Constitutional validity of certain Amendments1 made to the Salaries, Allowances and Pensions of Members of Parliament Act, 1954 (hereinafter referred to as “the Act”). – LOK PRAHARI, THROUGH ITS GENERAL SECRETARY S.N. SHUKLA & ANOTHER – Versus – UNION OF INDIA THROUGH ITS SECRETARY & OTHERS

Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  3798 OF 2018

(Arising out of Special Leave Petition (Civil) No.9584 of 2017)

LOK PRAHARI, THROUGH ITS

GENERAL SECRETARY S.N. SHUKLA & ANOTHER … Appellants

Versus

UNION OF INDIA

THROUGH ITS SECRETARY & OTHERS     … Respondents

J U D G M E N T

Chelameswar, J.

1. Leave granted.

2. This appeal arises out of a Writ Petition that challenged the

Constitutional   validity   of   certain   Amendments1

  made   to   the

Salaries, Allowances and Pensions of Members of Parliament Act,

1954   (hereinafter   referred   to   as   “the   Act”).     The   provisions

challenged relate to the payment of pension and other facilities to

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

1

members of Parliament (hereinafter referred to as “MPs”) and exmembers

of Parliament (hereinafter referred to as “ex­MPs”), and

their   spouses/companions/dependents   (collectively   hereafter

referred   to   as   “ASSOCIATES”).     The   1st  Appellant   sought   the

following   prayers,  inter   alia,   in   the   Writ   Petition   before   the

Allahabad High Court:

1. “Declare that the provisions of various amending Acts to Act

30 of 1954, and particularly those of the Amending Act 9 of

2004, and Amending Act No. 40 of 2006 and Amending Act

37   of   2010,   providing   for   pension/family   pension   to   exMPs/dependents,

travel facilities to spouse and other nonmembers,

(in addition to the companion) and ex­MPs, as well

as continuation of facilities, regarding unutilized quotas of

telephone calls electricity and water units are ultra vires of

the Constitution and the original Act.

2. Issue a mandamus to the opposite parties 1 to 4 to stop

forthwith   payment   of   pension/family   pension   to   exMPs/dependents,

and provision of other facilities in 1 above.

3. Order recovery of illegal pension/family pension from the

recipients thereof.”

3. The   High   Court   dismissed   the   writ   petition   negating   all

contentions raised by the 1st  Appellant herein, holding that the

issue is no longer res integra in view of the Judgment in Common

Cause, A Registered Society v. Union of India2

(hereafter referred

to as “Common Cause”) wherein this Court held that Parliament is

2

(2002) 1 SCC 88

2

competent to legislate on pensions for ex­MPs and as a corollary it

has   the  power to  prescribe  any  condition  subject  to  which   the

pension may be paid. We are in total agreement with the conclusion

of the High Court on the question of legislative competence.

4. The question which remains to be answered is whether any of

the impugned amendments which create various rights in favour of

ex­MPs & their ASSOCIATES and certain other facilities to MPs are

violative of Article 14 of the Constitution of India, 1950 as being

discriminatory. It was the case of the Appellant that the Common

Cause case is silent in this respect. However, the High Court took

the view that the attack on Article 14 is foreclosed by  Common

Cause.

5. It is argued before us that  Common Cause  took note of the

Petitioner’s argument therein3

that the Act is violative of Article 14,

however, there was neither any discussion on the issue nor any

binding decision on the question.4

Therefore, it is submitted that

3

“5. Reference was made by the Petitioner in WP (C) No. 246 of 1993, appearing in person, to the provisions of

Article 14 and it was submitted that there was discrimination in favor of Members of Parliament by giving them

pension when, unlike Judges, they were not subject to the process of impeachment.”

4

“7. The issue before us is squarely one of competence, namely, the competence of Parliament to enact the said

Section 8-A. We need not go into Entry 73 of List I for we are in no doubt that such competence is conferred upon

Parliament by the residuary Entry 97 of List I, and there is no provision in Article 106 or elsewhere that bars the

3

the   High   Court   erred   in   concluding   that   the   challenge   to   the

impugned provisions is impermissible.   We propose to limit our

examination   in   the   present   case   to   the   question   of   the

constitutionality   of   various   Amendments   brought   after   the

Common Cause case on grounds other than legislative competence.

