Full Judgment Text
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on : 17 December, 2013
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% Date of Decision : 6 February, 2014
+ W.P.(C) 7459/2013 & & CM APPL. 15956/2013
MANOHAR LAL SHARMA ... Petitioner
Through : Petitioner in person with Ms. Suman
and Mr. Sadashir Gupta, Advocates.
versus
UNION OF INDIA ... Respondent
Through : Mr. Rajeeve Mehra, ASG with
Mr. Sachin Datta, CGSC,
Mr. Vineet Tayal and
Mr. Aditya Malhotra, Advocates.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE MANMOHAN
J U D G M E N T
N.V. RAMANA, CHIEF JUSTICE:
1. The present writ petition has been filed challenging the constitutional
validity of the Representation of the People (Amendment and
Validation) Act, 2013 (for short, ‗impugned Amendment and
Validation Act, 2013) as being ultra vires the Constitution of India
(for short, ‗the Constitution‘), vitiated by mala fides and against the
general public interest.
W.P. (C) No. 7459/2013 Page 1 of 23
Amendment and Validation Act, 2013
2. At the outset, it would be appropriate to reproduce the impugned
Amendment and Validation Act, 2013, which reads as under:-
" Be it enacted by Parliament in the Sixty-fourth Year of
the Republic of India as follows—
1. Short title and commencement .-- (1) This Act
may be called the Representation of the People
(Amendment and Validation) Act, 2013.
(2) It shall be deemed to have come into force on the
10th day of July, 2013.
2. Amendment of Section 7 .-- In the Representation
of the People Act, 1951 (43 of 1951) (hereinafter referred
to as the principal Act), in Section 7, in clause (b), after
the words " or Legislative Council of a State", the words
"under the provisions of this Chapter, and on no other
ground" shall be inserted.
3. Amendment of Section 62 .-- In Section 62 of the
principal Act after the proviso to sub-section (5), the
following proviso shall be inserted, namely--
"Provided further that by reason of the prohibition
to vote under this sub-section, a person whose name
has been entered in the electoral roll shall not cease
to be an elector."
4. Validation. -- Notwithstanding anything contained
in any judgment, decree or order of any court, tribunal or
other authority, the provisions of the Representation of
the People Act, 1951 (43 of 1951), as amended by this
Act, shall have and shall be deemed always to have effect
for all purposes as if the provisions of this Act had been
in force at all material times."
W.P. (C) No. 7459/2013 Page 2 of 23
3. The constitutional validity of the Act has been challenged on the
following grounds:
i.) The impugned Amendment and Validation Act, 2013 is a fraud
upon the Constitution and vitiated by mala fides as it had been
enacted by political leaders to protect their vested interests by
hatching a conspiracy. It was submitted that by the impugned
Amendment and Validation Act, 2013, the right to contest
elections has been provided to those, who are in lawful custody,
th
by overlooking the judgment dated 10 July, 2013 of the
Supreme Court in Civil Appeal Nos. 3040-3041 of 2004 titled
Chief Election Commissioner, etc. v. Jan Chaukidar (Peoples
Watch) & Ors. For this purpose, reliance was also placed upon
Sections 4(d) and 5(c) of Representation of the People Act,
1951 (for short, ‗RP Act of 1951‘). The relevant portion of Jan
Chaukidar (Peoples Watch) & Ors.’s case (supra) is
reproduced as under:
―6. Aggrieved, by the findings of the High Court,
the appellants have filed these appeals. We have
heard learned counsel for the parties and we do not
find any infirmity in the findings of the High Court in
the impugned common order that a person who has
no right to vote by virtue of the provisions of sub-
section (5) of Section 62 of the 1951 Act is not an
elector and is therefore not qualified to contest the
election to the House of the People or the Legislative
Assembly of a State.
