(Per : Dr D Y Chandrachud, CJ) The writ petition by LOK PRAHARI, a society registered under the Societies Registration Act 1860 seeks a declaration that the Representation of the People (Amendment and Validation) Act, 2013 is ultra vires and unconstitutional.
In pursuance of the provisions of Article 326 of the Constitution, Parliament enacted the Representation of the People Act 19501. Part II-B of the Act of 1950 provides for electoral rolls for parliamentary constituencies. Part III provides for electoral rolls for assembly constituencies. The electoral roll for every parliamentary constituency consists of the electoral rolls for all the assembly constituencies comprised within that parliamentary constituency. Under Section 15, for every assembly constituency, the electoral roll is prepared in accordance with the provisions of the Act of 1950 under the superintendence, direction and control of the Election Commission. Section 16 provides for disqualifications for registration in an electoral roll and is in the following terms:
"16. Disqualifications for registration in an electoral roll.-- (1) A person shall be disqualified for registration in an electoral roll if he--
(a) is not a citizen of India; or
(b) is of unsound mind and stands so declared by a competent court; or
(c) is for the time being disqualified from voting under the provisions of this relating to corrupt practices and other offences in connection with elections.
(2) The name of any person who becomes so disqualified after registration shall forthwith be struck off the electoral roll in which it is included:
Provided that the name of the any person struck off the electoral roll of a constituency by reason of a disqualification under clause (c) of sub-section (1) shall forthwith be reinstated in that roll if such disqualification is, during the period such roll is in force, removed under any law authorizing such removal."
Section 19 provides that subject to the foregoing provisions of the Part, every person who is (a) not less than eighteen years of age on the qualifying date; and (b) ordinarily resident in a constituency shall be entitled to be registered in the electoral roll for that constituency. The expression "ordinarily resident" is defined in Section 20. Section 21 provides for the preparation and revision of electoral rolls. Section 22 provides for the correction of entries in electoral rolls and is in the following terms:
"22. Correction of entries in electoral rolls.--If the electoral registration officer for a constituency, on application made to him or on his own motion, is satisfied after such inquiry as he thinks fit, that any entry in the electoral roll of the constituency--
(a) is erroneous or defective in any particular,
(b) should be transposed to another place in the roll on the ground that the person concerned has changed his place of ordinary residence within the constituency, or
(c) should be detected on the ground that the person concerned is dead or has ceased to be ordinarily resident in the constituency or is otherwise not entitled to be registered in that roll, the electoral registration officer shall, subject to such general or special directions, if any, as any be given by the Election Commission in this behalf, amend, transpose or delete the entry after proper verification of facts in such manner as may be prescribed:
Provided that before taking any action on ground under clause (a) or clause (b) or any action under clause (c) on the ground that the person concerned has ceased to be ordinarily resident in the constituency or that he is otherwise not entitled to be registered in the electoral roll of that constituency, the electoral registration officer shall give the person concerned a reasonable opportunity of being heard in respect of the action proposed to be taken in relation to him after proper verification of facts in such manner as may be prescribed."
Part II of the Representation of the People Act 19512 provides for qualifications and disqualifications. Chapter I provides for qualifications for membership of Parliament. Chapter II provides for qualifications for membership of State Legislatures.
Sections 3 and 4 which govern the qualifications for membership of the Council of States and the House of the People respectively require that a person to be qualified to be chosen, must be an elector for a parliamentary constituency. Section 5 which provides for the qualifications for membership of a Legislative Assembly, mandates that a person must be an elector from an assembly constituency in the State. The expression "elector" is defined in Section 2 (e) of the Act of 1951 in the following terms:
"elector" in relation to a constituency means a person whose name is entered in the electoral roll of that constituency for the time being in force and who is not subject to any of the disqualifications mentioned in section 16 of the Representation of the People Act, 1950 (43 of 1950);]"
Section 62 provides as follows:
"62. Right to vote.--(1) No person who is not, and except as expressly provided by this Act, every person who is, for the time being entered in the electoral roll of any constituency shall be entitled to vote in that constituency.
(2) No person shall vote at an election in any constituency if he is subject to any of the disqualifications referred to in section 16 of the Representation of the People Act, 1950 (43 of 1950).
(3) No person shall vote at a general election in more than one constituency of the same class, and if a person votes in more than one such constituency, his votes in all such constituencies shall be void.
(4) No person shall at any election vote in the same constituency more than once, notwithstanding that his name may have been registered in the electoral roll for that constituency more than once, and if he does so vote, all his votes in that constituency shall be void.
(5) No person shall vote at any election if he is confined in a prison, whether under a sentence of imprisonment or transportation or otherwise, or is in the lawful custody of the police:
Provided that nothing in this sub-section shall apply to a person subjected to preventive detention under any law for the time being in force:
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.
(6) Nothing contained in sub-sections (3) and (4) shall apply to a person who has been authorised to vote as proxy for an elector under this Act in so far as he votes as a proxy for such elector."
