LEARNING SERIES FOR ORDINARY INDIANS AND PEOPLE OF INDIA – 

Dear fellow Indians and brothers and sisters of India and world,

It the name of constitution, Indian people act, and Indian judiciary acts, Indian penal code acts etc.  the people of India have right to reject quit or reject any  body to serve them.  PATHETIC IS –  THE SYSTEM IS PEOPLE, DEMOCRACY, CONSTITUTION, VOICE OF THE PEOPLE AND ACTIONS OF PEOPLE ETC.  IF PEOPLE / HUMAN BEINGS / INDIVIDUALS ARE FAILING THEIR VALUES AND ETHICS FOR SURVIVAL BY CHEATING EACH OTHER AT ALL LEVELS OF RELATION SHIPS – FAMILY , FRIENDS, BUSINESS, GOVERNMENT , DEMOCRACY – NOT VOTING FOR RIGHT PEOPLE – BUT FOR CRIMINALS , CORRUPT ETC .

HOW THIS DEMOCRACY AND COUNTY WILL SURVIVE.

IF YOU LOOK ALL ACTS – LIKE CONSTITUTION ETC WHERE WRITTEN BASED ON HOW SOCIETY / PEOPLE SURVIVED IN EARLY 1940 TO 1960’S.  BASED ON THIS AGE –  THE RULES PREPARED. STILL WE ARE USING THE SAME TO EXPLOIT THE SYSTEM OR DEMOCRACY FOR POWER. EVEN THOUGH THE AMENDMENTS ARE GETTING ADDED BUT THEY ARE NOT BASED ON PRESENT SOCIETY REQUIREMENTS AS PEOPLE –  PARLIAMENT ITSELF IS REPRESENTED BY  THE PEOPLE WHO ARE NOT FOR SOCIETY.

IF YOU FOLLOW ALL RULES CONSTITUTION, ELECTION, PARLIAMENT SYSTEM, AT ALL STAGES WE ARE VIOLATING. If we follow this all CANDIDATES who are contesting for elections SHOULD be disqualified or even barred from elections or they can be recalled at any time by the people. AS PEOPLE ARE NOT CHANGING THE POLITICAL / BUREAUCRATS/INDIAN ADMINISTRATION SERVICE/INDIAN POLICE SERVICE/ BUSINESS / SOCIETY WONT CHANGE.

IN EVERY CIVIL SOCIETY THERE WILL BE GOOD, BAD AND CRIMINALS.  NOW CRIMINALS AND BAD ARE RULING. IT IS RESPONSIBILITY OF THE GOOD PEOPLE IN CIVIL SOCIETY TO REJECT THE CRIMINALS AND PEOPLE WHO ARE CHEATING SYSTEM FOR POWER AND MONEY.

THE DESTINY, DREAM OF INDIAN PEOPLE SHOULD BE GREAT INDIA AND GOOD INDIA, SAFETY AND FREE CORRUPT INDIA NOT FAILED INDIA TO BECOME ANOTHER AFGHANISTAN / USSR / IRAQ/IRAN / IS RIAL / SOMALIA / SYRIA / OLD SRI LANK.

EVERY DEATH OF  – INDIAN SOLDER, TERRORIST VICTIM ,  POLITICAL MURDER, EFFECTED FAMILIES DUE TO CORRUPTION , EDUCATED AND KNOWLEDGE PEOPLE WHO ARE  EFFECTED BY EXPLOITATION  IN THE NAME OF DIVIDE RULE BASED ON CASTE / CREED / RELIGION / REGION / MINORITY ( INDIA IS ONE OPEN FOR ALL AND IS BORN AS HINDUSTAN  – HINDU COUNTRY  SHOULD NOT GO WASTE AT THE COST OF OTHERS SURVIVAL. ALL THESE PEOPLE ARE ALSO PART OF THE CIVIL SOCIETY.

Hinduism   – The earliest evidence for prehistoric religion in India date back to the late Neolithic in the early Harappan period (5500–2600 BCE).[15][16] The beliefs and practices of the pre-classical era (1500–500 BCE) are called the “historical Vedic religion“. The Vedic religion shows influence from Proto-Indo-European religion.[17][18][19][20] The oldest Veda is the Rigveda, dated to 1700–1100 BCE.[21] The Vedas center on worship of deities such as Indra, Varuna and Agni, and on the Soma ritual. Fire-sacrifices, called yajña are performed by chanting Vedic mantras . Other notable characteristics include a belief in reincarnation and karma, as well as in personal duty, or dharma.

IN HINDUSTAN RULES . A REGULATION, VALUES, ETHICS SERVING PEOPLE IS NOTHING BUT SERVING GOD. EVERY HUMAN BEING IS GOD. THAT IS WHY HINDUISM GOT LAKHS GODS WHO SERVED PEOPLE AND SAFE GUARDED PEOPLE FORM CRIMINALS, CROOKS, TERRORISTS ETC. THESE PEOPLE ARE NOTHING BUT  DEMONS, DEVILS, AND SATAN , ETC FOR DIFFERENT FAITHS.

THE FAITHS ARE CREATED TO MAKE ALL TYPES OF PEOPLE TO UNDER STAND RULES AND REGULATIONS IN VARIOUS MODELS / CASE STUDIES ETC SUCH THAT THEY CAN UNDER STAND AND HAVE FAITH TO SAFE GUARD SOCIETY. BUT THESE RULES AND REGULATIONS WHERE CHANGED OR MODIFIED BASED ON TIME AND SOCIETY REQUIREMENTS FOR SURVIVAL OF LEADERS WHO WANT POWER ETC.

