Reportable

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. 448 OF 2006

Consumer Education & Research Society                       ….Petitioner

Versus

Union of India & Ors.                             ...Respondents WITH

WRIT PETITION (CIVIL) NO. 411 OF 2006

J U D G M E N T

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  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 thereof for  

being chosen as, or for being the Members of Parliament.

Historical background  

2. The expression ‘Office of Profit’ is not defined in the Constitution. The view  

that certain offices or positions held by 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  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” 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 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 Crown  

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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 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 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 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 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 in 1919 and 1926  

required any Member who was appointed to a ‘political office’ to seek re-election.  

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3. As  we  have  adopted  the  British  Parliamentary  form of  Government,  the  

concept  of  ‘office  of  profit’  was  also  adopted  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 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 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 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 said Act provided:

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“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  offices of profit under the Government of India or the Government of any  State,  namely,  an  office  of  Minister  of  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  (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.

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 to consider the manner in which a comprehensive legislation 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 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  

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government of any State, shall disqualify the holder thereof for being chosen as, or  

for being, a Member of Parliament:

“(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 Parliament;

(ab) the office of Deputy Chairman, Planning Commission;

(ac) the office of each leader and deputy leader of a recognized party and  recognized group in either House of Parliament;

(b) the office of Chief Whip. Deputy Chief Whip or Whip in Parliament  or of a Parliamentary Secretary;

(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 1992);

(ii) the National Commission for the Scheduled Castes  and Scheduled Tribes constituted under clause (I) of  

article 338 of the Constitution;

(iii) the National Commission for Women constituted  under  Section  3  of  the  National  Commission  for  

Women Act, 1990 (20) of 1990;

(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);

(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 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;

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(g) the office of a member of any delegation or mission sent outside  India by the Government for any 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 Government or any other authority in respect  of any matter of public importance or for the purpose of making an  inquiry into, or collecting statistics in respect of, any such matter, if  the holder of such office is not entitled to any remuneration other  than 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 office is not entitled to any remuneration  other 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 Schedule;

(j) the  office  of  village  revenue officer,  whether  called  a  lambardar,  malguzar, patel, deshmukh or by any other name, whose duty is to  collect  land  revenue  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 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 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  

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holding an ‘office of profit’. That order was challenged before this Court in Jaya  

Bachan v. Union of India,  (2006) 5 SCC 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  (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 for his  

assent on 25th May, 2006.  The President returned the Bill on 30th May, 2006 to the  

Parliament for reconsideration 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  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:

“(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;”

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Section 2 of Amendment Act also inserted after clause (j) 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 or Member (by  whatever  name  called)  in  any  statutory  or  non-statutory  body  specified in the Table;

(l) 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  law  relating  to  registration  of  societies,  not  being  a  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 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 or tribunal or any  order or opinion of any other authority, the offices mentioned in clauses (ad),  (k), (l) 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 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 (l) shall be construed as to entire any  person who has  vacated  a  seat  owing to  any order  or  judgment,  as  aforesaid, to claim any reinstatement or any other claim in that behalf.

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(3) For the removal of doubts, it  is hereby clarified that any petition or  reference pending before any court 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.”  

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  of  India)  which  deal  with  the  disqualification  of  Members  of  

Parliament.  Article  101  enumerates  the  circumstances  in  which  the  seats  of  

Members of Parliament will become vacant. Portions of Article 101 are extracted  

below:  

“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 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 vacant, unless he has previously  resigned his seat in the Legislature of the State.

(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 accepted by the Chairman or the Speaker, as the  case may be.

his seat shall thereupon become vacant:”

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Article  102  enumerates  the  various  disqualifications  for  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 Parliament-

(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;

(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 acknowledgment  of  allegiance or adherence to a foreign State;

(e) If he is so disqualified by or under any law made 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 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 the Tenth Schedule.”

[emphasis supplied]

Article 103 deals with the procedure to be followed in case a 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:

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“103. Decision on questions as to disqualifications of members  

(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. (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.”

“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 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 due to the Union.”

The corresponding provisions relating to disqualification of members of the State  

Legislature  are  Articles  190,  191,  192  and  193.  They  correspond  to  and  are  

substantially  similar  to  Articles  101,  102,  103 and 104 which are  applicable to  

Parliament.

10. Article 102(1)(a) lays down that a Member of either 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  of  the  disqualifications  

mentioned in Article 102(1), his seat shall thereupon become vacant. Article 103  

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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 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  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 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  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 of  

Parliament. Hence , it was reasoned that a person holding such office of profit, was  

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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 office of profit, when they were  

elected) and on the day they 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  incurring  a  constitutional  disqualification,  his/her  

membership  cannot  be  revived  by  enacting  a  legislation  which  retrospectively  

removed the applicable disqualification. According to the petitioner, a legislation  

retrospectively removing the disqualification will help a person to continue to be a  

Member, 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  on  account  of  incurring  a  constitutional  disqualification,  any  

legislative  attempt  to  revive  the  membership  of  the  Member  whose  seat  had  

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  

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been given to its 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  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 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  ‘office’  would be exempted.  It  was  

contended  that  the  said  constitutional  convention  which  has  been  followed for  

more than 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 colourable  

legislation which violated a well established constitutional convention. It was also  

contended that the provisions of the impugned legislation violated the guarantee of  

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“equality before law and equal protection of the laws” that has been enshrined in  

Article  14  of  the  Constitution.  It  was  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 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. In response to the first contention, it was submitted that the power of  

Parliament to enact a law declaring with retrospective effect that certain offices of  

profit will not disqualify the holder from being chosen as, and for being a Member  

of Parliament has already been upheld by this court in Srimati Kanta Kathuria v.   

