1986 Supreme(Bom) 33

IN THE HIGH COURT OF BOMBAY
[PANAJI BENCH]
Dr. G.F. Couto
G.D. Kamat, JJ.
Manohar S. Prabhu.... Petitioner.
Versus
Union of India others.... Respondents.
AND
Uday Bhembre.... Petitioner.
Versus
Union of India others.... Respondents.
Writ Petition Nos. 41 166 of 1985, decided on 3-2-1986.
Advocates appeared :
S.K. Kakodkar, for petitioner in W.P. 41.
R.D. Kholap, for petitioner in W.P. 166.
D.R. Dhanuka, Sr. Counsel with P.K. Patkar. Standing Counsel, and N. Shate, for respondents 1 2 in W.P. 41 166.
V.M. Nadkarni, for respondents 3 5 in W.P. 166.

Headnote:Article 14-Constitution (Fourteenth Amendment) Act, 1962, Section 3(3) -Guidelines laid down in the Act for exercise of discretion conferred on Central Government for making the Domination of a person for Legislative Assembly - It was noted that problems of differed territories were not always similar - Therefore the needs of elasticity and of administrative experimentation existed. Held that in the circumstance, therefore, the conferment of a large discretion on the Central Government could not be said to be arbitrary to the extent of making it offensive and violative of Article 14.

       That if a discretionary power is conferred by a law on an authority, the validity of the said conferment is to be determined by finding whether there are guidelines provided in the Act, or in its preamble, or even from the circumstances which led to the enactment of the said Act, that control the exercise of such discretion. Further, it can be safely inferred that if such discretionary power is conferred on a higher authority, such circumstance is to be borne in mind for the proper determination of the question as to whether or not the provision conferring the power is arbitrary and violative of Article 14 of the Constitution.

       It has been already stated that there are some guidelines laid down in the Act itself for the exercise of discretion conferred on the Central Government for making the nomination of a person for the Legislative Assembly. We have also shown that another guideline can be found in the relevant provisions of the Representation of the People Act, 1951. In addition, we may also point out that the Statement of Objects and Reasons attached to the Bill of the Constitution (Fourteenth Amendment) clearly shows that by insertion of Article 239oA in the Constitution, it has been intended to restore the situation which was prevailing before the reorganisation of States and was existing at the time of the inception of the Constitution. Similarly, the Statement of Objects and Reasons attached to the Bill of the Government of Union Territories Act shows that it was intended to establish Legislatures and also Council of Ministers in the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Doman and Diu and Pondicherry, broadly, on the pattern of the scheme in force in some of the Part C States under the Government of Part C States Act, 1951. We have already observed that the division of the territory in Part A, Part B and Part C States were motivated by historical, political and social considerations as well as for administrative exigencies. Those administrative exigencies required that the Government of such territories was to be done in accordance with the needs and peculiar realities of each of them. We have further noted that problems of different territories were not always similar, and sometimes, they were completely different. Therefore, the needs of elasticity and of administrative experimentation existed. In the circumstances, therefore, the conferment of a large discretion on the Central Government cannot be said to be arbitrary to the extent of making it offensive and violative of Article 14 of the Constitution.

       Article 226-Constitution (Fourteenth Amendment) Act, 1962, Section 3 (3) -Power of Central Government to nominate persons to be members of Legislative Assembly of union Territory-Constitutional validity.

       Questions of soundness of reasons why nominations were made by Central Government, is outside purview of judicial review. Court can not go into question of correctness or adequacy of facts and circumstances on which subjective satisfaction of Central Government bad been based. Satisfaction of Executive, being a subjective one, can not be tested by reference to any objective tests and therefore not fit for judicial determination -Matter involves political considerations. Held, matters of nominations can not be subject matter of judicial determination.

       Article 239-A-Constitntion (Fourteenth Amendment) Act, 1962, Section 3 (3)-Article 239-A of constitution enables the parliament to create in Union territories specified therein a body, whether elected or partly nominated and party elected to function as a Legislature for the union territory- The discretion conferred on the Central Government by Section 3 (3) did not vitiate and turn it unconstitutional.