6. To answer the same, we may start with the analysis of the

various   provisions   of   the   Constitution   creating   various

constitutional offices because some of these provisions contemplate

the   possibility   of   the   payment   of   pension   in   respect   to   certain

Constitutional   offices,   while   no   express   reference   is   made   with

regard to various other offices created by the Constitution.

7. Article 59(3)5

specifies that the President shall be entitled to

such   ‘emoluments,   allowances   and   privileges   as   may   be   determined   by

Parliament   by   law’ while Article 158(3)  specifies the  same for  the

Governor. Neither of the Articles make any reference to the payment

of pension. However, Section 2 of the President’s Emoluments and

payment of pension to Members of Parliament.”

5Article 59(3). Conditions of President’s office.- The President shall be entitled without payment of rent to the use

of his official residence and shall be also entitled to such emoluments, allowances, and privileges as may be

determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and

privileges as are specified in the Second Schedule.

4

Pension Act, 1951 provides for the payment of pension and other

facilities to the retiring President.6

8. Article   75(6)7

and   Article   164(5)   respectively   speak   of   the

salaries and allowances of Ministers, which Parliament and the

State Legislature may determine by law.

9. Articles 978

and 1869

provide for the payment of ‘salaries and

allowances’   of   the   Chairman   and   Deputy   Chairman   and   the

Speaker   and   the   Deputy   Speaker   of   Parliament   and   State

Legislatures.   The   Vice­President’s   Pension   Act,   1997   has   an

6 Section 2. (1) Pension to retiring Presidents. There shall be paid to every person who ceases to hold office as

President, either by the expiration of his term of office or by resignation of his office, a pension of 6 one lakh twenty

thousand rupees per annum for 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 of rent, a telephone and

a motor- car, free of charge or to such car allowance as may be specified 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 thousand rupees 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” shall have the meaning assigned to it in the Salaries

and allowances of Ministers Act, 1952 ]

7Article 75. Other Provisions as to Ministers- (6) The salaries and allowances of Ministers 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.

8Article 97. Salaries and allowances of the Chairman and Deputy Chairman and the Speaker and Deputy

Speaker.- There shall be paid to the Chairman and the Deputy Chairman of the Council of States, and to the Speaker

and the Deputy Speaker of the House of the People, such salaries and allowances as may be respectively fixed by

Parliament by law and, until provision in that behalf is so made, such salaries and allowances as are specified in the

Second Schedule.

9Article 186. Salaries and Allowances of the Speaker and Deputy Speaker and the Chairman and Deputy

Chairman.- There shall be paid to the Speaker and the Deputy Speaker of the Legislative Assembly, and to the

Chairman and the Deputy Chairman of the Legislative Council, such salaries and allowances as may be respectively

fixed by the Legislature of the State by law and, until provision in that behalf is so made, such salaries and

allowances as are specified in the Second Schedule.

5

identical provision with respect to the payment of pension and post

retirement facilities as are provided to the President.10

10. Article 106 of the Constitution stipulates that MPs shall be

entitled to receive ‘salaries and allowances’ to be determined by

Parliament through legislation.11  There is no express reference to

the payment of pension.

11. On the other hand, the provisos to Article 125(2)12 and Article

221(2)13 respectively make an express reference to the payment of

pension to judges of the Supreme Court and the High Courts.

10 Section 2. Pension to retiring Vice-Presidents.—(1) There shall be paid to every person who ceases to hold

office as Vice-President, either by the expiration of his term of office or by resignation of his office, a Pension 1 [at

the rate of fifty per cent of the salary 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 period he holds the office

of the Prime Minister, a Minister or any other office or becomes a Member of Parliament and is in receipt of salary

and allowances which are defrayed out of 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 of

his term of office or by resignation of his office, shall be paid a family pension at the rate of fifty per cent

of pension as is admissible to a retiring Vice-President, for the remainder of her life.

11Article 106.Salaries and Allowances of Members.-Members of either House of Parliament shall be entitled to

receive such salaries and allowances as may from time to time be determined by Parliament by law and, until

provision in that respect is so made, allowances at such rates and upon such conditions as were immediately before

the commencement of this Constitution applicable in the case of members of the Constituent Assembly of the

Dominion of India

12Article 125. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such privileges and allowances and to

such rights in respect of leave of absence and pension as may from time to time be determined by or under law made

by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second

Schedule:

Provided that neither the privileges or the allowances of a Judge nor his rights in respect of leave of

absence or pension shall be varied to his disadvantage after his appointment.

