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Basudev Khadanga Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtOrissa High Court
Decided On
Case NumberO.J.C. No. 211 of 1971
Judge
Reported inAIR1973Ori136
ActsConstitution of India - Articles 15(1), 15(4), 141, 226, 329 and 334; Constitution of India Amendment Act, 1969
AppellantBasudev Khadanga
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateG. Ananda Rao Dora, Adv.
Respondent AdvocateGovt. Adv., ;G. Rath, ;R.K. Patra and ;R.C. Pradhan, Advs.
DispositionPetition dismissed
Cases ReferredN. P. Ponnuswami v. Returning Officer Namakkal Constituency
Excerpt:
.....cease to have effect' as used in the original article clearly indicated the intention of the constitution that such provision was not to be modified or altered and on the expiry of the ten years from the commencement of the constitution effect had to be given to the intention of the constitution. the need for such reservation and special representation was well-realised and that justified incorporation of the article in the constitution in 1950. it is quite possible that a ten year period was considered sufficient in 1949 when the constituent assembly was debating the matter. it has been settled upon good authority in this country that the right of franchise or the right to a public office by the democratic process is not a fundamental right. fail. this contention has also to fail...........years. then came the constitution (twentythird amendment) act., 1969, by which in place of '20' years. '30' years was substituted. as a result, the reservation of seats and special representation are to continue until 1980.in orissa, mid-term poll was held for all the seats of the orissa legislative assembly in february-march, 1971. in view of the latest amendment to article 334 of the constitution, reservation of seats continued and under the delimitation commission act. 61 of 1962, delimitation of constituencies had been made as a result whereof, the jaganath prasad constituency was made a reserved one.5. in this application the petitioner challenges the 23rd amendment of the constitution by which the reservation of seats and special representation were extended upto 1980, and his.....
Judgment:

R.N. Misra, J.

1. Jaganath Prasad is one of the 140 Constituencies of the Orissa Legislative Assembly. The petitioner a resident of a village in Buguda P. S. covered by the said constituency filed his nomination for election to the Orissa State Legislative Assembly in the mid-term poll held in 1971. His nomination paper was however, not accepted on the ground that it was a reserved Constituency for Scheduled Castes. The election was duly held end opposite party No. 7 was returned from the Constituency. By this application, the petitioner challenges the reservation of the constituency for Scheduled Castes and consequently impugns the election of opposite party No. 7.

2. Of the several opposite parties, the Returning Officer -- opposite party No. 5, and the returned candidate --opposite party No. 7 -- have filed counter affidavit. The Union of India -- opposite party No. 1 -- has entered appearance through counsel and has advanced arguments against the contentions raised in the writ petition though no counter affidavit has been filed.

3. There is no dispute that the Jaganath Prasad Constituency of the Orissa Legislative Assembly is a reserved one for Scheduled Castes. The petitioner deposited the amount prescribed under Section 34(1)(b) of the Representation of the People Act. 1951 but according to the Returning Officer, no nomination paper had at all been filed by him.

4. Under Article 334 of the Constitution, reservation of seats and special representation were provided, for, in the following manner in 1950:

'Notwithstanding anything in the foregoing provisions of this part, the provisions of this Constitution relating to -

(a) the reservation of seats for the Scheduled Castes and the Scheduled Tribes in the House of the People and in the Legislative Assemblies of the States; and

(b) the representation of the Anglo-Indian Community in the House of the People and in the Legislative Assemblies of the States by nomination shall cease to have effect on the expiration of a period of ten years from the commencement of this Constitution.'

By the Constitution (Eighth Amendment) Act, 1959, the period of '10' years was replaced by the period of '20' years. Thus the reservation of seats and special representation were to cease after twenty years. Then came the Constitution (Twentythird Amendment) Act., 1969, by which in place of '20' years. '30' years was substituted. As a result, the reservation of seats and special representation are to continue until 1980.

In Orissa, mid-term poll was held for all the seats of the Orissa Legislative Assembly in February-March, 1971. In view of the latest amendment to Article 334 of the Constitution, reservation of seats continued and under the Delimitation Commission Act. 61 of 1962, delimitation of constituencies had been made as a result whereof, the Jaganath Prasad Constituency was made a reserved one.

