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2BL301 Constitutional Law I

Semester III B.A. LL.B (Hons.)


Division A
2016-17

JUDICIAL TREND
Right to Equality and Supreme Court: New Dimensions

Prepared and Submitted by


Adimesh Lochan 15BAL001
Utkarsh Jain 15BAL022
Ashwini Chaturvedi 15BAL009
Sakshi Pawar 15BAL033
Shresth Vardhan 15BAL048
Parth Tiwari 15BAL064
Table of Content

Judicial Trend Right to Equality and Supreme Court: New Dimensions

RAM KRISHNA DALMIA VS. SHRI JUSTICE S.R. TENDOLKAR AND


ORS.......................................................................................... 3
FACTS........................................................................................................... 4
MINOR ISSUES............................................................................................... 6
MAJOR ISSUES............................................................................................... 7

AIR INDIA ETC. ETC VS NERGESH MEERZA & ORS. ETC. ETC........13
FACTS......................................................................................................... 14
ISSUES RAISED............................................................................................ 17

LILY THOMAS V. UNION OF INDIA..............................................21


FACTS......................................................................................................... 22
ISSUES RAISED............................................................................................ 25

TREND.................................................................................... 33

Judicial Trend Right to Equality and Supreme Court: New Dimensions

Ram Krishna Dalmia vs. Shri Justice S.R. Tendolkar and Ors.
IN THE SUPREME COURT OF INDIA
Civil Appeals Nos. 455 to 457 and 656 to 658 of 1957
Decided On: 28.03.1958
Appellants: Ram Krishna Dalmia
Respondent: Shri Justice S.R. Tendolkar and Ors.
Hon'ble Judges/Coram: Sudhi Ranjan Das, C.J., A.K. Sarkar, B.P. Sinha, S.K. Das and T.L.
Venkatarama Aiyyar, JJ.
Subject: Constitution
Acts/Rules/Orders: Constitution of India Article 14, Constitution of India Article 246
Commissions of Enquiry Act, 1952 Section 3
Cases Overruled/Reversed: Ram Krishna Dalmia Vs. Mr. Justice S.R. Tendolkar,
ANU/MH/0200/1957
Case Notes: The case dealt with the constitutionality of the Legislation empowering the
Government to appoint a commission. Further, the legality of the notification setting up the
commission and conferring powers thereupon was also questioned. In exercise of the powers
conferred upon it by Section 3 of the Commission of Enquiry Act,1952, the Central
Government by a notification, appointed a commission to inquire about certain companies
and the interest which certain persons named in the notification exercised over these
companies On the question of the validity of the Act and the notification, it was held that, the
Act was valid and intra vires and that the notification was also valid except the use of some
words, which went beyond the Act.

Judicial Trend Right to Equality and Supreme Court: New Dimensions

FACTS
Six appeals were made against a common judgment and order pronounced on April 29, 1957,
by a Division Bench of the Bombay High Court in three several Miscellaneous Applications
under

Art.

226

of

the

Constitution,

namely,

No.

48

of

1957

filed

by

Shri Ram Krishna Dalmia (the appellant in Civil Appeal No. 455 of 1957), No. 49 of 1957
by Shri Shriyans Prasad Jain and Shri Sital Prasad Jain (the appellants in Civil Appeal
No. 456 of 1957) and No. 50 of 1957 by Shri Jai Dayal Dalmia and Shri Shanti Prasad
Jain (the appellants in Civil Appeal No. 457 of 1957). In the applications made they prayed
for an appropriate direction or order under Art. 226 for quashing and setting aside
notification No. S.R.O. 2993 dated December 11, 1956, issued by the Union of India in
exercise of powers conferred on it by section 3 of the Commissions of Enquiry Act (LX of
1952) and for other reliefs.
In exercise of the powers conferred on it by Section 3 of the Act, the Central Government
through the Ministry of Finance (Department of Economic Affairs) published in the Gazette
of India dated December 11, 1956, a notification on the following lines,
1. A large number of companies and some firms were promoted or controlled by the
petitioners or some people connected with these persons
2. Large amounts were subscribed by the investing public in the shares of some of these
companies
3. There have been gross irregularities in the management of such companies including
manipulation of the accounts and unjustified transfers and use of funds and assets
4. The money invested by the public was used not in the interests of the companies
concerned but for the benefits and interests of those in control or management and
5. The investing public have as a result suffered considerable losses.

Judicial Trend Right to Equality and Supreme Court: New Dimensions

Therefore, in exercise of the powers conferred by Section 3 1 of the Commissions of Inquiry


Act (No. 60 of 1952), the Central Government appointed a Commission of Inquiry consisting
of the following persons, namely:

Shri Justice S. R. Tendolkar, Judge of the High Court at Bombay, Chairman


Shri N. R. Modi of Messrs A. F. Ferguson & Co., Chartered Accountants, Member
Shri S. C. Chaudhuri, Commissioner of Income-tax, Member.

The Commission shall inquire into and report on:


1.
2.
3.
4.
5.
6.

Administration of the affairs of the Companies,


Nature and Extent of Control over the companies and firms by these petitioners,
Total Amount of Investment,
The extent of loss suffered by the public,
The extent of profit made by these petitioners, and
Any other irregularities, frauds or breach of trust or duty by the petitioners.

1 Section3: Appointment of Commission: (1) The appropriate Government may, if it is of


opinion that it is necessary so to do, and shall, if a resolution in this behalf is passed
by [each House of Parliament or, as the case may be, the Legislature of the State], by
notification in the Official Gazette, appoint a Commission of Inquiry for the purpose of
making an inquiry into any definite matter of public importance and performing such
functions and within such time as may be specified in the notification, and the
Commission so appointed shall make the inquiry and perform the functions accordingly:
Provided that where any such Commission has been appointed to inquire into any matter

(a) by the Central Government, no State Government shall, except with the approval of
the Central Government, appoint another Commission to inquire into the same matter for
so long as the Commission appointed by the Central Government is functioning;
(b) by a State Government, the Central Government shall not appoint another
Commission to inquire into the same matter for so long as the Commission appointed by
the State Government is functioning, unless the Central Government is of opinion that
the scope of the inquiry should be extended to two or more States.
(2) The Commission may consist of one or more members appointed by the appropriate
Government, and where the Commission consists of more than one member, one of
them may be appointed as the Chairman thereof.
(3) The appropriate Government may, at any stage of an inquiry by the Commission fill
any vacancy which may have arisen in the office of a member of the Commission
(whether consisting of one or more than one member).
(4) The appropriate Government shall cause to be laid before 6 [each House of Parliament
or, as the case may be, the Legislature of the State], the report, if any, of the
Commission on the inquiry made by the Commission under sub-section (1) together with
a memorandum of the action taken thereon, within a period of six months of the
submission of the report by the Commission to the appropriate Government.]