7. These civil appeals are accordingly dismissed.
No costs.‖
W.P. (C) No. 7459/2013 Page 3 of 23
ii.) It was submitted that the Parliament by the impugned
Amendment and Validation Act, 2013 had virtually set aside
the judgment of the Supreme Court in Jan Chaukidar (Peoples
Watch) & Ors.’s case (supra) as the appellate court would have
done in an appeal.
iii.) It was further submitted that the impugned Amendment and
Validation Act, 2013 would give fillip to criminalization of
politics and would violate the fundamental right of the public at
large to elect the people with good antecedents as their
representatives.
iv.) It was also submitted that the constitutional validity of Section
62(5) of the Representation of the People Act, which debarred a
person in lawful custody from voting in an election was upheld
by the Supreme court of India in the case of Anukul Chandra
Pradhan, Advocate, Supreme Court v. Union of India & Ors.,
(1997) 6 SCC 1 . The relevant portion of the judgment, relied
upon by the petitioner, is as follows:
―8. There are other reasons for justifying this
classification. It is well known that for the conduct of
free, fair and orderly elections, there is need to deploy
considerable police force. Permitting every person in
prison also to vote would require the deployment of a
much larger police force and much greater security
arrangements in the conduct of elections. Apart from
the resource crunch, the other constraints relating to
availability of more police force and infrastructure
facilities are additional factors to justify the
restrictions imposed by sub-section 5 of Section 62.
A person who is in prison as a result of his own
conduct and is, therefore, deprived of his liberty
W.P. (C) No. 7459/2013 Page 4 of 23
during the period of his imprisonment cannot claim
equal freedom of movement, speech and expression
with the others, who are not in prison. The
classification of the persons in and out of prison
separately is reasonable. Restriction on voting of a
person in prison results automatically from his
confinement as a logical consequence of
imprisonment. A person not subjected to such a
restriction is free to vote or not to vote depending on
whether he wants to go to vote or not. Even he may
choose not to go and cast his vote. In view of the
restriction on movement of a prisoner, he cannot
claim that he should be provided the facility to go and
vote. Moreover, if the object is to keep the persons
with criminal background away from the elections a
provision imposing a restriction on a prisoner to vote
cannot be called unreasonable.‖
v.) It was, lastly, submitted that the impugned Amendment and
Validation Act, 2013 is beyond the legislative competence of
the Parliament. It was contended that as per the constitutional
provisions, the Parliament is only empowered to prescribe
disqualification and not for prescribing a qualification. For this
purpose, reliance was placed upon the observations of the
Supreme Court in the case of Lily Thomas v. Union of India &
Ors., (2013) 7 SCC 653 , which are as under:
―28. 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 person to be disqualified for
being chosen as, and for being, a member of either
House of Parliament or Legislative Assembly or
Legislative Council in the State. In the language of
the Constitution Bench of this Court in Election
Commission v. Saka Venkata Rao, Article 191(1)
W.P. (C) No. 7459/2013 Page 5 of 23
which is identically worded as Article 102(1) lays
down ―the same set of disqualifications for election
as well as for continuing as a member‖. Parliament
thus does not have the power under Articles 102(1)(e)
and 191(1)(e) of the Constitution to make different
laws for a person to be disqualified for being chosen
as a member and for a person to be disqualified for
continuing as a member of Parliament or the State
Legislature. To put it differently, if because of a
disqualification, a person cannot be chosen as a
Member of Parliament or State Legislature, for the
same disqualification, he cannot continue as a
Member of Parliament or the State Legislature. This
is so because the language of Articles 102(1)(e) and
191(1)(e) of the Constitution is such that the
disqualification for both a person to be chosen as a
Member of a House of Parliament or the State
Legislature or for a person to continue as a Member
of Parliament or the State Legislature has to be the
same.
... ... ... ... ... ... ...
30. Thus, Article 101(3)(a) provides that if a
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) 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 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
W.P. (C) No. 7459/2013 Page 6 of 23
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.
... ... ... ... ... ... ...
33. Looking at the affirmative terms of Articles
102(1)(e) and 191(1)(e) of the Constitution, we hold
that Parliament has been vested with the powers to
make law laying down the same disqualifications for
person to be chosen as a Member of Parliament or a
State Legislature and for a sitting member of a House
of Parliament or a House of a State Legislature. We
also hold that the provisions of Article 101(3)(a) and
190(3)(a) of the Constitution expressly prohibit
Parliament to defer the date from which the
disqualification will come into effect in case of a
sitting Member of a Parliament or a State Legislature.
