Holding

The Parliament (Prevention of Disqualification) Amendment Act, 2006 is constitutionally valid; Parliament may retrospectively exempt offices of profit and the procedure adopted does not contravene any constitutional provision.

Summary

The Consumer Education & Research Society filed writ petitions under Article 32 challenging the Parliament (Prevention of Disqualification) Amendment Act, 2006, which retrospectively added 55 offices of profit to the exempted list under the Parliament (Prevention of Disqualification) Act, 1959. The petitioners argued that the retrospective exemption violated Articles 101‑104 of the Constitution, amounted to colourable legislation by bypassing the traditional joint‑committee procedure, and infringed Article 14. The Court held that Parliament has the authority under Article 102(1)(a) to enact retrospective legislation removing disqualification and that the exemption of offices of profit is a legislative matter, not a constitutional limitation. It further ruled that the failure to refer the amendment to a joint committee does not constitute a constitutional convention and does not breach Article 14. Consequently, the amendment was declared constitutionally valid and the writ petitions were dismissed.

Issues considered

Whether the Parliament (Prevention of Disqualification) Amendment Act, 2006, which retrospectively exempts certain offices of profit from disqualification, violates Articles 101 to 104 of the Constitution.
Whether the exemption of 55 offices of profit without referral to the Joint Committee amounts to colourable legislation, violates any constitutional convention, or infringes Article 14.

Legislation cited

Parliament (Prevention of Disqualification) Act, 1959s. s.3 (as amended), s. s.4(1), s. s.4(2)
Representation of the People Act, 1951s. s.100, s. s.147, s. s.149, s. s.151A, s. s.36

Subjects

office of profitdisqualification of MPsretrospective legislationArticle 102Article 101Article 103constitutional validityArticle 14joint committeeparliamentary procedure

Judgment

[2009] 13 (ADDL.) S.C.R. 664

A CONSUMER EDUCATION & RESEARCH SOCIETY
v.
UNION OF INDIA & ORS.
(WP(C) NO. 448 OF 2006)

AUGUST 24, 2009
B
[K.G. BALAKRISHNAN, CJI., R.V. RAVEENDRAN AND
J.M. PANCHAL, JJ.]
·~·

Parliament (Prevention of disqualification) Act, 1959
c '
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
E 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
F 104.

Constitution of India, 1950:

Articles 101(3)(a), 102(1)(a) and 103(1) - Member of
G 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
H 664
CONSUMER EDUCATION & RESEARCH SOCIETY v. 665
UNION OF INDIA & ANR.

-""."- in the case of disqualification under Article 102(2) is a A
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 B
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 c
offices, any Member who was holding such office of profit 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 D
(Prevention of Disqualification) Amendment Act,_ 2006].

Article 102 - Disqualification of Members of Parliament
- For holding of an office of profit - Exclusion of certain offices
for purpose of disqualification - Held: Is a question that lies
in the legislative domain - What kind of office would amount E
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 F
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
G
Amendment Act, 2006.

CONSTITUTIONAL/SM:

Constitutional conventions - Office of profit - Exemption
of, from disqualification - Practice of matters being referred H
666 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
(
·""-·
A 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
B 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
c 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
D 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
E 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:
F
1.1. The impugned legislation is constitutionally valid.
[Para 40] [709-8-C]

1.2. The power of Parliament to enact a law under
G Article 102 (1}(a) of the Constitution of India includes the . {<
power to enact such law retrospectively. Thus, a law can
be made retrospectively to remove the disqualification
incurred on ~ccount of holding offices of profit. [Para 16]
[687-8]
H Srimati Kanta Kathuria v. Manak Chand Surana (1969)
CONSUMER EDUCATION & RESEARCH SOCIETY v. 667
UNION OF INDIA & ANR.