Manak  Chand  Surana, (1969)  3  SCC  268.  It  was  further  submitted  that  a  

Member’s  seat  would  become  vacant,  not  at  the  point  of  accepting  the  

disqualifying  office  of  profit,  but  after  the  President  of  India  has  decided  and  

declared  under  Article  103(1)  of  the  Constitution,  with  the  aid  and  advice  of  

Election  Commission  of  India,  that  the  Member  had  incurred  the  alleged  

disqualification. Hence it was contended that till such a decision by the President, a  

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Member  who  is  alleged  to  have  incurred  a  disqualification  continues  to  be  a  

Member. It was submitted that since there was no declaration of disqualification by  

the President and because the Amendment Act had retrospectively removed the  

disqualifications, the seats of Members (who had accepted the disqualifying office  

of  profit)  did  not  fall  vacant.  Reference  was  made  to  section  4(2)  of  the  

Amendment  Act  which  makes  it  clear  that  nothing  contained  in  sub-  

section (1) thereof, shall be construed as to entitle any person who has vacated a  

seat owing to any order or judgment as aforesaid, to claim any reinstatement or any  

other claim in that behalf. It was submitted that no Member who held an office of  

profit  in respect  of which the  grounds for disqualification was removed by the  

Amendment Act, would incur disqualification and consequently all of them would  

continue to be Members and their seats did not fall vacant under Article 101(3).  

14. The respondents  also contended that  the  Amendment  Act did  not  violate  

Article 14. They submitted that the past practice of seeking the opinion of a Joint  

committee on any proposal to add to the list of exempted offices of profit cannot be  

described as ‘Constitutional Convention’. It was submitted that even if there was  a  

practice of referring such questions to a Joint Committee, the same cannot denude  

the power of Parliament to make a law under Article 102(1)(a) of the Constitution.  

17

15. The  aforesaid  contentions  give  rise  to  the  following  questions  for  

consideration by this Court:  

(i) Whether the Amendment  Act retrospectively exempting certain offices of  profit from disqualification, violates Articles 101 to 104 of the Constitution  and is therefore invalid?

(ii) Whether exemption of as many as 55 offices relating to statutory bodies/non- statutory bodies, without referring the proposal to the Joint Committee would  render  the  Amendment  a  colourable  legislation  which  violated  any  ‘constitutional convention’ or Article 14 of the Constitution ?  

Re : Question (i)

16. The question of whether a law can be made retrospectively to remove the  

disqualification incurred on account of holding offices of profit is no longer  res  

integra. This Court in  Srimati Kanta Kathuria  (supra)  has clearly laid down that  

the power of Parliament to enact a law under Article 102(1)(a) includes the power  

of Parliament to enact such law retrospectively.  In that case, the appellant Mrs.  

Kanta  Kathuria,  an  Advocate  practicing  at  Bikaner  was  appointed as  a  Special  

Government Pleader. She was subsequently elected to the Rajasthan Legislative  

Assembly.  The respondent therein challenged her election alleging that she was  

disqualified to be chosen as a Member of the Legislative Assembly since she held  

the office of Special Government Pleader, which was an office of profit under the  

Government of Rajasthan. The High Court accepted the contention and allowed the  

Election Petition. The elected candidate preferred an appeal to the Supreme Court  

18

on  August  2,  1968.   During  the  pendency  of  the  appeal,  The  Rajasthan  State  

Legislature  passed the Rajasthan Legislative Assembly  Members (Prevention of  

Disqualification)  Act,  1969  which  removed  the  disqualification  that  had  been  

applicable  to  Government  pleaders,  Government  Advocates  and  Special  

Government Pleaders with retrospective effect. The respondent contended that the  

Rajasthan  State  Legislature  was  not  competent  to  remove  the  disqualification  

retrospectively.  Two  opinions  were  delivered  –  one  by  Hidayatullah.C.J.  (for  

himself and Mitter J), and another by Sikri, J, (as he then was) (for himself, Ray, J.  

and Jaganmohan Reddy, J) since there was a difference of opinion on the question  

whether,  on the date of her election, the appellant held an office of profit.  The  

minority view was that she did, whereas the majority view was that she did not.  

However, there was unanimity in respect of the finding that the state legislature  

was competent to enact a law for the purpose of removing the disqualification with  

retrospective effect. Hidayatullah, C.J. had made the following observations in the  

majority opinion (at Para. 26, 40 and 43 respectively):  

“… In other words, the Legislature of a State is empowered to declare that an  office of profit of a particular description or name would not disqualify its  holder.” (Para. 26)    “…  It  has  been  held  in  numerous  cases  by  this  Court  that  the  State   Legislatures  and  Parliament  can  legislate  retrospectively  subject  to  the   provisions of the Constitution. Apart from the question of fundamental rights,  no express restriction has been placed on the power of the Legislature of the  State, and we are unable to imply, in the context, any restriction.” (Para. 40)  

19

“… The apprehension that it may not be a healthy practice and this power  might be abused in a particular case are again no grounds for limiting the  powers of the State Legislature.” (Para. 43)  

          (emphasis supplied)

The minority concurred and held as follows (Sikri, J. at Para. 12 and 13):

“12. At the hearing our attention was drawn to a number of such Acts passed  by our Parliament and the Legislatures of the States. It seems that there is a  settled legislative practice to make validation laws. It is also well-recognised  that Parliament and the Legislatures of the States can make their laws operate  retrospectively.  Any law that can be made prospectively may be made with   retrospective  operation  except  that  certain  kinds  of  laws  cannot  operate   retroactively. This is not one of them.