5. In this application the petitioner challenges the 23rd Amendment of the Constitution by which the reservation of seats and special representation were extended upto 1980, and his counsel raises the following contentions-

(1) the amendment made by Parliament was without authority of the Constitution;

(2) the amendment offends the provisions of Article 15(1) of the Constitution, and

(3) the provisions of Section 9 of the Delimitation Commission Act are ultra vires Article 14 of the Constitution. We propose to deal with each of the contentions seriatim.

6. Contention No. 1-- According to Mr. Dora for the petitioner, when the Constituent Assembly gave shape to the Constitution of India, it was the clear intention that the period of 'ten years' indicated in Article 334 of the Constitution was not to be extended. Thus after the expiry of the tenth year, the reservation and special representation provided for by that Article were automatically to lapse. In support of such contention of his. Mr. Dora relies upon the Debates of the Constituent Assembly and the statement made on the floor of the Constituent Assembly by Dr. Ambedkar, Drawing inspiration from Golaknath's case, (AIR 1967 SC 1643), he contends that there can be no power to amend an Article by implication because, the dictrine of necessary implication cannot be invoked in the instant case. According to Mr. Dora, the use of the words 'shall cease to have effect' as used in the original Article clearly indicated the intention of the Constitution that such provision was not to be modified or altered and on the expiry of the ten years from the commencement of the Constitution effect had to be given to the intention of the Constitution. Therefore, the Article was immune from the emending process after the expiration of the ten year limit.

We do not find any merit in such contention. It is true, the Debates of the Constituent Assembly indicate the period of 10 years, Dr. Ambedkar himself had stated-

'With regard to the other arguments which have been used by my friends. Mr. Muniswami Pillai and Mr. Manmohan Das. I am sorry, it is not possible to accept that amendment. Their proposal is that while they are prepared to leave the clause as it is they propose to vest the Parliament with the power to alter this clause by further extension of the period of ten years. Now first of all we have, as I said, introduced this matter in the Constitution itself and I do not think that we should permit any change to be made in this except by the amendment of the Constitution itself.'

The statement of Dr. Ambedkar made on the floors of the Constituent Assembly even if it supports Mr. Dora's contention, cannot be adopted for the purpose of finding out Powers of Parliament to amend Article 334 of the Constitution because, what was stated at the time when the Constitution was being shaped but was not actually incorporated into the Constitution, cannot be taken into consideration while considering the power of Parliament. The need for such reservation and special representation was well-realised and that justified incorporation of the Article in the Constitution in 1950. It is quite possible that a ten year period was considered sufficient in 1949 when the Constituent Assembly was debating the matter. In actual experience, as time passed, it was realised that the purpose had not been served. That justified the 8th Amendment to the Constitution. In 1969, when the position was again reviewed. Parliament found that the need for reservation and special representation had not gone and what was realised in 1949 as a necessity but for a period of 10 years only was found to be still existing. That brought to the 23rd Amendment.

While Mr. Dora relied upon the majority decision in Golaknath's case, AIR 1967 SC 1643 learned Government Advocate appearing for the public officers who are opposite parties contends that the decision is not correct and their Lordships of the Supreme Court have already directed the entire matter to be reconsidered again. Until the position is altered by their Lordships of the Supreme Court, the decision in that case binds and the effect of the decision cannot be whittled down because. Parliament has made certain amendments of the Constitution in the meantime, or the matter is coming up for reconsideration before their Lordships of the Supreme Court. By operation of Article 141 of the Constitution, the law as interpreted by the majority judgment binds this Court. But no support is available from Golaknath's case, AIR 1967 SC 1643 for the contention of Mr. Dora. Their Lordships in clear terms indicated-

'We declare that the Parliament will have no power from the date of this decision to amend any of the provisions of Pan III of the Constitution, so as to take away or abridge the fundamental rights enshrined therein.'

and in another part of the judgment It was further observed

'We have not said that the provision of the Constitution cannot be emended but what we have said is that they cannot be amended so as to take away or abridge fundamental rights.'

