# 6 S.C.R. 67 ELECTION COMMISSION OF INDIA v. BAJRANG BAHADUR SINGH & ORS

- **Citation:** [2015] 6 S.C.R. 67
- **Court:** Supreme Court of India
- **Decided:** 2015-04-09
- **Bench:** J. Chelameswar, R. K. Agrawal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/6-s-c-r-67-election-commission-of-india-v-bajrang-bahadur-singh-ors-30776
- **Pages:** 40

## Headnote

A
B
Representation of the People Act, 1951 - s. 9A - Disqualification for Government contracts, etc. - Petitioner c
elected,to State Legislative Assembly from an Assembly
Constituency - Thereafter, declaration by Governor that
petitioner incurred disqualification stipulated u/s. 9A since
the petitioner entered into culprit contracts with the State
after his election to the Legislative Assembly - Issuance of D
Notification that seat occupied by the petitioner fell vacant
and press note announcing election schedule for filling up
vacancy in the said Constituency- Writ petition by the petitioner- Subsequently, issuance of Notification, notifying the
election to fill up the said Assembly Constituency - Interim E
order by the High Court staying the election process - On
appeal, held: Purpose of s. 9A is to maintain the purity of the
legislature and to avoid conflict of personal interest and duty
of the legislators - It would be strange logic that persons
with a subsisting contract with the government are perceived F
to be undesirable to become members of the legislature as
there is a likelihood of conflict between their duty as legislators, if elected and their personal interest as contractors, but
legislators can enter into contracts with the government with G
impunity-Any interpretation of s. 9A which goes to assist a
legislator who directly enters into a contractual relationship
with the State for deriving monetary benefits should be
avoided and be given a construction which eliminates the
possibility of creating such situation where the duty is cer- H
67
68
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A tainly bound to conflict with personal interest- On facts, submission that the disqualification prescribed uls. 9A operates
only at the threshold thereby rendering a person ineligible
for contesting any election thus, the petitioner did not incur
any disqualification; and that disqualification operate only
B during the subsistence of the culprit contracts but not after
they ceased to subsist, cannot be accepted - Instant case
does not fall within the blanket ban on ttie /itigative challenges
to the electoral steps - Interim order granted by High Court
justified - Person aggrieved by a decision of the Governor
C u!Art. 192 can approach the High Court within the period
specified.
D
Dismissing the transferred case and disposing of
the SLP, the Court
HELD: 1.1 Acquisition of a disqualification
contemplated under Article 191 of the Constitution is an
incident which entails a legal consequence of rendering
the seat (occupied by such a Legislator who acquired
E the disqualification) vacant by operation of law. Article
192 only prescribes the forum and stipulates the
procec;lure for determination of the fact whether a
Legislator has incurred the disqualification. Article 192
does not provide for removal of a member from the
F Legislature by an action of the Governor. It only obligates
the Governor to decide whether a Legislator has incurred
anyone of the disqualifications mentioned in clause (1)
of Article 191. The vacancy occurs by virtue of
constitutional declaration contained in Article 190 clause
G (3). The removal takes place by virtue of the operation
of law on the happening of the event, that is, the
acquisition of a disqualification. The fact that the
disqualification uls. 9A of the Representation of the
H People Act, 1951 subsists only for a limited period of
time, makes no difference to the consequences flowing
ELECTION COMMISSION OF INDIA v. BAJRANG
69
BAHADUR SINGH & ORS.
from the occurrence of such disqualifying EVENT. [Paras A
33) {88-A-D]
1.2. The happening of any one of the disqualifying
EVENTS has the effect of making the seat occupied by
such a disqualified person vacant immediately by B
operation of law. The effect of the decision of the
Governor under Article 192 is only to decide whether a
legislator acquir~d the disqualification on a particular
date on the hiP.pening of one of the disqualifying
EVENTS contemplated u/s. 1

## Text

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(2015) 6 S.C.R. 67
ELECTION COMMISSION OF INDIA
v.
BAJRANG BAHADUR SINGH & ORS.
(Special Leave Petition (Civil) No.8850 of 2015)
APRIL 09, 2015
[J. CHELAMESWAR AND R. K. AGRAWAL, JJ.]
