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REGISTERED No D. (D.N.)-72

TheGazetteof India

EXTRAORDINARY

PART II—Section 3—Sub-section (II)

PUBLISHED BY AUTHORITY

NO. 538]NEW DELHI, MONDAY, NOVEMBER 29, 1982/AGRAHAYANA 8, 1904

Separate paging Is given to this Part in order that it may be filed as a separate

compilation

102 6 GI/82

(1)

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MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS

(Legislative Department)

NOTIFICATION

New Delhi ,the 29th November, 1982

S.O. 836(E).—The following Order made by the President

is published for general inforrnatit)'i :—

ORDER

Whereas a question has arisen before the President as a ..result of tho petition presented to the President on 23rd Fet^uary. "1982. "by Shri N. Safaya, Advocate Delhi High Court aS to whether Shri S. A. Dorai Sebastian, a silting member of^fj*⁰™ ot t l le PwPlc f¹^ become sjjfeJKT to the disqualification Hfinttoned in article lO^^fS) of the Constitution by virtue oiTfis fieinfi a member of the Minori- ties Commission;

And whereas the President of India has sought the opinion, of the Election Commission under article 103(2) of the Constitution, with reference to the said question;

And whereas the Election Commission has given it

Now, therefore, I, Zail Singh, President of India, in exer- cise of the powers conferred on me under article 103 of the Constitution, do hereby decide^ in accordance with the opi- nion of the Election Commission, that the said Shri S. A. Dorai Sebastian has not become subject to the disqualifica- tion mentioned in article 102(])(a) of the Constitution for being a member of the House of the People.

Rashtrapjiti Bhavan,

New Delhi

ZAIL SINGH,

the 24th November, 1982

President of India

ANNEXURE

Reference Case No. 3 of 1982 (Reference from the President under article 103(2) of the Constitution)

In re :•—Alleged disqualification of Shri S. A. Dorai Sebas-

tian a sitting member of the House of the People,

OPINION

This reference under article 103 of the Constitution seeks the opinion of the Commission on the- question raided before- the President as to whether Shri S. A. Dorai Sebastian a sitting member of the Lok Sabha, has become subject to the- disqualification mentioned in article 102(1)(a) cf the Con- stitution by virtue of his being a member of the Minorities Commission.

2. Too qiualioa, DCIOTU the President aioae as a result of tuc p'v-titioa picwsutuU to liu Piesiclent on 2.s*d I-tbruary, iSjJ2 by i"uri i \. aaxaya, Aavccate, Delhi High Comt.

3. TJu main contentfo.is raised in the pttition before the

P'cicLnt ate bnetii as under :—

Shii h. A. Daiai .ybd^tiaii, a candidate set UD by Indian Maboaal Congrtos U'> and elected to Lok Saoiia trum K.:rur I Miioa.ieni.uy cuasjiueney in 19fcO* was appointed as mcioi'er of Use iviiauimcs Commission tor a period ox OIK, yea* whue he was iioidin^ the mefniiersliij: $f the Lck >sabiia. He lias uiranped wifci she uc/ejument that he will iorego flis 8azar> ub a IvIciUuer of tiie Lok Sablia which is Rs. ls0(>0 a"ui v stcjd oJt tha'_ accept the salary ot a Member of the CciiiaiiSMO'i wnkh is. Kc. 3,0^0 pei month. Siui Sebastian having joined a stipendiary post and receiving a wlary in respect of tjia, posi. h"s hzacmi a holder o£ aa oilic; oi profit which attract the jjrovL-ions of article 102 of the Constitution. lh..: Chairman and Members o£ the Minori- ties Commission are en Itlsd *o draw theit saiari.s c,id perquisites and do in lact draw them.

The Parliament (Prevention of Disqualification) Act, 1959, dees not provide any immuuty to the -members of the Minoiitv Commission as the Minorities Cotnmiision is not a ltrrr.iry body bir, a standing body an,i it is no; n Com- ir.u.rt; b>n a Cosrrnia ion teKnz outsk'e the scope of section 3(h) of that Act.

