Holding

Parliament may legislate a pension for Members of Parliament under the residuary power of Entry 97 of List I; Article 106 does not prohibit such pension.

Summary

The petitioners challenged the constitutional validity of Section SA (also referred to as Section 8A) of the Salaries, Allowances and Pension of Members of Parliament Act, 1954, which provides a pension to former Members of Parliament. They argued that Article 106 of the Constitution only authorises salaries and allowances for MPs and that the Constitution makes specific pension provisions for other constitutional functionaries, implying a bar on parliamentary pensions. The Union of India contended that Parliament’s power to legislate on this matter derives from Entry 73 and, more importantly, the residuary power under Entry 97 of List I of the Seventh Schedule, and that Article 106 is merely enabling, not prohibitive. The Supreme Court examined the scope of legislative competence and held that the residuary entry confers authority on Parliament to enact pension provisions for MPs and that no provision in Article 106 or elsewhere bars such a payment. Consequently, the writ petitions were dismissed as being without merit.

Issues considered

Whether Parliament has the constitutional competence to enact Section SA (pension provision) of the Salaries, Allowances and Pension of Members of Parliament Act, 1954.
Whether Article 106 of the Constitution bars the payment of pension to Members of Parliament.

Subjects

constitutional validityparliamentary pensionlegislative competenceresiduary powerArticle 106List ISection SAwrit petition

Judgment

COMMON CAUSE, A REGISTERED SOCIETY A
v.
UNION OF INDIA

NOVEMBER 22, 2001

[S.P. BHARUCHA, CJ., SYED SHAH MOHAMMED QUADRI, B
N. SANTOSH HEGDE, S.N. VARIAVA AND SHIVARAJ V. PATIL, JJ.]

Salaries, Allowances and Pension of Members ~f Parliament Act, 1954:

Section SA-Constitutional validity of
c
Members of Parliament-Pension for-Provision contained in Section
SA-Legislative competence-Held such competence is conferred on Parlia-
ment by Entry 97 of List I to the Seven Schedule of Constitution-There is no
provision in Article 106 or elsewhere that bars the payment of pension to
Members of Parliament-Constitution of India, Art. 106. D
The constitutional validity of Section SA of the Salaries, Allowances
and Pension of Members of Parliament Act, 1954 has been challenged in
these petitions. The said Section was introduced in 1976 giving to Members
of Parliament pension on their satisfying certain conditions stated therein.
It was contended that (i) Where pension is to be paid to a constitutional E
functionary, the Constitution makes specific provision; (ii) Members of
Parliament are not entitled to receive pension because Article 106 of the
Constitution provides for payment of salaries and allowances to them and
that it does not contain provision with regard to payment of pension. On
behalf of Union of India it was contended that (i) Section SA was covered F
by Entries 73 and 97 of List I of the Seventh Schedule to the Constitution;
(ii) Article 106 is an enabling provision and does not impose a bar upon
receipt of pension by Members of Parliament.

Dismissing the petitions, the Court
G
HELD : The issue involved in this case is squarely one of compe-
tence, namely the competence of Parliament to enact Section SA of the
Salaries, Allowances and Pension of Members of Parliament Act, 1954.
Such competence is conferred upon Parliamant by the residuary Entry 97
of List I, and there is no provision in Article 106 or else-where that bars the H
323
324 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A payment of pension to Members
,
of Parliament. [32~6-B]

D.S. Nakara and Ors. v. Union of India, [1983] l SCC 305, rderred on.

CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 9S4 of 1991.

B Under Article 32 of the Constitution of India.

WITH

W.P. (C) No. 246 of 1993.

C Soli J. Sorabjee, Attorney Geneal, Prashant Bhushan, Sanjeev Kapoor,
Ram Saran Sharma-in-person in W.P. No. 246/93, Manish Singhvi, S.N. Terdol
for P. Parmeswaran for the appearing parties.

