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TMI Blog1972 (4) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... e case and the contentions of the Respondent G. Panneerselvam, the petitioner before the High Court, which were accepted by the High Court, may be summarised as follows Firstly, the whole purpose of Article 171 of the Constitution was to confer a right of "functional representation" upon persons possessing certain educational or other qualifications so that the Appellant Narayanaswami, who had only passed the High School Leaving Examination and was not a Graduate, could not be elected at all to the Legislative Council from the Graduates' Constituency; secondly, it would be absurd and destructive of the very concept of representation of especially qualified persons that an individual who does not possess the essential or basic qualification of the electors should be a representative of those who are to be represented because of this special qualification of theirs; and, thirdly, the Constitution, being an organic instrument for the governance of the land, must be interpreted in a particularly broad and liberal manner so as to give effect to the underlying principles and purposes of the system of representation sought to be set up by it and not in such a way as to defea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icle 170 lays down that the Legislative Assembly of each State "shall consist of members chosen by direct election from territorial constituencies in the State, in such a manner as the Parliament may by law determine". After that, comes Article 171 which may be reproduced in toto here: "1.71(1) The total number of members in the Legislative Council of a State having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State,: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty. (2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3). (3) of the total number of members of the Legislative Council of a State (a) as nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify; (b) as nearly as may be, one-twelfth shalt be elected by electorates consisting of persons residing in the State who have been for at least three years graduates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. The qualifications of the electors constituting the "electorate" and of those who can represent each " electorate", contemplated by the constitution and then supplemented by Parliament, are separately set out for each house. We may glance at the provisions relating to Legislative Assemblies first. Section 16 of the Representation of People Act 43 of 1950 lays down the qualifications of an elector negatively by prescribing who shall be disqualified for registration in an electoral roll. A disqualified person is one who : (a) is not a citizen of India; or (b) is of unsound mind and stands so declared by a competent court; _or (c) is for the time being disqualified from voting under the provisions of any law relating to corrupt practices and other offences in connection with elections". Section 19 lays down the two conditions for registration on the electoral roll of a constituency. The person to be registered must not be less than 21 years of age on the qualifying date and must be ordinarily resident in the constituency. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the Legislature of a State unless he (a) is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule; (b) is, in the case of a seat in the Legislative Assembly, not less than twentyfive years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and (c) possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament". An important and very noticeable difference between, qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of People Act of 1951 and those for the membership of a Legislative Council by Section 6 of that Act is that, so far as a member of the Legislative Assembly is concerned, he or she has to be an Elector in the Constituency from which he or she stands, but a member of a Legislative Council in a State is not, similarly, required to be a member of the electorate. All that Parliament says, in Section 6 of the Representation of People Act, 1951, is that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd more broad based body consisting of persons of different walks of life, some elected and some nominated, each with the experience in his own field of activity". The learned Judge concluded; "It is with these objects that clauses (a),, (b), and (c) of Article 171(3) have been conceived so that persons in those walks of life could make their contribution to the Legislative functions of the State. Article 1.71 in fixing the composition of the Legislative Council as a functional chamber. has also indirectly laid down certain qualifications and also disqualifications of members to be elected thereunder". Whatever may have been the opinions of Constitution makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to. say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as "functional" or "vocational" representation which has been advocated by Guild-Socialist and Syndicalist Schools of political thought. , Some of the observations quoted above, in the judgment under appeal itself, militate with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mere oversight, and that without doubt the Act would have been drawn otherwise had the attention of the legislature been directed to the oversight at the time the Act was under discussion". In the case before us, it could not possibly be said that the question to be dealt with was not "known" to the, legislators. It could not even be said that qualifications of the electors/-as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was not specially directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrate amply how legislative attention was paid to the qualifications, of the electors 'as well as of the elected in every case. Hence, the correct presumption, in such a case, would be that the omission was deliberate. A glance at the legislative history lying behind Article 171 also enables us to reach the conclusion that the omission by the Constitution makers or by Parliament to prescribe graduation as (1) [1864] 4 BSS 927, 934 (2) Crains on Statute Law-5th En. 1963 P. 72. must be deliberate. Sections 60 and 61 of the Governme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia General Insurance Co. Ltd. v. Captain Itbar Singh & Ors. ([1960] 1 SCR 168.), R. G. Jacob v. Union of India([1963] 3 SCR 800). Courts may deppart from this rule only to avoid a patent absurdity (see e.g. State 'of Madhya Pradesh v. M/s. Azad Bharat Finance Co. & Anr.( ) A.T.R. 1967 S.C. 276.). In Hira Devi v. District Board, Shahiahanpur(A.T.R. 1952 SC 362@ 365.), this Court observed "No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act". Cases in, which defects in statutory provisions may or may not be supplied by Courts have been indicated in well known works such as Sutherland's "Statutory Construction" (3rd Edn.(Vol. 2) (Paragraph 4924 at pages 455-558) and in Crawford's "Construction of statutes" (1940 Edn.). Only one passage from the last mentioned work need be cited here: (p. 269) : "Where the statutes meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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