4. The pctLioncr has also levelled certain allegations against the peisoftai character and.conduct of the suid mem- ber of the Lok h-ablia, his political affiliation, etc. Ther, are implied allegations against the Prime Minister to whoso party the elected member belongs. These allegations are q"iit; irrelevant for the doteimiiiatun of the ques!iort under aillvle "103 oi the Constitution. They are.tosay the* lesgC in- tSSjL *•"*•;. The" petitioner, being a lawyer, is exp^fgd to m.iintan ^'lain amouj:^ of decancy -and ^decrgygf jn sgitat-

i rr a r n i t tr ci T S B * . .. ' ' '' j:. " • " • " •; : \ < i . j a f j u ld h a ve r e f r a i n-

c ,; i i ' r .i n a k i n jj '

. ' • • :•

t he p e r s o n al c o n d u ct

Pnd cbaracf'r of an elected representative. The fpet that lah.r the ret'tioncr Wed an application before tbe Election <"V"r",rrus^\~">' for the withdrawal cf the case would refrn to •TJC"-'""-* that the slleaation* in his petition wer? made in a Vf.ii-hc-j-ted manner arcl without aiiv preat sense of r-s'-^tRibilUy.

5. llic Conimis ion issued notices calling upon the peii- tioojr to file a duly s*oin affidavit in support of the Jilvgations mac-'e m his petition. But tho petidonw did not i-espond to those notics;s and did not file any affidavit.

6. In the written statement filed by Shri Dorai, Sebastian, tbe allegations in the rslition have been refuted. The sub- missions made by Shii S-bastian aie as follows :—

He assumed office as member in the' Minorities Commis- sion, with etlect from 24th November, 1981. The Minorities Commission is a non-statutory body entrusted with functions like fact finding and to ad/ise State or Central Governments. Tbe Commission has absolutely no executive or monetary cowers . Ths Comnaijsion now consists of a Chairman and four members. The orders of the Ministry of Home Affairs appointing him as member of the Minorities Commission do, not provide for any emoluments as alleged in the petition. On the other hand, the terms of appointment as contained in the order dated 8th January, 1982 clearlv sav that he is entitled only to the payment of TA and DA and not any salary. He is neither to draw any salary nor has he actually drawn any salary. A certificate to this effect issued by the Actninistratjve Officer of the Minorities Commission has also been appended to the written statement. He has drawn only compensatory allowance in the name of daily allowance at the same rate of Rs. 51/- per day as would be admissible to a Member of Parliament and that too only for such days as he had to work in the Minorities Commission. For all those days, he has not drawn any daily allowance as an M. P The order of the Government dearly stipulates that he is entitled to onlv compensatory allowance. Therefore, he h entitled to the immunity provided under the Parliament (Prevention of ~V • """ '" "^ * *t, 1959. Under the,landing orders nf the '" • • . • " • • (Departmen* of Expendi- t u re G.M. No. b. nt2o;-Kiv /59 dated 5th Sertember, 1%0. he h entitled onlv to the grant of travelling allowance 7

7.' Thouph the petitioner did not file .any affidavit in snp- r-v* ".1 the allegations, the Commission decided to fcear the

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partis aim a c c o r d o^ fixed "Jiu of August, 19^2 IOI near- iBg. liiw ^eiuioncr WJS albo given a copy Oi. uic written btdieiiitui ox vjiiii bcoaauan vnih ail enclosuies thereto cailing uyoa hiiii to sue ins rtjciiider sUtcmeni duiy s.upporied t>y aii lckvani viucumejU "na a. picpcuy bwun affiaavii. Again tiik. dirccuoit v/da nut couipii^u wua oy tae pouuunu.

8. At the hearing on the 9th Augu&i, 1982, the petitioner was represented by Shii P. N. i>u-da. Advocate. On that day VLC Conjiiiaiioii xrained tue ieiiowmw two isaues in the matici :—

(1) Whether section 3(i) of the Parliament (Pieventicn

bf Ln^quaiincauon) Act, J959 is mira vires oi the Constitution; and

(2) Whether Shii Sebastian has incurred any disqualifi- cation by holding an office of profit by virtue of his accepting tiie post of d M°n;ber of the Minorities CohlZlUitSioA.

9. At the close, of the hearing, Shri Duda submitted that

having regard to trie various iactois he would consiaer the mthdiawal of me petition ii ihe Commission granted per- Mt.sion in that regaid. Ho was asked to nie a tormal appii- cution for coiisideiatioa of tbe Comsiissi^n.

10. A petition dated the 13th August, 1982 signed by the

petitioner, ihri N. Sai*ya, and by his advocate, ^hri P. N, Duda w<;.s sehi to the Coounbsion in whjga it WSs state? that tbe original petition ,\as filed m^tfliy"ofi trie assumption that Shii^Sebaaja^^Biv^fa^iEf^ salary at par with the other megifcers of the Commjsion and it was based on the stand •feat the appointment was not protected by section 3(h) of the Parliament (Prcventioa of Disqualification) Act 2959. In that application, it was further mentioned that since tbe writ- ten statement filed by the elected insmber revealed that he was not drawing any remuneration other than daily" allowance as defjied under the Act and that his tenure as a member of the Cs)mmiasion wag protected from challenge under section 31) oi" that Act, the petitioner would not pursue the matter, but withdraw ths same as th; .wound mentioned by him were based en misapprecutioa of facts.

