Judgment.- This suit has been filed by Dr. A. Srinivasan, a sitting member of the Madras Legislative Council, for a declaration that the Delimitation of Council Constituencies (Madras) Amendment Order, 1961 issued by the President of India on 15th April, 1961 is ultra vires and void. Article 171, clause (3), sub-clause (b) of the Constitution provides that above one-twelfth of the number of members of the Legislative Council of a State shall be elected by graduates. Dr. A. Srinivasan is one of the members so elected by the graduates. There are five other such sitting members. They are Dr. A. Lakshmanaswami Mudaliar, Dr. P.V. Cherian, Sri S.K. Sambandam, Sri K. Balasubramania Iyer and Sri T. V. Sivanandam (defendants 4 to 8 in the suit). To appreciate the attack of the plaintiff on the impugned order it is necessary to refer to some statutory provisions and the history of the constitution of the Madras Legislative Council to some extent. Article 327 of the Constitution empowers Parliament to make law with respect to elections to either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such Houses. In exercise of that power, Parliament passed the Representation of the People Act, 1950 (XLIII of 1950). Section 11 thereof enacts: “As soon as may be after the commencement of this Act, the President shall, by order determine- (a) the constituencies into which each State having a Legislative Council shall be divided for the purpose of elections to that Council under each of the sub-clauses (a), (b) and (c) of Article 171 ; (b) the extent of each constituency ; and (c) the number of seats allotted to each constituency.” Section 12 of the Act as it originally stood ran as follows: “The President may, from time to time, after consulting the Election Commission, by order, alter or amend any order made by him under section 6, section 9 or section 11.” In exercise of the powers under section 11 of the Representation of the People Act, 1950, the President passed the Delimitation of Council Constituencies (Madras) Order, 1951 (see Gazette of India-Extraordinary, dated 19th September, 1961 page 421 of the Madras Law Journal Acts and Rules Supplement). At that time there was the composite State of Madras including the Telugu Districts and Malabar. At that time there was the composite State of Madras including the Telugu Districts and Malabar. The total number of seats of the State Legislative Council to be elected by the graduates was fixed as six. The State itself was divided into two constituencies, Madras North Graduates’ Constituency and the Madras South Graduates’ Constituency. The Madras North Graduates’ Constituency was to select two candidates and the Madras South Graduates’ Constituency four candidates. The Andhra State was formed in 1953, under the Andhra State Act, 1953 (XXX of 1953). Speaking generally, as a result of that Act, the Madras North Graduates’ Constituency comprising the Telugu Districts went out, and the remaining districts in the residuary State of Madras were formed into one single constituency called the Madras Graduates’ Constituency (vide section 20 of the Andhra State Act and the Third Schedule thereunder). As stated already there were only four seats for the Madras South Graduates Constituency before the separation of Andhra. As a result of the Andhra State Act, 1953 the number of seats elected by the graduates in the residuary State of Madras remained at four for some time, namely, from the appointed day (the day of the formation of the Andhra State 1st October, 1953) till 21st April, 1954, and after 21st April, 1954 the number of seats elected by graduates was increased to six (vide section 19 of the Andhra State Act). To fill up the extra vacancies which were then created with effect from 21st April, 1954, elections took place and it was in those elections that the plaintiff Dr. A. Srinivasan got elected for the first time. The other member who was elected was Dr. V. K. John. The term of Dr. A. Srinivasan and Dr. V. K. John was six years. That was under section 156 of the Representation of the People Act, 1951 (XLIII of 1951). In 1956 as a result of the States Reorganisation Act (XXXVII of 1956), Malabar went out of Madras State and Nagercoil became part of the Madras State. Under section 35 of the States Reorganisation Act, as it was originally enacted, the number of seats elected by the graduates which was six till that date was reduced to four and the two persons who were to go out were left to be determined by the Chairman of the Legislative Council. It is the plaintiff’s case that Dr. Under section 35 of the States Reorganisation Act, as it was originally enacted, the number of seats elected by the graduates which was six till that date was reduced to four and the two persons who were to go out were left to be determined by the Chairman of the Legislative Council. It is the plaintiff’s case that Dr. P. V. Cherian, the then Chairman of the Legislative Council (he is also the Chairman now) wanted to send out the plaintiff and Dr. V. K. John in exercise of this power on account of personal reasons-it is alleged that the plaintiff and Dr. V.K. John were active members of the Council in the opposition and were found to be inconvenient. Incidentally it may be mentioned that the plaint has made a mistake in referring to the situation as having arisen under the Andhra State Act, 1953, but the point has been clarified in the evidence of the plaintiff that the situation arose under section 35 of the States Reorganisation Act (XXXVII of 1956). There appears to have been a protest about the reduction of seats in the Madras Graduates’ Constituency from six to four. Whatever it was, the number was restored to six by Act LXVII of 1956 and the provision empowering the Chairman of the Legislative Council to choose two out of six was eliminated. This