# 13 (ADDL.) S.C.R. 664 CONSUMER EDUCATION & RESEARCH SOCIETY v. UNION OF INDIA & ORS

- **Citation:** [2009] 13 S.C.R. 664
- **Court:** Supreme Court of India
- **Decided:** 2009-08-24
- **Bench:** K.G. Balakrishnan, R.V. Raveendran, J.M. Panchal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/13-addl-s-c-r-664-consumer-education-research-society-v-union-of-india-ors-25148
- **Pages:** 46

## Headnote

Parliament (Prevention of disqualification) Act, 1959
'
s. 3[as amended by Parliament (Prevention of
Disqualification) Amendment Act, 2006] - Certain offices of
profit not to disqualify - Addition to offices of profit with
retrospective effect - Challenged - Held: The impugned
0
legislation is constitutionally valid - Power of Parliament to
enact a law under Article 102(1)(a) of the Constitution includes
the power to enact such law retrospectively - A law can be
made retrospectively to remove the disqualification incurred
on account of holding offices of profit - Which 'offices' should
E
be excluded for the purpose of disqualification is a matter to
be addressed by Parliament - Nothing has been pointed out
to suggest that any of the offices exempted under the
Amendment Act, 2006 suffers from any impropriety so as to
be prejudicial to the constituency or affect independence of
the Member - Constitution of India, 1950 - Articles 101 to
F
104.
Constitution of India, 1950:
Articles 101(3)(a), 102(1)(a) and 103(1) - Member of
G Parliament -
Accepting 'office of profit' -
Incurring
disqualification - Vacancy of seat - Held: A declaration by
·~·
the President of India under Article 103(1) in case of
(;
disqualification under Article 102(1) and a declaration by the
Speaker or the Chairman under para 6 of the 10th Schedule
H
664
CONSUMER EDUCATION & RESEARCH SOCIETY v. 665
UNION OF INDIA & ANR.
-""."-
in the case of disqualification under Article 102(2) is a
A
condition precedent for the vacancy of the seat -A Member
continues as such until the decision of the President, and
when the outcome of the decision is that he /she is disqualified
, it relates back to the date when the said disqualification was
incurred - Therefore, while a disqualification results in the
B
vacation of the seat of a Member, the vacancy occurs only
when the President declares the disqualification under Article
103 - In the instant case, when the Parliament (Prevention
of Disqualification) Amendment Act, 2006 retrospectively
removed the disqualification with regard to certain enumerated c
offices, any Member who was holding such office of profit was
freed from the disqualification retrospectively and as none of
such Members have been declared to be disqualified, tf1ey
continued as Members -
Parliament (Prevention of
Disqualification) Act, 1959 - s. 3 [as amended by Parliament
D
(Prevention of Disqualification) Amendment Act,_ 2006].
Article 102 - Disqualification of Members of Parliament
- For holding of an office of profit - Exclusion of certain offices
for purpose of disqualification - Held: Is a question that lies
in the legislative domain - What kind of office would amount
E
to an 'office of profit' under the Government and whether such
an office of profit is to be exempted is a matter to be
-~)
considered by Parliament.
Article 14 - Challenge to the Parliament (Prevention of F
Disqualification) Amendment Act, 2006 merely because
several other similar offices of profit are not included in the
exempted category, has no basis - Each office of profit may
have different effects and consequences - Parliament
(Prevention of Disqualification) Act, 1959 as amended by G
Amendment Act, 2006.
CONSTITUTIONAL/SM:
Constitutional conventions - Office of profit - Exemption
of, from disqualification - Practice of matters being referred
H
666
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
(
·""-·
A to Joint Committee - Held: This was merely a parliamentary
procedure and not a constitutional convention - Once
Parliament is recognized as having the power to exempt from
disqualification and to do so with retrospective effect, any
alleged violation of any norm or traditional procedure cannot
B denude Parliament of its power to make a law.
The instant writ petitions were filed challenging the
constitutional validity of the Parliament (Prevention of
Disqualification) Amendment Act, 2006, amending the
c Parliament (Prevention of Disqualification} Act, 1959 and
making additions to th

## Text

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A
B
c
[2009] 13 (ADDL.) S.C.R. 664
CONSUMER EDUCATION & RESEARCH SOCIETY
v.
UNION OF INDIA & ORS.
(WP(C) NO. 448 OF 2006)
AUGUST 24, 2009
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND
J.M. PANCHAL, JJ.]
Parliament (Prevention of disqualification) Act, 1959
'
s. 3[as amended by Parliament (Prevention of
Disqualification) Amendment Act, 2006] - Certain offices of
profit not to disqualify - Addition to offices of profit with
retrospective effect - Challenged - Held: The impugned
0
legislation is constitutionally valid - Power of Parliament to
enact a law under Article 102(1)(a) of the Constitution includes
the power to enact such law retrospectively - A law can be
made retrospectively to remove the disqualification incurred
on account of holding offices of profit - Which 'offices' should
E
be excluded for the purpose of disqualification is a matter to
be addressed by Parliament - Nothing has been pointed out
to suggest that any of the offices exempted under the
Amendment Act, 2006 suffers from any impropriety so as to
be prejudicial to the constituency or affect independence of
the Member - Constitution of India, 1950 - Articles 101 to
F
104.
