Prabhu, L.K. vs State of Kerala and Others

B.N. Srikrishna, C.J.—The three Original Petitions are in the nature of public interest litigations challenging the constitutional validity of Sub-section 4 of Section 8 of the Representation of the People Act, 1951 (hereinafter referred to as "the Act"). Since the same issue was raised in the Election Petition No. 10 of 2001, the learned Single Judge has also referred the ejection petition for determination of the said issue by this Bench. Hence, it would be convenient to determine the said issue in all four matters by a common Judgment.

In the Election Petition No. 10 of 2001, the first Respondent, R. Balakrishna Pillai was elected as Member of the Kerala Legislative Assembly. While he was a sitting M.L.A. he was convicted and sentenced to undergo five years rigorous imprisonment for offences under Sections 120B, 409 of I.P.C. and Section 5(2) of the Prevention of Corruption Act read with Section 120B of the I.P.C. by the Special Judge, Edamalayar Investigations. He has challenged his conviction by an appeal in the Supreme Court which is admitted and is pending in the Supreme Court. During this period, the election process started on 20th April 2001. The first Respondent in the election petition filed his nomination. The nomination was scrutinised on 24th April 2001, and the Returning Officer by an Order made on 25th April 2001 overruled the objection raised against the validity of the nomination of the first Respondent m the election petition and took the view that on the date of scrutiny, that is, on 24th April 2001 inasmuch as the first Respondent is a sitting M.L.A., he got the benefit of Section 8(4) of the Act, and he is not disqualified u/s 8. As a matter of information, it was pointed out that by a notification issued on 10th May 2001, the Governor of Kerala, in exercise of his power under Article 174(2)(b) had dissolved 10th Kerala Legislative Assembly with effect from 16th May 2001.

The issue of law for consideration of this Division Bench is:

Whether Section 8(4) of the Representation of the People Act, 1951 is unconstitutional and void for inconsistency with Article 14 of the Continuation of India?

Article 191 of the Constitution of India lays down the disqualification for membership of a Legislative Assembly or Legislative Council of a State. We are not concerned with Clauses (a), (b), (c) and (d) of Article 191(1) which deal with various contingencies. The relevant provision of Article 191, for our purpose, would be as follows:

Disqualification for membership.--(1) A person shall be disqualified for being chosen as, and for being, a member of the Legislative Assembly or Legislative Council of a State-

(a) * * * * *

(b) * * * * *

(c) * * * * *

(d) * * * * *

(e) If he is so disqualified by or under any law made by Parliament.

Explanation.--* * * *

(2) * * * *

The Act also contains provisions dealing with disqualification for being elected and continuing as a member of the appropriate Legislature. Section 8 prescribes the disqualification of conviction for certain offences. Clauses (a) to (k) of Sub-section (1) of Section 8 of the Act provide such, disqualification upon conviction under various statutes and such conviction disqualifies a person for a period of six years from the date of such conviction-The sentence imposed in the conviction is in material and mere conviction under any to the Clauses (a) to (k) of Section 8(1) of the Act would be sufficient to disqualify a peison fcr a period of six years from the date of such conviction. Sub-section (2) of Section 8 of the Act contain Clauses (a) to (d) which provide for conviction under different statutes, and if under any one of them a person is sentenced to in preferment for not less than six months, he all be disqualified from the date of such conviction and for a further period of six years since his release. Sub-section (3) of Section 8 of the Act provides that if a person is convicted of any offence and sentenced to imprisonment for not has than two years for any offence other than any effence refined to in Sub-section (1) or Sub-section (2) of Section 8, then, he shall be disqualified from the date of such conviction and for a further period of six years since his release. Then comes Sub-section (4) which was originally Sub-section (3) and renumbered, as Sub-section (4) by Act 1 of 1989 with effect from 15th March 1989. Sub-section (4) of Section 8 of the Act reads as under:

(4) Notwithtanding anything in Sub-section (1), Sub-section (2) and Sub-section (3) a disqualification under either sub-section shall not, in the case of a person who on the date of the conviction is a Member of Parliament or the Legislature of a State, take effect until three months have elapsed from that date or, if within that period an appeal or application far revision is brought in respect of the conviction or the sentence, until that appeal or application is disposed of by the court.

Explanation: * * *

The expression "disqualified" is definad in Section 7(b) of the Act as under:

Disqualified means disqualified for being chosen as, and for being, a member of either House of Parliament or of the Legislative Assembly or Legislative Council of a State.