13. This position being firmly grounded we have to look for limitations, if  any,  in the Constitution. Article 191 (which has been quoted earlier) itself  recognises the power of the Legislature of the State to declare by law that the  holder of an office shall not be disqualified for being chosen as a member.  The Article says that a person shall be disqualified if he holds an office of  profit under the Government of India or the Government of any State unless  that office is declared by the Legislature not to disqualify the holder. Power is  thus reserved to the Legislature of the State to make the declaration. There is   nothing in the words of the article to indicate that this declaration cannot be   made with retrospective effect. It is true that it gives an advantage to those  who stand when the disqualification was not so removed as against those who  may have kept themselves back because the disability was not removed. That  might raise questions of the propriety of such retrospective legislation but not  of  the  capacity  to  make  such  laws.  Regard  being  had  to  the  legislative  practice  in  this  country  and  in  the  absence  of  a  clear  prohibition  either  express or implied we are satisfied that the Act cannot be declared ineffective  in its retrospective operation.”  

(emphasis supplied)

17. In  Indira  Nehru  Gandhi  v.  Raj  Narain, (1975)  Supp.  SCC  1,  another  

Constitution  Bench  of  this  Court  reiterated  Kantha  Kathuria.  The  following  

observations were made by A.N. Ray, C.J. (at Para. 138 and 139):

20

“… The power of the Legislature to pass a law includes a power to pass it  retrospectively.  An  important  illustration  with  reference  to  retrospective  legislation  in  regard  to  election  is  the  decision  of  this  court  in  Kantha  Kathuria's case.” (Para. 138)

“... A contention was advanced that the legislative measure could not remove   the disqualification  retrospectively,  because the Constitution contemplates   disqualification existing at certain time in accordance with law existing at   that  time. One  of  the  views  expressed  in  that  case  is  that  Article  191  recognizes the power of the Legislature of the State to declare by law that the  holder of the office shall not be disqualified for being chosen as a member.  Power is reserved to a Legislature of the State to make the declaration. There  is nothing in the Article to indicate that this declaration cannot be made with   retrospective effect. The act was held not to be ineffective in its retrospective  operation on the ground that it is well recognized that Parliament and State  Legislatures can make their laws operate retrospectively. Any law that can be  made prospectively can be made with retrospective operation.” (Para. 139)    

(emphasis supplied)

18. Kanta Kathuria and Indira Gandhi were followed by a three judge bench of  

this Court in Nongthombam Ibomcha Singh v. Leisangthem Chandramani Singh &  

Ors., (1976) 4 SCC 291, where this Court affirmed the decision of the High Court  

that the respondent therein was not disqualified from seeking election because of  

the fact that he held the office of the Speaker. The following reasoning was given  

by H.R. Khanna, J. (at Para. 3):

“…  We  find  that  the  Manipur  Legislature  has  now  passed  the  Manipur  Legislature  (Removal  of  Disqualifications)  (Amendment)  Act,  1975  (Manipur Act 1 of 1975). As a result of this amendment, a person holding the  office of Speaker of Manipur Legislative Assembly shall not be disqualified  from seeking election to the Legislative Assembly of that State because of his  holding that office. The amending Act, according to Clause (2) of Section 1,  shall be deemed to have come into force on February 6, 1973. The fact that   the legislature is competent to enact such a law with retrospective operation   is well -established (see Kanta Kathuria v. Manak Chand Surana – 1969 (2)  SCC 268 and  Indira Nehru Gandhi v. Raj Narain – 1975 Supp. SCC 1. In   

21

view  of  the  above  amending  Act,  the  respondent  cannot  be  held  to  be  disqualified from seeking election to the Legislative Assembly of Manipur on  account  of  his  having  held  the  office  of  the  Speaker  of  the  Legislative   Assembly,”

        (emphasis supplied)

19. We now proceed to examine  another  aspect  of  the  first  question.  Article  

101(3) provides that if a Member of either House of Parliament becomes subject to  

any  of  the  disqualifications  mentioned  in  Article  102,  his  seat  will  thereupon  

become vacant.  Article 103 provides that 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 to the decision of the President and his decision shall be final. The use of  

the  words  “becomes  subject  to”  in  Article  101  and  in  Article  103  clearly  

demonstrates 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.

20. This does not mean that a Member, who was holding a disqualifying office  

of profit when he was elected and sworn in as a MP, is immune from challenge.  

Separate  provisions  deal  with  pre-election  disqualifications.  Section  36  of  

Representation of the People Act, 1951 (Hereinafter ‘RP Act’) provides that the  

22

Returning  Officer  shall  examine  the  nomination  papers  and  shall  decide  all  

objections  which  may  be  made  to  any  nomination  and  may  after  a  summary  

inquiry, if any, reject the nomination if he is of the view that on the date fixed for  

the  scrutiny  of  nominations  the  candidate  was  either  not  qualified  or  was  

disqualified for being chosen to fill the seat under the provisions of Article 102 or  

191. Even if his/her nomination is not rejected and a person holding a disqualifying  

office of profit, is elected as a MP, an election petition can be filed under section  

100(1)(a) of RP Act which provides that if the High Court is of opinion that on the  

date of his election, a returned candidate was disqualified from being chosen to fill  

the seat under the Constitution, the High Court shall declare the election of the  

returned candidate to be void.  