Constitution of India, 1950:
Articles 101(3)(a), 102(1)(a) and 103(1) - Member of
G Parliament -
Accepting 'office of profit' -
Incurring
disqualification - Vacancy of seat - Held: A declaration by
·~·
the President of India under Article 103(1) in case of
(;
disqualification under Article 102(1) and a declaration by the
Speaker or the Chairman under para 6 of the 10th Schedule
H
664
CONSUMER EDUCATION & RESEARCH SOCIETY v. 665
UNION OF INDIA & ANR.
-""."-
in the case of disqualification under Article 102(2) is a
A
condition precedent for the vacancy of the seat -A Member
continues as such until the decision of the President, and
when the outcome of the decision is that he /she is disqualified
, it relates back to the date when the said disqualification was
incurred - Therefore, while a disqualification results in the
B
vacation of the seat of a Member, the vacancy occurs only
when the President declares the disqualification under Article
103 - In the instant case, when the Parliament (Prevention
of Disqualification) Amendment Act, 2006 retrospectively
removed the disqualification with regard to certain enumerated c
offices, any Member who was holding such office of profit was
freed from the disqualification retrospectively and as none of
such Members have been declared to be disqualified, tf1ey
continued as Members -
Parliament (Prevention of
Disqualification) Act, 1959 - s. 3 [as amended by Parliament
D
(Prevention of Disqualification) Amendment Act,_ 2006].
Article 102 - Disqualification of Members of Parliament
- For holding of an office of profit - Exclusion of certain offices
for purpose of disqualification - Held: Is a question that lies
in the legislative domain - What kind of office would amount
E
to an 'office of profit' under the Government and whether such
an office of profit is to be exempted is a matter to be
-~)
considered by Parliament.
Article 14 - Challenge to the Parliament (Prevention of F
Disqualification) Amendment Act, 2006 merely because
several other similar offices of profit are not included in the
exempted category, has no basis - Each office of profit may
have different effects and consequences - Parliament
(Prevention of Disqualification) Act, 1959 as amended by G
Amendment Act, 2006.
CONSTITUTIONAL/SM:
Constitutional conventions - Office of profit - Exemption
of, from disqualification - Practice of matters being referred
H
666
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
(
·""-·
A to Joint Committee - Held: This was merely a parliamentary
procedure and not a constitutional convention - Once
Parliament is recognized as having the power to exempt from
disqualification and to do so with retrospective effect, any
alleged violation of any norm or traditional procedure cannot
B denude Parliament of its power to make a law.
The instant writ petitions were filed challenging the
constitutional validity of the Parliament (Prevention of
Disqualification) Amendment Act, 2006, amending the
c Parliament (Prevention of Disqualification} Act, 1959 and
making additions to the list of 'Offices of Profit', exempt
from disqualification for becoming a Member of
Parliament.
The questions for consideration before the Court
D were : (i) whether the Amendment Act retrospectively
exempting certain offices of profit from disqualification,
violated Articles 101 to 104 of the Constitution and was,
therefore, invalid; and (ii) whether exemption of as many
as 55 offices relating ·to statutory bodies/non-statutory
E bodies, without referring the proposal to the. Joint
Committee would render the Amendment a colourable
legislation and violated any 'constitutional convention' or
Article 14 of the Constitution.
~
F
Dismissing the writ petitions, the Court Held:
1.1. The impugned legislation is constitutionally valid.
[Para 40] [709-8-C]
1.2. The power of Parliament to enact a law under
G Article 102 (1}(a) of the Constitution of India includes the
power to enact such law retrospectively. Thus, a law can
. {<
be made retrospectively to remove the disqualification
incurred on ~ccount of holding offices of profit. [Para 16]
[687-8]
H
Srimati Kanta Kathuria v. Manak Chand Surana (1969)
CONSUMER EDUCATION & RESEARCH SOCIETY v. 667
UNION OF INDIA & ANR.