A conjoint reading of Article 191 of the Constitution with the meaning of the expression ''disqualified'' in Section 7(b) of the Act suggests that the disqualification would apply simultaneously at two levels. First, for being chosen as a member of the House; second, for being a member of the House. In other words, both the disqualifications are inextricably connected and a person who is disqualified would be conjointly disqualified for standing for election as well as for continuing as a member of the House to which he has been chosen. The object of Article 191(1)(a) is plain. It is to maintain the purity of the election process and to maintain the purity of the Legislatures, as held in Biharilal Dobray v. Roshan Lal Dobray (1989) 4 S.C.C. 551.

The learned counsel for the Petitioners, and for the Petitioner in the election petition, contend that Sub-section (4) of Section 8 of the Act infringes Article 14 of the Constitution, for it makes invidious and hostile discrimination between ordinary citizen and Members of Parliament or Legislature of a State in the matter of incurrence of disqualification. While in the case of the ordinary citizen, the disqualification would operate from the date of conviction, in the case of a Member of Parliament or Legislature of a State, there is an interregnum of three months before the disqualification comes into play, and a further period of pendency of appeal or application for revision, if one has been preferred to challenge the conviction or sentence. It is contended that this classification is based on no discernible rational criteria, which would have a reasonable nexus with the object sought to be achieved by the statute. The objective of Section 8 of the Act is to ensure that there is no criminalisation of politics. That is the reason why a person convicted of a criminal offence is disqualified from being chosen as a Member of the Parliament or the Legislative Assembly; If he is already a member, he becomes disqualified from continuing as a member. The distinction made between a person who is not a member of the House, and a member of the House, is not based on any valid criteria having a rational nexus with the aforesaid object. This is the general thrust of the argument on behalf of the parties who impugn the constitutional validity of the statute.

Support is derived to the argument from certain observations made by the Supreme Court in B.R. Kapur v. State of Tamil Nadu J.T. 2001 (8) S.C. 40. In Kapur (supra), the second Respondent, Ms. Jayalalitha, who was not a Member of the Legislative Assembly had been convicted of certain offences by the competent court. She also has preferred appeals against the conviction before the High Court at Madras. On an application moved by her, she was released on bail by the High Court. It was argued before the Supreme Court that all the disqualification provided for in Section 8 would not apply until the final court has affirmed the conviction and sentence. Section 8(4) of the Act was relied upon and, by analogy, it was argued that the principle in Section 8(4), which was applicable to members of the Legislature, must be applied to non-members of the Legislature, for otherwise, Article 14 of the Constitution would be violated. It was contended that the presumption of innocence would be available to a sitting member till the conviction was finally upheld, but in the case of non-member, the disqualification would operate from the date of conviction by the court of first instance. Hence it was argued that Sub-section (4) Section 8 of the Act has to be read down so that its provision was not restricted to a sitting member and it must be held that in all cases the disqualification arises when the conviction and sentence is finally upheld. The Supreme Court rejected the argument by pointing out that, in the first place, Section 8(4) of the Act opens with the non-obstante clause, "notwithstanding anything in Sub-section (1), Sub-section (2) and Sub-section (3)"; secondly, there was actually no challenge to Sub-section (4) of Section 8 on the ground that it violates Article 14 of the Constitution. The Supreme Court held:

...There is no challenge to it on the basis that it violates Article 14. If there were, it might be tenable to contend that Legislators stand in a class apart from non-Legislators, but we need to express no final opinion. In any case, if it were found to be violative of Article 14, it would be struck down in its entirety. There would be, and is no question of so reading that its provisions apply to all, Legislators and non-Legislators, and that, therefore, in all cases the disqualification must await affirmation of the conviction and sentence by a final court. That would be ''reading up'' the provision, not ''reading down'', and that is not known to the law.

In our view, the Judgment in Kapur (supra) does not lay down the proposition sought to be advanced. The Supreme Court merely rejected the argument that the principle in Section 8(4) of the Act should be made applicable to non-Legislators. In fact, the Supreme Court did not rule out that Legislators could be a separate class by themselves. As to whether such classification is permissible, is the issue before us.