FOR EXAMPLE IN HINDU RELIGION PEOPLE LIGHT – OIL / COW GEE – COTTON, CLOTH. IN OTHER PARTS THEY USE CANDLE. FOR  EXAMPLE IN TEMPLES PEOPLE WILL BE ASKED TO TAKE  SACRED WATER –  COCONUT , WATER AND MILK  ETC AFTER PRAYING GOD LIKE THIS IN CHURCH PEOPLE WILL HAVE BREAD AND HONEY OR SACRED WATER ETC.

IN EVERY HINDU / BUDDHA TEMPLE WE HAVE DOOP OR FRAGRANCE STICKS AND OTHER FORMS FOR GOOD SMELL ETC AND FLOWERS WILL BE IN PLACE. THESE ECHO SYSTEMS ARE CREATED SUCH THAT PEOPLE WHO ARE WORSHIPING WILL HAVE PLAIN / PEACEFUL MIND ETC.

MAHABHARATA / RAMAYANA, BIBLE, KORAN ETC ARE RULES AND REGULATIONS FOR PEOPLE TO LIVE HAPPILY AND SERVE FELLOW HUMAN BEINGS ON EQUALITY BASIS. THIS IS ALSO CONSTITUTIONS.

HISTORY – JERUSALEM  / THE BIG MOSQUE OF TURKEY ETC  FIGHT BETWEEN JEWS / MUSLIMS/ CHRISTIANS  AND DIVISIONS  AND DISTRACTIONS OF SUNNI / SHIA SOCIETIES , PROTESTANTS/ CATHOLICS  ETC   SHOWS HOW HUMAN RACE IS DESTROYING THEM SELF’S FOR SUPERIORITY AND CONTROL.

INDIA / HINDUSTAN/HINDUS NEVER INVADED OR FOUGHT FOR CONTROL OF RELIGION AND RACE OR CASTE INTERNALLY OR EXTERNALLY. BUT EXTERNAL FORCES ARE CREATING DIVISIONS FOR CONTROL. USING THIS AS OPPORTUNITY THE CRIMINALS / POLITICAL ESTABLISHMENT/ IN PRESENT INDIAN SYSTEM FOR POWER ARE DIVIDING NATION BY EXPLOTATION AND SENTIMENTS OF PEOPLE FOR POWER AND SUPERIORITY,

WITH THIS BACK GROUND THE EXTERNAL FORCES ARE CHALLENGING 1.2 BILLON INDIANS WHO ARE ONE NATION ONE RELIGION AND ONE SAFE PLACE.  OUR CIVILIZATION IS MATURIED 1000 OF YEARS OF BACK BEFORE ALL CIVILIZATIONS WHERE MATURED OR GROWN. WITH THIS BACK GROUND WE ARE NOT INVADING OTHERS OR FIGHTING FOR RELIGION AND CONTROL OF RELIGIOUS PLACES OR FIGHTING ETHNIC WARS AS WE ARE CIVILIZED NATION. THIS IS TRUE HINDUSTAN AND INDIANS. EVERY INDIAN SHOULD BE PROUD WHAT WE ARE FIRST THINK LOCALLY, LEARN OUR VALUES AND RULES (MAHABHARATA / RAMAYANA, VEDAS, YOGA ETC) AND SERVE OTHERS ALSO WHO ARE ALSO ON SAME PATH BUT DIFFERENT DIRECTION AND DIFFERENT ROUTES.

UNDER CONSTITUTION ALL ARE SAME IT IS KARMA AND DHARMA OF PEOPLE / HUMAN BEINGS SHOULD RUN CIVIL SOCIETY AND SAFE GUARD SOCIETY AND COUNTRY.  .

INDIA IS KARMA AND DHARMA BOOMI – AND ALL INDIANS SHOULD SAFE GUARD FELLOW INDIANS AND HUMAN BEINGS ALL OVER THE WORLD THROUGH DHARMA AND KARMA .

Constitution_of_India

your fundamental rights

 The Constitution, in its current form (September 2012), consists of a preamble, 25 parts containing 463 [Note 1] articles, 12 schedules, 2 appendices[10] and 97 amendments to date (latest being related to co-operative societies added in part IX(B) in 2012).[11] Although it is federal in nature it also has a strong unitary bias.

At the time of commencement, the constitution had 395 articles in 22 parts and 8 schedules. It consists of almost 80,000 words. It took 2 Years 11 Months and 18 days to build it.

It is the longest[1] written constitution of any sovereign country in the world, containing 448 [Note 1] articles in 22 parts, 12 schedules and 97 amendments. Besides the English version, there is an official Hindi translation.

The architects of Indian constitution were most heavily influenced by the British model of parliamentary democracy. In addition, a number of principles were adopted from the Constitution of the United States of America, including the separation of powers among the major branches of government, the establishment of a supreme court. The principles adopted from Canada were Unitary government with strong center and also distribution of powers between central government and provinces along with placing residuary powers with central government.From Ireland, directive principle of state policy was adopted. From Germany the principle of suspension of fundamental rights during emergency was adopted. From Australia the principle of Concurrent list and Language of preamble was adopted. The Assembly met in sessions open to the public, for 166 days, spread over a period of 2 years, 11 months and 18 days before adopting the Constitution, the 308 members of the Assembly signed two copies of the document (one each in Hindi and English) on 24 January 1950. The original Constitution of India is hand-written with beautiful calligraphy, each page beautified and decorated by artists from Shantiniketan including Beohar Rammanohar Sinha and Nandalal Bose. Two days later, on 26 January 1950, the Constitution of India became the law of all the States and territories of India. Rs. 1,00,00,000 was official estimate of expenditure on constituent assembly. The Constitution has undergone many amendments since its enactment

How constitution is misused by Indian political systems by Amendments by taking base of constitution in 1950’s.  2013 is supposed to be modern India but where we are everybody knows.  STILL DIVISION and DIVIDED POICY, TWO LAWS POLICY.