13Article 221. Salaries, etc., of Judges.- (2) Every Judge shall be entitled to such allowances and to such rights in

respect of leave of absence and pension as may from time 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:

Provided that neither the allowances of a Judge nor his rights in respect of leave of absence or pension shall

be varied to his disadvantage after his appointment.

6

12. Article 148(3)14  provides that salary and other conditions of

service of the Comptroller and Auditor­General shall be as may be

determined by Parliament by law. The proviso thereto contains a

reference   to   the   payment   of   pension.   The   Comptroller   and

Auditor­General’s (Duties, Powers and Conditions of Service) Act,

1971 contains various provisions for the payment of pension on

his/her demission of office.15

13. Article   32216  declares   that   the   expenses   of   Public   Service

Commissions shall be charged on the Consolidated Fund of India

and   such   expenses   include   “salaries,   allowances   and   pensions”

payable to or in respect of the members or staff of the Commission.

14Article 148. Comptroller and Auditor-General of India.- (3). The salary and other conditions of service of the

Comptroller and Auditor-General shall be such as may be determined by Parliament by law and, until they are so

determined, shall be as specified in the Second Schedule:

Provided that neither the salary of a Comptroller and Auditor-General nor his rights in respect of leave of

absence, pension or age of retirement shall be varied to his disadvantage after his appointment.

15Section 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 of two thousand rupees per annum for each completed year of his

service as the Comptroller 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 the amount of pension including the commuted portion, if

any, of his pension, and the pension equivalent of the retirement gratuity if any which may have been admissible to

him under the rules for the time being applicable to the Service to which he belonged immediately before he

assumed office as the Comptroller and Auditor-General, shall not exceed fifteen thousand rupees per annum or the

higher pension referred to in proviso to sub-section (2) or sub-section (3), as the case may be.

16Article 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 the Commission, shall be charged on the Consolidated

Fund of India or, as the case may be, the Consolidated Fund of the State.

7

14. Article 324(5)17 stipulates that “conditions of service and tenure of

office of the Election Commissioners shall be such as the President may by rule

determine.” Though the Constitution is silent in regard to payment of

pension to the Election Commissioners, Section 6 in the Election

Commission (Conditions of Service of Election Commissioners and

Transaction of Business) Act, 1991 makes provision for payment of

pension to Election Commissioners which is equal to the pension

payable to a Supreme Court Judge.18

15. From the Constitutional scheme it can be seen that no express

mandate exists for the payment of pension with respect to any one

of   the   Constitutional   offices.   However,   Articles   dealing   with   the

Judges   of   the   Supreme   Court   and   the   High   Courts   and   the

Comptroller and Auditor­General stipulate that pensions payable

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

(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office

of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule

determine:

Provided that the Chief Election Commissioner shall not be removed from his office except in like manner

and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election

Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed

from office except on the recommendation of the Chief Election Commissioner.

18Section 6. Pension payable to Election Commissioners.-

(2) Where the Chief Election Commissioner [or an Election Commissioner] demits office [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 in accordance 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; and

(b) such pension (including commutation of pension), family pension and gratuity as are admissible to a

Judge of the Supreme Court under the said Act and the Rules made thereunder, as amended from time to time…”

8

may not be varied during their tenure. The implication being that if

the law dealing with the service conditions of any of the incumbents

of any one of the said offices at the time of their appointment

provides for the payment of pension, such a provision 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

their ASSOCIATES; and (ii) provisions which confer the benefit of

pension and the right of free travel etc. to the ex­MPs and their

ASSOCIATES.

THE PROVISIONS UNDER CHALLENGE:

17.  Section 8A19 of the Act grants pensions to (i) ex­MPs, and (ii)

upon their death, the pension is given to their respective spouses.