For the Petitioners, reliance is placed on the Judgment of the Madhya Pradesh High Court in Purushottamlal Kaushik Vs. Vidyacharan Shukla, , wherein the raison d''etre for Section 8 of the Act is explained in the following words:

The object of this provision clearly is to exclude from the election arena all persons who have a subsisting conviction and sentence of not less than two. years on the date of scrutiny in order to ensure beyond doubt the qualifications of contesting candidates and to obviate a fresh election made necessary due to doubtful qualifications. The only exception made is in the case of sitting members by virtue of Section 8(3) to enable continuity in their tenure till the final Court decides their criminal case. No such continuity is needed for others, they being already of the legislature. Otherwise Section 8(3) makes no sense and is redundant which intention cannot be attributed to the Legislature. Right to contest election is a statutory right and can be exercised only in the manner prescribed by the statute. Section 8(2), is a part of the statute and the right is subject to it. There is thus no hardship as Suggested, by the learned counsel for the Respondent.

Counsel was fair enough to point out that this Judgment in Purushottamlal Kaushik (supra) was overruled by the Supreme Court in Vidya Charan Shukla Vs. Purshottam Lal Kaushik, , but on other grounds as to the interpretation of Section 100(1) and 100(2) of the Act. We may, therefore, take that the views expressed by the High Court of Madhya Pradesh with regard to the philosophy behind Section 8 of the Act remain unaltered. But, that, per se, does not carry the Petitioners'' case any further.

Counsel then relied on the decision in Anukul Chandra Pradhan, Advocate, Supreme Court Vs. Union of India and others, . The Supreme Court in Para 5 of this Judgment pointed out that provisions made in the election law which exclude persons with criminal background of the kind specified therein from the election scene as candidates and voters was with the object of preventing criminalisation of politics and to maintain probity in election. Any provision which promotes this object must be welcomed and upheld as sub-serving the constitutional purpose. It observed:

The elbow room available to the Legislature in classification depends on the context and object for enactment of the provisions. The existing conditions in which the law has to be applied cannot be ignored in adjudging its validity because it is relatable to the object sought to be achieved by the Legislation. Criminalisation of politics is the bane of society and negation of democracy. It is subversive of free and fair elections which is a basic feature of the Constitution. Thus, a provision made in the election law to promote the object of free and fair elections and facilitate maintenance of law and order which are the essence of democracy must, therefore be so viewed. More elbow room to the Legislature for classification has to be available to achieve the professed object.

This was a case in which the contention urged was that the proviso to Sub-section 5 of Section 62 of the Act enabling a person in preventive detention from exercising the right to vote discriminated as against a convicted person in lawful custody of the police, and therefore, the classification was violative of Article 14. Rejecting the argument, the Supreme Court held:

In view of the settled law on the point, it must be held that the right to vote is subject to the limitations imposed by the statute which can be exercised only in the manner provided by the statute; and that the challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of Sub-section (5) of Section 62 of the Act is, therefore, not available and this petition must fail.

It appears to us that the argument on behalf of the Petitioners before us proceeds on a misconception of the purpose of making the classification. No doubt, it is true, as pointed out by the Supreme Court in Anukul Chandra Pradhan (supra) that the purpose of introducing disqualification in Section 8 of the Act is to eliminate criminality in the process of election. The Parliament, however, must be aware of the fact that members of Legislatures are public men who are always in the public eye. It is, therefore, possible that such persons are subjected to frivolous and malicious prosecutions, some of which may even hastily succeed. In such a case, debarring a sitting member, even before the conviction has been finally upheld, would have the deleterious effect of vacating the seat occupied by the Member. In other words, the disqualification would interfere not only with the constitutional duty of the elected member of the House, but also with the constitutional functioning of the Legislature itself. At the lowest, it would entail incurring of avoidable expenditure and inconvenience of having to set the election machinery into motion fur electing a new member to the vacated seat; at the highest, it may even entail (as in the case of an water thin majority) the fall of the Government in power and consequential reflection. It may also entail wholesale horse trading which has become the order of the day. Hence, it would be necessary to construe the immunity in Sub-section (4) of Section 8 of the Act, not as an immunity granted personally to a sitting member of the House, but an immunity to the House itself, to ensure against these undesired consequence. Viewed from this point of view, it appears to us that the classification made between the non-Legislators and Legislators is perfectly) permissible and consistent with the constitutional objective, both to maintain purity in election by avoiding criminalisation of politics, and also to ensure that there is no precipitous disqualification of a Member due to conviction and consequential vacancy in the House, bringing avoidable expenditure, inconvenience and other evil consequences in its wake. Thus, on principle, we are unable to agree with the contention of the Petitioners that there is hostile discrimination or irrational classification made in enacting Sub-section (4) of Section 8 of the Act, so as to infringe the fundamental right guaranteed under Article 14 of the Constitution.