Parliament, therefore, has exceeded its powers
conferred by the Constitution in enacting sub-Section
(4) of Section 8 of the Act and accordingly sub-
Section (4) of Section 8 of the Act is ultra vires the
Constitution‖.
(emphasis supplied)
4. On the other hand, it was submitted by learned ASG appearing for the
respondent/UOI that this writ petition was filed without properly
understanding the purport underlying the impugned Amendment and
Validation Act, 2013 by drawing attention to the definition of the term
‗ Elector ‘, as provided in Section 2(1)(e) of the RP Act of 1951, to
mean, ― A person whose name is entered in the electoral roll of that
constituency for the time being in force and was not subject to any of
W.P. (C) No. 7459/2013 Page 7 of 23
the disqualifications mentioned in Section 16 of the Representation of
the People Act, 1950 ‖.
5. It was submitted that as per Section 16(1) of the Representation of the
People Act 1950 (for short, ‗RP Act of 1950), a person shall be
ineligible for registration in an electoral roll as an elector if he –
(a) is not a citizen of India; or
(b) is of unsound mind and stands declared so by a
competent court; or
(c) is for the time being disqualified from voting under
the provisions of any law relating to corrupt practices
and other offences in connection with the elections.
6. It was pointed out that Chapter – III of Part – II of the RP Act of 1951
deals with ― Disqualifications for Membership of Parliament and State
Legislatures ‖. Disqualification is attracted for being chosen as and
for being a member of either House of Parliament or the Legislative
Assembly or Legislative Council of a State, upon conviction of
certain offences.
7. It was also contended that in the case of Lily Thomas v. Union of
India & Ors.’s case (supra) , the Supreme Court declared Section 8(4)
of the RP Act of 1951 ‗ unconstitutional ‘ as it was held to be beyond
the legislative competence of the Parliament. It was further submitted
that even filing an appeal against the order of conviction won‘t relieve
the convict from disqualification.
8. Learned ASG also drew our attention to Section 62 of the RP Act of
1951 which deals with ‗ Right to Vote ‘ and sub-section (5) thereof
provides that a person who is confined in prison whether under a
W.P. (C) No. 7459/2013 Page 8 of 23
sentence of imprisonment or transportation or otherwise or is in the
lawful custody of police shall not have a right to vote.
9. The submission of the learned ASG is that Section 62 of the RP Act
of 1951, as interpreted by the Patna High Court and the Supreme
Court in Jan Chaukidar (Peoples Watch) & Ors.’s case (supra), had
serious consequences and wide ramifications leaving room for serious
abuse. It was, thus, urged that keeping in view the exigency of the
situation, the Parliament passed the impugned Amendment and
Validation Act, 2013, and by virtue of it, a proviso was inserted after
the proviso to sub-section (5) to Section 62, to the effect that " by
reason of the prohibition to vote under this sub-section, a person
whose name has been entered in the electoral roll shall not cease to
be an elector ." To support his submission, an illustration was given
that any candidate who is under arrest at the time of scrutiny of
nomination would be ineligible to vote and would, consequently, be
disqualified to contest as he would cease to be an elector. Mere arrest
in a trivial, false, frivolous or vexatious case would become a ground
for disqualification, prior to the impugned Amendment and Validation
Act, 2013.
10. It was also pointed out that the Supreme Court upon a review petition
filed by the Union of India, being Review Petition (C) No. 1784-
1785/2013 in Jan Chaukidar (Peoples Watch) & Ors.’s case (supra)
had dismissed the same on the ground that impugned Amendment and
Validation Act, 2013 had been passed by the Parliament by observing
as follows:
W.P. (C) No. 7459/2013 Page 9 of 23
―4. As a consequence of the Amendment and Validation
Act, 2013 a person does not cease to be an elector only by
reason of his being in police custody or in imprisonment. It
is therefore not necessary for us to consider these review
petitions which are accordingly dismissed and the prayer for
intervention is rejected.‖
(emphasis supplied)
11. After perusing the rival contentions put forth by and on behalf of the
respective parties, we are of the view that, broadly, the following
issues arise for consideration in the present case:
i) Whether mala fides can be attributed to the Parliament?
ii) Whether the Validation and Amendment Act, 2013 is
legally permissible? In other words, can the Legislature
make the impugned amendment by enacting a Validating
Act, as contended by the petitioner?
iii) Whether the Legislature can determine the terms on
which the right to vote is enjoyed by the people of India?
iv) Whether the impugned Amendment and Validation Act,
2013 is constitutionally valid?
i) Whether mala fides can be attributed to the Parliament?