A
B
Representation of the People Act, 1951 - s. 9A - Disqualification for Government contracts, etc. - Petitioner c
elected,to State Legislative Assembly from an Assembly
Constituency - Thereafter, declaration by Governor that
petitioner incurred disqualification stipulated u/s. 9A since
the petitioner entered into culprit contracts with the State
after his election to the Legislative Assembly - Issuance of D
Notification that seat occupied by the petitioner fell vacant
and press note announcing election schedule for filling up
vacancy in the said Constituency- Writ petition by the petitioner- Subsequently, issuance of Notification, notifying the
election to fill up the said Assembly Constituency - Interim E
order by the High Court staying the election process - On
appeal, held: Purpose of s. 9A is to maintain the purity of the
legislature and to avoid conflict of personal interest and duty
of the legislators - It would be strange logic that persons
with a subsisting contract with the government are perceived F
to be undesirable to become members of the legislature as
there is a likelihood of conflict between their duty as legislators, if elected and their personal interest as contractors, but
legislators can enter into contracts with the government with G
impunity-Any interpretation of s. 9A which goes to assist a
legislator who directly enters into a contractual relationship
with the State for deriving monetary benefits should be
avoided and be given a construction which eliminates the
possibility of creating such situation where the duty is cer- H
67
68
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A tainly bound to conflict with personal interest- On facts, submission that the disqualification prescribed uls. 9A operates
only at the threshold thereby rendering a person ineligible
for contesting any election thus, the petitioner did not incur
any disqualification; and that disqualification operate only
B during the subsistence of the culprit contracts but not after
they ceased to subsist, cannot be accepted - Instant case
does not fall within the blanket ban on ttie /itigative challenges
to the electoral steps - Interim order granted by High Court
justified - Person aggrieved by a decision of the Governor
C u!Art. 192 can approach the High Court within the period
specified.
D
Dismissing the transferred case and disposing of
the SLP, the Court
HELD: 1.1 Acquisition of a disqualification
contemplated under Article 191 of the Constitution is an
incident which entails a legal consequence of rendering
the seat (occupied by such a Legislator who acquired
E the disqualification) vacant by operation of law. Article
192 only prescribes the forum and stipulates the
procec;lure for determination of the fact whether a
Legislator has incurred the disqualification. Article 192
does not provide for removal of a member from the
F Legislature by an action of the Governor. It only obligates
the Governor to decide whether a Legislator has incurred
anyone of the disqualifications mentioned in clause (1)
of Article 191. The vacancy occurs by virtue of
constitutional declaration contained in Article 190 clause
G (3). The removal takes place by virtue of the operation
of law on the happening of the event, that is, the
acquisition of a disqualification. The fact that the
disqualification uls. 9A of the Representation of the
H People Act, 1951 subsists only for a limited period of
time, makes no difference to the consequences flowing
ELECTION COMMISSION OF INDIA v. BAJRANG
69
BAHADUR SINGH & ORS.
from the occurrence of such disqualifying EVENT. [Paras A
33) {88-A-D]
1.2. The happening of any one of the disqualifying
EVENTS has the effect of making the seat occupied by
such a disqualified person vacant immediately by B
operation of law. The effect of the decision of the
Governor under Article 192 is only to decide whether a
legislator acquir~d the disqualification on a particular
date on the hiP.pening of one of the disqualifying
EVENTS contemplated u/s. 191. The consequence is that C
the legislator who acquires the disqualification ceases
to be a Member of the Legislature with effect from the
date of the acquisition of the disqualification. However,
the cessation of the disqualifying factor cannot put such
a person back in the legislature without his being elected D
once again, of course such person is entitled to contest
· any election under the R.P. Act, the moment the
·disqualifying factor ceases to exist as the
disqualification is co-terminus with the disqualifying
EVENT. [Para 34, 35, 37, 38] [90-F-G; 91-C-D]
E
1.3 The language of Section 9A which declares a
person shall be disqualified "if and for so long as there
subsists a contract", must be understood in the
background of the scheme of Chapter Ill of the R.P. Act. F
All other provisions except Sections 9A and 10 of the
Chapter prescribe a fixed tenure of disqualification and
make it co-terminus with the currency of the EVENT
which creates a disqualification. That tenure has nothing
to do with the duration of the currency of the event which G
brings about the legal consequence of disqualification.
Therefore, the clause "if and for so long as" in these
two provisions must be understood only to convey (in
the context of a Legislator who incurs a disqualification) H .
that he is not debarred from contesting any election
70
SUPREME COURT REPORTS
[2015) 6 S.C.R.
A under the Act including a bye-election arising as a direct
consequence of his vacating the seat in the Legislature
if the EVENT (the subsistence of which brought about
the consequence of disqualification) ceases to subsist
by the relevant date. The interpretation such as the one
B sought to be placed by the petitioner would amount to
Parliament nullifying the constitutional declaration
contained in Article 190(3) read with Article 191. [Para 43]
[92-C-G]
C
1.4 The purpose of Section 9A is to maintain the
purity of the legislature and to avoid conflict of personal
interest and duty of the legislators. It would be strange
logic that persons with a subsisting contract with the
government are perceived to be undesirable to become
D members of the legislature as there is a likelihood of
conflict between their duty as legislators, if elected and
their personal interest as contractors, but legislators can
enter into contracts with the government with impunity.
