CONSUMER EDUCATION & RESEARCH SOCIETY v. UNION OF INDIA & ORS

Citation: [2009] 13 S.C.R. 664

Court: Supreme Court of India

Bench: K.G. BALAKRISHNAN, R.V. RAVEENDRAN, J.M. PANCHAL

Case summary

CONSUMER EDUCATION & RESEARCH SOCIETY v. UNION OF INDIA & ORS.pdf

Judgment text

[2009] 13 (ADDL. ) S. C. R. 664 CONSUMER EDUCATION & RESEARCH SOCIETY v. UNION OF INDIA & ORS. (WP(C) NO. 448 OF 2006) AUGUST 24, 2009 [K. G. BALAKRISHNAN, CJI. , R. V. RAVEENDRAN AND J. M. PANCHAL, JJ. ] ·~· Parliament (Prevention of disqualification) Act, 1959 ' s.

3[as amended by Parliament (Prevention of Disqualification) Amendment Act, 2006] - Certain offices of profit not to disqualify - Addition to offices of profit with retrospective effect - Challenged - Held: The impugned legislation is constitutionally valid - Power of Parliament to 0 enact a law under Article 102(1)(a) of the Constitution includes the power to enact such law retrospectively - A law can be made retrospectively to remove the disqualification incurred on account of holding offices of profit - Which 'offices' should be excluded for the purpose of disqualification is a matter to be addressed by Parliament - Nothing has been pointed out to suggest that any of the offices exempted under the Amendment Act, 2006 suffers from any impropriety so as to be prejudicial to the constituency or affect independence of the Member - Constitution of India, 1950 - Articles 101 to 104.

Constitution of India, 1950: Articles 101(3)(a), 102(1)(a) and 103(1) - Member of Parliament - Accepting 'office of profit' - Incurring disqualification - Vacancy of seat - Held: A declaration by the President of India under Article 103(1) in case of (; disqualification under Article 102(1) and a declaration by the Speaker or the Chairman under para 6 of the 10th Schedule UNION OF INDIA & ANR. in the case of disqualification under Article 102(2) is -"".

"condition precedent for the vacancy of the seat -A Member continues as such until the decision of the President, and when the outcome of the decision is that he /she is disqualified , it relates back to the date when the said disqualification was incurred - Therefore, while a disqualification results in the vacation of the seat of a Member, the vacancy occurs only when the President declares the disqualification under Article 103 - In the instant case, when the Parliament (Prevention of Disqualification) Amendment Act, 2006 retrospectively removed the disqualification with regard to certain enumerated offices, any Member who was holding such office ofprofit was freed from the disqualification retrospectively and as none of such Members have been declared to be disqualified, tf1ey continued as Members - Parliament (Prevention of Disqualification) Act, 1959 - s. 3 [as amended by Parliament (Prevention of Disqualification) Amendment Act,_ 2006].

Article 102 - Disqualification of Members of Parliament - For holding of an office ofprofit - Exclusion of certain offices for purpose of disqualification - Held: Is a question that lies in the legislative domain - 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 Parliament. -~) Article 14 - Challenge to the Parliament (Prevention of Disqualification) Amendment Act, 2006 merely because several other similar offices of profit are not included in the exempted category, has no basis - Each office of profit may have different effects and consequences - Parliament (Prevention of Disqualification) Act, 1959 as amended by Amendment Act, 2006.

CONSTITUTIONAL/SM: Constitutional conventions - Office of profit - Exemption of, from disqualification - Practice of matters being referred ( ·""-· to Joint Committee - Held: This was merely a parliamentary procedure and not a constitutional convention - Once Parliament is recognized as having the power to exempt from disqualification and to do so with retrospective effect, any alleged violation of any norm or traditional procedure cannot denude Parliament of its power to make a law. The instant writ petitions were filed challenging the constitutional validity of the Parliament (Prevention of Disqualification) Amendment Act, 2006, amending the Parliament (Prevention of Disqualification} Act, 1959 and making additions to the list of 'Offices of Profit', exempt from disqualification for becoming a Member of Parliament.