position was reiterated in the Legislative Councils Act (XXXVII of 1957)-vide section 7 thereof. The result was that the plaintiff and Dr. V. K. John were not sent out and they continued to be members. Dr. John however died sometime in 1958. A casual vacancy thus arose and in that vacancy Sri S.K. Sambandam (defendant 6) was elected. Under that election he could sit till 21st April, 1960. In 1960, however, both the plaintiff and Sri S. K. Sambandam were re-elected and their terms of membership will expire on 21st April, 1966. On 18th April, 1961, when the impugned order was passed, besides the plaintiff and Sri Sambandam, the other members of the Graduates’ Constituency were Dr. A. Lakshmanaswami Mudaliar, Dr. P. V. Cherian, Sri Balasubramania Iyer and Sri Sivanandam. The term of membership of Dr. Lakshmanaswami Mudaliar and Dr. P. V. Cherian will expire on 20th April, 1964. The term of membership of Sri Balasubramania Iyer and Sri Sivanandam was due to expire on 20th April, 1962. A. Lakshmanaswami Mudaliar, Dr. P. V. Cherian, Sri Balasubramania Iyer and Sri Sivanandam. The term of membership of Dr. Lakshmanaswami Mudaliar and Dr. P. V. Cherian will expire on 20th April, 1964. The term of membership of Sri Balasubramania Iyer and Sri Sivanandam was due to expire on 20th April, 1962. It may be mentioned at this stage that the reason why the terms of the membership of the different members expire on different dates is that under the statutory provisions the Legislative Council is not subject to dissolution, but one-third of the members shall retire by turns. As a matter of detail reference may be made to Article 172 (2) of the Constitution, section 156 of the Representation of the People Act, 1951, the Madras Legislative Council Term of Office of Members Order, 1962, published in G.O. No. 1864, (Public Elections), dated 21st July, 1952 (page 112 of the Madras Rules and Acts Supplement of M.L.J.) and the Fourth Schedule in the Andhra State Act. Though it may not be quite relevant, it may be mentioned that subsequent to the filing of the suit (suit was filed on 30th October, 1961) Sri Balasubramania Iyer and Sri Sivanandam were re-elected for a period of six years with effect from 21st April, 1962. Focussing our attention once again on the state of things when the impugned order was passed on 18th April, 1961, the position was as follows: The whole State of Madras including Nagercoil District which came into the Madras State as a result of the States Reorganisation Act (XXXVII of 1956), formed one single constituency for the purpose of election by the graduates under Article 171 (3)(b). The number of seats available was six. All the six members were elected from the entire constituency and their term of membership was due to expire on the following dates . Sri K. Balasubramania Iyer and Sri Sivanandam 20 — 4 — 1962 Dr. A. Lakshmanaswami Mudaliar and Dr. P. V. Cherian } 20 — 4 — 1964 Dr. A. Srinivasan and Sri Sambandam 20 — 4 — 1966 Before explaining what the President did under the impugned Order, it will be necessary to refer to the fact that by Act XX of 1960 which received the President’s assent on 8th May, 1960, Parliament amended section 12 of the Representation of the People Act, 1950. A. Srinivasan and Sri Sambandam 20 — 4 — 1966 Before explaining what the President did under the impugned Order, it will be necessary to refer to the fact that by Act XX of 1960 which received the President’s assent on 8th May, 1960, Parliament amended section 12 of the Representation of the People Act, 1950. As stated already section 12, as it originally stood, ran thus: “The President may, from time to time, after consulting the Election Commission by order, alter or amend any order made by him under section 6, section 9 or section 11.” By Act XX of 1960 the above was renumbered as sub-section (1) of section 12 and the following was added as sub-section (2): “An order under sub-section (1) may contain provisions for the allocation of any member representing any Council constituency immediately before the making of the order to any constituency delimited anew or altered by the order and for such other incidental and consequential matters as the President may deem necessary.” The impugned order purports to have been passed in exercise of powers conferred by section 12 of the Representation of People Act, 1950, and must be presumed to have been enacted in the exercise of the powers under section 12 of the Representation of the People Act, 1950, as amended by Act XX of 1960. The impugned order made alterations in the Delimitation of Council Constituencies (Madras) Order, 1951, in respect of the Graduates’ constituencies, Teachers’ constituencies and Local Boards’ constituencies. We are now concerned only with the alterations in respect of the Graduates’ constituency. We have seen that prior to the impugned order the whole of the Madras State constituted a single constituency for the election of six members by the graduates. In other words each of the six members had been elected by the graduates of the entire State. What was done by the impugned order was that in respect of graduates, the State was split up into five constituencies called (1) Madras District Graduates’ Constituency, (2) Madras North Graduates’ Constituency, (3) Madras East Central Graduates’ Constituency, (4) Madras West Central Graduates’ Constituency and (5) Madras South Graduates’ Constituency. The Madras District Graduates’ Constituency is to consist of the Madras District with two seats. The Madras North Graduates’ Constituency consists of Chingleput, North Arcot and South Arcot Districts and elects one member. The Madras District Graduates’ Constituency is to consist of the Madras District with two seats. The Madras North Graduates’ Constituency consists of Chingleput, North Arcot and South Arcot Districts and