Madras Citizens Progressive Council Vs. Honourable President of India and Others - Court Judgment

Excerpt:
constitution - public interest litigation - constitution of india - public interest litigation has been devised as means to provide easy access to weaker sections of society - it is to combat exploitation and injustice and in order to secure under privileged segments of society - it is for use on behalf of persons unable to approach court for justice - claimant in writ petition must have representative capacity and not individual and personnel grievance and interest. - - it would be useful as well as relevant to mention that the claim of the petitioner is that the election of the fourth respondent to the council of state is contrary to the rules and regulations said to have been laid down by the election commission, and that on account of such an election, the state of assam had lost an effective representative to voice the grievance of its people in the elders forum.order1. the above writ petition has been filed by an organization called the madias citizens progressive council, represented by its chair person one kasturi radhakrishnan, for a writ of mandamus directing the first respondent, the hon'ble the president of india, new delhi, to forward the representations of the petitioner, dated 26-9-1993, 30-9-1993, 3-10-1993 and 9-10-1993, and obtain the opinion of the election commission in accordance with art. 103(2) of the constitution oflndia pertaining tc the alleged disqualification against the fourth respondent, dr. manmohan singh, a member of the parliament and the minister for finance, government of india.2. the move of the petitioner appears to have been on an inspiration drawn from a publication of a news item in the indian express, english daily, dated 26-9-1993, under a caption 'domicile dilemma'. shorn of all unrecessary details and embellishments made in the affidavit, it is seen that the petitioner institution attempts to activate the hon'ble president of india to exercise his powers under article 103(2) of the constitution of india, on the allegation that the fourth respondent, who according to the petitioner, could not claim himself to be 'an ordinary resident' of assam state, got himself enrolled as a voter at gowhathi, in the state of assam, and that he is not qualified to be so registered as a voter in the state of assam, and consequently must be considered to have incurred a disqualification within the meaning of article 102(1)(e) of the constitution of india, which requires further action by the first respondent in terms of article 103(2) of the constitution of india. the further details relating to the subject-matter of the alleged disqualification are wholly irrelevant for the purposes of consideration by this court at this stage. it would be useful as well as relevant to mention that the claim of the petitioner is that the election of the fourth respondent to the council of state is contrary to the rules and regulations said to have been laid down by the election commission, and that on account of such an election, the state of assam had lost an effective representative to voice the grievance of its people in the elders forum.3. the questions for consideration before entertaining this writ petition on the file of this court, by issuing a notice to the respondents, would be as to (a) whether a writ of the nature with the terms of relief as couched in the prayer contained in the memorandum of writ petition could be maintained against the first respondent in view of the immunity and the consequent embargo contained in article 361 of the constitution of india; (b) whether the petitioner could claim to have the locus to maintain a writ petition even as a public interest litigation as it is made to appear, and (c) whether any positive or constructive allegation of disqualification within the meaning of article 102(1)(e) of the constitution of india, has been made, obliging the first respondent to take further action on the representations said to have been sent by the petitioner to the said first respondent.4. mr. s. k. sundaram, learned counsel appearing for the petitioner, invited my attention to some of the earlier decisions of this court and of the supreme court. the decision in election commission of india v. n, g. ranga, : [1979]1scr210 has been relied upon to contend that upon the making of allegations of disqualification, the president has to obtain the opinion of the election commission before deciding the question and was further bound to act according to the opinion given by the election commission of india.5. the decision in brundaban v. election commission, : [1965]3scr53 was relied upon to drive home the issue that it is the election commission and not the first respondent, who has to hold an enquiry, to come to an opinion about the disqualification and the first respondent had to merely refer the issue to the election commission and complaints of disqualification must be disposed of as expedit iously as possible. the said decision was in the context of a disqualification alleged against a member of the legislative assembly of orissa, on consideration of provisions which are in pari materia to the provisions now under consideration.6. the decision of a learned single judge of this court in jayalalitha, j. v. t. n. seshan, chief election commissioner etc. 1993 writ lr 734 was referred to, to invite my attention to the existence of certain circulars said to have been issued by the election commission, directing the secretaries of the governors of all states that the commission's opinion of any complaint of alleged disqualifications should be sought as soon as practicable after they are received by the governor, and that no such reference should be withheld, pending any enquiry or obtaining of any legal opinion before its communication to the commission. obviously these circulars have no relevance or concern with reference to the first respondent. reference has been made also to the decision in r. sivasankara v. election commission of india, : air1968mad234 of a division bench of this court to substantiate the principle that the question of decision of a disqualification of the nature under consideration vested with the authority specified in the relevant article of the constitution of india and not in court exercising even powers under article 226 of the constitution of india.7. the decision in vidadala harinadha-babu v. n. t. ramarao, : air1990ap20 , and particularly the observations at paragraph 40 relied upon to contend that the forum specified by the constitution alone is the competent forum and that the court has no jurisdiction to go into the question of disqualification. to a pertinent question raised with reference to the provisions contained in article 361 of the constitution of india, the answer of the learned counsel was that in the decision reported in kumar padma prasad v. union of india, : (1993)iillj972sc , a warrant of appointment in respect of a high court judge issued by the president of india was quashed, and that therefore, there could be no impediment for this court entertaining this writ petition. it may be noticed even at this stage that the relief sought for in the said decision has no comparison to the case on hand, and at any rate, the scope of article 361 of the constitution of india never was in