12. In so far as the allegation of mala fides is concerned, it is well settled
proposition of law that if the Legislature is competent to pass a
particular law, the motives, which impelled it to act, are really
irrelevant. On the other hand, if the Legislature lacks competency, the
question of motive does not arise. If the Parliament has the requisite
competence to enact the impugned Act, the enquiry into the motive,
which persuaded Parliament into passing the impugned Amendment
W.P. (C) No. 7459/2013 Page 10 of 23
and Validation Act, 2013, would be of no use at all. In the present
case, the Parliament, in our opinion, is fully competent to enact the
impugned Amendment and Validation Act, 2013 by virtue of the
power conferred under Article 327 read with Entry 72 of the
Constitution. The said provisions of the Constitution are, for the sake
of convenience, reproduced here-in-below:
― Article 327. Subject to the provisions of this Constitution,
Parliament may from time to time by law make provision
with respect to all the matters, relating to, or in connection
with, elections to either House of Parliament or to the
House or either House of the Legislature of a State
including the preparation of electoral rolls, the delimitation
of constituencies and all other matters necessary for
securing the due constitution of such House or Houses.‖
― Union List / List – I :
... ... ... ... ... ... ... ... ...
72. Elections to Parliament, to the Legislatures of States and
to the Offices of President and Vice-President; the Election
Commission.‖
13. We may also notice here certain Acts passed under this Entry, which
are as follows:
a) The Representation of the People Act, 1950;
b) The Representation of the People Act, 1951;
c) The Delimitation Act, 1972;
d) The Presidential and Vice-Presidential Elections Act, 1952;
and
e) Some portions of other Acts, namely, Government of the
Union Territories Act, 1963, Government of National
Capital Territory of Delhi Act, 1991.
W.P. (C) No. 7459/2013 Page 11 of 23
14. It is, thus, evident from the above that the impugned Amendment and
Validation Act, 2013 was passed by the Parliament by virtue of the
powers conferred under the provisions of the Constitution.
15. It needs no reiteration that mala fides cannot be attributed to the
Parliament / Legislature, as has been held by the Apex Court in a
catena of decisions. It has been held by the Apex court in K. Nagaraj
and Ors. v. State of Andhra Pradesh and Anr., (1985) 1 SCC 523
that, “The Ordinance-making power, being a legislative power, the
argument of mala fides is misconceived. The legislature, as a body,
cannot be accused of having passed a law for an extraneous purpose.
Its reasons for passing a law are those that are stated in the Objects
and Reasons and if no reasons are so stated, as appear from the
provisions enacted by it. Even assuming that the executive, in a given
case, has an ulterior motive in moving a legislation, that motive
cannot render the passing of the law mala fide. This kind of
'transferred malice' is unknown in the field of legislation”.
16. It has been held by the Supreme Court in Dharam Dutt and Ors. v.
Union of India and Ors., (2004) 1 SCC 712 as under:
―16 . Though the petition alleges the impugned Act (with
the history of preceding ordinances) to be the outcome of
political malice, no particulars thereof have been given by
the writ petitioner. However, that aspect need not be
deliberated upon any further in view of two Constitution
Bench decisions of this Court. It has been held in K.C.
Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375
: 1954 SCR 1 and in Board of Trustees, Ayurvedic and
Unani Tibia College v. State of Delhi (now Delhi Admn.),
AIR 1962 SC 458 : 1962 Supp (1) SCR 156 that the
doctrine of colourable legislation does not involve any
W.P. (C) No. 7459/2013 Page 12 of 23
question of bona fides or mala fides on the part of the
legislature. The whole doctrine resolves itself into the
question of the competency of a particular legislature to
enact a particular law. If the legislature is competent to pass
a particular law, the motives which impelled it to act are
really irrelevant. On the other hand, if the legislature lacks
competency, the question of motive does not arise at all. We
will, therefore, concentrate on the legislative competence of
Parliament to enact the impugned legislation. If Parliament
has the requisite competence to enact the impugned Act, the
enquiry into the motive which persuaded Parliament into
passing the Act would be of no use at all.
(emphasis supplied)
17. In K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, (1954) SCR
1 , and in Board of Trustees, Ayurvedic and Unani Tibia College,
Delhi v. State of Delhi (Now Delhi Administration) & Anr., 1962
Supp.(1) SCC 156 , it has been held that “The doctrine of Colourable
Legislation does not involve any question of bona fides or mala fides
on the part of the legislature. The whole doctrine resolves itself into
the question of the competency of a particular legislature to enact a
particular law. If the legislature is competent to pass a particular
law, the motives which impelled it to act are really irrelevant. On the
other hand, if the legislature lacks competency, the question of motive
does not arise at all. We will, therefore, concentrate on the legislative
competence of Parliament to enact the impugned legislation. If the
Parliament has the requisite competence to enact the impugned Act,
the enquiry into the motive which persuaded the Parliament into
passing the Act would be of no use at all”.
18. Hence, there is no merit in the submission raised by the petitioner
W.P. (C) No. 7459/2013 Page 13 of 23
that the impugned Amendment and Validation Act, 2013 is a fraud
upon the Constitution.
ii) Whether the Validation and Amendment Act is legally
permissible? Can the Legislature make the impugned
amendment by enacting a Validating Act?
19. A competent Legislature can always validate a law, which has been
declared by Courts to be invalid, provided the infirmities and vitiating
factors noticed in the declaratory judgment are removed or cured and
such a validating law can also be made retrospectively. If in the light
of such validating and curative exercise made by the Legislature, the
earlier judgment becomes irrelevant and unenforceable, that cannot be
called an impermissible legislative overruling of the judicial decision.
It is necessary that the Legislature should be able to cure defects in
statutes. (See K. Sankaran Nair v. Devaki Amma Malathy Amma,
(1996) 11 SCC 428 ).
20. It has been held that the Legislature is competent to pass a new law or
amend the existing law, to remove the unconstitutionality or illegality
and then provide that anything done under the offending law shall be
deemed to have been done under the new law and subject to its
provisions. [See Commentary on the Constitution of India, 8th
Edition 2007 by Durga Das Basu ]
21. In Rai Ramakrishna v. State of Bihar, AIR 1963 SC 1667, it was
held that if a law passed by the legislature is struck down by the
Courts as being i nvalid for one infirmity or the other, it would be
competent for the appropriate legislature to cure the said infirmity and
pass a validating law so as to make the provisions of the said earlier
W.P. (C) No. 7459/2013 Page 14 of 23
law effective from the date when it was passed.
22. It is settled principle of law that the Legislature can change the basis
on which a decision is given by the Court and, thus, change the law in
general, which will affect a class of persons and events at large. The
Legislature can render judicial decisions ineffective by enacting a
valid law on the topic within its legislative field, fundamentally
altering or changing its character retrospectively. The changed or
altered conditions should be such that the previous decision would not
have been rendered by the Court; if those conditions had existed at the
time of declaring the law as invalid.
23. In ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3
SCC 48 , the Supreme Court held that a validating Act removes actual
or possible voidness, disability or other defect by confirming the
validity of anything which is or may be invalid.
24. Through the impugned Validation and Amendment Act, 2013, it is
apparent, the Parliament has sought to widen the definition of
― Elector ‖, which is more in the nature of curing the defects pointed
out by the Court(s) and to obviate any difficulties that have arisen
during the course of implementation of the provisions of the RP Act
of 1951, post the judgment of the Supreme Court.
iii) Right to vote is not a constitutional right; it is only a statutory
right.
