LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S. N. SHUKLA & ANOTHER versus UNION OF INDIA THROUGH ITS SECRETARY & OTHERS on 16 April 2018

[2018] 7 S.C.R. 1050

SUPREME COURT REPORTS

[2018] 7 S.C.R.

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LOK PRAHARI,THROUGH ITS GENERAL SECRETARY S. N. SHUKLA& ANOTHER

v.

UNION OF INDIA

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THROUGH ITS SECRETARY & OTHERS(Civil Appeal No. 3798 of 2018)

APRIL 16, 2018

[J. CHELAMESWAR AND SANJAY KISHAN KAUL, JJ.]

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Salaries, Allowances and Pensions of Members of ParliamentAct, 1954 – ss.8A, 8AC, 6B(1), 6B(2) and 8AA – Amendments in the1954 Act conferring the benefit of pension and other facilities toex-members of Parliament and their Associates (i.e. spouses/companions/dependents) and right of free travel etc. to members ofDParliament and their Associates – Writ petition filed by appellantbefore High Court, challenging the constitutional validity of theamendments, dismissed – On appeal, held: The fact that there areexpress references in the Constitution for payment of pension tocertain constitutional functionaries and not to others, does not leadto the conclusion that the Constitution by its silence prohibits theEpayment of pension to those constitutional functionaries – Framersof the Constitution believed that certain offices required a higherdegree of protection, having regard to the greater degree ofindependence expected of the holders of their offices – Terms andconditions subject to which a person is either appointed or electedFto occupy the constitutional office is a matter of policy choice –Appropriate legislature would be the constitutionally designatedauthority to determine those conditions – Expression “allowances”of MPs occurring u/Entry 73 of List-I of the VII[th ]Schedule, is wideenough to cover the payment of “pension” and the other benefitscovered by the impugned provisions to MPs or ex-MPs – EvenGotherwise the authority of Parliament u/Entry 97 of List-I is wideenough to cover the impugned legislation– Constitution of India –Arts.14, 106 and Arts. 59(3), 158(3), 75(6), 164(5), 97, 18, 125(2),221(2), 148(3), 322 and 324(5)– President’s Emoluments andPension Act, 1951– s.2– Vice President’s Pension Act, 1997– The H

Comptroller and Auditor-General’s (Duties, Powers and Conditionsof Service) Act, 1971– Election Commission (Conditions of Serviceof Election Commissioners and Transaction of Business) Act, 1991.

Dismissing the appeal, the Court

HELD: 1.1 Section 8A of the Salaries, Allowances andPensions of Members of Parliament Act, 1954 grants pensionsto (i) ex-MPs, and (ii) upon their death, the pension is given totheir respective spouses. Section 8AC provides family pensionto the spouse of such MPs on the death of the MP. Section 8A asoriginally enacted provided that an MP, to be eligible for Pensionmust have completed four years of tenure in Parliament. But thiswas done away with retrospective effect by the Amendment ActNo.9 of 2004. Section 6B(1) confers a right to all the MPs forunlimited travel by train along with spouse/companion from anyplace in India to any other place in India. Section 6B(2) providesup to 8 air journeys in a year from the MP’s usual place ofresidence to Delhi and back when Parliament is in Session andalso provides the spouse of the MP unlimited train travel by FirstClass AC at any time during the year. Section 8AA confers a rightof travel facilities to the ex-MPs and their ASSOCIATES (i.e.spouses/companions/dependents). It provides for free AC-II Tierpass for one person to accompany an ex-MP in all train journeysand unlimited free travel by train along with spouse/companionfrom any place in India to any other place in India. [Para 17][1060-D, E; 1061-A-B, C]

1.2 The submissions of the Appellants proceed on the wrongassumption that certain provisions of the Constitution mandatethe payment of pension to persons who hold constitutional officeslike the Judges of this Court. A true and proper construction ofthe text of the relevant provisions, do not mandate the paymentof pension. They only protect the pension if payable under therelevant law applicable on the date of appointment of a person toany one of those offices by declaring that such a condition couldnot be altered to the detriment of a person subsequent to hisappointment. However, the constitutional obligation to paypension to persons who hold such offices may arise by implicationhaving regard to the overall scheme of the Constitution relevantto those offices. The need to secure the independence of the A

