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REGD. NO. D.L.-33004/93 The Gazette of India EXTRAORDINARY PART II—Section 3 —Sub-Section (ii) PUBLISHED BYAUTHORITY No. 20) NEW DELHI, TUESDAY, JANUARY 5, 1993/PAUSA 15,1914 Separate Paging is given to this Part in order that it may be field as a separate compilation 53 GI/93 (1) 2 THE GAZETTE OF INDIA: EXTRAORDINARY [PART II—SEC. 3(ii)] 3 4 THE GAZETTE OF iNTflA: EXTRAORDINARY [PART II—SEC. 3(li)J 5 iiabie to disqualification for be ng member o<" the .'•aid House 'ii terms cf aiticlc 102 of the Constitution, m'er al>«. on giuunds of alleged v-olation oi oaths/affirmations under arti- cJit, 84 and 99 of the Constitution; And whereas the President of India had sought the opinion of the Election Commission under clause (2) of article 103 of the Constitution with reference to the said petition; And whereas the Election Commission is of the opinion (\,ue Annexe) that it is now well settled that the violation of oath or affirmation made by a Member of Parliament under article 84(a) or article 99 is not per se a disqualification under article 102 of the Constitution for being such member and that the Election Commission does not consider it necessary to go into the question whether the four Members of Parliament have violated the oath of affirmation under Ih; Constitution; Aad whereas the Election Cofflmission has held that SiShri Shibu Soren, Shailendra Mahato, Suraj Mandal and Simon Marandi, have not become subject to disqualification under article 102(1) of the Constitution for being such Members on the grounds mentioned ia the aforesaid petition; Now, therefore, I, Shanker Dayal Sharma* President of Indta, do hereby dismiss the aforesaid petition of Shri Raj Kishore Mahato. December 29, 1992. PRESIDENT OF INDIA ~"" ' •- ' ANNEXURB BEFORE THE ELECTION COMMISSION OF INDIA Ref. Case No. 2 of 1992 (Refereace from the President of India under Article 103(2) of the Constitution of India) In re :—Alleged disqualification of S/Shri Shibu Soden, Sha<lcndra Mahato, Suiaj Mandal and Simon Marandi, all sitting Members of Parliament (Lok Sabha). OPINION 1. This reference dated 5-11-92 from the President of India under Article 103(2) of the Constitution of India seeks opinion of the Election Comm>!>sion on the question of alleged disqualification of S|Shri Shibu Soren, Shailendra Mahato, Suraj Mandal and Simon Marandi, all sitting members of Parliament (Lok Sabha) elected from the State of Bihar. ., y^, 2. The above reference has arisen aa a petition dated 21-10>-92 made before the President by Shri Raj Kishore Mahato, MP (Lok Sabha) purporting to be in terms of Article 103(1) of the Constitution of India. It has been alleged in the said petition that the abovementioned four MINISTRY OF LAW, JUSTICE AND COMPANY Members of F'arliament boycotted the election to the office AFFAIRS of the PrcsMent of India and also the biennial elections to the Legislative Council of Bihar held in July. 92, in pursuance (Legislative Department) of a resolution passed by the Jharkhand Mukti Morcha, a recognised Stete party in Bihar, on 11-7-92. It is also NOTIFICATION alleged that a thereat was issued by the Jharkhand Mukti Morcha to expel any MP'MLA of ihe party violating the New Delhi, the 5th January, 1993 partv resolution to boycott the said Presidential election. On these allegations, the petitioner has raised the following S.O. 25(E).—The following Order made by the President crestions for determination by the President :— is published for general information :— ORDER "I \s hefher a political party in Tndia regisiered tinder the Election Commission of India, can be allowed Whereas a petition dated 21st October, 1992 has been made to retain its political identity and recognition, in case purportedly under artic'e 103C1) of the Constitution by Shri the political party boycotts the Flection to the Offic" Raj Kishore MaJiato, M.P., alleging that S/Shri Shibu Soren, of the Pieîrfent of Un>'on of India bv taking such Shailendra Ma.hato, Suraj Mandal and Simon Masandi, a!l a resolution in the Central Executive Committee of sitting members cf the House of the People, have become the Party? 