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Madras High Court · body

1986 DIGILAW 46 (MAD)

Vai Balasundaram v. State of Tamil Nadu represented by the Commissioner and Secretary, Rural Development and Local Administration Department, Madras-9

1986-01-27

S.MOHAN

body1986
ORDER 1. Ail these four writ petitions can be dealt with under a common judgment since the issue involved is one and the same. The prayer is identical in that mandamus is sought for in each of the writ petitions, for bearing the proposed elections to be held for the Panchayats and the Panchayat Union Councils on 23.2.1986 without providing for reservation for scheduled castes and scheduled tribes and women. The basis of the prayer is that Tamil Nadu Act No.24 of 1985 is bad in law in so far as it takes away the reservation for scheduled castes, scheduled tribes and women which reservations have been upheld by this Court earlier. However, in W.P.No. 481 of 1986 the prayer is the same except that the attack is against Tamil Nadu Act No.25 of 1985 relating to the Tamil Nadu District Municipalities Amendment Act. 2. Mr. V.P. Raman, learned Counsel for the petitioner in W.P.No.459 of 1986, who addressed the leading argument, urges that the statement of objects and reasons to the Rill clearly brings out the mind of the Legislature. The law relating to reservation of scheduled castes and scheduled tribes had been upheld by this Court No doubt, the matter was appealed against. But there was no stay granted by the Supreme Court. Therefore, there was no impediment whatever to hold the election in accordance with the law which was held to be valid by this Court. The executive wants to escape its liability to hold elections under that law by putting the blame on the Court as though stay has been granted by the Court. It is nothing but misleading the Legislature. 3. It is true that when the vires of an Act is questioned, the three questions which require to be considered are: (1) Whether it is opposed to any fundamental right guaranteed under Part III of the Constitution. (2) Whether it is opposed to any other right conferred under the Constitution. (3) Whether the Legislature is competent. But in this case, where the legislature has been purposely misled as to a particular state of things which is not really so, this Court can interfere, since this amounts even to a fraud on Legislature. The Government is taking umbrage under the so-called legal impediment is evident from the statement of objects and reasons attached to the Bill seeking amendment to the District Municipalities Act. 4. The Government is taking umbrage under the so-called legal impediment is evident from the statement of objects and reasons attached to the Bill seeking amendment to the District Municipalities Act. 4. When the Government found the reservation to be laudable and in fact obtained favourable judgment, there is absolutely no justification to bypass the judgment and pass a law repealing that very law. This will clearly constitute bad faith on the part of the Government. In such cases, the Court must come to the rescue of the petitioner. 5. Mr. Ravi, learned Counsel appearing for the petitioners in W.P.Nos.481 and 482 of 1986 states that the effect of the amendment brought about by the impugned legislation is to render the judgment of the Division Bench of the High Court nugatory. Therefore, it is hit by the second proviso to Article 200 of the Constitution in that it derogates from the power of the High Court. 6. It is the contention of Mr. V. Venkata-raman, learned Counsel for the petitioner in W.P.No.501 of 1986 that this is a motivated legislation. The Government completely misled the Legislature as though there were obstacles in holding the elections on the basis of reservation and had the amendment passed. If the statement of objects and reasons does not reflect the correct position, the court can conclude that the legislature was misled as a result of which if a bad law comes to be passed, the Court must interfere. 7. This is a case in which the image of the scheduled castes is involved. No doubt, there is a power of nomination. But that is clearly a substitute for demo-crative process of election. The people's right to elect the proper representative is taken away. Therefore, public interest is involved. At least from that point of view, the Court must interfere. 