The second proviso to Section 62 of the Act of 1951 was introduced with effect from 10 July 2013 by amending Act 29 of 2013. The background in which Parliament enacted the Representation of the People (Amendment and Validation) Act, 2013 is a matter which lies at the heart of these proceedings.
The Patna High Court in a judgment3 delivered on 30 April 2004 held that a person who is in lawful custody of the police will not be a voter within the meaning of Section 62 (5) and hence will not be an elector. The judgment of the Patna High Court, insofar as is material, has been extracted in the judgment of the Supreme Court delivered on 10 July 2013 affirming that decision in The Chief Election Commissioner vs. Jan Chaukidar (Peoples Watch)4. The Patna High Court held thus:
"A right to vote is a statutory right, the law gives it, the law takes it away. Persons convicted of crime are kept away from elections to the Legislature, whether to State Legislature or Parliament, and all other public elections. The Court has no hesitation in interpreting the Constitution and the Laws framed under it, read together, that persons in the lawful custody of the Police also will not be voters, in which case, they will neither be electors. The law temporarily takes away the power of such persons to go anywhere near the election scene. To vote is a statutory right. It is privilege to vote, which privilege may be taken away. In that case, the elector would not be qualified, even if his name is on the electoral rolls. The name is not struck off, but the qualification to be an elector and the privilege to vote when in the lawful custody of the police is taken away."
Affirming the judgment of the Patna High Court, a Bench of two learned Judges of the Supreme Court in a decision rendered on 10 July 2013 held thus:
"...We have heard learned counsel for the parties and we do not find any infirmity in the findings of the High Court in the impugned common order that a person who has no right to vote by virtue of the provisions of sub-section (5) of Section 62 of the 1951 Act is not an elector and is therefore not qualified to contest the election to the House of the People or the Legislative Assembly of a State."
The Statement of Objects and Reasons for introduction of the amendment and validation bill in Parliament stated that though a petition for review of the judgment of the Supreme Court was filed, Government was of the view that there was a need for suitably addressing the situation arising out the order of the Supreme Court by amending the legislation. By amending Act 29 of 2013, two amendments were introduced into the Representation of the People Act, 1951. Firstly, the expression "disqualified" in Section 7 (b) was amended to provide that a member of Parliament or a Legislature of a State shall be disqualified for being chosen as, and for being, a member of either House of Parliament or a Legislative Assembly or Legislative Council of a State, if he is so disqualified under the provisions of Chapter III of Part II of the Act of 1951 and on no other ground. Secondly, a proviso was introduced into sub-section (5) of Section 62 to expressly provide that by reason of the prohibition to vote imposed by the substantive part of the Section, a person whose name has been entered into the electoral roll shall not cease to be an elector.
The challenge to the constitutional validity of the provisions of Act 29 of 2013 in these proceedings is on the ground that by and as a result of the amending law, the basis of the decision of the Supreme Court in Jan Chaukidar has not been taken away. The submission is that in order to be a valid piece of validating legislation, the legislature which enacts the law must possess legislative competence and must remove the defect which the Court has found in the previous legislation. In the present case, it has been submitted that the basis of the decision of the Patna High Court, which was affirmed by the Supreme Court was that to be an elector, a person has to be a voter and a person whose right to vote is under suspension under sub-section (5) of Section 62, cannot be an elector. The submission is that this basis has not been taken away by Act 29 of 2013 and the mere introduction of a proviso to Section 62 (5) does not achieve that purpose. This is the submission which we now proceed to analyse.
The principle of law is that it is open to a legislature which possesses legislative competence in respect of the subject matter, to enact legislation which removes or cures a defect which has been noticed in a judgment of the Court. In removing the defect, the legislature cures the reasons for invalidity. It is in that sense that the legislation is termed as validating legislation. A legislature cannot merely ordain that a judgment of a Court of competent jurisdiction stands abrogated or nullified. What the legislature can, however, do is to ensure that the basis of the judgment is taken away by curing the defect or anomaly that was noticed in the judgment of the Court.
These principles were affirmed in a judgment of seven learned Judges of the Supreme Court in Hari Singh vs. Military Estate Officer5 and have been reiterated in I.N. Saksena vs. State of Madhya Pradesh6.
The principle of law has been summarized in Justice G P Singh's seminal treatise on the Interpretation of Statutes7 thus:
"...A validating Act may even make ineffective judgments and orders of competent courts provided it by retrospective legislation removes the cause of invalidity or the basis which had led to those judgments8..."
Dealing with the retrospective operation of statutes, the author states the position succinctly:
"...The power to make retrospective legislation enables the Legislature to obliterate an amending Act completely and restore the law as it existed before the amending Act. This power has also been often used for validating prior executive and legislative acts by retrospectively curing the defect which led to their invalidity and thus even making ineffective judgments of competent courts declaring the invalidity9..."
