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PETITIONER: NAIN SUKH DAS AND ANOTHER

       Vs.

RESPONDENT: THE STATE OF UTTAR PRADESH AND OTHERS.

DATE OF JUDGMENT: 22/05/1953

BENCH: SASTRI, M. PATANJALI (CJ) BENCH: SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K. DAS, SUDHI RANJAN HASAN, GHULAM BHAGWATI, NATWARLAL H.

CITATION:  1953 AIR  384            1953 SCR 1184  CITATOR INFO :  D          1973 SC1041  (16)

ACT: Constitution  of  India, 1950,  Arts.  14,15(1),32-Municipal election  -Election  on the basis  of  communal  electorates -Validity-Application  under  Art. 32 for  writ  to  prevent elected      candidates     from     sitting     on      the Board-Maintainability-Remedy of ratepayers.

HEADNOTE:  The  petitioners,  who  were residents  of  a  municipality,  alleging  that  they had been deprived of  their  rights  to  exercise   their  votes  and  to  seek  their  election   as  candidates  in certain by elections to the Municipal  Board,  as  those  by-elections were held on communal lines  on  the  basis of separate electorates contrary to the provisions  of  the  Constitution, applied for writs tinder art. 32  of  the  Constitution  for  preventing the  elected  candidates  from  acting as members of the Board, and the District  Magistrate  and Civil Judge from holding any meetings of the Board:       Held,  that, though a law which provides for  elections  on  the  basis  of  separate  electorates  for  members   of  different  religious communities offends against art.  15(1)  of   the  Constitution  and  an  election  held  after   the  Constitution  in  pursuance of such a law subject to  el.  4  would  be void, the right which the petitioners  claimed  as  rate-payers  in  the municipality to insist that  the  Board  should be legally constituted and that persons who have  not  been properly elected should not be allowed to take part  in  the proceedings of the Board was outside the purview of art.  32 of the Constitution inasmuch as such a right, even if  it  existed,  was not a fundamental right conferred by Part  III  of the Constitution. Held  further, that the alleged infringement  of  the  fundamental  rights of the petitioners under art. 15(1)  and  art. 14, that is, the discrimination practised against  them  related  to  rights  which  they in  fact  never  sought  to  exercise  and  took  no  steps to  assert  while  there  was  occasion  for  doing so and the petitioners  were  therefore

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entitled to no relief under art. 32 of the Constitution.

JUDGMENT: ORIGINAL JURISDICTION: Petition No. 69 of 1953. Petition   under  article  32  of  the,   Constitution   for enforcement of fundamental rights. 1185   S.  C.  Isaacs  (Jai Prasad Agarwal, with  him)  for,  the appellant.   K. B. Asthana for respondent No. 1.     S.    P. Sinha (R.  Patnaik, with him) for respondent No. 4.     1953.  May 22.  The Judgment of the Court was  delivered by PATANJALI SASTRI C. J.-This is an application under  article 32   of   the  Constitution  seeking   protection   of   the petitioners’ fundamental right under article 15 (1)  against alleged violation thereof by the respondents.   The  petitioners  are  three residents of  Etah  in  Uttar Pradesh.   They  complain  that at the by  election  to  the Municipal  Board of Etah held on November 2, 1951,  December 8, 1951, and March 17, 1952, at which respondents 4, 11  and 12 were respectively elected, the Petitioners were  deprived of  their rights to exercise their votes and to  seek  their election  as candidates, as those by-elections were held  on communal lines on the basis of separate electorates contrary to  the  provisions of the Constitution.  They  also  allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise of its powers,  as the   interest  which  that  respondent  was  nominated   to represent in the Board was already sufficiently represented. The petition ners accordingly pray for the issue of writs of quo  warranto,  mandamus  and  other  appropriate  writs  or directions to respondents 3, 4, 11 and 12 to show under what authority  they  are acting as members of the Board  and  to prevent  them  from acting assuchmembers.   Tbe  petitioners also ask for wkits on the District Magistrate and the  Civil Judge of Etah, respondents 2 and 13 respectively,  directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.    Now,  it  cannot  be  seriously  disputed  that  any  law providing  for  elections on the basis of  separate  electo- rates for members of different religious communities offends against article 15 (1) of the Constitution which runs thus 1186 "15 (1) The State shall not discriminate against any citizen on  grounds  only of religion, race, caste,  sex,  place  of birth or any of them."   This  constitutional  mandate to the State  not  to  diis- criminate against any citizen on the ground, inter- alia, of religion  clearly extends to political as.well as  to  other rights,  and  any election held after  the  Constitution  in ,pursuance of such a law subject to clause (4) must be  held void  as  being  repugnant to  the  Constitution.   But  the question is whether the petitioners are now entitled to  the relief they seek in this application under article 32. It is true, as pointed out in the Cross Roads case(1),  that article 32 provides, in some respects, for a more  effective remedy through this court than article 226 does through  the High  Courts.   But  the  scope of  the  remedy  is  clearly narrower  in that it is restricted solely to enforcement  of fundamental   rights   conferred   by  Part   III   of   the Constitution.    Any   right,  for   instance,   which   the