       Undoubtedly, Article 239-A of the Constitution enables the Parliament to create in the Union territories specified therein a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory. This has to be done by enacting a law for that purpose. In the exercise of the said enabling powers the Parliament enacted the Act and by Section 3 thereof, it has specifically created a Legislative Assembly for the Union territory which is partly nominated and partly elected. A reading of sub-sections (1), (2) and (3) together makes this very clear. Now, the Parliament, while creating such a partly nominated and parity elected Legislative Assembly, left to the discretion of the Central Government the question as to when the nomination was to be made. This provision which was inserted in sub-section (3) appears to have been motivated by the need of giving flexibility, elasticity and an opportunity of experimentation to the Central Government, considering the diversity and dissimilarity of the problems faced by each Union territory and the particular needs of the said territory at a particular time. Therefore, it is obviously erroneous to say that Section 3 of the Act is ultra vires the powers of Parliament under Article 239-A of the Constitution. In any event, it will be pertinent to recall that the discretion conferred on the Central Government by sub-section (3) of Section 3 of the Act does not vitiate and turn it unconstitutional as violative of Article 14 of the Constitution.

       Article 368-Powers under Article 368-Large, wide but not unlimited.

       It was submitted on behalf of the petitioners that the powers of Parliament to amend the Constitution are not unlimited, unrestricted or unfettered. The amending powers conferred by Article 368 of the Constitution, though large, are nonetheless limited to same extent, for such powers are indeed bounded by the basic structure or the basic features of the Constitution. One of the main features of our Constitution is that a republican and democratic form of Government has been established and, therefore, any Act amending the Constitution that abrogates such democratic form of Government or is susceptible of causing such abrogation will be void as exceeding the Parliaments powers to amend the Constitution. Democratic form of Government, the argument proceeds, implies a Government by the people and, therefore, a Government by persons chosen by the People, a choice that has necessarily to be done through the election process for Democracy proceeds on the basic assumption that the country should be governed by the representatives of the People. Article 239-A enables the Parliament to inter alia create in the Union territories specified therein a body partly nominated and partly elected. Therefore, Section 4 of the Constitution (Fourteenth Amendment) Act, 1962 through which the said Article 239-A was inserted in the Constitution is beyond the powers of the Parliament under Articles 368 to amend the Constitution.

       Article 368 (1) provides that notwithstanding anything in the Constitution, Parliament may in exercise of its Constitutional powers amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in the same Article Constituent power is indeed vested in the Parliament and therefore, from the wide language in which the Article is couched, it would appear that, subject only to compliance with the procedure laid down in Article 368 itself, the powers of Parliament to amend Constitution are unlimited.

       Though the fundamental rights did not constitute a restriction on the amending power of the Parliament, there are nonetheless other implied limitations for the power to amend could not be used to alter the basic structure or the, basic features of the Constitution. The majority of the learned Judges held the view that though the amending power is a wide power and it reaches every Article or every part of the Constitution, Article 368 does not enable the Parliament, to alter the basic structure of the framework of the Constitution, for Parliament cannot, in the exercise of its amending power abrogate or emasculate or damage the basic elements or the fundamental features of the Constitution, or to destroy its identity. Amendment of the Constitution necessarily contemplates, in the words of Khanna, J., that the Constitution has not to be abrogated, but only changes have to be made in it, because the word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to the alteration. In fact, while dealing with the question of validity of Section 55 of the Constitution (Forty Second Amendment) Act, 1976, the Court observed that since the Constitution had conferred a limited amending power on the Parliament, the latter cannot; in the exercise if that limited power, enlarge that very power into an absolute power. It was further added that a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. It could be thus seen that the petitioners contention that though the powers of the Parliament to amend the Constitution are very wide and reach every Article and part of it, nonetheless such powers are not unlimited, unrestricted or unfettered, is correct. Such powers are indeed on the contrary limited, for Article 368 does not enable the Parliament to alter the basic structure of the Constitution.

       Article 368 and 239-A-Constitution (14th Amendment) Act, 1962 - Section 4-Article 239-A does not indeed damage emasculates or destroys the identity of the constitution-Section 4 of the Act is not beyond the amending powers of the Parliament under Article 368.

       India is a vast country, different territories having brought within it at the time of Independence. Some of those territories were under the direct British rule, others were under the rule of Princes and some were being administered by Political Commissioners. Therefore, territories coming from different sources, to say so, had been integrated into the territory of India. This historical background had to be borne, and was actually borne, in mind by the founder-fathers of the Constitution, for the said territories were not only being administered in different manners but also they had their peculiar conditions which were to be considered and safeguarded. Hence the founder fathers of the Constitution classified the territory of India in Part A, part B and Part C States. Part C States were roughly corresponding to the territories which prior to the Independence were being administered by Political Commissioners. They had their peculiar kind of problems and in many a case they were inter se dissimilar. The circumstances were naturally requiring a different kind of administration for those territories, and as such, considering the administrative exigencies, Article 240 was inserted in the Constitution and the Government of Part C States Act, 1951 was enacted by the Parliament in exercise of its powers under the said Article 240.