8. Now let me consider the various contentions advanced on behalf of the petitioners. Since the affidavits filed in support of these writ petitions do not set out the background leading to the prayer, before I deal with the question involved, it is necessary for me to trace the facts leading to these writ petitions. Tamil Nadu Panchayats Act No.35 of 1958 repealing Act No.10 of 1950 was passed to make better provision for organisation of village and town panchayats and for constitution of Panchayat Union Council. Tamil Nadu Panchayats Act No.35 of 1958 repealing Act No.10 of 1950 was passed to make better provision for organisation of village and town panchayats and for constitution of Panchayat Union Council. Section 8(1) lays down that a Panchayat shall be constituted for each village and for each town with effect from such date as may be specified in the notification issued in that behalf by the Inspector. Section 8(3) makes it clear that every panchayat should be a body corporate, having a right of perpetual succession and a common seal. Section 12 speaks, of the composition of the panchayat union council. Originally the election to the office of the president of the panchayat was from among the members of the panchayat. For the panchayat union council, the chairman was elected by the members of the union council. By Tamil Nadu Act 13 of 1978, the election to these offices was made direct by the voters themselves. By amending, Act 56 of 1981 which came into force on 13.9.1981, section 30-A and 30-B in relation to the panchayats were introduced reserving not exceeding 18 per cent of the total number of such office in the State for scheduled castes and scheduled tribes and not exceeding 15 per cent of the total number of such offices in the State for women. Similar provisions were made with regard to the panchayat Union Council under sections 36-AA and 36-AAA. Thereafter, the Tamil Nadu Ordinance No.13 of 1981 was made as a result of which the revenue district was constituted the unit for the panchayat union, while for the panchayats, the panchayat union was made the unit. This Ordinance was ultimately replaced by Tamil Nadu Act No.8 of 1982. By G.O.Ms. No. 1967, Rural Development and Local Administration Department dated 26th November, 1981 a draft notification was issued in relation to the chairman of the panchayat union council making reservation for scheduled castes and scheduled tribes. A similar notification was issued for women by virtue of the powers conferred under section 36-AAA. After the objections, the final notification was published. Under those circumstances, writ petitions came to be filed to declare the provisions in relation to reservations made under Act No.56 of 1981 as well as Act No.8 of 1982, as void. A similar notification was issued for women by virtue of the powers conferred under section 36-AAA. After the objections, the final notification was published. Under those circumstances, writ petitions came to be filed to declare the provisions in relation to reservations made under Act No.56 of 1981 as well as Act No.8 of 1982, as void. A Division Bench of this Court, to which I was a party, in W.A.No. 104 to 106 of 1982 and W.P.No.11626 of 1981 and batch, upheld the reservation. However, the Court granted limited relief only holding that the notifications suffered from infirmity, by its judgment dated 16th April, 1982. The Court also granted leave to appeal under Article 134-A of the Constitution. As a result C.A.No.2845 of 1982 was preferred to the Supreme Court. However, no stay of the operation of the judgment was granted. It was at that stage several notifications G.O.No.951 dated 26.9.1983, G.O.Ms.1566 and 1571 dated 18.10.1963, G.O.Ms.No.369’ dated 13.3.1984, G.O.Ms.No.305, dated 29.2.1984; G.O.Ms.No.416, dt.19.3.84; and G.O.Ms.No. 365, dt.13.3.1984 came to be issued for holding the elections in accordance with the policy of reservation as adumbrated under Article 5ft of 1981 and ft of 1982, consequent to the judgment of this Court upholding the validity of the said Acts. A learned single Judge of this Court granted stay of these notifications. Since the Government of Tamil Nadu was anxious to hold the elections amendments were brought under the impugned Acts viz., Tamil Nadu Act No.24 of 19*5 and 25 of 1985 reverting to the old position, prior to the passing of the Act No.56 of 1981 and proposing to hold elections on 23.2.1986 witout the reservation. It is in these circumstances the challenge is made to these Acts. 9. There are certain fundamental propositions of law which require to be stated in the beginning for a proper appreciation of the contentions raised on behalf of the petitioners. The rule of law enshrined in the Constitution carries with it the basic postulate that the Court has got the power to strike down any law on three well settled grounds: (1) If the law is violative of any provisions of Part III of the Constitution of India guaranteeing fundamental rights. (2) If the law is violative of any other right conferred under the Constitution of India. (3) Where the Legislature does not possess the competence to enact the law. (2) If the law is violative of any other right conferred under the Constitution of India. (3) Where the Legislature does not possess the competence to enact the law. The following observations made in the recent ruling of the Supreme Court in T.Venkata Reddy v. State of A.P. T.Venkata Reddy v. State of A.P. (1985)3 S.C.C.198= (1985)1 