-~
3 SCC 268; Indira Nehru Gandhi v. Raj Narain, (1975) Supp.
A
SCC 1; Nongthombam lbomcha Singh v. Leisan.gthem
Chandramani Singh & Ors. (1976) 4 sec 291, relied on
1.3. The use of the words "becomes subject to" in
Article 101 and in Article 103 of the Constitution clearly
B
demonstrate that these Articles contemplate a situation
where a sitting MP incurs the disqualification during his
)....""
tenure and they do not apply to a candidate who held a
disqualifying office of profit before being elected as a
Member of Parliament. Separate provisions deal with pre- c
election disqualification, as is indicated by ss. 36 and 100
of the Representation of the People Act, 1951. Where a
person was under a disqualification at the time of his
election, the provisions of Articles 101 (3)(a) and 103 will
not apply. He/She will continue as a member unless the
D
High Court in an election petition filed on that ground,
declares that on the date of election, he/she was
disqualified and consequently, declares his/her election
to be void. It follows, therefore, that if an elected candidate
was under a disqualification when he was elected, but no
one challenges his/her election, he/she would continue
E
as a Member irrespective of the fact that he/she was
under a disqualification when elected. [Para 19-20 and 22)
[691-C-E; 649-8-D]
.,.. ....
Election Commission, India v. Saka Venkata Subba Rao
F
& Union of India (1953) 3 SCR 1144; Brundaban Nayak v.
Election Commission of India (1965) 3 SCR 53, referred to.
1.4. The constitutional scheme is that a person shall
be disqualified from continuing as a Member of
Parliament if he/she holds any disqualifying office of G
profit. Such a disqualification can result in the vacation
of his/her seat when the Member admits or declares that
he/she is holding the disqualifying office of profit.
However, if. he/she does not make a voluntary declaration
about the same, the question whether he/she is
H
668
SUPREME COURT REPORTS [2009] 13 (ADDL.) s.c.R:
A disqualified or not, if raised, shall have to be referred for
a decision by the President of India and the same will be
made after obtaining the opinion of the Election
Commission of India. It is only after the President decides
that the Member has incurred an alleged disqualification
B that the particular member's seat would become vacant.
The words "if any question arises as to whether a
Member of either House of Parliament has become
subject to any disqualifications" conclusively show that
the question whether a Member has become subject to
c any disqualification under clause (1) of Article 102 has to
be decided only by the President. Such a question would
be a mixed question of fact and law. It is only after such
a decision is rendered by the President, that the seat
occupied by an incumbent MP becomes vacant. [Para 24]
D (695-A-F]
2.1. The question of a person being disqualified
under Article 102(1) and the question of his seat
becoming vacant under Article 101(3)(a) though closely
interlinked, are distinct and separate issues. The
E constitutional scheme in Articles 101 to 104 indicates that
the vacancy of the seat would occur only when a decision
is rendered by the President under Article 103 and not at
the point of time when the Member is alleged to have
incurred
the
disqualification.
The
vacancies
F contemplated in Article 101(3)(a) will arise only when the
.Pisqualification is decided upon and declared by the
President under Article 103(1) or declared by the
Chairman or the Speaker of the House .under Para 6(1)
of Tenth Schedule. Therefore, in the case of vacancy
G under Article 101(3)(a), the vacancy of the seat is not
automatic
consequent
upon
incurring
the
disqualification, but would occur only upon a declaration
of the disqualification by the designated authority.With
regard to disqualification under Article 102(2) on the
H ground of defection, the vacancy of the seat would
,.
'
I-
CONSUMER EDUCATION & RESEARCH SOCIETY v. 669
UNION OF INDIA & ANR.
become operative only when a decision is rendered by A
the Chairman or the Speaker of the House, as the case
may be, declaring his disqualification. Therefore, upon a
proper construction of the provisions of Articles 101 to
103, it is evident that a declaration by the President under
Article 103(1) in the case of a disqualification under Article
8
102(1) and a declaration by the Speaker or the Chairman
under Para 6 of the Tenth Schedule in the case of a
disqualification under Article 102(2) is a condition
precedent for the vacancy of the seat. [Para 24,25,28 and
30] (695-F:.G; 698-F-H; 699-8-C; 700-D-F]
c
2.2. When the President adjudicates on the subject
of whether a Member was disqualified or not and gives a
finding that he/she is disqualified, such person is merely
deemed to have ceased being a Member·from the date
he/she had incurred the disqualification. It follows that a
D
Member continues as such until the decision of the
President and when the outcome of the decision is that
he/she is disqualified it relates back to the date when the
said disqualification was incurred. If the President holds
that the Member has not incurred the disqualification, the
E
person continues as a Member. [Para 35] [706-E-G]
2.3. There is no doubt that the disqualification, when
declared by the President will become operative from the
date the Member accepted the ·office of profit'. It is also
F
not in doubt that the vacation of the seat is
consequential. However, the seat of the Member does not
become vacant without anything more when a person
accepts an ·office of profit'. If the Member does not make
a voluntary declaration that he/she has incurred a
disqualification and if no one raises a dispute about the G
same, the Member would continue in spite of accepting
an office of profit. Therefore, while a disqualification
results in the vacation of the seat of a Member, the
vacancy occurs only when the President decides and
H
670
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A declares the di· qu<Jlification under Article 103. [Para 36]
.~
[706-G-H; 707-A-D]
2.4. When the Amending Act retrospectively removed
the disqualification with regard to certain enumerated
offices, any Member who was holding such office of
8 profit, was freed from the disqualification retrospectively.