The Judgment .of the Court was delivered by
D BHARUCHA, CJ. The Salaries and Allowances of Members of Parlia-
ment Act, 1954 was amended by the Salaries and Allowances of Members of
Parliament (Amendment) Act, 1976; thereby the principal Act was renamed the
Sa.laries, Allowances and Pension of Members of Parliament Act and Section
SA was introduced giving to Members of Parliament pensions on their satis·
E fying certain conditions stated therein. The said Section SA has been amended
from time to time and the r~tes of pension originally indicated have been
increased.

These writ petitions challenge the constitutional validity of the said
Section 8A and they have been directed to be heard by a Constitution Bench.
F
Our attention is drawn by Mr. Prashant Bhushan, learned counsel for the
petitioner in W.P.(C) No. 9S4/1991, to the provisions of Articles 106 ar•d 195
of the Constitution. Article 106 reads as under :

"106. Salaries and allowances of members.- Members of either
G
House of Parliament shall be entitled to receive such salaries and
allowances as may from time to time be.determined by Parliament
by law and, until provision in that respect is so made, allowances at
such rates and upon such conditions as were immediately before the
commencement of thi.s Constitution applicable in the case of mem-
H bers of the Constituent Assembly of the Dominion of India."
COMMON CAUSE, A REGISTERED SOCIETY v. U.O.l. [BHARUCHA, CJ.] 325
Article 195 makes similar provision in respect of the Members of Legislative A
Assemblies and Legislative Councils of the States. It is pointed out by
Mr. Prashant Bhushan that whereas legislators are thereby entitled to salaries
and allowances, there is no provision in regard to the payment of pension to
them. The provisions of these Articles are contrasted by learned counsel to the
provisions of Articles 125 and 221. Article 125(2) says that Judges of the
B
Supreme Court shall be entitled to such privileges and allowances and to such
rights in respect of leave of absence and pension as may from time to time
be determined. There is a similar provision in regard to High Court Judges in
Article 221. Our attention is also drawn to Article 148 which makes reference
to the pension of a Comptroller and Auditor General. Learned counsel's argu-
ment is that where pension is to be paid to a constitutional functionary, the c
Constitution makes specific provision and that, therefore, in not making such
specific provision in regard to Members of Parliament under Article 106, it
must be assumed that they are not entitled to receive pension.

Learned counsel drew our attention to the judgment of this Court in D.S.
Nakara and Ors. v. Union of India, (1983] 1 SCC 305 where it has been said D
that pension is a term applied to periodic money payments to a person who
retires at a certain age, considered the age of disability, and it usually continues
for the rest of the natural life of the recipient. In the case of Members of
Parliament, it is submitted by learned counsel, they do not retire and they are
not always of an age of disability when they demit office. E
Reference was made by the petitioner in W.P.(C) No. 246/I 993, ap-
pearing in person, to the provisions of Article 14 and it was submitted that
there was discrimination in favour of Members of Parliament by giving them
pension when, unlike Judges, they were not subject to the process of impeach-
ment. F

The learned Attorney General, appearing for the respondents, drew our
attention to Entries 73 and 97 of List I of the Seventh Schedule to the Con-
stitution, Entry 73 empowers Parliament to legislate in respect of the salaries
and allowances of Members of Parliament. Entry 97 empowers Parliament to
... legislate in respect of any matter not enumerated in List II or List III, that is,
G
in the State and Concurrent Lists. The learned Attorney General submitted that
the payments empowered under the said Section 8A were covered by the words
'salaries and allowances' under Entry 73 and that, in any event, they were
covered by the residuary Entry 97 of List I. He also submitted that Article 106
was an enabling provision and could not be read as imposing a bar upon the H
326 SUPREME COURT REPORTS [2001] SUPP. 5 S.C.R.
A receipt of pensions by Members of Parliament.

· The issue before us is squarely one of competence, namely, the com-
petence of Parliament to enact the said Section 8A. We need not go into Entry
73 of List I for we are in no doubt that such competence is conferred upon
Parliament by the residuary Entry 97 of List I, and there is no provision in
B Article 106 or elsewhere that bars the payment of pension to Members of
·Parliament.

In our view, therefore, the writ petitions are devoid of merit and must
be dismissed.

C No order as to costs.

T.N.A. Writ Petitions dismissed.

'