Ghulam Mohamad Magray and another vs Ghulam Qadir Bedar and others

Jaswant Singh, J.—The following two questions arising for decision before my learned brother Wasi-ud-Din, J., in the above noted election

petitions which had been assigned to him for trial and adjudication by the Hon'ble Chief Justice u/s 88-A of the Jammu & Kashmir Representation

of the People Act, 1957 (Act No. IV of 1957) have been referred to this Bench for determination:

(1) Whether Section 24-AA of the Jammu & Kashmir Representation of the People Act, 1957, is ultra vires and unconstitutional.

(2) Whether it is within the competence and jurisdiction of an Election Judge nominated under the Representation of the People Act to go into the

question of constitutionality of a particular section of the Act.

The material facts leading to this reference are: Vide S. O. 227 dated January 12. 1971'. the Central Government in exercise of the power

conferred on it by sub-section (1) of Section 3 of the Unlawful Activities (Prevention) Act, 1967, (Act No. 37) of 1967. which was applied to the

State with effect from September 1, 1969. declared the All Jammu and Kashmir Plebiscite Front (hereinafter called the 'Front') to be an unlawful

association. On the same date the said Government acting under the proviso to sub-section (3) of Section 3 of the Act issued another notification

directing that the said declaration in respect of the Front would take immediate effect from the date of its publication in the official gazette i. e. from

January 12, 1971. Vide Notification No. S. O. 572 dated January 28. 1971, issued in exercise of the power conferred on it under sub-section (1)

of Section 5 of the Unlawful Activities (Prevention) Act, the Central Government constituted a Tribunal consisting of Hon'ble Shri Syed Murtaza

Fazl Ali, Chief Justice of the State High Court, for the purpose of determining as to whether or not there was sufficient cause for making the

declaration that the Front was an unlawful association and on February 8, 1971. the same Government pursuant to sub-section (1) of Section 4 of

the Act. made a reference to the Tribunal for the aforesaid purpose. After holding an enquiry in the manner specified in sub-section (3) of Section

4 of the Act, the Tribunal vide its decision dated June 15, 1971'. confirmed the aforesaid notification S. O. 227 dated January 12, 1971, declaring

the Front to be an unlawful association.

In the General elections held in March 1972, the above noted petitioners in election petitions Nos. 6. 9, 16 and 18 of 1972, who were enrolled

as voters in their respective constituencies offered themselves as candidates for election to the Legislative Assembly of the Jammu and Kashmir

State. They could not, however, contest the elections as the nomination papers filed by them were rejected on the ground that they were members

of the Front which had been banned by the Central Government vide S. O. 227 dated January 12, 1971, and as such were disqualified from

contesting the election in terms of Section 24-AA of the Jammu and Kashmir Representation of the People Act. 1957. Election Petition No. 15 of

1972, has been filed by two electors of Pattan Assembly constituency.

Averring that they were not members of the Front, that their nomination papers were improperly rejected and that Section 24-AA of the Jammu

and Kashmir Representation of the People Act, inserted by Act No. 8 of 1971, which contained a disqualification on the ground of membership of

an association which is banned under the Unlawful Activities (Prevention) Act, 1967, was violative of the Constitution as it deprived a citizen of the

right guaranteed to him by the Constitution to stand for election, the petitioners in the above mentioned Petitions Nos. 6. 9, 16 and 18 of 1972,

filed election petitions praying that the election of the returned candidates (whom they had impleaded as respondents) be declared void as the

nomination papers filed by them were improperly and illegally rejected by the Returning Officer. Petitioners in Election Petition No. 15 of 1972

prayed that as the nomination paper of Shri Abdul Rashid Shaheen was illegally and improperly rejected on the ground similar to that of the

petitioners in Election Petitions Nos. 6, 9. 16 and 18 of 1972, the election of Shri Ghulam Qadir Bedar. the returned candidate from Pattan

Assembly constituency, be declared void.

The petitions were contested inter alia on the ground that the nomination papers in question were rightly rejected as the persons filing them were

members of the ""Front"", which had been declared unlawful under the Unlawful Activities (Prevention) Act. 1967. and were as such disqualified for

being chosen as members of the Legislative Assembly u/s 24-AA of the Representation of the People Act. which was perfectly valid and was

validly enacted by the State Legislature u/s 69 (e) of the Constitution of Jammu and Kashmir for ensuring election of proper persons to the House.

Mr. P. L. Handoo, and Mr. Muzaffer Beg, who followed Mr. Handoo, have contended that Section 24-AA of the Representation of the

People Act, 1957 as amended by Act No. 8 of 1971, in so far as, it lays down no guidelines to judge the membership of an association which has

been declared as unlawful is violative of Article 1'4 of the Constitution of India. The learned counsel have further contended that the impugned

provision is also hit by Art. 14 of the Constitution as it is not based on a valid classification. They have further submitted that Section 24-AA is

more harsh and drastic than Section 24 of the Act, that it takes no notice of the possibility of the change of ideology and deprives a person of his

right to stand for election although he may have discontinued to be a member of the banned association during the period of the operation of the

declaration under Sec. 3 of the Unlawful Activities (Prevention) Act, 1967. Mr. P. L. Handoo has further urged that a Judge of the High Court

hearing an election petition u/s 88-A of the Representation of the People Act. is not a creature of the Act and is, therefore, not debarred from

going into the constitutionality of the Act. The learned counsel have in support of their contentions relied on some decided cases.

Mr. Nariman has, on the other hand, urged that the right to stand for election to the Legislative Assembly is not a civil or a fundamental right but

is a political right and that the Legislature can under Sections 51 and 69 of the Constitution of Jammu and Kashmir prescribe such qualifications

and disqualifications as it considers fit within the frame work of the Constitution. He has also tried to impress upon us that the petitioners have not

challenged the vires of Unlawful Activities (Prevention) Act, 1967, nor have they challenged Notification S. O. 227 dated January 12, 1971,

declaring the Front to he an unlawful association and that the Hon'ble Chief Justice acting as the Tribunal constituted under sub-section (11 of

Section 5 of the Act, confirmed the declaration by his order dated June 13, 1971. He has further urged that Section 24-AA of the Representation

of the People Act, being based upon a valid classification and having been added to bring the Act in line with Section 3 of the State Constitution

and the Constitution of Jammu and Kashmir (Sixth Amendment) Act, 1965, and to make effective the constitutional mandate regarding the making

and taking of the oath by a person who is elected as a member of the Legislative Assembly, is perfectly valid and constitutional. He has further

contended that as the Front questions the territorial integrity of India and preaches secessionist doctrines which so against the grain of the oath

prescribed by the Constitution, the impugned provision which is intended to prevent persons who do not believe that the accession of the State to

India is permanent from becoming the members of the Legislative Assembly and thus wrecking the Constitution from inside and visits all the

members of the unlawful association seeking election to the Legislature with the same consequences, cannot but be held to be valid, that the

classification of the persons belonging to an unlawful association who seek election to the Legislature has a reasonable relation to the object sought

to be achieved by the impugned provision, that the avowed object of the Front is unlawful and the fact that a person has been its member and has

been advancing its objects gives rise to the possibility that he may thwart the object of the constitutional provisions viz. the maintenance of the

integrity of India, and that the vires of a provision cannot be tested on the basis of hypothetical considerations. He has further urged that once the

classification is found to be reasonable and to bear a just relation to the object sought to be achieved, the manner and the method of classification

cannot be interfered with by the Court. He has further urged that Sections 24 and 24-AA of the Representation of the People Act. are not similar

in scope and that they deal with entirely different situations. He has lastly urged that the argument advanced on behalf of the petitioners that Sec.

24-AA does not provide any guidelines and thus confers uncanalised powers on the Returning Officer, suffers from obvious infirmities.

We have given our anxious and careful consideration to the questions referred to us for determination.