25. It is trite that ‗ right to vote ‘ is not a fundamental right or
constitutional right, but is only a statutory right. The Legislature can
determine the terms on which the right to vote is enjoyed by the
W.P. (C) No. 7459/2013 Page 15 of 23
people of India. Section 62(5) of the RP Act of 1951 explicitly states,
― No person shall vote at any election, if he is confined in a prison …
or is in the lawful custody of the police . The constitutional validity of
said Section was upheld by the Supreme Court in Ankul Chandra
Pradhan, Advocate, Supreme Court v. Union of India and Ors.,
(1997) 6 SCC 1 , by holding as under:
―9. It may also be mentioned that the nature of right to
vote has been held to be a statutory right and not a common
law right because of which it depends on the nature of right
conferred by the statute. In N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency (1952 SCR 218) (SCC at p.
236), the Constitution Bench held –
―The right to vote or stand as a candidate for
election is not a civil right but is a creature of statute or
special law and must be subject to the limitations
imposed by it.‖
10. In Jamuna Prasad Mukhariya v. Lachi Ram (SCC at
p. 610), the Constitution Bench reiterated its earlier
decisions by holding that –
―The right to stand as a candidate and contest an
election is not a common law right. It is a special right
created by statute and can only be exercised on the
conditions laid down by the statute. The Fundamental
Rights Chapter has no bearing on a right like this
created by statute.
11. In Jyoti Basu v. Debi Ghosal (SCC at p. 696), the
Hon‘ble Apex Court held that –
―7. The nature of the right to elect, the right to be
elected and the right to dispute an election and the
scheme of the constitutional and statutory provisions in
W.P. (C) No. 7459/2013 Page 16 of 23
relation to these rights have been explained by the
Court in N.P. Ponnuswami v. Returning Officer,
Namakkal Constituency , 1952 SCR 218 and Jagan
Nath v. Jaswant Singh , 1954 SCR 892 = AIR 1954 SC
210. We proceed to state what we have gleaned from
what has been said, so much as necessary for this case.
8. The right to elect, fundamental though it is to
democracy, is, anomalously enough, neither a
fundamental right nor a common law right. It is pure
and simple, a statutory right. So is the right to be
elected. So is the right to dispute an election. Outside
of statute, there is no right to elect, no right to be
elected and no right to dispute an election. Statutory
creations they are, and therefore, subject to statutory
limitation.‖
26. The right to vote is subject to the limitations imposed by the statute,
which can be exercised only in the manner provided by the statute and
that challenge to any provision in the statute prescribing the nature of
right to elect cannot be made with reference to a fundamental right in
the Constitution. The very basis of challenge to the validity of sub-
Section (5) of Section 62 of the RP Act of 1951 was, therefore, held
to be not available.
27. Through the impugned Amendment and Validation Act, 2013, the
Parliament seeks to amend the definition of the term ― Disqualified ‖ as
defined under Section 7(b) of the RP Act of 1951 and incorporated
proviso to sub-Section (5) of Section 62, which deals with ― right to
vote ‖. The impugned Amendment and Validation Act, 2013 does not
deal with disqualification on account of conviction under certain
offences as prescribed under Chapter – III of Part – II of the RP Act
of 1951. The Supreme Court dealt with the case of disqualification
W.P. (C) No. 7459/2013 Page 17 of 23
incurred by an individual due to conviction after trial of the offences,
for which, he is charge-sheeted. Para 32 of the judgment in Lily
Thomos’s case (supra) reads as follows:
―32. The result of our aforesaid discussion is that the
affirmative words used in Articles 102(1)(e) and 191(1)(e)
confer power on Parliament to make one law laying down
the same disqualifications for a person who is to be chosen
as Member of either House of Parliament or as a Member of
the Legislative Assembly or Legislative Council of a State
and for a person who is a sitting Member of a House of
Parliament or a House of the State Legislature and the
words in Articles 101(3)(a) and 190(3)(a) of the
Constitution put express limitations on such powers of
Parliament to defer the date on which the disqualifications
would have effect. Accordingly, sub-Section (4) of Section
8 of the Act which carves out a saving in the case of sitting
Members of Parliament or State Legislature from the
disqualifications under sub-sections (1), (2) and (3) of
Section 8 of the Act or which defers the date on which the
disqualification will take effect in the case of a sitting
Member of Parliament or a State Legislature is beyond the
powers conferred on Parliament by the Constitution.‖
28. The said judgment only dealt with Articles 101(3)(a), 102(1)(e),
190(3)(a) and 191(1)(e) of the Constitution, apart from Section 8(4)
of the RP Act of 1951; whereas, through the impugned Amendment
and Validation Act, 2013, the Parliament has only dealt with Sections
7(b) and 62(5) of the RP Act of 1951. As such, the judgment in Lily
Thomas’s case (supra) would have no application in this case.