E [Para 53] [97-D-E]
1.5 The eyes cannot be closed to the reality of the
unwholesome influence which money power exerts on
the political system in this country. Any interpretation
of Section 9A which goes to assist a legislator who
F directly enters into a contractual relationship with the
State for deriving monetary benefits (in some cases of
enormous proportions) should be avoided and be given
a construction which as far as possible eliminates the
possibility of creating such situation where the duty is
G certainly bound to conflict with personal interest. The
expression 'office of profit' is that "it should be
interpreted with the flavour of reality bearing in mind
the object for enactment of Article 102(1 )(a), namely, to
H eliminate or in any event to reduce the risk of conflict
between the duty and interest amongst members of the
ELECTION COMMISSION OF INDIA v. BAJRANG
71
BAHADUR SINGH & ORS.
legislature by ensuring that the legislature does not have A
persons who receive benefits from the executive and may
thus, be amenable to its influence. [Para 56) [98-C-G]
1.6 The authority and jurisdiction of the High
. Courts u/Article 226 to adjudicate the disputes which B
are brought before them is a grant of the Constitution,
though such authority and jurisdiction have well known
limitations. Such limitations are self-imposed based on
the structure of the Constitution the distribution of the
functions of the various organs of the Constitution and C
other well established legal principles. The jnte!iference ---- -
of the High Court in exercise of the jurisdiction under
Article 226 with the issuance of notification for filling up
of casual vacancy in the Legislative Assembly of U.P.
(Pharenda constituency) arises out of an absolute D
necessity. The election is inextricably interlinked with
the legality of the decision of the Governor which
resulted in the declaration of the vacancy in the
Legislative Assembly representing the Pharenda
constituency. [Paras 61and65) [99-H; 100-A-B; 101-GE
H;102-A]
1.7 The decision of the Governor declaring that
the petitioner incurred a disqualification u/s. 9A is under
challenge before the High Court. That being the case, F
there· is always a possibility in a given case that the
decision of the Governor could be held to be
unsustainable. In the eventuality of such a conclusion
by the High Court, the Legislator who is unseated
consequent upon decision of the Governor under Article G
192 is entitled to continue as a Member of the Legislature
if the tenure to which he is elected still survives. But in
the meanwhile if a bye-election were to be held to fill up
the vacancy arising as a consequence of the decision H
of the Governor and in such an election if a person other
72
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A than unseated legislator gets elected, there would be a
very anomalous situation of two persons validly elected
to the same seat in the Legislature. Therefore, the case
on hand does not fall within the "blanket ban on the
litigative challenges to the electoral steps". The interim
B order granted by the High Court is perfectly justified.
However, the COMMISSION is under a statutory
obligation to hold a bye-election within a period of six
months from the date of the occurrence of the vacancy.
Any person aggrieved by a decision of the Governor
C under Article 192 must approach the High Court by
initiating appropriate proceedings, (if he is so desirous)
within the period specified. (Paras 66, 67, 68 and 70)
(102-B-C; 105-E-F]
D
E
F
G
H
Election Commission India v. Saka Venkata Subba
Rao (1953) 4 SCR 1144; P.V Narasimha Rao v. State
(CBI/SPEC) 1998 (2) SCR 870: (1998) 4 sec 626;
Prakash Khandre v. Dr. Vijay Kumar Khandre & Others
2002 !~) SCR 994 : (2002) 5 SCC 568; Konappa
Rudr_appa Nadgouda v. Vishwanath Reddy & another
AIR 1969 SC 447: 1969 SCR 395; Shrikant v.
Vasantrao and Others 2006 (1) SCR 496 : 2006 (2)
SCC 682; Madhukar G.E. Pankakar v. Jaswant
Chobbildas Rajani & others 1976 (3) SCR 832 : (1977)
1 SCC 70; M. V Rajashekaran & Others v. Vatal Nagaraj
& Others 2002 (1) SCR 412 : (2002) 2 sec 704;
Ashok Kumar Bhattacharyya v. Ajoy Biswas 1985 (2)
SCR 50 : (1985)1 SCC 151; Shrikant v. Vasantrao &
others 2006 (1) SCR 496 : (2006) 2 sec 682; N.P.
Ponnuswami v. Returning Officer, Namakkal
Constituency & Others (1952) 3 SCR 218; Mohinder
Singh Gill & another v. The Chief Election
Commissioner, New Delhi & others 1978 (2) SCR 272:
(1978) 1 sec 405- referred to.
ELECTION COMMISSION OF INDIA v. BAJRANG
73
BAHADUR SINGH & ORS.
Case Law Reference
(1953) 4 SCR 1144
Referred to
Para 6
1998 (2) SCR 870
Referred to
Para 29
2002 (3) SCR 994
Referred to
Para 48
1969 SCR 395
Referred to
Para 50
2006 (1) SCR 496
Referred to
Para 51
1976 (3) SCR 832
Referred to
Para 54
2002 (1) SCR 412
Referred to
Para 54
1985 (2) SCR 50
Referred to
Para 56
2006 (1) SCR 496
Referred to
Para 58
(1952) 3 SCR 218
Referred to
Para 62
1978 (2) SCR 272
Referred to
Para 62
CIVIL APPELLATE JURISDICTION : SLP (Civil) No.
8850 of 2015.