MODREN INDIANS AND THE FUTURE YOUTH OF INDIA SHOULD CREATE ONE INDIA , ONE NATION ONE JUSTICE , ONE TRUTH , ONE OPEN VOICE , ONE DREAM , FREE AND EQUAL INDIA, ONE RELIGION – PEACE AND PROSPERTITY WITH DIFFERENT PATHS –  HINDHU,MUSILIM AND CHRISTIAN , RIGHT TO REJECT AND ACCEPT POLTICAL PEOPLE AND RELGIONS RATHER THAN DICTATORSHIP, CONVERSTION.

Reservation :  Article 15(4)

The Constitution of India states in Article 15(4): “All citizens shall have equal opportunities of receiving education. Nothing herein contained shall preclude the State from providing special facilities for educationally backward sections (not “communities”) of the population.” [Emphasis and parentheses added.] It also states that “The State shall promote with special care the educational and economic interests of the weaker sections of society (in particular, of the scheduled castes and aboriginal tribes), and shall protect them from social ”injustice” and all forms of exploitation.” [Emphasis added.] The Article further states that nothing in Article 15(4) will prevent the nation from helping SCs and STs for their betterment [‘betterment’ up to the level enjoyed by the average member of other communities]

Now present sate is 52% .

The Constitution declares India to be a sovereign, socialist, secular, democratic republic, assuring its citizens of justice, equality, and liberty, and endeavours to promote fraternity among them.[3] The words “socialist” and “secular” were added to the definition in 1976 by constitutional amendment.[4]

The Constitution was enacted by the Constituent Assembly on 26 November 1949, and came into effect on 26 January 1950.[2] The date 26 January was chosen to commemorate the Purna Swaraj declaration of independence of 1930. With its adoption, the Union of India officially became the modern and contemporary Republic of India and it replaced the Government of India Act 1935 as the country’s fundamental governing document. India celebrates the adoption of the constitution on 26 January each year as Republic Day

Fundamental Rights

The Fundamental Rights, embodied in Part III of the Constitution, guarantee civil rights to all Indians, and prevent the State from encroaching on individual liberty while simultaneously placing upon it an obligation to protect the citizens’ rights from encroachment by society.[19] Seven fundamental rights were originally provided by the Constitution – right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, right to property and right to constitutional remedies.[20] However, the right to property was removed from Part III of the Constitution by the 44th Amendment in 1978.[21][note 2]

The purpose of the Fundamental Rights is to preserve individual liberty and democratic principles based on equality of all members of society.[22] They act as limitations on the powers of the legislature and executive, under Article 13,[note 3] and in case of any violation of these rights the Supreme Court of India and the High Courts of the states have the power to declare such legislative or executive action as unconstitutional and void.[23] These rights are largely enforceable against the State, which as per the wide definition provided in Article 12, includes not only the legislative and executive wings of the federal and state governments, but also local administrative authorities and other agencies and institutions which discharge public functions or are of a governmental character.[24] However, there are certain rights – such as those in Articles 15, 17, 18, 23, 24 – that are also available against private individuals.[25] Further, certain Fundamental Rights – including those under Articles 14, 20, 21, 25 – apply to persons of any nationality upon Indian soil, while others – such as those under Articles 15, 16, 19, 30 – are applicable only to citizens of India.

How we are misusing  – NO EQUALITY AND LIBERTY OF KNOWLEDGE , VOICE , HARD WORKING, SELF RESPECT ,  INDENTITY. etc

Games on these articles – by using sub clauses and amendments  :

Article 14 {Equality before law

The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 15 {Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth}

  1. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  2. No citizen shall, on ground only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to –
    1. access to shops, public restaurants, hotels and places of public entertainment; or
    2. the use of wells, tanks, bathing ghats, roads and places of public resort maintained whole or partly out of State funds or dedicated to the use of general public.
  3. Nothing in this article shall prevent the State from making any special provision for women and children.
  4. Nothing in this article or in clause (2) or article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

Article 16 {Equality of opportunity in matters of public employment}

  1. There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.
  2. No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.
  3. Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.
  4. Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.
    (4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.
  5. Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

Article 19 {Protection of certain rights regarding freedom of speech, etc.}

  1. All citizens shall have the right –
    1. to freedom of speech and expression;
    2. to assemble peaceably and without arms;
    3. to form associations or unions;
    4. to move freely throughout the territory of India;
    5. to reside and settle in any part of the territory of India; and
    6. *** (repealed)
    7. to practice any profession, or to carry on any occupation, trade or business.

Article 102 {Disqualifications for membership}

  1. A person shall be disqualified for being chosen as, and for being, a member of either House of Parliament –
    1. if he holds any office of profit under the Government of India or the Government of any State, other than an office declared by Parliament by law not to disqualify its holder;
    2. if he is of unsound mind and stands so declared by a competent court;
    3. if he is an undischarged insolvent;
    4. if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign State, or is under any acknowledgement of allegiance or adherence to a foreign State;
    5. if he is so disqualified by or under any law made by Parliament.

[Explanation: For the purposes of this clause a person shall not be deemed to hold an office of profit under the Government of India or the Government of any State by reason only that he is a Minister either for the Union or for such State.]

  1. A person shall be disqualified for being a member of either House of Parliament if he is so disqualified under the Tenth Schedule.

Article 103 {Decision on questions as to disqualifications of members}

  1. If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
  2. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

Article 104 {Penalty for sitting and voting before making oath or affirmation under article 99 or when not qualified or when disqualified}

If a person sits or votes as a member of either House of Parliament before he has complied with the requirements of article 99, or when he knows that he is not qualified or that he is disqualified for membership thereof, or that he is prohibited from so doing by the provisions of any law made by Parliament, he shall be liable in respect of each day on which he so sits or votes to a penalty of five hundred rupees to be recovered as a debt due to the Union.