Let us first consider the challenge based upon Article 14 of the Constitution of India. It is now well settled that a Legislature which has to deal

with diverse problems arising out of an infinite variety of human relations must, of necessity have the power of making special laws, to attain

particular objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to

operate. Mere differentiation or inequality of treatment does not ""per se"" amount to discrimination within the inhibition of the equal protection

clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that it does not

rest on any rational basis having regard to the object which the Legislature has in view. (See Jagat Ram Aryan v. State of Jammu and Kashmir,

AIR 1957 J & K 40 (FB) at P. 43). It is equally well settled that while Article 14 of the Constitution forbids class legislation, it does not forbid

reasonable classification for the purpose of legislation. Two conditions are, however, laid down for passing the test of permissible classification

namely (1) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from

others left out of the group and (2) that the differentia must have a reasonable relation to the object sought to be achieved by the statute in

question. Reference in this connection may be made to the decision of the Supreme Court in Ram Krishna Dalmia Vs. Shri Justice S.R. Tendolkar

and Others, . where their Lordships reviewed all the case law bearing on Article 14 of the Constitution.

Again in Harakchand Ratanchand Banthia and Others Vs. Union of India (UOI) and Others, , it has been reiterated by their Lordships that

when a law is challenged as being violative of Article 14 of the Constitution, it is necessary in the first place to ascertain the policy underlying the

statute and the object intended to be achieved by it. Having ascertained the policy and the object of the Act, the Court has to apply a dual test for

determining its validity (1) whether the classification is rational and based upon intelligible differentia which distinguishes persons or things that are

grouped together from others that are left out of the group and (2) whether the basis of differentia has a rational nexus or relation with its avowed

policy or object.

Let us, therefore, first ascertain the policy underlying the impugned Section 24-AA of the Representation of the People Act, 1957, and the

object intended to be achieved by it. In order to ascertain the policy and the object underlying the provision, it will be useful to trace the

constitutional development of the State and the Legislative history of the impugned provision.

It would be recalled that at the time of the passing of the Indian Independence Act on July 18. 1947, Jammu and Kashmir was an independent

State governed by his Highness Sri Maharaja Hari Singh. On the lapse of paramountcy and coming into existence of the dominions of India and

Pakistan, as a result of the Indian Independence Act, an Indian State could accede to the dominion of India by means of an Instrument of

Accession executed by its Ruler pursuant to the federal scheme embodied in the Government of India Act, 1935. as amended by India

(Provisional Constitution) Order. 1947, which provided for constitutional relationship between an Indian State and the Government of India on

federal basis. A couple of months after the passing of the India (Provisional Constitution) Order, 1947. the State was invaded by hordes of tribal

raiders sponsored and supported by the enemies of the State on October 22, 1947, resulting in a State of emergency which impelled the Ruler of

the State to accede to the dominion of India by means of an instrument of Accession dated October 26, 1947, which was accepted by Lord

Mountbatten, the then Governor General of India on October 27, 1947. Consequently the State became legally and constitutionally an integral part

of India with effect from October 27, 1947.

On March 5. 1948, the Maharaja issued a proclamation setting up a responsible government of council of Ministers headed by a Prime Minister in

order to take steps to constitute a National Assembly based upon adult franchise to frame a separate Constitution for the State. On November 25,

1949, Yuvraj Qaran Singh (as he then was) issued a proclamation regarding the applicability to the State of certain provisions of the Constitution

of India to be adopted by the Constituent Assembly of India. Pursuant to this proclamation the first Constitution (Application to Jammu and

Kashmir), Order. 1950. (C. O. 10 dated Jan. 26, 1950) was issued by the President of India under clause (1) of Art. 370 of the Constitution of

India. On the coming into force of the Constitution of India, Articles 1 and 370 thereof became proprio vigore applicable to the State. Thereafter

pursuant to the proclamation dated April 20. 1951. issued by Yuvraj Karan Singh, Constituent Assembly of Jammu and Kashmir was convened

on November 5, 1951, for the purpose of framing the constitution of the State. In August 1953 momentous changes took place including the

appointment of a new Prime Minister of the State. In August 1955, the All Jammu and Kashmir Plebiscite Front was formed 'with the object of

bringing about a free and impartial plebiscite in order to decide the future of the State.

On February 15. 1954, the Constituent Assembly of the State unanimously passed a resolution adopting the report of the Drafting Committee and

the annexures thereto thereby giving its concurrence to the application of certain provisions of the Constitution of India to the State in the manner

indicated in the said annexure. Pursuant to the recommendations contained in his resolution of the Constituent Assembly which was received by the

Government of India on May 12, 1954, the President of India made on May 14. 1954, the Constitution (Application to Jammu and Kashmir)

Order, 1954. (C. O. 48 S. R. O. 1610) in supersession of the Constitution (Application to Jammu and Kashmir) Order. 1950. The Constitution of

Jammu and Kashmir as framed by the State Constituent Assembly came into force with effect from January 26, 1957. Section 3 of this

Constitution provides that the State is and shall be an integral part of the Union of India.

In 1963, the Committee on National Integration and Regionalism appointed by the National Integration Council recommended that Article 19 of

the Constitution of India be so amended that adequate powers become available for the preservation and maintenance of the integrity and

sovereignty of the Union. The Committee further expressed the view that every candidate for membership of the State Legislature or Parliament

and every aspirant to and incumbent of Public Office should pledge himself to uphold the Constitution and to preserve the integrity and sovereignty

of the Union and that forms of oath in the Third Schedule to the said Constitution should be suitably amended for the purpose. To give effect to

these recommendations which were of salutary nature, the Committee further recommended that clauses (2). (3) and (4) of Article 19 should be

amended to enable the State to make any law imposing reasonable restrictions on the exercise of the rights conferred by clauses (a), (b) and (c) of

clause (1) of that Article in the interests of sovereignty and integrity of India. In addition to these amendments it was proposed that Articles 84 and

173 as also the form of oath in the Third Schedule to the Constitution be amended so as to provide that every candidate for membership of

Parliament or State Legislature, Union and State Ministers, Members of the Parliament and State Legislature. Judges of the Supreme Court and

the High Courts and the Comptroller and Auditor General of India, should take an oath to uphold the sovereignty and integrity of India. These

recommendations and proposals were given effect to on October 5. 19G3. by means of the Constitution (Sixteenth Amendment) Act, 1963.

Corresponding amendments in the Constitution of Jammu and Kashmir were also made by means of the Jammu and Kashmir Constitution (Sixth

Amendment) Act. 1965.

In 1967 the Unlawful Activities (Prevention) Act. 1967, Act No. 37 of 1967, was enacted by the Parliament with a view to make powers

available for dealing with activities directed against the integrity and sovereignty of India. This Act which was amended by Act No. 24 of 1969,

came into force in the State with effect from Sep. 1, 1969. by virtue of notification dated August 30. 1969. The impugned S. 24-AA was inserted

in the Representation of the People Act by Act No. 8 of 1971. The statement of objects and reasons accompanying the bill which culminated in

the enactment inter alia of the impugned provision which was published in the extraordinary issue of Jammu and Kashmir Government Gazette

dated March 13, 1971, gives a clear idea as to why it was considered necessary and I am reproducing the same below for facility of reference :

Consequent upon the enforcement and operation of the Unlawful Activities (Prevention) Act, 1967. in the State, it has become necessary to make

certain amendments in the Jammu and Kashmir Representation of the People Act, 1957, with a view to preventing those indulging in unlawful

activities and preaching secession from using the provisions of the Constitution to subvert the Constitution itself.

XX XX XX

Sd/- G. L. Dogra.

Law Minister.

It is against this background that the vires of the impugned Section has to be judged.

From the foregoing, it is crystal clear that the impugned provision was inserted to bring the Representation of the People Act, in line with

Article 1 of the Constitution of India. Sections 3, 51(a), 64 and 69 (e) of the Constitution! of Jammu and Kashmir and the Jammu, and Kashmir

Constitution (Sixth Amendment) Act. 1965. To put it differently! the policy underlying the impugned piece of legislation and the object sought to be

achieved by it were very noble and lofty viz., to preserve and to maintain the territorial integrity of India and to make effective the oath to be made

and subscribed by a person who was to become a member of the Legislative Assembly and to guard against the possibility of a clash between his

interest and duty which would be highly prejudicial to the national interest and destructive of the letter and spirit of the Constitution.

