Gian Chand vs State of Jammu and Kashmir and Others

Shahmiri, J.—This is a petition under Article 32(2-A) of the Constitution of India, as applicable to the State of Jammu and Kashmir under

the Constitution (Application to Jammu and Kashmir) Order, 1954. The petition seeks to challenge Section 9-A of the Municipal Act (Act VIII of

2008) as amended, by which Respondent No. 1, namely the State Government, was given the power to appoint Councillors not exceeding four in

number from among the backward classes so declared by the Government from time to time and commercial interests. It is played that this

provision contained in Section 9-A of the aforesaid Act be declared ultra vires the Constitution and a writ of mandamus or any other order or

direction be issued to restrain Respondents Nos. 2 to 5, who have been appointed members of the Jammu Municipal Council by Respondent No.

1 in pursuance of the aforesaid provision, from acting as Councillors of that Council

It is contended in paragraphs 7, 8 and 9 of the petition ""That the nomination of candidates from backward classes without election on the basis of

reserved seats in that community is in breach of Article 14, that the nominations as such and particularly the nomination of a Councillor representing

commercial interests is against the provisions of Article 15 of the Constitution of India and that the provision of nomination is inconsistent with the

provisions of Arts. 14 and 15 of the Constitution of India inasmuch as the members of backward classes, of which the Petitioner is one, have been

denied equality and the citizens representing other commercial interests are discriminated against."" On behalf of the Respondent No. 1, the

following objections inter alia, have been taken:

That the scope of the remedy under Article 32 (2-A) of the Constitution of India, as applied to the State is restricted to the enforcement of

fundamental rights and cannot be utilized for other purposes and the petition is not maintainable as it is not directed against the violation of any

fundamental right;

That the right to stand for election is neither a civil right nor a fundamental right but is a creature of statute and as such subject to the limitations

imposed by it.

It was denied that the nomination by the Government of members representing backward classes and commercial interests contravened the

provisions of Article 14 and Article 15 of the Constitution of India. It was also stressed that the impugned amendment was based on reasonable

classification and was made merely to safeguard the interests of backward classes and commercial interests who have peculiar problems of their

own.

We have heard the learned Counsel for the parties at length. Mr. Chatterji on behalf of the Petitioner has conceded that there is no direct

authority on the point that power of nominating representatives of a specified class of citizens to a representative institution like a local authority or

a legislature conferred by the legislature on the Government conflicts with Article 14 or any other article of the Constitution. An attempt, however

has been made to argue that the present case falls within the rule laid down in the The State of West Bengal Vs. Anwar Ali Sarkar, which in turn is

based on Yick Wo v. Peter Hopking (1886) 118 U.S. 356 (B).

The power of legislature to classify groups is not denied, but what is objected to is that classification should be arbitrary and that it should have no

reasonable basis. What is stressed is that the distinction should be based on some qualities or pecularities which are found in all the persons

grouped together and which are conspicuous by their absence in others who are excluded from that group. These attributes or peculiarities should

bear a reasonable relation to the object sought to be achieved by the Act. The learned Counsel for the Petitioner has drawn our attention to the

two broad principles upon which this classification should rest and which in the words of Mr. Justice S.B. Das, the present Chief Justice of the

Supreme Court, (Vide paragraph 54 at p 93 of the Supreme Court judgment referred to above) are as follows:

In order to pass the test, two conditions must be fulfilled, namely, (1) that the classification must be founded on an intelligible differentia which

distinguishes those that are grouped together from others and (2) that the differentia must have a rational relation to the object sought to be

achieved by the Act. The differentia which is the basis of the classification and the object of the Act are distinct things and what is necessary is that

there must be a nexus between them. In short, while the Article forbids class legislation in the sense of making improper discrimination by

conferring privileges or imposing liabilities upon persons arbitrarily selected out of a large number of other persons similarly situated in relation to

the privileges sought to be conferred or the liability proposed to be imposed, it does not forbid classification for the purpose of legislation, provided

such classification is not arbitrary in the sense I have just explained.

In this case the State of West Bengal had come in appeal before the Supreme Court from a judgment of the Calcutta High Court which had

quashed the conviction of the Respondent by a Special Court established u/s 3, West bengal Special Courts Ordinance, which was replaced later

on by the West Bengal Special Courts Act. The Full Bench of the Calcutta High Court had held that the provision in the Act which empowered the

State Government to direct that certain offences or classes of offences or classes of cases should be tried by a Special Court was discriminatory

and violated Article 14 of the Constitution in so far as it purported to vest in the State Government an absolute and arbitrary power to refer to a

Special Court for trial any cases which must include an individual case.