S.L.J.561 = A.I.R.1985 S.C.724 are very apposite; “The legislative action under our Constitution is subject only to the limitations prescribed by the Constitution and to no other. Any law made by the legislature, which it is not competent to pass, which is violative of the provisions in Part III of the Constitution or any other constitutional provision is ineffective. In this case, it is frankly admitted by all the counsel that the cases on hand, do not fall under any one of these recognised categories. If so, much is settled, I pass to the statement of objects and reasons. I will now extract the statement of objects and reasons appended to the Bills preceding the Act Nos.24 and 25 of 1985. (i) “Section 30-A and section 36-AA of the Tamil Nadu Panchayats Act, 1958 (Tamil Nadu Act XXXV of 1958) provide for reservation of not exceeding eighteen per cent of total number of office of presidents in each panchayat union and not exceeding eighteen per cent of the total number of chairmen of panchayat union councils in each district for the members of scheduled castes and scheduled tribes. Similarly section 30-B and section 36-AAA of the said Act provide for reservation not exceeding fifteen per cent of the aforesaid office for women. (ii) The Government, accordingly, reserved seats in the office of the president of panchayats and chairmen of panchayat union councils for the members of the scheduled castes and schduled tribes and for women and also issued election notices to conduct elections to panchayats and panchayat union councils on the 19th and 23rd of April, 1984. Put, while admitting a batch of writ petitions against reservation for the said office of the presidents of the panchayat and chairman of the panchayat union councils, the High Court, Madras has stayed the conduct of the said elections throughout the State on the ground that a Civil Appeal against the policy of reservation is pending before the Supreme Court, New Delhi. (iii) Since the panchayats and panchayat union councils are without elected representatives for a long time, and as it will take some more time for the disposal of the Civil Appeal pending before the Supreme Court, New Delhi, the Government have, now decided that the elections to panchayats and pancha-yat union councils shall he conducted, without any reservation of seats, to the office of the presidents of panchayats and chairmen of panchayat union councils. The Government have also decided to modify the number of members belonging to scheduled castes and scheduled tribes and women members to be co-opted to a panchayat union council. It has also been decided to provide for nomination by the Collector of a limited number of members from among women and scheduled castes and scheduled tribes. In making such nomination the Collector shall have due regard to the aptitude of such persons for rural development. It3 has further been decided that such co-opted or nominated members be vested with equal rights as other members. It is also decided to reduce the term of office of the members and presidents of panchayats as well as members and chairmen of panchayat union councils from five years to four years. (iv) The Bill seeks to give effect to the above decisions.” What is the position of statement of objects and reasons in law can be gathered from the following rulings. In Ashwini Kumar Chose v. Arbinda Bose Ashwini Kumar Chose v. Arbinda Bose 1952 S.C.J.568= (1953) S.C.R.1 = A.I.R.1952 S.C.369 Patanjali Shustri, C.J. held as follows: “As regards the propriety of the reference to the statement of objects and reasons, it must be remembered that it seeks only to explain what reasons induced the mover to introduce the Pill in the House and what objects he sought to achieve. Put these objects and reasons may or may not correspond to the objective which the majority of members had in view when they passed it into law. The Bill may have undergone radical changes during its passage through the house or houses, and there is no guarantee that the reasons which led to its introduction and the objects thereby sought to he-achieved have remained the same throughout till the Pill emerges from the house as an Act of the Legislature, for they do not form part of the Bill and are not voted upon by members. We, therefore, consider that the statement of objects and reasons appended to the Bill should be ruled out as an aid to construction of the statute.” The same principle has been reiterated by S.K. Das, J. in Central Pank of India v. Their Workmen, 1 Central Pank of India v. Their Workmen, 1 960 S.C.J.842- (1960)1 S.C.R.200=A.I.R.1960 S.C.12 viz., “The statement of objects and reasons is not admissible, however, for construing the section; far less can it control the actual words used.” In State of West Bengal v. Union of India State of West Bengal v. Union of India (1964)1 S.C.R.371=A.I.R.1963 S.C.1241 Sinha, C.J. observed as follows: “It is well settled that the statement of objects and reasons accompanying a Bill, when introduced in Parliament cannot be used to determine the true meaning and effect of the substantive provisions of the statute. They cannot he used except for the limited purpose of understanding the background and the antecedent state of affairs leading up to the legislation.” 