Salaries, Allowances and Pensions of Members of Parliament Act, 1954 – ss.8A, 8AC, 6B(1), 6B(2) and 8AA – Amendments in the 1954 Act conferring the benefit of pension and other facilities to ex-members of Parliament and their Associates (i.e. spouses/companions/dependents) and right of free travel etc. to members of Parliament and their Associates – Writ petition filed by appellant before High Court, challenging the constitutional validity of the amendments, dismissed – On appeal, held: The fact that there are express references in the Constitution for payment of pension to certain constitutional functionaries and not to others, does not lead to the conclusion that the Constitution by its silence prohibits the payment of pension to those constitutional functionaries – Framers of the Constitution believed that certain offices required a higher degree of protection, having regard to the greater degree of independence expected of the holders of their offices – Terms and conditions subject to which a person is either appointed or elected to occupy the constitutional office is a matter of policy choice – Appropriate legislature would be the constitutionally designated authority to determine those conditions – Expression “allowances” of MPs occurring u/Entry 73 of List-I of the VIIth Schedule, is wide enough to cover the payment of “pension” and the other benefits covered by the impugned provisions to MPs or ex-MPs – Even otherwise the authority of Parliament u/Entry 97 of List-I is wide enough 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 and Pension Act, 1951– s.2– Vice President’s Pension Act, 1997– The OF INDIA THR. ITS SECRETARY
Comptroller and Auditor-General’s (Duties, Powers and Conditions of Service) Act, 1971– Election Commission (Conditions of Service of Election Commissioners and Transaction of Business) Act, 1991.
Dismissing the appeal, the Court
HELD: 1.1 Section 8A of the Salaries, Allowances and Pensions of Members of Parliament Act, 1954 grants pensions to (i) ex-MPs, and (ii) upon their death, the pension is given to their respective spouses. Section 8AC provides family pension to the spouse of such MPs on the death of the MP. Section 8A as originally enacted provided that an MP, to be eligible for Pension must have completed four years of tenure in Parliament. But this was done away with retrospective effect by the Amendment Act No.9 of 2004. Section 6B(1) confers a right to all the MPs for unlimited travel by train along with spouse/companion from any place in India to any other place in India. Section 6B(2) provides up to 8 air journeys in a year from the MP’s usual place of residence to Delhi and back when Parliament is in Session and also provides the spouse of the MP unlimited train travel by First Class AC at any time during the year. Section 8AA confers a right of travel facilities to the ex-MPs and their ASSOCIATES (i.e. spouses/companions/dependents). It provides for free AC-II Tier pass for one person to accompany an ex-MP in all train journeys and unlimited free travel by train along with spouse/companion from 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 wrong assumption that certain provisions of the Constitution mandate the payment of pension to persons who hold constitutional offices like the Judges of this Court. A true and proper construction of the text of the relevant provisions, do not mandate the payment of pension. They only protect the pension if payable under the relevant law applicable on the date of appointment of a person to any one of those offices by declaring that such a condition could not be altered to the detriment of a person subsequent to his appointment. However, the constitutional obligation to pay pension to persons who hold such offices may arise by implication having regard to the overall scheme of the Constitution relevant to those offices. The need to secure the independence of the holders of those offices by assuring them that either the legislature or the executive will not be able to deprive them of the financial resources necessary to keep them away from impecuniousness, irrespective of the fact that a decision taken by the incumbents of each of those offices in discharge of the official responsibilities is acceptable or not either to the legislature or the executive. [Para 20] [1062-C-F]
1.3 The fact that there are express references to the payment of pension in the Constitution for certain constitutional functionaries and not for others, does not lead to the conclusion that the Constitution by its silence prohibits the payment of pension to those constitutional functionaries. Each constitutional office holder functions in accordance with the powers and duties entrusted to it either by the Constitution or the laws relevant to their powers and duties. The framers of the Constitution believed that certain offices required a higher degree of protection, having regard to the greater degree of independence expected of the holders of their offices. The framers knew history and the attempts of the men in power to subjugate the holders of such offices. Safeguards, therefore, were provided in respect of the various aspects of the tenure and other conditions of service relevant for their offices. When it comes to MPs, however, such a higher degree of constitutional protection is not obviously required 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 is either appointed or elected to occupy the constitutional office is a matter of policy choice. The appropriate legislature would be the constitutionally designated authority to determine those conditions. It is too well settled in constitutional law that the authority of legislature to make a policy choice is only circumscribed by the limitations imposed by the Constitution, either by an express provision or by a necessary implication arising out of the scheme of the Constitution. Whatever is not prohibited by the Constitution is permissible for the legislature. [Para 22] [1063-D-E]
1.5 There is a fallacy in the argument advanced by the Appellants that pension is payable to an employee of State after OF INDIA THR. ITS SECRETARY
his superannuation and since MPs are not employees of State, they are not entitled for pension nor the Parliament is competent to provide payment of pension to the ex-MPs. The above submission assures that pension is only payable to former employees of State and nobody else. Such a submission emanates from the fact that certain payments made to the former employees of State are called pensions and the misconception of the Appellants that the expression ‘pension’ can only have one meaning. There are various other categories of payments made by 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 under Entry 73 of List-I of the Seventh Schedule, is wide enough to cover the payment of “pension” and the other benefits covered by the impugned provisions to MPs or ex-MPs. Even otherwise the authority of Parliament Entry 97 of List-I is wide enough to cover the impugned legislation. [Para 27] [1064-F-G]
1.7 These questions are in the orbit of the wisdom of the Parliament in choosing/changing the legislative policy whether the various benefits created under the impugned provisions are rational having regard to the affluent financial status of some of the MPs or the poverty of the millions of the population etc. These are 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 ; State of Kerala v. N.M. Thomas, (1976) 2 SCC 310 :
[1976] 1 SCR 906 ; State of Karnataka v. Union of India (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) 6 SCC 82 : [2016] 6 SCR 611 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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