Article 325 {No person to be ineligible for inclusion in, or to claim to be included in a special, electoral roll on grounds of religion, race, caste or sex}

There shall be one general electoral roll for every territorial constituency for election to either House of Parliament or to the House or either House of the Legislature of a State and no person shall be ineligible for inclusion in any such roll or claim to be included in any special electoral roll for any such constituency on grounds only of religion, race, caste, sex or any of them.

Article 326 {Elections to the House of the People and to the Legislative Assemblies of States to be on the basis of adult suffrage}

The elections to the House of the People and to the Legislative Assembly of every State shall be on the basis of adult suffrage; that is to say, every person who is a citizen of India and who is not less than eighteen years of age on such date as may be fixed in that behalf by or under any law made by the appropriate Legislature and is not otherwise disqualified under this Constitution or any law made by the appropriate Legislature on the ground of non-residence, unsoundness of mind, crime or corrupt or illegal practice, shall be entitled to be registered as a voter at any such election.

Part XV – consists of Articles on Elections Articles 324 – 329 on Elections Article 329A – Repealed – Replaced by the Constitution (Forty-fourth Amendment) Act, 1978, s. 36 (w.e.f. 20-6-1979).

Disqualification of Political leaders and others ELECTION COMMISSION LAND MARK JUDGMENTS

 

Article 103 {Decision on questions as to disqualifications of members}

members}

  1. If any question arises as to whether a member of either House of Parliament has become subject to any of the disqualifications mentioned in clause (1) of article 102, the question shall be referred for the decision of the President and his decision shall be final.
  2. Before giving any decision on any such question, the President shall obtain the opinion of the Election Commission and shall act according to such opinion.

 

 

 

 

CASE STUDY:

SUPREME COURT OF INDIA*

(Civil Appellate Jurisdiction)

Civil Appeal No. 205 of 1952$

(Decision dated 27th February, 1953)

The Election Commission, India .. Appellant

Vs.

Saka Venkata Rao .. Respondent

The Union of India .. Intervener

 

SUMMARY OF THE CASE

 

Shri Saka Venkata Rao was convicted by the Session’s Judge of East Godavari

and sentenced to a term of 7 years rigorous imprisonment in 1942. He was released

on the occasion of the celebration of the Independence Day on the 15th August,

1947. In June, 1952, he was elected to the Madras Legislative Assembly at a byeelection

held from the Kakinada Assembly constituency. On the 3rd July, 1952, a

question was raised in the Assembly as to whether Shri Rao was disqualified to be a

member of the Assembly by reason of his aforesaid conviction. The Speaker

referred the question to the Governor of Madras. He forwarded the case to the

Election Commission for its opinion, as required by Article 192(2) of the

Constitution. The Commission heard the case on the 21st August, 1952. On the

same day, Shri Rao moved the Madras High Court under Article 226 of the

Constitution, contending that Article 192 of the Constitution was applicable only

where a member of a State Legislature became subject to disqualification after he

was elected, but not where the disqualification arose long before election, in which

case the only remedy was to challenge the validity of the Election before an election

Tribunal by means of an election petition.

 

A single judge of the Madras High Court upheld the contentions of Shri Rao,

and held that Article 192 applied only to cases of supervening disqualification and

the Election Commission had, therefore, no jurisdiction to opine on the Petitioner’s

disqualification which arose long before the election took place.

Aggrieved by the order of the High Court, the Election Commission filed the

present appeal before the Supreme Court. The Supreme Court dismissed the

appeal, confirming and upholding the view taken by the High Court.

 

Constitution of India (1950), Article 133 (3) – Scope – Decision of single judge on

question involving interpretation of the Constitution – Grant of certificate of fitness for

appeal – Right of appeal – Article 226 – Jurisdiction and powers under – Scope – Articles

190 (3) and 192 (1) – Applicability only to disqualifications arising after election.

While it is true that constitutional questions could be raised in appeals filed

without a certificate under Article 132 of the Constitution, the terms of that Article

make it clear that an appeal is allowed from “any judgment, decree or final order of

a High Court” provided, of course, the requisite certificate is given, and no

restriction is placed on the right of appeal having reference to the number of Judges

by him such judgment, decree or final order was passed. Had it been intended to

exclude the right of appeal in the case of a judgment, etc., by one Judge, it would

have been easy to include a reference to Article 132 also in the opening words of

Article 133 (3) as in the immediately preceding clause. The whole scheme of the

appellate jurisdiction of the Supreme Court clearly indicates that questions relating

to the interpretation of the Constitution are placed in a special category irrespective

of the nature of the proceedings in which they may arise, and a right of appeal of the

widest amplitude is allowed in cases involving such questions. An appeal to the

Supreme Court against the judgment of a single Judge of the High Court is not

barred under Article 133 (3) of the Constitution.

The power of a High Court under Article 226 of the Constitution of India, 1950

is to be exercised “throughout the territories in relation to which it exercises

jurisdiction” that is to say the writs issued by the Court cannot run beyond the

territories subject to its jurisdiction. The person of authority to whom the High

Court is empowered to issue such writs must be “within those territories,” which

clearly implies that they must be amenable to its jurisdiction either by residence or

location within those territories.

A tribunal or authority permanently located and normally carrying on its

activities elsewhere (as for instance the Election Commission at New Delhi) exercises

jurisdiction within those territorial limits (as in Madras State) so as to affect the

rights of parties therein (in any election dispute) cannot be regarded as

“functioning” within the territorial limits of the High Court and being therefore

amenable to its jurisdiction under Article 226. The rule that cause of action attracts

jurisdiction in suits in based on statutory enactment cannot apply to writs issuable

under Article 226, which makes no reference to any cause of action or where it

arises but insists on the presence of the person or authority “within the territories”

in relation to which the High Court exercises jurisdiction.