Judicial Trend Right to Equality and Supreme Court: New Dimensions

Judicial Trend Right to Equality and Supreme Court: New Dimensions

ISSUES RAISED
The Honble Court had bifurcated the issues raised into minor issues and major issues, major
being the ones related to constitutionality of the Act and Article 14, rest all being minor ones.

MINOR ISSUES
1. NOTIFICATION HAS GONE BEYOND THE ACT
It was contended by the petitioner that the Notification issued by the Government has
gone beyond the Act. They argued that the Act mentioned Public Importance as an
important factor in the setting up of a commission which seems to be absent in the
present case.
Besides, Section 3 itself authorises the appropriate Government to appoint a
commission of Inquiry not only for the purpose of making an inquiry into a definite
matter of public importance but also for the purpose of performing such functions as
may be specified in the notification. Therefore, the notification is well within the
powers conferred on the appropriate Government by section 3 of the Act and it cannot
be questioned on the ground of its going beyond the provisions of the Act. The
Honourable Supreme Court has stated,
We see no warrant for the proposition that a definite matter of
public importance must necessarily mean only some matter
involving the public benefit or advantage in the abstract, e.g.,
public health, sanitation or the like or some public evil or
prejudice, e.g., floods, famine or pestilence or the like.
The Court has said that the conduct of a single person (or a company or a group of
persons) which may assume a dangerous proposition so as to affect the public being is
equally a matter of public importance as the ones stated above and hence, the
notification is completely intra vires the Act.
2. THE

ACTIONS

OF

THE

COMMISSION

WOULD

AMOUNT

TO

USURPATION OF JUDICIARY
The Court to this has said that the that as the Commission can only make
recommendations which are not enforceable proprio vigore there can be no question
of usurpation of judicial functions.
3. THE COMMISSION CANNOT BE ASKED TO SUGGEST ANY MEASURES
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The petitioners then went on to argue that the Commission cannot be asked to suggest
any measures.
The Court has in this regard pointed out that,
In our view the recommendations of a Commission of Inquiry are
of great importance to the Government in order to enable it to make
up its mind as to what legislative or administrative measures should
be adopted

MAJOR ISSUES
The major issues revolved around the constitutionality of the Act and the notification
passed thereupon and whether the said notification is violative of Article 14 of the
Constitution of India. The contentions further raised on the validity of Article 14 of the
Constitution of India were:
The ambit and scope of Article 14 has been formulated in the previous cases and it was
said that,
It is now well established that while Article 14 forbids class
legislation, it does not forbid reasonable classification for the
purposes of legislation.
However, in order to pass the test of permissible classification two conditions must be
fulfilled, namely,
(i)

that the classification must be founded on an intelligible differentia which


distinguishes persons or things that are grouped together from others left out of the
group,

(ii)

that differentia must have a rational relation to the object sought to be achieved by
the statute in question. The classification may be founded on different bases,
namely, geographical2, or according to objects3 or occupations or the like.

2 Sarbanada Sonowal v. Union of India,

Judicial Trend Right to Equality and Supreme Court: New Dimensions

It was stated by Honourable court that what is necessary is that there must be a
nexus between the basis of classification and the object of the Act under consideration.
It also became well established by the decisions of the Court that Article 14 condemns
discrimination not only by a substantive law but also by a law of procedure.
The Honourable Supreme Court has discussed six essential principles to be kept in mind
while deciding a matter relating to Article 14 of the Constitution.
a. A single individual may be treated as a class4.
b. Presumption in favour of the constitutionality of an enactment. It is a burden upon the
attacker of show that there is clear transgression of Constitutional Principles.
c. Presumption that the legislature understands and correctly appreciates the need of the
society and a discrimination of classes is done on adequate grounds.
d. Legislature is free to recognize degree of harms and may confine its restrictions to
those cases where the need is deemed to be the clearest.
e. In order to sustain the presumption of constitutionality, the court may take into
consideration general convention of the society, history of the nation and other
important factors.
f. The presumption of constitutionality cannot be stretched to an extent that it results in
hostility or discrimination by the legislation to a specific class due to a latent and
undisclosed reason.
.

1.

WHETHER THERE WAS A NECESSITY FOR CONSTITUTING THE


COMMISSION
Under this issue, two points have been discussed, firstly, sufficient grounds to set up a
commission, and secondly, public importance.

3 Kathi Raning Rawat v. The State of Saurashtra, 1952CriLJ805

4 Chiranjitlal Chowdhri v. The Union of India, [1950]1SCR869

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The Court has again pointed out the Government had sufficient grounds to set up a
Commission on the petitioners. The Bhabha Committee report had suggested that the
allegations against the petitioners were sufficient enough to set up a Commission on
them.
It was held by the court that for a definite matter of public importance, it must not
necessarily refer to some matter involving the public benefit or advantage in itself, e.g.,
public health, sanitation, etc. or some public evil or prejudice, e.g., floods, famine or
pestilence, etc. The conduct of an individual person or company or a group of individual
persons or companies which may assume such a dangerous proportion and which may so
prejudicially affect or threaten to affect the public well-being is a definite matter of
public importance urgently calling for a full inquiry5.
2. WHETHER IT IS DISCRIMINATORY TO SINGLE OUT THE PETITIONERS
FOR THE PURPOSES OF THE COMMISSION
The petitioners, under this issue, have made a reference to the reports of the Bhabha
Committee which showed similar allegations against other people and/or companies or
firm owners.
The Court has stated,
It may well be that the Central Government thought that even if
one or more of the particular qualities and characteristics
attributed to the petitioners and their companies may be found in
another person or company, the combination of those qualities and
characteristics which it thought were present in the petitioners and
their companies was of a unique nature and was not present in any
other person or company.
It was contended by the petitioners that they cannot be treated as a different class of
people as they are also performing the same functions which the others companies too
are doing. It was stated by the honourable court that the companies listed in the
notification have some characteristics which are common to that of other companies but
these companies do have some combination of peculiar characteristics which make them
different from others, hence it was held that the classification was based on intelligible

5 The State of West Bengal v. Anwar Ali Sarkar, 1952CriLJ510

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differentia. In a similar case6, a Sholapur Spinning and Weaving (Emergency) Act was
passed by the government and Sholapur Spinning and Weaving mill was treated as a
separate class in itself.
It was stated by the defendant side that these are that a small group of persons had from
before 1946 acquired control over a number of companies including a banking company
and an insurance company, some of these companies were private companies and the
others were public companies in which the public had invested considerable moneys by
buying shares. The financial years of some of these companies were different from those
of the others, the funds of the limited companies were utilised in purchasing shares in
other companies having large reserve funds with a view to get control over them and to
utilise those funds for acquiring shares in other companies or otherwise utilise those
funds for the personal benefit of these individuals. The shares were acquired on blank
transfer deeds and were not registered in the names of the companies with whose funds
they were purchased as to permit the same shares to be shown in the balance sheets of
the different companies having different financial years. After 1951 several of these
companies were taken into voluntary liquidation or their assets were transferred to
another company under some pretended scheme of arrangement or re-organisation. After
getting control of a company they appointed some of themselves as managing director or
selling agent on high remuneration and after a while cancelled such appointment on
paying fabulous amounts as and by way of compensation, the funds of one company
were transferred to another company to cover up the real financial position. Hence there
was an urgent need for setting up an inquiry into the matter as soon as possible.
3. WHETHER CONFERRING OF DISCRETIONARY POWERS TO THE
GOVERNEMENT IS UNCONSTITUIONAL AND DISCRIMINATORY
The court has assured that it is not unmindful that wide dsiretionar powers have been
conferred upon the government but at the same time , as this Court has said in Matajog
Dobey v. H. C. Bhari7,
6 Chiranjitlal Chowdhri v. The Union of India, [1950]1SCR869