Section 8AC20 provides family pension to the spouse of such MPs on

the death of the MP.  It is pertinent to mention here that Section 8A

19 Section 8A. (1) With effect from the 18th day of May, 2009, there shall be paid a pension of twenty thousand

rupees per mensem to every person who has served for any period as a Member of the Provisional Parliament or

either House of Parliament

Provided that where a person has served as a member of the Provisional Parliament or either House of

Parliament for a period exceeding five years, there shall be paid to him an additional pension of thousand five

hundred rupees per mensem for every year served in excess of five years

Explanation. – For the purpose of this sub-section “Provisional Parliament” shall include the body which

functioned as the Constituent Assembly of the Dominion of Indian immediately before the commencement of the

Constitution

20 Inserted by Act 40 of 2006 – effective from 15-9-2006

9

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)21  of the Act 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)22 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   8AA23  confers   a   right   of   travel

facilities to the ex­MPs and their ASSOCIATES. It provides for free

AC­II Tier pass for one person to accompany an ex­MP 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.

18. The provisions are impugned on the following grounds:

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

10

(i) the contrast in the language displayed in the various Articles

of   the   Constitution   dealing   with   the   salaries   and   other

allowances   payable   to   the   various   Constitutional   office

holders should necessarily lead to the conclusion that the

Constitution does not permit the payment of pension and

other benefits to MPs and ex­MPs;

(ii) the   framers   of   the   Constitution   specifically   denied

pensionary benefits to the MPs and therefore giving of any

POST   RETIREMENT   BENEFITS   to   ex­MPs   and   their

ASSOCIATES   would   amount   to   treating   those   who   were

denied this constitutional right to pension at par with those

constitutional offices whose pension was expressly protected.

And to treat them on the same footing would result in a

violation of the right to equality;

(iii) the   impugned   provisions   are   irrational24  and   arbitrary

because the grant of pension to all ex­MPs without taking

into   consideration   their   respective   tenure   and   economic

conditions goes against public interest25; and

(iv) looked at from the point of view of the taxpayers and crores

of   poor   and   needy   people   of   the   country,   the   impugned

provisions are an unfair and unjust exercise of the legislative

authority of the Parliament.26

19. We  shall   now  examine   the  core  submission  ­  whether  the

silence  in   Article  106  operates  as  a   prohibition   for  payment   of

pension to the former MPs?

20. 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.  We have already examined the language

24 Written Submissions of Petitioner in WP before the Allahabad HC

25 Id.

26 Ground D of the Writ Petition

11

of the relevant provisions of the Constitution. We are of the opinion

that,   on   a   true   and   proper   construction   of   the   text   of   those

provisions, they 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.   We must hasten to add that we

must not be understood to be making any final declaration of law in

this regard.

12

The purpose of this analysis is limited only to demonstrate

that the Appellants starts on a wrong premise in assuming that the

text of the Constitution contains express provisions mandating the

payment   of   pension   in   connection   with   certain   constitutional

offices.

21. The fact that there are express references to the payment of

pension in the Constitution for certain Constitutional functionaries

and not for others, in our opinion 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.

13

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.

22.  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.   It is a well established principle commencing

from  McCulloch’s  case27  and followed by a long line of judicial

pronouncements28  that   whatever   is   not   prohibited   by   the

Constitution is permissible for the legislature.

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 national legislature that

discretion with respect to the means by which the powers it confers are to be carried into execution which will

enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the

end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are

plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are

Constitutional.”

28 See State of Kerala v. N.M. Thomas, (1976) 2 SCC 310, para 107; see also State of Karnataka v. Union of India,

(1977) 4 SCC 608, para 69

14

23.   Further   if   we   were   to   accept   the   argument   that   those

Constitutional functionaries who are entitled to pension by the text

of the Constitution form a distinct class exclusively entitled to the

payment   of   pension   the   result   would   be   that   the   CAG,   the

Chairman   and   Deputy   Chairman   of   the   Parliament   or   State

Legislature,   and   Ministers   of   the   Centre   and   State   would   be

disentitled to pension.

24. Another argument advanced by the Appellants is that pension

is payable to an employee of State after his superannuation.  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   ex­MPs.   In   our   opinion,   there   is   a   fallacy   in   the   above

submission, insofar as it 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

15

State which are called ‘pensions’, such as, Old Age Pension, Widow

Pension, and Disability Pension etc.