This view of the Calcutta High Court was upheld by a majority of the Judges of the Supreme Court. It was held that the impugned Act completely

ignored the principle of classification followed in the Criminal Procedure Code and proceeded to lay down a new procedure without making any

attempt to particularise or classify the offences or cases in which it was to apply. It was also found that the impugned Act laid down procedure

which was less advantageous to the accused than the procedure prescribed in the Code of Criminal Procedure. In the Act it had been stated that

the object for which the new procedure had been laid down was to achieve speedier trial of the offences which were to be tried under this

procedure. The Supreme Court held that the object was too vague, uncertain and elusive criterion to form the basis of a valid and reasonable

classification. In the opinion of Mr. Justice S.R. Das Section 5(1), West Bengal Special Courts Act, was bad, not because it empowered the

Government to direct classes of offences or classes of cases to be tried by a Special Court, but because it authorised the Government to direct

cases to be tried by the Special Court.

In paragraph 64 of the judgment his Lordship stated. ""There is ostensibly no attempt at, or pretence of, any classification on any basis whatever.

The notifications simply direct certain 'cases' to be tried by the Special Court and are obviously issued under that part of Section 5(1) which

authorises the State Government to direct 'cases' to be tried by the Special Court. The word 'cases' has been used to signify a category distinct

from 'classes of cases'. The idea of classification is, therefore, excluded. This means that this part of the sub-section empowers the State

Government to pick out or select particular cases against particular persons for being sent up to the Special Court for trial.

The decision in this Supreme Court case, as already stated, is based on the famous United States' case (1886) 118 U.S. 356 (B). In that case the

question to be determined was whether the provisions of Ordinances of the City and County of San Francisco were invalid by reason of their'

being in conflict with the equality protection clause. The ordinances in question laid down that it would be unlawful for any person to engage in

laundry business within the corporate limits without having first obtained the consent of the board of supervisors, except the same be located in a

building constructed either of brick or stone.

The facts of the case as stated in the judgment of Mr. Justice Mathews of the United States Supreme Court show that these ordinances were

aimed at Chinese laundry men who lived in wooden huts and thus they were shut out from doing their business as launderers. It was held: ""No

reason whatever, except the will of the supervisors, is assigned why they should not be permitted to carry on, in the accustomed manner, their

harmless and useful occupation, on which they depend for a livelihood. And while this consent of the supervisors is withheld from them and from

two hundred others who have also petitioned, all of whom happened to be Chinese subjects eighty others not Chinese subjects, are permitted to

carry on the same business under similar conditions. The fact of this discrimination is admitted. No reason for it is shown, and the conclusion

cannot be resisted, that no reason for it exists except hostility to the race and nationality to which the petitioners belong, and which in the eye of the

law is not justified."" Thus it was clearly a denial of the right conferred by equality protection clause which is known as Section 1 of the Fourteenth

Amendment to the Constitution of United States, (ii) Another case to which a reference has been made by Mr., Chatterji is L. A Nixon v. C.C.

Herndon and Charles Porras (1927) 71 Law Ed. 759, equivalent to 273 U.S. 536 (C). This was a case in which Negroes were debarred from

participating in a primary election of a political party in the State of Texas, U.S.A. It was held that this amounted to racial discrimination and was

contrary to the Fourteenth Amendments to the Constitution of United States guaranteeing the equal protection of the laws. It was stated in the

course of the judgment by Mr. justice Holmes that the Fourteenth Amendment, ""while it applies to all, was passed, as we know, with a special

intent to protect the blacks from discrimination against them...that Amendment not only gave citizenship and the privileges of citizenship to persons

of colour, but it denied to any State the power to withhold from them the equal protection of the laws....

What is this but declaring that the law in the States shall be same for the black as for the white; that all persons, whether coloured or white, shall

stand equal before the laws of the States, and in regard to the coloured race, for whose protection the Amendment was primarily designed that no

discrimination shall be made against them by law because of their colour.

(iii) The learned Counsel for the Petitioner has also relied on another United States case Gulf, Colorado and Santa Fe Railway Company v. W.H.

Ellis (1897) 135 U.S. 150 (D). In this case a statute of the State of Texas imposing an attorney fee not to exceed ten dollars in addition to costs,

upon railway corporation omitting to pay certain claims within a certain time after presentation, which applies to no other corporations or

individuals, was held unconstitutional as denying to the railway corporation the equal protection of the laws. The net effect of this judgment was that

a classification to relieve a law from the charge of a denial of equal protection cannot be made arbitrarily, but must be based upon some difference

which bears a just and proper relation to the attempted classification.