From the Judgment and Order dated 20.03.2015 of the
High Court of Judicature atAllahabad in Writ-C No. 14270 of
A
B
c
D
2015.
E
WITH
T.C. (C) No. 60 OF 2015.
Meen8ikshi Arora, Harin P. Raval, S. K. Mehdiratta,
F
Neeraj Kumar, Mohit D. Ram, Prashant Kumar, Saurabh S.
Sinha, Subramanium Prasad, Joseph Pookkatti,Avdhesh Kr.
Singh, Anish Kumar Gupta, Ravi Prakash Mehrotra, Abhinav
K. Malik for tll~ appearing parties.
The Judgment of the Court was delivered by
CHELAMESWAR, J. 1. One Bajrang Bahadur Singh
respondent no. 1 in SLP(C) No. 8850/2015 and the petitioner
G
in Transferred Case No. 60/2015 (hereinafter being referred
H
74
SUPREME COURT REPORTS
[2015) 6 S.C.R.
A to as the petitioner for the sake of convenience) contested in
the general elections held in the year 2012 to the UP Legislative
Assembly from 315 Pharenda Assembly Constituency. On
6.3.2012, he was declared elected.
B
2. On 29.1.2015, the Governor of Uttar Pradesh made
a declaration in exercise of the authority conferred under
Article 192 of the Constitution of India that the petitioner
incurred the disqualification stipulated under Section 9A of
the Representation of the People Act, 1951 (hereinafter
C referred to as "the R.P. Act"). Such a declaration came to
be made on an undisputed finding of fact that the petitioner
entered into four contracts (hereinafter referred to as the
CULPRIT CONTRACTS for the sake of convenience) with
0
the State of U.P. sometime in the year 2013 after his election
to the Legislative Assembly and performed his obligations
arising under the said contracts.
The Governor made the following order on
E 29.01.2015:
F
G
Therefore, I, Ram Naik, Governor, Uttar Pradesh, upon
exercising the powers under Article 192(1) of the
Constitution of India hereby declare that Shri Uma
Shankar Singh from 06.03.2012 and Shri Bajrang
Bahadur Singh from 15.10.2012 have become
disqualified from the membership of Uttar Pradesh
Legislative Assembly.
(Original in Hindi, translated by Court staff)
3. As a consequence of the above-mentioned decision
of the Governor, a notification came to be issued by the
Secretariat of the Legislative Assembly on 17 .2.2015 stating
that a seat occupied by the petitioner representing 315
H PharendaAssembly Constituency fell vacant. On 10.3.2015,
ELECTION COMMISSION OF'fNDIA v. BAJRANG
75
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
the Election Commission of India (hereinafter referred to as A
"COMMISSION" forthe sake of convenience) issued a press
note by which the election schedule for filling up 7 casual
vacancies in 7 different Assembly constituencies in four
different States was announced, one of them being 315
Pharenda Assembly Constituency.
B
4. On 13.3.2015, the petitioner filed a writ petition
challenging the decision of the Governor dated 29.01.2015
and sought various reliefs. On 17.3.2015, a notification under
Section 150( 1) of the R. P. Act came to be issued by C
COMMISSION notifying, inter alia, the election to fill up 315
Pharenda Assembly Constituency. Thereupon, on an
application by the petitioner, the High Court of Allahabad
passed an interim order on 20.3.2015 - staying the election
process to the above-mentioned constituency.
D
5. Aggrieved by the said interim order, the
COMMISSION moved SLP(C)No. 8850/2015.
On
23.3.2015, notice was issued and also an interim suspension
of the impugned order of the High Court was granted.
E
However, by subsequent order dated 30.3.2015, for reasons
recorded therein, this Court thought it fit to withdraw the writ
petition filed by the petitioner to this Court and also to keep
the notification dated 17.3.2015 in abeyance.
6. Learned Senior Counsel forthe petitioner Mr. Harish
Raval made two principal submissions:
(i) that the disqualification prescribed under Section
F
9A of the R.P. Act operates only at the threshold
G
thereby rendering a person ineligible for contesting
any election contemplated in the R.P. Act. In other
words, Section 9A prescribes only a disqualification
for a person seeking to contest an election -
described by this Court in the case of Election
H
76
A
B
c
D
E
SUPREME COURT REPORTS
[2015] 6 S.C.R.
Commission India v. Saka Venkata Subba Rao,
(1953) 4 SCR 1144 as "existing disqualification" but
it does not render a legislator disqualified from
continuing as such on the ground that such legislator
subsequent to his election entered into a contract with
the appropriate government. Therefore, the petition
did not incur any disqualification.
(ii)
Even if the petitioner is to be held to have incurred
a disqualification, such disqualification ceased to
exist, the moment petitioner discharged his
obligations arising out of the CULPRIT
CONTRACTS.
Therefore, he cannot be held to
be ineligible for continuing as a member of the
legislature on a true and proper interpretation of
Section 9AoftheAct. In other words, a declaration
such as the one made by the governor of U. P. on
29.1.2015 could have been made and operate only
during the subsistence of the CULPRIT
CONTRACTS but not after they ceased to subsist.