The Supreme Court, while rendering its decision in Jan Chaukidar did not invalidate or strike down a provision of the Representation of the People Act of 1951. Those provisions had been construed by the Patna High Court, whose decision was in appeal before the Supreme Court in civil appeals, to hold that a person who is not entitled to vote by reason of being in lawful custody cannot be an elector. The Supreme Court upheld the decision of the Patna High Court. Parliament sought to correct the situation by an amendment to Section 62 (5) by stipulating that a person whose name has been entered in the electoral roll shall not cease to be an elector by reason of the prohibition to vote under the sub-section. The effect of the introduction of the proviso is that a consequence which would otherwise flow out of the provisions of sub-section (5), as they were interpreted in the judgment of the Patna High Court, as affirmed by the Supreme Court, is sought to be obviated by means of a specific stipulation that a mere prohibition to vote does not render a person whose name has been entered in the electoral roll, ceasing to be an elector.
The expression "elector" has been defined in Section 2 (e) of the Act of 1951. The definition is comprised in two parts: the first part indicates that to be an elector in relation to a constituency, the name of the person has to be entered in the electoral roll of that constituency for the time being in force; secondly such a person should not be subject to any of the disqualifications mentioned in Section 16 of the Act of 1950. The disqualifications which have been mentioned in Section 16 of the Act of 1950 are three namely : (a) not being a citizen of India; (b) being of an unsound mind and being so declared by a competent court; and (c) being disqualified from voting for the time being under the provisions of any law relating to corrupt practices or other offences in connection with elections. To emphasize, the disqualification from voting under Section 16 (1) (c) has to be under a law relating to corrupt practices and other offences in connection with elections.
Section 22 of the Act of 1950 provides for correction of entries in electoral rolls where an entry (i) is erroneous or defective in any particular; (ii) has to be transposed to another place in the roll on the ground that the person has changed his place of ordinary residence within the constituency; or (iii) has to be deleted where the person (a) is dead; or (b) has ceased to be ordinarily resident in the constituency; or (c) is otherwise not entitled to be registered in that roll. Entitlement to registration in an electoral roll is governed by Section 19 which specifies two conditions for such entitlement, these being attaining the age of eighteen years on the qualifying date and being ordinarily resident in a constituency.
At this stage, it is also material to note that under sub-section (2) of Section 20 of the Act of 1950, it has been stipulated that a person who is detained in prison or other legal custody at any place is not by reason thereof deemed to be ordinarily resident therein. The expression "therein" obviously has reference to the place of detention in prison or legal custody.
By and as a result of Act 29 of 2013, Parliament has clarified its intent by stipulating that a person who incurs a prohibition to vote under sub-section (5) of Section 62 upon being confined in a prison or as a result of being in lawful custody of the police, shall not cease to be an elector so long as his name is entered in the electoral roll. There is no provision, as we have seen earlier, by which the name of a person has to be deleted from an electoral roll as a consequence of confinement in prison or as a result of being in lawful custody. This position has been clarified by means of the introduction of the second proviso of sub-section (5) Section 62 through the amending legislation. The amending legislation consequently removes the basis of the judgment in Jan Chaukidar by introducing a suitable provision to that effect.
Consequently and for these reasons, we have come to the conclusion that the challenge to amending Act 29 of 2013 on the ground that it did not constitute a piece of validating legislation, cannot be accepted.
A Division Bench of the Delhi High Court in Manohar Lal Sharma vs. Union of India10 upheld the validity of the legislation in question. We have indicated our reasons for rejecting the constitutional challenge though we are in respectful agreement with the judgment of the Delhi High Court.
Apart from challenging the constitutional validity of Act 29 of 2013, the petitioner has sought a mandamus to the Election Commission of India to issue an order under Article 324 of the Constitution in terms of its 'decision' dated 23 May 2008 to the effect that (i) at the time of the revision of electoral rolls, the names of persons, except preventive detenues, in jail for six months or more be deleted from electoral rolls under Section 22 of the Act of 1950; and (ii) nomination papers of such persons be rejected.
Sri S N Shukla who appeared in person has drawn the attention of the Court to an order dated 12 November 2007 of the Hon'ble Supreme Court in Lok Prahari vs. Election Commission of India11 dismissing a writ petition filed under Article 32 of the Constitution on 12 November 2007. Subsequently a review petition was dismissed on 27 February 2008. In IA No. 3 of 2007 in Writ Petition No. 593 of 2007, an order was passed by the Supreme Court on 16 April 2008 in the following terms:
"Writ Petition No. 593/2007 was dismissed in limine. However, we make it clear that the representation filed by the petitioner before the Chief Election Commission can be considered and disposed of in accordance with law.
I.A. No. 3 is disposed of accordingly."
Having due regard to the aforesaid directions which have been issued by the Supreme Court in IA No. 3 of 2007 (copies of the orders of the Supreme Court being annexed as Annexures 6, 7 and 8 to the writ proceedings), no orders are specifically necessary in regard to the second prayer.
The writ petition is, accordingly, dismissed. There shall be no orders as to costs.