We have studied all these cases with care as the analysis of these cases given in the preceding paragraphs would indicate. But we are unable to

find how these cases support the proposition that the power of nominating representatives of backward classes or commercial interests conferred

on the Government by the State Legislature u/s 9-A of Act VIII of 2008 can be held to come in conflict with Article 14 of the Constitution. The

principle that a Legislature can classify is not and cannot be denied. All that these cases emphasise is that the classification must have some rational

basis and this basis of classification must bear a reasonable relation to the object sought to be achieved by the Act.

The power of Legislature to classify citizens as backward classes or having commercial interests is not hit by Arts. 14 and 15 of the Constitution.

Both these classes have peculiar qualities and attributes by which these can be differentiated from other classes of citizens. The object of the Act is

not to deprive them of the right to vote which has been conferred on adult citizens of a particular age by the statute. Like the other citizens

possessing the necessary qualifications they are equally entitled to vote in the general constituencies. But in addition to this right which the statute

confers on individual citizens the Legislature in its wisdom has thought it necessary to give special representation in the Municipal Council to these

two classes.

It is not difficult to visualize why the Legislature discarded the idea of creating special constituencies by which representatives of these classes could

be returned by election. The creation of these special constituencies may not have been feasible or practicable. The line of argument that Mr.

Chatterji pursued did not in fact attack the basis of classification or the creation of these special interests. But his main grievance was that the

power of the Government to nominate representatives of these classes was very wide and arbitrary power in so far as they could pick and choose

and this amounted to a violation of the spirit of the Constitution.

A careful examination of the case would however, reveal that if the power of making this classification is not impugned, the power of the

Government to nominate representatives is not open to any serious objection. The spirit of the Indian as well as the State Constitution is not

opposed to the principle of nomination. Under Article 80 of the Constitution of India 12

members to the Rajya Sabha are nominated by the President from amongst the persons having special knowledge and practical experience in

respect of literature, science, art and social service. Similarly under Article 171(3)(2) Governors in the States where there are Upper Chambers

have the power of nominating certain number of members to these Chambers.

Under Section 50(6) of the Constitution of Jammu and Kashmir State, 6 members can be nominated to the Legislative Council by the Sadar-i-

Riyasat, 3 of whom are to be persons belonging to any of the socially or economically backward classes. As the, President, the Governors of the

States and the Sadar-i-Riyasat act on the advice of their respective Governments, this power of nomination is practically enjoyed by these

Governments. If the power of the Government to nominate representatives to the Upper Chamber in the Centre and in certain States comprising

the Union is permissible by the Constitution itself, it is idle to contend that the power of the Government to nominate representatives of certain

classes specified by the Legislature in a Municipal Council or a local body is unconstitutional.

A further examination of the cases relied upon by the learned Counsel, for the Petitioner would show that in AIR 1952 SC 75(A) the main

objection urged against Section 5(1), West Bengal Special Courts Act, was that the idea of. classification was in fact excluded and it was felt that

the section enabled the Government to pick or select particular cases against particular persons being sent to the Special Courts for trial. This

certainly the Court considered involved discrimination as it ignored the principles of classification laid down in the Criminal Procedure Code and

prescribed a procedure which was less advantageous to the accused than the procedure prescribed in the Code.

The result of this discrimination might well have been that, while for much lighter offences the procedure prescribed in the Code of Criminal

Procedure which was much more advantageous to the accused would be followed, in the case of serious offences involving capital punishment the

procedure in the West Bengal Special Courts Act which was much less favourable to the accused would operate. We are unable to find that

Section 9-A of the Municipal Act impugned in this case is liable to attack on the ground of any such discrimination. In this connection the learned

Advocate General has drawn our attention to two more Supreme Court cases, Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others,

and Kathi Raning Rawat Vs. The State of Saurashtra, . In Chiranjit Lal Chowdhuri Vs. The Union of India (UOI) and Others, , the Govenor

General of India, acting u/s 42, Government of India Act. 1935, promulgated an Ordinance, namely Ordinance 11(2) of 1950, concerning the

Sholapur Spinning and Weaving Company, Limited, the net result of which was that the Managing Agents of the said Company were dismissed

and the Government was authorised to nominate directors and the rights of the shareholders of the Company were curtailed in so far as it was

made unlawful for them to nominate or appoint any director and no resolution, passed by them could be given effect to without the sanction of the

Government and so on and so forth.

The Ordinance was subsequently replaced by an Act of Parliament which substantially reproduced the provisions of the Ordinance. The validity of

the Ordinance and the Act was challenged on the ground that it was not within the legislative competence of the Governor General and Parliament

respectively and that the Ordinance and the Act infringed the fundamental rights of the share-holders as well as the Company and were, therefore,

void and inoperative. It was also urged that the Ordinance and the Act violated Article 14 of the Constitution. Both the Ordinance and the Act

were upheld and the majority view was that these in no way violated Article 14 of the Constitution. In the course of the judgment the late Mr.