-~
3 SCC 268; Indira Nehru Gandhi v. Raj Narain, (1975) Supp. A
SCC 1; Nongthombam lbomcha Singh v. Leisan.gthem
Chandramani Singh & Ors. (1976) 4 sec 291, relied on

1.3. The use of the words "becomes subject to" in
Article 101 and in Article 103 of the Constitution clearly
B
demonstrate 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. Separate provisions deal with pre-
election disqualification, as is indicated by ss. 36 and 100
c
of the Representation of the People Act, 1951. Where a
person was under a disqualification at the time of his
election, the provisions of Articles 101 (3)(a) and 103 will
not apply. He/She will continue as a member unless the
High Court in an election petition filed on that ground, D
declares that on the date of election, he/she was
disqualified and consequently, declares his/her election
to be void. It follows, therefore, that if an elected candidate
was under a disqualification when he was elected, but no
one challenges his/her election, he/she would continue E
as a Member irrespective of the fact that he/she was
under a disqualification when elected. [Para 19-20 and 22)
[691-C-E; 649-8-D]
.,.. ....
Election Commission, India v. Saka Venkata Subba Rao F
& Union of India (1953) 3 SCR 1144; Brundaban Nayak v.
Election Commission of India (1965) 3 SCR 53, referred to.

1.4. The constitutional scheme is that a person shall
be disqualified from continuing as a Member of
Parliament if he/she holds any disqualifying office of G
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 whether he/she is H
668 SUPREME COURT REPORTS [2009] 13 (ADDL.) s.c.R:

A disqualified or not, if raised, shall have to be referred for
a decision by the President of India and the same will be
made after obtaining the opinion of the Election
Commission of India. It is only after the President decides
that the Member has incurred an alleged disqualification
B 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 show that
the question whether a Member has become subject to
c any disqualification under clause (1) of Article 102 has to I-
be decided only by the President. Such a question would
be a mixed question of fact and law. It is only after such
a decision is rendered by the President, that the seat
occupied by an incumbent MP becomes vacant. [Para 24]
D (695-A-F]
2.1. 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. The
E constitutional scheme in Articles 101 to 104 indicates that
the vacancy of the seat would occur only when a decision
is rendered by the President under Article 103 and not at
the point of time when the Member is alleged to have
incurred the disqualification. The vacancies
F contemplated in Article 101(3)(a) will arise only when the
.Pisqualification is decided upon and declared by the
President under Article 103(1) or declared by the
Chairman or the Speaker of the House .under Para 6(1)
of Tenth Schedule. Therefore, in the case of vacancy
G under Article 101(3)(a), the vacancy of the seat is not
automatic consequent upon incurring the
disqualification, but would occur only upon a declaration
of the disqualification by the designated authority.With
regard to disqualification under Article 102(2) on the
H ground of defection, the vacancy of the seat would
CONSUMER EDUCATION & RESEARCH SOCIETY v. 669
UNION OF INDIA & ANR.

become operative only when a decision is rendered by A
the Chairman or the Speaker of the House, as the case
may be, declaring his disqualification. 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 Article 8
102(1) and a declaration by the Speaker or the Chairman
under Para 6 of the Tenth Schedule in the case of a
disqualification under Article 102(2) is a condition
precedent for the vacancy of the seat. [Para 24,25,28 and
30] (695-F:.G; 698-F-H; 699-8-C; 700-D-F]
c
2.2. When the President adjudicates on the subject
of whether a Member was disqualified or not and gives a
finding that he/she is disqualified, such person is merely
deemed to have ceased being a Member·from the date
he/she had incurred the disqualification. It follows that a D
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. If the President holds
that the Member has not incurred the disqualification, the E
person continues as a Member. [Para 35] [706-E-G]

2.3. 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 F
not in doubt that the vacation of the seat is
consequential. However, the seat of the Member does not
become vacant without anything more when a person
accepts an ·office of profit'. 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 G
same, the Member would continue in spite of accepting
an office of profit. Therefore, while a disqualification
results in the vacation of the seat of a Member, the
vacancy occurs only when the President decides and
H
670 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A declares the di· qu<Jlification under Article 103. [Para 36] .~
[706-G-H; 707-A-D]

2.4. When the Amending Act retrospectively removed
the disqualification with regard to certain enumerated
offices, any Member who was holding such office of
8 profit, was freed from the disqualification retrospectively.
As of the date of the passage of the Amendment Act,
none of the Members who were holding such offices had -~
been declared to be disqualified by the President, s.4(2)
was not attracted and consequently they continued as
C Members. [Para 37] [707-D-F]