Having ascertained the policy and the object underlying the impugned provision, let us now see whether it satisfies the dual test mentioned

above. The impugned legislation, it would be noticed, clearly brings within its purview a distinct class of persons viz. those who are members of the

Association on the date of making the notification u/s 3 (1) of the Unlawful Activities (Prevention) Act. 1967. and stand for election to the State

Legislature during the period the declaration is in operation. The important and key words in the impugned Section are ""a person who is a member

of an Association which has been declared unlawful under the Unlawful Activities (Prevention) Act, 1967"". Thus if on the crucial date i. e. the date

of the promulgation of the said notification a person is found to be a member of the banned Association, he incurs a disqualification for being

chosen as a member of the Legislature and this disqualification enures for the period the declaration remains in force. The concluding words of the

Section namely ""whether or not the said person continues to be a member of such an Association during that period"", on which great stress has

been laid by Mr. Handoo appear to be surplusage introduced merely by way of abundant caution or clarification. If the disqualification as already

stated, is to last for the entire period during which the declaration is to remain in operation, it would not make any difference even if the aforesaid

concluding words are deleted. The section deals equally with a well defined class of persons who may act in a manner detrimental to the integrity of

India. It cannot be struck down as invalid on the ground that it brings the meshes of its net close on some persons or leaves out some persons as it

is well settled that a provision of law need not be all embracing. Thus the disqualification or the disability imposed by the impugned provision is, in

my opinion, based upon ah intelligible differentia.

The other test that the classification should be rational and should have a just and reasonable nexus or relation with the avowed policy and

object of the Legislation is also satisfied in the present case inasmuch as it is in furtherance of the constitutional provisions alluded to above and is

intended to prevent the persons who may be of the belief that accession of the State to India is not permanent and who preach secessionist

doctrines from entering the Legislature and wrecking or subverting the Constitution from inside.

The contention raised on behalf of the petitioners that the impugned provision confers unguided and uncontrolled power on the Returning

Officer, in determining as to whether a candidate seeking election to the Legislature is or is not a member of an Association declared unlawful, is

devoid of force. It ignores that though the word ""Member"" is not defined either in the Unlawful Activities (Prevention) Act, 1967. or in the

Representation of the People Act, it has a well-known connotation and in common parlance it means a constituent or a person belonging to an

institution or an Association. The contention also suffers from obvious infirmities in that (1) it ignores that the Question whether a person is or is not

a member of the Association which has been declared unlawful, is not a question of law but is essentially a question of fact depending not upon the

subjective satisfaction of the Returning Officer but upon facts and circumstances of each case including the Constitution of Articles of Association

of the Association and the Returning Officer has an authority to determine the question on an assessment of the evidence and the material adduced

before him at the summary inquiry under S. 47 (2) (a) of the Representation of the People Act; (2) the mere fact that some difficulty may be

experienced in determining the question cannot render the impugned provision invalid: (3) it assumes that the Returning Officer's decision is final

and (4) over-looks that the question whether any nomination paper has been properly rejected or not can be gone into u/s 108 (1) (c) of the

Representation of the People Act by a High Court Judge taking cognizance of an election petition and his decision in turn is open to appeal to the

Supreme Court u/s 123 of the Act.

The other contention advanced by the learned counsel for the petitioners that Section 24-AA is unconstitutional as it is more harsh and drastic

than Section 24 (1) of the Act is also misconceived. It will be convenient at this stage to refer to these two provisions which are reproduced below:

24-AA. Disqualification for being a member of unlawful association: A person who is a member of an association which has been declared

unlawful under the Unlawful Activities (Prevention) Act, 1967, shall be disqualified for so long as the declaration in respect of the said association

remains in operation under that Act. whether or not the said person continues to be a member of such association during that period.

24-1. Disqualification on conviction for certain offences;

A person convicted of an offence punishable u/s 153-A or Section 171-E of Section 171-F or sub-section (2) or sub-section (3) of Section 505

of the Ranbir Penal Code, 1989, or u/s 10 or Section 11 or Section 12 or sub-section (1) or sub-section (2) of Section 13 of the Unlawful

Activities (Prevention) Act. 1967, or u/s 132-A or Section 132-B or Section 142 or clause (a) of sub-section (2) of Sec. 143 of this Act shall be

disqualified for a period of six years from the date of such conviction.

A close scrutiny and comparison of the two provisions would show that they deal with two different situations. While the first concerns itself with

the penal offence, the other deals with the political consequences, and whereas the object of the one is the enforcement of penal law, the object of

the other is to lend solemnity to the oath to be taken and sub-scribed by a member of the Legislature and to make it more effective. It would also

be noticed that whereas the prohibition u/s 24-AA cannot extend beyond two years as the notification containing the declaration u/s 3 (1) of the

Unlawful Activities (Prevention) Act, 1967. can u/s 6 of the Act remain in operation for a maximum period of two years. if not cancelled earlier,

the disqualification u/s 24 (1) is to enure for a period of six years from the date of conviction u/s 10 or Section 11 or Section 12 or sub-section (1)

or sub-sec. (2) of Section 13 of the Unlawful Activities (Prevention) Act, 1967. Moreover as held by Fazl Ali. J. in Chiranjit Lal Chowdhuri Vs.

The Union of India (UOI) and Others, though Art. 14 of the Constitution lays down an important fundamental right which should be closely and

vigilantly guarded. In construing it we should not adopt doctrinaire approach which would stultify or choke the beneficial legislation.

Again in the State of Bombay v. F. N. Balsara, 1951' SCR 602 = (AIR 1951 SC 318) the same learned Judge while discussing the meaning

and the scope of Article 14 summarised seven principles deducible from Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, .

Some of these principles which are relevant for the purpose of the present case are reproduced below :--

(1) The presumption is always in favour of the Constitutionality of an enactment, since it must be assumed that the legislature understands and

correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and its discriminations are

based on adequate grounds.

(2) The principle of equality does not mean that every law must have universal application for all persons who are not by nature, attainment or

circumstances in the same position and the varying needs of different classes of persons often require separate purposes.

(3) The principle does not take away from the State the power of classifying persons for legitimate treatment.

(4) Every classification is in some degree likely to produce some inequality, and mere production of inequality is not enough.

(5) If a law deals equally with members of a well defined class it is not obnoxious and it is not open to the charge of denial of equal protection on

the ground that it has no application to other persons.

In Sakhawat Ali Vs. The State of Orissa, while considering the provisions of Section 16 (1) (x) of Orissa Municipal Act, 1950, by which a

paid legal practitioner on behalf of or against the Municipality was disqualified for election to a seat in such Municipality and repelling the contention

that it violated Articles 14 and 19 (1) (a) of the Constitution of India, their Lordships of the Supreme Court said:

The contention that the disqualification prescribed in Section 16 (1) fix) violates the fundamental rights of the appellant under Article 1'4 and Art.

19 (1) (g) is equally untenable. Article 14 forbids class legislation but does not forbid reasonable classification for the purposes of legislation. That

classification, however, cannot be arbitrary but must rest upon some real and substantial distinction bearing a reasonable and lust relation to the

thin? in respect of which classification is made. In other words, the classification must have a reasonable relation to the object or the purpose

sought to be achieved by the impugned legislation. The Classification here is of the legal practitioners who are employed on payment on behalf of

the Municipality or act against the Municipalitv and those legal practitioners are disqualified from standing as candidates for election. The object or

purpose to be achieved is the purity of public life, which object would certainly be thwarted if there arose a situation where there was a conflict

between interest and duty. The possibility of such a conflict can be easily visualised, because if the Municipal Councillor is employed as a Paid legal

practitioner on behalf of the Municipality, there is a likelihood of his misusing his position for the purposes of obtaining Municipal briefs for himself

and persuading the Municipality to sanction unreasonable fees. Similarly, if he was acting as a legal practitioner against the Municipality he might in

the interest of his client misuse any knowledge which he might have obtained as a councillor through his access to the Municipal records or he

might sacrifice the interests of the Municipality for those of his clients. No doubt, having regard to the best traditions of the profession very few

legal practitioners would stoop to such tactics, but the Legislature In its wisdom thought it desirable to eliminate any possibility of a conflict

between interest and duty and aimed at achieving this object or purpose by prescribing the requisite disqualification. The classification thus would

certainly have reasonable relation to the object or purpose sought to be achieved.