elects one member. The Madras East Central Graduates’ Constituency consisting of Thanjavur and Tiruchirapalli Districts elects one member. The Madras West Central Constituency consisting of Salem, Coimbatore and Nilgiris Districts elects one member. The Madras South Graduates’ Constituency consisting of Madurai, Ramanathapuram, Timnelveli and Kanyakumari Districts elects one member. Paragraph 3 of the impugned order makes allotment of the then sitting six members to one or the other of the newly constituted constituencies. Dr. A. Lakshmanaswami Mudaliar and Dr. P. V. Cherian were allotted to the Madras District Graduates’ Constituency, Sri S. K. Sambandam, to Madras North Graduates’ Constituency, Sri K. Balasubramania Iyer, to Madras East Central Graduates’ Constituency, Sri T. V. Sivanandam, to Madras West Central Graduates’ Constituency and Dr. A. Srinivasan, the plaintiff, to the Madras South Graduates’ Constituency. Before proceeding further it will perhaps be well to quote the actual terms of the impugned order in so far as they are relevant for our purpose: The Delimitation of Council Constituency (Madras) Amendment Order, 1961. G.S.R. 567.- In exercise of the powers conferred by section 12 of the Representation of the People Act, 1950, the President after consulting the Election Commission, is pleased to make the following Order, namely:- 1. This Order may be called The Delimitation of Council Constituencies (Madras) Amendment Order, 1961.‘ 2. In the Delimitation of Council Constituencies (Madras) Order, 1951, for the table, the following shall be substituted, namely:- TABLE Name of Constituency (1) Extent of Constituency (2) Number of seats (3) Graduates’ Constituencies 1. Madras District Graduates Madras District 2 2. Madras North Graduates Chingleput, North Arcot and South Arcot Districts 1 3. Madras East Central Graduates Thanjavur and Tiruchirapalli Districts 1 4. Madras West Central Graduates Salem, Coimbatore and Nilgiris Districts 1 5. Madras South Graduates Madurai, Ramanathapuram, Tirunelveli and Kanyakumari Districts 1 3. Madras District Graduates Madras District 2 2. Madras North Graduates Chingleput, North Arcot and South Arcot Districts 1 3. Madras East Central Graduates Thanjavur and Tiruchirapalli Districts 1 4. Madras West Central Graduates Salem, Coimbatore and Nilgiris Districts 1 5. Madras South Graduates Madurai, Ramanathapuram, Tirunelveli and Kanyakumari Districts 1 3. As from the date of this Order, every member of the Madras Legislative Council whose name is specified in the column of the table below shall be deemed to have been elected to this said Council by the Council constituency specified against his name in the second column of the said table: TABLE In understanding the attack in the plaint on the impugned Order it has to be mentioned that the plaint as originally drafted made no reference to the amendment effected in section 12 of the Representation of the People Act (XX of 1940). When the plaintiff sent that plaint to the Government of India with his notice of suit under section 80, Civil Procedure Code, the Government of India, in their reply, drew the attention of the plaintiff to the amendment effected by Act XX of 1960 and also relied on the immunity conferred by Article 329, clause (a) of the Constitution. The upon the plaintiff, added a new paragraph, numbered as 10-A in the plaint, to deal with the contention raised in the reply notice. However, for our present purpose we can deal with the matter in a consolidated way. It will be convenient at this stage to quote Articles 327 and 329 of the Constitution. “327. Subject to the provisions of this Constitution, Parliament may from time to time by law make provision with respect to all matters relating to, or in connection with, elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses.” “329. Notwithstanding anything in this Constitution- (a) the validity of any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under Article 327 or Article 328, shall not be called in question in any Court ; (b) no election to either House of Parliament or to the House or either House of the Legislature of a State shall be called in question except by an election petition presented to such authority and in such manner as may be provided for by or under any law made by the appropriate Legislature.” While in paragraph 8 of the plaint the plaintiff has conceded the power of Parliament to make laws with respect to election to either House of the Legislature including delimitation of constituencies, in paragraph 10-A (ii) he attacks the validity of Act XX of 1960, the Representation of People Amendment Act, and states that the conferment of power under section 12 (2) of the Representation of the People Act, 1950, on the President to allocate the existing members of the Council to different or newly constituted constituencies is ultra vires, arbitrary, discriminatory and void. Referring to the immunity under Article 329 this is what the plaintiff states in paragraph 10-A (iii)- "The plaintiff states that the bar to interference by Courts in electoral matters under Article 329 of the Constitution can only refer to the power of the Parliament or State Legislature to make Law relating to delimitation of constituencies or allotment of seats to such constituencies. But when the Parliament confer; arbitrary power of the President to allot existing members to different or newly constituted constituencies, the plaintiff states that the bar under Article 329 is inoperative.” In other words, the position adumbrated by the plaintiff is that while Parliament itself may have power to make an Order splitting up the entire State which was one constituency into five constituencies allotting existing members to the newly constituted constituencies, Parliament could not validly delegate that power to the