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Aholders of those offices by assuring them that either thelegislature or the executive will not be able to deprive them ofthe financial resources necessary to keep them away fromimpecuniousness, irrespective of the fact that a decision takenby the incumbents of each of those offices in discharge of theofficial responsibilities is acceptable or not either to the legislatureBor the executive. [Para 20] [1062-C-F]

1.3 The fact that there are express references to thepayment of pension in the Constitution for certain constitutionalfunctionaries and not for others, does not lead to the conclusionthat the Constitution by its silence prohibits the payment ofCpension to those constitutional functionaries. Each constitutionaloffice holder functions in accordance with the powers and dutiesentrusted to it either by the Constitution or the laws relevant totheir powers and duties. The framers of the Constitution believedthat certain offices required a higher degree of protection, having Dregard to the greater degree of independence expected of theholders of their offices. The framers knew history and theattempts of the men in power to subjugate the holders of suchoffices. Safeguards, therefore, were provided in respect of thevarious aspects of the tenure and other conditions of servicerelevant for their offices. When it comes to MPs, however, suchEa higher degree of constitutional protection is not obviouslyrequired as the authority to make laws rests only with them.[Para 21] [1062-H; 1063-A-C]

1.4 The terms and conditions subject to which a person iseither appointed or elected to occupy the constitutional office isFa matter of policy choice. The appropriate legislature would bethe constitutionally designated authority to determine thoseconditions. It is too well settled in constitutional law that theauthority of legislature to make a policy choice is onlycircumscribed by the limitations imposed by the Constitution,Geither by an express provision or by a necessary implication arisingout of the scheme of the Constitution. Whatever is not prohibitedby the Constitution is permissible for the legislature. [Para 22][1063-D-E]

1.5 There is a fallacy in the argument advanced by theHAppellants that pension is payable to an employee of State after LOK PRAHARI, THR. ITS GENERAL SECRETARY v. UNIONOF INDIA THR. ITS SECRETARY

his superannuation and since MPs are not employees of State,they are not entitled for pension nor the Parliament is competentto provide payment of pension to the ex-MPs. The abovesubmission assures that pension is only payable to formeremployees of State and nobody else. Such a submission emanatesfrom the fact that certain payments made to the former employeesof State are called pensions and the misconception of theAppellants that the expression ‘pension’ can only have onemeaning. There are various other categories of payments madeby State which are called ‘pensions’, such as, Old Age Pension,Widow Pension, and Disability Pension etc. [Para 24][1064-A-C]

1.6 The expression “allowances” of MPs occurring underEntry 73 of List-I of the Seventh Schedule, is wide enough tocover the payment of “pension” and the other benefits coveredby the impugned provisions to MPs or ex-MPs. Even otherwisethe authority of Parliament Entry 97 of List-I is wide enough tocover the impugned legislation. [Para 27] [1064-F-G]

1.7 These questions are in the orbit of the wisdom of theParliament in choosing/changing the legislative policy whetherthe various benefits created under the impugned provisions arerational having regard to the affluent financial status of some ofthe MPs or the poverty of the millions of the population etc. Theseare not justiciable issues as held by Common Cause. [Para 31][1066-A-B]

Common Cause, A Registered Society v. Union of India(2002) 1 SCC 88 : [2001] 5 Suppl. SCR 323 – followed.

Dr. P. Nalla Thampy Terah v. Union of India & Others(1985) Suppl. SCC 189 : [1985] Suppl. SCR 622 ; Stateof Kerala v. N.M. Thomas, (1976) 2 SCC 310 :[1976] 1 SCR 906 ; State of Karnataka v. Union ofIndia (1977) 4 SCC 608 : [1978] 2 SCR 1 – relied on.

McCulloch v. Maryland, 4 Wheat. 316, 425-437,4 L.Ed. 579 (1819) ; Alagaapuram R. Mohanraj &Others v. Tamil Nadu Legislative Assembly, (2016) 6SCC 82 : [2016] 6 SCR 611 – referred to.

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[2018] 7 S.C.R.

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CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3798of 2018.

CFrom the Impugned Judgment and Order dated 20.04.2016 of theHigh Court of Judicature at Allahabad, Lucknow Bench in PIL CivilMisc. Writ Petition No.1620 (MB) No.1620/2004.

S. N. Shukla, Petitioner-in-person.

Mrs. Kamini Jaiswal, Ms. Shruti Dutt, Jatinder Pal Singh, SuyashDSrivastava, Ms. Rani Mishra, Advs. for the Appellants.