3.1. Which 'offices' should be excluded for the
purpose of disqualification, is a question that properly
lies in the legislative domain. What kind of office would
o 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. The key concern
that certain offices or places held by an MP may be either
incompatible with his/her duty as an elected
E representative of the people or affect his/her
independence and thus weaken his/her loyalty to his/her
constituency and, therefore, should disqualify the holder
thereof, is a matter to be addressed by Parliament. [Para
38] [707-F-H; 708-A]

F 3.2. While making the legislation exempting any
office, the question whether such office held by a person
is incompatible with hisihPr position as an MP and '
~
whether his/her independence would be compromised J
and whether his/her loyalty fo his/her constituency will be
G 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. Nothing has been pointed
out to suggest that any of the newly exempted 'offices'
H suffer from any such impropriety or will be prejudicial to
,-,_
CONSUMER EDUCATION & RESEARCH SOCIETY v. 671
UNION OF INDIA & ANR.

the constituency or affect the independence of the A
Member. [Para 38] [708-8-D]

4. The plea regarding violation of Article 14 of the
Constitution merely because several other similar offices
of profit are not included in the exempted category, has s
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.
[Para 38] [708-D-E] c
5. 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, D
was being taken and only when· there was a
recommendation that a particular office should be
exempted, the Act was being amended to add that office
to the list of exemptions. However, this was merely a
parliamentary procedure and not a constitutional E
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 Parliament of its
power to make a law. Nor can such law which is otherwise F
valid be described as unconstitutional merely because a
procedure which was followed on a few occasions was
not followed for the particular amendment. [Para 39] [708-
E-H; 709-A-B]

Case Law Reference: G

(1969) a sec 268 relied on para 13
(1975) supp. sec 1 relied on para 17

H
672 SUPREME COURT REPORTS {2009} 13 (ADDL.) S.C.R.

A (1976) 4 sec 291 relied on para 18
(1953) 3 SCR 1144 referred to para 21
(1965) 3 SCR 53 referred to para 21

B CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.
448 of 2006.

Under Article 32 of the Constitution of India.

WITH
c W.P. (C) No. 411 of 2006.
Gopal Subramanium, Mohan Parasaran, ASG, Ravindra
Shrivastava, Sr. Adv. E.R. Kumar, Sameer Parekh, Kunal
Verma, Ranjeeta Rohtagi, Diksha Rai, Rajul Shrivastav, Anup
D Jain, K. Krisna, Supriya Jain, Ajay K. Jha (for Parekh & Co.), )'
P. Parmeswaran, Raghenth Basant, Aman Ahluwalia, Balaji
Subramaniam, Gaurav Agrawal, Tapesh K. Singh, B.K. Prasad,
D.L. Chidananda, Gaurav Dhingra, K.K. Senthivelan, C.S.
Bhardwaj for the appearing parties.
E
The Judgment of the Court was delivered by

K. G. BALAKRISHNAN, CJI. 1. These two writ petitions
filed under Article 32 'of the Constitution by way of public
interest litigation, challenge the constitutional validity of the
F Parliament (Prevention of Disqualification) Amendment Act,
2006 (Act No. 31/2006, Hereinafter 'Amendment Act'). It
amended the Parliament (Prevention of Disqualification) Act,
1959 (Hereinafter 'Principal Act'). The Amendment Act adds
to the list of 'Offices of Profit' which do not disqualify the holders
G thereof for being chosen as, or for being the Members of
Parliament.

