Shankarlal Bajoria vs Union of India (UOI)

B.C. Mitra, J.—This is an application for a Rule Nisi for Writs, orders and directions in the nature of Quo Warranto and Mandamus and other appropriate orders.

The Petitioners claim to be voters whose names have been entered in the electoral roll Parliamentary and Assembly constituencies of West Bengal. They further claim to be vitally interested in exercising their rights of franchise and also in the due constitution of Parliament and State Legislative Assembly and to see that the General Election as announced by Notification dated January 13, 1967, is carried out according to the provisions of the Constitution. The Respondents in this application include the Prime Minister of India W and other Ministers of the Government of India and also the Chief Minister, West Bengal and the other Ministers of the Government of West Bengal. The Petitioners case as laid in the petition is that Central and State Ministers are entitled to and are paid salaries B various allowances. According to the Petitioners Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, which purports Remove the bar of disqualification, is ultra vires Article 102 and Article (sic) with Article 75(6) of the Constitution, inasmuch as the said Act (sic) discrimination treating the Ministers as a class distinct 3 Pr other Government employees, in the matter of holding offices

It is next alleged that the Respondents Nos. 6 to 19 who are oisters of the Central Government are disqualified for being (sic) and for being Members of the House of the People, as the (sic) within the meaning of Clause (1) of Article 102 of the Constitution is a disqualification which attaches to the said Respondents, when they and each of them, become candidates for General Election the meaning of Section 79(b) of the Representation of the People Act, 1951. The said Respondents, it is further alleged, claim to have been duly nominated as candidates at the General Election and they have announced that they are candidates for election. The disqualification imposed by Article 102(1)(a) of the Constitution, it is alleged, is a subsisting disqualification, as no notification has been published u/s 10 of the Salaries and Allowances of Ministers Act, 1952. The same charge has been made about Respondents Nos. 20 to 35 who are Ministers of the Government of West Bengal.

Appearing in support of this application, Mr. Arun Kumar Dutta contended that the said Respondents have not ceased to be Minister of the Union of India and the State of West Bengal and are still continuing to perform their duties as such Ministers and were exercising functions of the offices of Ministers, which were offices of profit and as holders of such offices the said Respondents were disqualified from being chosen as candidates for election to the House of the People or the State Legislative Assembly. It was argued that Clause (a) of Article 102(1) of the Constitution, had created certain disqualifications which could not be removed by the provisions in the Parliament (Prevention of Disqualification) Act, 1959.

It was next argued that Section 3(a) of the said Act is ultra vires the Constitution as it purported to discriminate between different classes of persons who were holding offices of profit, namely, the Ministers of the Central Government and the State Government on the one hand and other employees of the Central and the State Governments on the other. It was argued that disqualification created by Article 102(1)(a) regarding the Houses of Parliament and the similar disqualification created by Article 191(1)(a) regarding the Legislative 1 Assembly or the Legislative Council of the State of West Bengal could not be removed either by a Central Act or by a State Act. The attempted removal of disqualification created by Article 102(1)(a) and Article 191(1)(a) would have the effect, it was argued, of amending said provisions in the Constitution whereby the disqualification was created and imposed.

It was strenuously argued by Mr. Dutta that a Central or State Act could not discriminate between different classes of Government employees, namely, Ministers on the one hand and all employee other than Ministers on the other and the Statute whereby (sic) qualification has been sought to be removed must, therefore, (sic) to be ultra vires Article 14 of the Constitution of India.

In support of his contentions Mr. Dutta, firstly, relied upon a passage from the Report of the Joint Committee of Parliament of Indian Constitutional Reforms, 1934, which has been set out at p. 15 of Constitutional Law by Wade and Phillips (6th ed.). The passage relied upon by Mr. Dutta is as follows:

Parliamentary government, as it is understood in the United Kingdom, works by the inter-action of four essential factors; the principle of majority rule; the willingness of the majority for the time being to accept the decisions of the majority; the existence of great political parties divided by broad issues of policy, rather than by sectional interests and finally the Existence of a mobile body of political opinion, owing no permanent allegiance to any party and therefore able, by its instinctive reaction against extravagant movements on one side or the other, to keep the vessel on an even keel.

I do not, however, see how the observations in the said Report in any way support the contention of Mr. Dutta in this application. The question in this application is whether the Respondents who are Ministers of the Central and State Government can lawfully claim to be candidates for election at the next General Election, as they hold offices of profit; the further question is whether the disqualification created by Article 102(1)(a) and Article 191(1)(a) of the Constitution have been validly removed by Section 3(a) of the Parliament (Prevention of Disqualification) Act, 1959.

Mr. Dutta next relied upon a decision of the U.S. Supreme Court In the matter of Newton Martin Curtis 27 U.S. Reps. (Lawyers'' ed.), 232. Reliance was placed by Mr. Dutta on the observation at p. 235 of the Report to the effect that political parties must exist under a republican form of government and when public employment depends on a party''s success, those in office would naturally be desirous of keeping the party to which they belong in power and that the apparent end of Congress would be accomplished if it prevented those in power from requiring help for such purpose as a condition to continue the employment. In my opinion, these observations of the U.S. Supreme Court have no bearing whatsoever on the issues involved in this application.

