Jagat Ram Aryan vs State of Jammu and Kashmir and another

Wazir, C.J.—This is a petition made by Shri Jagat Ram Aryan, a resident of village Matta, Tehsil Kishtwar, District Doda, under Art. 32(2-

A) of the Constitution of India as applied to the State of Jammu and Kashmir and S, 103 of the Constitution of Jammu and Kashmir for issue of a writ of mandamus holding Ordinance No. 1 of 1957 as ultra vires of the Constitution and, therefore, void and requiring respondent No. 2 to postpone the date for holding elections till the final electoral rolls of Doda District are published and thus enabling the petitioner to contest the elections to the legislative Assembly in the State from a constituency to other parts of the State.

The petitioner submits in his petition that he is a permanent resident of the State and as such has a right to be enrolled as an elector in in the electoral rolls of Tehsil Kishtwar in Doda District under Rule 11 of the Jammu and Kashmir Legislative Assembly Rules 2008 and possesses a right to contest elections from any constituency in any part of the State under S. 51 of the Constitution of Jammu and Kashmir and under S. 22 of the Jammu and Kashmir Representation of the People Act, 1957; that the respondent published final electoral rolls of all the constituencies in the State except the Doda District and Leh and Kargil Tehsils and the respondent No. 2 under Notification dated 22-2-1957 published in the Extraordinary Government Gazette of the date appointed 1-3-1957 as the last date for filling nomination papers, 4th March for scrutiny and 25th March for holding elections in Jammu province excluding Doda District and 30th March for holding elections in the Kashmir province; that since the electoral rolls of Doda District and Leh and Kargil Tehsils have not been finally scrutinised and published the petitioner, a resident of village Matta in Doda District, has not been finally declared as an elector so far, and thus is being deprived of his right to contest the election to the State Legislative Assembly from Jammu Tehsil Double Member Constituency; that the Sadar-i-Riyasat issued Ordinance No. 1 of 1957 by which the petitioner has illegally been deprived from contesting elections from the reserved constituency in Jammu Province reserved for scheduled castes and as such the Ordinance is violative of his fundamental rights guaranteed under Art.14 of the Constitution of India and S. 49 of the Constitution of Jammu and Kashmir.

It is, therefore, prayed that Ordinance No. 1 of 1957 be declared ultra vires and the elections be postponed to such date as the final electoral rolls of Kishtwar constituency in Doda District are finalized.

The learned Advocate appearing in support of the petition contends before us that there had been an infringement of the fundamental rights guaranteed to the petitioner under Art. 14 of the Constitution of India. It is argued that by promulgation of Ordinance No. 1 of 1957 by the Sadar-i-Riyasat the petitioner, who has not been so far enrolled as an elector in his constituency in Doda District, is unable to stand as a candidate from any other constituency in Jammu Province reserved for the scheduled castes. This was, according to him, a clear discriminatory legislation and, therefore, contravened the provisions of Art. 14 of the Constitution of India.

It is now well established, as laid down in Budhan Choudhry and Others Vs. The State of Bihar, , that while Art. 14 of the Constitution forbids class legislation, it does not forbid reasonable classification for the purposes of legislation. In order, however to pass the test of permissible classification two conditions must be fulfilled, 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 that differentia must have a rational relation to the object sought to be achieved by the statute in question.

The classification may be founded on different law; namely, geographical, or according to objects or occupations or the like. What is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It is also well established by the decisions of the Supreme Court that Art. 14 condemns discrimination not only by a substantive law but also by a law of procedure.

In the present case the question for consideration is whether the Ordinance can be struck down as being discriminatory legislation. This, in our opinion, cannot be called discriminatory legislation inasmuch as there is no question of any discrimination between the people belonging to the same locality or District to which the Ordinance applies.

Section 22 of the J & K Representation of the People Act, 1957, deals with the qualifications for membership of legislature and reads as follows:

A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly unless-

(a) in the case of a seat reserved for the scheduled castes he is a member of any of those Castes and is an elector for any Assembly constituency in the State; and

(b) in the case of any ether seat, he is an elector for any Assembly constituency in the State.