K.K. Venugopal, AG, Shiv Mangal Sharma, AAG, Ajit KumarSinha, Sr. Adv., Rohit Bhatt, Ms. Alankrita Sinha, Sarad Kumar Singhania,B.V. Balaram Das, B. Krishna Prasad, Ms. Monisha Handa, Mohit D.Ram, Advs. for the Respondents.

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The Judgment of the Court was delivered by CHELAMESWAR, J. 1. Leave granted.

2. This appeal arises out of a Writ Petition that challenged theConstitutional validity of certain Amendments[1] made to the Salaries,FAllowances and Pensions of Members of Parliament Act, 1954(hereinafter referred to as “the Act”). The provisions challenged relateto the payment of pension and other facilities to members of Parliament(hereinafter referred to as “MPs”) and ex- members of Parliament(hereinafter referred to as “ex-MPs”), and their spouses/companions/dependents (collectively hereafter referred to as “ASSOCIATES”). TheG1[st] Appellant sought the following prayers, inter alia, in the Writ Petitionbefore the Allahabad High Court:

1By the Amendment Act 2003, Act 9 of 2004, Amending Act No. 40 of 2006 andAmending Act 37 of 2010.

1. “Declare that the provisions of various amending Acts to Act30 of 1954, and particularly those of the Amending Act 9 of2004, and Amending Act No. 40 of 2006 and Amending Act37 of 2010, providing for pension/family pension to ex-MPs/dependents, travel facilities to spouse and other non-members,(in addition to the companion) and ex-MPs, as well ascontinuation of facilities, regarding unutilized quotas oftelephone calls electricity and water units are ultra vires ofthe Constitution and the original Act.

2. Issue a mandamus to the opposite parties 1 to 4 to stopforthwith payment of pension/family pension to ex-MPs/dependents, and provision of other facilities in 1 above.

3. Order recovery of illegal pension/family pension from therecipients thereof.”

3. The High Court dismissed the writ petition negating allcontentions raised by the 1[st] Appellant herein, holding that the issue is nolonger res integra in view of the Judgment in Common Cause, ARegistered Society v. Union of India[2](hereafter referred to as“Common Cause”) wherein this Court held that Parliament is competent-to legislate on pensions for exMPs and as a corollary it has the powerto prescribe any condition subject to which the pension may be paid. Weare in total agreement with the conclusion of the High Court on thequestion of legislative competence.

4. The question which remains to be answered is whether any ofthe impugned amendments which create various rights in favour of ex-MPs & their ASSOCIATES and certain other facilities to MPs areviolative of Article 14 of the Constitution of India, 1950 as beingdiscriminatory. It was the case of the Appellant that the Common Causecase is silent in this respect. However, the High Court took the view thatthe attack on Article 14 is foreclosed by Common Cause.

5. It is argued before us that Common Cause took note of thePetitioner’s argument therein[3] that the Act is violative of Article 14,however, there was neither any discussion on the issue nor any binding 2 (2002) 1 SCC 88

3 “5. Reference was made by the Petitioner in WP (C) No. 246 of 1993, appearing inperson, to the provisions of Article 14 and it was submitted that there was discriminationin favor of Members of Parliament by giving them pension when, unlike Judges, theywere not subject to the process of impeachment.”

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Adecision on the question.[4]. Therefore, it is submitted that the High Courterred in concluding that the challenge to the impugned provisions isimpermissible. We propose to limit our examination in the present caseto the question of the constitutionality of various Amendments broughtafter the Common Cause case on grounds other than legislativecompetence.B

6. To answer the same, we may start with the analysis of thevarious provisions of the Constitution creating various constitutional officesbecause some of these provisions contemplate the possibility of thepayment of pension in respect to certain Constitutional offices, while noexpress reference is made with regard to various other offices created Cby the Constitution.

7. Article 59(3)[5] specifies that the President shall be entitled tosuch ‘emoluments, allowances and privileges as may be determined byParliament by law’ while Article 158(3) specifies the same for theGovernor. Neither of the Articles make any reference to the payment ofDpension. However, Section 2 of the President’s Emoluments and PensionAct, 1951 provides for the payment of pension and other facilities to theretiring President.[6]

4 “7. The issue before us is squarely one of competence, namely, the competence ofParliament to enact the said Section 8-A. We need not go into Entry 73 of List I for weare in no doubt that such competence is conferred upon Parliament by the residuaryEEntry 97 of List I, and there is no provision in Article 106 or elsewhere that bars thepayment of pension to Members of Parliament.”