It was, however, urged that besides this category there are also other categories where there would be a possibility of conflict between interest and

duty and that in so far as they were not covered by the disqualification prescribed by Section 16 (1) of the Act. the provision disqualifying the

category to which the appellant belonged was discriminatory. It was particularly pointed out that a client who had a litigation against the

Municipality was not prevented from standing as a candidate for election whereas the legal practitioner who held a brief against the Municipality

was disqualified, though the ban against both these categories could be justified on ground of avoidance of conflict between interest and duty. The

simple answer to this contention is that legislation enacted for the achievement of a particular object or purpose need not be all embracing. It is for

the Legislature to determine what- categories it would embrace within the scope of legislation and merely because certain categories which would

stand on the same footing as those which are covered by the Legislation are left out would not render legislation which has been enacted in any

manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution.

The decision in Seniaram Doongar Mal Agency Pvt. Ltd. v. K. E. Johnson. AIR 1964 Ass 1 (FB) relied upon by Mr. Handoo, is clearly

distinguishable. In that case the majority of the Judges constituting the Full Bench struck down Section 37 (2) of the income tax Act, 1922, as

more drastic and onerous than Section 37 (1) of the Act on the ground that although both the provisions covered the same subject and answered

the same purpose viz., the production of documents, account books etc. required in connection with the proceedings under the Act and were

capable of being employed against probable income tax assessees, the power u/s 37 (1) was judicial whereas that under Sec. 37 (2) was

administrative or executive, more in the nature of a police power contemplated by the provisions of the Criminal Procedure Code with the

difference that under the Criminal Procedure Code, there is the safety of the warrant of a Judicial Officer that authorised the action, whereas u/s 37

(21 it was merely an authorisation of the executive Officer, namely, the Commissioner of income tax, who as the head of the income tax

Department was himself very much interested in the action sought to be taken. The majority further proceeded to observe that whereas Section 37

(11 involved the obligation on the part of the authority concerned to be guided by the provisions of the CPC for the exercise of the cower and that

all the safeguards as laid down by the CPC came into play in the exercise of Judicial power u/s 37 (1). there were no such guiding factors or

controlling provisions of law subject to which the executive power was to be exercised under S. 37 (2) and although the provisions of Criminal

Procedure Code relating to searches were declared to apply under these sections, none of the safeguards provided in Criminal Procedure Code

were made applicable. The majority further observed that the provisions in Criminal Procedure Code dealing with searches contemplated the issue

of warrant by a Court or a Magistrate whereas S. 37 (21 merely empowered an income tax Officer to exercise practically all the powers of

searches and seizure under the Criminal Procedure Code without the safeguards and guarantee of a Judicial authority's warrant or direction and all

that was required was merely an authorisation by the Commissioner.

The second decision in Ram Dial and Others Vs. The State of Punjab, , cited by Mr. Handoo is also of no assistance to his clients. In that case

their Lordships of the Supreme Court after contrasting Sections 14 (21 and 16 (1) of the Punjab Municipal Act. Act No. III of 1911, struck down

that art of the non obstante Section 14 (e) of the Act as discriminatory and violative of Art. 14 of the Constitution which authorised the State

Government to direct without issue of show cause notice that the seat of any specified member whether elected or appointed would be vacated on

a given date, While doing so, their Lordships pointed out that there were two over-lapping provisions for removal of a member in public interest

and whereas the proviso to Section 16 (11 of the Act provided for communication by the State Government of the reasons for proposed removal

to the member concerned and taking his explanation, u/s 14 (e) it could take the same action against the member concerned without giving him any

such notice and asking his explanation. Their Lordships further proceeded to observe that if the State Government intended to remove any person

for any reason given in clauses (a) to (g) of Section 16 (11, it could do so by taking action u/s 14 (e) and thus circumvent the provisions contained

in the proviso to Section 16 (11 of the Act.

In the present case, Sections 24 (1) and 24-AA of the Representation of the People Act, do not cover the same subject and are not over-

lapping.

The third decision in Bajaj Rasappa v. Keshava, AIR 1968 Mys 198 cited by Mr. Handoo is equally of no assistance to his clients. In that

case the Bench struck down Section 47 of the Madras Municipal Act, which disqualified a leper from voting at an election to a Municipal Council

as unconstitutional on the ground that such a denial of franchise could not be justified on such consideration as social abhorrence and since a leper

had his mental faculty intact, the disqualification of a leper has no rational relationship with the principle of electing a person fit to represent his or

her constituency. The learned Judges further observed that ""considered on the basis of accepted scientific opinion there is no justification for

holding that the casual appearance of a leper for exercising his franchise is either likely to spread the infection or cause social abhorrence. The

disqualification of a leper for exercising his franchise has no reasonable basis and the classification of leper and non-leper does not furnish an

intelligible criteria and the principle of difference has no reasonable relation to the object sought to be achieved by the rule of adult suffrage. Suffice

it to say that there is no analogy between that case which relates to an infirmity of physical nature and the present one.

In view of the foregoing, I am of the opinion, that the impugned provision is not open to attack on the ground of harshness or discrimination.

The contention of the petitioners that the right to stand for election to the Legislature is a guaranteed right and cannot be interfered with by the

Legislature, has no force.

It is now well settled that the right to stand for election is neither a common law right nor a civil right but is a political right and can be regulated

by a statute. Reference in this connection may be made to N.P. Ponnuswami Vs. Returning Officer, Namakkal Constituency and Others, .

The following observations made by Bose. J., in Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, are also very illuminating:

The right to stand as a candidate and contest an election is not a common law right. It is a special right created by statute and can only be

exercised on the conditions laid down by the statute. The Fundamental Rights Chapter has no bearing on a right like this created by Statute. The

appellants have no fundamental right to be elected members of Parliament.

Again in M. Krishnamurthy v. State of Mysore. AIR 1970 Mys 100, at p. 103, it was held that the right to stand for election is not a fundamental

right but is a statutory right and the exercise of it will depend upon the provisions of law conferring the said right.

In view of the well established principles of law referred to above. I find myself unable to accede to the contention of the learned counsel for

the petitioners that Section 24-AA of the Jammu and Kashmir Representation of the People Act, 1967, as inserted by Act VIII of 1971, is hit by

Article 14 of the Constitution and have no hesitation in holding that the disqualification imposed by the Section is reasonable and has a rational

connection with the object sought to be achieved.

Let me now advert to the second Question namely whether the vires of Section 24-AA of the Representation of the People Act, can be raised

in an election petition before a Judge of the High Court nominated u/s 88-A of the Act. Though this Question may at first sight appear not to be

free from difficulty, but on a close examination it would be clear that though the judge hearing an election petition has to exercise jurisdiction

conferred upon him by Chapters II, III and IV of Part X of the Act, he is not a creature of the Act so as to debar him from going into the question.

A Judge or Judges of the High Court hearing an election petition do not owe their existence to the Representation of the People Act, but to the

Constitution. It only happens that the jurisdiction of the Judge taking cognizance of an election petition becomes enlarged or is extended by virtue

of the Representation of the People Act. This becomes amply clear from a perusal of a decision of the Privy Council in Gooneshinha v. Kretser,

AIR 1945 PC 83 where it was held that the cognizance of the election petitions under the Ceylon (State Council Election) order-in-Council, 1931,

by a Judge of the Supreme Court of Ceylon is an extension of or an addition to, the ordinary jurisdiction of the Supreme Court. Support for this

view can also be had from a decision of the High Court of Andhra Pradesh in Dippala Suri Dora v. Giri, AIR 1958 AP 724 which has been cited

by Mr. Handoo.

