pending before the concerned E
court. Under sub-sections (1 ), (2) and (3) of Section 8 of the
Act, the disqualification takes effect from the date of conviction
for any of the offences mentioned in the sub-sections and
remains in force for the periods mentioned in the sub-sections.
Thus, there may be several sitting members of Parliament and F
State Legislatures who have already incurred disqualification
by virtue of a conviction covered under sub-section (1 ), or sub-
section (2) or sub-section (3) of Section 8 of the Act. In Golak
Nath and Others vs. State of Punjab and Another (AIR 1967
SC 1643), Subba Rao, C.J. speaking on behalf of himself, G
Shah, Sikri, Shelat and Vaidialingam, JJ. has held that Articles
32, 141, 142 of the Constitution are couched in such a wide
and elastic terms as to enable this Court to formulate legal
doctrines to meet the ends of justice and has further held that
this Court has the power not only to declare the law but also to
H
1162 SUPREME COURT REPORTS [2013) 10 S.C.R.
A restrict the operation of the law as declared to future and save
the transactions, whether statutory or otherwise, that were
effected on the basis of the earlier law. Sitting members of
Parliament and State Legislature who have already been
convicted for any of the offences mentioned in sub-section (1 ),
B (2) and (3) of Section 8 of the Act and who have filed appeals
or revisions which are pending and are accordingly saved from
the disqualifications by virtue of sub-section (4) of Section 8 of
the Act should not, in our considered opinion, be affected by
the declaration now made by us in this judgment. This is
c because the knowledge that sitting members of Parliament or
State Legislatures will no longer be protected by sub-section
(4) of Section 8 of the Act will be acquired by all concerned
only on the date this judgment is pronounced by this Court. As
has been observed by this Court in Har/a v. State of Rajasthan
D (AIR 1951 SC 467):
" ........ it would be against the principles of natural justice
to permit the subjects of a State to be punished or
penalized by laws of which they had no knowledge and of
which they could not even with exercise of due diligence
E have acquired any knowledge."
However, if any sitting member of Parliament or a State
Legislature is convicted of any of the offences mentioned in
sub-sections (1 ), (2) and (3) of Section 8 of the Act and by
virtue of such conviction and/or sentence suffers the
F disqualifications mentioned in sub-sections (1), (2) and (3) of
Section 8 of the Act after the pronouncement of this judgment,
his membership of Parliament or the State Legislature, as the
case may be, will not be saved by sub-section (4) of Section 8
of the Act which we have by this judgment declared as ultra
G vires the Constitution notwithstanding that he files the appeal
or revision against the conviction and /or sentence.
24. With the aforesaid declaration, the writ petitions are
allowed. No costs.
H B.B.B. Writ Petitions allowed.
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