5 Article 59(3). Conditions of President’s office.- The President shall be entitledwithout payment of rent to the use of his official residence and shall be also entitled tosuch emoluments, allowances, and privileges as may be determined by Parliament bylaw and, until provision in that behalf is so made, such emoluments, allowances andprivileges as are specified in the Second Schedule.F 6 Section 2. (1) Pension to retiring Presidents. There shall be paid to every personwho ceases to hold office as President, either by the expiration of his term of office orby resignation of his office, a pension of 6 one lakh twenty thousand rupees per annumfor the remainder of his life. [ (2) Subject to any rules that may be made in this behalf,every such person shall, for the remainder of his life, be entitled- (a) to the use of a furnished residence (including its maintenance), without payment ofrent, a telephone and a motor- car, free of charge or to such car allowance as may beGspecified in the rules-,(b) to secretarial staff consisting of a Private Secretary, a Personal Assistant and a Peon,and office expenses the total expenditure on which shall not exceed twelve thousandrupees per annum;

(c) to medical attendance and treatment free of charge.

(d) to travel anywhere in India, accompanied by one person, by 9 highest class by air,rail or steamer. Explanation.— For the purposes of this sub- section” residence” shallHhave the meaning assigned to it in the Salaries and allowances of Ministers Act, 1952 ]

8. Article 75(6)[7] and Article 164(5) respectively speak of thesalaries and allowances of Ministers, which Parliament and the StateLegislature may determine by law.

9. Articles 97[8] and 186[9] provide for the payment of ‘salaries andallowances’ of the Chairman and Deputy Chairman and the Speakerand the Deputy Speaker of Parliament and State Legislatures. The Vice-President’s Pension Act, 1997 has an identical provision with respect tothe payment of pension and post retirement facilities as are provided tothe President.[10]

10. Article 106 of the Constitution stipulates that MPs shall beentitled to receive ‘salaries and allowances’ to be determined by 7 Article 75. Other Provisions as to Ministers- (6) The salaries and allowances ofMinisters shall be such as Parliament may from time to time by law determine and,until Parliament so determines, shall be as specified in the Second Schedule.

8 Article 97. Salaries and allowances of the Chairman and Deputy Chairmanand the Speaker and Deputy Speaker.- There shall be paid to the Chairman and theDeputy Chairman of the Council of States, and to the Speaker and the Deputy Speakerof the House of the People, such salaries and allowances as may be respectively fixedby Parliament by law and, until provision in that behalf is so made, such salaries andallowances as are specified in the Second Schedule.

9Article 186. Salaries and Allowances of the Speaker and Deputy Speaker andthe Chairman and Deputy Chairman.- There shall be paid to the Speaker and theDeputy Speaker of the Legislative Assembly, and to the Chairman and the DeputyChairman of the Legislative Council, such salaries and allowances as may be respectivelyfixed by the Legislature of the State by law and, until provision in that behalf is somade, such salaries and allowances as are specified in the Second Schedule.

10 Section 2. Pension to retiring Vice-Presidents.—(1) There shall be paid to everyperson who ceases to hold office as Vice-President, either by the expiration of his termof office or by resignation of his office, a Pension 1 [at the rate of fifty per cent of thesalary of the Vice-President] per month, for the remainder of his life

Provided that such person shall not be entitled to receive any pension during the periodhe holds the office of the Prime Minister, a Minister or any other office or becomes aMember of Parliament and is in receipt of salary and allowances which are defrayed outof the Consolidated Fund of India or the Consolidated Fund of a State.

(1A) The spouse of a person who dies —

(a) while holding the office of Vice-President, or (b) after ceasing to hold office as Vice-President either by the expiration ofhis term of office or by resignation of his office, shall be paid a family pension at therate of fifty per cent of pension as is admissible to a retiring Vice-President, for theremainder of her life.

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AParliament through legislation.[11] There is no express reference to thepayment of pension.

11. On the other hand, the provisos to Article 125(2)[12] andArticle 221(2)[13] respectively make an express reference to thepayment of pension to judges of the Supreme Court and the HighBCourts.