The decisions in K.S. Venkataraman and Co. Vs. State of Madras, : Dhulabhai and Others Vs. The State of Madhya Pradesh and Another,

and Shree Raja Kandregula Srinivasa Jagannatha Rao Pantulu Bahadur Garu Vs. State of Andhra Pradesh, are all clearly distinguishable as they

deal with the competence of the Tribunals created by the Special Acts to go into the Question of the vires of the provisions of the Act creating

them and the limited jurisdiction of the High Court in a revision or a reference from a decision of the Tribunal which is not the case here. Here there

is nothing either in Section 95 or Section 108 of the Jammu and Kashmir Representation of the People Act, to restrict the jurisdiction of the High

Court. On the other hand, the High Court is authorised u/s 108 (1) (c) of the Act to decide whether a nomination paper was properly rejected by

the Returning Officer. In this context the vires of Section 24-AA of the Act has an important bearing on this question because if the provisions

contained therein are void, the Returning Officer in rejecting a nomination paper in view of the disqualification imposed by the Section would be

acting outside the Act and thus his act would amount to improper rejection of the nomination paper. The question of vires of Section 24-AA of the

Act. is not, therefore foreign to the scope of the High Court's jurisdiction in the instant cases.

For the foregoing reasons. I [would answer question No. 1 in the negative and question No. 2 in the affirmative.

Before Darting with the file, we would like to place on record our deep appreciation of the valuable assistance rendered to us by the learned

counsel for the parties in placing their respective points of view before us.

Mian Jalal-ud-Din, J.

The two questions that have been referred to the Full Bench for decision are as follows:--

Whether Section 24-AA of the Jammu and Kashmir Representation of the People Act. 1957 is ultra vires of the Constitution ?

Whether the Election Judge seized of an Election Petition is competent to go into the question of the Constitutional validity of a particular

provision of the Representation of the People Act ?

My learned brother Jaswant Singh, J. has in great detail discussed the various aspects of these two questions. In so far as answer to question

No. 2 is concerned, I fully agree with him that the Election Judge of the High Court to whom Election Petitions have been assigned for disposal is

competent to go into the question of the vires of a particular section of the Act. The reason being that a judge of the High Court trying the Election

Petition is not a creature of the Statute. The work assigned to him in this respect is only by way of an addition to his jurisdiction to deal with such

matters. Section 142 of the State Constitution which deals with the manner of calling in question the election of a member of the Legislature

expressly uses the word 'authority' before whom the election petition is to be presented. The authority prescribed under the Representation of the

People Act is the High Court. Now the extraordinary jurisdiction that vests in the High Court to issue writs and opine on matters relating to the

vires of an Act or some provisions thereof is founded upon the Constitution. It is under the Constitution that the High Court derives its powers to

determine such questions. It cannot, therefore, be said that a Judge of the High Court is debarred from going into the question of the vires of the

impugned section because the Representation of the People Act has conferred jurisdiction on him to try an election petition.

Again, if this power is denied to the High Court then a very anomalous situation would arise; because in that case the right of a person calling in

question the vires of the Act or rules made thereunder will not be vindicated and be will be left without any remedy. As the well known maxim goes

'Ubi jus ubi Remedium' the situation arising out of an unconstitutional piece of legislation deeds to be remedied, otherwise a vacuum will be

created. The casts cited at the Bar which lav down an opposite view relate to cases arising under the Taxation and other laws where the Tribunals

dealing with cases under such laws were themselves creatures of the Statute and the High Court to whom the cases were referred for opinion had

only advisory capacity and, therefore, could not go into the constitutionality of the Acts. These cases are therefore distinguishable. I would,

therefore, answer the question in the affirmative.

The second question relates to the constitutional validity of Sec. 24-AA of the Act. My learned brother has taken the view that Section 24-AA

is a sound piece of legislation. It is designed to meet a particular situation and the classification is reasonable and based on intelligible differentia. He

has held that the section as a whole is intra vires of the Constitution. I do agree with the view enunciated by my learned brother in so far as the case

of the members of the banned organisation is concerned that the disqualification attached to these members is reasonable and intelligible. To

prevent these members from seeking election to the legislature is with a view to achieve a particular objective. But so far as the aspect of the matter

relating to non-members is concerned I with great respect disagree with the view that the classification in their case is valid and reasonable. In spite

of the attractive arguments at the bar I have not been able to subscribe to the view that the cases of the members and non-members stand on the

same footing. Before discussing the matter further it will be pertinent to reproduce the provisions of the impugned Section;

24-AA. Disqualification for being a member of unlawful association. A person who is a member of an association which has been declared

unlawful under the Unlawful Activities (Prevention) Act, 1967, shall be disqualified for so long as the declaration in respect of the said association

remain in operation under that Act, whether or not the said person continues to be a member of such association during that period.

An examination of these provisions would reveal that the section applies to two categories of candidates on whom the ban to seek election has

been imposed:

(1) those candidates who are and continue to be the members of the organisation notwithstanding the ban imposed on it.

(2) Those candidates who have discontinued their membership.

Now in so far as persons coming under the first category are concerned, the disqualification attached to them as stated above, is

constitutionally valid. It is to be borne in mind that the organisation of which they are members has been admittedly banned under the Unlawful

(Prevention) Activities Act of 1967. The constitutional validity of the imposition of the ban has not been challenged either in the election petition

before the Election Judge or before us. Bather the position is that the one man Tribunal constituted under the aforesaid Act to so into the question

of the imposition of the ban has confirmed the action of the Government. The legal effect of being a member of the banned organisation is that the

member is visited with penal consequences. It is, therefore, in this background that the disqualification attached to this class of persons is to be

understood. As pointed out by my learned brother if members of this organisation seek election to the legislature there will be clash of interest in

their case between the duty that they will be required to perform as members of the legislature and the article of political faith which they profess as

members of the organisation. The purpose of imposing restriction on this class of persons to seek election is with a view to achieve a well-defined

objective. Therefore it cannot be said that ban in their case to seek election is based on unreasonable discrimination.

An attractive argument has, however, been made on behalf of the petitioners that the section gives an un-guided and unfettered discretion to

the Returning Officer to decide the question whether a candidate seeking election is or is not a member of the banned organisation. By mere

labelling a candidate that he is a member of the banned organisation his fate is doomed. The section does not give any guidelines to the Returning

Officer to decide as to who is and who is not a member. Therefore the impugned provision of law is liable to be struck down as arbitrary. But this

argument is without substance inasmuch as the Returning Officer while accepting or rejecting the nomination paper has to decide this question as a

question of fact on the basis of the material that is made available to him on the date of scrutiny. Summary as the nature of the inquiry is he has to

decide all questions of fact within the prescribed time. Just as a question whether a candidate holds an office of profit or is a Government

contractor or is otherwise disqualified from seeking election on any other ground is to be decided by the Returning Officer on the basis of the

evidence that will be led before him, in the same way the question whether a certain person is or is not a member of the banned organisation is to

be decided on the basis of the material produced before him. Thus there is no question of providing any guidelines by the Legislature in this behalf.

That the Returning Officer may decide this question of fact against the candidate seeking election cannot furnish any constitutional ground to strike

down this piece of legislation as illegal, arbitrary and harsh. Even if the Returning Officer commits a mistake while arriving at his conclusion the

same can be remedied by filing an election petition before the High Court and thereafter in appeal before the Supreme Court. The mere fact that

the Returnigs Officer has decided or may decide the question of membership against the candidate seeking election and, by the time the mistake is

rectified in appeal the mischief would have been done will not render the function of the Returning Officer as arbitrary or illegal.

But different is the case of the group of persons in whose case the Returning Officer is himself satisfied on the basis of material that they have

discontinued membership of the banned organisation or where this fact is even conceded by the other side. The question is: can in such a case the

candidate be said to be under disqualification for being chosen to be a member of the legislature notwithstanding his discontinuance as a member

and is such a disqualification prescribed by Section 24-AA constitutionally valid ? In my opinion the answer to this should be in the negative. The

reasons for my holding this view are as follows:--

This section groups together two categories of persons; one, those who are members of the banned organisation, and those who have

discontinued the membership after the imposition of the ban.