7 Matajog Dobey v. H. C. Bhari MANU/SC/0071/1955 [1955]28ITR941(SC)

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a discretionary power is not necessarily a discriminatory power


and that abuse of power is not to be easily assumed where the
discretion is vested in the Government and not in a minor official.
4.

WHETHER THERE EXISTS ANY NEXUS BETWEEN THE CLASSIFICATION


AND THE OBJECTIVE SOUGHT.
It was contended whether the statue is valid as to is there any nexus attached to it. It was
held by the court that on the Court will also show that a statute which may come up for
consideration on a question of its validity under Article 14 of the Constitution, may be
placed in one or other of the following five classes.
(i) A statute may itself indicate the persons or things to whom its provisions are intended
to apply and the basis of the classification of such persons or things may appear on the
face of the statute8 or may be gathered from the surrounding circumstances9 known to or
brought to the notice of the court. Where the court finds that the classification satisfied
the tests, the court will uphold the validity of the law or statute.
(ii) A statute may direct its provisions against one individual person or thing or to
several individual person or things but no reasonable basis of classification10 may appear
on the face of it or be deducible from the surrounding circumstances, or matters of
common knowledge. In such a case the court will strike down the law as an instance of
naked discrimination11.

8 Chiranjitlal Chowdhri v. The Union of India, [1950]1SCR869

9 The State of Bombay v. F. N. Balsara [1951]2SCR682

10 Ameerunnissa Begum v. Mahboob Begum, [1953]4SCR404

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(iii) A statute may not make any classification of the persons or things for the purpose of
applying its provisions but may leave it to the discretion of the Government to select and
classify persons or things to whom its provisions are to apply. In determining the
question of the validity or otherwise of such a statute the court will not strike down the
law out of hand only because no classification appears on its face or because a discretion
is given to the Government to make the selection or classification but will go on to
examine and ascertain if the statute has laid down any principle or policy for the
guidance of the exercise of discretion by the Government in the matter of the selection or
classification12. After such scrutiny the court will strike down the statute if it does not lay
down any principle or policy for guiding the exercise of discretion by the Government in
the matter of selection or classification, on the ground that the statute provides for the
delegation of arbitrary and uncontrolled power to the Government so as to enable it to
discriminate between persons or things similarly situate and that, therefore, the
discrimination is inherent in the statute itself.
(iv) A statute may not make a classification of the persons or things for the purpose of
applying its provisions and may leave it to the discretion of the Government to select and
classify the persons or things to whom its provisions are to apply but may at the same
time lay down a policy or principle for the guidance of the exercise of discretion by the
Government in the matter of such selection or classification, the court will uphold the
law as constitutional13.
(v) A statute may not make a classification of the persons or things to whom their
provisions are intended to apply and leave it to the discretion of the Government to
11 Ramprasad Narain Sahi v. The State of Bihar, [1953]4SCR1129

12 State of West Bengal v. Anwar Ali Sarkar, 1952CriLJ510

13 Kathi Raning Rawat v. The State of Saurashtra, 1952CriLJ805

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select or classify the person or things for applying those provisions according to the
policy or the principle laid down by the statute itself for guidance of the exercise of
discretion by the Government in the matter of such selection or classification. If the
Government in making the selection or classification does not proceed on or follow such
policy or principle, it has been held by this Court14.

14 Kathi Raning Rawat v. The State of Saurashtra, 1952CriLJ805

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Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc
IN THE SUPREME COURT OF INDIA
Writ Petitions Nos. 3045, 1107, 2458 and 1624-1628/1981
Decided On: 28.08.1981
Appellants: Air India & ors.
Respondent: Nergesh Meerza & ors.
Hon'ble Judges/Coram: Fazalali, Syed Murtaza Varadarajan, A. (J) Sen, A.P. (J)
Subject: Constitution
Acts/Rules/Orders: Constitution of India Article 14, Regulations 46 and 47 of the Air India
Employees Service Regulations
Case Notes: Service - validity - Article 14 of Constitution of India - validity of Service
Regulations 46 and 47 was in question - Regulations 46 and 47 contended as discriminative
and ultra vires by respondents - Regulation 46 related to termination of service
of air hostesses (AH) upon attaining age of 35 years or on marriage if takes place within 4
years of service or on first pregnancy whichever occurs earlier - condition 'or on first
pregnancy whichever occurs earlier' is unconstitutional, void and violative of Article 14 so
liable to be deleted - Regulation 47 provides for extension of service of AH at option of
Managing Director (MD) - it conferred wide and uncontrolled power on MD and suffered
from excessive delegation of power so violative of Article 14 - Regulation 47 liable to be
struck down.

