TaxTMI 
TaxTMI 
2014 (2) TMI 1410
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....- (1) This Act may be called the Representation of the People (Amendment and Validation) Act, 2013. (2) It shall be deemed to have come into force on the 10th day of July, 2013. 2. Amendment of Section 7.--In the Representation of the People Act, 1951 (43 of 1951) (hereinafter referred to as the principal Act), in Section 7, in clause (b), after the words " or Legislative Council of a State", the words "under the provisions of this Chapter, and on no other ground" shall be inserted. 3. Amendment of Section 62.--In Section 62 of the principal Act after the proviso to sub-section (5), the following proviso shall be inserted, namely-- Provided further that by reason of the prohibition to vote under this sub-section, a person whose name has been entered in the electoral roll shall not cease to be an elector. 4. Validation.--Notwithstanding anything contained in any judgment, decree or order of any court, tribunal or other authority, the provisions of the Representation of the People Act, 1951 (43 of 1951), as amended by this Act, shall have and shall be deemed always to have effect for all purposes as if the provisions of this Act h....
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....1997) 6 SCC 1. The relevant portion of the judgment, relied upon by the petitioner, is as follows: 8. There are other reasons for justifying this classification. It is well known that for the conduct of free, fair and orderly elections, there is need to deploy considerable police force. Permitting every person in prison also to vote would require the deployment of a much larger police force and much greater security arrangements in the conduct of elections. Apart from the resource crunch, the other constraints relating to availability of more police force and infrastructure facilities are additional factors to justify the restrictions imposed by sub-section 5 of Section 62. A person who is in prison as a result of his own conduct and is, therefore, deprived of his liberty during the period of his imprisonment cannot claim equal freedom of movement, speech and expression with the others, who are not in prison. The classification of the persons in and out of prison separately is reasonable. Restriction on voting of a person in prison results automatically from his confinement as a logical consequence of imprisonment. A person not subjected to such a restriction is free to vo....
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....provides that if a member of either House of Parliament becomes subject to any of the disqualifications mentioned in Clause (1), his seat shall thereupon become vacant and similarly Article 190(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), his seat shall thereupon become vacant. This is the effect of a disqualification under Articles 102(1) and 190(1) incurred by a Member of either House of Parliament or a House of the State Legislature. Accordingly, once a person who was a member of either House of Parliament or House of the State Legislature becomes disqualified by or under any law made by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution and Parliament cannot make a provision as in sub-Section (4) of Section 8 of the Act to defer the date on which the disqualification of a sitting member will have effect and prevent his seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article 191(1)(e) of the Constitution. 33. Looking....
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....case (supra), the Supreme Court declared Section 8(4) of the RP Act of 1951 'unconstitutional' as it was held to be beyond the legislative competence of the Parliament. It was further submitted that even filing an appeal against the order of conviction won't relieve the convict from disqualification. 7. Learned ASG also drew our attention to Section 62 of the RP Act of 1951 which deals with 'Right to Vote' and sub-section (5) thereof provides that a person who is confined in prison whether under a sentence of imprisonment or transportation or otherwise or is in the lawful custody of police shall not have a right to vote. 8. The submission of the learned ASG is that Section 62 of the RP Act of 1951, as interpreted by the Patna High Court and the Supreme Court in Jan Chaukidar (Peoples Watch) & Ors.'s case (supra), had serious consequences and wide ramifications leaving room for serious abuse. It was, thus, urged that keeping in view the exigency of the situation, the Parliament passed the impugned Amendment and Validation Act, 2013, and by virtue of it, a proviso was inserted after the proviso to sub-section (5) to Section 62, to the effect that "by rea....
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.... impugned Act, the enquiry into the motive, which persuaded Parliament into passing the impugned Amendment and Validation Act, 2013, would be of no use at all. In the present case, the Parliament, in our opinion, is fully competent to enact the impugned Amendment and Validation Act, 2013 by virtue of the power conferred under Article 327 read with Entry 72 of the Constitution. The said provisions of the Constitution are, for the sake of convenience, reproduced here-in-below: Article 327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all the matters, relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses. Union List/List-I: .... 72. Elections to Parliament, to the Legislatures of States and to the Offices of President and Vice-President; the Election Commission. 12. We may also notice here certain Acts passed under this Ent....