In the case of the latter group of persons disqualification has been prescribed in their case because they were once members of the banned

organisation. They are being punished for their past sins. In their case the classification does not appear to be rational or based on any intelligible

differentia. True, the proposition cannot be disputed that once an association has been declared unlawful the membership does not vanish into the

thin air. Nor can it be assumed that membership has come to an end with the banning of the organisation. But at the same time it needs to be

appreciated that where the erstwhile members of the organisation avowedly and openly have discontinued their membership of the organisation and

have severed all their connections with it, does not that amply demonstrate that they have changed their political views and have repudiated the

aims and objects of the organisation ? Does it not demonstrate a change in their political outlook in the sense that they want to join the main

streams of the national life of the State ? So disqualification imposed in their case appears to be unreasonable and unintelligible.

The argument that there will be a clash of interest between duty and interest in their case does not commend to me as plausible. I am fortified in

my view by the fact that the candidates seeking election to the legislature have to take oath on two occasions, one at the time of filing of the

nomination paper, and the other at the time of taking the seat on the floor of the house. It is useful to reproduce the forms of the oath which the

candidate has to affirm on both these occasions :--

Form of oath or affirmation to be made by a candidate for election to the State Legislature.

I. A. B. having been nominated as a candidate to fill a seat in the Legislative Assembly. (or Legislative Council) do swear in the name of God

/solemnly affirm that I will bear true faith and allegiance to the Constitution of the State as by law established and that I will uphold the sovereignty

and integrity of India.

Form of oath or affirmation to be made by a member of the State Legislature.

I. A. B. having been elected (or nominated) a member of the Legislative Assembly (or Legislative Council) do swear in the name of God/solemnly

affirm that I will bear true faith and allegiance to the Constitution of the State as by law established, that I will uphold the sovereignty and integrity

of India and that I will faithfully discharge the duty upon which I am about to enter.

While subscribing to these oaths the candidate has to swear that he will bear true faith and allegiance to the Constitution of the State as by law

established and that he will uphold the sovereignty and integrity of India at the time of being elected as a member of the State Legislature. The

candidate while assuming seat as a member has further to affirm that he will faithfully discharge the duties upon which he is to enter.

Now when a candidate who is not a member of the banned organisation declares his intention to take the oath it cannot be expected in his case

that he will play fraud on the statute or that he will deceive his own conscience by taking such an oath. This apprehension may be entertained with

some reality and the argument may appear plausible in the case of a member of the organisation who by virtue of his membership still clings to the

political idea-logy held by the organisation; but this cannot be assumed in the case of a person who has discontinued his membership and has

renounced his character as such. These are two dissimilar situations and a member and a non-member cannot be placed on the same footing and

cannot be meted out the same treatment as they do not form the same group of Persons in the same class. The expression ""whether he continues to

be a member or not"" does not give any reasonable chance to the non-member to explain his stand. There appears to be no reasonable connection

between the two. In the statement of objects and reasons given for inserting Section 24-AA, when the bill was piloted in the State Assembly, the

main reason assigned for amendment is ""to prevent those indulging in unlawful activities and preaching secession from using the provisions of the

Constitution to subvert the Constitution itself."" The object of this piece of legislation is quite manifest. But this can have no application to the case of

those persons who have ceased to be members of the unlawful organisation and who have severed all their connections with it and in whose case a

change of heart is indicated by their conduct. The argument that there is every likelihood of these persons violating the sanctity of the oath affirmed

by them cannot be sustained inasmuch as it is a remote consideration, and further ample safeguards have been provided by the Representation of

the People Act itself and by the State Constitution, (vide Section 132-B of the Representation of the People Act and Section 17 of the State

Constitution). A candidate who is found guilty of an unlawful activity in the course of election or as a member of the legislature runs the risk of

being disqualified and convicted by a Court. No real apprehension can, therefore, be entertained on this score. It is pertinent to refer here to the

observations made by the Hon'ble Chief Justice acting as one man Tribunal while confirming the declaration of the ban on the plebiscite front. Vide

paragraph 13 of the Judgment:--

The allegation made by the Government against the front was that it want-fed to fight the election of 1972 with a view to entering the Assembly and

wrecking the Constitution from inside. This allegation also in the opinion of 'the Tribunal has not been proved.................. As to what steps the

Front would have taken if voted to power was a very remote consideration and would not be hit by Section 2 of the Act"".

Now these observations have been made in the case of the members of the Front. With greater force would they apply to the case of those

persons who have discontinued the membership.

It is true that right relating to franchise is a political right and is not either a fundamental right or common law right. But even where such a

political right is conferred by a Statute the law conferring such a right must correspond to Article 14 of the Constitution of India and must not make

any unreasonable or arbitrary discrimination in the case of different groups.

Sakhawat Ali Vs. The State of Orissa, relied upon by the respondents is in my opinion not applicable to the facts of the present case inasmuch

as there the candidate who sought election in the Orissa Municipality was a legal practitioner of the Municipality. The Orissa Municipal Act

prevented legal practitioners holding briefs of the Municipality or against_ it from seeking election to the Municipality. The petitioner who was a

legal practitioner of the Municipality sought a writ in his favour. The Supreme Court held that the classification of tee legal practitioners who were

employed on payment on behalf of the Municipality or against the Municipality and were disqualified under the Act from standing as candidates for

election was valid as it was based with a view to avoid conflict between intercut and duty. That is indeed perfectly understandable. But what about

the legal practitioner who would have discontinued to be counsel for or against the Municipality after the disqualification was prescribed by the

Act. It is pertinent and appropriate to refer to the observations made in the aforesaid judgment. Towards the end of the judgment their Lordships

observed that if such a legal practitioner wanted to stead as a candidate for election it was but proper that he should divest himself of his brief on

behalf of the Municipality in which event there will be cordately no bar to his candidature. It is apparent from the judgment that the restriction not to

seek election would not apply to the legal practitioner who had ceased to be or had discontinued to be the paid legal practitioner of the

Municipality or against it. If the law were such as to impose restriction even on those legal practitioners who had divested themselves of the brief

and had discontinued to be the standing counsel either for and against the Municipality, such a restriction in view of the aforesaid ob-servationis

would not have been upheld. On this authority and on the analogy of the facts of that case the restriction in the present case may be said to hold

good in the case of the members of the banned organisation but not in the case of those persons who had divested themselves of its membership.

It has been argued that in the case of members of the banned organisation the disqualification is to last only for two years, the time limit till the

declaration regarding the ban is to remain in operation, whereas in the case of a member convicted u/s 24, it is to last for six years. Therefore

Section 24-AA is less harsh than Sec. 24 of the Act. Moreover it is pointed out that even if the following last words of the impugned Section

Whether or not the said person continues to be a member of such Association during the period the ban remains in force'' are taken out of the

section, the effect would nevertheless remain the same. But I am not inclined to accede to this contention be-cause we cannot tread on mere

hypothesis. The absence of these words from the section cannot be assumed. These words are very much in the section. The Legislature has

deliberately used these words in the section and the legislature did mean to achieve something by inserting these words in the Section. We have,

therefore, to pronounce upon the validity of the provision of law as it is. The decision on the question cannot be postponed or averted on mere

assumption that if these words had not been there the effect would be the same. In my opinion the effect would not be the same because as soon

as the -words ""whether or not the said person continues to be a member"" are omitted from the section. it will make all the difference. In that event

a person who has discontinued to be a member will not be hit by the Section and he will not be ineligible to stand as a candidate. This, in my

opinion, makes all the difference. The section therefore groups together two different and unequal persons in one category which grouping in my

opinion is neither intelligible nor reasonable. The other authorities relied upon by the respondents are therefore distinguishable and can have no

application to the facts of the present case.

For the foregoing reasons I would, therefore, hold that the provision of law prescribing disqualification to persons who have discontinued

membership of the banned organisation suffers from the vice of unreasonable discrimination and is therefore hit by Article 14 of the Constitution of

India. I would, therefore, 'hold that the words beginning from ""whether or not""............. unto ""during this period"" are ultra vires of the Constitution

and these words being severable from the section are hereby struck down. I however, make no order as to costs.

Syed Wasi-ud-Din, J.

