Constitution of India — Articles 102(1)(e), 103, 191(1)(e) & 192 —

August 23rd, 2013

Constitution of India — Articles 102(1)(e), 103, 191(1)(e) & 192 — Member of either House of Parliament or Legislative Assembly or Legislative Council of the State — Similar set of disqualification — Held, 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 of the State — Representation of the People Act, 1951 — Section 8 — Disqualification.

Election Commission, India v. Saka Venkata Rao, (AIR 1953 SC 210, Relied on.

(Para 16, 18 & 19)

HELD: 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 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 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 member was alleged to have been subject to the disqualification.

(Para 18)

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 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 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.

(Para 19)

Lily Thomas v. Union of India[Bench Strength 2], Writ Petition (Civil) No. 490/2005(10/07/2013), 2013(8) SCALE 469: 2013(9) JT 419: 2013(6) SLT 1 [A.K. Patnaik, J.: Sudhansu Jyoti Mukhopadhaya, J.]

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