6 THE GAZETTE OF INDIA : EXTRAORDINARY [PART II—SEC. 3(ii)J II. Whether the Members of Parliament who havs boy- 4. A plain reading of Article 103 of the Constitution will cotted the election to the Office of the President of show that the only question which can be raised before tho Union of India, have not acted continry to ihe Prjsident in terms of clause (1) of that Article is whether a odilii, jfhiinaiions uauer Articles B4 mj 'J9 to th- member ot cither House of Parliament has become subject Constitution of India and as such whether they rfic to uny of tho disqu'iliueaiioiw mentioned in flails© not liable to be disqualified trom the memborship (1) of Article 102 of the Constitution. Therefore, the ques- of the Parliament for violation, disrespect, disbelief, tions raised ty the petitioner as are mentioned at I, HI and non-allegiance, denial, challenge and insult to Uio V MI |i-iu ?. abo'L cannot He tuiied botoiv l.'ic PiCiiJent in C onstitution of 1 adia ? tenns of Aiticle 103 of the Constitution. As a logical corol- lary, the Election Commission ]J ulso not obliged to express III. Whether by boycotting the election to tho Ofiiee of or tender uny opinion oo these question on the present refer- the President oi Union of India as well as by ence made by the President under Article 103(2) of the hovcnlting ihc election io the Oirhcc ol ihu member Connitntion. of Legislative Council of Eihar, the four Respon- dent MlJs have not combined systematically to refuse 5. Th'is, only the questions posed fit II and IV ib para tho relations wi h the Oiilcc of the President of 2 rfbovc survive for confideIMLion und opinion of the Com- Union ot India rnd have cut-oft: their lelations with mission. our Constitution and have punished the system of our democratic Government established by law 7 fl.J It ii veikxtliad law that the rioht to elect or to be Elected to Pailiament or a State Legislature in India is not IV. Whether the foul Respondent MFs should not be A common law right, but a statutory right. Such right is disqualified for v olalion of the Constitution of India tvholly governed by th« provisions of the statute which creat- when even the 1'resident is liable to (hia) removal «vl it. [Kindly sec JapDnnath vs. Jaswant Singh (AIR 1954 from Orfice lor violatio-i of tho Constitution as SC ?10t, 1i>murn Prasad Mukhariya vs. Lacchi Ram (AIR enumerated in the Article 61 of the Constitution of 195 4 SC 'iff)), Oajonnn Narayjn Patil vs. Dattutrayu Waman India ? Patil lf»90 (3) S( C 634, etc.]. V. Whether the afore*,aid Respondent I.IPs are not liable to be prosecuted under the provisions of Prevention 6 2 Therefore, the ahovemenlioned two que'j'ions posed by of Insult to National Honours Act, 1971 for the the petitioner have to be cmsideicd and answered in the acts committed by their bringing into contempt ol liplX of (he enpeted provisions rtlating to disqualificKtion of the Constitution of India by taking such ft resolu- pei sons for being chosen as, and for being, members of tion 7" Parliament or a State Lefiislatuie. 7. r.clxre proceeding further, I would l'kf to po;nt out 3.1 As mentioned aLuve, the petition pui ports to be in and i-latify that in the scheme of the Constitution and the terms of Article 103 ol the Constitution, For Facility of Rcpie'entation of the People Art, 1^51 separate prov'sions reference, ArlicJe 103 is I (.-produced below .— have been made for 'Qualifications' and 'Disqualifications' for membership of Parliament. Whereas, Article 84 of the "103. Decision on questions ns to disqualifications 6T Constitution and Chapter TI of Part II Of the Renresentnlion members.—(1) 11 any question arises as to whether of (he People Act, 1951 contain provisions for 'Qualifications' a member ol either House of Parliament bus become foi membership of Parliament, Article 102 of tho Constitution subject to any of the disqualifications mention d in and Chapter TTI of Part II of Ihe said Act contain provisions clause (1) of article 102, the question shall be re- i elating to 'Disqualifications' for membership of Parliament. fened for the .lecision of the President ard his Parallel provisions are made in Articles 173 and 191 of the decision shall be final. Constitu'ion for 'Qualifications' Hnd 'Disqualifications' for membership of State Legislatures. From tho reading of tho (2) Before giving any decision on any such question, aforementioned provision1; of the Con'tltut'on and th? Repre- the President shall obtain the opinion of the Electfon sentation of the People Art, 1951, it is abundantly clear that Commission and shall act according to such opinion," Constitution makers and the Parliament have consciously made separate provisions lor qualifications and disqualifica- 3.2 Article 102. which is referred to in Article 10."i(l) is tions for hemr. chosen us. and for br-ins, a member of Par- oho reproduced below for facility of reference :—• lk'^nt or a State I egishture, Qualification1; and disqualifications arc thus two separate ami distinct concepts in the "102. Disqualification for membership.