President, without laying down any criterion, for adoption by the President, thereby enabling the President to split up the constituency and make allotment of the existing members arbitrarily. In paragraph 8 of the plaint, however, the plaintiff concedes the power of Parliament to make laws with respect to all matters in connection with election to either House of the Legislature including the delimitation of constituencies, and in paragraph 9 he also concedes the power of the President under section 12 of the Representation of the People Act to alter or amend the order made by him previously under section 11 delimiting the constituencies. The plaintiff also states in paragraph 9 that in excercise of the said power it is open to the President to divide a single constituency into five constituencies but says that the President has no power to allot the existing members to different and newly-constituted constituencies. The first ground, therefore, on which the plaintiff attacks paragraph 3 of the impugned Order, is that the President has no authority to make an allotment of the existing members to the different and newly constituted constituencies. Lower down he states with reference to this contention that the existing members having been elected from the entire State, it is not competent to the President to order that any member ceases to represent the electorate of the entire State but will be deemed to represent a limited area of the State arbitrarily allocated by him. The plaintiff says that that would also affect the right of the electorate who elected the member to represent the electorate of the entire State. The second ground on which paragraph 3 of the Order in question is attacked is that it is void under Article 14, read with Article 13, of the Constitution on account of hostile discrimination against the plaintiff and other members in favour of the first and second named members in the table appended to paragraph 3 and in particular Dr. P. V. Cherian, the second named member. Explaining this contention the plaintiff says in paragraph 10 of the plaint that when the number of seats was reduced from 6 to 4 by the Andhra State Act, 1953, with power to the Chairman of the Council to pick out two members who were to lose their seats, the Chairman, Dr. P. V. Cherian, determined that Dr. V.K. John and the plaintiff should retire. The plaintiff alleges that this was done for the personal interest of Dr. P. V. Cherian, determined that Dr. V.K. John and the plaintiff should retire. The plaintiff alleges that this was done for the personal interest of Dr. V. P. Cherian so that two of the active members of the Council in the Opposition were put aside. I have already pointed out that the reference to the Andhra State Act, 1953, is a mistake for the States Reorganisation Act, 1956, and this has been clarified in the evidence of the plaintiff. The plaintiff goes on to state in paragraph 10 of the plaint: "Again on the present occasion the plaintiff has been discriminated against presumably on the advice of the State Government (3rd defendant) accepted by the Election Commission and the Union Government who in this context have advised the President. While the plaintiff who is a Madras Tamilian, born and bred up and educated in Madras from his childhood and has been carrying on his profession in Madras is allocated to Madras South which included Kanyakumari District transferred from Kerala, Dr. P. V. Cherian, a Malayalee coming from the Kerala State and Dr. A. Lakshmanaswami Mudaliar, a native of Arcot, are allocated to Madras City. Further while Sri K. Balasubramania Iyer, Sri S. K. Sambandam and Sri. T. V. Sivanandam coming from Thanjavur, South Arcot and Coimbatore, Districts have been rightly allotted to Madras East Central. Madras North and Madras West Central respectively, the plaintiff coming from Madras and who ought to have been allotted to Madras has been allotted to Madras South. The plaintiff states that this is a case of hostile discrimination resulting from looking upon the plaintiff with ‘an evil eye’. Dr. V. K. John, having died, escaped the ‘evil eye’ of the State Government and the plaintiff is solely facing the discrimination and respectfully submits that he be relieved therefrom. Thus Para. (3) of the Delimitation of Council Constituencies (Madras) (Amendment) Order, 1961, is beyond the competence of the President both for want of authority and discrimination and as such ultra vires, illegal and void. " The first defendant in the suit is the Union of India represented by the Secretary to the President. The second defendant is the Election Commission, New Delhi. The third defendant is the State of Madras and defendants 4 to 8 are Dr. A. Lakshmanaswami Mudaliar, Dr. " The first defendant in the suit is the Union of India represented by the Secretary to the President. The second defendant is the Election Commission, New Delhi. The third defendant is the State of Madras and defendants 4 to 8 are Dr. A. Lakshmanaswami Mudaliar, Dr. P. V. Cherian, Sri S. K. Sambandam, Sri K. Balasubramania Iyer and Sri T. V. Sivanandam. Defendants 1 and 2 have filed a joint written statement, contending that section 12 (1) of the Representation of the People Act, 1950, empowers the President to amend the previous Order under section 11 after consulting the Election Commission and that sub-section (2), which came into force under Act XX of the 1960, specifically empowers him to allot any member representing any constituency immediately before the making of the Order to any constituency delimited anew or altered by the Order, that the Order in question is therefore justified by the terms of section 12 (1) and (2) of the Representation of the People Act, 1950, and that under Article 329 (a) of the Constitution the validity of sub-section (2) of section 12 cannot be called