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FACTS
There are two entities, namely Air India and Indian Airlines Corporation. Regulations 46
and 47 of the Air India Employees Service Regulations were challenged. It was
contended on behalf of the petitioners that these service regulations had created a
significant amount of disparity between the pay and promotional avenues of the male
and female members of the cabin crew viz. Air Flight Pursers (AFPs) and Air Hostesses
(AHs). Hostesses were required to retire at 35, or on marriage (if they married within
four years of joining the service), or on their first pregnancy, whichever occurred earlier.
Under Regulation 47, this period could be extended, subject to the absolute discretion of
the Managing Director. The writ petition before the Supreme Court was partly accepted.
With respect to Article 14, the major contentions raised by the petitioners were:
The discrimination meted out to AHs was hostile and not reasonable.
AHs and AFPs did not belong to two different classes.
THE DISCRIMINATION METED OUT TO AHS WAS HOSTILE AND NOT
REASONABLE
The court ruled out that there was no discrimination on the basis of sex in this case
since there was a valid reason and that AHs and AFPs formed two different classes.
Thus, where persons belonging to a particular class in view of
their special attributes, qualities, mode of recruitment and the like,
are differently treated in public interest to advance and boost
members belonging to backward classes, such a classification
would not amount to discrimination.
Hence, it was then noted that Air Flight Pursers and Air Hostesses formed different
classes because of the fact that they had different recruitment conditions and different
promotional avenues. Consequently, it was concluded that there are two separate and
distinct classes having different service conditions and different conditions and that no
question of discrimination arises.
Though on the face of it, this seems clearly justified but there is something extremely
puzzling about this reasoning.
There are different cadres in service law that are constituted in order that persons doing
one kind of work are streamlined into a single category when it comes to the rules
governing them. In the present case, however, the constitution of the cadre
was itself on the basis of sex. That is to say, by definition, only women could become
air hostesses, and only men could become Air Flight Pursers. Instead of starting off by
examining whether this initial sex-based classification was in conformity with Articles
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14, 15 and 16, the Court instead began by noting that because the service conditions
and promotional avenues of the two cadres were different, therefore they formed
separate classes, and could legitimately be treated separately! This is a strange
reasoning. It effectively means that the guarantees under Articles 15 and 16 are useless
in order to get around them, all that is required is to divide the workforce along sex,
caste or religious lines, give them different names, treat one class in a manner far
inferior to the other, and then justify it by invoking that very separateness of treatment
to argue that the two form separate cadres. To put it another way, the Court used the
fact that women were being treated less favourably than men to hold that women and
men formed separate classes, and that therefore inferior treatment was justified.
There were ample number of discriminations that took place between the male and
female members of the same cabin crew.
Conditions of service discrimination- Determination of question.
The issues raised before the Court were:
1. Whether retirement of Air Hostesses in the event of marriage taking place within four
years of service is unreasonable or arbitrary.
2. Whether retirement of Air Hostesses Provision in service rule, or on first pregnancy
whichever occurs earlier is unconstitutional.
3. Whether Air Hostess-Extension of service option conferred on Managing Director is
excessive delegation of power.
These were the grave issues of service conditions raised by Mr. Setalvad. He contended
that certain terms and conditions of AHs were palpably discriminatory and violative of
Article 14. For instance, under the regulations concerned, AHs suffered from three
important disabilities1. They were not allowed to marry within four years from the date of their entry into
service.
2. Their services were terminated on first pregnancy.
3. The age of retirement of AHs was 35 years, extendable to 45 years at the option of
the Managing Director, as against the retirement age of AFPs who retired at the age of
55 or 58 year.
For dealing with these issues it is necessary to regulation 46 and 47 according to which
the conditions of service of AHs are governed the relevant portions of which are
extracted below:
46. Retiring Age:

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(i) Subject to the provision of Sub-regulation (ii) hereof, an employee shall retire from
the service of the Corporation upon attaining the age of 58 years, except in the following
cases when/he/she shall retire earlier:
...
(c) An Air Hostess, upon attaining the age of 35 years or on marriage if it takes place
within four years of service or on first pregnancy, whichever occurs earlier
...
47. Extension of Service:
Notwithstanding anything contained in Regulation 46, the services of any employee,
may, at the option of the Managing Director but on the Employee being found medically
fit, be extended by one year at a time beyond the age of retirement for an aggregate
period not exceeding two years except in the case of Air Hostesses and Receptionists
where the period will be ten years and five years respectively.

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ISSUES RAISED

1. WHETHER RETIREMENT OF AIR HOSTESSES IN THE EVENT OF


MARRIAGE TAKING PLACE WITHIN FOUR YEARS OF SERVICE IS
UNREASONABLE OR ARBITRARY.
The court stated that so far as the question of marriage within four years is concerned,
the provisions do not suffer from any constitutional infirmity. According to the
regulations an AH starts her career between the age of 19 to 26 years. Most of the AHs
are not only SSC which is the minimum qualification but possess even higher
qualifications and there are very few who decide to marry immediately after entering the
service. Thus, the Regulation permits an AH to marry at the age of 23 if she has joined
the service at the age of 19 which is by all standards a very sound and salutary provision.
Apart from improving the health of the employee, it helps a good in the promotion and
boosing up of our family planning programme. Secondly, if a woman marries near about
the age of 20 to 23 years, she becomes fully mature and there is every chance of such a
marriage proving a success, all things being equal. Thirdly, it has been rightly pointed
out to us by the Corporation that if the bar of marriage within four years of service is
removed then the Corporation will have to incur huge expenditure in recruiting
additional AHs either on a temporary or on ad hoc basis to replace the working AHs if
they conceive and any period short of four years would be too little a time for the
Corporation to phase out such an ambitious plan.
Having regard to these circumstances, the court was unable to find any
unreasonableness or arbitrariness in the provisions of the Regulations which necessitate
that the AHs should not marry within four years of the service failing which their
services will have to be terminated. Mr. Setalvad submitted that such a bar on marriage
is an outrage on the dignity of the fair sex and is per se unreasonable.
Though the argument of Mr. Setalvad is extremely attractive but having taken into
consideration an overall picture of the situation and the difficulties of both the parties,
we are unable to find any constitutional infirmity or any element of arbitrariness in the
aforesaid provisions. The argument of Mr. Setalvad as also those who followed him on
this point is, therefore, overruled.

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2. WHETHER RETIREMENT OF AIR HOSTESSES PROVISION IN SERVICE


RULE, OR ON FIRST PREGNANCY WHICHEVER OCCURS EARLIER IS
UNCONSTITUTIONAL
Coming now to the second limb of the provisions according to which the services of
AHs would stand terminated on first pregnancy, the court was in complete agreement
with the argument of Mr. Setalvad that this is a most unreasonable and arbitrary
provision which shocks the conscience of the Court. The Regulation does not prohibit
marriage after four years and if an AH after having fulfilled the first condition becomes
pregnant, there is no reason why pregnancy should stand in the way of her continuing in
service. The Corporations represented that pregnancy leads to a number of complications
and to medical disabilities which may stand in the efficient discharge of the duties by the
AHs. It was said that even in the early stage of pregnancy some ladies are prone to get
sick due to air pressure, nausea in long flights and such other technical factors. This,
however, appears to be purely an artificial argument because once a married woman is
allowed to continue in service then under the provisions of the Maternity Benefit Act,
1961 and The Maharashtra Maternity Rules, 1965 (these apply to both the Corporations
as their Head offices are at Bombay), she is entitled to certain benefits including
maternity leave. In case, however, the Corporations feel that pregnancy from the very
beginning may come in the way of the discharge of the duties by some of the AHs, they
could be given maternity leave for a period of 14 to 16 months and in the meanwhile
there could be no difficulty in the Management making arrangements on a temporary or
ad hoc basis by employing additional AHs. We are also unable to understand the
argument of the Corporation that a woman after bearing children becomes weak in
physique or in her constitution. There is neither any legal nor medical authority for this
bald proposition. Having taken the AH in service and after having utilised her services
for four years, to terminate her service by the Management if she becomes pregnant
amounts to compelling the poor AH not to have any children and thus interfere with and
divert the ordinary course of human nature. It seems to us that the termination of the
services of an AH under such circumstances is not only a callous and cruel act but an
open insult to Indian womanhood the most sacrosanct and cherished institution. We
are constrained to observe that such a course of action is extremely detestable and
abhorrent to the notions of a civilised society. Apart from being grossly unethical, it
smacks of a deep rooted sense of utter selfishness at the cost of all human values. Such a
provision, therefore, is not only manifestly unreasonable and arbitrary but contains the
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Judicial Trend Right to Equality and Supreme Court: New Dimensions