21. This  position  was  clearly  settled  by  the  decisions  of  two  Constitution  

Benches of this Court in Election Commission, India v. Saka Venkata Subba Rao  

&   Union  of  India,  1953  SCR  1144,   and  Brundaban  Nayak  vs.  Election  

Commission of India, (1965) 3 SCR 53.  Both these decisions referred to and dealt  

with Article 190 and 192 which are applicable to State Legislatures and whose  

provisions are identical  with the provisions of Articles  101 and 103 relating to  

23

Parliament.  In  Saka  Venkata  Subba  Rao,  this  Court  observed  thus  (Patanjali  

Shastri, C.J. at Para. 17):  

“17. The Attorney-General argued that the whole fasciculus of the provisions  dealing with "disqualifications of members", viz., articles 190 to 193, should  be read together, and as articles 191 to 193 clearly cover both pre-existing  and supervening disqualifications, articles 190 to 192 should also be similarly  understood as relating to both kinds of disqualification. According to him all  these  provisions  together  constitute  an  integral  scheme  whereby  disqualifications  are  laid  down  and  machinery  for  determining  questions  arising in regard to them is also provided. The use of the word "become" in  articles 190(3) and 192(1) is not inapt, in the context, to include within its  scope  pre-existing  disqualifications  also,  as  becoming  subject  to  a  disqualification is predicated of "a member of a House of Legislative", and a  person who, being already disqualified, gets elected, can, not inappropriately,  be said to "become" subject to the disqualification as a member as soon as he  is elected. The argument is more ingenious than sound. Article191, which  lays  down  the  same  set  of  disqualifications  for  election  as  well  as  for  continuing as a member,  and article  193 which prescribes the penalty for  sitting  and  voting  when disqualified,  are  naturally  phrased  in  terms wide  enough to cover both pre-existing and supervening disqualifications; but it  does not necessarily follow that articles 190(3) and 192(1) must also be taken  to cover both. Their meaning must depend on the language used which, we  think, is reasonably plain. In our opinion these two articles go together and  provide a remedy when a member incurs a disqualification after he is elected  as a member. Not only do the words "becomes subject" in article 190(3) and   "has become subject" in article 192(1) indicate a change in the position of   the member after he was elected, but the provision that his seat is to become   thereupon  vacant,  that  is  to  say,  the  seat  which  the  member  was  filling   theretofore becomes vacant on his becoming disqualified, further reinforces   the view that the article contemplates only a sitting member incurring the   disability while so sitting. The suggestion that the language used in article   190(3) can equally be applied to a pre-existing disqualification as a member   can be supposed to vacate his seat the moment he is elected is a strained and   farfetched construction and cannot be accepted. … ”

(emphasis supplied)

24

In Brundaban Nayak (supra), This Court reiterated the principle enunciated in Saka  

Venkata Subba Rao. Gajendragadkar, C.J. held as follows (at Para. 7):  

“…  As  we  have  already  indicated,  respondent  No.  2's  case  is  that  the  appellant  has  incurred  the  disqualification  under  Art.  191(1)(e)  read  with  section 7(d) of the Act, and this disqualification has been incurred by him  subsequent to his election. It is well-settled that the disqualification to which  Art.  191(1)  refers,  must  be  incurred  subsequent  to  the  election  of  the   member. This conclusion follows from the provisions of Art. 190(3)(a). This  Article refers to the vacation of seats by members duly elected. Sub-Article  (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) of  Art.191, his seat shall thereupon become vacant. Incidentally,  we may add  that corresponding provisions with regard to the disqualification of members  of both Houses of Parliament are prescribed by Articles 101, 102 and 103 of  the Constitution. …”

[emphasis supplied]

22. Thus, it is clear that 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 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 as a Member irrespective of the  

fact that he/she was under a disqualification when elected.  

23. We now consider  the  third  aspect  of  the  first  question.  Article  102(1)(a)  

provides that a person shall be disqualified for being a Member of either House of  

25

Parliament  if  he  holds  any  office  of  profit  under  the  Government  of  India  or  

Government of any State other than an office  declared by Parliament by law not to  

disqualify its holder. 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)  

of Article 102, his seat shall thereupon become vacant. Article 103 provides that 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. Article 104 provides that if a person sits or holds as a Member of  

either House of Parliament when he knows that he is disqualified for membership  

thereof, 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 due to the Union.

24. The constitutional  scheme therefore  is  that  a  person shall  be disqualified  

from continuing as a Member of Parliament if he/she holds any disqualifying office  

of 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 of whether he/she is disqualified or not, if raised, shall have to be referred  

26

for a decision by the President of India the same will be made after obtaining the  

opinion of the Election Commission of India. The question of whether a particular  

member  has  incurred  a  disqualification  can  be  referred  for  the  decision  of  the  

President by any citizen by means of making an application to the President. It is  

only  after  the  President  decides  that  the  Member  has  incurred  an  alleged  

disqualification 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 shows that the question of  

whether a Member has become subject to any disqualification under clause (1) of  

Article 102 has to be decided only by the President.  Such a question would of  

course be a mixed question of fact and law. The Constitution provides the manner  

in which that question is to be decided. We are of the view that it is only after such  

a decision is rendered by the President, that the seat occupied by an incumbent MP  

becomes vacant. 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.   