As of the date of the passage of the Amendment Act,
none of the Members who were holding such offices had
-~
been declared to be disqualified by the President, s.4(2)
was not attracted and consequently they continued as
C Members. [Para 37] [707-D-F]
3.1. Which 'offices' should be excluded for the
purpose of disqualification, is a question that properly
lies in the legislative domain. What kind of office would
o amount to an 'office of profit' under the Government and
whether such an office of profit is to be exempted is a
matter to be considered by Parliament. The key concern
that certain offices or places held by an MP may be either
incompatible with his/her duty as an elected
E representative of the people or affect his/her
independence and thus weaken his/her loyalty to his/her
constituency and, therefore, should disqualify the holder
thereof, is a matter to be addressed by Parliament. [Para
38] [707-F-H; 708-A]
F
3.2. While making the legislation exempting any
office, the question whether such office held by a person
is incompatible with hisihPr position as an MP and
whether his/her independence would be compromised
and whether his/her loyalty fo his/her constituency will be
G affected, should no doubt be kept in mind to safeguard
the independence of the Members of the legislature and
to ensure that they are free from any kind of undue
influence from the executive. Nothing has been pointed
out to suggest that any of the newly exempted 'offices'
H suffer from any such impropriety or will be prejudicial to
'
~
J
,_ ,-
CONSUMER EDUCATION & RESEARCH SOCIETY v. 671
UNION OF INDIA & ANR.
the constituency or affect the independence of the A
Member. [Para 38] [708-8-D]
4. The plea regarding violation of Article 14 of the
Constitution merely because several other similar offices
of profit are not included in the exempted category, has s
no basis. As each office of profit may have different
effects and consequences on the Member, there is no
viable basis for the assumption that all offices of profit
are equal and that all offices of profit should be excluded.
[Para 38] [708-D-E]
c
5. It is not in serious dispute that ever since
Bhargava Committee submitted its report in November,
1955, whenever an office of profit had to be exempted the
matter used to be referred to a Joint Committee and its
opinion whether the office should be exempted or not, D
was being taken and only when· there was a
recommendation that a particular office should be
exempted, the Act was being amended to add that office
to the list of exemptions. However, this was merely a
parliamentary procedure and not a constitutional E
convention. Once the Parliament is recognized as having
the power to exempt from disqualification and to do so
with retrospective effect, any alleged violation of any norm
or traditional procedure cannot denude Parliament of its
power to make a law. Nor can such law which is otherwise F
valid be described as unconstitutional merely because a
procedure which was followed on a few occasions was
not followed for the particular amendment. [Para 39] [708E-H; 709-A-B]
Case Law Reference:
(1969) a sec 268
(1975) supp. sec 1
relied on
relied on
para 13
para 17
G
H
A
672
SUPREME COURT REPORTS {2009} 13 (ADDL.) S.C.R.
(1976) 4 sec 291
(1953) 3 SCR 1144
(1965) 3 SCR 53
relied on
referred to
referred to
para 18
para 21
para 21
B
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
c
448 of 2006.
Under Article 32 of the Constitution of India.
WITH
W.P. (C) No. 411 of 2006.
Gopal Subramanium, Mohan Parasaran, ASG, Ravindra
Shrivastava, Sr. Adv. E.R. Kumar, Sameer Parekh, Kunal
Verma, Ranjeeta Rohtagi, Diksha Rai, Rajul Shrivastav, Anup
D
Jain, K. Krisna, Supriya Jain, Ajay K. Jha (for Parekh & Co.),
)
E
P. Parmeswaran, Raghenth Basant, Aman Ahluwalia, Balaji
Subramaniam, Gaurav Agrawal, Tapesh K. Singh, B.K. Prasad,
D.L. Chidananda, Gaurav Dhingra, K.K. Senthivelan, C.S.
Bhardwaj for the appearing parties.
The Judgment of the Court was delivered by
K. G. BALAKRISHNAN, CJI. 1. These two writ petitions
filed under Article 32 'of the Constitution by way of public
interest litigation, challenge the constitutional validity of the
F
Parliament (Prevention of Disqualification) Amendment Act,
2006 (Act No. 31/2006, Hereinafter 'Amendment Act'). It
amended the Parliament (Prevention of Disqualification) Act,
1959 (Hereinafter 'Principal Act'). The Amendment Act adds
to the list of 'Offices of Profit' which do not disqualify the holders
G thereof for being chosen as, or for being the Members of
Parliament.