11. A notice was ser.t to both *he parties" for the hearing-

on the 14:h September, 1V82. In that notice, the Commis- sion indicated tliat the application for withdrawal would be taken up by the CommLsion and that in case the Commis- sion decided to Bear the parties on the merits of the case, they should be prepared to make their submissions in that regard. Accordingly, a hearmjj was held on t;ie 14th Sep- tember, 1982. Neither the petitioner nor his r.dvocatc Shri P. N. Duda were present. It was unfortunate that the Com- mission did not get the assistance of the petitioner in regard to the determination of the two issues framed in the matter.

12. Shri M. C. Bhandarj, Senior Advocate, Supreme Court, appearing on behalf of Shn Sebastian, urged that Shri Sebas- tian was not disqualified as a member of the Lok Sabha as his case was covered under section 3(h) of the Parliament (Prevention of Disqualification) Act, 1959. According to him, the Minorities Commission ha" been set up for the purpose of advising the Government iv respect of matters of public importance and for the purpose of making an enquiry into such matters. According to the definition, the Minorities Commission is a Commission, under section 2(b) and fc) of that Act. If the holder of an office is not entitled to any remuneration other than compensatory allowance within the meaning of that Act, the office would not disqualify the holder as envisaged in section 3 of that Act. The Ministry of Finance Memorandum No F. 6(26)-E.TV/59. dated 5th September, 1960 resralatrs the payment of travelling allow- ance and daily allowance to Members of Parliament when appointed to Committees, Currr'issions, Boards of enquiry, etc. setTObv the Government of India. Relvinc upon these factors. Shri M. C. Bhandan urc;ed that Shri Sebastian was iTMnnne from any disfliwlification for being a member of the •TnV SaMia as envisaged in the Parlinment (Prevention of DisaunHficatiftn) Ac?, 1959 even thonah he f* holding the office of a member of the Minorities Commission.

13. Before examining the case on merits, the issue whe- ther a petitioner who has filed ri petition before the Presi- dent raisinq; a question of disqualification of a member wider article 103 csn withdraw the petition before the Commission is to be determined.

14. The petition has been iilcd before the Piesident and the President hag reteued the matter to the Commission. The matter taiscti is one of the public importance. The whole object of democratic elections ii to constitute legisla- tive chambers by members who are entitled to that statua and it any member toiicits that status by reason ot subse- quent disqualification, it 13 in the Interest of ihc constituency which such a member ieprosents that the matter should be brought to the notice of the President and decided by him in accordance of the mo visions of article J03 of the Con- stitution. No person who haj incurred uny of the disquali- fications specified byi article 102(1) should bo allowed to continue to lie a member of t tr legislative bodv. Having regard to these piiuciples enunciated by the Supreme Court in Biindaban Naik v. Election Commission of India (AIR 1965-SC-1896, the Commission has no hesitation in coming to the conclusion that once a petition has been filed before the President and the President has referred the matter to the Commission, it is obligatory on the part of the Commis- sion to enquire into the matter and tender its Opinion ines- poctivo of whether the person who presented the petition assists the Commission or not. The Commission will there- fore, have to go into the question on the records available and tender its opinion. The question of withdrawal of the petition before the Commission does not therefore ari^e

15. The first issue that is, whether section 3(i) of the Parliament (Prevention of D'^uali&cation) Act. 1959 is ultra vires the Constitution pr not, has been framed at thVTnstaneo 01 Shri P. N- Duda, Advocate for the petitioner. In view of the absence ct St^l B'jda, at the hearing on the 14i September, 1982, the Commission fr,i net haV" the benefit of the contentions of Shri Duda in support of his pleri t nat section 3(i) was ultra \iref. In any event, the Commission' cannot jrc> into the question of vires of the provisions of any Parliamentary law in the present proceedings. The Commission is required to apply the law as it stands and only examine whether a particular piovision of law is appli- cable to a civen case under article 103 of the Constitution or not. The Parliament (Prevention of Disqualification) Act, 1959 has been on the Statute Book for more than two decades now. It hag been applied to a number of cases both by the highest .courts i e. the SuDreme Court and the High Courts and, also by \he Commission. It is not there- fore open to any litiotent before tlje Commission to chnllenRe its vires. Accordingly, it muit be held that the Commission should proceed on the basis of the provisions of the Parlia- ment (Prevention of Disqualification) Act, 1959 being infra vires the Constitution. The issue is found awcordinaly.