in question in any Court of law. Regarding the contention of discrimination, it is alleged that the allocation was made according to certain principles evolved by the Election Commission, which are stated thus: "In Two-Member Constituencies the main basis of the allotment is that the terms of office of both the members should be the same, so that the Constituency need not come up for election more than once in six years. Subject to this consideration, members have been allotted, as far as practicable to their own districts. It is pointed out that out of the six sitting members four resided in the Madras City, namely, Dr. A. Lakshmanaswami Mudaliar, Dr. P. V. Cherian, Sri K. Balasubramania Iyer and the plaintiff. But of these four, only the terms of membership of two of them, namely, Dr. A. Lakshmanaswami Mudaliar and Dr. P.V. Cherian expire on the same date, namely, 20th April, 1964, whereas the dates of expiry of the term of membership of the other two Sri K. Balasubramania Iyer and Dr. But of these four, only the terms of membership of two of them, namely, Dr. A. Lakshmanaswami Mudaliar and Dr. P.V. Cherian expire on the same date, namely, 20th April, 1964, whereas the dates of expiry of the term of membership of the other two Sri K. Balasubramania Iyer and Dr. Srinivasan were different, namely, 20th April, 1962, and 20th April, 1966, as disclosed in the evidence, and in order to avoid the double member constituency, namely, the Madras District Constituency coming up for election more than once in six years, Dr. A. Lakshmanaswami Mudaliar and Dr. P.V. Cherian whose terms expired on the same date, namely, 20th April, 1964 were allocated to Madras District. To put in another way, it is pointed out that any other allocation of these four persons to the Madras District Graduates Constituency would have entailed election twice in a period of six years and that was why it was avoided. Having thus allotted Dr. A. Lakshmanaswami Mudaliar and Dr. P. V. Cherian to the Madras District Graduates Constituency, four were left. Dr. Sivanandam, whose permanent address is shown in the Coimbatore District, was allotted to the Madras West Central Graduates Constituency comprising of Salem, Coimbatore and Nilgiris Districts. Sri S. K. Sambandam, whose permanent place of residence is South Arcot District, was allocated to Madras North Graduates Constituency comprising of Chingleput, North Arcot and South Arcot Districts. There remained only two, Sri K. Balasubramania Iyer and Dr. A. Srinivasan. They were allocated respectively to Madras East Central Graduates Constituency and Madras South Graduates Constituency respectively. It is urged that the general principles on the basis of which the allocation was made were reasonable and could not be considered discriminatory. The written statement of the third defendant, the State of Madras, is identical with the written statement of defendants 1 and 2. The other defendants have filed no written statements, but at the trial Sri Ramaprasada Rao appeared for Dr. P.V. Cherian and cross-examined the plaintiff. The following issues were framed by the City Civil Court where the suit was first laid: 1. Is para. 3 of the Delimitation of Constituencies (Madras) Amendment Order, 1961, ultra vires illegal and void ? 2. Has there been any discrimination against the plaintiff ? 3. Is the said order void under Article 14 read with Article 13 of the Constitution for hostile discrimination ? 4. Is para. 3 of the Delimitation of Constituencies (Madras) Amendment Order, 1961, ultra vires illegal and void ? 2. Has there been any discrimination against the plaintiff ? 3. Is the said order void under Article 14 read with Article 13 of the Constitution for hostile discrimination ? 4. Whether it is within the competence of the President to allocate existing members to any new constituency ? 5. Is the suit maintainable ? 6. Can the validity of section 12, sub-section (2) of the Representation of the People Act, 1961, be questioned in this Court ? 7. To what relief, if any, is the plaintiff entitled ? The first question that arises for consideration is the validity of section 12 (2) of the Representation of the People Act, 1950, introduced by Act XX of 1960, because the impugned order may be assumed to have been passed in exercise of the powers under section 12 (2). Now, if Article 329 (a) of the Constitution had not been there, I have little doubt that section 12 (2) must be held to be ultra vires the Parliament. That is because section 12 (2) does not lay down any principle or policy for the guidance of the President in making the allocation of the existing members to the constituencies, which may be newly formed by the President’s Order. The case law bearing on this aspect of the matter has been summarised by the Supreme Court in the form of five propositions in Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and others1. I shall quote only the relevant portions: "(i) A statute may itself indicate the persons or things to whom its provisions are intended to apply and the basis of the classification of such persons or things may appear on the face of the statute or may be gathered from the surrounding circumstances known to or brought to the notice of the Court. In determining the validity or otherwise of such a statute, the Court has to examine whether such classification is or can be reasonably regarded as based upon some differentia which distinguishes such persons or things grouped together from those left out of the group and whether such differentia has a reasonable relation to the object sought to be achieved by the statute no matter whether the provisions of the statute arc intended to apply only to a particular class of persons or things. Where the Court finds that the classification satisfies the tests, the Court will uphold the validity of the law.......................... (ii) A statute may direct its provisions against one individual persons or thing or to several individual persons or things but no reasonable basis of classification may appear on the face of it or be deducible from the surrounding circumstances, or matters of common knowledge. In such a case the Court will strike down the law as an instance of naked discrimination........................ (iii) A statute may not make any classification of the persons or things for the purpose of applying its provisions but may leave it to the discretion of the Government to select and classify persons or things to whom its provisions arc to apply. In determining the question of the validity or otherwise of such a statute, the Court will not strike down the law out of hand only because no classification appears on its face or because a discretion is given to the Government to make the selection or classification but will go on to examine and ascertain if the statute has laid down any principle or policy for the guidance of the exercise of discretion by the Government in the matter of the selection or classification. After such scrutiny the Court will strike down the statute if it does not lay down any principle or policy for guiding the exercise of discretion by the Government in the matter of selection or classification, on the ground that the statute provides for the delegation or arbitrary and uncontrolled power to the Government so as to enable it to discriminate between persons or things similarly situate and that therefore, the discrimination is inherent in the statute itself. In such a case the Court will strike down both the law as well as the executive action taken under such law......................" This classification was endorsed in a later decision The Delhi Slums case (Jyoti Pershad v. Administrator for the Union Territory of Delhi1 ). Their Lordships reaffirmed the principles and made a summary on slightly different lines. Propositions (1) and (2) are as follows: "(1) If the statute itself or the rule made under it applied unequally to persons or things similarly situated, it would be an instance of a direct violation of the constitutional guarantee and the provision of the statute or the rule in question would have to be struck down. (2) The enactment or the rule might not in terms enact a discriminatory rule of law but might enable an unequal or discriminatory treatment to be accorded to persons or things similarly situated. This would happen when the Legislature vc;ts a discretion in an authority be it the Government or an administrative official acting either as an executive officer or even in a quasi-judicial capacity by a legislation which does not by clown any policy or disclose any tangible or intelligible purpose, thus clothing (he authority with unguided and arbitrary powers enabling it to discriminate. " But here there is Article 329 (a) which prevents this Court from questioning the validity of section 12 (2) of the Representation of the People Act, 1950. It is certainly law, made or purporting to be made under Article 327 of the Constitution by Parliament. The next question is whether the impugned Order of the President can also enjoy the immunity conferred by Article 329 (a). It seems to me that it cannot. To attract the immunity under Article 329 (a), the law must be made or purporting to be made under Article 327. Turning back to Article 327, it speaks only of Parliament making the law relating to elections including delimitation of constituencies. It does not in terms refer to law made by the President in exercise of the powers conferred by the Parliament. Since Article 329 is a provision ousting the jurisdiction of the civil Courts, it must be construed strictly, and the immunity conferred thereby cannot be extended beyond its express terms. It will, therefore, be open to this Court to examine the validity of the impugned order. Since Article 329 is a provision ousting the jurisdiction of the civil Courts, it must be construed strictly, and the immunity conferred thereby cannot be extended beyond its express terms. It will, therefore, be open to this Court to examine the validity of the impugned order. As already stated the plaint itself in paragraph 9 concedes the power of the President, to divide a single constituency into five constituencies. But even apart from that concession, the President has got power to alter a single consti:uency into five constituencies by virtue of section 12 (1) of the Representation of the People Act, 1950. Turning to the question whether the President has power to make the allotment of the existing members to the newly constituted constituencies it is clear that section 12 (2) of the Representation of the People Act expressly confers that power on the President. The only question is whether the exercise of that power has not been valid. That again reduces itself to the question whether there has been a violation of Article 14 of the Constitution which runs: "The State shall not deny to any person equality before law or equal protection of laws within the territory of India." The contention of the plaintiff’s learned counsel Sri V. V. Raghavan on this is that the President’s Order does not itself indicate any reason for the allotment of the six members to the particular constituencies noted against their names and that therefore the Order is on the face of it arbitrary and must be struck down as violative of Article 14. Actually evidence has been led by defendants 1 and 2 by examining the Deputy Election Commissioner Sri P. S. Subramanian, as D.W. 1 to speak to the principles on which and the circumstances under which the impugned Order was passed. The question is whether the Court is precluded from considering that evidence and" whether the impugned Order must be struck down because it