       The original Article 240 of the Constitution was enabling the Parliament to create or continue for any State specified in Part C of the First Schedule and administer through a Chief Commissioner or Lt. Governor (a) a body whether elected or partly nominated and partly elected, to function as a Legislature for the State, or; (b) a Council of Ministers, or both with such Constitution, powers and functions, in each case, as may be specified in the law. This classification of the States as Parts A, Band C had been, however abolished by the Constitution (Seventh Amendment) Act, 1956, and the territory of India was divided into only two categories, viz. States and Union territories The original Part VI of the Constitution was substituted and the original Articles 239 and 240 were replaced. Wide powers were vested in the President for the administration of the Union territories which correspond to Part C State. The States Reorganisation Act, 1956, was accordingly enacted. The Constitution (Fourteenth Amendment) Act sought to restore the position which was existing at the inception of the Constitution as can be seen from the Statement of Objects and Reasons appended to the Constitutional Amendment Bill.

       It is stated therein that it is proposed to create Legislatures and Council of Ministers in the Union territories of Himachal Pradesh, Manipur, Tripura. Goa, Daman and Diu and Pondicherry, broadly on the same pattern which was in force in some of the Princely States before the reorganisation of the States. It was further stated that the Bill seeks to confer the required legislative power on the Parliament to make necessary laws for the purpose through a new Article 239-A which generally follows the provisions of Article 240 as it stood before the reorganisation of the States. Pursuant to this, the Act was enacted by the Parliament and once again, in the Statement of Objects and reasons, it is specifically stated that the Bill had been introduced in order to establish Legislatures and Council of Ministers in the Union territories specified therein, broadly, on the pattern of the scheme in force in some of the Part C States under the Government of Part C States Act, 1951, which had been repealed by the States Reorganisation Act, 1956. It is thus clear that the Constitution as it stood at its inception was having a provision similar to Article 239-A of the Constitution which was inserted in the Constitution by the Constitution (Fourteenth Amendment) Act, 1962. In this historical background of the constitutional provisions relevant for our case it is thus rather difficult to accept the contention of the petitioners that Section 4 of the Constitution (Fourteenth Amendment) Act, 1962 is beyond the amending power of the Parliament under Article 368 of the Constitution. In fact, a provision similar to Article 239-A had been inserted in the original Constitution, being the original Article 240. The said Article was enabling the Parliament to create in Part C States a body nominated, or elected, or partly nominated and partly elected, to function as Legislature for the respective States.

       This means that though republican and democratic form of Government is a basic feature of our Constitution and though such democratie form of Government implies a Government by the representatives of the people, it was nonetheless felt that in view of the historical, social and political reasons as well as for administrative expediency, the creation of .some Legislatures in some territories entirely nominated or partly elected and partly nominated, was justified and that this was not abrogating that essential feature of the Constitution. Further, it may be pointed out that power of nomination has existed in the Constitution right from the inception.

       For instance, Article 331 of the Constitution provides that notwithstanding anything in Article 81, the President may if he is of the opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People. Similarly, Article 80, which deals with the composition of the Council of States, provides that the Council of States shall consist of (a) twelve members to be nominated by the President in accordance with the provisions of clause (3) ; and (b) not more than two hundred and thirty-eight representative of the -States and of the Union territories. So also, while giving the composition of the Legislative Council of a State, Article 171 (3) (e) provides that some members shall be nominated by the Governor in accordance with the provisions of clause (5). These provisions clearly show that the power of nominations of member of a Legislature is not abridging or abrogating the basic feature of the Constitution which requires a democratic form of Government.

       The basic feature of the democratic form of Government which is the corner-stone of our Constitution is the broad form of democracy that was known to Our Nation when the Constitution was enacted with such adjustments and modifications as exigencies may demand but not so as to leave the mere husk of a popular rule. Section 4 of the Constitution (Fourteenth Amendment) Act, 1962 by inserting Article 239-A in the Constitution has not, in any manner, gone against that broad form of democracy as was known to Our Nation when - the Constitution was enacted. Article 239-A does not indeed damage, emasculates or destroys the identity of the Constitution. We therefore, have no hesitation in holding that Section 4 of the Constitution (Fourteenth Amendment) Act is not beyond the amending powers of the Parliament under Article 368 of the Constitution.