The 23rd Amendment has not- interfered with any of the provisions of Part III of the Constitution, it has only brought about such change as has already been indicated in Article 334 of the Constitution. It has been settled upon good authority in this country that the right of franchise or the right to a public office by the democratic process is not a fundamental right. It is a right created by statute and will depend upon what the statute provides for. Thus if by amendment of Article 334 of the Constitution, the petitioner's right to contest to membership of the Legislative Assembly is taken away, it is indeed no interference with any fundamental right of his. The first contention must, there fore. fail.

7. Contention No. 2 -- This contention is on the footing that the provision in Article 334 of the Constitution as amended by the 23rd Amendment of the Constitution is ultra vires Art, 15(1) of the Constitution. Article 15(1) provides-

'The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex place of birth or any of them.'

Mr. Dora contends that providing reservation of seats and special representation as has been done in Article 334 of the Constitution is discriminatory between citizen and citizen on the ground of caste and as such the 23rd. Amendment to the Constitution is contrary to the fundamental right in Article 15(1) of the Constitution. This contention has also to fail. Sub-article (4) of that Article provides-

'Nothing in this article or in Clause (2) of Article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.'

This sub-article was introduced by the first amendment to the Constitution after the Supreme Court in the State of Madras v. Sm. Champakam Dorairaian. AIR 1951 SC 226 gave its verdict with reference to a dispute raised in Madras. It is not necessary for us to discuss the matter at length because, a brief reference to the decision of their Lordships of the Supreme Court may sufficiently answer this contention. In Nain Sukh Das v. The State of U. P.. AIR 1953 SC 384, the learned Chief Justice (Patanjali Sastri. C. J.) speaking for the Court stated:

'This constitutional mandate to the State not to discriminate against any citizen on the ground, inter alia, of religion, clearly extends to political as well as to other rights and any election held after the Constitution in pursuance of such a law, subject to Clause (4). must be held void es being repugnant to the Constitution...............'

That there can be no exception to Clause (4) regarding a political right to Clause (1) of Article 15 was recognised, but since C1. (4) was not on the footing of religion, their Lordships indicated that way. The second contention, therefore, is repelled.

8. Contention No. 3-- This contention Is on the footing that the amendment to Article 334 is even if in order, the delimitation is bad. Under Central Act 61 of 1962, the delimitation has been made and on the principles laid down under the Act, the Commission has reserved the Jaganath Prasad Constituency for Scheduled Castes. It has not been indicated before us as to when this delimitation was made. It is quite possible that the Constituency has been continuing as a reserved seat from before and once it is found that the 23rd Amendment is valid, the continuance of reservation would also be valid. That apart investigation into such a dispute is barred under Article 329(a) of the Constitution. We are supported in our view on this aspect of the matter by a decision of their Lordships of the Supreme Court in Meghraj v. Delimitation Commission, AIR 1967 SC 669. Dealing with this aspect of the matter their Lordships have said:--

'In this case we are not faced with that difficulty because the Constitution Itself provides under Article 329(a) that any law relating to the delimitation of constituencies etc. made or purporting to be made under Article 327 shall not be called in question in any Court. Therefore an order under Section 8 or 9 and published under Section 10 (1) would not be saved merely because of the use of the expression 'shall not be called in question in any Court'. But if by the publication of the order in the Gazette of India it is to be treated as law made under Article 327. Article 329 would prevent any investigation by any Court of law.'

As early as 1952, in N. P. Ponnuswami v. Returning Officer Namakkal Constituency, 1952 SCR 218 = (AIR 1952 SC 64) the effect of the bar under Article 329 has been considered and jurisdiction of the High Court under Article 226 of the Constitution has been found to be subject to the bar of that article. The last contention, therefore, must fail.

9. The writ application is accordingly dismissed as devoid of merit. We, however, consider it appropriate in the facts of this case to direct the parties to bear their own costs.

B.K. Ray, J.

10. I agree.


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