Document Fragment View

Matching Fragments

It is well settled that legislation can be declared invalid or unconstitutional only on two grounds namely, (i) lack of legislative competence and (ii) violation of any fundamental rights or any provision of the Constitution (See  Smt. Indira Nehru Gandhi v. Raj Narain, [1975 Supp SCC 1] ). In other cases relied upon by Mr. Sachar where observations have been made about a statute being contrary to basic structure, the question was neither raised nor considered that basic structure principle for invalidation is available only for constitutional amendments and not for statutes. A.N. Ray, CJ, in Indira Nehru Gandhi's case (supra), observed in paragraph 132 as under: -

(emphasis supplied) In Paragraph 356, he proceeded to rule as under: -

"There is no support from the majority in Bharati's case (supra) for the proposition advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held bad or for the proposition that a constitutional amendment putting an Act in the Ninth Schedule would make the provisions of the Act vulnerable for the reason that they damage or destroy a basic structure constituted not by the fundamental rights taken away or abridged but some other basic structure. And, in principle, I see no reason for accepting the correctness of the proposition."

The submission, thus, is that the principle of contemporanea expositio is relevant for interpreting the words "the representatives of each State" in Article 80(4) of the Constitution with reference to contemporary legislation made by the Constituent Assembly itself acting as provisional Parliament just as subordinate legislation is used in order to construe the parent Act.

But then, the fallacy of the above approach to the subject lies in the fact that legislation by the provisional Parliament did not produce a constitutional rule. It does not have the sanctity or normative value of Constitutional Law. When the Act of 1951 was debated, no one argued that the residence qualification had already been decided upon by the Constituent Assembly and, therefore, no debate should take place. The difference between the original and derived power is the basis of the doctrine of basic structure. The principle of "contemporanea expositio', is totally irrelevant if not misleading for present purposes. If the Constitution had used an ambiguous expression, which called for interpretation, the manner in which the Constitution had been interpreted soon after it was enacted would be a useful aid to interpretation. No such question arises in this case. Indeed, the Parliament had earlier provided for residential qualification. But it decided to repeal it through the impugned amendment. Both times, that is while originally enacting the RP Act in 1951 and the while amending it in 2003, the Parliament was acting within its legislative competence. It is true that the provisional Parliament in 1951 did prescribe residence inside the State as a qualification for Membership of the Council of States. But, it also needs to be borne in mind that the same Parliament in its character of a Constituent Assembly had refused to exalt the qualification (including that of residence) to a Constitutional requirement and rather showed consciousness that the provision for qualifications might need to be revisited from time to time and, therefore, finding it inadvisable to prescribe the same in the Constitution itself.

It has been argued that if by electing a person as a Member of the Council of States by a particular State Assembly itself made that person a 'representative' of that State then it was unnecessary to enact Section 3 of the RP Act. Therefore, according to the argument, it has to be concluded that the Provisional Parliament (which had also drafted and enacted the Constitution), when enacting Section 3 of the RP Act, had thought it necessary to define the "representative of the State", with reference to his residence "in that State". The above mentioned argument to the extent founded on the principle of basic structure need not detain us any further as it is the same argument as dealt with in the context of federal structure, albeit with a slightly different shade. Moreover, the link factor is retained by the impugned amendments inasmuch as the candidate for the election to the Council of States is now required to be an elector for Parliamentary constituency. Therefore, the linking factor is made broad based.