the consideration of the apex court. even the other decisions relied upon did not consider the impact of article 361 and the right to seek a relief of the nature sought in this case. the learned counsel also sought to invite my attention to another news item in the english daily 'indian express, dated 29-12-1993' with reference to some action said to have been taken by the election commission with reference to the registry of the names of some of the persons including that of the 4th respondent in the electoral rolls of certain constituencies in the country.8. i have carefully considered the submissions of the learned counsel appearing for the petitioner. in my view, the relief of the nature could not be sought for in this court in this writ petition at any rate at this stage of the proceedings. article 361 of the constitution of india has been held to extend immunity conferred on the president not only for acts of the president, which are done by him in the exercise of his functions, but also for acts 'purporting to be done' by the president in exercise of his powers. the learned counsel attempted to fall back on an instance said to have occurred before the apex court with reference to an incident relating to the chief minister of this state vis-a-vis an action obliged to be taken by the then governor of this state, to contend that nothing precludes this court from entertaining this writ petition. there is no comparison of the powers of this court and that of the supreme court in this regard. in the absence of any specific opinion given by the apex court on an issue specifically raised, such instances alone cannot serve as judicial precedents to enure to the benefit of the petitioner to get over the impediment enacted in article 361 of the constitution of india. as a matter of fact, a division bench of this court in the dravida munnetra kazhagam rep. by its general secretary prof. k. anbazhagan, madras-18 v. the governor of tamil nadu, madras-22 and two others, (w. p. no. 1789 of 1993, order dated 13-9-1993) has taken a similar view of the scope of article 361 of the constitution of india, while dealing with an issue vis-a-vis a member of the state legislature and the role of the governor of the state. this decision of the division bench had the approval also of a full bench of this court in m. ranga v. the hon'ble acting chief juttice of tamil nadu, high court, madras and four others, (w. p. no. 20964 of 1993, order dated 29-11-1993) in the context of a similar claims made against the 1st respondent for according sanction for prosecution,9. the petitioner seeks for a specific direction to the first respondent, the president of india, to act in a particular manner in the discharge of his duties, and in my view, this is what that could not be done at the instance of the petitioner, in the teeth of article 361 of the constitution of india. on the facts and circumstances of the case also, there is no scope or justification for assuming that the first respondent could be attributed with any lapse in discharging his duties merely on account of the fact that the response from the first respondent is not as expeditious or as expected by the petitioner, warranting the interference of this court.10. even that apart, i am of the view that the petitioner has no locus to maintain this writ petition. public interest litigation has been devised as a means to provide easy access to weaker sections of society to combat exploitation and injustice, and in order to secure to the under-privileged segments of the society their social and economic entitlements and to rescue persons, who are unable to approach the court on their own for justice and is not meant to be abused or misused for selfish ends. the claimant in the writ petition must have some representative capacity at least, though not individual or personal grievance or interest. the opinion rendered by v. khalid, j., of the supreme court in the decision reported in shri sechidanand pandey v. state of w. b., : [1987]2scr223 may be usefully referred to in this regard (at p. 1136):'it is only when courts arc apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the courts, especially this court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. i will be second to none in extending help when such help is required. but this does not mean that the doors of this court are always open for anyone to walk in. it is necessary to have some self imposed restraint, on public interest litigants. otherwise, it would amount to permitting busy bodies masquerading in the roie of saviours indulge in actions besmirching the character of others creating unnecessary fuss more for the sake of publicity than in real public interest.'the petitioner who claims to be an association of the madras citizens cannot claim to speak for or project the alleged grievance of the people of state of assam, as if they are either disabled or unable to approach the court. thus viewed, the present writ petition appears to be a mere publicity oriented one rather than aimed at redressal of any genuine public wrong or any public injury.11. finally, the petitioner has not also shown or substantiated before this court that there is any disqualification specifically alleged in terms of article 102(1)(e) of the constitution of india, which obliges the first respondent to pursue action under article 103(2) of the constitution of india. no doubt, the questions as to whether the alleged disqualification has been substantiated on merits or made out is not a matter to be decided by the court initially or by the first respondent himself without securing the opinion of the election commission of india. but that does not mean that any and every petition even not involving or alleging any disqualification in terms of art. 102(1)(e) requires to be pursued with further course of action, contemplated under article 103(2) of the constitution of india. unless it is alleged that the person complaint of has incurred any one of the disqualification by or under any law made by the parliament, no further action would be contemplated under article 103(2) of the constitution of india. it is not every ineligibi-lity that is rendered a disqualification under article 102 of the constitution. in this case, neither in the representations nor in the affidavit filed in this court is there any specific allegation or claim as to the incurring of the disqualification the fourth respondent under any law made by the parliament. the law relating to disqualifications of a member of parliament or state legislature, is contained in sections 8, 8a, 9,9a, 10,10a and 11a of the representation of the people act, 1951. it is not shown under which of the above provisions the fourth respondent could be said to have incurred disqualification warranting further action by the first respondent under article 103(2) of the constitution of india. it is not as though every isolation or an irregularity alleged constitutes a disqualification and before seeking for an action under article 103(2) there should be at any rate a specific plea of disqualification, which is conspicuously absent in this case.12. for all the reasons stated above, i am of the view that this writ petition does not merit acceptance by this court, and therefore deserves to be summarily rejected and it is accordingly rejected.13. petition dismissed.