10. In Srimad Perarulala Ethiraja Rama-nuia Jeeyar Swami v. State of Tamil Nadu Srimad Perarulala Ethiraja Rama-nuia Jeeyar Swami v. State of Tamil Nadu (1973)1 S.C.J.346=(1973)1 MLJ. (S.C.) 58=0973)1 An.W.R. (S.C.) 58=(1972)3 S.C.R.815= A.I.R.1972 S.C.1586 while considering the validity of Tamil Nadu Act 2 of 1971 , the Supreme Court did not accept the recital in the objects and reasons that there was need of opening the office of priesthood to any person irrespective of caste, creed and race and held that in view of section 28 of the Act, Archakas could be appointed in accordance with the usage of the institution and hence if usage of an institution required that Archakas could only be from a particular denomination that restriction continued inspite of recitals to the contrary in the objects and reasons. 11. With this background, I will now go on to the question whether the statement of objects and reasons reflected the position correctly as on 8.4.1985 when the Rill was placed before the Legislature. The judgment of the Division Bench, to which I made a reference earlier, was delivered on 16th April, 1982. Thereafter, C.A.No.2845 of 1982 was preferred and the same was pending before the Supreme Court. Therefore when the Government issued various orders in G.O.No.951 dated 26.9.1983, G.O.Ms.No.1566 and 1571 dated 18.10.1983; G.O.Ms.No.366 dated 13.3.1984; G.O.Ms.No.305 dated 29.2.1984; G.O.Ms. The judgment of the Division Bench, to which I made a reference earlier, was delivered on 16th April, 1982. Thereafter, C.A.No.2845 of 1982 was preferred and the same was pending before the Supreme Court. Therefore when the Government issued various orders in G.O.No.951 dated 26.9.1983, G.O.Ms.No.1566 and 1571 dated 18.10.1983; G.O.Ms.No.366 dated 13.3.1984; G.O.Ms.No.305 dated 29.2.1984; G.O.Ms. No.416, dated 19.3.84 and G.O.Ms.No.365 dated 13.3.84, all these were stayed by a learned single Judge of this Court in W.M.P.No.4699 of 1984 in W.P.No.3072 of 1984 batch. It was observed that in view of the pendency of C.A.No.2845 of 1982 challenging the validity of Tamil Nadu Acts 56 of 1981 and 8 of 1982 is still pending in the Supreme Court and as the Court was of the view that the balance of convenience was more in favour of the petitioners and taking into consideration the fact that there would be waste of money and time, if the elections were to be held, stay was granted. This order is dated 23rd March, 1984. Therefore, on 8.4.1985 whatever has been stated in the statement of objects and reasons reflected the correct factual position. The fact that the appeal before the Supreme Court was withdrawn on 30th October, 1985, cannot enable the petitioners to contend that the executive had misled the legislature. The anxiety on the part of the Government to conduct elections as per the Division Bench of this Court is evident from the various notifications issued, notwithstanding the pendency of the appeal in the Supreme Court. But if a stay had been granted by this Court and if there was no immediate prospect of the appeal before the Supreme Court being finally disposed of and if the Government were anxious to hold elections to the panchayats which have been considerably delayed for some reason or other, the only course as it thought fit was to repeal the reservation, which question had not attained finality on 8.4.1985. The attempt to hold elections also was stayed by the High Court as correctly set out in the statement of objects and reasons. Therefore, that constituted the legal impediment. The petitioners cannot contend on the basis of facts as they exist today that the statement of objects and reasons do not reflect the correct position and therefore the legislature was misled. Therefore, that constituted the legal impediment. The petitioners cannot contend on the basis of facts as they exist today that the statement of objects and reasons do not reflect the correct position and therefore the legislature was misled. There is absolutely no misleading of the legislature at all on 8.4.1985, when the bill came to be presented. This will be sufficient to dispose of the argument of the petitioners. For the sake of completion, I will also consider whether mala fides can be attributed to the legislature. This part of the law is well settled as seen from two recent rulings of the Supreme Court. In K. Nagaraj v. State of A.P. K. Nagaraj v. State of A.P. (1985) Lab.I.C.746= (1985)1 S.C.C.523= (1985)1 Lab.L.J.444 = A.I.R.1985 S.C.553 it was held as follows: “The legislature, as a body, cannot be accused or having passed a law for an extraneous