iv) Constitutional validity of a statute.
29. There can be no quibble with the proposition that an enacted law can
be declared unconstitutional on the following grounds:
W.P. (C) No. 7459/2013 Page 18 of 23
(i) Lack of legislative competence;
(ii) Violation of Part – III of the Constitution; and
(iii) Arbitrariness of the law.
30. In order to examine the constitutionality or otherwise of a statute
and/or any of its provisions, one of the most relevant consideration is
the object and reasons as well as the legislative history of the statute.
It would help the Court in arriving at a more objective and just
approach. It would be imperative for the Court to examine the
reasons for enactment of a particular statute/provision so as to find
out its ultimate impact vis-à-vis other constitutional provisions.
31. The legislative competence of the Parliament does not come from
Articles 102 and 191, but from Articles 246 and 327 read with Entry
72 of List – I, Schedule – VII of the Constitution, according to which,
the Parliament is competent to enact laws with respect to the issues
mentioned therein. Thus, one of the criteria for determining the
constitutional validity of a law, i.e., the competence of the law-
making authority, would depend on the ambit of the legislative power
and limitation imposed thereon as also on the mode of exercise of
such power. In fact, the RP Act of 1951 was also an enactment,
which was enacted by the Parliament by exercising such a power
flown from Articles 246 and 327 read with Entry 72 of the List – I of
the Constitution.
32. The above leaves no room for doubt that the Constitution recognized
the need for changes in law relating to elections from time to time and
entrusted the Parliament with the responsibility as also the requisite
power to bring in legislative measures as and when required in such
W.P. (C) No. 7459/2013 Page 19 of 23
respect, which would include the power to amend the existing law.
33. In Hari Prasad Mul Shankar Trivedi v. V.B. Raju (1974) 3 SCC 415 ,
the Apex Court held as under:
―24. ... Article 327 gives full powers to Parliament subject
to provisions of the Constitution to make laws with respect
to all matters relating to or in connection with election
including preparation of electoral rolls.‖
34. Further, the Parliament has the power, rather an exclusive one, under
Article 246 of the Constitution to make laws with respect to any of
the matters enumerated in the Union List of the Schedule – VII. In
exercise of such a power, the Parliament has enacted the impugned
Amendment and Validation Act, 2013 and the same cannot be held to
be beyond its legislative competence.
35. We draw strength from the observations of the Supreme Court in the
case of Charanlal Sahu v. Union of India (1990) 1 SCC 614 to the
effect that in judging the constitutional validity of the Act, the
subsequent events, namely, how the Act has worked out have to be
looked into.
36. In view of the aforesaid, there is no legal basis to hold the impugned
Amendment and Validation Act, 2013 as unconstitutional.
Petitioner's plea that criminalisation of politics would gain
momentum as the impugned Amendment and Validation Act, 2013
is a case of remedy being worse than the disease.
37. This Court is also of the view that the petitioner's plea to bar any
person who is in jail or in police custody from contesting an election
on the ground that it would lead to criminalisation of politics is a case
W.P. (C) No. 7459/2013 Page 20 of 23
of the remedy being worse than the disease. Extending curtailment of
the right to vote of a person in prison to the right to stand in election
would, in our opinion, leave the door open for practice of ' vendetta
politics ' by ruling parties. All that a politician/ ruling party-in-power
would need to do to prevent rivals from contesting an election, is to
ask the police to file a case and to arrest the rivals.