Judgment:
ORDER

1. The above writ petition has been filed by an Organization called The Madias Citizens Progressive Council, represented by its Chair Person one Kasturi Radhakrishnan, for a writ of mandamus directing the first respondent, the Hon'ble the President of India, New Delhi, to forward the representations of the petitioner, dated 26-9-1993, 30-9-1993, 3-10-1993 and 9-10-1993, and obtain the opinion of the Election Commission in accordance with Art. 103(2) of the Constitution oflndia pertaining tc the alleged disqualification against the fourth respondent, Dr. Manmohan Singh, a Member of the Parliament and the Minister for Finance, Government of India.

2. The move of the petitioner appears to have been on an inspiration drawn from a publication of a news item in the Indian Express, English Daily, dated 26-9-1993, under a caption 'Domicile Dilemma'. Shorn of all unrecessary details and embellishments made in the affidavit, it is seen that the petitioner Institution attempts to activate the Hon'ble President of India to exercise his powers under Article 103(2) of the Constitution of India, on the allegation that the fourth respondent, who according to the petitioner, could not claim himself to be 'an ordinary resident' of Assam State, got himself enrolled as a voter at Gowhathi, in the State of Assam, and that he is not qualified to be so registered as a voter in the State of Assam, and consequently must be considered to have incurred a disqualification within the meaning of Article 102(1)(e) of the Constitution of India, which requires further action by the first respondent in terms of Article 103(2) of the Constitution of India. The further details relating to the subject-matter of the alleged disqualification are wholly irrelevant for the purposes of consideration by this Court at this stage. It would be useful as well as relevant to mention that the claim of the petitioner is that the election of the fourth respondent to the Council of State is contrary to the rules and Regulations said to have been laid down by the Election Commission, and that on account of such an election, the State of Assam had lost an effective representative to voice the grievance of its people in the Elders Forum.

3. The questions for consideration before entertaining this writ petition on the file of this Court, by issuing a notice to the respondents, would be as to (a) whether a writ of the nature with the terms of relief as couched in the prayer contained in the memorandum of writ petition could be maintained against the first respondent in view of the immunity and the consequent embargo contained in Article 361 of the Constitution of India; (b) whether the petitioner could claim to have the locus to maintain a writ petition even as a public interest litigation as it is made to appear, and (c) whether any positive or constructive allegation of disqualification within the meaning of Article 102(1)(e) of the Constitution of India, has been made, obliging the first respondent to take further action on the representations said to have been sent by the petitioner to the said first respondent.