16. The only question that is left for determination is whether by holding the office uz a member of the Minorities Commission, Shri Sebastian is holding an office of profit under th" Government of India and hns therefore become subject to the disqualifitation under article 102(1) (n) of the Constitution, Shri Sebastian has cateporically stated in his written statement that he is not drawing any salary or remuneration as member of the Minorities Commission. There is nothing in th© records produced in the ca^e to show that he is entitled to any remuneration other than the payment of travelling and daily allowance, at the same rate of Rs. 51/- per day which a member of Parliament is entitled to, under the standing instruction* of the Government Tbe Ministry of Finance Office Memorandum which lavs down detailed instruction^ for t*'o payment of travelling and daily allowance to a Member of Parliament appointed to a Committee Commissions etc. wni issued in i960. These ord*n in the form of supplementary rule¹* to Fundamental Rules, are beinr issvwi from time to lime in "erci°© of thenowers conferred by the proviso to article 309 of the Constitution. These are general orders applicable to .'ill member^ of Parliament regulating the pavment of travelling allowance daiiv allowance and other iilliivrtin;as to them wh-n ap- pointed to Committees, Commissions, etc. Th" terms of aTiT>ointment! of Shri Doiel Sebastian as a Member of tlie Minorities Commission RS contained in the Ministry of Home Affairs order dated 8th January 1982 specifically lay down that the pavment of travclHm allownnce. dailv allow- ance and other allowance^ to Shri Dorni Sebastian. Member , iw vmdated on 28th Febniirv. 1978. The°e .c rders permit n Member of Parliament appointed to a Committee. Commis- sion etc. the drawal of only the doily allowance of Rs. 5 1 /- per duy aa referred to above.

17. Section 3(h) of the parliament (Prevention of Disquali- fication) Act, 1959 stales that jf the holder ot an office of Chaiiman or Jycinuci UL a t-Oinmittee (whtibcr con-jstiDj; ot one or more members) set up temporarily for the purpose of advising tbe Government or anv other authority in res- pect Ml any matter or public impoitance or tor tue puipos* of making an enquiry into, or collecting statistics In respect of any such matter is not entitled to any remuneration other than compensatory allowance, then such holder is Dot dis- qualiiied tor being chosen as, op for bejnjj a Member of Parliament. Section 2 of that Act contains the definitions of (1) "Compensatory Allowance', (2) "Statutory Body", (3) "Non-Statutory Body" which are relevant for the pur- pose of the present cuse. Under the- deiinition. Compensa- tory allowance would moan any sum of money payablo to the- holder of an office by waj/ ot daily allowance [such allowance not exceeding the amount of daily allowance to which a member of Parliament 1$ entitled under the Salaries and Allowances of Members of Parliament Act, 1954 (30 of 1954)1, conveyance allowance, house rent allowance or tra- velling allowance for the purpose of enabling him to recoup any expenditure incuircd by him in performing the functions of that office. The Salaries and Allowances of Parliament Act, 1954 allows the payment of Rs. 51/• as daily allowance to a. Member of Pajliamtmt vide section 3 of that Act. If Shri Sebastian is entitled only to Rs, 5 1 /- as daily allowance for the days hq is attending the duty as a Member of the Minorities Commission, and not entitled to any other remu- neration, his case would be covered under the above men- tioned exemption clause of the Parliament (Prevention of Disqualification) Act, 1959. As already stated in his written statement on oath, Shri Sebastian has categorically stated flvit he is entitled only to the- daily allowance at the rate of. Rs. iXj* Per day and has not been paid any salary^jgffraL veliing allowance so far. He has also state

18. In the above circumstances, the Commission is of the view that by holding the office of Member of Minorities Commission on the terms nnd conditions applicable to him, Shri Doraf Sebastian is not disqualified for beirc a member of Lok Sabha as the provision.] of section 3(h) of the Parlia- ment (Prevention of Disqualification) Act, 1959 arc appli- cable to him. Thf issue is found in the negative, Therefore, I am of the opinion and accordingly ''"Id that Shri Dorii Slebastian hns not attracted the di=ouali

19 I hereKv tendsr mv oninion to the above effect to the

President under article ll>3(2) of the Constitution.

New Delhi,

Sd/-

October t, 1982.

R K. TRIVEDI.CMef Election Commfotoner of India

fF. 7f27)/82-Leg. IT7

R. V. S. PERI SASTRT. Secy.

I HINTED BY THE MANAGER, OOVf. OF INDIA PRESS, SING ROAD, NEW DELHI-II0064

AND PUBLISHED BY THE CONTROLLER OF PUBLICATIONS, DELHt-110054, 1 9 82