quality of unfairness and exhibits naked despotism and is, therefore, clearly violative of
Article 14 of the Constitution. In fact, as a very fair and conscientious counsel Mr.
Nariman realised the inherent weakness and the apparent absurdity of the aforesaid
impugned provisions and in the course of his arguments he stated that he had been able
to persuade the Management to amend the Rules so as to delete 'first pregnancy' as a
ground for termination of the service and would see that suitable amendments are made
to Regulation 46(i)(c) in the following manner:
(a) Regulation 46(i)(c) will be amended so as to substitute for the words "or a first
pregnancy", the words "or on a third pregnancy".
(b) There will be a suitably framed Regulation to provide for the above and for the
following:
(i) An air hostess having reason to believe that she is pregnant will intimate this to Air
India and will also elect in writing within a reasonable time whether or not to continue in
service.
(ii) If such air hostess elects to continue in service on pregnancy, she shall take leave
from service for a period not later than that commencing from 90 days after conception
and will be entitled to resume service only after confinement (or premature termination
of pregnancy) and after she is certified by the Medical Officer of AIR INDIA as being fit
for resuming her duties as an air hostess after delivery or confinement or prior
termination of pregnancy. The said entire period will be treated as leave without pay
subject to the air hostess being entitled to maternity leave with pay as in the case of other
female employees and privilege leave under the Regulations.
(iii) Every such air hostess will submit to an annual medical examination by the Medical
Officer of AIR INDIA for certification of continued physical fitness or such other
specifications of health and physical condition as may be prescribed by AIR INDIA in
this behalf in the interest of maintenance of efficiency.
(iv) It will be clarified that the provisions relating to continuance in service on
pregnancy will only be available to married women-an unmarried woman on first
pregnancy will have to retire/ from service.

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3. WHETHER AIR HOSTESS-EXTENSION OF SERVICE OPTION CONFERRED


ON MANAGING DIRECTOR IS EXCESSIVE DELEGATION OF POWER.
The next provision which has been the subject matter of serious controversy between
the parties, is the one contained in Regulation 46(i)(c). According to this provision, the
normal age of retirement of an AH is 35 years which may at the option of the
Managing Director be extended to 45 years subject to other conditions being satisfied.
The question of fixation of retirement age of an AH is to be decided by the authorities
concerned after taking into consideration various factors such as the nature of the work,
the prevailing conditions, the practice prevalent in other establishments and the like.
The fixation of the age of retirement of AHs who fall within a special class depends on
various factors which have to be taken into consideration by the employers. In the
instant case, the Corporations have placed good material before us to show some
justification for keeping the age of retirement at 35 years (extendable upto 45 years)
but the regulation seems to arm the Managing Director with uncanalized and unguided
discretion to extend the age of AHs at his option which appears to us to suffer from the
vice of excessive delegation of powers. It is true that a discretionary power may not
necessarily be a discriminatory power but where a statute confers a power on an
authority to decide matters of moment without laying down any guidelines or
principles norms the power has to be struck down as being violative of Article 14, the
provision is suffering from the vice of excessive delegation of power.
For these reasons, therefore, the court had to strike down as invalid that part of
Regulation 47 which gives option to the Managing Director to extend the service of an
AH. The effect of striking down this provision would be that an AH, unless the
provision is suitably amended to bring it in comfirmity with the provisions of Article
14 would continue to retire at the age of 45 years and the Managing Director would be
bound to grant yearly extensions as a matter of course, for a period of ten years if the
AH is found to be medically fit. This will prevent the Managing Director from
discriminating between one AH and Anr.
For the reasons given above, therefore, the writ petitions were allowed in part as
indicated in the judgment and the transfer case disposed of accordingly.

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Lily Thomas v. Union of India


IN THE SUPREME COURT OF INDIA
Decided on 10.07.2013
Writ Petition (Civil) 231 of 2005
Appellants: Lily Thomas
Respondent: Union of India
Hon'ble Judges/Coram: Justice A. K. Patnaik and Justice S. J. Mukhopadhya
Subject: Constitution
Relevant Section/Article: Constitution of India Article 14, Section 8(4) of the
Representation of People Act, 1951.
Disposition: Appeal dismissed
Case Notes: Representation of People Act, 1951 Section 8(4)Constitutional validity of
section 8(4) Disqualification to contest election on convictionMembers of parliament or
State Legislature stand on the same footing as sitting members so far as disqualification is
concerned. Sitting members cannot enjoy any special privilege of continuing members even
though they are convicted of the same offences mentioned in subsection 4 of Section 8.
Parliament lacks the power to enact Section 8(4), notwithstanding that convicted members
file appeal or revision against the decision or the sentence.

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FACTS
The background facts relevant for appreciating the challenge to Sub-section (4) of
Section 8 of the Act are that the Constituent Assembly while drafting the Constitution
intended to lay down some disqualifications for persons being chosen as, and for being,
a member of either House of Parliament as well as a member of the Legislative
Assembly or Legislative Council of the State. Accordingly, in the Constitution which
was finally adopted by the Constituent Assembly, Article 102(1)15 laid down the
disqualifications for membership of either House of Parliament and Article 191(1)16 laid
down the disqualifications for membership of the Legislative Assembly or Legislative
Council of the State.
15 Article 102(1) - (1) A person shall be disqualified for being chosen as, and for being, a member
of either House of Parliament(a) if he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law not to disqualify its
holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign State
(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this clause a
person shall not be deemed to hold an office of profit under the Government of India or the Government of any
State by reason only that he is a Minister either for the Union or for such State

16 Article 191(1)- (1) A person shall be disqualified for being chosen as, and for being, a member of the
Legislative Assembly or Legislative Council of a State(a) if he holds any office of profit under the Government
of India or the Government of any State specified in the First Schedule, other than an office declared by the
Legislature of the State by law not to disqualify its holder
(b) if he is of unsound mind and stands so declared by a competent court
(c) if he is an undischarged insolvent
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any
acknowledgement of allegiance or adherence to a foreign State
15
(e) if he is so disqualified by or under any law made by Parliament Explanation For the purposes of this
clause, a person shall not be deemed to hold an office of profit under the Government of India or the
Government of any State specified in the First Schedule by reason only that he is a Minister either for the Union
or for such State