4. Mr. S. K. Sundaram, learned counsel appearing for the petitioner, invited my attention to some of the earlier decisions of this Court and of the Supreme Court. The decision in Election Commission of India v. N, G. Ranga, : [1979]1SCR210 has been relied upon to contend that upon the making of allegations of disqualification, the president has to obtain the opinion of the Election Commission before deciding the question and was further bound to act according to the opinion given by the Election Commission of India.

5. The decision in Brundaban v. Election Commission, : [1965]3SCR53 was relied upon to drive home the issue that it is the Election Commission and not the first respondent, who has to hold an enquiry, to come to an opinion about the disqualification and the first respondent had to merely refer the issue to the Election Commission and complaints of disqualification must be disposed of as expedit iously as possible. The said decision was in the context of a disqualification alleged against a Member of the Legislative Assembly of Orissa, on consideration of provisions which are in pari materia to the provisions now under consideration.

6. The decision of A learned single Judge of this Court in Jayalalitha, J. v. T. N. Seshan, Chief Election Commissioner etc. 1993 Writ LR 734 was referred to, to invite my attention to the existence of certain circulars said to have been issued by the Election Commission, directing the Secretaries of the Governors of all States that the Commission's opinion of any complaint of alleged disqualifications should be sought as soon as practicable after they are received by the Governor, and that no such reference should be withheld, pending any enquiry or obtaining of any legal opinion before its communication to the Commission. Obviously these circulars have no relevance or concern with reference to the first respondent. Reference has been made also to the decision in R. Sivasankara v. Election Commission of India, : AIR1968Mad234 of a Division Bench of this Court to substantiate the principle that the question of decision of a disqualification of the nature under consideration vested with the authority specified in the relevant Article of the Constitution of India and not in Court exercising even powers under Article 226 of the Constitution of India.

7. The decision in Vidadala Harinadha-babu v. N. T. Ramarao, : AIR1990AP20 , and particularly the observations at paragraph 40 relied upon to contend that the forum specified by the constitution alone is the competent forum and that the court has no jurisdiction to go into the question of disqualification. To a pertinent question raised with reference to the provisions contained in Article 361 of the Constitution of India, the answer of the learned counsel was that in the decision reported in Kumar Padma Prasad v. Union of India, : (1993)IILLJ972SC , a warrant of appointment in respect of a High Court Judge issued by the President of India was quashed, and that therefore, there could be no impediment for this Court entertaining this writ petition. It may be noticed even at this stage that the relief sought for in the said decision has no comparison to the case on hand, and at any rate, the scope of Article 361 of the Constitution of India never was in the consideration of the Apex Court. EVen the other decisions relied upon did not consider the impact of Article 361 and the right to seek a relief of the nature sought in this case. The learned counsel also sought to invite my attention to another news item in the English Daily 'Indian Express, dated 29-12-1993' with reference to some action said to have been taken by the Election Commission with reference to the registry of the names of some of the persons including that of the 4th respondent in the electoral rolls of certain Constituencies in the country.

8. I have carefully considered the submissions of the learned counsel appearing for the petitioner. In my view, the relief of the nature could not be sought for in this court in this writ petition at any rate at this stage of the proceedings. Article 361 of the Constitution of India has been held to extend immunity conferred on the President not only for acts of the President, which are done by him in the exercise of his functions, but also for acts 'purporting to be done' by the President in exercise of his powers. The learned counsel attempted to fall back on an instance said to have occurred before the Apex Court with reference to an incident relating to the Chief Minister of this State vis-a-vis an action obliged to be taken by the then Governor of this State, to contend that nothing precludes this Court from entertaining this writ petition. There is no comparison of the powers of this court and that of the Supreme Court in this regard. In the absence of any specific opinion given by the Apex Court on an issue specifically raised, such instances alone cannot serve as judicial precedents to enure to the benefit of the petitioner to get over the impediment enacted in Article 361 of the Constitution of India. As a matter of fact, a Division Bench of this Court in The Dravida Munnetra Kazhagam Rep. by its General Secretary Prof. K. Anbazhagan, Madras-18 v. The Governor of Tamil Nadu, Madras-22 and two others, (W. P. No. 1789 of 1993, order dated 13-9-1993) has taken a similar view of the scope of Article 361 of the Constitution of India, while dealing with an issue vis-a-vis a Member of the State Legislature and the role of the Governor of the State. This decision of the Division Bench had the approval also of a Full Bench of this Court in M. Ranga v. The Hon'ble Acting Chief Juttice of Tamil Nadu, High Court, Madras and Four others, (W. P. No. 20964 of 1993, Order dated 29-11-1993) in the context of a similar claims made against the 1st Respondent for according sanction for Prosecution,