Justice Mukherjea observed:

It is quite true that the Legislature has, in this instance, proceeded against one company only and its shareholders; but even one corporation or a

group of persons can be taken as a class by itself for the purpose of legislation, provided it exhibits some exceptional features which are not

possessed by others. The Courts should prima facie lean in favour of constitutionality and should support the legislation if it is possible to do so on

any reasonable ground, and it is for the party who attacks the validity of the legislation to place all materials before the Court which would go to

show that the selection is arbitrary and unsupportable."" In AIR 1952 SC 123 (F) the main point for decision was whether Section 11, Saurashtra

State Public Safety Measures (Third Amendment) Ordinance, was hit by Article 14 of the Constitution.... Section 11 of the Ordinance ran as

follows:

A Special Judge shall try such offences or class of offences or such cases or classes of cases as the Government of the United State of

Saurashtra may, by general or special order in writing, direct.

The majority of the Judges held that this section did not conflict with Article 14. The late Mr. Justice Mukherjea in the course of his judgment

observed as follows:

The nature and scope of the guarantee that is implied in the equal protection clause of our Constitution have been explained and discussed in more

than one decision of this Court and do not require repetition. It is well settled that a Legislature for the purpose of dealing with the complex

problems that arise out of an infinite variety of human relations, cannot but proceed upon some sort of selection or classification of persons upon

whom the legislation is to operate.

The consequence of such classification would undoubtedly be to differentiate the persons belonging to that class from others, but that by itself

would not make the legislation obnoxious to the equal protection clause. Equality prescribed by the Constitution would not be violated if the statute

operates equally on all persons who are included in the group, and the classification is not arbitrary or capricious, but bears a reasonable relation to

the objective which the legislation has in view.

The Legislature is given the utmost latitude in making the classification and it is only when there is a palpable abuse of power and the differences

made have no rational relation to the objectives of the regulation, that necessity of judicial interference arises.

It may, however, be added that the contention of the counsel for the State in that case that the provisions of the Saurashtra Ordinance were in

some respects distinguishable from the provisions of the West Bengal Special Courts Act did not find favour with Mr. Justice Mahajan and his

Lordship observed:

This section is in the same terms as. Section 3 West Bengal Special Courts Act. It only empowers the State Government to constitute special

Courts for any area or for the whole of the State of Saurashtra; in the like, manner in which Section 3 empowered the West Bengal Government to

constitute special Courts for the whole of the State or any particular area....

Mr. Justice Mahajan, therefore, held that Section 11 of the Saurashtra Ordinance was unconstitutional. It appears that the two cases cited by the

learned Advocate General go a step further and according to them in certain circumstances classification may be held valid even though only one

corporation or one individual may constitute a class.

(ii) (1886) 118 US 356 (B), also does not cover the point. The case clearly involved racial discrimination inasmuch as the Ordinance-was solely

directed against the Chinese launderers who Were shut out of their employment. The statute in that case also came into clash: with the treaty

obligations of the United States. No such discrimination is present in the case before us.

(iii) The real point in (1927) 273 US 536 (C) was that the law in the! states was to be the same for the black as for the white and a Negro could'

not be deprived of his right of participating in a primary election of a political party because of his colour. In the present case the persons grouped

in the backward class or in the class having commercial interests are not deprived of the right to vote.

They can do so in the general constituencies in which they reside, provided they possess the qualifications required by the statute. We accept the

contention of the learned Advocate General that the right to vote or to stand as a candidate for election is not a fundamental right. It is a right

created by a statute and subject to its limitations. In this connection reference may be made to N.P. Ponnuswami Vs. Returning Officer, Namakkal

Constituency and Others, and Sakhawat Ali Vs. The State of Orissa, .

(iv) (1897) 165 US 150 (D) is equally irrelevant to the present case. In that case a special fiscal burden was levied on railway corporations, while

all other corporations and individuals,, were free from that burden. Here instead of' levying any burden on these classes they have been given

advantage of having their special representatives in the Municipal Council. Their right of participating in the voting in general constituencies is not

barred.