Article 190 (3) and 192 (1) are applicable only to disqualifications to which a

member becomes subject after he is elected as such and neither the Governor nor

Election Commission has jurisdiction to enquire into the disqualification of a

member which arose long before his election.

On Appeal from the Judgment and Order dated the 16th September, 1952, of the

High Court of Judicature at Madras (Subba Rao, J.) in Writ Petition No. 599 of

1952 filed under the Special Original Jurisdiction of the High Court under Article

226 of the Constitution of India.

JUDGMENT

Present :- M. Patanjali Sastri, Chief Justice, B.K. Mukherjea, Vivian Bose, Ghulam

Hasan and N.H. Bhagwati, JJ.

M.C. Setalvad, Attorney-General for India and G.N. Joshi, Advocate, with him, for

Appellant and Intervener.

Mohan Kumaramangalam, Advocate, for Respondent.

The Judgment of the Court was delivered by

PATANJALI SASTRI, C.J.–This is an appeal from an order of a single Judge of

the High Court of Judicature at Madras issuing a writ of prohibition restraining the

Election Commission, a statutory authority constituted by the President and having

its offices permanently located at New Delhi, from enquiring into the alleged

disqualification of the respondent for membership of the Madras Legislative

Assembly.

The respondent was convicted by the Sessions Judge of East Godavari and

sentenced to a term of seven years’ rigorous imprisonment in 1942, and he was

released on the occasion of the celebration of the Independence Day on 15th August,

1947. In June, 1952, there was to be a by-election to a reserved seat in the Kakinada

constituency of the Madras Legislative Assembly, and the respondent, desiring to

offer himself as a candidate but finding himself disqualified under section 7 (b) of

the Representation of the People Act, 1951, as five years had not elapsed from his

release, applied to the Commission on 2nd April, 1952, for exemption so as to enable

him to contest the election. No reply to the application having been-received till 5th

May, 1952, the last day for filing nominations, the respondent filed his nomination

on that day, but no exception was taken to it either by the Returning Officer or any

other candidate at the scrutiny of the nomination papers. The election was held on

14th June, 1952 and the respondent, who secured the largest number of votes, was

declared elected on 16th June, 1952. The result of the election was published in the

Fort St. George Gazette (Extra-ordinary) on 19th June, 1952, and the respondent

took his seat as a member of the Assembly on 27th June, 1952. Meanwhile, the

Commission rejected the respondent’s application for exemption and communicated

such rejection to the respondent’s by its letter dated 13th May, 1952, which

however, was not received by him. On 3rd July, 1952, the Speaker of the Assembly

read out to the House a communication received from the Commission bringing to

his notice, “for such action as he may think fit to take”, the fact that the

respondent’s application for exemption had been rejected. A question as to the

respondent’s disqualification having thus been raised, the Speaker referred the

question to the Governor of Madras who forwarded the case to the Commission for

its “opinion” as required by Article 192 of the Constitution. The respondent having

thereupon challenged the competency of the reference and the action taken thereon

by the Governor, the Commission notified the respondent that his case would be

heard on 21st August, 1952. Accordingly, the Chief Election Commissioner (who

was the sole Member of the Commission for the time being) went down to Madras

and heard the respondent’s counsel and the Advocate-General of Madras on 21st

August, 1952, when it was agreed that, in case the petitioner’s counsel desired to put

forward any further representations or arguments, the same should be sent in

writing so as to reach the Commission in Delhi by 28th August, 1952, and the

Commission should take them into consideration before giving its opinion to the

Governor.

On the same day (21st August, 1952), the respondent applied to the High Court

under Article 226 of the Constitution contending that Article 192 of the Constitution

was applicable only where a member became subject to a disqualification after he

was elected but not where, as here, the disqualification arose long before the

election, in which case the only remedy was to challenge the validity of the election

before an Election Tribunal. He accordingly prayed for the issue of a writ of

mandamus or of prohibition directing the Commission to forbear from proceeding

with the reference made by the Governor of Madras who was not however, made a

party to the proceeding. On receipt of the rule nisi issued by the High Court, the

Commission demurred to the jurisdiction of the Court to issue the writs asked for,

on the ground that the Commission was not “within the territory in relation to

which the High Court exercised jurisdiction”. A further objection to the

maintainability of the application was also raised to the effect that the action of the

Governor in seeking the opinion of the Commission could not be challenged in view

of the immunity provided under Article 361 (1), and that the Commission itself,

which had not to “decide” the question of disqualification, but had merely to give its

“opinion”, could not be proceeded against under Article 226. On the merits, the

Commission contended that Article 192 was, on its true construction, applicable to

cases of disqualification arising both before and after the election and that both the

reference of the question as to the respondent’s disqualification to the Governor of

Madras and the latter’s reference of the same to the Commission for its opinion

were competent and valid.

The application was heard by Subba Rao, J., who overruled the preliminary

objections and held that Article 192 on its true construction applied only to cases of

supervening disqualifications and that the Commission had, therefore, no

jurisdiction to deal with the respondent’s disqualification which arose long before

the election took place. He accordingly issued a writ prohibiting the Commission

from proceeding with the enquiry in regard to the question referred to it by the

Governor under Article 192. The learned Judge, however, granted a certificate

under Article 132 that the case involved substantial questions of law as to the

interpretation of the Constitution, and the Commission has accordingly preferred

this appeal.

