2.1 That the impugned ordinance does not violate article 14 of the Indian Constitution.

It is humbly submitted that to test the validity of article 14 of the Indian Constitution. The
true meaning and scope of Article 14 have been explained in a number of cases by the
Supreme Court. In Ram Krishna Dalmia v. Justice Tendolkar1, it was held that article 14
permits the State to make differential classification of subjects (which would otherwise be
prohibited by Article 14) provided that the classification is founded on intelligible differentia
(i.e. objects within the class are clearly distinguishable from those that are outside) and has a
rational nexus with the objective sought to be achieved by the classification.

The purpose of the impugned ordinance is not to confer any advantage on any individual. Its
purpose is to save the democratically elected House. The classification of sitting Members of
Parliament and contesting Members of the Parliament is based on a well laid down differentia
and has nexus with a public purpose sought to be achieved. The ordinance has chosen to
classify candidates into two classes for the purpose of enacting disqualification. These two
classes are:

(i) A person who on the date of conviction is a Member of Parliament or Legislature

of a State, and
(ii) A person who is not such a member. The persons falling in the two groups are
well defined and determinable groups and, therefore, form two definite classes.2

The public purpose is to save the democratically elected house. Such a provision is required
to be interpreted in a realistic manner. While dealing with such situations a narrow
construction might disqualify some genuine members. When a house is democratically
constituted and a sitting MP or MLA is convicted, this situation has to be dealt on a different
footing. The question is not about an individual’s right to hold his seat but the continuity and
existence of the democratically elected house. If the said member is immediately disqualified,
the strength of the house will be reduced and also the strength of the political party to which
the individual may belong. The government may be surviving on a thin majority where each
member counts significantly and disqualification of even one member may have a deleterious
effect on the functioning of the government. By-election shall have to be held which exercise
may prove to be futile, also resulting in complications in the event of the convicted member
being acquitted by a superior criminal court. The judgments of the appellate courts are more
reliable as the judges of High Court and Supreme Courts are more experienced than the
judges of the lower courts.

That as per the principle of natural justice, no man should be condemned unheard. Politicians
are also the citizens of India hence they should be treated equally. They have a right to appeal
if they are aggrieved by the decision of the lower court.

Entertainment of appeal in the higher court is in itself a proof that aggrieved politician’s
matter holds merit. This releases him from him the tag of ‘Convicted’. Hence he cannot be
disqualified from his seat on the grounds that he is convicted. The impugned Ordinance
1
(1957) 59 BOMLR 769
2
K. Prabhakaran vs. P. Jayarajan , MANU/SC/0025/2005.
doesn’t negate the disqualification of the convicted Members it merely says that
disqualification pursuant to conviction or sentence in the case of sitting members should
stand deferred till the appeal or revision is decided by the Appellate Court. Hence, the
impugned ordinance does not violate article 14.

There is always a Presumption of Constitutionality in favour of the Statute. The principle of

Presumption of Constitutionality was succinctly enunciated by a Constitutional Bench in
Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors3:

“That there is always a presumption in favour of the constitutionality of an enactment

and the burden is upon him who attacks it to show that there has been a clear transgression
of the constitutional principles.”

2.2 That the impugned ordinance is not colourable legislation.

It is submitted that Doctrine of Colorable Legislation is built upon the founding stones of the
Doctrine of Separation of Power. Separation of Power mandates that a balance of power is to
be struck between the different components of the State

Black’s Law Dictionary defines ‘Colorable’ as:

1. Appearing to be true, valid or right.
2. Intended to deceive; counterfeit.
3. ‘Color’ has been defined to mean ‘Appearance, guise or semblance’.

One of the most cogent and lucid explanations relating to this doctrine was given in the case
of K.C. Gajapati Narayana Deo v. The State Of Orissa4

“If the Constitution of a State distributes the legislative powers amongst different bodies,
which have to act within their respective spheres marked out by specific legislative entries, or
if there are limitations on the legislative authority in the shape of fundamental rights,
questions do arise as to…………….class of cases that the expression ‘Colorable Legislation’
has been applied in certain judicial pronouncements. The idea conveyed by the expression is
that although apparently a legislature in passing a statute purported to act within the limits
of its powers, yet in substance and in reality it transgressed these powers, the transgression
being veiled by what appears, on proper examination, to be a mere presence or disguise.”

However doctrine of colourable legislation does not apply in the circumstances listed below
for the immediate case.
1. The doctrine has no application where the powers of a Legislature are not fettered by any
Constitutional limitation.

3
AIR 1958 SC 538.
4
AIR 1953 SC 375.
2. 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
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 legislature lacks competency, the question of
motive does not arise at all. Whether a statute is constitutional or not is thus always a
question of power.5

Article 123 empowers the President to promulgate such ordinances a the circumstances
appear to him to require when- (1) both Houses of Parliament are not in session and (2) he is
satisfied that circumstances exist which render it necessary for him to take immediate action.
The ordinance making power is co-extensive with the legislative power of the Parliament. It
has been conferred “ex necessitate” in order to enable the Executive to meet an emergency
situation.6 The ordinance is promulgated in the name of the President and in constitutional
sense, on his satisfaction. However, in truth it is promulgated on the advice of the Council of
Ministers and on their satisfaction7, which remains answerable in the Parliament.