does not itself set out the principles on which the Order was passed. The question is whether the Court is precluded from considering that evidence and" whether the impugned Order must be struck down because it does not itself set out the principles on which the Order was passed. It seems to me that since section 12 (1) of the Representation of the People Act, 1950, empowers the President to alter by an Order a prior order of delimitation and allotment after consulting the Election Commission and since the impugned Order itself says, that the Order was passed after consulting the Election Commission, it is permissible for the defendants to adduce evidence of the advice which the Election Commission rendered to the President. Though both sides stated that there was no authority on this question either way, it seems to me that authority is to be found in some of the decisions of the Supreme Court supporting the view which I have taken. Thus in Dalmia’s case1, the affidavits of Sri H.M. Patel, Principal Secretary to the Finance Ministry, Government of India, stating the circumstances which led to the issue of the impugned notification were looked into (pages 307 and 308). Similarly in the Delhi Slums case2, it was observed that the Court might take into consideration facts of which it is apprised in the form of affidavits, in determining the question whether the impugned legislation lays down any policy. Similarly in Irani v State of Madras3, which was a case where the Government exempted a particular building from the provisions of the Madras Buildings (Lease and Rent Control) Act, 1949, it was held that the High Court was justified in calling for the reasons which induced the Government to pass the order of exemption, and at page 184 it is stated: "When the legality of the order is challenged its intra vires character can be sustained only by disclosing the reasons which led to the passing of the order." It is true that in that case it was held that the Act itself laid down the policy sufficiently and was therefore valid and it was only the Government Order, which, according to the majority, was not valid. Here the position is the same because by virtue of the immunity conferred by Article 329 (a) the Act of the Parliament, namely, section 12 (2) of the Representation of the People Act must itself be held to be valid. Here the position is the same because by virtue of the immunity conferred by Article 329 (a) the Act of the Parliament, namely, section 12 (2) of the Representation of the People Act must itself be held to be valid. I therefore hold that it is permissible for me to look into the evidence which has been adduced to justify the impugned Order. The evidence of D.W. 1, the Deputy Election Commissioner, is that it was the Election Commission which took the initiative in the matter. They divided the Madras States which was a single constituency into five different constituencies as reflected in the impugned Order on the basis of the number of graduates in each area. Thus, so far as the Madras District is concerned, it would have roughly twice the number of electors as in any one of the other four constituencies. Then they allocated the sitting members to the newly delimited constituencies. The basis for the allocation was their ordinary place of residence as furnished in the list supplied by the Legislative Council. Care was, however, taken to ensure that both members allocated to the two members constituency ret red in the same year so that the constituency need not elect more than once in six years as far as practicable. These were the general principles which were adopted not merely for the graduates constituency but also for all other constituencies. So far as graduates constituency in Madras was concerned, there were four members who had their ordinary place of residence in Madras, namely, Dr. P. V. Cherian, Dr. A. Lakshmanaswami Mudaliar, Dr. A. Srinivasan and Sri K. Balasubramania Iyer. But of these four, the only members who would be vacating their seats on the same day were found to be Dr. A. Lakshmanaswami Mudaliar and Dr. P.V. Cherian, their dates of retirement being 20th April, 1964 and that is why they were allotted to the Madras District Constituency. Sri K. Balasubramanya Iyer was due to retire in 1962 and Dr. A. Srinivasan in 1966 and since their dates of retirement were different they were not allotted to Madras District. Sri Sivanandam was allotted to Madras West Central Graduates Constituency because he was a resident of Coimbatore. Sri Sambandam was ordinarily a resident of South Arcot and therefore he was allotted to Madras North Graduates Constituency. Then the two members left were Dr. Sri Sivanandam was allotted to Madras West Central Graduates Constituency because he was a resident of Coimbatore. Sri Sambandam was ordinarily a resident of South Arcot and therefore he was allotted to Madras North Graduates Constituency. Then the two members left were Dr. A. Srinivasan and Sri K. Balasubramania Iyer. Sri K. Balasubramania Iyer was allotted to Madras East Central Graduates Constituency, and Dr. A. Srinivasan, to Madras South Constituency. But in making the last allotment no basis was adopted and it was just an accident that Dr. A. Srinivasan was allotted to Madras South Graduates Constituency comprising Madurai, Ramanathapuram, Tiruvelveli and Kanyakumari Districts instead of being allotted to Madras East Central Constituency. D.W. 1 stated further that they (Election Commission) sent these proposals to the State Government and the State Government did not make any comments so far as the Graduates’ Constituency was concerned. The Election Commission then submitted the proposals to the President and the President issued the Order in question, entirely adopting the recommendation of the Election Commission. In cross-examination, D.W.1 