12. Article 148(3)[14] provides that salary and other conditions ofservice of the Comptroller and Auditor-General shall be as may bedetermined by Parliament by law. The proviso thereto contains areference to the payment of pension. The Comptroller and Auditor-CGeneral’s (Duties, Powers and Conditions of Service) Act, 1971 contains 11 Article 106.Salaries and Allowances of Members.-Members of either House ofParliament shall be entitled to receive such salaries and allowances as may from time totime be determined by Parliament by law and, until provision in that respect is so made,Dallowances at such rates and upon such conditions as were immediately before thecommencement of this Constitution applicable in the case of members of the ConstituentAssembly of the Dominion of India 12 Article 125. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to suchprivileges and allowances and to such rights in respect of leave of absence and pensionas may from time to time be determined by or under law made by Parliament and, untilso determined, to such privileges, allowances and rights as are specified in the SecondESchedule:

Provided that neither the privileges or the allowances of a Judge nor his rights in respectof leave of absence or pension shall be varied to his disadvantage after his appointment.13 Article 221. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to suchallowances and to such rights in respect of leave of absence and pension as may fromtime to time be determined by or under law made by Parliament and, until so determined,to such allowances and rights as are specified in the Second Schedule:FProvided that neither the allowances of a Judge nor his rights in respect of leave ofabsence or pension shall be varied to his disadvantage after his appointment.14 Article 148. Comptroller and Auditor-General of India.- (3). The salary andother conditions of service of the Comptroller and Auditor-General shall be such asmay be determined by Parliament by law and, until they are so determined, shall be asspecified in the Second Schedule:

Provided that neither the salary of a Comptroller and Auditor-General nor his rights inGrespect of leave of absence, pension or age of retirement shall be varied to his disadvantageafter his appointment.

LOK PRAHARI, THR. ITS GENERAL SECRETARY v. UNIONOF INDIA THR. ITS SECRETARY [CHELAMESWAR, J.]

various provisions for the payment of pension on his/her demission ofoffice.[15]

13. Article 322[16] declares that the expenses of Public ServiceCommissions shall be charged on the Consolidated Fund of India andsuch expenses include “salaries, allowances and pensions” payable toor in respect of the members or staff of the Commission.

14. Article 324(5)[17] stipulates that “conditions of service and tenureof office of the Election Commissioners shall be such as the Presidentmay by rule determine.” Though the Constitution is silent in regard topayment of pension to the Election Commissioners, Section 6 in theElection Commission (Conditions of Service of Election Commissioners 15 Section 6. Pension.- A person who demits office as the Comptroller and Auditor-General by resignation shall, on such demission, be eligible to a pension at the rate oftwo thousand rupees per annum for each completed year of his service as theComptroller and Auditor-General:

Provided that in the case of a person referred to in sub-section (1) or sub-section (3),the aggregate amount of pension admissible under this sub-section together with theamount of pension including the commuted portion, if any, of his pension, and thepension equivalent of the retirement gratuity if any which may have been admissible tohim under the rules for the time being applicable to the Service to which he belongedimmediately before he assumed office as the Comptroller and Auditor-General, shallnot exceed fifteen thousand rupees per annum or the higher pension referred to inproviso to sub-section (2) or sub-section (3), as the case may be.

16 Article 322. Expenses of Public Service Commissions The expenses of the Union or a State Public Service Commission, including any salaries,allowances and pensions payable to or in respect of the members or staff of theCommission, shall be charged on the Consolidated Fund of India or, as the case may be,the Consolidated Fund of the State.

17 Article 324. Superintendence, direction and control of elections to be vested inan Election Commission

(5) Subject to the provisions of any law made by Parliament, the conditions of serviceand tenure of office of the Election Commissioners and the Regional Commissionersshall be such as the President may by rule determine:

Provided that the Chief Election Commissioner shall not be removed from his officeexcept in like manner and on the like grounds as a Judge of the Supreme Court and theconditions of service of the Chief Election Commissioner shall not be varied to hisdisadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissionershall not be removed from office except on the recommendation of the Chief ElectionCommissioner.

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Aand Transaction of Business) Act, 1991 makes provision for payment ofpension to Election Commissioners which is equal to the pension payableto a Supreme Court Judge.[18]

15. From the Constitutional scheme it can be seen that no expressmandate exists for the payment of pension with respect to any one ofBthe Constitutional offices. However, Articles dealing with the Judges ofthe Supreme Court and the High Courts and the Comptroller and Auditor-General stipulate that pensions payable may not be varied during theirtenure. The implication being that if the law dealing with the serviceconditions of any of the incumbents of any one of the said offices at thetime of their appointment provides for the payment of pension, such aCprovision of law cannot be varied to the detriment of the incumbent.