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The now struck down section 8(4) provided that if a MP or a MLA has been convicted of
a criminal offence, such MP or MLA can continue to remain, and discharge his or her
duties as, a member of the House, if within three months of the conviction, he or she has
filed an appeal or a revision against such conviction. For reference, Section 8(4) is stated
below
8. Disqualification on conviction for certain offences (1) A person convicted of an
offence punishable under-(a) Section 153A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc., and doing acts prejudicial to
maintenance of harmony) or Section 171E (offence of bribery) or Section 171F (offence
of undue influence or personation at an election) or Sub-section (1) or Sub-section (2) of
Section 376 or Section 376A or Section 376B or Section 376C or Section 376D (offences
relating to rape) or Section 498A (offence of cruelty towards a woman by husband or
relative of a husband) or Sub-section (2) or Sub-section (3) of Section 505 (offence of
making statement creating or promoting enmity, hatred or ill-will between classes or
offence relating to such statement in any place of worship or in any assembly engaged in
the performance of religious worship or religious ceremonies) of the Indian Penal Code
(45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955) which provides for punishment
for the preaching and practice of "untouchability", and for the enforcement of any
disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act,
1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a member of an association declared unlawful,
offence relating to dealing with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or

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(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing


disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28
of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the
Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the
election) or Section 135 (offence of removal of ballot papers from polling stations) or
Section 135A (offence of booth capturing) of Clause (a) of Sub-section (2) of Section 136
(offence of fraudulently defacing or fraudulently destroying any nomination paper) of
this Act; [or]
[(j) Section 6 (offence of conversion of a place of worship) of the Places of Worship
(Special Provisions) Act, 1991], [or]
[(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India)
or Section 3 (offence of preventing singing of National Anthem) of the Prevention of
Insults to National Honour Act, 1971 (69 of 1971), [or]
[(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or]
[(m) the Prevention of Corruption Act, 1988 (49 of 1988); or]
[(n) the Prevention of Terrorism Act, 2002 (15 of 2002),]
[shall be disqualified, where the convicted person is sentenced to-(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified
for a further period of six years since his release.]
(2) A person convicted for the contravention of-(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961); and sentenced to
imprisonment for not less than six months, shall be disqualified from the date of such
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conviction and shall continue to be disqualified for a further period of six years since his
release.]
(3) A person convicted of any offence and sentenced to imprisonment for not less than
two years [other than any offence referred to in Sub-section (1) or Sub-section (2)] shall
be disqualified from the date of such conviction and shall continue to be disqualified for
a further period of six years since his release.]
[(4)] Notwithstanding anything [in Sub-section (1), Sub-section (2) or Sub-section (3)]
a disqualification under either Sub-section shall not, in the case of a person who on
the date of the conviction is a member of Parliament or the Legislature of a State, take
effect until three months have elapsed from that date or, if within that period an
appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court.
Complex constitutional arguments based on legislative competence of Parliament were
made in this case by both parties. The Court relied on the text of the Constitution, in one
instance on one particular word in articles 101(3)(a)17 and 190(3)(a)18 of the Constitution,
to hold what it held.

ISSUES RAISED
1. WHETHER SECTION 8(4) IS BEYOND WHAT THE PARLIAMENT IS
CONSTITUTIONALLY COMPETENT TO DO MAKING THE SAME
UNCONSTITUTIONAL or,

17 Article 101(3) If a member of either House of Parliament


(a) becomes subject to any of the disqualification s mentioned in clause (1) or clause (2) of Article 102,

18
(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of Article
191

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DISQUALFICATION LAID DOWN IN SECTION 8 IS SAME FOR TO-BEELECTED AND SITTING MEMBERS OF PARLIAMENT
Fali Nariman, who argued the case for the petitioner, argued in light of articles
102(1)(e)19 and 191(1)(e)20 the Parliament is not constitutionally competent to enact
section 8(4). The Constitution of India does not allow the Parliament and State
Legislatures to pass laws on whatever issues they please. If the Parliament is not
expressly allowed by the Constitution to pass laws on a given subject, it cannot pass
a law on that subject. In constitutional law this is called legislative competence.
Nariman argued that the Parliaments competence to pass section 8(4) comes from
articles 102(1)(e) and 191(1)(e). Article 102(1)(e) of the Constitution says that the
Parliament can make a law providing for circumstances whereby a MP shall stand
disqualified from the membership of either house of the Parliament. Article 191(1)
(e) says the same thing about MLAs.

Neither of these two articles gives the

Parliament the competence to pass a law that in effect protects and preserves the
membership of a sitting MP or MLA even after the same has been convicted of a
criminal offence by a court. Section 8(4) does exactly that. Thus section 8(4) is
beyond what the Parliament is constitutionally competent to do making the same
unconstitutional.
Sidharth Luthra, appearing for the government, in response to this argument, argued that
the constitutional competence to legislate section 8(4) comes not from articles 102(1)
(e) and 191(1)(e) but from article 246 read with entry 97 of list 1 of schedule 7 of the
Constitution. A reading of Articles 245 to 255 relate to distribution of legislative powers
19
(e) if he is so disqualified by or under any law made by Parliament Explanation for the purposes of
this clause a person shall not be deemed to hold an office of profit under the Government of India or
the Government of any State by reason only that he is a Minister either for the Union or for such State

20
(e) if he is so disqualified by or under any law made by Parliament Explanation for the purposes of
this clause, a person shall not be deemed to hold an office of profit under the Government of India or
the Government of any State specified in the First Schedule by reason only that he is a Minister either
for the Union or for such State

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between the Union and the Legislatures of the States. Article 246(1)21 provides that
Parliament has exclusive power to make laws with respect to any of the matters
enumerated in List I in the Seventh Schedule of the Constitution and Parliament has
exclusive power to make law with respect to any other matter not enumerated in List II
or List III. Article 24822 similarly provides that Parliament has exclusive power to make
any law with respect to any matter not enumerated in the Concurrent List (List III) or
State List (List II) of the Seventh Schedule of the Constitution. Therefore, Article 246(1)
read with Entry 97 and Article 248 only provide that in residuary matters (other than
matters enumerated in List II and List III) Parliament will have power to make law.
Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred
specific powers on Parliament to make law providing disqualifications for membership
of either House of Parliament or Legislative Assembly or Legislative Council of the
State other than those specified in Sub-clauses (a), (b), (c) and (d) of Clause (1) of
Articles 102 and 191 of the Constitution
But it is to be noted that no power is vested in the State Legislature to make law laying
down disqualifications of membership of the Legislative Assembly or Legislative
Council of the State and power is vested in Parliament to make law laying down
disqualifications also in respect of members of the Legislative Assembly or Legislative
Council of the State.
Second he argued that if the Parliament is constitutionally competent to declare under
what circumstances a MP or MLA will stand disqualified from his or her membership
under articles 102(1)(e) and 191(1)(e), such competence necessarily includes within
21
(1) Notwithstanding anything in clauses (2) and (3), Parliament has exclusive power to make laws
with respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution
referred to as the Union List)

22
Residuary powers of legislation
(1) Parliament has exclusive power to make any law with respect to any matter not enumerated in the
Concurrent List or State List
(2) Such power shall include the power of making any law imposing a tax not mentioned in either of those Lists