7. On the other hand, Ms. Meenakshi Arora, learned
senior counsel for the COMMISSION submitted that
disqualification contemplated under Section 9A takes within
its sweep both "pre-existing" and "supervening" contracts.
F There is no warrant to give a restricted interpretation to the
language of Section 9A, such as the one suggested by the
learned counsel for the petitioner. Therefore, the Governor's
decision cannot be faulted. The interpretation sought to be
placed on Section 9A by the learned counsel runs directly
G contrary to the purpose sought to be achieved by the
provision.
8. Learned counsel also submitted that the decision
of the Governor is rendered in exercise of the authority
H conferred under Article 192 of the Constitution on the question
ELECTION COMMISSION OF INDIA v. BAJRANG
77
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.)
whether a member of the legislature "has become subject to A
any disqualification",. By a constitutional declaration under
the said Article, the same 'shall be final'. The correctness of
such a decision though is amenable to judicial review, such a
review is possible only on a few limited grounds as expounded
and settled by this Court. The petitioner's case does not fall
B
within the ambit of such permissible judicial review.
9. Another important question that arises in this matter,
is, the legality and propriety of the High Court's interim order
dated 20.3.2015, whether the High Court was acting within C
its jurisdiction when it intercepted the election process after
the issuance of a notification under Section 150( 1) of the
Act calling upon the constituency fo elect its representative,
in view of the prohibition contained in Article 329(b) of the
Constitution of India. The details of the submissions will be D
considered later in this judgment.
10. Before we examine the correctness of the rival
submissions, we deem it appropriate to examine the scheme
of the relevant provisions of the Constitution and of the R.P.
E
Act.
11. The Constitution of India declares that there shall
be a bi-camera I legislature at the national level. In so far as
States are concerned, Article 168 of the Constitution declares F
that certain States specified therein shr have a bi-camera!
legislature and the remaining States shall have a legislature
consisting of onlY_ one House.
Article 168- Constitution of Legislatures in States-
(1) For every State there shall be a Legislature which
shall consist of the Governor, and
(a) in the States of Andhra Pradesh, Bihar,Maharashtra,
Karnataka, Tamilnadu and Uttar Pradesh, two
G
H
78
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
Houses:
B
(b) in other States, one House.
(2) Where there are two Houses of the Legislature of a
State, one shall be known as the Legislative Council and
the other as the Legislative Assembly, and where there
is only one House, it shall be known as the Legislative
Assembly."
Elaborate provisions are made in the Constitution
C regarding the composition of these bodies, the periodicity
with which the election to these bodies are to be conducted,
the qualifications and disqualificati~ns for seeking the
membership of any one of these bodies and matters
incidental thereto.
D
12. Article 173 of the Constitution prescribes that
persons seeking to become members of the legislative
bodies must possess certain qualifications. Any person who
doesn't possess the qualifications mentioned in Article 173
E is declared not to be qualified "to be chosen to fill a seat in
the legislature of a State". Briefly stated to become a member
of the State legislature, a person must be (i) a citizen of
India, (ii) must be of the minimum age specified (iii) must
F subscribe to an "oath of faith and allegianc.e". Article 173
also postulates that a person seeking election to the
legislature of the State is required to possess such other
qualifications as may be prescribed by or under any law made
by the Parliament.
G
H
"Article 173. Qualification for membership of the State
Legislature - A person shall not be qualified to be
chosen to fill a seat in the Legislature of a State unless
he-
(a)
is a citizen of India, and makes and
ELECTION COMMISSION OF INDIA v. BAJRANG
79
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
subscribes before some
person authorised in
A
that behalf by the Election Commission an oath or
affirmation according to the form set out for the
purpose in the Third Schedule;
(b) is, in the case of a seat in the Legislative
B
Assembly, not less than twenty-five years of age
and in the case of a seat in the Legislative Council,
not less than thirty years of age; and
c) possesses such other qualifications as may be
c
prescribed in that behalf by or under any law made
by Parliament."
13. Article 191 stipulates certain persons to be
disqualified for "being chosen as and for being" a member 0
of the Legislature. It reads as follows:-
"Article 191. Disqualifications for membership- (1) A
person shall be disqualified for being chosen as, and
for being, a member of the Legislative Assembly of
Legislative Council of a State-
(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
E
than an office declared by the Legislature of
F
the State by law not to disqualify its holder;
(b)
if he is of unsound mind and stands so
declared by a competent court;
(c)
if he is an undischarged insolvent;
d)
if he is not a citizen of India, or has voluntarily
acquired the citizenship of a foreign State,
or is under any acknowledgement of
allegiance or adherence to a foreign State;"
G
H
80
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
e)
if he is so disqualified by or under any law
made by Parliament."
