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Judgment
Heard Learned Counsel for petitioner in person and Sri B.B. Paul learned Counsel for respondents who had accepted notice on their behalf. He may file counteraffidavit with in one month.
Since the constitutional validity of the Ordinance issued by the President of India dated 18199, by which free railway facilities have been provided to ExMPs, in question issue notice to the Attorney General of India. List the petition on 28499 on which date the petition itself may be finally disposed of.
By means of this petition the petitioner has challenged the constitutional validity of the Ordinance of the President of India dated 18199 providing for free railway facility to Ex MPs.
The petitioner, a former Air Force Officer had earlier filed Writ Petition No. 12586 of 1992 which had been allowed by this Court by the judgment dated 161298, copy of which has been filed as Annexure 1 to the writ petition. In the aforesaid judgment this Court had held that grant of free railway facilities to former Members of Parliament was illegal and in violation of Article 14 of the Constitution. The Court had further observed that in a poor country like ours, such passes cannot be given in this manner and former Members of Parliament are not a privileged class.
It appears that subsequently the impugned ordinance was issued by the President of India.
It appears that the aforesaid judgment passed in Writ Petition No. 12586 of 1992 dated 161298 was never challenged before the Supreme Court and hence it has become final. Therefore, the aforesaid judgment is binding on us, as it is a judgment of a Division Bench.
In our opinion no Ordinance can override the Constitution of India, as the Constitution is the highest law of the land. According to the theory of the eminent jurist Kelsen, in every country there is a hierarchy of laws and the highest law is known as the grundnorm of law. In our country the grundnorm is the Constitution. If any law violates a provision of the Constitution of India, whether the law is made by Parliament or the State Legislature or by any other body, it will be invalid, vide decision of the U.S. Supreme Court in Marbury v. Madison.
Article 14 of the Constitution reads as follows
"The State shall not deny to any person equality before the law or the equal protection of the laws with in the territory of India."
This provision in the Constitution means that in this country there will be no privileged class. In a democracy everyone is equal and no one can claim privilege over and above others.
It may be mentioned that in America, Canada and other Western countries even silting MPs are not provided free railway passes for travelling all over the country, but they get free Railway passes only to visit the Legislature and return home and to visit their constituencies. In our country, on the other hand, what to say of sitting MPs even ExMPs are being provided free railway facilities which they can avail of 365 days in a year along with one attendant and for travelling all over the country throughout their life.
We have already held in Writ Petition No. 12586 of 1992 that this is violative of Article 14 of the Constitution. Hence in view of the aforesaid decision we are prima facie of the opinion that the impugned Presidential Ordinance dated 18199 is violative of Article 14 of the Constitution.
On the facts and circumstances of the case we direct that till further orders the Railway Authorities shall not provide any free railway facility to former Members of Parliament.
Copy of this order will be given to the parties by tomorrow on payment of usual charges.