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itself the competence to pass a law that may temporarily postpone the effect of such
disqualification.
Both of Luthras arguments were rejected by the Court. The Court held that entry 97
comes into use only when the Constitution is silent as to who has the competence to
enact a law on a given subject. But in this case the Constitution is not silent. Articles
102(1)(e) and 191(1)(e) very clearly put the Parliament in charge of making laws on the
subject of disqualification of MPs and MLAs. So entry 97 would not come into play.
The Court located the legislative power of the Parliament to enact any law relating to
disqualification for a MP or MLA only in Articles 102(1)(e) and 191(1)(e) of the
Constitution and not in Articles 246(1) read with Entry 97 of List I of the Seventh
Schedule. This is the first important holding of this case.
2. WHETHER ARTICLE 101(3)(A) AND 190(3)(A) OF THE CONSTITUTION
EXPRESSLY PROHIBIT THE PARLIAMENT TO DEFER THE DATE FROM
WHICH THE DISQUALIFICATION WILL COME INTO EFFECT.
The other important holding deals with article 101(3)(a) which, among other things,
says that if a MP has been disqualified consequent to a law passed under article
102(1)(e), such MPs seat shall thereupon become vacant. Article 190(3)(a) says
the same thing about MLAs. Relying on these constitutional provisions the Court
held that the Parliament is not competent to make a law which defers the date on
which the disqualifications of a sitting member will have effect and prevent his seat
becoming vacant on account of the disqualification under Articles 102(1)(e) and
191(1)(e) of the Constitution. This, the Court said, was because of the use of the
word thereafter in articles 101(3)(a) and 190(3)(a).
Simply speaking, the Parliament is competent to provide, by law, for situations where a
MP or MLA shall stand disqualified from membership of the House. Once a member
falls into those situations, disqualification from membership of the House is a
consequence that is immediate and constitutionally mandated.

In other words, the

Constitution authorizes the Parliament to say only when a MP or MLA shall stand
disqualified. It does not authorize the Parliament to pass a law that effectively stays the
disqualification and allows such disqualified member to continue as a MP or MLA.
Such a law would be against the Constitution because the Constitution provides that
once a member is disqualified the seat of such member shall thereafter stand vacated.
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Once disqualified by reason of a conviction, the Constitution says, the MP or MLA


ceases to be a member of the House. Section 8(4), however, allowed such MP or MLA to
continue in the House, even after the conviction.
Applying these two holdings to the issue raised in this case i.e. whether section 8(4) is
unconstitutional or not, the Court held that section 8(4) is beyond the powers conferred
on Parliament by the Constitution.

4. WHETHER THE MPS AND MLAS BE A TARGET OF FRIVOLOUS


CONVICTION.

The respondents Mr. Luthra and Mr. Kuhad argued before the honorable supreme court
that if a sitting member of the parliament or the legislative assembly or the state
legislative council suffers from frivolous conviction and he will suffer immense hardship
as he would stand disqualified on account of such conviction in the absence of Subsection (4) of Section 8 of the Act., which is not very uncommon under subsections 1 , 2,
3 of section 8 of the Peoples representation act , 1951, They wouldnt have any remedy
left. Their career can come to a screeching halt with this section being repealed.
To this contention Mr. Nariman and Mr. Shukla submitted that in case a sitting member
of Parliament or State Legislature feels aggrieved by the conviction and wants to
continue as a member notwithstanding the conviction, his remedy is to move the
Appellate Court for stay of the order of conviction. He cited the decision in Navjot Singh
Sidhu v. State of Punjab and Anr23. in which this Court has clarified that under Subsection (1) of Section 389 of the Code of Criminal Procedure, 1973 power has been
conferred on the Appellate Court not only to suspend the execution of the sentence and
to grant bail, but also to suspend the operation of the order appealed against, which
means the order of conviction. They also submitted that in appropriate cases, the
Appellate Court may stay the order of conviction of a sitting member of Parliament or
State Legislature and allow him to continue as a member notwithstanding the conviction
23

[MANU/SC/0648/2007 : (2007) 2 SCC 574]


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Judicial Trend Right to Equality and Supreme Court: New Dimensions

by the trial court, but a blind blanket provision like Sub-section (4) of Section 8 of the
Act cannot be there to keep abay the disqualification of a siting member of the
parliament or the legislative assembly till the appeal or revision is decided by the
Appellate or Revisional Court.
The bench consisting of justice AK Patnaik and Justice Mukhopadhayay on this issue
coincided with the view of the petitioners and put forth that an appeal can be filed under
the Section 374 of the CrPC that is against both the conviction as well as the order A
three Judge Bench of this Court in Rama Narang v. Ramesh Narang and Ors24. has held
that when an appeal is preferred Under Section 374 of the Code of Criminal Procedure
[for short 'the Code'] the appeal is against both the conviction and sentence and,
therefore, the Appellate Court in exercise of its power Under Section 389(1) of the Code
can also stay the order of conviction and the High Court in exercise of its inherent
jurisdiction Under Section 482 of the Code by the bench can also stay the conviction if
the power was not to be found in Section 389(1) of the Code. Here the contention of the
respondents is thrashed. In Ravikant S. Patil v. Sarvabhouma S. Bagali25 a three Judge
Bench of this Court, however, observed that the appellate court has the jurisdiction to put
a stay order on the sentence and conviction if a stay is been placed on the sentence the
sentence will be cancelled but if the conviction is been stayed the disqualification of the
member will be taken back and he will continue to be a member.

5. WHETHER THE SECTION 8(4) IS IN VIOLATION WITH ARTICLE 14

The respondents side pleaded before the honorable bench that the Section 8(4) was in
violation with Article 14 of the constitution. Mr. Nariman and Mr. Shukla submitted that
Sub-section (4) of Section 8 of the Act, doesnt not provide a rational reason for
24

[MANU/SC/0623/1995: (1995) 2 SCC 513]


25

[MANU/SC/8600/2006: (2007) 1 SCC 673]


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Judicial Trend Right to Equality and Supreme Court: New Dimensions

providing the sitting MPs and the MLAs as an exception in the case of their
disqualification from the house or the assembly is arbitrary and discriminatory and is
violative of Article 14 of the Constitution. They submitted that persons to be elected as
members of Parliament or a State Legislature stand on the same footing as sitting
members of Parliament and State Legislatures so far as disqualifications are concerned
and sitting members of Parliament and State Legislatures cannot enjoy the special
privilege of continuing as members even though they are convicted of the offences
mentioned in Sub-sections (1), (2) and (3) of Section 8 of the Act.
The respondents came up with the counter arguments and stated that both of these
classes are not on the same footing as people who are already elected and as a member
have a greater responsibility and due to the loss of even a single member the working of
the house diminishes. They also put forth that the strength of the house and the party to
which the disqualified member belongs gets reduced, this is a major setback.
On this point, the judges pronounced,
As we have held that Parliament had no power to enact Subsection (4) of Section 8 of the Act and accordingly Sub-section (4)
of Section 8 of the Act is ultra vires the Constitution, it is not
necessary for us to go into the other issue raised in these writ
petitions that Sub-section (4) of Section 8 of the Act is violative of
Article 14 of the Constitution. It would have been necessary for us
to go into this question only if Sub-section (4) of Section 8 of the
Act was held to be within the powers of the Parliament. In other
words, as we can declare Sub-section (4) of Section 8 of the Act
as ultra vires the Constitution without going into the question as to
whether Sub-section (4) of Section 8 of the Act is violative of
Article 14 of the Constitution, we do not think it is necessary to
decide the question as to whether Sub-section (4) of Section 8 of
the Act is violative of Article 14 of the Constitution...