Historical background
H
2. The expression 'Office of Profit' is not defined in the
CONSUMER EDUCATION & RESEARCH SOCIETY v. 673
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
Constitution. The view that certain offices or positions held by
A
a Member of Parliament (Hereinafter also referred to as 'MP')
may be either incompatible with his/her duty as an elected
representative of the people, or affect his/her independence,
and thus weaken the loyalty to his/her constituency and,
therefore, should disqualify the holder thereof, had its origin in
B
the Parliamentary history of the United Kingdom. (See: The
Introduction to the Bhargava Committee Report on Office of
.~
Profit, dated 22.10.1955). The concept of 'office of profit' has
a history of more than four centuries in United Kingdom and it
has evolved through many phases. The first was the "privilege" c
phase (prior to 1640). The second was the "corruption" phase
(from 1640). The third was the "ministerial responsibility" phase
(after 1705). Initially the English Parliament claimed priority over
the services of its Members and it was considered derogatory
.. ,
to its privilege if any of its Members accepted some other office
D
--'\.
which would require a great deal of their time and attention.
This led to the evolution of the idea that the holding of certain
offices would be incompatible with the responsibilities of a
Member of Parliament. This was the first phase. During the
second phase, there was a protracted conflict between the
E
Crown and the House of Commons. Loyalty to the King and the
loyalty to the House of Commons representing the will of the
people became growingly irreconcilable and it was thought that
'j-}
if any Member accepted an 'Office of Profit' under the Crown,
there was every chance of his loyalty to Parliament being
compromised. Subsequently came the third phase. The King
F
was reduced to the position of a constitutional head and the
cabinet, functioning in the name of the Crown became the
centre of the executive government. The Privy Councilors, who
during the second phase were invariably considered to be the
henchmen of the King and were as such looked upon with
G
-~
suspicion by the House of Commons, yielded place to the
Ministers, who for some time were also disqualified from holding
a seat in the House. Later it came to be recognized that the
application of the disqualification rule to incumbent ministers
was too extreme and with the intent of ensuring effective
H
674
SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A coordination between the executive and the legislature, it was
,,;.,
accepted that the Members of the executive should be
represented in the Parliament. This recognition led to the
passing of several enactments by the British Parliament. The
Re-Election of Ministers Act enacted by the British Parliament
B in 1919 and 1926 required any Member who was appointed
to a 'political office' to seek re-election.
3. As we have adopted the British Parliamentary form of
-~
Government, the concept of 'office of profit' was also adopted
c with some modifications. The concept of 'office of profit' began
to develop with the entry of non-official members in the
Legislature. A clear and precise statement in this regard was
made in Section 26(1)(a) of the Government of India Act, 1935
which provided that a person shall be disqualified for being
chosen as; and for being, a Member of either Chamber if he
..
D held any office of profit under the Crown of India, other than an
;;-..
office declared by Act of the Federal Legislature not to
disqualify its holder.
4. When the Constitution of India came into force on 26th
E January, 1950 declaring that a person holding an office of profit
would be disqualified, the explanation to Article 102 clarified
that a person who is a Minister (either for the Union or for any
State) shall not be deemed to hold an office of profit. However,
there existed Ministers of State as also Deputy Ministers in the
F Union Government who were not specifically exempted from
disqualification under Article 102 because the expression
'minister' was construed as referring only to a Cabinet Minister.
In order to address this situation, the Parliament (Prevention
of Disqualification) Act, 1950 was enacted. Section 2 of the
G said Act provided:
"2. Prevention of disqualification for membership of
)<:
Parliament: A person shall not be disqualified for being
chosen as, and for being a member of Parliament by
reason only of the fact that he holds any of the following
H
offices of profit under the Government of India or the
CONSUMER EDUCATION & RESEARCH SOCIETY v. 675
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
Government of any State, namely, an office of Minister of A
State or a Deputy Minister, or a Parliamentary Secretary
or a Parliamentary Under Secretary."
5. This was followed by the Parliament (Prevention of
Disqualification) Act, 1951 declaring that certain offices B
(specified in Section 2 thereof) under the government shall not
disqualify, and shall be deemed never to have disqualified the
~
holders thereof for being chosen as, or for being, Members of
Parliament. The said Act was given retrospective effect from
26.1.1950.
c
6. In 1954, a Committee was constituted under the
chairmanship of Pandit Thakur Das Bhargava to study the
various matters connected with the disqualification of MP's and
..
·to make recommendations in order to enable the government
f
to consider the manner in which a comprehensive legislation D
-l\.
should be brought. The Committee submitted its report in 1955.
-
In 1959 the Parliament (Prevention of Disqualification) Act,
1959 was enacted, thereby declaring that certain offices of
profit under the government shall not disqualify the holders
thereof for being chosen as or for being, Members of E
Parliament. Section 3 of the Principal Act (amended from time
to time) declared that none of the following offices in so far as
it is an office of profit under the government of India or the
-.; ..,.
government of any State, shall disqualify the holder thereof for
being chosen as, or for being, a Member of Parliament:
F
"(a)
any office held by a Minister, Minister of State or
Deputy Minister for the Union or for any State,
whether ex officio or by name;
(aa) the office of a Leader of the Opposition in G
Parliament;
·~
(ab) the office of Deputy Chairman, Planning
Commission;
(ac) the office of each leader and deputy leader of a H
676
SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.