I have had the advantage of perusing the judgment of my learned brother Jaswant Singh. J., and I agree with him with regard to his decision in

respect of both the points which have been formulated by us but I just wish to express a few words of my own for an examination of the matter

from different angles of view. I will take up a discussion first of all of the second point which has been formulated. This point raises a question

whether a Judge or Judges to whom the election petitions have been assigned under sub-sec. (2) of Sec. 88-A of the Jammu and Kashmir

Representation of the People Act, 1957 (hereinafter referred to as 'the Act') is or are competent to go into the question regarding the

constitutionality of any particular provision of the Act. Now with regard to this question it has been contended on behalf of the State firstly that a

Judge to whom the election petition has been assigned would be deemed to be a Tribunal constituted under the Act and therefore is not competent

to go into the question of constitutionality of any provisions of the Act. The second contention which has been made is that it will be beyond the

scope of the provisions of the Act to go into the question of constitutionality of any provision because it will be a matter foreign to the determination

of the points arising under the Act.

I will now take up the discussion on each of these points separately. Reliance has been placed with regard to the first contention mainly on

three decisions of the Supreme Court viz:

(i) K.S. Venkataraman and Co. Vs. State of Madras, .

(ii) Dhulabhai and Others Vs. The State of Madhya Pradesh and Another, ; and

(iii) Shree Raja Kandregula Srinivasa Jagannatha Rao Pantulu Bahadur Garu Vs. State of Andhra Pradesh, .

The first case referred to above was a reference u/s 66 of the income tax Act of 1922 and the second case referred to above was a matter

arising under the Madhya Pradesh Sales Tax (Act 30 of 1950). The third case referred above was in respect of a matter aris-ing under the Andhra

Pradesh (Andhra Area) Estates Land (Reduction of Rent) Act 30 of 1947. A perusal of the aforesaid decisions would clearly show that their

Lordships were of the opinion that the Tribunal, which had referred the cases to the High Court was a Tribunal created under the statute and

therefore. it can decide only the question of law referred and as such ultra vires of the pro visions of the Act is foreign to the scope of its

jurisdiction. It also appears from the aforesaid decisions that their Lordship"" were of the opinion firstly that the Tribunal was constituted under the

Act and secondly that it was a special advisory jurisdiction. In my opinion all these decisions are clearly distinguishable and are not applicable to

the facts and circumstances of the present case because it cannot be said by any stretch of imagination that the High Court on which the jurisdiction

to try the election petitions has been conferred by the Act is in any sense a Tribunal constituted or created under the Act. I will deal with this joint

more in detail when I take up a discussion of each of the specific provisions of the Constitution as well as the Act itself. In my opinion the decision

which is applicable to the facts of the present case and which has also been referred to by my learned brother Jaswant Singh, J., in his judgment is

one in AIR 1945 PC 83. I may now in this connection first of all refer to Section 142 of the Jammu & Kashmir Constitution which corresponds to

Article 329 of the Constitution of India. This section runs as follows:--

Bar to interference by Courts in electoral matters:-- Notwithstanding anything in this Constitution.

(a) the validity of any law relating to the delimitation of territorial constituencies for the purpose of electing members of the Legislative Assembly or

the allotment of seats to such constituencies, made or purporting to be made u/s 141, shall not be called in question in any court;

(b) no election to either House of the Legislature shall be called in question except by an election petition presented to such authority and in such

manner as may be provided for by or under any law made by the Legislature.

Section 142 (a) of the Jammu and Kashmir Constitution bars the going into the question of validity of any law relating to the delimitation of

territorial constituencies and this certainly will not be applicable to the present case. Clause (b) of Section 142 above is applicable to the present

case and it lays down as already quoted above that no election shall be called in question except by an election petition presented to such authority

and in such manner, as may be provided for by or under any law made by the legislature. Now reading cl. (b) of Section 142 of the J. and K.

Constitution along with certain provisions of the Act, particularly Part X of the Act, it is clear that an election can be called in question only by

presentation of a petition before the High Court. It can in this sense be regarded as the authority as contemplated by clause (b) of Section 142 of

the J. and K. Constitution. But since this jurisdiction has been conferred on the High Court and not on a Judge of the High Court, so it cannot be

said that the High Court is a Tribunal constituted under the Act. I will now refer to the different provisions under Part X of the Act. Section 88 of

the Act lays down that no election shall be called in question except by an election petition presented in accordance with the provisions of this Part.

Section 88-A of the Act is important and it runs as follows:--

High Court to try election petitions. (1) The Court having jurisdiction to try an election petition shall be the High Court.

(2) Such jurisdiction shall be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall, from time to time, assign one or

more Judges for that purpose.

The wordings of Section 88-A in my opinion clearly show that the jurisdiction has been conferred on the High Court and not on any particular

Judge. It is also important to note here that in Section 88-A the words 'Court' and 'High Court' have been used. The legislature advisedly has not

used the word 'tribunal' anywhere in the act because previously of course the position was that the election petitions were triable by a tribunal

constituted under the Act but this is not the position at present. Sub-section (21 clearly shows that such jurisdiction which is conferred on the High

Court shall be exercised ordinarily by a Single Judge of the High Court and the Chief Justice shall from time to time assign one or more Judges for

that purpose. It is a matter within the discretion of the Chief Justice. Section 89 of the Act also clearly shows that the election petition calling in

question an election has to be presented to the High Court within the prescribed period. Chapter III of Part X of the Act deals with trial of Election

Petitions and Section 94 lays down that the High Court shall dismiss an election petition which does not comply with the provisions of Section 89

or Section 90 or Section 125. Mr. Nariman in the course of his argument relied in this connection on the provisions of Section 95 of the Act which

runs as follows:--

Procedure before the High Court:-- (1) Subject to the provisions of this Act and any rules made thereunder every election petition shall be tried by

the High Court, as nearly as may be, in accordance with the provisions applicable under the CPC Sam-vat 1977 to the trial of suits:

Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing to examine any witness or witnesses if it is of

the opinion that the evidence of such witness or witnesses is not material for the decision of the petition or that the party tendering such witness or

witnesses is doing so on frivolous grounds or with a view to delay the proceedings.

(2) The provisions of the Evidence Act, Samvat 1977 shall subject to the provisions of this Act, be deemed to apply in all respects to the trial of an

election petition.

It was contended that Section 95 circumscribes the jurisdiction and it shows that the jurisdiction which has been conferred can be exercised only in

accordance with and in conformity with the provisions of Section 95 of the Act. In my opinion Section 95 deals only with the procedure and laying

down a certain procedure in the Act cannot tantamount to circumscribing or limiting the powers of the Court i.e., the High Court in the pie-sent

case. A perusal of the different sections of the Act particularly those which I have referred above would clearly show that the jurisdiction under the

Act has been Conferred on the High Court and there is no section which in any way circumscribes or limits the powers and the competence of the

High Court to go into the question regarding the constitutionality of any provision of the Act.

I think there is another aspect of the matter, which also has to be looked into. In view of Section 142 of the J. and K. Constitution and the

different provisions of the Act it is clear that the election can be challenged only after the result has been announced and this can only be done by

presenting an election petition in the High Court and the aggrieved party can also file an appeal to the Supreme Court. In my opinion in such

circumstances and application under Article 226 of the Constitution of India would not be maintainable. This position is also clear, as has been held

in the case reported in Jumuna Prasad Mukhariya and Others Vs. Lachhi Ram and Others, that the right to stand as a candidate and contest the

election is not a common law right and it is a special right created by the statute and the Chapter dealing with the fundamental rights has no bearing.

In this view of the matter an application under Article 32 of the Constitution of India would also perhaps not be maintainable in the Supreme Court

because it will not be an infringement of the fundamental rights. It therefore, appears to me that there is no alternative remedy for a person who

wants to challenge the election on the ground of the constitutionality of a certain provision of the Act and the only forum where he can do so is in

the election petition before the High Court. I do not think that the legislature could have ever contemplated that this right of a candidate or an

elector could be barred and he may be left with no remedy in this respect. I may also here refer in this connection to the Presidential or Vice-

Presidential Elections Act, 1952. This Act provides that the election of the President or Vice-President can be called in question only by

presentation of an application to the Supreme Court. Section 14 of this Act makes provisions in this respect and on a comparison of the wordings

of Section 14 with the relevant provisions of the Jammu and Kashmir Representation of the People Act, 1957 it appears that the wordings are the

same. It cannot be also by any stretch of imagination be said that the Supreme court also will not be competent to go into the constitutionality of

any of the provisions of the Act of 1052.