stated that they did not consult the Chairman of the Madras Legislative Council or anybody else before making the draft proposals to the State Government. He also explains that the reason for the principle that in the case of two-member constituencies, the election should be only once in six years, was to avoid extra costs which would be involved, if elections were to be held twice in the course of six years. I see no reason to reject this evidence of D.W. 1. The criteria adopted by the Election Commission seem to me to be reasonable. In cross-examination questions were put to the witness to suggest that even in dividing the single constituency into five constituencies making Madras a double member constitutency, there was a motive to ensure that Dr. A. Lakshmanaswami Mudaliar and Dr. P. V. Cherian were allotted to the Madras District. But I overruled this line of cross-examination pointing out that this line of attack had not been formulated in the plaint and in fact the plaint concedes in paragraph 9 the power of the President to divide a single constituency into five constitutencies. A. Lakshmanaswami Mudaliar and Dr. P. V. Cherian were allotted to the Madras District. But I overruled this line of cross-examination pointing out that this line of attack had not been formulated in the plaint and in fact the plaint concedes in paragraph 9 the power of the President to divide a single constituency into five constitutencies. After all there does not seem to be anything sinister in the method adopted by the Election Commission, for instance, in splitting up the entire constituency into five constituencies and once that is done, there is nothing surprising in Madras City getting two seats on the basis of the number of electors therein. There does not seem to be anything wrong in not splitting up Madras City further. Once that stage is reached, I can see no objection to the adoption of the principle that in a two-member constituency there should be election only once in six years, in the interest of economy. In his evidence the plaintiff had made it clear in more than one place that hedid not know the circumstances under which the impugned Order was passed at any time before it was published. Yet he stated also: “I know that Dr. Cherian had something to do in this matter in the Election Commission.” His own Counsel put the question whether he could be more specific and he answered “I know only that much” . In cross-examination the question put to him was: “ You are not sure whether Dr. Cherian was consulted ?” His answer was “I do not know anything about it”. This evidence cannot be construed as sufficient to disprove the evidence of D.W. 1 that the Election Commission did not consult Dr. Cherian, Chairman of the Council, before making the proposals. In this view of the matter, it is unnecessary to say anything about the evidence of the plaintiff that Dr. Cherian strongly dislikes him. The plaintiff makes a grievance of the fact that he and the other members of the Council were generally not consulted by the Election Commission before they made their recommendations. I do not however think that the Election Commission was required under law to consult the plaintiff and the other members of the Council so as to render the recommendation void for non-consultation. I do not however think that the Election Commission was required under law to consult the plaintiff and the other members of the Council so as to render the recommendation void for non-consultation. Sri V. V. Raghavan seeks to attack the Order on the ground that as disclosed in the evidence there is no rational basis for allocation of the two members Sri K. Balasubramania Iyer and the plaintiff respectively to the Madra East Central and Madras South Graduates Constituencies. But that is not the grievance ventilated in the plaint. The grievance of the plaintiff in the plaint is that whereas he has spent all his life in Madras City he has been allotted to Madras South Graduates Constituency in the extreme south while Dr. Cherian has been allotted to Madras. The utmost that the plaintiff can claim as between him and Mr. Balasubramania Iyer is that the further allocation between them should be made by casting lots, but that would not satisfy the grievance of the plaintiff mentioned in the plaint. The above discussion shows that the plaintiff is not entitled to the declaration sought for. Issues 1 to 3 are answered in the negative. Issue 4 is answered in the affirmative. Issue 5: I do not see how the suit is not maintainable. This issue is answered in the affirmative. Issue 6: The validity of section 12 (2) of the Representation of the People Act, 1950, cannot be questioned because of Article 329 (a) of the Constitution. The impugned Order of the President cannot have the immunity of Article 329 (a), but on examination it is found that it is not void. Issue 7: The plaintiff is not entitled to the declaration prayed for. The suit is accordingly dismissed. Regarding costs, it has to be observed that the impugned Order does not itself set out the basis for the allocation and even the reply sent by the Government of India to the suit notice of the plaintiff does not explain the basis on which the President’s Order was passed. That was disclosed only in the written statement filed by defendants 1 and 2. Further, a plea was taken that even the President’s Order is immune from scrutiny under Article 329 (a). That was disclosed only in the written statement filed by defendants 1 and 2. Further, a plea was taken that even the President’s Order is immune from scrutiny under Article 329 (a). Having regard to these facts and the public nature of the matter involved, I think it right that the parties may be asked to bear their own costs. Counsel’s fee for defendants 1 and 2 is fixed at Rs. 500. P.R.N. --------- Suit dismissed.