A
recognized party and recognized group in either
House of Parliament;
,-4
(b)
the office of Chief Whip. Deputy Chief Whip or Whip
in Parliament or of a Parliamentary Secretary;
B
(ba) the office of Chairperson of -
(i}:
the National Commission for Minorities
constituted under Section 3 of the National
Commission for Minorities Act, 1992 (19 of
_.;:(
c
1992);
(ii)
the National Commission for the Scheduled
Castes and Scheduled Tribes constituted
under clause (I) of article 338 of the
D.
Constitution;
~
\
(iii)
the National _commission for Women
,?'- '
constituted under Section 3 of the National
Commission for Women Act, 1990 (20) of
-
1990;
..
E
(c)
the office of member of any force raised or
maintained under the National Cadet Corps Act,
1948 (56 of 1948), or the Reserve and Auxiliary Air
Forces Act, 1952 (62 of 1952);
F
r't-
(d)
the office of a member of a Home Guard
constituted under any law for the time being in force
in any State;
(e)
the office of sheriff in the city of Bombay, Calcutta
G
or Madras;
(f)
the office of chairman or member of the syndicate,
'>:
senate, executive committee, council or court of a
university or other body connected with a university;
H
(g)
the office of a member of any delegation or mission
CONSUMER EDUCATION & RESEARCH SOCIETY v. 677
~
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
'
sent outside India by the Government for any
A
.......
special purpose;
~
(h)
the office of chairman or member of a committee
(whether consisting of one or more members), set
up temporarily for the purpose of advising the
8
,.
Government or any other authority in respect of any
lllil;,
matter of public importance or for the purpose of
I
making an inquiry into, or collecting statistics in
k.
respect of, any such matter, if the holder of such
office is not entitled to any remuneration other than c
compensatory allowance;
(i)
the office of Chairman, director or member of any
statutory or non-statutory body other than any such
body as is referred to in clause (h), if the holder of
such o_ffice is not entitled to any remuneration other
D
"\
than compensatory allowance, but excluding (i) the
office of chairman of any statutory or non-statutory
body specified in Part I of the Schedule, (ii) the
•
office of chairman or secretary of any statutory or
non-statutory body specified in Part II of the
E
Schedule;
fj)
the office of village revenue officer, whether called
a lambardar, malguzar, patel, deshmukh or by any
-f 't
other name, whose duty is to collect land revenue
F
and who is remunerated by a share of, or
commission on, the amount of land revenue
collected by him, but who dies not discharge any
police functions."
7. The trigger for the present controversy arose when a
G
Member of the Rajya Sabha - Mrs. Jaya Bachchan was
appointed as the Chairperson of the Uttar Pradesh Film
Development Council on 14.7.2004. A complaint was made
that this amounting to the holding of an 'office of profit' on her
part and thus, she was not entitled to continue as a Member of H
678
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A the Rajya Sabha in view of Article 102(1 )(a) of the Constitution.
-~-
A Presidential Order was passed under Article 103(1) of the
Constitution of India by which the said Member of the Rajya
Sabha was disqualified from being a Member of the Rajya
Sabha on the ground that she was holding an 'office of profit'.
B That order was challenged before this Court in Jaya Bachan
v. Union of India, (2006) 5 sec 266, and the challenge was
rejected by this Court. Thereafter, it was discovered that a large
number of MPs' were holding 'Offices of Profit' and they also
-~
would incur the same disqualification. A Bill titled the Parliament
c (Prevention of Disqualification) Amendment Bill, 2006 was
therefore introduced on 16th of May, 2006 in the Lok Sabha
and was passed on the same day. On the next day, it was
introduced in the Rajya Sabha and was debated on and passed
on the same day. The Bill was sent to the President of India
D for his assent on 25th May, 2006. The President returned the
. Bill on 30th May, 2006 to the Parliament for reconsideration
;x
under Article 111 of the Constitution of India. The Bill was
passed again by both the Houses without amendment and
presented to the President for assent and the said assent was
E given on 18.8.2006. Thus, the Amendment Act came into
existence.
8. Section 2 of the .Amendment Act inserted the following
clauses as (ad) after clause (ac) of section 3 of the Principal
Act:
-I~-
F
"(ad) the office of the chairperson of the National Advisory
Council constituted by the Government of India in the
Cabinet Secretariat vide Order No. 631/2/1/2004-Cab,
dated the 31st May, 2004;"
G Section 2 of Amendment Act also inserted after clause 0) the
following clauses, which were to be deemed to have been
inserted with effect from the 4th day of April, 1959, namely:
"(k)
the office of Chairman, Deputy Chairman, Secretary
H
or Member (by whatever name called) in any
CONSUMER EDUCATION & RESEARCH SOCIETY v. 679
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
statutory or non-statutory body specified in the
A
Table;
(I)
the office of Chairperson or trustee (by whatever
name called) of any Trust, whether public or private,
not being a body specified in the Schedule;
(m)
the office of Chairman, President, Vice-President
or Principal Secretary or Secretary of the
Governing Body of any society registered under the
Societies Registration Act, 1860 or under any other
B
law relating to registration of societies, not being a
C
body specified in the Schedule."