The questions for consideration before the Court were : (i) whether the Amendment Act retrospectively exempting certain offices of profit from disqualification, violated Articles 101 to 104 of the Constitution and was, therefore, invalid; and (ii) whether exemption of as many as 55 offices relating ·to statutory bodies/non-statutory bodies, without referring the proposal to the. Joint Committee would render the Amendment a colourable legislation and violated any 'constitutional convention' or Article 14 of the Constitution. ~ Dismissing the writ petitions, the Court Held: 1. 1. The impugned legislation is constitutionally valid. [Para 40] [709-8-C] 1. 2. The power of Parliament to enact a law under Article 102 (1}(a) of the Constitution of India includes the . { : senate, executive committee, council or court of a university or other body connected with a university; (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 8 ,. Government or any other authority in respect of any lllil;, I 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 k.

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 o_ffice 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; fj) the office of village revenue officer, whether called a lambardar, malguzar, patel, deshmukh or by any -f 't other name, whose duty is to collect land revenue 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 holding an 'office of profit'. That order was challenged before this Court in Jaya Bachan v. Union of India, (2006) 5 sec 266, and the challenge was rejected by this Court. Thereafter, it was discovered that a large number of MPs' were holding 'Offices of Profit' and they also -~ would incur the same disqualification.

A Bill titled the Parliament (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 ;x under Article 111 of the Constitution of India. The Bill was passed again by both the Houses without amendment and presented to the President for assent and the said assent was given on 18. 8. 2006. Thus, the Amendment Act came into existence. 8. Section 2 of the . Amendment Act inserted the following clauses as (ad) after clause (ac) of section 3 of the Principal Act: -I~- "(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;" Section 2 of Amendment Act also inserted after clause 0) the following clauses, which were to be deemed to have been inserted with effect from the 4th day of April, 1959, namely: "(k) the office of Chairman, Deputy Chairman, Secretary or Member (by whatever name called) in any statutory or non-statutory body specified in the Table; (I) the office of Chairperson or trustee (by whatever name called) of any Trust, whether public or private, not being a body specified in the Schedule; (m) the office of Chairman, President, Vice-President or Principal Secretary or Secretary of the Governing Body of any society registered under the Societies Registration Act, 1860 or under any other 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 0 deemed to have been inserted with effect from 4th April, 1959. Section 4 contained a special provision as to validation and other matters and it is extracted below: "4. (1) Notwithstanding any judgment or order of any court or tribunal or any order or opinion of any other authority, the offices mentioned in clauses (ad), (k), (I) and (m) of Section 3 of the Principal Act shall not disqualify or shall -+-~ be deemed never to have disqualified the holders thereof for being chosen as, or for being, as member of either House of Parliament as if the Principal Act as amended by this Act and been in force at all material times.

(2) Nothing contained in sub-section (I) shall be construed as to entire any person who has vacated a seat owing to any order or judgment, as aforesaid, to claim any reinstatement or any other claim in that behalf. (3) For the removal of doubts, it is hereby clarified that any petition or reference pending before any court 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: 8 9. In order to understand the scope, applicability and impact of the Amendment Act, it is necessary to refer to the constitutional provisions (Article 101 to 104 of the Constitution . ,. ;ii, of India) which deal with the disqualification of Members of 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 ofseats.

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

his seat shall thereupon become vacant:" 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 Parliamenti (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: "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 . ,. --tnot 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, 19. 1, 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 A. House of Parliament shall be disqualified if he holds any 'office of profit' under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder. Section 101(3)(a) provided that if 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 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 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 ,,A 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 djsqualification, his/her membership cannot be revived by enacting a legislation which retrospectively removed the applicable disqualificatt6n. According to the ,.

~ petitioner, a legislation retrospectively removing the disqualification will help a person to continue to be a Member, only if he/she had continued as a Member and his/her seat had not fallen vacant. The reasoning advanced was that in instances where the seat had already become vacant oh, account of incurring a constitutional disqualification, any legislhtive attempt to revive the membership of the Member whose seat had ;become vacant, would violate Articles 102(1) read with Article )- 101(3)(a) of the Constitution. 12. Alternatively, it was submitted that the objects and reasons as well as the provisions of the Amendment Act made it obvious that retrospective operation had been given to its 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 '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 "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 0 impugned legislation. 13. On the other hand, Shri Gopal Subramaniam and Shri · Mohan Parasaran, learned Additional Solicitors General, opposed these contentions on behalf of the respondents. 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 lndia;. that thei"Member-had incurred the alleged • i ·disqualification. Hence itwas contended that till such a decision s bylhe-Presiaent, aMember\vho is alleged to have incurred a \:"disqualification continues tcfbe aMember. It was submitted that :~ since there was· no dedaration· of disqualification by the President and because the Amendnienf'Act had retrospectively · removed the disqualifications, the seats of Members (who had accepted the disqualifying office of profit) did not fall vacant.

