BAJAL BASAPPA Vs. KESHAVA

JUDGEMENT

(1.) The short question raised by the petitioner in this writ petition under Article 226 of the Constitution relates to the vires of Section 47 of the Madras District Municipalities Act, 1920 (Madras Act No. V of 1920) in so far as it lays down that a leper shall not be entitled to vote in an election to Municipal Council.

(2.) At the Election held by the Mangalore Municipal Council in Mangalore Town, District South Kanara on October 24, 1962 the petitioner and respondents 1 to 5 were candidates for Election from Ward No. 33, Jeppy (North). It is a double member Constituency, one seat being reserved for a Harijan. The petitioner and respondents 1 and 2 are Harijans. The petitioner for the Harijan Seat and respondent No.3 for the General Seat secured the highest number of votes and the Election Officer declared them to have been duly elected, on October 25, 1962. The first respondent filed an Election petition on October 31, 1962 before the election Commissioner and Principal Civil Judge, Mangalore in O. P. No. 109 of 1962 for setting aside the election of the petitioner on the ground that more than 92 lepers had cast their votes in favour of the petitioner and that all those votes were void as those voters were not entitled to vote at the election. The other contentions taken in the petition before the Civil Judge are not relevant. The petitioner resisted that application on the ground that the relevant part of Section 47 of the Madras District Municipalities Act, 1920 was unconstitutional as it contravened the provisions of Art. 14 o the Constitution. The Civil Judge took the view that "exercise of franchise" is governed by Article 19(1)(a)(f) of the Constitution and the provision disqualifying a leper from voting at an election cannot be considered to be an unreasonable restriction as "social opinion" looked with" abhorrence on leprosy". In his opinion the provision, as intended to provide for election to a Local-Self Government institution to a Local-Self Government institution and the classification of lepers as persons not entitled to vote was a reasonable restriction. It is the correctness of this view that is questioned by the writ petitioner before this Court.

(3.) The main ground urged by Mr. Shivashankar Bhat for the petitioner is, the relevant part of section 47 of the Madras District Municipalities Act, 1920 (hereinafter called the Act) contravenes the provisions of Article 14 of the Constitution, as denial of the right to vote to a leper amounts to violation of 'equality before the law' or the 'equal protection of Law' within the territory of India by the State contrary tot he guarantee accorded by Article 14 of the Constitution. In support of this argument, he drew our attention to Section 98 (e) of Mulla's Hindu Law (1966 Edn), where it is laid down that "leprosy when it is of such a virulent type that it is incapable of cure and renders him unfit for social intercourse", excludes a leper from inheritance. He also read section 10(1)(c) of the Hindu Marriage Act, 1955 (Central Act 25 of 1955) which enables a party to a marriage to present an application for a decree for judicial separation on the ground that the other party to the marriage had been suffering from a virulent form of leprosy for a period of not less than one year immediately proceding the presentation of the application. On the basis of these provisions it was submitted that the Act made no distinction between degree of virulance of the disease and that categorical exclusion of lepers from voting without such distinction was wholly void. The learned Advocate further referred to the legislative policy and submitted that the unconstitutionality of the provision was apparent inasmuch the same Legislature did not disqualify a leper from voting as it had done under the Act while exacting, S. 30 of the Madras City Municipality Act, 1919 (Madras Act No. Iv of 1919). Section 50 of the latter enactment provides that no person who is of unsound or a deaf-mute shall be qualified to vote and no person shall be qualified to vote during the period for which he has been disqualified by judicial order under section 71 and still in force. Section 71 refers to conviction under section 66 of the Act and under Chapter IX-A of the Indian Penal Code. This point of distinction in indentical provisions of two enactments of the same Legislature may be a relevant circumstances for consideration of the soundness of legislative policy but not a determinative factor for striking down the impugned provision.