Section 3 of the Amendment Act inserted a Table referred to
in Section 2(k), listing 55 statutory and non-statutory bodies,
following the Schedule in the Principal Act, which was also
0
deemed to have been inserted with effect from 4th April, 1959.
Section 4 contained a special provision as to validation and
other matters and it is extracted below:
"4.(1) Notwithstanding any judgment or order of any court
E
or tribunal or any order or opinion of any other authority,
the offices mentioned in clauses (ad), (k), (I) and (m) of
Section 3 of the Principal Act shall not disqualify or shall
-+-~
be deemed never to have disqualified the holders thereof
for being chosen as, or for being, as member of either
F
House of Parliament as if the Principal Act as amended
by this Act and been in force at all material times.
(2)
Nothing contained in sub-section (I) shall be
construed as to entire any person who has vacated
a seat owing to any order or judgment, as
G
aforesaid, to claim any reinstatement or any other
claim in that behalf.
(3)
For the removal of doubts, it is hereby clarified that
any petition or reference pending before any court
H
A
680 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
or other authority on the date of commencement of
this Act, shall be disposed of in accordance with
the provisions of the Principal Act, as amended by
this Act."
8 Relevant constitutional provisions:
9. In order to understand the scope, applicability and
impact of the Amendment Act, it is necessary to refer to the
constitutional provisions (Article 101 to 104 of the Constitution
.,.;ii,
of India) which deal with the disqualification of Members of
C Parliament. Article 101 enumerates the circumstances in which
the seats of Members of Parliament will become vacant.
Portions of Article 101 are extracted below:
D
"101. Vacation of seats.-(1) No person shall be a member
of both houses of Parliament and provision shall be made
by Parliament by law for the vacation by a person who is
chosen a member of both houses of his seat in one house
or the other.
(2) No person shall be a member both of Parliament and
E
of a House of the Legislature of a State, and if a person
is chosen a member both of Parliament and of a House
of the Legislature of (a State), then, at the expiration of
such period as may be specified in rules made by the
President, that person's seat in Parliament shall become
F
vacant, unless he has previously resigned his seat in the
Legislature of the State.
G
H
(3) If a member of either House of Parliament -
(a)
becomes
subject
to
any
of
the
disqualifications mentioned in (clause (1) or
clause (2) of article 102), or
(b)
resigns his seat by writing under his hand
addressed to the Chairman or the Speaker,
as the case may be, and his resignation is
..
\
CONSUMER EDUCATION & RESEARCH SOCIETY v. 681
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
A.
accepted by the Chairman or the Speaker,
A
as the case may be.
his seat shall thereupon become vacant:"
Article 102 enumerates the various disqualifications for
B
membership and it is extracted below:
"102. Disqualifications for membership.
)...,.
(1) A person shall be disqualified for being chosen as, and
for being, a member of either House of Parliamentc
i
(a)
If he holds any office of profit under the
Government of India or the Government of any
State, other than an office declared by Parliament
by law not to disqualify its holder;
~
D
(b)
If he is of unsound mind and stands so declared by
a competent court;
-
(c)
If he is an undischarged insolvent;
(d)
If he is not a citizen of India or has voluntarily
E
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
F
"
by 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 by
G
reason only that he is a Minister either for the Union or for
such State.
(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under
H
-'•
682
SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
A
the Tenth Schedule."
~-
[emphasis supplied]
Article 103 deals with the procedure to be followed in case a
B
decision is required as to the disqualification of sitting MPs.
.
Article 104 lays down the penalty for sitting and voting, by
~
'
disqualified Members. The said Articles are extracted below:
"103. Decision on questions as to disqualifications of
... ~
members
c
(1) If any question arises as to whether a member of either
House of Parliament has become subject to any of the
disqualifications mentioned in clause (1) of article 102, the
question shall be referred for the decision of the President
and his decision shall be final.
..__ '
D
(2) Before giving any decision on any such question, the
)''
President shall obtain the opinion of the Election
Commission and shall act according to such opinion."
E
"104. Penalty for sitting and voting before making oath
or affirmation under article 99 or when not qualified or
when disqualified - If a person sits or votes as a member
of either House of Parliament before he has complied with
the requirement of article 99, or when he knows that he is
.,.--tF
not qualified or that he is disqualified for membership
thereof, or that he is prohibited from so doing by the
"")
provision of any law made by Parliament, he shall be liable
in respect of each day on which he so sits or votes to a
penalty of five hundred rupees to be recovered as a debt
G
due to the Union."