The impugned Ordinance adds a proviso to S. 22 of the J & K Representation of the People Act and reads as under:-

Provided that where on the date of publication of a notification under sub-section (2) of section 27 calling upon certain Assembly Constituencies to elect members the electoral rolls for any other Assembly Constituencies are not prepared and finally published and the Election Commissioner has recommended that such other constituencies may not be called upon by the said notification to elect members, no person who is not an elector for any of the constituencies called upon to elect members by the said notification shall, notwithstanding anything in this section or in any other provision of this Act, be qualified to be chosen from any of those constituencies to fill a scat in the Legislative Assembly.

Under S. 27, sub-s. (2) the Sadar-i-Riyasat issues a notification calling upon all Assembly constituencies in the State to elect members in accordance with the provisions of the Representation of the People Act and of the rules and orders made thereunder. According to the notification dated 22-2-1957 published in the Extraordinary Government Gazette of the date other constituencies were called upon to hold elections excluding Doda District and the Tehsils of Leh and Kargil. According to the impugned Ordinance as the electoral rolls for Assembly constitutes in the Doda District were not prepared and finally published the petitioner, being a resident of the constituencies in the Doda District, could not stand as a candidate for being elected from any other constituency and so it has been argued on behalf of the petitioner that the Ordinance violates the fundamental rights of the Petitioner embodied in Art. 14 of the Constitution of India.

Ordinance No. 1 of 1957 is applicable to particular areas where it has been found impossible to prepare electoral rolls on account of abnormal climatic conditions prevailing in these areas. The preamble of the Ordinance reads as under:

Whereas certain areas in the State comprising a few Assembly constituencies have been snowbound and difficult to access and have not permitted The normal activities necessary for the preparation and final publication of electoral rolls being pursued there and the preparation of the final publication of the electoral rolls for certain constituencies could not therefore be accomplished along with the preparation and publication of the electoral rolls for the other Assembly Constituencies in the State;

And whereas it is neither expedient nor in the interest of the State to delay elections in the large majority of the Assembly Constituencies merely for the reason that the electoral rolls in a few constituencies could not be finalized;

And whereas it is necessary to place certain matters beyond all doubt;

Therefore in exercise of the powers conferred by section 91 of the Constitution of Jammu and Kashmir the Sadar-i-Riyasat is pleased to make and promulgate the following Ordinance.

From the preamble and from the affidavits which have been filed by the Chief Secretary and the Election Commissioner it is clear that it was in the interest of the State to hold general election to the State Legislature as early as possible. Because of abnormal climatic conditions it was not possible to prepare electoral rolls in the hilly and snow bound areas of Doda District the Sadar-i-Riyasat promulgated an Ordinance by which a Proviso was added to S. 22 of the J & K. Representation of the People Act of 1957 excluding the people of those areas from standing as candidates for any other Assembly constituency.

It was urged that the State could not discriminate between persons belonging to Assembly constituencies in Jammu and the constituencies in Doda District as that would be a negation of equality guaranteed under Art. 14 of the Constitution of India. It was also urged that zonal and territorial discrimination in the application of the impugned Ordinance arbitrarily offended against Art. 14 of the Constitution.

These contentions, in our opinion, are untenable. The Legislature understood and correctly appreciated the needs if its own people which may differ from place to place. A classification maybe based on geographical or on territorial considerations. There is an obvious classification on which the Proviso has been added and that classification is based on reasonable grounds, which are to the effect that due to abnormal conditions electoral rolls could not be Prepared in some constituencies and the interest of the State required that elections should be held in other constituencies without any delay. The State therefore, was competent to legislate on rational basis in respect of any geographical region provided there was no discrimination between the people of that region who were similarly circumstanced.