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petitioners  may have as rate-payers in the Municipality  to insist that the Board should be legally constituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated  members, should not be permitted to take part  in the  proceedings  of the Board, is outside  the  purview  of article  32,  as  such right, even if it exists,  is  not  a fundamental right conferred by Part 111.     Petitioners’  learned counsel, however,  contended  that the  fundamental  right conferred by article 15 (1)  on  the petitioners  as  citizens  of  India  was  violated  by  the elections  in  question having been held on  a  basis  which discriminated against the petitioners on the ground of their religion  in  that it precluded them from  exercising  their franchise  in  relation  to  all  the  candidates  and  from contesting  the elections without regard to the  reservation of seats on communal basis.  Learned counsel,also  submitted that  the  delimitation of the  constituencies  on  communal lines  was  a denial of equality to the petitioners  in  the matter  of their political rights and in that  respect  also infringed their (1)  [1950] S.C.R 594 1187 fundamental right under article 14.  We are unable to accede to these contentions.   It  is  plain  that the  fundamental  right  conferred  by article 15(1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in  the  matter  of the rights,  privileges  and  immunities pertaining  to  him as a citizen generally. It  is  not  the petitioners’  case  that  any discrimination  is  now  being practised  or threatened against them.  Their  grievance  is that the mode of election by separate electorates formed  on communal  lines  involved  discrimination  against  them  in relation  to  seats  other than  those  reserved  for  their respective  communities as to which they could not  exercise their  right to vote or their right to stand as  candidates. There is no suggestion that the petitioners actually  sought to assert those rights by taking appropriate proceedings  to have   the  bar  removed  and  the  election  conducted   in accordance with the Constitution.  In fact, the  petitioners acquiesced  in the elections being conducted  under the  old system  of separate electorates and felt  no  discrimination having  been  practised against them until  a  no-confidence motion  was tabled recently against the former Chairman  who has  since lost his seat as a result of that  motion  having been  carried.  Thus, the infringement of their  fundamental rights  under  article  15(1) and art 61 14,  that  is,  the discrimination  practised  against them, of which  they  now complain, related to rights which they in fact never  sought to  exercise  and took no steps to assert, while  there  was still  room for doing so, and for the exercise of which  the opportunity  is  now  lost.  But,  argues  Mr.  Isaacs,  the election of the respondents 4 11 and 12 being void, they are no better than usurpers, and the petitioners are entitled to prevent  them from functioning as members of  the  Municipal Board.   It  may be, as we have already remarked,  that  the petitioners  could  claim such relief as ratepayers  of  the Municipality in appropriately framed proceedings, but  there is no question of enforcing petitioners’ funda mental  right under  article 15(1) or article 14 in such claim,  There  is still less ground for seeking relief on 1188 that  basis  aoainst respondent 3 who is  only  a  nominated member. The petitioners appear to have misconceived their remedy and

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their application under article 32 must fail.  The  petition is dismissed with costs, one sot.                          Petition dismissed. Agent for the petitioners: K. L. Mehta. Agent for respondent No. I : C. P. Lal. Agent for respondent No. 4: S. P. Varma.