Historical background

2. The expression 'Office of Profit' is not defined in the
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 673
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

Constitution. The view that certain offices or positions held by A
a Member of Parliament (Hereinafter also referred to as 'MP')
may be either incompatible with his/her duty as an elected
representative of the people, or affect his/her independence,
and thus weaken the loyalty to his/her constituency and,
therefore, should disqualify the holder thereof, had its origin in B
the Parliamentary history of the United Kingdom. (See: The
Introduction to the Bhargava Committee Report on Office of
Profit, dated 22.10.1955). The concept of 'office of profit' has
.~
a history of more than four centuries in United Kingdom and it
has evolved through many phases. The first was the "privilege" c
phase (prior to 1640). The second was the "corruption" phase
(from 1640). The third was the "ministerial responsibility" phase
(after 1705). Initially the English Parliament claimed priority over
the services of its Members and it was considered derogatory
.., to its privilege if any of its Members accepted some other office
D
which would require a great deal of their time and attention.
--'\.
This led to the evolution of the idea that the holding of certain
offices would be incompatible with the responsibilities of a
Member of Parliament. This was the first phase. During the
second phase, there was a protracted conflict between the
E
Crown and the House of Commons. Loyalty to the King and the
loyalty to the House of Commons representing the will of the
people became growingly irreconcilable and it was thought that
if any Member accepted an 'Office of Profit' under the Crown,
'j-}
there was every chance of his loyalty to Parliament being
compromised. Subsequently came the third phase. The King F
was reduced to the position of a constitutional head and the
cabinet, functioning in the name of the Crown became the
centre of the executive government. The Privy Councilors, who
during the second phase were invariably considered to be the
henchmen of the King and were as such looked upon with G
suspicion by the House of Commons, yielded place to the
-~
Ministers, who for some time were also disqualified from holding
a seat in the House. Later it came to be recognized that the
application of the disqualification rule to incumbent ministers
was too extreme and with the intent of ensuring effective H
674 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A coordination between the executive and the legislature, it was ,,;.,
accepted that the Members of the executive should be
represented in the Parliament. This recognition led to the
passing of several enactments by the British Parliament. The
Re-Election of Ministers Act enacted by the British Parliament
B in 1919 and 1926 required any Member who was appointed
to a 'political office' to seek re-election.

3. As we have adopted the British Parliamentary form of
-~
Government, the concept of 'office of profit' was also adopted
with some modifications. The concept of 'office of profit' began
c to develop with the entry of non-official members in the
Legislature. A clear and precise statement in this regard was
made in Section 26(1)(a) of the Government of India Act, 1935
which provided that a person shall be disqualified for being
chosen as; and for being, a Member of either Chamber if he .
D held any office of profit under the Crown of India, other than an ;;-..
office declared by Act of the Federal Legislature not to
disqualify its holder.

4. When the Constitution of India came into force on 26th
E January, 1950 declaring that a person holding an office of profit
would be disqualified, the explanation to Article 102 clarified
that a person who is a Minister (either for the Union or for any
State) shall not be deemed to hold an office of profit. However,
there existed Ministers of State as also Deputy Ministers in the
F Union Government who were not specifically exempted from
disqualification under Article 102 because the expression
'minister' was construed as referring only to a Cabinet Minister.
In order to address this situation, the Parliament (Prevention
of Disqualification) Act, 1950 was enacted. Section 2 of the
G said Act provided:
"2. Prevention of disqualification for membership of )<:
Parliament: A person shall not be disqualified for being
chosen as, and for being a member of Parliament by
reason only of the fact that he holds any of the following
H offices of profit under the Government of India or the
CONSUMER EDUCATION & RESEARCH SOCIETY v. 675
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

Government of any State, namely, an office of Minister of A
State or a Deputy Minister, or a Parliamentary Secretary
or a Parliamentary Under Secretary."

5. This was followed by the Parliament (Prevention of
Disqualification) Act, 1951 declaring that certain offices
B
(specified in Section 2 thereof) under the government shall not
disqualify, and shall be deemed never to have disqualified the
holders thereof for being chosen as, or for being, Members of
~
Parliament. The said Act was given retrospective effect from
26.1.1950.
c
6. In 1954, a Committee was constituted under the

..
chairmanship of Pandit Thakur Das Bhargava to study the
various matters connected with the disqualification of MP's and
·to make recommendations in order to enable the government
f
to consider the manner in which a comprehensive legislation D
-l\. should be brought. The Committee submitted its report in 1955.