25. The constitutional scheme in Articles 101 to 104 contains several irrefutable  

indications  that  the  vacancy  of  the  seat  would  occur  only  when  a  decision  is  

27

rendered by the President  under Article 103 which declares that a Member has  

incurred a disqualification under Article 102(1) and not at the point of time when  

the Member is alleged to have incurred the disqualification.  

26. We  may  first  refer  to  the  different  circumstances  in  which  a  seat  of  a  

Member becomes vacant:  

(i) Clause (2) of Article 101 provides that where a person is chosen as a  

Member both of the Parliament and of a House of Legislature of a  

State then at the expiry of such period as may be specified in the rules  

made by the President, that person's seat in Parliament  shall become  

vacant unless he/she has previously resigned from his/her seat in the  

legislature of the State.

(ii) Clause 3(a) of Article 101 provides that if a Member of either House  

of Parliament becomes subject  to any disqualification mentioned in  

clause (1) of Article 102, his/her seat shall thereupon become vacant.  

Clause  (1)  of  Article  102  refers  to  five  circumstances  in  which  a  

person shall be disqualified for being chosen and for being a Member  

of Parliament,  (one of which is if he/she holds any office of profit  

under the government of India or government of any State other than  

an  office  declared  by  the  Parliament  by  law  not  to  disqualify  its  

holder). Article 103 provides that 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  

28

question  shall  be  referred  for  the  decision  of  the  President  whose  

decision shall be final.  

(iii) Clause 3(a) of Article 101 also provides that if a Member of either  

House of Parliament becomes subject to any of the disqualifications  

mentioned in clause (2) of Article 102, his/her seat  shall thereupon  

become vacant. Clause  (2)  of  Article  102 refers  to  a  person being  

disqualified  for  being a  Member  of  either  House  of  Parliament  on  

ground of  defection  under  the  Tenth  Schedule  to  the  Constitution.  

Paragraph (6) of Tenth Schedule provides that if any question arises  

about  whether  a  Member  of  a  House  has  become  subject  to  

disqualification  under  the  Tenth  Schedule,  the  question  shall  be  

referred for the decision of the Chairman, or as the case may be, the  

Speaker of such House and his/her decision shall be final.  

(iv) Clause 3(b) of Article 101 provides that if a Member of either House  

of Parliament resigns his/her seat and his/her resignation is  accepted  

by the Chairman or the Speaker, as the case may be, his/her seat shall  

thereupon become vacant.  

(v) Clause (4) of Article 101 provides that if for a period of 60 days a  

Member of either House of Parliament is without permission of the  

House  absent  from  all  meetings  thereof,  the  House  may  declare  

his/her seat vacant.

29

27. It can be seen from the above-mentioned permutations that there are several  

possibilities may lead to a seat becoming vacant. It is also clear that a seat becomes  

vacant  only  on  after  an  adjudication  in  cases  falling  under  Article  101(3)(a),  

whereas, the seats become vacant without any adjudication on the happening of  

specified events in respect of vacancies arising under Article 101(2), 101(3)(b) and  

101(4).  A  vacancy  under  Article  101(3)(a)  would  occur  in  the  case  of  

disqualifications  enumerated  under  Article  102(1)  only  after  there  has  been  a  

decision on the subject of such disqualification by the President. The exception to  

this proposition would of course arise when there is a voluntary admission of the  

disqualification by a particular Member to the Speaker/Chairman of the House, as  

the case may be. The vacancy under Article 101(3)(a) will occur in the case of the  

disqualification  mentioned  under  Article  102(2),  only after  a  decision has been  

made on the subject of such disqualification by the Chairman or the Speaker of  

such  House  as  the  case  may  be.  Thus,  Para.  6(1)  of  Tenth  Schedule  of  the  

Constitution  is  analogous  to  Article  103(1)  of  the  Constitution  and  both  

contemplate adjudication by an authority on the subject of disqualification, albeit  

with  respect  to  distinct  grounds.  On  the  other  hand,  in  case  of  a  person  who  

resigns, the vacancy occurs [as per Art. 103(3)(b)] when the resignation is accepted  

by  the  Chairman  or  the  Speaker  and  in  such  case,  the  Constitution  does  not  

30

contemplate any adjudication on the subject of disqualification. Similarly, in the  

case of a Member being absent without permission for a period of 60 days the  

vacancy arises when the House declares his seat vacant and there is no provision  

for adjudication about such disqualification. In the case of a person having a dual  

membership of Parliament and a State Legislature, on the expiration of 15 days  

(provided  by  the  Prohibition  of  Simultaneous  Membership  Rules  1950),  the  

person’s seat in Parliament becomes vacant without any further adjudication.  

28. Thus we find that for a vacancy to occur under Article 101(4), there should  

be a declaration by the House, for a vacancy to occur under Article 101(3)(b) there  

should be acceptance of resignation by the Chairman or the Speaker of the House  

and under Article 101(2) the vacancy arises automatically on the expiry of 15 days  

after  the  point  of  time  that  the  particular  MP became  a  Member  of  the  State  

Legislature. However, the vacancies contemplated in Article 101(3)(a) will arise  

only when the disqualification 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  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  

31

the  designated  authority.  For  example,  if  a  Member gives  up membership  of  a  

political party or votes or abstains from voting in the House in a manner that is  

contrary  to  the  directions  issued  by  his/her  political  party,  Para.  2  of  Tenth  

Schedule  provides  that  the  said  Member  of  the  House  shall  be  disqualified.  