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....o enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legislature lacks competency, the question of motive does not arise at all. We will, therefore, concentrate on the legislative competence of Parliament to enact the impugned legislation. If Parliament has the requisite competence to enact the impugned Act, the enquiry into the motive which persuaded Parliament into passing the Act would be of no use at all. (emphasis supplied) 16. In K.C. Gajapati Narayan Deo & Ors. v. State of Orissa, (1954) SCR 1, and in Board of Trustees, Ayurvedic and Unani Tibia College, Delhi v. State of Delhi (Now Delhi Administration) & Anr., 1962 Supp. (1) SCC 156, it has been held that "The doctrine of Colourable Legislation does not involve any question of bona fides or mala fides on the part of the legislature. The whole doctrine resolves itself into the question of the competency of a particular legislature to enact a particular law. If the legislature is competent to pass a particular law, the motives which impelled it to act are really irrelevant. On the other hand, if the legi....
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....w on the topic within its legislative field, fundamentally altering or changing its character retrospectively. The changed or altered conditions should be such that the previous decision would not have been rendered by the Court; if those conditions had existed at the time of declaring the law as invalid. 22. In ITW Signode India Ltd. v. Collector of Central Excise, (2004) 3 SCC 48, the Supreme Court held that a validating Act removes actual or possible voidness, disability or other defect by confirming the validity of anything which is or may be invalid. 23. Through the impugned Validation and Amendment Act, 2013, it is apparent, the Parliament has sought to widen the definition of "Elector", which is more in the nature of curing the defects pointed out by the Court(s) and to obviate any difficulties that have arisen during the course of implementation of the provisions of the RP Act of 1951, post the judgment of the Supreme Court. iii) Right to vote is not a constitutional right; it is only a statutory right. 24. It is trite that 'right to vote' is not a fundamental right or constitutional right, but is only a statutory right. The Legislature can determine the....
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..... 25. The right to vote is subject to the limitations imposed by the statute, which can be exercised only in the manner provided by the statute and that challenge to any provision in the statute prescribing the nature of right to elect cannot be made with reference to a fundamental right in the Constitution. The very basis of challenge to the validity of sub-Section (5) of Section 62 of the RP Act of 1951 was, therefore, held to be not available. 26. Through the impugned Amendment and Validation Act, 2013, the Parliament seeks to amend the definition of the term "Disqualified' as defined under Section 7(b) of the RP Act of 1951 and incorporated proviso to sub-Section (5) of Section 62, which deals with "right to vote". The impugned Amendment and Validation Act, 2013 does not deal with disqualification on account of conviction under certain offences as prescribed under Chapter-III of Part-II of the RP Act of 1951. The Supreme Court dealt with the case of disqualification incurred by an individual due to conviction after trial of the offences, for which, he is charge-sheeted. Para 32 of the judgment in Lily Thomas's case (supra) reads as follows: 32. The result....
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....6 and 327 read with Entry 72 of List-I, Schedule-VII of the Constitution, according to which, the Parliament is competent to enact laws with respect to the issues mentioned therein. Thus, one of the criteria for determining the constitutional validity of a law, i.e., the competence of the law-making authority, would depend on the ambit of the legislative power and limitation imposed thereon as also on the mode of exercise of such power. In fact, the RP Act of 1951 was also an enactment, which was enacted by the Parliament by exercising such a power flown from Articles 246 and 327 read with Entry 72 of the List-I of the Constitution. 31. The above leaves no room for doubt that the Constitution recognized the need for changes in law relating to elections from time to time and entrusted the Parliament with the responsibility as also the requisite power to bring in legislative measures as and when required in such respect, which would include the power to amend the existing law. 32. In Hari Prasad Mul Shankar Trivedi v. V.B. Raju (1974) 3 SCC 415, the Apex Court held as under: 24.... Article 327 gives full powers to Parliament subject to provisions of the Constitution to....
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....the electoral roll is also subject to limitations under Section 16 of the 1950 Act. Under the 1950 Act, your name can only be removed from the electoral register if you are convicted of an offence either under Section 123 of the Representation of the People Act or other offences under the Representation of the People Act, namely, Sections 8(1), 8(2) and 8(3). If you are not convicted, you are entitled to be on the electoral roll, and if you are entitled to be on the electoral roll, you can file your nomination paper notwithstanding the fact that you are in lawful custody of the police. Because being in the lawful custody of the police does not mean that you are convicted of an offence, does not mean that you are a criminal, does not mean that you are subject to any disqualification under Section 16 of the 1950 Act.... So, even though I may not be entitled to vote under Section 62(5), I do not cease to be an elector, which means, I can still file my nomination paper. You know very well that there are several instances where several political parties put up candidates who may be in prison but who are not convicted and undergoing trial because the rule of law in any progressive democr....