- In 1959 the Parliament (Prevention of Disqualification) Act,
1959 was enacted, thereby declaring that certain offices of
profit under the government shall not disqualify the holders
thereof for being chosen as or for being, Members of E
Parliament. Section 3 of the Principal Act (amended from time
to time) declared that none of the following offices in so far as
it is an office of profit under the government of India or the
-.; ..,. government of any State, shall disqualify the holder thereof for
being chosen as, or for being, a Member of Parliament: F
"(a) any office held by a Minister, Minister of State or
Deputy Minister for the Union or for any State,
whether ex officio or by name;

(aa) the office of a Leader of the Opposition in G
Parliament;
·~

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

(ac) the office of each leader and deputy leader of a H
676 SUPREME COURT REPORTS (2009] 13 (ADDL.) S.C.R.

A recognized party and recognized group in either
House of Parliament; ,-4

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

(i}: the National Commission for Minorities
constituted under Section 3 of the National
_.;:(
Commission for Minorities Act, 1992 (19 of
c 1992);

(ii) the National Commission for the Scheduled
Castes and Scheduled Tribes constituted
under clause (I) of article 338 of the
Constitution;
~
D. \

(iii) the National _commission for Women ,?'- '

E
(c)
constituted under Section 3 of the National
Commission for Women Act, 1990 (20) of
1990;

the office of member of any force raised or
-
.

maintained under the National Cadet Corps Act,
1948 (56 of 1948), or the Reserve and Auxiliary Air
Forces Act, 1952 (62 of 1952);
r't-
F (d) the office of a member of a Home Guard
constituted under any law for the time being in force
in any State;

(e) the office of sheriff in the city of Bombay, Calcutta
G or Madras;

(f) the office of chairman or member of the syndicate,
senate, executive committee, council or court of a '>:
university or other body connected with a university;

H (g) the office of a member of any delegation or mission
CONSUMER EDUCATION & RESEARCH SOCIETY v. 677
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
~
' sent outside India by the Government for any A
....... 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
lllllil;,
I matter of public importance or for the purpose of
making an inquiry into, or collecting statistics in
k. respect of, any such matter, if the holder of such
office is not entitled to any remuneration other than
compensatory allowance;
c
(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 D
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 E
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
F
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 G
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 H
678 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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'.
B 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 -~
c (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
D
. 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
E 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~-
F
"(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;"
G 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
H or Member (by whatever name called) in any
CONSUMER EDUCATION & RESEARCH SOCIETY v. 679
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

statutory or non-statutory body specified in the A
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;
B
(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 C
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 E
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 F
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 G
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 H
680 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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
C Parliament. Article 101 enumerates the circumstances in which
the seats of Members of Parliament will become vacant.
Portions of Article 101 are extracted below:

"101. Vacation of seats.-(1) No person shall be a member
D 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
..
E 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
F 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
G 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,
H as the case may be, and his resignation is
CONSUMER EDUCATION & RESEARCH SOCIETY v. 681
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

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

his seat shall thereupon become vacant:"

Article 102 enumerates the various disqualifications for
membership and it is extracted below: B

"102. Disqualifications for membership.
)...,.
(1) A person shall be disqualified for being chosen as, and
for being, a member of either House of Parliament- c
i
(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;
D
~ (b) If he is of unsound mind and stands so declared by

- (c)

(d)
a competent court;

If he is an undischarged insolvent;

If he is not a citizen of India or has voluntarily E
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 F
'" 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 G
such State.

(2) A person shall be disqualified for being a member of
either House of Parliament if he is so disqualified under
H

-'•
682 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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.
B 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
c (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.
D
(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."

E "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 .,.--t-
not qualified or that he is disqualified for membership
F
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."
G
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
H Parliament.

..
CONSUMER EDUCATION & RESEARCH SOCIETY v. 683
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

A. 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 a
Member of either House of Parliament becomes subject to any B
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 c
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 D
"'\., 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 E
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 F
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
G
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
H
684 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

office of profit, when they were elected) and on the day they ,,A
A
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
B 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,
c 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
D )-
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
E 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
.. ~

F 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
G 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-
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 685
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

constitutional convention which has been followed for more than A
half a century was violated when 55 offices were given a
'wholesale' exemption with retrospective effect without
obtaining any report from the Joint Committee on the question
of whether the said "offices of profit" deserved to be exempted
or not. It was hence argued that the Amendment Act was a B
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 c
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 E
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 F
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 G
• i ·disqualification. Hence itwas contended that till such a decision

a
s bylhe-Presiaent, Member\vho is alleged to have incurred a
\:"disqualification continues tcfbe a Member. It was submitted that
:~ since there was· no dedaration· of disqualification by the
President and because the Amendnienf 'Act had retrospectively · H
686 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
B 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 ,..~
c 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
D 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
E Constitution.