An ordinance promulgated under Art. 123 shall have the same force and effect as the Act of
the Parliament. President’s power, however, is subject to the constitutional limitation to
which the Parliament is subject to. President can promulgate an ordinance only with respect
to matters in List I and List II of Schedule VII of the Constitution.

The President is allowed to issue ordinances with respect to the subjects on which the
Parliament can legislate. The Parliament is competent to legislate on the subject of the
impugned ordinance. It is well settled that the power to legislate on a topic of legislation
carries with it the power to legislate on an ancillary matter which can be said to be reasonably
included in the power given.8 So the power to legislate on the subject of disqualification of
members of Parliament and the State Legislature conferred on Parliament has a reasonable
connection with the power to say when the disqualification will take effect.

The source of legislative power for enacting such law is, therefore, very much there in
Articles 101(1) (e) and 191(1) (e) of the Constitution and when parliament cannot derive its
power in abovementioned articles then the power has to be derived from Art. 246(1) read
with Entry 97 of List I of the Seventh Schedule of the Constitution. The Residuary power
under Entry 97 of List I is also available to the President, as to Parliament.9

In the year 2005 the purpose of the Section 8 (4) of the R.P.A was challenged in the case of
K. Prabhakaran v. P Jayarajan. The Constitutional Bench of 5 judges held that “Sub-section
(4) operates as an exception carved out of Su b-sections (1), (2) and (3) of Section 8 of the
Representation of People’s Act, 1951. This provision clearly the saves the operation of Sub-
5
AIR 1953 SC 375.
6
Basu, D.D Page 9078
7
Shamsher Singh v. State of Punjab, AIR 1974 SC 2192.
8
United Provinces v. Atiqa Begum, AIR 1941 FC 16: 1940 FCR 110.
9
Krishnan v. R.T.A., AIR 1956 AP 129 (137).
sections (1), (2) and (3) and is founded on the factum of membership of a House. The
purpose of carving out such an exception is not to confer an advantage on any person; the
purpose is to protect the House.”10

Again in the year 2013 Section 8(4) of the Representation of People’s Act was challenged in
the case of Lily Thomas vs. Union of India (UOI) and Ors 11. The Division Bench of 2 judges
declared the Section 8 (4) of the Representation of People’s Act as ultra vires the
Constitution. Hence this shows that the judgement given in this case is clearly in conflict with
the judgement given in K. Prabhakaran v. P Jayarajan.

Since the two judgements are conflicting, it creates insecurity among the sitting members of
the Parliament regarding the continuance of their membership in the House or the Assembly.
Hence there was a need for immediate action by the Executive. As immediate action is a
ground to issue ordinance, this empowers the President to issue ordinance in this case.
Therefore this ordinance is not colourable legislation.

2.3 That of the two conflicting judicial opinions of two Supreme Court benches, the
Judgement of larger quorum must be preferred by the High Court over the smaller
quorum.

The Section 8 (4) of the Representation of People’s Act was challenged in the case of K.
Prabhakaran v. P Jayarajan.12 The Constitutional Bench of 5 judges held that “Sub-section (4)
operates as an exception carved out Sub-sections (1), (2) and (3) of Section 8 of the R.P.A.
Clearly the saving from the operation of Sub-sections (1), (2) and (3) is founded on the
factum of membership of a House. The purpose of carving out such an exception is not to
confer an advantage on any person; the purpose is to protect the House.”13

Again section 8(4) of the was challenged in the case of Lily Thomas vs. Union of India14.
The Division Bench of two judges declared the Section 8 (4) of the R.P.A as ultra vires the
Constitution. Hence this shows that the judgement given in this case is clearly in conflict with
the judgement given in K. Prabhakaran v. P Jayarajan, but in the judgement of Lily Thomas
v. Union of India nowhere did the judges mention that this is overruling the judgement given
in K. Prabhakaran v. P Jayarajan.

The crux of the ordinance is to stop the immediate disqualification of the sitting Members
and so was the crux of Section 8 (4) of the Representation of People’s Act. K. Prabhakaran’s
case upheld the validity of Section 8 (4) of the Representation of People’s Act. As this case is
being dealt by the Hon’ble High Court, it must prefer the judgement of the larger Bench i.e.
the Bench of K. Prabhakaran’s case, following the principle of Stare Decisis as laid in article
141 of the Indian Constitution.

10
K. Prabhakaran and Ors. vs. P. Jayarajan and Ors, MANU/SC/0025/2005.
11
Lily Thomas v. Union of India (UOI) and Ors, MANU/SC/0687/2013.
12
Id 10.
13
Id 12.
14
Id 11.
As in the case of Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd15 a Full Bench of
five learned Judges of the Karnataka High Court held that if two decisions of the Apex Court
on a question of law cannot be reconciled and one of them was by a larger Bench while the
other is by a smaller Bench, the decision of the larger Bench, whether it is earlier or later in
point of time, should be followed by the High Courts and other Courts.

Also in the case of Union of India v. Subramanian16, It was held that where there is a
conflict of opinion between the two Benches of the Supreme Court, the High Court should
follow the larger Bench in preference to that of a smaller Bench. In the immediate matter the
conflict persist between the Division Bench and Constitutional Bench of Supreme Court and
later bench always holds the larger quorum, i.e. five Judges, in comparison to Division
Bench, i.e. two judges.

15
Govindanaik G. Kalaghatigi v. West Patent Press Co. Ltd, MANU/KA/0102/1980.
16
AIR 1976 SC 2433(para 12).