purpose. Its reasons for passing a law are those that are stated in the objects and reasons and if, none are so stated, as appear from the provisions enacted by it, even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of “transferred malice” is unknown in the field of legislation.” The proposition is exactly the same in all these writ petitions. Again in T. Venkata Reddy v. State of A.P. T. Venkata Reddy v. State of A.P. (1985)3 S.C.C.198= (1985)1 S.L.J.561 = A.I.R.1985 S.C.724 at 731 it has been observed: “While the courts can declare a statute unconstitutional when it transgresses constitutional limits, they are precluded from inquiring into the propriety of the exercise of the Legislative power. It has to be assumed that the legislative discretion is properly exercised. The motives of the legislature in passing a statute is beyond the scrutiny of courts. Nor can the courts examine whether the legislature had applied its mind to the provisions of a statute before passing it. The propriety, expediency and necessity of a legislative act are for the determination of the legislative authority and are not for determination by the courts”. 12. It is axiomatic in the constitutional law, that the power of the legislature ¦to pass law is plenary in character. That power is as plenary and as ample as Parliament in its plenitude of power could possess. 12. It is axiomatic in the constitutional law, that the power of the legislature ¦to pass law is plenary in character. That power is as plenary and as ample as Parliament in its plenitude of power could possess. There are no limitations on that power, except those to which the legislative power of the State Legislature is subject under the Constitution. Therefore, it is entirely for the Legislature to pass any law as it deems fit and the Court is seldom concerned with the morality or ethics. It can only strike down the law if it is invalid. There is great reason and justice behind the rule that the Court seldom embarks upon an enquiry as to what happened in the Legislature. The task of the Court is to interpret the law as it stands. Legislation is a group activity. It is impossible to conceive a group mind or group celebration. It is impossible to trace in the Legislative result, in any reliable way, the individual state of mind of the various legislators at any given moment. Legislation is an objective phenomenon in which all subjective antecedents are irrevocably lost. If (therefore a statute is an act of the legislature as an organised body which expresses the collective will of that body, the Court has no means to ascertain the mind of the Legislature. Judicial action to probe into the mind of the Legislature is forbidden because of the respect due to a co-ordinate branch of the Government. The legislature's intention can only be shown by its vote. To put it shortly, the law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is the act itself. Therefore, it is not open to Mr. Raman to contend as to what law ought to be or what is desirable. 13. I see absolutely no merit in the argument of Mr. Ravi that the impugned legislation purports to take away the power of the High Court under the second proviso to Article 200 of the Constitution. As already stated, the validity of the law was upheld. But the circumstances in April, 1985 prevented from holding elections on the basis of that judgment. Therefore, today's altered situation cannot be relied on to find out the meaning of the statement of objects and reasons. 14. As already stated, the validity of the law was upheld. But the circumstances in April, 1985 prevented from holding elections on the basis of that judgment. Therefore, today's altered situation cannot be relied on to find out the meaning of the statement of objects and reasons. 14. In one sense it may be true as Mr. V. Venkataraman contends that the impugned legislation concerns the image of the scheduled castes. The Government had the Gandhian ideals when it passed Tamil Nadu Act No.56 of 1981 and 8 of 1982. Mahatma Gandhi wrote in the Swaraj: “I am afraid that for years to come India would be engaged in passing Legislation in order to raise the downtrodden, the fallen, from the mire into which they have been sunk by the capitalists, the landlords, by the so-called higher classes, and then, subsequently and scientifically, by the British rulers. If we are to lift these people from the mire, then it would be the bounden duty of the National Government of India, in order to set its house in order, continually to give preference to these people and even free them from the burdens under which they are being crushed….” To say, as contended by the learned Counsel for the petitioners that, that should be the law regardless of all circumstances, is ignoring the hard realities. Thus, I see absolutely no merit in any one of these contentions. Therefore, I dismiss the writ petitions in limine. Petition dismissed.