14. It can be seen from Article 191 that under clauses
(a) to (d) of sub-Article (1 ), the Constitution itself prescribes
B certain conditions which render a person disqualified for the
membership of the Legislature. Whereas clause (e)
authorises the Parliament to prescribe by law other conditions
which render persons disqualified for membership of the
c
Legislature.
15. The R.P. Act, 1951 under Chapter II prescribes
certain additional qualifications for membership of the state
Legislature in certain cases. Such prescription is referable
to Article 173(c).
Section 5 prescribes qualifications for
o filling up a seat in a State Legislature which is reserved in
favour of Scheduled Castes and Scheduled Tribes. Such
reservation is mandatory under the Constitution'.
16. Chapter Ill prescribes the disqualifications for the
E ·membership of the legislature. Section 8 declares that
persons convicted of any one of the offences enumerated in
Section 8 are disqualified. It further provides that upon such
conviction, if the convict is sentenced only to fine the
disqualification is for a period of 6 years running from the
F date of such conviction. On the other hand, if the convict is
sentenced to imprisonment, such disqualification runs from the
date of such conviction and continues for a further period of 6
years after the release of the convict from jail.
G
"Section 8. Disqualification on conviction for
certain offences. -(1 )A person convicted of an offence
punishable under -
xxxx
xxxx
xxxx
xxxx
H
1 See Articles 330 and 332
ELECTION COMMISSION OF INDIA v. BAJRANG
81
•
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
shall be disqualified, where the convicted person is
A
sentenced to -
(i)
only fine, for a period of six years from the date of
such conviction;
(ii)
imprisonment, from the date of such conviction and
B
shall continue to be disqualified for a further period
of six years since his release."
17. Sub-section (2) of Section 8 makes a special
provision regarding the period of disqualification on the basis c
of (i) the offences specified under sub-section (2) and (ii)
the term of imprisonment to which a convict is sentence,d.
"8(2) A person convicted for the contravention of-
( a) any law providing for the prevention of hoarding or
o
profiteering;
or
(b) any law relating to the adulteration of food or drugs;
or
E
(c) any provisions of the Dowry Prohibition Act, [1961
(28of1961)
and sentenced to imprisonment for not less than six
months, shall be disqualified from the date of such
F
conviction and shall continue to be disqualified for a
further period of six years since his release."
18. Section BA prescribes the disqualification on the
ground of corrupt practices. The period of disqualification G
may extend to a maximum of 6 years. Section 9 stipulates
the disqualification for dismissal of a person from the service
of the Union of hldia or the State or on the ground of disloyalty
or corruption, the period of disqualification being 5 years from
the date of the dismissal.
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A
19. Section 9A is relevant in the context of the present
case and it reads as follows:-
"Section 9A. Disqualification for Government
contracts, etc.-A person shall be disqualified if, and for
s
so long as, there subsists a contract entered into by him
in the course of his trade or business with the appropriate
Government for the suppl:,· of goods to, or for the
executions of any works, undertaken by that Government.
c
Explanation-For the purposes of this section, where
a contract has been fully performed by the person by
whom it has been entered into with the appropriate
Government, the contract shall be deemed not to subsist
by reason only of the fact that the Government has not
D
performed its part of the contract either wholly or in part."
20. Section 102 stipulates a disqualification which
subsists only so long as the disqualifying EVENT subsists and
it is similar to Section 9A in its operation.
Section 1 OA3
E prescribes a disqualification which last for three years from
the relevant date. We are not really concerned with other details
of Chapter Ill except Section 11' which empowers the Election
F
2 1 o. Disqualification for office under Governrnent company - A person shall be
disqualified if, and for so long as, he is a managing agent, manager or secretary of any
company or corporation (other than a co-operative society) in the capital of which the
appropriate Government has r.ot less than twenty-five per cent share.
3 10A. Di'squalification for failure to lodge account of election expenses - If the
Election Commission is satisfied 1: 1t a person -
(a) has failed to lodge an account of election expenses, within the time and in
the manner required by or under this Act, and
G
(b) has no good reason or justification for the failure,
the Election Commission shall, by order published in the Off1c1al Gazette,
declare him to be disqualified and any such person shall be disqualified for a r·eriod of
three years from the date of the order
d 11. Ren1oval or reduction of period of disqualification. -The Eler:tion Commission
may, for reasons to be recorded, remove any disqualification under this Chapter 1 (except
·.1.:J~r sectior. BA) or reduce the oeriod of ar1y such disqualification.
ELECTION COMMISSION OF INDIA v. BAJRANG
83
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
Commission to remove any disqualification under the Chapter A
except the disqualification prescribed under Section 8/4.. It
also authorises the Election Commission to reduce the period
of any such disqualification notwithstanding the fact that period
of disqualification is fixed under the various other provisions
8
of the Chapter.
