Nain Sukh Das & ANR Vs. The State of
Uttar Pradesh & Ors  INSC 48 (22 May 1953)
SASTRI, M. PATANJALI (CJ) MUKHERJEA, B.K.
DAS, SUDHI RANJAN HASAN, GHULAM BHAGWATI,
CITATION: 1953 AIR 384 1953 SCR 1184
CITATOR INFO :
D 1973 SC1041 (16)
Constitution of India, 1950, Arts.
14,15(1),32-Municipal election Election on the basis of communal electorates
-Validity-Application under Art. 32 for writ to prevent elected candidates from
sitting on the Board-Maintainability-Remedy of ratepayers.
The petitioners, who were residents of a
municipality, alleging that they had been deprived of their rights to exercise
their votes and to seek their election as candidates in certain by elections to
the Municipal Board, as those by-elections were held on communal lines on the
basis of separate electorates contrary to the provisions of the Constitution,
applied for writs tinder art. 32 of the Constitution for preventing the elected
candidates from acting as members of the Board, and the District Magistrate and
Civil Judge from holding any meetings of the Board:
Held, that, though a law which provides for
elections on the basis of separate electorates for members of different
religious communities offends against art. 15(1) of the Constitution and an
election held after the Constitution in pursuance of such a law subject to el.
4 would be void, the right which the petitioners claimed as rate-payers in the
municipality to insist that the Board should be legally constituted and that
persons who have not been properly elected should not be allowed to take part
in the proceedings of the Board was outside the purview of art.
32 of the Constitution inasmuch as such a
right, even if it existed, was not a fundamental right conferred by Part III of
Held further, that the alleged infringement
of the fundamental rights of the petitioners under art. 15(1) and art. 14, that
is, the discrimination practised against them related to rights which they in fact
never sought to exercise and took no steps to assert while there was occasion
for doing so and the petitioners were therefore entitled to no relief under
art. 32 of the Constitution.
ORIGINAL JURISDICTION: Petition No. 69 of
Petition under article 32 of the,
Constitution for enforcement of fundamental rights.
1185 S. C. Isaacs (Jai Prasad Agarwal, with
him) for, the appellant.
K. B. Asthana for respondent No. 1.
S. P. Sinha (R. Patnaik, with him) for
respondent No. 4.
1953. May 22. The Judgment of the Court was
delivered by PATANJALI SASTRI C. J.-This is an application under article 32 of
the Constitution seeking protection of the petitioners' fundamental right under
article 15 (1) against alleged violation thereof by the respondents.
The petitioners are three residents of Etah
in Uttar Pradesh. They complain that at the by election to the Municipal Board
of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at
which respondents 4, 11 and 12 were respectively elected, the Petitioners were
deprived of their rights to exercise their votes and to seek their election as
candidates, as those by-elections were held on communal lines on the basis of
separate electorates contrary to the provisions of the Constitution. They also
allege that the nomination of respondent 3 as a member of the Board by the
Government was an illegal exercise of its powers, as the interest which that
respondent was nominated to represent in the Board was already sufficiently
The petitioners accordingly pray for the
issue of writs of quo warranto, mandamus and other appropriate writs or
directions to respondents 3, 4, 11 and 12 to show under what authority they are
acting as members of the Board and to prevent them from acting as such members.
The petitioners also ask for wkits on the District Magistrate and the Civil
Judge of Etah, respondents 2 and 13 respectively, directing them not to hold or
permit the holding of any meeting of the Board which is said to be illegally
Now, it cannot be seriously disputed that any
law providing for elections on the basis of separate electorates for members of
different religious communities offends against article 15 (1) of the
Constitution which runs thus 1186 "15 (1) The State shall not discriminate
against any citizen on grounds only of religion, race, caste, sex, place of
birth or any of them." This constitutional mandate to the State not to
diis criminate against any citizen on the ground, interalia, of religion
clearly extends to political as well as to other rights, and any election held
after the Constitution in ,pursuance of such a law subject to clause (4) must
be held void as being repugnant to the Constitution. But the question is
whether the petitioners are now entitled to the relief they seek in this
application under article 32.
It is true, as pointed out in the Cross Roads
case(1), that article 32 provides, in some respects, for a more effective
remedy through this court than article 226 does through the High Courts. But
the scope of the remedy is clearly narrower in that it is restricted solely to
enforcement of fundamental rights conferred by Part III of the Constitution.
Any right, for instance, which the petitioners may have as rate-payers in the
Municipality to insist that the Board should be legally constituted and that
respondents 3, 4, 11 and 12, who are not properly elected or nominated members,
should not be permitted to take part in the proceedings of the Board, is
outside the purview of article 32, as such right, even if it exists, is not a
fundamental right conferred by Part 111.
Petitioners' learned counsel, however,
contended that the fundamental right conferred by article 15 (1) on the
petitioners as citizens of India was violated by the elections in question
having been held on a basis which discriminated against the petitioners on the
ground of their religion in that it precluded them from exercising their
franchise in relation to all the candidates and from contesting the elections
without regard to the reservation of seats on communal basis. Learned counsel, also
submitted that the delimitation of the constituencies on communal lines was a
denial of equality to the petitioners in the matter of their political rights
and in that respect also infringed their (1)  S.C.R 594 1187 fundamental
right under article 14. We are unable to accede to these contentions.
It is plain that the fundamental right
conferred by article 15(1) is conferred on a citizen as an individual and is a
guarantee against his being subjected to discrimination in the matter of the
rights, privileges and immunities pertaining to him as a citizen generally. It
is not the petitioners' case that any discrimination is now being practised or
threatened against them. Their grievance is that the mode of election by
separate electorates formed on communal lines involved discrimination against
them in relation to seats other than those reserved for their respective
communities as to which they could not exercise their right to vote or their
right to stand as candidates.
There is no suggestion that the petitioners
actually sought to assert those rights by taking appropriate proceedings to
have the bar removed and the election conducted in accordance with the
Constitution. In fact, the petitioners acquiesced in the elections being
conducted under the old system of separate electorates and felt no
discrimination having been practised against them until a no-confidence motion
was tabled recently against the former Chairman who has since lost his seat as
a result of that motion having been carried. Thus, the infringement of their
fundamental rights under article 15(1) and art 61 14, that is, the
discrimination practised against them, of which they now complain, related to
rights which they in fact never sought to exercise and took no steps to assert,
while there was still room for doing so, and for the exercise of which the
opportunity is now lost. But, argues Mr. Isaacs, the election of the
respondents 4 11 and 12 being void, they are no better than usurpers, and the
petitioners are entitled to prevent them from functioning as members of the
Municipal Board. It may be, as we have already remarked, that the petitioners
could claim such relief as ratepayers of the Municipality in appropriately
framed proceedings, but there is no question of enforcing petitioners' fund
mental right under article 15(1) or article 14 in such claim, There is still
less ground for seeking relief on 1188 that basis against respondent 3 who is
only a nominated member.
The petitioners appear to have misconceived
their remedy and their application under article 32 must fail. The petition is
dismissed with costs, one sot.
Agent for the petitioners: K. L. Mehta.
Agent for respondent No. I : C. P. Lal.
Agent for respondent No. 4: S. P. Varma.