A preliminary objection was raised by Mr. Mohan Kumaramangalam, who

argued the case for the respondent with marked ability, that the appeal brought

from the judgment of a single Judge was barred under Article 133(3) of the

Constitution despite the certificate granted by the learned Judge overruling the

same objection which was also raised before him. It has been urged that, so far as

civil matters are concerned, the more comprehensive provisions in Article 133 (1) (c)

for the grant of a certificate of fitness for appeal to the Supreme Court completely

overlap Article 132 (1) which relates only to one specific ground, namely, a

substantial question of law being involved as to the interpretation of the

Constitution, and that the Court’s power, therefore, to grant a certificate of fitness

on any ground, including the ground referred to above, must be deemed to arise

under Article 133 (1) (c), with the result that the exercise of such power is excluded

by the opening words of clause (3) of that article which bars an appeal from the

judgment, decree or final order of one Judge of a High Court. The argument was

sought to be reinforced by reference to clause (2) of that Article and the provision to

Article 145 (3) both of which contemplate appeals involving substantial questions of

law as to the interpretation of the Constitution being brought without a certificate

having been obtained under Article 132. The argument has no force. While it is true

that constitutional questions could be raised in appeals filed without a certificate

under Article 132, the terms of that Article make it clear that an appeal is allowed

from “any judgment, decree or final order of a High Court” provided, of course, the

requisite certificate is given, and no restriction is placed on the right of appeal

having reference to the number of Judges by whom such judgment, decree or final

order was passed. Had it been intended to exclude the right of appeal in the case of a

judgment, etc., by one Judge, it would have been easy to include a reference to

Article 132 also in the opening words of Article 133 (3), as in the immediately

preceding clause. If the respondent’s contention were accepted, not only would

Article 132 become redundant so far as it relates to civil proceedings, but the object

of the Explanation to the Article, which was designed to supersede the decision of

the Federal Court S. Kuppuswami Rao v. The King1 and thus to secure a speedy

determination of constitutional issues going to the root of a case, would be defeated,

as the explanation is not made applicable to the same expression “final order” used

in Article 133 (1). The whole scheme of the appellate jurisdiction of the Supreme

Court clearly indicates that questions relating to the interpretation of the

Constitution are placed in a special category irrespective of the nature of the

proceedings in which they may arise, and a right of appeal of the widest amplitude

is allowed in cases involving such questions. We accordingly overrule the

preliminary objection and hold that the appeal is maintainable.

Turning now to the question as to the powers of a High Court under Article 226,

it will be noticed that Article 225 continues to the existing High Courts the same

jurisdiction and powers as they possessed immediately before the commencement of

the Constitution. Though there had been some conflict of judicial opinion on the

point, it was authoritatively decided by the Privy Council in the Parlakimedi case2

that the High Court of Madras – the High Courts of Bombay and Calcutta were in

the same position – had no power to issue what were known as high prerogative

writs beyond the local limits of its original civil jurisdiction, and the power to issue

such writs within those limits was derived by the Court as successor of the Supreme

Court which had been exercising jurisdiction over the Presidency Town of Madras

and was replaced by the High Court established in pursuance of the Charter Act of

1861. The other High Courts in India had no power to issue such writs at all. In that

situation, the makers of the Constitution, having decided to provide for certain basic

safeguards for the people in the new set-up, which they called fundamental rights,

evidently thought it necessary to provide also a quick and inexpensive remedy for

the enforcement of such rights and, finding that the prerogative writs, which the

Courts in England had developed and used whenever urgent necessity demanded

immediate and decisive interposition, were peculiarly suited for the purpose, they

conferred, in the States’ sphere, new and wide powers on the High Courts of issuing

directions, orders, or writs primarily for the enforcement of fundamental rights, the

power to issue such directions, etc., “for any other purpose” being also included

with a view apparently to place all the High Courts in this country in somewhat the

same position as the Court of King’s Bench in England. But wide as were the powers

thus conferred, a two-fold limitation was placed upon their exercise. In the first

place, the power is to be exercised “throughout the territories in relation to which it

exercise jurisdiction”, that is to say, the writs issued by the Court cannot run

beyond the territories subject to its jurisdiction. Secondly, the person or authority to

whom the High Court is empowered to issue such writs must be “within those

territories”, which clearly implies that they must be amenable to its jurisdiction

either by residence or location within those territories.

Such limitation is indeed a logical consequence of the origin and development of

the power to issue prerogative writs as a special remedy in England such power

formed no part of the original or the appellate jurisdiction of the Court of King’s

Bench. As pointed out by Prof. Holdsworth (History of English Law, Vol. I, p. 212,

et seq.) these writs had their origin in the exercise of the King’s prerogative power of

superintendence over the due observance of the law by his officials and tribunals,

and were issued by the Court of King’s Bench – habeas corpus, that the King may

know whether his subjects were lawfully imprisoned or not; certiorari, that he may

know whether any proceedings commenced against them are conformable to the

law; mandamus, to ensure that his officials did such acts as they were bound to do

under the law, and prohibition, to oblige the inferior tribunals in his realm to

function within the limits of their respective jurisdiction. See also the introductory

remaks in the judgment in the Parlakimedi case1. These writs were thus specifically

directed to the persons or authorities against whom redress was sought and were

made returnable in the Court issuing them and in case of disobedience, were

enforceable by attachment for contempt. These characteristics of the special form of

remedy rendered it necessary for its effective use that the persons or authorities to

whom the Court was asked to issue these writs should be within the limits of its

territorial jurisdiction. We are unable to agree with the learned Judge below that if

a tribunal or authority permanently located and normally carrying on its activities

elsewhere exercises jurisdiction within those territorial limits so as to affect the

rights of parties therein, such tribunal or authority must be regarded as

“functioning” within the territorial limits of the High Court and being therefore

amenable to its jurisdiction under Article 226.