—(11 A person '.chemc of the Constitution und thft election law and the shall be disqualified for being chosen as, and for 'Jack of qurtlinc'iflon' is not 'dNijuaHriention' in Ihec aid scheme. being, a member of either House of Parliament— Under Ariicle 101(1) of the Cons'itulion, it K on\ the question of Misqiiii'ifiratioii' of a imcmbi-r of Parli;Jnent th-it can (a) if he holds any office of profit under the Goverr.- be iai^'1 before the President and which con be referred meni Of Tndia or the Government of any State, to tlip c orrini'-sion for its noinicn and not tltc ouestion of other than tin office declared bv Parliament by Ti'i'lTicMiin or lfck nf ciualificution of such nvmber. law not to disqualify its holder; (IV) if he is of unbound mind and stands so declared K. \ri "t It- 10? of thf Con=titutinn which is reproduced In by a competent court; t\h i ^.2 above pisccribes (he disqualifications for being chosen as and for bcinu, a member of either Houc'5 of (Q) if he is an undiscimrped insolvent ; ih- Piirlia-iiept. S\ib-clnu'c (a) to (d) of clw? (1) of t1,-\f Article e^presscly ppell out certain disqualifications and (d) if he i<; not a citizen of India, or has volimtaiilv "ifb-cia'isp f*) of that clause cmjiowers Parliami'nt to Dro- acquired Ihe citizenship of a foreign StPte or is viiL- for utW;'lonn1 disqualifications bv law. ^-ir i.imcnt hm under anv acknowledgment of allegiance or irecciil-)H si'fh <1ic_rjualifications in Chanter TIT of Part II Adherence to P foreign Stale ; of t^c Representation of the People Act, 1951. (e) if he is KO disciualified In or under my law made 0 \ bnrc pû'il of ArHcle 10? of the Constitution and by Parliament. C!->!i-iii>'- III of Part IT of the Rr-riresent-ition of the People Art 195] v ill show thnt the violntion of o»t.'i or aTirmrtirm Explanation.-—FT- the purposes of this claire a rcr=on 'iivW tbi- Constitution Ms not been p-cscribed a1; a dis- shall not b" deemed to hold pr> office of profit nvB'i^^T'ion for ben" chosen Pr, or for being, a member under the Government ot TnOin ot ihf Om-rnrnen* or T',ir''irr""nt either und?r tho Constitution or tirdcr trie of any State1 bv icai<ri onlv tint he is n Minister ••I'd Act. Arlic'e R^rn> nf the CcisfiHifion nroviVlci that either for the Union or for <.uch Slate. n persni to be fjualiflet' to be chmen ns a rnrmfipr of Parh'a- n-rir ibi'l TCIIC nnd s'^^cribe fin oath or ;iffiinat:OTi a'-cord- (2) A person ili°11 k^ rKrenhfied for I ("TIT ^ Temper ,'r|rr » t'i ffirni cf.f fî>• f(ir +];(• pvepo^p in the Th'rri Schedule of either TTo'iie of ParlnT^nt if he is so drc'tialified ir> *1n C5onstiti't'ori nt trip tim^ of hi' nomination ft1? a 1P under the Tenth Schedule." candidate. Article 99 further provides that every member 7 of either House of Parliament shall make and y.ibscnbe uualificallon. In a veiy recent decision dated 27th August, another oath accoidmg to the iomi set out for the purpose i>>2 ifie Ailahabad High Court (Lucknow bench) in ; in the iniiU Schedule to the Constitution bstore taking his i lotion Petition No. 5 cf 1992 (Dr. M. Ismail Faruqui seat in the House. Bui the violation ot sucii oath by the . • .vial Bihan Vajpayee), lias also held that the violation candida.c or iue member conceêj lias not been made a of an oath by a candidate does not aifect his election to disqual.i.cation either under Article 102 of the Constitution i.. 1 •.".en:. The Coi>rt has aLo observed in this case : or in Chapter III of Part II of the Representation of the People -i«.ct, 1951. As I have already pointed out, Sack of ' Mach as one would like to see that oaths and promises qualifier on L not a disqualification in the scheme of the made by the politicians are kept ye: the courts Constitution or the sa'd Act. V/heêver the Constitution :-is not the proper mochaiism for itn'oducing that makeis in their collective wisdom consiJeied it appiopnate as a requirement into the law. It is the exclusive or ne'-es*aiy to include a certain prwisson boih in the quali- domain of th3 