However, the vacancy of his/her seat does not become operative on the day he/she  

gives up membership of the political party or when he/she votes or abstains from  

voting in  a  manner  that  is  contrary to the directions  issued by his/her  political  

party. With regard to disqualification on the ground of defection, the vacancy of  

the seat would become operative only when a decision is rendered by the Chairman  

or  the Speaker of  the  House as  the  case  may be declaring his  disqualification.  

Similarly in respect of the disqualification on the ground of holding an office of  

profit, the vacancy of the seat would become operative only when the President  

decides the issue on the subject of the alleged disqualification and declares that a  

particular Member has incurred the same. Such a decision may be made either on  

the basis of an adjudication where the question is disputed, or on the basis of an  

admission by the Member concerned.

29. We also find support for this view from a reading of Sections 147, 149 and  

151A of the RP Act. Section 147 deals with a casual vacancy in the Council of  

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States and Section 149 deals with casual vacancies in the House of People,  on  

account of the seat of a Member becoming vacant or being declared vacant or his  

election  being  declared  void.  Section  151A  provides  that  when  such  casual  

vacancy  arises,  the  Election  Commission  shall  have  to  fill  up  the  vacancy  by  

holding bye-elections within a period of six months from the date of occurrence of   

the vacancy.  There is no difficulty in calculating this six month period where a  

Member's seat becomes vacant on account of his/her seat being declared vacant  

under Article 101(4) or when it becomes vacant on account of his/her resignation  

being accepted by the Chairman or the Speaker under Article 101(3)(b). However,  

the position will be different when the vacancy to be filled up arises on account of  

any of the disqualifications mentioned in clause (1) or clause (2) of Article 102.  

For example if a person gives up his membership of a political party or if he votes  

or abstains from voting in a manner that is contrary to the directions issued by  

his/her political party, the election cannot be held within six months from that date.  

Similarly when a Member accepts an office of profit on a particular day, it is not  

possible to hold election within six months from the date of such acceptance of  

office of profit  on the ground that he/she was disqualified on that day. In such  

cases if the vacancy of the seat is automatic, the bye-elections will have to be held  

within six months from such date of incurring disqualification. However in many  

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cases, the Election Commission may not even know about the occurrence of the  

disqualification. Furthermore, the very occurrence of disqualification is likely to be  

disputed in most cases. Therefore, even though the occurrence of a vacancy is an  

automatic consequence of incurring a disqualification, the same would arise only  

after the disqualification is declared by the decision of the appropriate authority  

(President, Speaker, or Chairman of the House as the case may be).  

30. 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 Art.  102(1) and a declaration by the Speaker or the  

Chairman under Para. 6 of Tenth Schedule in the case of a disqualification under  

Article  102(2)  is  a  condition  precedent  for  the  vacancy  of  the  seat.  If  Article  

101(3)(a) is interpreted otherwise, it will lead to absurd results thereby making it  

impossible to implement or enforce the relevant provisions of the Constitution or  

the RP Act. Let us visualize some of these possibilities. Assume a scenario where a  

political party states that one of its Members gave up his/her membership, and on  

the other hand the concerned member denies the same fact. The six month period  

prescribed for conducting a bye-election cannot obviously be computed from the  

alleged  date  of  surrender  of  membership.  The  said  period  should  be  properly  

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computed from the date on which a decision on the subject of disqualification is  

given by the Chairman or Speaker of the House. Similarly when somebody alleges  

that a sitting MP had accepted an office of profit,  there would be no automatic  

vacancy of the seat, as the question whether the Member accepted any office of  

profit or not, may be a disputed issue. Therefore under the constitutional scheme,  

the vacancy would occur only when the dispute is resolved by a decision of the  

President which could then result in a declaration of disqualification. Hence, it is  

tenable to hold that when Article 101(3)(a) states that when a Member of House of  

Parliament becomes subject to any of the disqualifications mentioned in clause (1)  

or clause (2) of Article 102, it means when the President or the Speaker/Chairman  

as  the  case  may  be,  by  his  decision  declares  that  Member  had  incurred  the  

disqualification and not earlier. There is however no doubt that the decision of the  

President  or  Chairman/Speaker  of  the  House,  is  merely  an  adjudication  and  

confirmation of a pre-existing fact. Therefore the disqualification is not created by  

the decision of the President. However, the vacancy of the seat is a consequence of  

the decision arrived at by the designated authority.   

31. In  this  context,  we  may  refer  to  the  following  observations  of  the  

Constitution Bench in Brundaban Nayak in respect of Article 192 (which equally  

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apply  to  Article  103)  which  makes  it  clear  that  a  decision/declaration  by  the  

Governor/President  is  not  optional,  but  a  necessity  in  cases  under  191(1)  and  

101(1).   It was held that, [(1965) 3 SCR 53, Gajendragadkar, J. at Para. 14]:

“It is true that Art. 192(2) requires that whenever a question arises as to the   subsequent disqualification of a member of the Legislative Assembly, it has to   be forwarded by the Governor to the Election Commission for its opinion. It is  conceivable  that  in  some  cases,  complaints  made  to  the  Governor  may  be  frivolous  or  fantastic;  but  if  they  are  of  such  a  character,  the  Election  Commission will find no difficulty in expressing its opinion that they should be  rejected  straightaway.  The  object  of  Art.192  is  plain.  No  person  who  has   incurred  any  of  the  disqualifications  specified  by  Art.191(1),  is  entitled  to  continue to be a member of the Legislative Assembly of a State, and since the   obligation to vacate his seat as a result of his subsequent disqualification has   been imposed by the Constitution itself  by Art.190(3)(a),  there should be no   difficulty  in  holding  that  any  citizen  is  entitled  to  make  a  complaint  to  the   Governor alleging that any member of the Legislative Assembly has incurred   one  of  the  disqualifications  mentioned  in  Art.191(1)  and  should,  therefore,   vacate  his  seat.  The  whole  object  of  democratic  elections  is  to  constitute   legislative chambers composed of members who are entitled to that status, and   if any member forfeits that status by reason of a subsequent disqualification, it   is in the interest of the constituency which such a member represents that the   matter should be brought to the notice of the Governor and decided by him in  accordance with the provisions of Art.192(2).”  