It was, however, urged by the respondent’s counsel that the High Court had

jurisdiction to issue a writ to the Commission at New Delhi because the question

referred to it for decision related to the respondent’s right to sit and vote in the

Legislative Assembly at Madras and the parties to the dispute also resided in the

State of Madras. The position, it was claimed, was analogous to the Court exercising

jurisdiction over persons outside the limits of its jurisdiction, provided the cause of

action arose within those limits. Reliance was placed upon the following

observations of the Privy Council in the Parlakimedi case1;

“The question of jurisdiction must be regarded as one of substance and that

it would not have been within the competence of the Supreme Court to claim

jurisdiction over such a matter as the present of issuing certiorari to the Board

of Revenue on the strength of its location in the Town. Such a view would give

jurisdiction to the Supreme Court in the matter of the settlement of rents of

ryoti holdings in Ganjam between parties not otherwise subject to its

jurisdiction, which it would not have had over the Revenue Officer who dealt

with the matter at first instance.”

We cannot accede to this argument. The rule that cause of action attracts

jurisdiction in suits is based on statutory enactment and cannot apply to writs

issuable under Article 226 which makes no reference to any cause of action or where

it arises but insists on the presence of the person or authority “within the

territories” in relation to which the High Court exercises jurisdiction. Nor is much

assistance to be derived from the observations quoted above. That case arose out of

proceedings before a special Revenue Officer for settlement of fair rent for certain

holdings within the Zamindary Estate of Parlakimedi situated beyond the local

limits of the original civil jurisdiction of the Madras High Court. Dissatisfied with

the settlement made by the Revenue Officer, the ryots appealed to the Board of

Revenue which had its offices at Madras. The appeal was accepted by a single

member of the Board who reduced the rent as desired by the ryots. The Zemindar

appealed by way of revision to the Collective Board which sanctioned an

enhancement. Thereupon the ryots applied to the High Court for the issue of a writ

of certiorari to bring up and quash the proceedings of the collective Board which

passed the order complained of in the Town of Madras. The Privy Council

considered the question of jurisdiction from two separate standpoints:-

(a) independently of the local civil jurisdiction which the High Court

exercises after the Presidency town; or

(b) solely by reason thereof, as an incident of the location of the Board of

Revenue within the town”.

On question (a), they examined the powers of the Supreme Court at Madras to

issue certiorari beyond the Presidency Town under clause 8 of the Charter of 1800,

as it was suggested that the High Court succeeded to the jurisdiction and powers of

the Supreme Court which had been granted the same powers of issuing. prerogative

writs as the Court of King’s Bench in England throughout the Province, and they

recorded their conclusion thus:

Their, Lordships are not of opinion that the Supreme Court would have had

any jurisdiction to correct or control a country court of the Company deciding

a dispute between Indian inhabitants of Ganjam about the rent payable for

land in that district.

Then, dealing with question (b) and referring to their decision in Mrs. Annie

Besant’s case1 that the High Courts of Calcutta, Madras and Bombay had power to

issue certiorari in the exercise of their local jurisdiction, they held that the principle

could not be applied.

“to the settlement of rent for land in Ganjam merely on the basis of the

location of the Board of Revenue as a body which is ordinarily resident or

located within the town of Madras, or on the basis that the order complained of

was made within the town. If so, it would seem to follow that the jurisdiction of

the High Court would be avoided by the removal of the Board of Revenue

beyond the outskirts of the town and that it would never attach but for the

circumstance that an appeal is brought to, or proceedings in revision taken by

the Board of Revenue”.

Then followed the passage already quoted on which the respondent’s counsel

laid special stress. It will thus be seen that the decision is no authority for dispensing

with the necessity of the presence or location, within the local limits of the Court’s

jurisdiction, of the person or authority to whom the writ is to be issued, as the basis

of its power to issue it. Their Lordships considered, in the peculiar situation they

were dealing with, that the mere location of the appellate authority alone in the

Town of Madras was not a sufficient basis for the exercise of jurisdiction whereas

both the subject-matter, viz., the settlement of rent for lands in Ganjam, and the

Revenue Officer authorised to make the settlement at first instance were outside the

local limits of the jurisdiction of the High Court. If the Court in Madras were

recognised as having jurisdiction to issue the writ of certiorari to the appellate

authority in Madras, it would practically be recognising the Court’s jurisdiction

over the Revenue Officer in Ganjam and the settlement of rents for lands there,

which their Lordships held it never had. That was the “substance” of the matter

they were looking at, and their observations lend no support to the view that if the

subject-matter or the cause of action and the parties concerned were within the

territorial limits of the jurisdiction, the High Court could issue prerogative writs to

persons or authorities who are not within those limits. In any case, the decision did

not turn on the construction of a statutory provision similar in scope, purpose or

wording to Article 226 of the Constitution and is not of much assistance in the

construction of that Article.

It was said that it cold not have been contemplated that an inhabitant of the

State of Madras, feeling aggrieved by a threatened interference with the exercise of

his rights in that State by an authority located in Delhi and acting without

jurisdiction, should seek his remedy under Article 226 in the Punjab High Court. It

is a sufficient answer to this argument of inconvenience to say that the language of

the Article being reasonably plain, it is idle to speculate as to what was or was not

contemplated.

Our attention has been called to certain decisions of High Courts dealing with

the situation where the authority claiming to exercise jurisdiction over a matter at

first instance is located in one State and the appellate authority is located in another

State. It is not necessary for the purposes of this appeal to decide which High Court

would have jurisdiction in such circumstances to issue prerogative writs under

Article 226.

In the view we have expressed above as to the applicability of Article 226 to the

present case, it is unnecessary to enter upon a discussion of the question whether

Article 192 (1) applies only to members who, having been already elected, have

become subject to a disqualification by reason of events happening after their

election; but having heard the point fully argued before us, we think it right to

express our opinion thereon, especially as both sides have invited us to do so in view

of its general importance.