Now the other contention which has been raised is that the question of going into the constitutionality of any provision is foreign to the scope of

the Act. Reliance in this connection has been placed particularly on two provisions of the Act viz: Sections 47and 108. Section 47 deals with the

scrutiny of nominations and sub-section (2) (a) of the said section lays down that if on the date fixed for scrutiny of nominations a candidate either

is not qualified or is disqualified for being chosen to fill the seat under any of the provisions of Secs. 51 and 69 of the Constitution of Jammu &

Kashmir Part VI of this Act. then the Returning Officer shall reject the nomination paper. It has therefore, been urged that the limited scope of the

Returning Officer is to see whether there is any absence of qualification of presence of disqualification as contemplated by Sections 51 and 69 of

the J. and K. Constitution and that the Returning Officer as such cannot go into the constitutionality of any previsions of the Act. Section 108 of the

Act deals with the grounds on which an election can be declared void by the High Court. We are concerned here only with clauses (a) and (c) of

Section 108 of the Act. Clause (a) lays down that the election may be declared to be void if the High Court is of opinion that on the date of his

election the returned candidate was not qualified or was disqualified to be chosen to fill the seat under the Constitution or under this Act. Clause (c)

lays down that the High Court can declare an election void if any nomination paper has been improperly rejected. True it is that it will not be within

the competence of the Returning Officer to go into the question of constitutionality of the provisions of the Act and what he has to see is whether

on the materials placed before him the candidate is not qualified or disqualified and naturally since the election has to be held with promptitude so

the Returning Officer has to make only a summary enquiry but the order of the Returning Officer is not final because it can be challenged by an

election petition presented before the High Court as has been done in these cases. In my opinion these different provisions do not mean that these

in any way limit or restrict the power of the High Court to go into the constitutionality of the provisions of the Act. To me it also appears thai in

Clause (c) of Section 108 of the Act the words which have been used are improperly rejected"". The word ""improper-ly' would also mean illegal

rejection and if the High Court can go into the legality or illegality of the rejection of a nomination paper then it consequently follows that it can go

into the question of constitutionality of any provision also because if any provision in the Act is not constitutionally valid then certainly it can be said

that it is illegal meaning thereby that there has been improper rejection.

I therefore agree with my learned brother Jaswant Singh, J., that the second question should be answered in the affirmative.

The first point which has been formulated by us is about the constitutionality of Section 24-AA of the Act. My learned brother Jaswant Singh,

J., has elaborately discussed this question from different aspects and has also discussed the different decisions of the Supreme Court and I agree

with him also as far as the answer to this point is concerned but I would just examine the provisions of Section 24-AA of the Act in the light of the

other aspects of the matter also. Section 24-AA of the Act has already been quoted in full in the judgment of my learned brother Jaswant Singh. J.,

but for the sake of convenience I would also quote it here and it runs as under:--

Disqualification of being a member of unlawful association:-- A person who is a member of an association which has been declared unlawful under

the Unlawful Activities (Prevention) Act 1967, shall be disqualified for so long as the declaration in respect of the said association remains in

operation under that Act, whether or not the said person continues to be a member of such association during that period.

To me it appears that this section is divisible into two parts. The first part attaches a disqualification to a person who is a member of the association

which has been declared unlawful. A question arises as to what will be the date for reckoning the membership. In my opinion the wording of the

section clearly shows that the relevant date would be the date on which the association was declared unlawful. It has been urged on behalf of the

petitioners that Section 24-AA of the Act does not lay down any guideline as to who is a member of the association and leaves the matter

absolutely vague land that certain tests should have been laid down for the determination of the membership. In my opinion this contention does not

seem to be correct because the fact as to who is a member of the association is a matter of fact and not a [matter of law, and the question can be

determined only on the materials and evidence which may be adduced. The materials may be scanty or insufficient before the Returning Officer

because the enquiry before him in the circumstances has to be a summary one but as I have [already stated above this is not a final oginion and it is

open to review in the [election petition. I think that in such circumstances the legislature could not lay down any guideline or test as to who is a

member. The determination as to who is a member will be dependent on the materials and evidence governing each particular case.

Now the second part of the section is what is contained in the last two sentences of the said section and it is ""whether or not the said person

conti-nues to be a member of such association during that period"". It has been argued on behalf of the petitioners that it creates a kind of

permanent disqualification irrespective of the fact whether that perticular person may discontinue or disassociate himself from that association. Mr.

Nariman in the course of his submissions has very rightly pointed out that even if these two last sentences are taken out of the section, still the effect

will be the some. I think this contention seems to be correct because if we read the section without these two last sentences, the effect still would

be that a person who is a member is disqualified for the period the declaration remains in force. I need not refer to the different provisions of the

Act of 1987 because my learned brother Jaswant Singh. J., has already discussed them and it is clear from the provisions that the declaration can

remain in force for a period of only two years. The bar therefore is not a permanent one even with the last two sentences and as pointed out above

if the two sentences are taken out and even if they are struck down, the result would be the same.

It has also been urged that once an association has been declared unlawful, the membership evaporates and vanishes into the thin air. In my

opinion this contention does not seem to be correct because by declaring an association as unlawful the membership of the persons still remains but

only the association has been declared unlawful. It has also been urged that the last two sentences do not provide any room for any change in the

ideology or change of heart but considering the different aspects of the matter, it is clear that it would net be very easy to determine that there has

been a charge in the ideology and having regard to the form of oath which has to be taken by a candidate it would not be safe to permit persons

who are members of the association to take the oath because it may be doubtful if the taking of the oath has been done having regard to the true

scope and sanctity of the oath.

It was also pointed out that a candidate who is elected is also required to take an oath and so there is already a further safeguard in the

Constitution. I may refer here to Form 'C of Fifth Schedule of the Jammu and Kashmir Constitution. There are two forms of the oath, one is for a

person who is a candidate for the election and the other which is for a person who has been elected as a member of the State Legislature. There is

a difference between the two forms of oaths because in the latter one the concluding words are ""I will faithfully discharge the duty upon which I am

about to enter"", and these words naturally do not find place in the form of oath which has to be taken by a candidate for election. Section 24-AA

of the Act cannot also be regarded in any way as unconstitutional because there is another oath which has to be taken. The learned Counsel for the

petitioners also contended that there are provisions contained in Section 24 (1) of the Act of disqualifying a person convicted of an offence u/s

132-A or Section 132-B of the Act but those are electoral offences and it cannot be said that these are safeguards which would show that there

was no necessity of the incorporation of the provisions of Section 24-AA.

It is also clear in my opinion that a comparison of Section 24 (1) and Section 24-AA would clearly show that both these sections deal with

dissimilar situations and Section 24-AA cannot be said to be harsher than Section 24 (1) of the Act.

Lastly I may also refer to this aspect of the matter that at the time when I requested the Hon'ble Chief Justice to refer the question to a larger

Bench then two other contentions also had been raised before me, and one of these was that Section 24-AA is also bad in law and unconstitutional

because there is no such provision in the Acts of similar type of different States and that there was no such disqualification also for the membership

of the Parliament. This point was not pressed at the time of the hearing by us but I may just refer here to a decision in the case of the The State of

Madhya Pradesh Vs. G.C. Mandawar, which clearly lays down that a provision of any Act cannot be struck down because other States or the

Centre have not got similar enactments. As regards the question that there is no such disqualification for being a member of the Parliament I think

the position is very clear that the source of power of imposing a disqualification for the membership of Parliament is under Article 191 (e) of the

Constitution of India but this Article does not apply to the State of Jammu and Kashmir.

I am therefore of the opinion, agreeing with my learned brother Jas-want Singh, J., that the first question should be answered in negative.

ORDER

In accordance with the opinion of the majority. Question No. 1 is answered in the negative and in view of unanimous opinion of the Bench,

Question No. 2 is answered in the affirmative.