16. The provisions under challenge fall under two categories (i)provisions which confer the right of free travel etc. to the MPs and theirASSOCIATES; and (ii) provisions which confer the benefit of pensionand the right of free travel etc. to the ex-MPs and their ASSOCIATES.D

THE PROVISIONS UNDER CHALLENGE:

17. Section 8A[19] of the Act grants pensions to (i) ex-MPs, and (ii)upon their death, the pension is given to their respective spouses. Section8AC[20] provides family pension to the spouse of such MPs on the death E18 Section 6. Pension payable to Election Commissioners.-

(2) Where the Chief Election Commissioner [or an Election Commissioner] demitsoffice [whether in any manner specified in [sub-section (3)] or by resignation], he shall,on such demission be entitled to (a) a pension which is equal to the pension payable to a Judge of the Supreme Court inaccordance with the provisions of Part III of the Schedule to the Supreme Court Judges(Conditions of Service) Act, 1958, as amended from time to time; andF(b) such pension (including commutation of pension), family pension and gratuity asare admissible to a Judge of the Supreme Court under the said Act and the Rules madethereunder, as amended from time to time…”

19 Section 8A. (1) With effect from the 18th day of May, 2009, there shall be paid apension of twenty thousand rupees per mensem to every person who has served forany period as a Member of the Provisional Parliament or either House of ParliamentG Provided that where a person has served as a member of the Provisional Parliament oreither House of Parliament for a period exceeding five years, there shall be paid to himan additional pension of thousand five hundred rupees per mensem for every yearserved in excess of five years Explanation. – For the purpose of this sub-section “Provisional Parliament” shallinclude the body which functioned as the Constituent Assembly of the Dominion ofIndian immediately before the commencement of the ConstitutionH20 Inserted by Act 40 of 2006 – effective from 15-9-2006

of the MP. It is pertinent to mention here that Section 8A as originallyenacted provided that an MP, to be eligible for Pension must havecompleted four years of tenure in Parliament. But this was done awaywith retrospective effect by the Amendment Act No.9 of 2004.

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Section 6B(1)[21] of the Act confers a right to all the MPs forunlimited travel by train along with spouse/companion from any place inIndia to any other place in India. Section 6B(2)[22] provides up to 8 airjourneys in a year from the MP’s usual place of residence to Delhi andback when Parliament is in Session and also provides the spouse of theMP unlimited train travel by First Class AC at any time during the year.Section 8AA[23] confers a right of travel facilities to the ex-MPs and theirASSOCIATES. It provides for free AC-II Tier pass for one person toaccompany an ex-MP in all train journeys and unlimited free travel bytrain along with spouse/companion from any place in India to any otherplace in India.

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18. The provisions are impugned on the following grounds:

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(i) the contrast in the language displayed in the various Articlesof the Constitution dealing with the salaries and otherallowances payable to the various Constitutional office holdersshould necessarily lead to the conclusion that the Constitutiondoes not permit the payment of pension and other benefits toMPs and ex-MPs; E

(ii) the framers of the Constitution specifically denied pensionarybenefits to the MPs and therefore giving of any POSTRETIREMENT BENEFITS to ex-MPs and theirASSOCIATES would amount to treating those who weredenied this constitutional right to pension at par with thoseFconstitutional offices whose pension was expressly protected.And to treat them on the same footing would result in aviolation of the right to equality;

(iii) the impugned provisions are irrational[24] and arbitrary becausethe grant of pension to all ex-MPs without taking intoconsideration their respective tenure and economic conditionsGgoes against public interest[25]; and 21 Substituted by Act 16 of 1999

22 Inserted by Act 37 of 2010 – effective from 1-10-2010

23 Substituted by Act 9 of 2004 – effective from 15-9-2006

24 Written Submissions of Petitioner in WP before the Allahabad HC

25 Id.

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A(iv) looked at from the point of view of the taxpayers and croresof poor and needy people of the country, the impugnedprovisions are an unfair and unjust exercise of the legislativeauthority of the Parliament.[26]

19. We shall now examine the core submission - whether theBsilence in Article 106 operates as a prohibition for payment of pension tothe former MPs?