The relevant provisions of the Constitution on which the determination of the

question turns are as follows:-

190. (3) If a member of a House of the Legislature of a State —

(a) becomes subject to any of the disqualifications mentioned in clause (1) of

Article 191; or

(b) resigns his seat by writing under his hand addressed to the Speaker or

the Chairman as the case may be.

his seat shall thereupon become vacant.

191. (1) A person shall be disqualified for being choosen as, and for being, a

member of the Legislative Assembly or Legislative Council of a State —

(a) if he holds any office of profit under the Government of India or the

Government of any State specified in the First Schedule, other than an office

declared by the Legislature of the State by law not to disqualify its holder;

(b) if he is of unsound mind and stands so declared by a competent court;

(c) if he is an undischarged insolvent;

(d) if he is not a citizen of India or has voluntarily acquired the citizenship

of a foreign State or is under any acknowledgment of allegiance or adherence to

a foreign State;

(e) if he is so disqualified by or under any law made by Parliament.

192. (1) If any question arises as to whether a member of a House of the

Legislature of a State has become subject to any of the disqualifications

mentioned in clause (1) of Article 191 the question shall be referred for the

decision of the Governor and his decision shall be final.

(2) Before giving any decision on any such question, the Governor shall

obtain the opinion of the Election Commission and shall act according to such

opinion.

193. If a person sits or votes as a member of the Legislative Assembly or the

Legislative Council of a State ………. when he knows that he is not qualified or

that he is disqualified for membership thereof, or that he is prohibited from so

doing by the provisions of any law made by Parliament or the Legislature of the

State, he shall be liable in respect of each day on which he so sits or votes to a

penalty of five hundred rupees to be recovered as a debt due to the State.

As has been stated already, the respondent’s conviction and sentence in 1942

disqualified him both for being chosen as, and for being, a member of the

Legislative Assembly under Article 191 (1) (e) read with section 7 of the

Representation of the People Act, 1951, passed by Parliament, the period of five

years since his release on August 15, 1947, not having elapsed before the date of the

election. The respondent having thus been under a disqualification since before his

nomination on March 15, 1952, could he be said to have “become” subject to that

disqualification within the meaning of Article 192? The rival contentions of the

parties centred round the true interpretation to be placed on that word in the

context of the provisions quoted above.

The Attorney-General argued that the whole fasciculus of the provisions dealing

with “disqualifications of Members”, vis., Articles 190 to 193, should also be read

together, and as Articles 191 and 193 clearly cover both pre-existing and

supervening disqualifications, Articles 190 and 192 should be similarly understood

as relating to both kinds of disqualification. According to him all these provisions

together constitute an integral scheme whereby disqualifications are laid down and

machinery for determining questions arising in regard to them is also provided. The

use of the word “become” in Articles 190 (3) and 192 (1) is not inapt, in the context,

to include within its scope pre-existing disqualifications also, as becoming subject to

a disqualification is predicated of “a member of a House of Legislature”, and a

person, who, being already disqualified, gets elected, can, not appropriately, be said

to “become” subject to the disqualification as a member as soon as he is elected. The

argument is more ingenious than sound. Article 191, which lays down the same set

of disqualifications for election as well as for continuing as a member, and Article

193 which prescribes the penalty for sitting and voting when disqualified, are

naturally phrased in terms wide enough to cover both re-existing and supervening

disqualifications; but it does not necessarily follow that Articles 190 (3) and 192 (1)

must also be taken to cover both. Their meaning must depend on the language used

which, we think, is reasonably plain. In our opinion these two ‘Articles go together

and provide a remedy when a member incurs a disqualification after he is elected as

a member. Not only do the words becomes subject” in Article 190 (3) and “has

become subject” in Article 192 (1) indicate a change in the position of the member

after he was elected, but the provision that his seat is to become thereupon vacant,

that is to say, the seat which the member was filling theretofore becomes vacant on

his becoming disqualified, further reinforces the view that the Article contemplates

only a sitting member incurring the disability while so sitting. The suggestion that

the language used in Article 190 (3) can equally be applied to a pre-existing

disqualification as a member can be supposed to vacate his seat the moment he is

elected is a strained and far-fetched construction and cannot be accepted. The

Attorney-General admitted that if the word “is” were substituted for “becomes” or

“has become”, it would more appropriately convey the meaning contended for by

him, but he was unable to say why it was not used.

It was said that on the view that Articles 190 (3) and 192 (1) deal with

disqualifications incurred after election as a member, there would be no way of

unseating a member who became subject to a disqualification after his nomination

and before his election, for, such a disqualification is no ground for challenging the

election by an election petition under Article 329 of the Constitution read with

section 100 of the Representation of the People Act, 1951. If this is an anomaly, it

arises out of a lacuna in the latter enactment which could easily have provided for

such a contingency, and it cannot be pressed as an argument against the

respondent’s construction of the constitutional provisions. On the other hand, the

Attorney-General’s contention might, if accepted, lead to conflicting decisions by

the Governor dealing with a reference under Article 192 and by the Election

Tribunal inquiring into an election petition under section 100 of the Parliamentary

statute referred to above.

For the reasons indicated we agree with the learned Judge below in holding that

Articles 190 (3) and 192 (1) are applicable only to disqualifications to which a

member becomes subject after he is elected as such, and that neither the Governor

nor the Commission has jurisdiction to enquire into the respondent’s

disqualification which arose long before his election.

As however, we have held that the High Court was not competent under Article

226 to issue any prerogative writ to the appellant Commission the appeal is allowed

and the writ of prohibition issued by the learned Judge is quashed. We make no

order as to costs.

Agent for Appellant and Intervener: G.H. Rajadhyaksha.

Agent for Respondent: S. Subramaniam.

Appeal allowed