Legislatuie the function of which fication and disqualification clause, they ha\e done so. For cmrtot be assumed by this Court. instance, urAler clause (a) of Article 84, a person shall not be CjauliOe'd 10 be chosen as a member of Pailiament unless The aforesaid piovision. therefoie, cannot be inlerpieted he ii a cnizen of India. Again, under sub-clause (d) of to mean that any breach of oath can de-qualify clause (I) of Article 102 of the Constitution, a person, stall a person from being chosen as a member of Par- be disqualified for bei'ng chotx-'n as, and for being a member liament." of Parliament if, inter alia, he is not citizen of India. Thus, the violation of oath or affirmation male and subscribed by 10.3 1 he rationale cf these above mentioned decisions a pemm under Article 84(a) so as to be qualified to be chosen as a member of Parliament shall not be regarded as •cN 'v tqhuft aliift icais tionnot , ooptehn er to thcaonur ts tth) oscer eapter ovniedw edg robuyn, ds or ot under, a disqualification under Article 102 of the Constitution. the Consfi'utic'n as the same wou'd amount to adding to the grounds of disqualification and it is impermissible for the courts to import an additional ground or imply an additional tO.l The question whether ffie violation of oath by a Disqualification. What applies to the courts applies, with member of Parliament or a State Legislature wi'I lesult equal force, to the Commission and it is not open to the in his disqualification for continuing as a memier is no Commission to create any new ground of disqualification. longer res intcgra. In Reference Case No. 1 of 1987 from the Piesident under Aiticle 103(2) of the Constitution, the 11. In view of the above, it is now well-settled that the question for consideration and opinion of the Commission \iolation of oath or affirmation made by a member of was whether Shri Murasoli Maran, a then sitting member Parliament under Article 84(a) or Aiticle 99 is not pei of Rajya Sabha, had become subject to disqualification se a disqualification under Article 102 of the Constitution for violation of oath under the Constitution for having for being such member. In this view of the matter. I incited the burning of the Constitution of India by his own need not go into the question whether the four Members waitings and publications. The Commission opined in that of Parliament under reference heve violated the o*.th or case vide its opinion dated 26th December, 1988 to f.be .ffi/niaiion under the Constitution by boycotting the Presi- President that Shri Murasoli Maran had not incurred dis- ciunlal election or the election to the Bihar Legislative qualification for the said violation of his oath under the Council held in July, 1992. Constitution under any express provisions of Article 102 of the Constitution. 12. Having regard to the abo\e, I am of the opinion and' accordingly hoid that S/Shri Shibu Soren, Shailendra Mi'ialo. Suraj Mandal and Simon Maiandi have not become 10.2 In Kumaran vs. Union of India (AIR 15<86 Kerala subject to disqualification under Atljcje 102(1) of the 122), the Kerala High Court held that violation of oath Constitution for being members of Lok Sabha on the grounds taken by Ministers under Article 164(3) of the Constitu- rien'ioned in the petition dated 2V 10-92 of Shri Raj Kishore tion and by members of State Legislatures under Article Masvaio, MP. The reference received from the President 188 of the Constitution could not operate as a disqualification is hereby returned with my opinion to the above affect. provided under the Constitution. The Court also held that it was impermissible for the Court to import an additional New Delhi, ground or to imply an additional disqualification. In a subse- quent case (Original Petition No. 22 of 1987—Jose Padickal the 19th November, 1992. vs. Ibrahim Sulaiman Sait and others, the Kerala High Court held that the violation of oath of office under Article 99 ot T. N. SESHAN, Chief Election Commissioner the Constitution by a member of Parliament by giving a of India call for boycott of Republic Day celebrations, even if assumed to be a violation of the fundamental duty under [F. No. 7(52)/92-Leg. II] Article 51-A of the Constitution, did not entail any dis- P. L. SAKARWAL, Jt Secy. Printed by the Manager, Govt. of India Press, Ring Road, New Delhi-110064 and Published by the Controller of Publications, Delhi-110054, 1993