15. The aforesaid contentions give rise to the following
questions for consideration by this Court:

(i) Whether the Amendment Act retrospectively
F exempting ·certain offices of profit from
r-
disqualification, violates Articles 101 to 104 of the
Constitution and is therefore invalid?
.
\
l

(ii) Whether exemption of as many as 55 offices
G 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
H Constitution?

'
L
CONSUMER EDUCATION & RESEARCH SOCIETY v. 687
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
Re : Question (i) A
~.
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
B
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 c
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. D
-"\,.
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 E
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 F
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 G
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): H
688 SUPREME COURT REPORTS [2009) 13 (ADDL.} S.C.R'.

A , •... 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~
B
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) •
c
..•... 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)
D
(emphasis supplied)
,..
The minority concurred and held as follows (Sikri, J. at Para. '
12 and 13):

E ·12. At the hearing our attention was drawn to a number
of such Acts passed by our Parliament and the
Legislatures of the States. It seems that there is a settled
legislative practice to make validation laws. It is also well-
recognised that Parliament and the Legislatures of the
F 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
G 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
H disqualified if he holds an office of profit under the
CONSUMER EDUCATION & RESEARCH SOCIETY v. 689
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
)..,

'<
Government of India or the Government of any State unless A
that office is declared by the Legislature not to disqualify
the holder. Power is thus reserved to the Legislature of the
State to .make the declaration. There is nothing in the
words of the article to indicate that this declaration cannot
be made with retrospective effect. It is true that it gives an B
advantage to those who stand when the disqualification
.., was not so removed as against those who may have kept
"
themselves back because the disability was not removed.
That might raise questions of the propriety of such
retrospective legislation but not of the capacity to mak~ c
such laws. Regard being had to the legislative practice in
this country and in the absence of a Clear prohibition either
express or implied we are satisfied that the Act cannot be
-.,.. declared ineffective in its retrospective operation."
.-
.

"'\.. D
(emphasis supplied)
I
........ 17. In Indira Nehru Gandhi v. Raj Narain, (1975) Supp .
SCC 1, another Constitution Bench of this Court reiterated
Kantha Kathuria. The following observations were made by
AN. Ray, C.J. (at Para. 138 and 139): E
" ... The power of the Legislature to pass a law includes a
.,...., power to pass it retrospectively. An important illustration
with reference to retrospective legislation in regard to
..._
election is the decision of this court in Kantha Kathuria's
case." (Para. 138)
F

" ... A contention was advanced that the legislative
measure could not remove the disqualification
retrospectively, because the Constitution contemplates
disqualification existing at certain time in accordance with G
law existing at that time. One of the views expressed in
that case is that Article 191 recognizes the power of the
Legislature of the State to declare by law that the holder
of the office shall not be disqualified for being chosen as
a member. Power is reserved to a Legislature of the State H
,
690 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
:",.
,.I..
A to make the declaration. There is nothing in the Article to
f-
indicate that this declaration cannot be made with
r-etrospective effect. The act was held not to be ineffective
in its retrospective operation on the ground that it js well
recognized that Parliament and State Legislatures can
B make their laws operate retrospectively. Any law that can
be made prospectively can be made with retrospective
operation." (Para. 139) ,. -J.