Having disposed of the cases cited by the ""learned Counsel for the Petitioner we may refer to A.R.V. Achar Vs. Madras State and Another,

which has been cited before us by the learned Advocate General. This was a Letters Patent Appeal against the judgment of Mr. Justice Subba

Rao. The judgment of Mr. Justice Subba Rao was affirmed. Section 45(2)(a) read with Section 46(2), Madras Cit Municipal Act (4 of 1919),

was impugned on the ground that this gave power to the Government to fix divisions for members belonging to the reserved class for whom such

seats were to be reserved. u/s 46 (2) of the Act each of the divisions thus notified by the Government were to elect two councillors, one of whom

was to be a member of the reserved class. Paragraph 17 of the judgment runs thus:

Even if it did, we think there is no substance in the contention. It cannot be said that reservation of seats 'per se' is unconstitutional. Indeed the

Constitution itself provides for reservation of seats. Once it is conceded that reservation itself is not illegal, there must be some device to give effect

to the scheme of reservation. Any scheme will, in some way or other, be open to the attack of discrimination. If only members of the class for

which the reservation is made are allowed to vote at an election for that seat, such persons would also have two votes, namely a vote in the general

constituency on the basis of adult franchise and another vote as a member of the class for which reservation has been made. This kind of

discrimination is inevitable and inherent in the very scheme of reservation. There is nothing unconstitutional in this.

The Advocate General has also referred to a passage in the judgment of Subba Rao J. which it would be of interest to quote here:

It is for the Legislature elected on adult franchise to consider whether it is necessary to retain this special representation or to democratize our local

bodies. It is not for me to say. In framing the Constitution, they may make it a democratic institution based on adult franchise, or one based on

functional representation. They may provide for the nomination of persons representing commercial or other interests on the body or for the

election of representatives of such a body in a prescribed manner. The qualification for membership is for them to prescrible. I must, therefore,

hold that the Petitioner has failed to establish that the classification adopted by the: legislature has no reasonable basis or has no relation to the

purpose of the legislation.

For the foregoing reasons we hold that Section 9-A, Jammu and Kashmir Municipal Act (VIII of 2008) is not hit by Art, 14 of the Constitution.

We, therefore, dismiss this application. We, however, do not make any order as to costs.

Wazir, C.J.

I agree.

Kilam, J.

I agree with the judgment that has been proposed by my brother Shahmiri, J. though I cannot help observing that the point is not free from

difficulty. Under Article 14 of the Constitution of India all citizens have been guaranteed equality before the law and equal protection of law. Now

in the present case, the Government while exercing its powers u/s 9(A) of the Municipal Act have appointed four Municipal councillors from

amongst the backward classes and commercial interests to represent these interests. The argument advanced by the petitioner's learned Counsel is

that this section of the Municipal Act which vests a naked and arbitrary power in the Government to make nominations at their sweet will and

pleasure is hit by Article 14.

The principle has been enunciated in a number of authorities that it will not be a reasonable classification, but an arbitrary selection where the

selection is left to the absolute and unfettered discretion of the executive Government with nothing to guide or control their actions. But then it has

been held elsewhere that where the legislative policy is clear and definite and as an effective method of carrying out that policy a discretion is

vested by the statute in a body of administrators or officers to make selective application of the law to certain classes or groups of persons, the

statute itself cannot be condemned as a piece of discriminatory legislation.

The principle has further been stretched in some authorities that the discretion that is conferred upon official agencies in such circumstances is not

an unguided discretion. But then according to these very authorities the discretion has to be exercised in conformity with the policy to effectuate

which the direction is given, and it is in relation to that objective that the propriety of the classification will have to be tested.

Now it has to be seen as to which out of two principles enunciated will be applicable to the facts of the case. Ordinarily it would appear that if

there is an arbitrary power vested in the Government to pick and choose any person from a class or group for a particular appointment or

nomination, that would be hit by Article -14 of the Constitution. But I have not been able to find an authority on all fours with the present case. As

against this, there is a passage in the judgment of Subba Rao, J., which was confirmed in appeal in AIR 1954 Mad 563 (I). This passage may be

reproduced as under:

It is for the Legislature elected on adult franchise to consider whether it is necessary to retain this special representation or to democratize our local

bodies. It is not for me to say. In framing the constitution, they make it a democratic institution based on adult franchise, or one based on functional

representation. They may provide for the nomination of persons representing commercial or other interests on the body or for the election of

representatives of such a body in a prescribed manner. The qualification for membership is for them to prescribe....

According to law as it is in force, there is always a presumption in favour of the constitutionality of a legislative enactment. This presumption

can of course be rebutted if the Constitution warrants such a course. But as already pointed above, the passage just quoted above from the

judgment of Subba Rao, J. lays down that the Legislature can provide for nomination for the representation of commercial or other interests. Under

these circumstances, I agree with the judgment to which the Hon'ble Chief Justice and my brother Shahmiri J. are a party.