It was urged by the Petitioners that in the counter-affidavit filed on behalf of the Union of India no such reason has been advanced. In our view, it makes no difference, whatsoever. As held by the Supreme Court in Sanjeev Coke Manufacturing Company Vs. Bharat Coking Coal Limited and Another, , the Court need not concern itself with the hollowness of the self-condemnatory nature of the statements made in the affidavits filed by the Respondents to justify and sustain a legislation. The deponents of the affidavits filed into Court may speak for the parties on whose behalf they swear to the statements. They do not speak for the Parliament. "No one may speak for the Parliament and Parliament is never before the Court". After Parliament has said what it intends to say, only the Court may say what the Parliament meant to say. None else. Once a statute, leaves Parliament House, the Court''s is the only authentic voice which may echo (interpret) the Parliament. This the Court will do with reference to the language of the statute and other permissible aids. The executive Government may place before the Court their understanding of what Parliament has said or intended to say or what they think was Parliament''s object and all the facts and circumstances which in their view led to the legislation. When they do so, they do not speak for Parliament. No Act of Parliament may be struck down because of the under-standing or misunderstanding of Parliamentary intention by the executive Government or because their (Government''s) spokesmen do not bring out relevant circumstances but indulge in empty and self-defeating affidavits. They do not and they cannot bind Parliament. Validity of legislation is not to be judged merely by affidavits filed on behalf of the State, but by all the relevant circumstances which the Court may ultimately find and more especially by what may be gathered from what the legislature has itself said. Therefore, we are of the opinion that, irrespective of what is pointed out in the counter affidavit filed on behalf of the Union of India, we have to ascertain what Parliament could have intended; if that intendment appeals to us, we must sustain the constitutional validity of the statute in question. It would particularly be so in view of the basic principle of presumption of constitutionality of a statute.

The learned Additional Solicitor General contends that, on a careful analysis of Section 8(4) of the Act, it would appear that the immunity from immediate operation of the disqualification would be available to a sitting member of a House, if:--(a) he is a member on the date of conviction, and (b) he is a member on the date on which the election process commences. We agree with this view. The learned Additional Solicitor General relied on the decision in Manni Lal Vs. Parmai Lal and Others, , to show that even in such a situation, where following a conviction an appeal has been presented, the Supreme Court has taken the view that disqualification would not apply.

Counsel for the Petitioners were quick to rejoin that the intention to prevent disruption of the proceedings of the House caused by a precipitous conviction would result in vacation of the seat, might be true with regard to a sitting member, but, this reasoning would have no application with regard to incurrence of disqualification for the purpose of contesting an election. It is pointed out that, once the term of the House ends, and new election process begins, there is no reason why a person convicted should not incur the disqualification immediately, merely because he is a member of the House. The objective of preventing disruption of the House would hardly be relevant in such a situation, is the contention. It is not possible to accept this argument. In the normal course, when the term of a House comes to an end, the election process commences much in advance before the term of the House comes to an end. All elected members of the House continue to hold their offices till the House itself is dissolved. In such a situation, the immunity arising from Section 8(4) of the Act, would operate in favour of all members who continue to be members till the last date. If, in their capacity as sitting members, by reason of Section 8(4) that disqualification simultaneously operates at both levels, it will operate to prevent a member from being a member and it will operate to prevent him from contesting the ensuing election. In the nature of the case, since the disqualification is defined in Section 7(4) of the Act conjunctively, it follows that either a person is disqualified at both levels, or he is not disqualified at either level. In the situation contemplated by the Petitioners, the sitting member gets the benefit of Section 8(4) of the Act because he is a sitting member. Since the immunity from disqualification must operate simultaneously at both ends, he also gets the immunity from disqualification for contesting the election.