Reliance may be placed on Shri Kishan Singh and Others Vs. The State of Rajasthan and Others, in which it has been held that ""what Art. 14 prohibited is the unequal treatment of persons similarly situated. Hence, when the contention is that Ss. 81 to 86, Marwar Land Revenue Act, are void as being repugnant to Art. 14 of the Constitution, then before petitioners can claim the protection of Art. 14, it is incumbent on them to establish that the conditions which prevail in other areas in the State of Rajasthan are similar to those which obtain in Marwar. A classification may properly be made on territorial basis if that is germane to the purposes of the enactment. Having regard to the fact that the conditions of tenants vary from locality to locality, a tenancy legislation, such as Ss. 81 to 86 of the said Act, restricted to a portion of a State cannot be held on this ground alone to contravene Art. 14 of the Constitution.

The same view was taken in Sakhawat Ali Vs. The State of Orissa, in which it has been laid down ""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 just relation to things in respect of which the 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.

It may be reasonable to enact laws for different areas in the State provided those laws are made on rational basis as needed in that area and do not offend any provisions of the Constitution. The judgment of the Legislature for making those laws on the basis of some reasonable classification cannot be questioned. The petitioner has not been able to show in the present case that there has been any intentional or purpose-

(sic) discrimination made by the Sadar-i-Riyasat in promulgating the Ordinance. The Sadar-i-Riyasat in the absence of the State Legislature thought it reasonable to exclude the electors from Assembly constituencies of Doda District from standing as candidates from other constituencies on the ground that electoral rolls could not be prepared due to abnormal circumstances prevailing in that District; hence that Ordinance cannot he held to be violative of the provisions of Art. 14 of the Constitution of India.

It has been further contended on behalf of the petitioner that his rights guaranteed under Ss. 49 and 51 of the Constitution of Jammu and Kashmir have been infringed by not preparing the electoral rolls of his District and by promulgating Ordinance No. 1 of 1957.

This contention is equally untenable. S. 51 of the Constitution lays down qualifications for membership of the Legislature and S. 49 provides for the reservation of seats for the scheduled Castes. The mere fact that electoral rolls have not been prepared in the Doha District would not deprive the petitioner of being enrolled as an elector in the constituency for ever. Whenever the electoral rolls will be prepared he will have the right to be included as an elector provided he possesses the necessary qualifications laid down by the legislature in that behalf. The right of an enrolled elector from any constituency to stand as a candidate from any other constituency is a right created by a statute and can be restricted by the statute as well. It is under S. 22 of the Representation of the People Act that a person who is an elector for any Assembly constituency can stand as a candidate to be chosen to fill a seat in the Legislative Assembly. It is clear, therefore, that the right to stand as a candidate for election to the Legislative Assembly from a constituency other than that of the voter is a creation of statute and it is open to the; Legislature to impose reasonable restriction on those rights. In these circumstances it cannot be said that there has been any violation of any right guaranteed by the Constitution.

The learned counsel for the petitioner has urged that in the democratic form of government which has been adopted in all the states comprising the Union it is necessary for the states to afford facilities and opportunities to all the citizens to take part in elections and to stand for the membership of the legislatures. The petitioner, being an educated member of the scheduled casts, would have had a chance to be elected to any other constituency in which there were reserved seats for the scheduled castes if the electoral rolls had been prepared in his home constituency.

It may appeal to be very hard on the petitioner that people from some constituencies including his home constituency, have been excluded from standing as candidates from other constituencies and it would have been desirable if a provision had been inserted in the Ordinance enabling the persons qualified to be electors in Doda District to stand as candidates in the remaining constituencies which have been called upon to elect members but these are the matters for the Legislature to decide and not for the Courts to suggest. But as pointed out above, the mere fact that electors from constituencies in Doda district have been left out would not be sufficient to strike down the impugned legislation. It is for the Legislature to determine what categories it would embrace within the scope of legislation and what it would exclude. As remarked by the Supreme Court it is 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 obtain 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.

As the Legislature is the best judge of the need for different legislation for different areas it is not open to the Courts to sit in judgment over the wisdom and judgment of the Legislature in making the classification.

On the facts and the circumstances of this case we hold that DO case of infringement of fundamental right under Art. 14 has been made out.

This petition is, therefore, dismissed without making any order as to costs.

Shahmiri, J.

I agree.

Kilam, J.

I agree.