       CONSTITUTION (FOURTEENTH AMENDMENT) ACT, 1962

       Section 3 (3) -Section 3(3) Confers on Central Government a discretionary power-Section 3 (3) Confers on Central Government limited guided, fettered and not arbitrary discretion.

       It is clear from the provisions of Section 3 (3) the Act that, except for postulating that the Central Government may nominate not more than three persons, not being persons in the service of Government, no guidelines were laid down therein indicating from what class or classes the persons to be nominated should come, nor in what cases the nomination should be of one, or of two, or of three persons. This may apparently give Support to the petitioners contention that an unguided unfettered and arbitrary discretion was conferred on the Central Government to that effect. But on a deeper consideration of the Act as a whole, we are of the firm view that It is not so and that through the field of discretion is large, some guidelines were actually provided for. It was indeed argued that the word "chosen" has necessarily to mean "selected through elections", for in the democratic from of Government which constitutes one of the basic features of our Constitution, a choice can be made only through the democratic process of elections. The word "choose" has the common dictionary meaning of "select out of greater number" i.e., pick up out of a plurality.

       The word "choose" is thus, in its meaning, wide enough to take within it a selection made by any mode or process, and as such it would be necessary to see whether the word "chosen" occurring in Sections 4 and 14 of the Act Was used in its ordinary dictionary meaning, or in the meaning as contended by the petitioners. Though it is undisputable that a democratic form of Government constitutes one of the basic features of our Constitution it is also undeniable that the Constitution-makers had, right from the inception of the Constitution, contemplated cases where the filling of seats in various bodies was not made by way of elections, but through nomination. This no manner is, as we have already observed, destroying the basic structure of our Constitution, nor is it affecting the democratic form of Government. Thus, a choice of persons to be nominated does not imply that the selection has necessarily to be made by elections. Sections 4 and 14 of the Act are operative both in cases of persons keeping a seat in the Legislative Assembly of a Union territory through elections and of persons to be nominated. That this view is correct is also corroborated by the fact that in Section 14, the disqualifications provided for are not restricted only for being chosen to fill, a seat in the Legislative Assembly of a Union territory but also operate for being a member of such Assembly.

       It can thus be seen that in addition to the guideline that persons in the service of Government cannot be nominated inserted in Section 3 (3) itself, Sections 4 and 14 provide of other guideline, viz., that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a Union territory unless he is a citizen of India. is not less than twenty-five years of age, possess such other qualifications as prescribed in that behalf by or under any law, and that he is not qualified for being chosen as, and for being, a member of either House of Parliament under the provision of subclause (b). sub-clause (c) or sub-clause (4) of clause (1) of Article 102 of any law made in pursuance of that Article. Another guideline is found, in Section 5 (c) of the Representations of the People Act, 1951. The said section provides for qualifications for membership of Legislative Assembly and prescribes that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless. Inter alia, he is an elector for any Assembly constituency in that State. Some guidelines for making the choice of the persons to be nominated had, therefore, been prescribed in the Act itself and some other flow from the co-related laws, in particular from the representation of the People Act, 1951, though no guidelines were enunciated as to indicate in what circumstances or cases nominations are to be made, the contention that sub-section (3) of Section 3 of the Act confers on the Central Government not unlimited, unguided, unfiltered and arbitrary discretion.

       Section 3 (3)-Nomination of A by Central Government to be member of Legislative Assembly of Union Territory-Validity-A holding office of profit as Chairman of a Corporation-A was receiving only T. A. and D. A. -Said allowances meant only to cover expenses A was incurring in discharge of duties.

       Held, Payment of DA and TA was not sufficient to make of Chairman of Corporation as an office of profit. Therefore nomination of not directly hit by provision of Section 3 (3).

       Section 3 (3)-Section 3 (3) confers on Central Government a discretionary power to make or abstain to make nominations to the Legislative Assembly of a Union Territory-It was on such basis that one has to test its legality and constitutional validity.

       Sub-section (3) of Section 3 is not obligatory in nature and constitutes a mere enabling provision empowering the Central Government to nominate persons, not being persons in the service of Government, to be members of the Legislative Assembly of a Union territory. That sub-section (3) is merely an enabling provision empowering the Central Government to make nominations is otherwise not denied by the respondents. It confers on the Central Government a discretionary power to make or to abstain to make nominations to the Legislative Assembly of a Union Territory and, therefore, it is on such basis that one has to test its legality and constitutional validity.