(emphasis supplied)

Kanta Kathuria also clearly held that when a Member accepts an office of profit  

and incurs a disqualification, and such disqualification is retrospectively removed,  

the Member would continue to be a Member.

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32. However, the petitioners have contended that  Kanta Kathuria had failed to  

notice the two earlier Constitution Bench judgments on this aspect in Saka Venkata  

Subba  Rao  and Brundaban  Nayak and  therefore,  may  not  be  good  law.  On  a  

careful examination of these precedents, we find no merit in this contention. The  

petitioners contended that Saka Venkata Subba Rao had held that the seat became  

vacant automatically when the Member accepted the office of profit and therefore,  

retrospective removal of disqualification will not revive the membership. The issue  

in Saka Venkata Subba Rao was whether Articles 190(3) and 192(1) applied to a  

Member who had already incurred a disqualification at the time of being elected.  

The issue as to when a Member’s seat would become vacant, if he accepts an office  

of profit during his tenure as a legislator did not arise in that case. The observations  

relied on (extracted in Para. 21 above) was made in the context of distinguishing  

between a person who had already incurred under a disqualification at the time of  

being elected and a person who allegedly incurred a disqualification after having  

becoming  a  Member.  What  this  Court  stated  was  that  a  person  under  

disqualification when elected does not vacate his seat under Article 190(3)(a), but  

will continue until his/her election is set aside under Section 100 of RP Act. The  

question  of  when the  seat  of  a  sitting member  (who incurs  disqualification  by  

accepting an office of profit during the tenure of his membership) would become  

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vacant,  neither  arose for consideration and nor was it  decided in the said case.  

Therefore Saka Venkata Subba Rao is of no assistance to contend that there is an  

automatic vacation of seat when a Member accepts an office of profit and incurs a  

disqualification during his tenure.  

34. In  Brundaban Nayak, a private citizen (second respondent) complained to  

the Governor that the appellant had incurred disqualification under Article 191(e),  

subsequent to his election as a Member of the Orissa Legislative Assembly. The  

Governor forwarded the said complaint of the second respondent to the Election  

Commission  which  issued  a  notice  to  the  appellant  for  an  enquiry  into  the  

complaint. The appellant challenged the jurisdiction of the Election Commission to  

hold an enquiry into such complaint. This court while examining the said issue  

observed that no person who has incurred any of the disqualifications specified by  

Art.191(1), is entitled to continue to be a Member of the Legislative Assembly of a  

State,  and since the obligation to vacate his seat as a result  of his subsequent   

disqualification has been imposed by the Constitution itself by Article 190(3)(a)   

there  should  be  no  difficulty  in  holding  that  any  citizen  is  entitled  to  make  a  

complaint to the Governor alleging that any Member of the Legislative Assembly   

has incurred one of the disqualifications mentioned in Article 191(1) and should,   

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therefore, vacate his seat.  The observation was thus in the context of considering  

the jurisdiction of the Election Commission and the right of a citizen to make a  

complaint under Article 191(1). In fact, the observations lend support to the view  

that it is only after the decision by the Governor under Art. 192 (corresponding to  

the decision by the President under Art. 103) declaring that a Member has incurred  

a disqualification, that such a Member’s seat would become vacant.   

35. The petitioners next placed reliance on observations in another Constitution  

Bench decision in P.V. Narasimha Rao v. State (CBI/SPE), (1998) 4 SCC 626. S.P.  

Bharucha, J. noted as follows (at Para. 80):

“The question for our purposes is  whether having regard to the terms of   Articles  101,  102 and 103,  the  President  can be said to  be  an  authority   competent to remove a member of Parliament. It is clear from Art. 101, that   the seat of the member of the Parliament becomes vacant immediately upon  his  becoming  subject  to  the  disqualifications  mentioned  in  Article  102,   without  more.  The  removal  of  a  member  of  Parliament  is  occasioned by   operation  of  law and  is  self  operative.  Reference  to  the  President  under   Article 103 is required only if a question arises as to whether a Member of   Parliament has earned such disqualification; that is to say, if it is disputed.  The President would then have to decide whether the Member of Parliament  had become subject to the automatic disqualification contemplated by Article  101. His order would not remove the Member of Parliament from his seat or  office but would declare that he stood disqualified. It would operate not with  effect from the date upon which it was made but would relate back to the date   upon which the disqualification was earned”

(emphasis supplied)  

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The aforesaid observations are made, as noticed above, in the context of examining  

whether  the  President  can  be  said  to  be  an  authority  competent  to  remove  a  

Member.  The question was answered by holding that he/she merely adjudicates  

whether a Member had incurred disqualification and he/she does not disqualify a  

Member.  The  observations  relied  on  by  the  petitioner  that  “the  removal  of  a  