Reliance was next placed by Mr. Dutta on the decision of b the Supreme Court in Election Commission, India Vs. Saka Venkata Subba Rao and, . In that case a person was convicted by the Criminal Court to seven years rigorous imprisonment and he was released on the occasion of the celebration of the Independence Day on August 15, 1947. In June, 1952, a bye-election was to be held in a reserved seat of the State Legislative Assembly and the person, convicted as above, desired to offer himself as a candidate and for that purpose, applied the Election Commission for exemption to enable him to contest election as he was disqualified u/s 7(b) of the Representation of the People Act, 1951, five years not having elapsed from the date of his release. He filed his nomination on the last day and no objection was taken to the same at the scrutiny of nomination papers. He secured a large number of votes and was declared elected and the result of the Election was published in the official gazette and there-after, he took his seat as a Member of the State Assembly. But the Election Commission rejected his application for exemption and the Speaker of the Assembly read out to the House a communication received from the Election Commission that the said application for exemption had been rejected. The Speaker of the Assembly referred the question to the Governor of Madras who forwarded the case to the Election (Commission for its opinion as required by Article 192 of the Constitution. The Chief Election Commissioner heard the Respondent''s counsel and on the day on which the hearing before the Chief Election Commissioner concluded, the Member concerned applied to the High Court under Article 226 of the Constitution and contended that Article 192 of the Constitution was applicable where a Member became subject to a disqualification after he was elected, but had no application in that case as disqualification arose long before the Election and that in a case where a disqualification arose before the Election, the only remedy was to challenge the validity of the Election before the Election Tribunal. It was held that Articles 190(3) and 192(1) were applicable only to disqualifications to which a Member became subject after he was elected and that neither the Governor nor the Election Commission had jurisdiction to enquire into a Member''s disqualification which arose long before his Election. This decision, to my mind, does not uphold or support any of the contentions of Mr. Dutta in this application.

Article 102(1)(a) and Article 191(1)(a) of the Constitution create a disqualification, namely, the holding of an office of profit either under the Government of India or under the Government of a State, but it is clearly provided in Clause (a) of Article 102(1) and Clause (a) of Article 191(1) that the disqualification should apply to a candidate if he held an office of profit other than an office declared by law either by Parliament or the Legislature of a State. It is thus clear that while the Constitution created a disqualification, it also clearly provided that the disqualification would not attach to a candidate if he held and office which was declared either by Parliament or by a State Legislature not to be an office of profit. The Constitution, therefore expressly empower the Parliament and the State Legislature to make laws declaring certain offices not to be offices of profit contemplated by Article 102(1)(a) and Article 191(1)(a) of the Constitution. It is in exercise of this power that Parliament enacted the Parliament (Prevention of Disqualification) Act, 1959, by Section 3 of which offices held by a M (sic) Minister of State or Deputy Minister for the Union or for (sic) State, in so far as such offices are offices of profit, shall not disqualify the holder thereof for being chosen as or for being a Member of Parliament. Having regard to the express provisions in the said Act, there is no force in the contentions raised by the learned Advocate for the Petitioners that the disqualification created by the Constitution disables them from being candidates for election at the next General Election. There is no force in the contention that Section 3 of the Parliament (Prevention of Disqualification) Act, 1959, is ultra vire''s the Constitution, as Parliament enacted the said statute in exercise, of the powers expressly conferred upon it by the Constitution. Nor can I accept the contention of Mr. Dutta that the said Act is violative of Article 14 of the Constitution. In any event, the Petitioners are not employees of the Central or the State Governments and they cannot be heard to complain that they have been denied equality before the law as enjoined by Article 14 of the Constitution.

It seems, however, that the contentions relating to the disqualification of the said Respondents on the ground that as Ministers they hold offices of profit have been raised and canvassed before me without taking into consideration the effect of Clause (2) of Article 102 and also of Clause (2) of Article 191 of the Constitution. The provision in Articles 102(2) and 191(2) of the Constitution is almost indentical and is as follows:

For the purposes of this article a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.

This clear and specific provision in the Constitution itself that a Minister for the Union or for the State shall not be deemed to hold an office of profit by reason of his holding the office of a Minister is, in my view, a complete and comprehensive answer to the contentions of the Petitioner regarding disqualification of the said Respondents. The specific provision in the Constitution that an office of a Minister for the Union or for a State shall not be deemed to be an office of profit makes it unnecessary for me to deal at greater length with the questions regarding vires of Section 3 of the Parliament (Prevention of Disqualification) Act, 1959.

There is, however, a still more formidable obstacle to the Petitioners succeeding in this application for a Rule Nisi. Article (sic)9(b) of the Constitution provides that no election to either House (sic) Parliament, or to either House of the Legislature of a State, shall (sic) called in question except by an election petition presented to such, Authority and in such manner as may be provided by any law made (sic) appropriate Legislature. In effect and in substance, the Petitioners are attempting in this application to call in question the (sic) of several candidates to Parliament and to the State Legislature and this is precisely what has been forbidden by Article 329(b). (sic) Constitution, he sought to get over the difficulty by referring to the provisions in the Constitution (Nineteenth Amendment) Act, 1966 and also to the amended Section 80A of the Representation of the People Act, 1951, whereby it has been provided that the Court having jurisdiction to try an election petition shall be the High Court. Mr. Dutta argued that by virtue of the amendment mentioned above, this Court one had the jurisdiction to entertain and try an election petition and this petition should, therefore, be treated as an election petition (sic) should be issued. I cannot accept this contention of Mr. Dutta. The jurisdiction which has been invoked by Petitioners is the Writ jurisdiction of this Court under Article 226 of the Constitution and the Petitioners have prayed for various (sic) for redress of their alleged grievances. This petition, in my view cannot be treated as an election petition under the provisions of the Representation of the People Act, 1951. Nor can a Rule Nisi be issued under Article 226 of the Constitution after treating the petition as an election petition as required by Article 329(b) of the Constitution.

In my opinion, there is no merit in this application, which is, therefore, rejected.

Mr. Dutta, learned Advocate for the Petitioner, makes an oral application under Article 132(1) of the Constitution for leave to appeal to the Supreme Court. This application is rejected.

Let the certified copy of this order, if applied for, be delivered within a week from date of application for such copy.