25. The appellants have relied upon the decision in Alagaapuram

R. Mohanraj & Others v. Tamil Nadu Legislative Assembly,29 to

argue that the activity of MPs is not an “occupation” contemplated

by Article 19(1)(g) of the Constitution of India and, therefore, no

pension can be paid to ex­MPs or their ASSOCIATES.

26. In our opinion, this argument is only to be rejected, because it

once again is premised on the belief that the expression ‘pension’

has only one connotation in law. The question before this Court in

Alagaapuram   R.   Mohanraj  was   whether   a   Member   of   the

Legislative   Assembly   is   carrying   on   any   occupation   within   the

meaning of Article 19(1)(g) of the Constitution of India.   The fact

that this Court held that this is not an occupation under Article

19(1)(g) need not necessarily mean that the Parliament is prohibited

from making payment of such allowances to MPs if it considers it

appropriate having regard to various relevant factors.

29 (2016) 6 SCC 82.

16

27. The expression “allowances” of MPs occurring under Entry 73

of List­I of the Seventh Schedule,30 in our opinion, is wide enough to

cover the payment of “pension” and the other benefits covered by

the impugned provisions to MPs or ex­MPs.   Even otherwise the

authority of Parliament under Entry 97 of List­I31 is wide enough to

cover the impugned legislation as held by Common Cause.

28.  In   this   context,   we   may   recall   the   remarks   made   by   two

eminent members of the Constituent Assembly, namely Dr. B.R.

Ambedkar   and   Shri   K.T.   Shah   to   illustrate   the   fallacy   of   the

Appellants’ understanding.

29. Dr. Ambedkar, while debating the need to provide pensionary

benefit to the President of India, threw some light on the question:

whether   the   Constituent   Assembly   sought   to   exclude   post

retirement benefits to Members of Parliament:

“Therefore, in the form in which the amendment is moved, I do not

think that it is a practical proposition for anyone to accept. But

there is no doubt about the general view that he has expressed,

that  after a certain period of service in Parliament, Members,

30 Entry 73 of List-I of the Constitution of India

“Salaries and allowances of members of Parliament, the Chairman and Deputy Chairman of the

Council of States and the Speaker and Deputy Speaker of the House of the People.”

31 Entry 97 of List-I of the Constitution of India

“Any other matter not enumerated in List II or List III including any tax not mentioned in either of

those Lists.”

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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 in the British Parliament, and I have no doubt that our

future Parliament will bear this fact in mind.”32

[emphasis supplied]

30. In  debating  whether  it was  necessary  to  make an express

provision for the payment of pension to Governors after they demit

office, Shri Shah observed:

“The object of providing such security for the persons who have

risen to this high level is the same as that which now secures to

every workman in civilized nations an old­age pension, a pension

or   super­annuation   allowance,   which   would   be   calculated   to

suffice to maintain him in the standard of life to which he was

accustomed while at work. A pension is deferred pay, not paid to

the worker while at work; and the analogy will hold here also.

This   also   is   a   type  of  work­perhaps   the  highest  of   its  kindwhich

should not go unprovided for altogether by the State for

the rest of the period on earth of the Parties who have served so

eminently the State.”33

 

[emphasis supplied]

31. We are of the view that 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. In this context, we may refer to

32 Constituent Assembly of India Debates, Vol. VII – Debate on Draft Article 48, 27th December 1948

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

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the principle laid down by this Court in  Dr.   P.   Nalla   Thampy

Terah v. Union of India & Others34:

“If the provisions of the law violate the Constitution, they have to

be struck down. We cannot, however, negate a law on the ground

that we do not approve of the policy which underlies it. Can the

Court, for example, strike down Rule 90 on the ground that the

limit of rupees one lakh is too high in the Indian context? We may

have our own preferences and perceptions but, they cannot be

used for invalidating laws.”

32. An   I.A.   was   filed   in   this   appeal,   which   is   required   to   be

disposed   of.   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 that neither is any relief sought from them

nor is any directive prayed for from Respondent No.5 in this appeal,

as this is a purely constitutional challenge.

I.A. is allowed.   Respondent No. 5 stands deleted from the

array of parties.

34 (1985) Supp SCC 189.

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33. In view of the foregoing, the appeal stands dismissed, with no

order as to costs.

………………………………….J.

(J. CHELAMESWAR)

…………………………………..J.

(SANJAY KISHAN KAUL)

New Delhi;

April 16, 2018.

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