Member is occasioned by operation of law and is self operative” and that “the seat  

of  the  Member  of  Parliament  becomes  vacant  immediately  upon his  becoming  

subject  to  the  disqualifications  mentioned  in  Article  102,  without  more”  are  

therefore  to  be  understood in  relation  to  the  nature  of  powers  vested  with  the  

President  under Article  103.  The question which was being considered and the  

context in which these observations were made was completely different. It is also  

of some interest  to note that the said observations were made by Bharucha and  

Rajendra Babu, JJ (as they then were). S.C. Agrawal, J. [for himself and Dr. Anand  

J. (as he then was)] explained the position differently (at Para. 183):

“… The said function of the President is in the nature of an adjudicatory  function which is to be exercised in the event of a dispute giving rise to the  question  whether  a  Member  of  either  House  of  Parliament  has  become  subject to any of the disqualifications mentioned in clause (1) of Article 102  being raised. If the President hold that the Member has become subject to a   disqualification mentioned in clause (1) of Article 102, the Member would be   treated to have ceased to be a Member on the date when he became subject   to such disqualification. If it is not disputed that a Member has incurred a  disqualification mentioned in clause (1) of Article 102, the matter does not go  to the President and the Member ceases to be a Member on the date when he  incurred  the  disqualification.  The  power  conferred  under  Article  103(1)  

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cannot,  therefore,  be  regarded  as  a  power  of  removal  of  a  Member  of  Parliament. …”    

(emphasis supplied)  

The fifth Member of the Bench (G.N. Ray, J.) in his separate opinion agreed with  

S.C. Agrawal and Dr. Anand, JJ. with respect to one issue and with S.P. Bharucha  

&  Rajendra  Babu,  JJ.,  in  respect  of  another  issue.  The  learned  judge  did  not  

express any view with regard to Article 101. Therefore reliance on the observations  

of Bharucha and Rajendra Babu, JJ (as they then were) to contend that the seat of a  

sitting MP stands vacated on the date on which he/she accepts the disqualifying  

office  of  profit  and not  on the  date  when the President  declares  him/her  to be  

disqualified, would be contrary to the provisions of Article 101 to 104 as well as  

the  Constitution  Bench  decisions  of  this  Court  in  Kanta  Kathuria,  Brundaban  

Nayak and Indira Gandhi. It is evident from the said decision in P.V. Narasimha  

Rao that when the President adjudicates on the subject of whether a Member was  

disqualified or not and gives a finding that he/she is disqualified, he/she is merely  

deemed to have ceased being a Member from the date that he/she had incurred the  

disqualification. It follows that a member continues to be one 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  

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holds that the Member has not incurred the disqualification, the person continues as  

a Member.  

36. 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 not in doubt that the vacation of the seat is consequential. However, the  

question is whether the seat of the Member become vacant without anything more  

when a person accepts an ‘office of profit’? The obvious answer is ‘no’. 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 same, the Member would  

continue in spite of accepting an office of profit. There is nothing strange about this  

position.  We  have  already  noted  that  when  a  person  who  has  incurred  a  

disqualification offers himself /herself as a candidate and is subsequently elected  

and if no one objects and if the Returning Officer accepts the nomination and if no  

election petition is filed challenging the election, then he/she would continue as  a  

Member in spite of the disqualification. Therefore, our considered opinion is that  

while a disqualification results in the vacation of the seat of a Member, the vacancy  

occurs  only when the President  decides and declares  the  disqualification  under  

Article 103.  

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37. When the Amending Act retrospectively removed the disqualification with  

regard to certain enumerated offices, any Member who was holding such office of  

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, Section 4(2) was not  

attracted and consequently they continued as Members.

Re : Question (ii)

38. Which 'offices' should be excluded for the purpose of disqualification, is a  

question that  properly lies  in the legislative domain. In this  case,  what kind of  

office would 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 the  

Parliament. The key concern that certain offices or places held by a MP may be  

either incompatible with his/her duty as an elected 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  

the Parliament. It is also not possible to classify and include the offices exempted  

from the said  disqualification  in  a  generic  sense.  While  making  the legislation  

exempting any office, the question whether such office is incompatible with his/her  

43

position as a MP and whether his/her independence would be compromised and  

whether his/her loyalty to his/her constituency will be 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.  

The learned counsel for the petitioners have not advanced any contention that any  

of  the  newly  exempted  'offices'  suffer  from  any  such  impropriety  or  will  be  

prejudicial to the constituency or affect the independence of the member. The plea  

regarding violation of Article 14 merely because several other similar offices of  

profit are not included in the exempted category, has 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. The argument based on Article 14 of the Constitution  

is highly illogical and without any force.

39. This brings us to the last question. 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, 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.  

44

However,  this  was  merely  a  parliamentary  procedure  and  not  a  constitutional  

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 the power of Parliament to make a  

law. Nor can such law which is otherwise valid be described as unconstitutional  

merely  because  a  procedure  which  was  followed  on  a  few  occasions  was  not  

followed for the particular amendment.  

40. For  the  aforesaid  reasons,  we  are  of  the  opinion  that  the  impugned  

legislation is constitutionally valid and the writ petitions are without any merits and  

are dismissed, however, without costs.

.....................................CJI (K. G. BALAKRISHNAN)

…….................................J. (R. V. RAVEENDRAN)

…….................................J.  (J. M. PANCHAL)   

New Delhi;  August 24, 2009                             

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