20. The submissions of the Appellants proceed on the wrongassumption that certain provisions of the Constitution mandate thepayment of pension to persons who hold constitutional offices like theCJudges of this Court. We have already examined the language of therelevant provisions of the Constitution. We are of the opinion that, on atrue and proper construction of the text of those provisions, they do notmandate the payment of pension. They only protect the pension ifpayable under the relevant law applicable on the date of appointment ofa person to any one of those offices by declaring that such a conditionDcould not be altered to the detriment of a person subsequent to hisappointment.

However, the constitutional obligation to pay pension to personswho hold such offices may arise by implication having regard to theoverall scheme of the Constitution relevant to those offices. The needEto secure the independence of the holders of those offices by assuringthem that either the legislature or the executive will not be able to deprivethem of the financial resources necessary to keep them away fromimpecuniousness, irrespective of the fact that a decision taken by theincumbents of each of those offices in discharge of the officialFresponsibilities is acceptable or not either to the legislature or theexecutive. We must hasten to add that we must not be understood to bemaking any final declaration of law in this regard.

The purpose of this analysis is limited only to demonstrate that theAppellants starts on a wrong premise in assuming that the text of theGConstitution contains express provisions mandating the payment ofpension in connection with certain constitutional offices.

21. The fact that there are express references to the payment ofpension in the Constitution for certain Constitutional functionaries andnot for others, in our opinion does not lead to the conclusion that the 26 Ground D of the Writ PetitionH

Constitution by its silence prohibits the payment of pension to thoseconstitutional functionaries. Each Constitutional office holder functionsin accordance with the powers and duties entrusted to it either by theConstitution or the laws relevant to their powers and duties. The framersof the Constitution believed that certain offices required a higher degreeof protection, having regard to the greater degree of independenceexpected of the holders of their offices. The framers knew history andthe attempts of the men in power to subjugate the holders of such offices.Safeguards, therefore, were provided in respect of the various aspectsof the tenure and other conditions of service relevant for their offices.When it comes to MPs, however, such a higher degree of constitutionalprotection is not obviously required as the authority to make laws restsonly with them.

22. The terms and conditions subject to which a person is eitherappointed or elected to occupy the constitutional office is a matter ofpolicy choice. The appropriate legislature would be the constitutionallydesignated authority to determine those conditions. It is too well settledin constitutional law that the authority of legislature to make a policychoice is only circumscribed by the limitations imposed by the Constitution,either by an express provision or by a necessary implication arising outof the scheme of the Constitution. It is a well established principlecommencing from McCulloch’s case[27] and followed by a long line ofjudicial pronouncements[28] that whatever is not prohibited by theConstitution is permissible for the legislature.

23. Further if we were to accept the argument that thoseConstitutional functionaries who are entitled to pension by the text of theConstitution form a distinct class exclusively entitled to the payment ofpension the result would be that the CAG, the Chairman and DeputyChairman of the Parliament or State Legislature, and Ministers of theCentre and State would be disentitled to pension.

27 McCulloch v. Maryland, 4 Wheat. 316, 425-437, 4 L.Ed. 579 (1819): “But we think the sound construction of the Constitution must allow to the nationallegislature that discretion with respect to the means by which the powers it confers areto be carried into execution which will enable that body to perform the high dutiesassigned to it in the manner most beneficial to the people. Let the end be legitimate, letit be within the scope of the Constitution, and all means which are appropriate, whichare plainly adapted to that end, which are not prohibited, but consist with the letter andspirit of the Constitution, are Constitutional.”28 See State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, para 107; see also State ofKarnataka v. Union of India, (1977) 4 SCC 608, para 69

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A24. Another argument advanced by the Appellants is that pensionis payable to an employee of State after his superannuation. Since MPsare not employees of State, they are not entitled for pension nor theParliament is competent to provide payment of pension to the ex-MPs.In our opinion, there is a fallacy in the above submission, insofar as itassures that pension is only payable to former employees of State andBnobody else. Such a submission emanates from the fact that certainpayments made to the former employees of State are called pensionsand the misconception of the Appellants that the expression ‘pension’can only have one meaning. There are various other categories ofpayments made by State which are called ‘pensions’, such as, Old AgeCPension, Widow Pension, and Disability Pension etc.