6. WHETHER THE JUDGMENT WILL APPLY RETROSPECTIVELY.

The only question that remained before the court to be decided was whether the
declaration in this judgment that Sub-section (4) of Section 8 of the Act is ultra vires the
Constitution should affect disqualifications already incurred under Sub-sections (1), (2)
and (3) of Section 8 of the Act by sitting members of Parliament and State Legislatures
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Judicial Trend Right to Equality and Supreme Court: New Dimensions

who have filed appeals or revisions against their conviction within a period of three
months and their appeals and revisions are still pending before the concerned court.
Under Sub-sections (1), (2) and (3) of Section 8 of the Act, the disqualification takes
effect from the date of conviction for any of the offences mentioned in the Sub-sections
and remains in force for the periods mentioned in the subsections. Thus, there were
several sitting members of Parliament and State Legislatures who have already incurred
disqualification by virtue of a conviction covered under Sub-section (1), or Sub-section
(2) or Sub-section (3) of Section 8 of the Act.
In Golak Nath and Ors.v. State of Punjab and Anr26, Subba Rao, C.J. held that Articles
32, 141, 142 of the Constitution are being interpreted in such a wide and elastic terms as
to enable this Court to formulate legal doctrines to meet the ends of justice and has
further held that this Court has the power not only to declare the law but also to restrict
the operation of the law as declared to future and save the transactions, whether statutory
or otherwise, that were effected on the basis of the earlier law. Thus the court has the
power to fix the line of application of any judgment with respect to its applicability. Any
sitting members of Parliament and State Legislature who have already been convicted
for any of the offences mentioned in Sub-section (1), (2) and (3) of Section 8 of the Act
and who have filed appeals or revisions which are pending and are accordingly saved
from the disqualifications by virtue of Sub-section (4) of Section 8 of the Act should not,
in the considered opinion, be affected by the declaration then made by the judges in this
judgment. This is because the knowledge that sitting members of Parliament or State
Legislatures will no longer be protected by Sub-section (4) of Section 8 of the Act will
be acquired by all concerned only on the date this judgment is pronounced by this Court.
As has been observed by this Court in Harla v. State of Rajasthan27:

26

(MANU/SC/0029/1967: AIR 1967 SC 1643)


27

(MANU/SC/0014/1951: AIR 1951 SC 467)


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...it would be against the principles of natural justice to permit the subjects of a State to
be punished or penalized by laws of which they had no knowledge and of which they
could not even with exercise of due diligence have acquired any knowledge.
But , if any sitting member of Parliament or a State Legislature is being convicted under
subsections 1 2 3 of section 8 of the act for the offences mentioned suffers the
disqualifications mentioned in Sub-sections (1), (2) and (3) of Section 8 of the Act after
the pronouncement of this judgment, his membership of Parliament or the State
Legislature, will stand on the same footing as to be elected members of the parliament
and the legislative assembly the case may be, will not be saved by Sub-section (4) of
Section 8 of the Act which by this judgment declared by justice Patnaik and justice
Mukhopadhaya stands as ultra vires the Constitution notwithstanding that he files the
appeal or revision against the conviction and/or sentence.
Considering all the points raised by both the sides and the contentions raised from them.
The court pronounced this judgment stating that the parliament acted out of its scope.
With the aforesaid declaration, the writ petitions are allowed. No costs.

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TREND
Firstly, the judicial trend in the case of Ram Krishna Dalmia v Justice Tendulkar, the court
dismissed the plea and put forth that there was no violation of Article 14 because the firms
and companies listed had alleged to have swindling public money and most of the objectives
for picking up a firm were being fulfilled so there was intelligible differentia in this case.
Secondly, in the case of Ram Krishna Dalmia v Justice Tendolkar, the 5 classes were made
for the future conflicts of any statute, that the case would come under one of the 5 classes. In
the Dalmia case, Class 4 was applied whereas the other two cases were falling under Class 2
and Class 3 respectively.
In the case of Air India v. Nergesh Meerza, the court held that there were two different
classes between Air hostess and Air flight purser and the differentiation done between them
was justified.
In these two cases, there has been a trend observed on the principle of wide discretionary
powers. In the Nergesh Meerza case, wide discretionary powers to the managing director
was observed as discriminatory and unconstitutional whereas in the Dalmia case it was said
that discretionary powers to the Government cannot be deemed to be discriminatory for the
power is vested in the government and not in a minor official of the govt. Hence, the
principle of discretionary power is followed in both the cases.
Now talking about the judicial trend in this case with respect to the right to equality that is
Article 14. Article 14 lays down that there should be no discrimination on an arbitrary basis.
Equals ought to be treated as equals the unequals can be treated unequally. Article 14
provides for rational discrimination but not hostile discrimination.
In this very case of Lily Thomas v UOI, 2013. There were two different classes created by
the subsection 4 of section 8 of the Peoples Representation Act, 1951 viz. to be elected
members and the sitting members of the parliament or the legislative assemblies of the
state. However, there is no such stand for discrimination between them, both are on the same
footing, both of these are peoples representative and at the end of the day they have an equal
responsibility to the people, even greater than what they owe to their respective parties.
Indulging into these petty party politics will only harm and defeat the purpose for which they
were elected and are now sitting in the parliament or the state legislative assembly or the
council. This needs to change soon. Just because someone is a member of the parliament or
the legislative assembly and someones not, it doesnt give the member a right to defer his
disqualification by filling an appeal in the appellate court. The conviction for both the
categories, the offences listed under 8(1), 8(2) and 8(3) are the same so why should there be a
differentiation on the disqualification.
The petitioners Mr. Nariman and Mr. Shukla also argued before the court and mentioned that
Article 14 was being violated by this provision as both classes stand on the same footing as
far as disqualification is concerned.
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Judicial Trend Right to Equality and Supreme Court: New Dimensions

The then UPA government in order to upturn this judgment introduced a bill in the Rajya
Sabha which protected the members from being disqualified if they filed an appeal. They
also filed a revision petition in the Supreme court. The petition was quashed and they had to
take back their bill. Members of the parliament and legislative assembly like Rasheed
Masood, Lalu Prasad, J. Jayalalitha were disqualified because of this judgment, to name a
few.
To a greater extent the objective that was in the minds if the judges while pronouncing this
judgment of decriminalizing politics has been fulfilled.

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