(emphasis supplied)
c 18. Kanta Kathuria and Indira Gandhi were followed by a
three judge bench of this Court in Nongthombam lbomcha
Singh v. Leisangthem Chandramani Singh & Ors., (1976) 4
SCC 291, where this Court affirmed the decision of the High
~
Court that the respondent therein was not disqualified from .
D seeking election because of the fact that he held the office of >-· "":=
the Speaker. The following reasoning was given by H.R.
Khanna, J. (at Para. 3): .....
" ... We find that the Manipur Legislature has now passed
the Manipur Legislature (Removal of Disqualifications)
E (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.
F 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
G - 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 .
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 691
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
A..
office of the Speaker of the Legislative Assembly," A

(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 B
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 c
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.
D

20. This does not mean that a Member, who was holding
a disqualifying office of profit when he was elected and sworn
E
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 F
t 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, G
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 H
692 SUPREME COURT REPORTS [2009] 13· (ADDL.) S.C.R.

_).
A 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
B 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
c 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
D 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
E 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
F
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
G same set of disqualifications for election as well as for )
continuing as a member, and article 193 which prescribes
the penalty for sitting and voting when disqualified, are
naturally phrased in terms wide enough to cover both pre-
existing and supervening disqualifications; but it does not
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 693
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
. necessarily follow that articles 190(3) and 192(1) must also A
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 B
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 c
vacant on his becoming disqualified, further reinforces
the view that the article contemplates only a sitting
member incurring the disability while so sitting. The·
suggestion that the language .used in article 190(3) can
equally be applied to a pre-existing disqualification as a 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)
E
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 F
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 G
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 H
694 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A seat shall thereupon become vacant. Incidentally, we may
add that corresponding provisions withI regard to the
disqualification of members of both Houses of Parliament
are prescribed by Articles 1O1, 102 and 103 of the
Constitution .... "
B
[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
c as a Member unless the High Court in an election petition filed
on that ground, declares that on the date of election, he/she
was 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
D challenges his/her election, he/she would continue as a Member )r--
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
E
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
F 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
G 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
H votes, to a penalty of five hundred rupees to be recovered as
( CONSUMER EDUCATION & RESEARCH SOCIETY v. 695
(
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

"' a debt due to the Union. A

,~
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 B
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:·
c
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 D
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 E
Article 102 has to be decided 0F1ly by the President. Such a
question would of course be a mixed question of fact and law.
+~., The Constitution provides the manner in which that question is
to be decided. We are of the view that it is only after such a
decision is rendered by the President, that the seat occupied F
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.
G
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
H
696 SUPREME COURT REPORTS [2009] 13 (ADDL) S.C.R.

~
A 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:
B (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
c 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
D 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
E 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
F 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.
G 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
H thereupon become vacant. Clause (2) of Article
CONSUMER EDUCATION & RESEARCH SOCIETY v. 697
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

102 refers to a person being disqualified for being A
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 B
disqualification under the Tenth Schedule, the
question shall be referred for. the decision of the
Chairman, or as the case may· be, the Speaker of
..,.._.., such House and his/her decision shall be final.

(iv) Clause 3(b) of Article 101 provides that if a
c
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.
D
(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.'. E
. ·..
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 F
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 G
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 H
698 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

A 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
B 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
c 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
D
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.

E 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 /
F automatically on the expiry of 15 days after the point of time .A·
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
G 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
H
1\ "h
CONSUMER EDUCATION & RESEARCH SOCIETY v. 699
UNION OF INDIA & ANR. [K.G BALAKRISHNAN, CJI.]

a political party or votes or abstains from voting in the House A
~
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 c
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
D
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 151 A of the RP Act. Section 147 deals E
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 F
Commission shall have to fill up the vacancy by holding bye-
elections within a period of six months from the date of
occurrence of the vacancy. There is no difficulty in caJ.Culating
this six month period where a Member's seat becomes vacant
on account of his/her seat being declared vacant under Article G
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 H
700 SUPREME COURT REPORTS [20d9) 13 (ADDL.) S.C.R.