25. The appellants have relied upon the decision in AlagaapuramR. Mohanraj & Others v. Tamil Nadu Legislative Assembly,[29] toargue that the activity of MPs is not an “occupation” contemplated byArticle 19(1)(g) of the Constitution of India and, therefore, no pensioncan be paid to ex-MPs or their ASSOCIATES.D

26. In our opinion, this argument is only to be rejected, because itonce again is premised on the belief that the expression ‘pension’ hasonly one connotation in law. The question before this Court inAlagaapuram R. Mohanraj was whether a Member of the LegislativeAssembly is carrying on any occupation within the meaning of ArticleE19(1)(g) of the Constitution of India. The fact that this Court held thatthis is not an occupation under Article 19(1)(g) need not necessarilymean that the Parliament is prohibited from making payment of suchallowances to MPs if it considers it appropriate having regard to variousrelevant factors.F27. The expression “allowances” of MPs occurring under Entry73 of List-I of the Seventh Schedule,[30] in our opinion, is wide enough tocover the payment of “pension” and the other benefits covered by theimpugned provisions to MPs or ex-MPs. Even otherwise the authorityof Parliament under Entry 97 of List-I[31] is wide enough to cover theimpugned legislation as held by Common Cause.G29 (2016) 6 SCC 82.

30 Entry 73 of List-I of the Constitution of India “Salaries and allowances of members of Parliament, the Chairman and Deputy Chairmanof the Council of States and the Speaker and Deputy Speaker of the House of thePeople.”

31 Entry 97 of List-I of the Constitution of India H“Any other matter not enumerated in List II or List III including any tax not mentionedin either of those Lists.”

28. In this context, we may recall the remarks made by two eminentmembers of the Constituent Assembly, namely Dr. B.R. Ambedkar andShri K.T. Shah to illustrate the fallacy of the Appellants’understanding.

29. Dr. Ambedkar, while debating the need to provide pensionarybenefit to the President of India, threw some light on the question: whetherthe Constituent Assembly sought to exclude post retirement benefits toMembers of Parliament:

“Therefore, in the form in which the amendment is moved, I donot think that it is a practical proposition for anyone to accept. Butthere is no doubt about the general view that he has expressed,that after a certain period of service in Parliament, Members,including the President, ought to be entitled to some sort of pension,and I think it is a laudable idea which has been given effect to inthe British Parliament, and I have no doubt that our futureParliament will bear this fact in mind.”[32]

[emphasis supplied]

30. In debating whether it was necessary to make an expressprovision for the payment of pension to Governors after they demit office,Shri Shah observed:

“The object of providing such security for the persons who haverisen to this high level is the same as that which now secures toevery workman in civilized nations an old-age pension, a pensionor super-annuation allowance, which would be calculated to sufficeto maintain him in the standard of life to which he was accustomedwhile at work. A pension is deferred pay, not paid to theworker while at work; and the analogy will hold here also.This also is a type of work-perhaps the highest of its kind-which should not go unprovided for altogether by the Statefor the rest of the period on earth of the Parties who have servedso eminently the State.”[33]

[emphasis supplied]

32 Constituent Assembly of India Debates, Vol. VII - Debate on Draft Article 48, 27thDecember 1948

33 Constituent Assembly of India Debates, Vol. VIII - Debate on Draft Article 135A,31[st] May, 1949

A

B

C

D

EF

G

H

A31. We are of the view that these questions are in the orbit of thewisdom of the Parliament in choosing/changing the legislative policywhether the various benefits created under the impugned provisions arerational having regard to the affluent financial status of some of theMPs or the poverty of the millions of the population etc. These are notjusticiable issues. In this context, we may refer to the principle laid downBby this Court in Dr. P. Nalla Thampy Terah v. Union of India &Others[34]:

“If the provisions of the law violate the Constitution, they have tobe struck down. We cannot, however, negate a law on the groundthat we do not approve of the policy which underlies it. Can theCCourt, for example, strike down Rule 90 on the ground that thelimit of rupees one lakh is too high in the Indian context? We mayhave our own preferences and perceptions but, they cannot beused for invalidating laws.”

32. An I.A. was filed in this appeal, which is required to be disposedDof. It was from Respondent No. 5, the Election Commission of India,which has sought to be deleted from the array of parties. It is stated thatneither is any relief sought from them nor is any directive prayed forfrom Respondent No.5 in this appeal, as this is a purely constitutionalchallenge.EI.A. is allowed. Respondent No. 5 stands deleted from the arrayof parties.

33. In view of the foregoing, the appeal stands dismissed, with noorder as to costs.

F

Divya Pandey

Appeal dismissed.

G

34 (1985) Supp SCC 189.

H