38. During the Rajya Sabha debate on the impugned Amendment and
Validation Act, 2013, the Leader of Opposition stressed that police
cannot become the final arbiter as to who can contest and who cannot
contest. The relevant extracts of the Law Minister's and Leader of
Opposition's statement(s), as available on the website
http://rajyasabha.nic.in, are reproduced here-in-below:-
A) Law Minister's statement while introducing the
impugned Bill:
"... As I have already indicated to you, these are two
separate statutory rights. The right to vote is subject to
limitations under Section 62(5) of 1951 Act; the right to be on
the electoral roll is also subject to limitations under Section 16
of the 1950 Act. Under the 1950 Act, your name can only be
removed from the electoral register if you are convicted of an
offence either under Section 123 of the Representation of the
People Act or other offences under the Representation of the
People Act, namely, Sections 8(1), 8(2) and 8(3). If you are
not convicted, you are entitled to be on the electoral roll, and if
you are entitled to be on the electoral roll, you can file your
nomination paper notwithstanding the fact that you are in
lawful custody of the police. Because being in the lawful
custody of the police does not mean that you are convicted of
an offence, does not mean that you are a criminal, does not
mean that you are subject to any disqualification under Section
16 of the 1950 Act. ... So, even though I may not be entitled
to vote under Section 62(5), I do not cease to be an elector,
W.P. (C) No. 7459/2013 Page 21 of 23
which means, I can still file my nomination paper. You know
very well that there are several instances where several
political parties put up candidates who may be in prison but
who are not convicted and undergoing trial because the rule of
law in any progressive democracy is that you are innocent till
you are proved guilty. ... Therefore, several political parties
have actually had candidates who had been in jail but who had
actually filed their nomination paper and have got elected
while being in jail. ..."
B) Leader of Opposition's statement:
"Suppose police picks up somebody. And it is not that it is
uncommon; it has happened in the past whereby introducing
some action people have been debarred and disabled from
contesting. Therefore, are we going to risk our democracy
becoming dependent of the police? Police is a State subject.
If the police has to pick up some people on the eve of
nominations, then they lose their right to vote; they lose their
right to contest. I remember one State Assembly, I mentioned
it earlier also, Jammu & Kashmir in 1957, 1962 and 1967.
Find out the number of candidates who were elected
unopposed and how were they elected unopposed. ...
Therefore, we don't want that kind of a situation to be reached
where the police becomes the final arbiter. Therefore, even if
you are arrested and kept in police custody, even if there is no
chargesheet against you and even if no chargesheet is ever
filed against you, if on that crucial date you are in custody,
then you have lost your vote. ... By being in custody for a
day, I lose my vote! ..."
Impugned Amendment and Validation Act, 2013 is consistent with
the principle of universal suffrage and the presumption of
innocence of the accused until proven guilty
39. In our opinion, one must distinguish between convicted prisoners on
the one hand and the undertrials on the other. Further, as our criminal
justice system is based on the principle of 'innocent until proven
W.P. (C) No. 7459/2013 Page 22 of 23
guilty' , we cannot presume our undertrials in custody to be guilty as
far as right to contest elections is concerned. In fact, Rule 84(2) of
the United Nations Standard Minimum Rules for Treatment of
Prisoners mandates that prisoners who have not been convicted
should be presumed as innocent and treated as such.
40. Consequently, we are of the opinion that the impugned Amendment
and Validation Act, 2013 is consistent with the principle of universal
and equal suffrage and the presumption of innocence of the accused
until proven guilty.
Conclusion:
41. In view of the above, we are of the view that the impugned
Amendment and Validation Act, 2013 is within the legislative
competence of the Parliament. In fact, by the impugned Amendment
and Validation Act, 2013, the Parliament has by explicit words
overruled the intent which had been read by implication by the Courts
into Section 62(5) and consequently, changed the basis of " Court's
decision " and is, thus, valid.
42. Accordingly, the present writ petition and pending application being
bereft of merits are dismissed, but with no order as to costs.
CHIEF JUSTICE
FEBRUARY 06, 2014 MANMOHAN, J.
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