A 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,

B 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=
c 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 '
D '
'-..!
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
E 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.
F 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
G that one of its Members gave up his/her membership, and on
the other hand the concerned member denies the same fact.
The six month period prescribed for conducting a bye-election
cannot obviously be- ~ompute~. _f~~~.~~~,: ~!~~9_~~ ',~~.~~ . of
1

surrender of member~h1p. The ·s~1d;plnoc:shqu,1d~be _prop~rly
H computed from ·theniate 'O'n\v~~~7~fj 6isioW on'ttiePsubje6t of
•·._ ... ~
IJ. ' ' ,.
CONSUMER EDUCATION & RESEARCH SOCIETY v. 701
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
~ disqualification is given by the Chairman or Speaker of the A
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 B
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 c
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 D
~~
House, is merely an adjudication and confirmation of a pre-
existing fact. Therefore the disqualification is not created by the
decision of the President. However, the vacancy of the seat is
a consequence of the decision arrived at by the designated
authority.
E
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 F
under 191(1) and 101(1). It was held that, [(1965) 3 SCR 53,
Gajendragadkar, J. at Para. 14]:

"It is true that Art. 192(2) requires that whenever a
question arises as to the subsequent disqualification of
G
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
H
702 SUPREME COURT REPORTS [2009) 13 (ADDL.) S.C.R.

A 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
B 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
c 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
D 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)."
E
(
(emphasis supplied) I

Kanta Kathuria also clearly held that when a Member accepts
I
an office of profit and incurs a disqualification, and such ...-4._

F 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
G 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,
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 703
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]
~ · retrospective removal of disqualification will not revive the A
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 B
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 c
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 D
~ 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
E
Member accepts an office of profit and incurs a disqualification
during his tenure.

......j ~
34. In Brundaban Nayak, a private citizen (second
respondent) complained to the Governor that the appellant had
incurred disqualification under Article 191(e), subsequent to his F
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
G

the disqualifications specified by Art. 191 (1 ), is entitled to
continue to be a Member of the Legislative Assembly of a
H
704 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

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
B 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
c 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.
~
D 35. The petitioners next placed reliance on observations
in another Constitution Bench decision in P. V. Narasimha Rao
r
.
v. State (CBllSPE), (1998) 4 SCC 626. S.P. Bharucha, J. noted
as follows (at Para. 80):

E "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 .""-
F immediately upon his becoming subject to the
disqualifications mentioned in Article 102, without more.
The removal· of a member of Parliament is occasioned
by operation of law and is self operative. Reference to the
President under Article 103 is required only if a question
arises as to whether a Member of Parliament has earned
G
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
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 705
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.]

~ 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) B

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 C
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 D
·""'\:. 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 E
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 F
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 G
the Member has become subject to a disqualification
mentioned in clause (1) of Article 102, the Member would
be treated to have ceased to be a Member on the date
when he became subject to such disqualification. If it is
H
706 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.
I

A 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,
B 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
c 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
D 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
E 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._
F to have ceased being a Member from the date that he/she had
incurred the disqualification. It follows that a member continues-
to be one until the decision of the President and when the
outcome of the decision is that he/she is disqualified it relates
back to the date when the said disqualification was incurred. If
the President holds that the Member has not incurred the
G
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
H
(

CONSUMER EDUCATION & RESEARCH SOCIETY v. 707
UNION OF INDIA & ANR. [K.G BALAKRISHNAN, CJI.]
"'that the vacatio11 of the seat is consequential. However, the A
+ 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, B
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 c
Officer accepts the nomination and if no election petition is filed
challenging the election, then he/she would continue as· a
Member in spite of the disqualification. Therefore, our

- ~
considered opinion is that while a disqualification results in the
vacation of the seat of a Member, the vacancy occurs only when
the President decides and declares the disqualification under
Article 103.
D

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 E
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. F

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 G
'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·
708 SUPREME COURT REPORTS [2009] 13 (ADDL.) S.C.R.

·,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
B 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
whether his/her loyalty to his/her constituency will be affected, A+
c 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
D any such impropriety or will be prejudicial to the constituency
,..~

or affect the independence of the member. The plea regarding
violation of Article 14 merely because several other similar 7
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
E 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 ~
F 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
G 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
H
CONSUMER EDUCATION & RESEARCH SOCIETY v. 709
UNION OF INDIA & ANR. [K.G. BALAKRISHNAN, CJI.] _

disqualification and to do so with retrospective effect, any A
~ 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. B

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.
c
R.P. Writ Petitions dismissed.