21. Article 192 stipulates that if any question arises as
to whether a member of the Legislature of a State "has become
subject to any disqualification" mentioned in clause 1 of Article C
191, such a question is required to be referred to the decision
of the Governor. The Article also declares that the decision of
the Governor shall be final. Sub Article (2) obligates the
Governor to obtain the opinion of the Election Commission D
before giving any decision. Article 192 reads as follows:-
"Article 192. Decision on questions as to
disqualifications of members- (1) If any question
arises as to whether a member of a House of the
E
Legislature of a State has become subject to any of
the disqualifications mentioned in clause (1) of article
191, the question shall be referred for the decision
of the Governor and his decision shall be final.
(2)
Before giving any decision on any such
question, the Governor shall obtain the opinion of
the Election Commission and shall act according to
such opinion."
22. The scope of authority of the Governor acting under
Article 192 first fell for the consideration of this Court in the
F
G
H
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[2015) 6 S.C.R.
A case of Saka Venkata Subba Rao (supra)5.
B
c
D
E
F
By a unanimous decision of a Constitution Bench of
this Court, itwasheld:-
"16. For the reasons indicated we agree with the learned
Judge below in holding that Articles 190 (3) and 192 (1)
are applicable only to disqualifications to which a member
becomes subject after he is elected as such, and that
neither the Governor nor the Commission has jurisdiction
to enquire into the respondent's disqualification which
arose long before his election."
23. This Court took note o( the fact that a person can
incur any one of the disqualifications contemplated in Article
191 either before the election or after the election - elegantly
classified by the then Attorney General M.C. Setalvad as "preexisting disqualifications" and "supervening disqualifications".
24. Dealing with the scope of Article 192, this Court
concluded that the authority of the Governor to examine the
question of disqualification extended only to the 2nd of the
above-mentioned two categories of disqualification i.e., the
supervening disqualifications acquired subsequent to the
election of a person to the Legislature.
25. In the case on hand, the disqualification if any is
5 Subba Rao was convicted by the Sessions Court and sentenced to a term of 7 years
rigorous imprisonment in the year 1942 and released on the occasion of the celebration
of Independence Day on 151h August, 1947, he desired to contest in the election held in
1952 to Kakinada Legislative Assembly in the erstwhile Madras Legislative Assembly.
G
As he was under a disqualification having had suffered imprisonment, he made an
application under Section 11 to the Election Comm1ssion seeking an exemption.
As there was no response from the Election Commission, he went ahead and filed his
nomination and contested the election successfully. He took his seat in the Legislative
Assembly. In the interregnum between the date of the nomination and the declaration
oftht: election of the respondent, the Election Commission had rejected the respondent's
application seeking exemption. On receipt of the communication from the Election
Commission, the Speaker referred the matter to the Governor for his decision under
H
Article 192. At that stage, the respondent approached the High Court challenging the
competence of the reference of the Speaker.
ELECTION COMMISSION OF INDIA v. BAJRANG
85
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
only supervening disqualification. As we already noticed, that A
all the relevant facts on the basis of which the petitioner is
declared disqualified are facts which occurred subsequent to
the election of the petitioner. Therefore, the Governor
necessarily has the authority to examine the question.
B
26. The issue before us is not really whether the
Governor has necessary authority in law to examine the
question of disqualification of the petitioner herein. The
question is whether CULPRIT CONTRACTS render the
petitioner disqualified from continuing to be a member of the C
legislative assembly.
i
27. In support of the 1st submission that Section 9A
does not prescribe any supervening disqualification, Shri
Rawal emphasised on the language of Section 9A more D
particularly the clause which says "for so long as there
subsists a contract. ..... ". According to the learned counsel,
the Legislature never contemplated that any person who
enters into contractual relationship with the Government
either to supply goods or for execution of any works E
undertaken by the Government be eternally disqualified for
contesting an election to the Legislature. The disqualification
subsists only so long as the contract subsists. The moment
the contract ceases to subsist the disqualification also ceases
F
to exist.
It is therefore, submitted that if the construction
suggested by the petitioner is not accepted, Section 9A would
lead to a situation that a legislator who enters into a contract
with the government which subsists only for a fraction of the
tenure of the legislator would deprive a validly elected legislator G
his right to be a legislator even for that period for which he
suffers no disqualification. Therefore, the Section must be
interpreted to cover only the pre-existing disqualifications. It
is further submitted that the language of Section 9A in contradistinction to the language of Article 191 (1)6 does not specify H
6 ~disqualified for being chosen as and for being"
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SUPREME COURT REPORTS
[2015] 6 S.C.R.
A whether the disqualification under the Section takes within its
sweep the events which occur subsequent to the election.
28. On the other hand, Ms. MeenakshiArora submitted
that a person acquires the disqualification the moment he
B enters into a contract with the government by virtue of the
operation of law i.e., Article 190(3).7 As a sequel the seat
occupied by such legislator falls automatically vacant. Article
192 only prescribes the forum and procedure for the
adjudic:ation of the question whether any one of the events
C contemplated under Article 190(1) took place. The argument
of the petitioner is nottenable.
29. In support of the submission, learned counsel relied
on the judgment of this Court in P. II. Narasimha Rao ~~ State
D (CBI/SPEC), (1998) 4 sec 626.