An unseverable provision in a statute is to be either sustained, wholly or struck down wholly. The classification made by the Parliament is valid, in our Judgment. It is not permissible for us to make a further micro classification, and say that the immunity available must be confined only to "being a member of the House". In our view, since the predominant purpose of the statute is constitutionally valid, we must sustain the validity of the entire section without making this micro classification. The learned Additional Solicitor General rightly drew our attention to the Judgment of the Supreme Court in Balaji Vs. Income Tax Officer, Special Investigation Circle, It was contended that clubbing provisions in Section 16(3)(a)(i) and (ii) in the Income Tax Act, 1922 were constitutionally impermissible as they made an unsustainable classification, which had no nexus to the object sought to be achieved. It was pointed out to the Supreme Court that there may be genuine cases of partnership between a husband with his wife and children, who might have inherited property from sources other than the husband/father. In such a case, the clubbing provision was wholly unjust. Since the Legislature had lumped together unequal, the statute was hit by Article 14. Rejecting the contention, the Supreme Court observed:

(9). It was then said that there might be genuine partnerships between an individual and his wife and, therefore, there is no reasonable relation between the classification and the object sought to be achieved, at any rate to the extent of those genuine cases. But, there is no classification between genuine and non-genuine cases: the classification is between cases of partnership between the husband, wife and/or minor children, whether genuine or not, and partnerships between others. In demarcating a group, the net was cast a little wider, but it was necessary, as any further sub-classification as genuine and non-genuine partnerships might defeat the purpose of the Act.

We too are of the opinion that if the classification made in the present situation by granting a temporary reprieve u/s 8(4) of the Act is constitutionally justified, merely because the net is cast a little wider, we cannot hold that it is hit by Article 14 of the Constitution. Any sub-classification might defeat the purpose of the statute itself.

The learned Additional Solicitor General relied on the Judgment of the learned Single Judge of the Calcutta High Court in Dr. Debranjan Mukhopadhyay Vs. Sri Manik Chandra Mondal and Others, , wherein it was pointed out that Section 8(4) of the Act has clearly recognised that the Legislature has chosen to extend the benefit only to sitting members of the Legislature. Such a benefit brings the sitting members of the Legislature in a separate category and an exception has been provided for them. The disqualification will not be applicable for a period of three months from the date of conviction and, if they prefer an appeal or revision against the order of conviction, till the appeal or revision is disposed of. This Judgment also answers the contention urged on behalf of the Petitioners that the distinction must be made between "continuing as a member" and "being chosen as a candidate". The Calcutta High Court rejected the contention by reference to Section 7(6) of the Act, as it gives a compendious conjunctive definition "disqualified" which applies at both levels simultaneously.

The learned Additional Solicitor General opposed the original petitions under Article 226 on the ground that where parties are capable of raising the issue before the Court, the ourt Caught not entertain issues of law, particularly issues of constitutional validity of a statute, at the instance of" strangers in a public interest litigation. He relied on the Judgment of the Supreme Court in BALCO Employees Union (Regd.) Vs. Union of India and Others, at Para 96. In our view, it is unnecessary to go into this question. As submitted by the learned Additional Solicitor General, the issue was not raised as a preliminary objection to the tenability of the petition. Since the petitions have already been entertained, we propose to dispose them of, without going into this question even on the assumption that Original Petitions are maintainable.

The learned Additional Solicitor General placed reliance on the Judgment of the Division Bench of Madras High Court in W.P. No. 65062 of 2001 (Order, dated 20th April, 2001, per N.K. Jain, G.J. and K. Sampath, J.). This Judgment also upholds the classification made between Legislators and non-Legislators in Sub-section (4) of Section 8 of the Act and considers Sub-section (4) as a safeguard for a sitting member of the Legislature or Parliament from further disqualification, and holds that it is not violative of Article 14 of the Constitution.

Counsel for the Respondent, the elected candidate in the election petition, drew our attention to the Judgment in Commissioner of Sales Tax, Madhya Pradesh, Indore and Others Vs. Radhakrishan and Others, where the Supreme Court observed at Para 15:

In considering the validity of a statute, the presumption is in favour of its constitutionality and the burden is upon him who attacks it to show that there has been a clear transgression of constitutional principles. For sustaining the presumptive of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state c f facts which can be conceived. It. must always be presumed that the Legislature understands and correctly appreciates the need of its own people and that determination, if any, is based on adequate grounds. It is well settled that courts will be justified in giving a liberal interpretation to the section in order to avoid constitutional invalidity.

In the result, we find that there is no substance in the challenge to the constitutional validity of Section 8(4) of the Act. In our Judgment, the classification made between Legislators and non-Legislators is perfectly justice for reasons we have already indicated. Section 8(4) of the Act does not infringe or violate the fundamental right guaranteed under Article 14 of the Constitution.

We dismiss the Original Petition Nos. 13013, 30061 and 34703 of 2001.

The Election Petition No. 10 of 2001 is directed to be placed before the learned Single Judge for disposal in accordance with law.