The corresponding provisions relating to disqualification of
>-
members of the State Legislature are Articles 190, 19.1, 192
and 193. They correspond to and are substantially similar to
Articles 101,· 102, 103 and 104 which are applicable to
H Parliament.
..
CONSUMER EDUCATION & RESEARCH SOCIETY v. 683
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
A.
10. Article 102(1)(a) lays down that a Member of either
A
House of Parliament shall be disqualified if he holds any 'office
of profit' under the Government of India or the Government of
any State, other than an office declared by Parliament by law
not to disqualify its holder. Section 101 (3)(a) provided that if a
Member of either House of Parliament becomes subject to any
B
of the disqualifications mentioned in Article 102(1), his seat
shall thereupon become vacant. Article 103 provides for
~.
reference of any question as to whether a Member of either
House of Parliament has become subject to any of the
disqualifications mentioned in Article 102(1) to the decision of c
the President, whose decision on the question is made final.
Contentions
'-·
11. The learned senior counsels Shri Harish Salve and Shri
'
Ravinder Srivastava who appeared on behalf of the petitioners
D
"'\.,
contended that the amendment that retrospectively exempted
certain offices of profit from the disqualification rule was
violative of the constitutional scheme of Articles 101 to 104 of
the Constitution. It was submitted that the purpose of removal
of disqualification by a retrospective amendment to the Act was
E
to ensure that persons who had ceased to be MP's on account
of incurring disqualifications would be re-inducted to Parliament
without election, and that was impermissible and
'
-+--..
unconstitutional. It was asserted that several MP's were holding
"offices of profit under the Government of India or the State
F
Government, other than offices declared by Parliament by law
not to disqualify their holder" (for short 'the disqualifying offices
of profit') when they were elected. It was further stated that
several others had accepted the disqualifying offices of profit,
after becoming Members, i.e. during their tenure as Members
G
of Parliament. Hence , it was reasoned that a person holding
such office of profit, was disqualified to become or be a
Member of Parliament and that such Member's seat would
become vacant on the very day when they were elected (with
respect to those who were already holding the disqualifying
H
684
SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.
A office of profit, when they were elected) and on the day they
,,A
accepted the disqualifying office of profit (with respect to those
who accepted such disqualifying offices of profit during their
tenure as Members of Parliament). It was submitted that when
a Member's seat· had already became vacant by virtue of
B incurring a constitutional djsqualification, his/her membership
cannot be revived by enacting a legislation which retrospectively
removed the applicable disqualificatt6n. According to the
,.~
petitioner, a legislation retrospectively removing the
disqualification will help a person to continue to be a Member,
c only if he/she had continued as a Member and his/her seat had
not fallen vacant. The reasoning advanced was that in instances
where the seat had already become vacant oh, account of
incurring a constitutional disqualification, any legislhtive attempt
to revive the membership of the Member whose seat had
;-
D become vacant, would violate Articles 102(1) read with Article
)-
101 (3)(a) of the Constitution.
12. Alternatively, it was submitted that the objects and
reasons as well as the provisions of the Amendment Act made
it obvious that retrospective operation had been given to its
E provisions with the sole intention of enabling the continuance
of MPs' who would have otherwise been disqualified under
Article 102(1 )(a) of the Constitution. Therefore, such
retrospective operation is unconstitutional. It is submitted that
.. ~
ever since the recommendations of the Bhargava Committee
F in November, 1955, a constitutional convention had evolved
wherein every Lok Sabha had a Joint Committee for the
purpose of identifying and classifying 'offices of profit'.
Whenever a particular 'office" had to be exempted from the
disqualification rule, the Joint Committee's opinion was sought
G on the question of whether the said office was an 'office of
profit' or not, whether the holding of such office by a MP would
)-
conflict with his duties, and whether or not the office should be
granted exemption. It was only after a report was given by the
Joint Committee -recommending exemption, that a particular
H 'office' would be exempted. It was contended that the said-
CONSUMER EDUCATION & RESEARCH SOCIETY v. 685
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
constitutional convention which has been followed for more than
A
half a century was violated when 55 offices were given a
'wholesale' exemption with retrospective effect without
obtaining any report from the Joint Committee on the question
of whether the said "offices of profit" deserved to be exempted
or not. It was hence argued that the Amendment Act was a
B
colourable legislation which violated a well established
constitutional convention. It was also contended that the
provisions of the impugned legislation violated the guarantee
of "equality before law and equal protection of the laws" that
has been enshrined in Article 14 of the Constitution. It was c
contended that the offices under certain bodies which had been
enumerated in the Schedule, were included without any basis
in discernible principles. It was argued that there was no rational
criterion for the wholesale exemption of the enumerated 55
'offices of profit' from the disqualification rule, by means of the 0
impugned legislation.
13. On the other hand, Shri Gopal Subramaniam and Shri
· Mohan Parasaran, learned Additional Solicitors General,
opposed these contentions on behalf of the respondents.