30. The main questions which were debated by this
Court in that case were (i) whether a member of the
Parliament is a public servant within the meaning of Section
E 2(c) of the Prevention of Corruption Act, 1988, and, therefore,
whether any sanction was required for prosecuting such a
person under the said Act, (ii) if sanction is required, who is
the competent authority to grant the sanction.
It is in that
context, this Court considered the scope of Articles 101, 102
F and 103 which were substantially similar to Articles 190 to 192.
31. We now examine the 1" submission of the petitioner.
7 "(3) If a men1ber of a House of the Legislature of a State.-
(a)
becomes a subject to any of the disquaiifications mentioned in
clause (1) or clause {2) of article 191
G
(b)
resigns his seat by writing under his hand addressed to the Speaker
or the Chairman, as the case may be, and his resignation is accepted by the Speaker or
the Chairman, as the case.n:i~y be,
his seat shall thereupon become vacant.
Provided that in the case of any resignation referred to .in sub-clause (b). if from information received or otherwise and after n1aking such inquiry as he thinks fit, the Spea
ker or the Chairman, as the case may be, is satisfied U1at such resignation is not volun·
H
tary or genuine, he shall not accept such resignation"
ELECTION COMMISSION OF INDIA v. BAJRANG
87
BAHADUR SINGH & ORS. [J. CHELAMESWAR, J.]
The logic of the petitioner is that disqualifications prescribed
A
unde,· Sections 8, 9, 1 OA of the R.P. Act run for a statutorily
fixed time frame which is totally unrelated to the duration of the
disqualifying EVENT. Whereas for the disqualification under
Section 9A, the period of disqualification is co-terminus with
subsistence of the contract (the disqualifying event). Therefore,
B
the submission: if the interpretation of the petitioner is not
accepted in a case such as the one at hand though the
disqualification subsists only for a limited period i.e. a fraction
of the tenure of the legislator, the same would have the effect
of terminating the membership of the Legislator even for that C
period during vyhich there is no subsisting contract.
32. In our opinion, the submission of the petitioner
overlooks the language of Article 190 sub-clause (3). It reads
as follows:-
D
(3) "If a member of a house of the Legislature of a State-
( a) becomes subject to any of the disqualifications
mentioned in clause (1) or clause (2) of Article 191; or
E
(b) .. ·················
his seat shall thereupon become vacant."
33. It can be seen from the language of the sub-section
F
(3) that if a member of a House of the Legislature becomes
subject to any of the disqualifications mentioned in clause(1)
or clause (2) of Article 191, his seat shall thereupon become
vacant. In other words, the vacancy occurs the moment a
person incurs the disqualification by operation of law. The G
duration of the currency of the disqualifying EVENT is irrelevant.
While Article 191 deals with the disqualifications for two classes
of people (I) those who are aspiring to be the members of the
Legislature (ii) those who are already Members of the
Legislature, Article 190(3) deals only with the vacation of the
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88
SUPREME COURT REPORTS
[2015] 6 S.C.R.
A
seats by the members of the Legislature - therefore, applicable
only to the 2"d of the two classes covered by Article 191.
Acquisition of a disqualification contemplated under Article 191
is an incident which entails a legal consequence of rendering
the seat (occupied by such a Legislator who acquired the
B disqualification) vacant by operation of law. Article 192 only
prescribes the forum and stipulates the procedure for
determination of the fact whether a Legislator has incurred the
disqualification. As pointed out by this Court in Narasimha
Rao's case (supra), Article 192 does not provide for removal
C of a member from the Legislature by an action of the Governor.
The removal takes place by virtue of the operation of law on
the happening of the event, that is, the acquisition of a
disqualification. The fact that the disqualification under Section
0
9A subsists only for a limited period of time in our view makes
no difference to the consequences flowing from the occurrence
of such disqualifying EVENT.
34. Each one of the events contemplated under the
various clauses of Article 191 (1) can subsist for a limited
E period of time depending upon the facts and circumstances
of the case. For example, under clause( a), the holding of office
of profit specified therein renders a person disqualified. Goes
without saying, the tenure of such an office of profit may differ
F from case to case. Under clause (b), a person who is of
unsound mind and stands so declared by a competent Court
is disqualified. The event which renders a person disqualified
has two components in it. (i) a person must be of unsound
mind and (ii) stands so declared by competent Court. It is only
G on the happening of both the events, such a person becomes
disqualified. But there is nothing in nature that a person who
is of unsound mind and declared so by a competent Court
need to continue in the same state of mind forever. It is possible
in some cases that with appropriate medical treatment, that
H unsoundness of mind could be cured and on proof of the same,
ELECTION COMMISSION OF INDIA v. BAJRANG
89
BAHADUR SINGH & ORS. (J. CHELAMESWAR, J.]
an appropriate declaration from the competent Court revoking A
the earlier declaration can always be obtained upon such
declaration, the disqualification ceases.