,:A 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. 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 rdisqualification, violates Articles 101 to 104 of the . Constitution and is therefore invalid? \ l (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? L ' 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 'r" Court accepted the contention and allowed the Election Petition. The elected candidate preferred an appeal to the Supreme -"\,. Court on August 2, 1968.

During the pendency of the appeal, The Rajasthan State Legislature passed the Rajasthan Legislative Assembly Members (Prevention of Oisqualification) 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. .. , 't 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 A 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) • .. •... 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 wellrecognised 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 recognisP. S the power of the Legislature of the State to declare by law that the holder r 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 ' -· "":= 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 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 . A.. 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 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 ,. ,-k provisions of Articles 101 and 103 relating to 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- )r 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 preexisting 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 0 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) 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 I disqualification of members of both Houses of Parliament are prescribed by Articles 1O1, 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 Member unless the High Court in an election petition filed on that ground, declares that on the date of election, he/she was disqualifie~ 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 )r-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 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 disqualific. ations 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 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 decisiorf'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 0F1ly by the President. Such 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 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 )r subject to any disqualification mentioned in clause (1) of Article 102, his/her seat shall thereupnn 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 ~ 4 Parliament has beCOf! le/subject to any of the disqualifications mentioned in clause (1) of Article 102, the question shall be referred forJhe decision of the President whose decision shall be final.

I (iii) Clause 3(a) of Artlcle 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 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 Hou~~ may declare his/her seat vacant. μ. '. ·' ' . ·.. 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 th9t 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)(p) would occur in the case of disqualifications enumerated under Article ~ 02(1) only after there has been a decision 9n the subject of su¢h 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 __. -. t Constitution does not 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 ,r 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 / . A· 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 t~e 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 di~f1~lification but would occur only upon a declaration of the disqualification by the designated authority. For example, if a Memb~r gives up membership of 1\ "h 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/ 8 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~round 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 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 byeelections within a period of six months from the date of occurrence of the vacancy. There is no difficulty in caJ.

Culating 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 I, on a particular day, it is not possible to hold election within six ! months from th¢ ·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 ,. -t t= disqualification. However in many cases, the Election Commission may not even know about the occurrence of the ..... I 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 ,• I I 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 t- Chairman under Para.

6 of Tenth Schedule in the case of a I disqualification under Article 102(2) is a condition precedent ,.. 4. 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 1 cannot obviously be- ~ompute~. _f~~~. ~~~,: ~! ~~9_~~ ',~~. ~~ . of surrender of member~h1p. The ·s~1d;plnoc:shqu,1d~be _prop~rly computed from ·theniate 'O'n\v~~~7~fj 6isioW on'ttiePsubje6t of •·. _IJ. ''... ,. ~ ~ 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 --r-... 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 preexisting 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 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 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 .. ____ t 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 .... I 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 -w l subsequent disqualification, it is in the interest of the /"'r 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) I Kanta Kathuria also clearly held that when a Member accepts ... -4. _ I an office of profit and incurs a disqualification, and such disqualification is retrospectively removed, the Member would continue to be a Member. 32. However, the petitioners have contended that Kanta Kathuria had failed to notice the two earlier Constitution Bench J' 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 vac~nt 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 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 ...... j ~ 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 fb_e 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, 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 r in another Constitution Bench decision in P. V. Narasimha Rao v. State (CBllSPE), (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 oflaw and is selfoperative. 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 ·A 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) 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) ofArticle 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 I 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) 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 hot express any view with regard to Articl~ 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 7' 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 . ,J.

_ to have ceased being a Member from the date that he/she had incurred the disqualification. It follows that a member continuesto 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 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 vacatio11 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· 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. 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 .. tr, 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 • H· ·,A duty as an elected representative of the people or affect his/ ~ her independence and thus weaken his/her loya. lty 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 position as a MP and whether his/her independence would be compromised and A+ 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 7 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 exempti<?. ~S.. However, this was merely a parliamentary . Jt-· 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. R. P. Writ Petitions dismissed.