9. The petitioner seeks for a specific direction to the first respondent, the President of India, to act in a particular manner in the discharge of his duties, and in my view, this is what that could not be done at the instance of the petitioner, in the teeth of Article 361 of the Constitution of India. On the facts and circumstances of the case also, there is no scope or justification for assuming that the first respondent could be attributed with any lapse in discharging his duties merely on account of the fact that the response from the first respondent is not as expeditious or as expected by the petitioner, warranting the interference of this Court.

10. Even that apart, I am of the view that the petitioner has no locus to maintain this writ petition. Public interest litigation has been devised as a means to provide easy access to weaker sections of society to combat exploitation and injustice, and in order to secure to the under-privileged segments of the society their social and economic entitlements and to rescue persons, who are unable to approach the Court on their own for justice and is not meant to be abused or misused for selfish ends. The claimant in the writ petition must have some representative capacity at least, though not individual or personal grievance or interest. The opinion rendered by V. Khalid, J., of the Supreme Court in the decision reported in Shri Sechidanand Pandey v. State of W. B., : [1987]2SCR223 may be usefully referred to in this regard (at p. 1136):

'It is only when Courts arc apprised of gross violation of fundamental rights by a group or a class action or when basic human rights are invaded or when there are complaints of such acts as shock the judicial conscience that the Courts, especially this Court, should leave aside procedural shackles and hear such petitions and extend its jurisdiction under all available provisions for remedying the hardships and miseries of the needy, the underdog and the neglected. I will be second to none in extending help when such help is required. But this does not mean that the doors of this Court are always open for anyone to walk in. It is necessary to have some self imposed restraint, on public interest litigants. Otherwise, it would amount to permitting busy bodies masquerading in the roie of Saviours indulge in actions besmirching the character of others creating unnecessary fuss more for the sake of publicity than in real public interest.'

The petitioner who claims to be an Association of the Madras Citizens cannot claim to speak for or project the alleged grievance of the people of State of Assam, as if they are either disabled or unable to approach the Court. Thus viewed, the present writ petition appears to be a mere publicity oriented one rather than aimed at redressal of any genuine public wrong or any public injury.

11. Finally, the petitioner has not also shown or substantiated before this Court that there is any disqualification specifically alleged in terms of Article 102(1)(e) of the Constitution of India, which obliges the first respondent to pursue action under Article 103(2) of the Constitution of India. No doubt, the questions as to whether the alleged disqualification has been substantiated on merits or made out is not a matter to be decided by the Court initially or by the first respondent himself without securing the opinion of the Election Commission of India. But that does not mean that any and every petition even not involving or alleging any disqualification in terms of Art. 102(1)(e) requires to be pursued with further course of action, contemplated under Article 103(2) of the Constitution of India. Unless it is alleged that the person complaint of has incurred any one of the disqualification by or under any law made by the Parliament, no further action would be contemplated under Article 103(2) of the Constitution of India. It is not every ineligibi-lity that is rendered a disqualification under Article 102 of the Constitution. In this case, neither in the representations nor in the affidavit filed in this Court is there any specific allegation or claim as to the incurring of the disqualification the fourth respondent under any law made by the Parliament. The law relating to disqualifications of a Member of Parliament or State Legislature, is contained in Sections 8, 8A, 9,9A, 10,10A and 11A of the Representation of the People Act, 1951. It is not shown under which of the above provisions the fourth respondent could be said to have incurred disqualification warranting further action by the first respondent under Article 103(2) of the Constitution of India. It is not as though every isolation or an irregularity alleged constitutes a disqualification and before seeking for an action under Article 103(2) there should be at any rate a Specific plea of disqualification, which is conspicuously absent in this case.

12. For all the reasons stated above, I am of the view that this writ petition does not merit acceptance by this Court, and therefore deserves to be summarily rejected and it is accordingly rejected.

13. Petition dismissed.