GIAN CHAND Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is a petition under Art. 322 -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 S, 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 prayed that this provision contained in S. 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 Art. 14, that the nominations as such and particularly the nomination of a Councilor representing commercial interests is against the provisions of Art. 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:

(2.) 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 Art. 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 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 A 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. R. 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 under 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 Art. 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 S. 51, 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 S. 51 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 subsection 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 super -visors 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 petitioner a 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 S. 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 165 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.

(3.) 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 under S. 9 -A of Act VIII of 2008 can be held to come in conflict with Art. 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 in 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 tight 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. Art 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 Art. 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 S. 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.