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Shyam Sundar Gupta vs Union Of India And Others

1989 (8) TMI 359 - CALCUTTA HIGH COURT

Equivalent citations: AIR 1990 Cal 64, (1990) 1 CALLT 219 HC - Dated:- 9-8-1989 - MR. K Yusuf ORDER 1. For the first time a Consti-tution Amendment. Bill has been challenged in a High Court since, the Constitution of India came into force on 26th January, 1950., The Constitution,, (Sixty-Fourth Amendment) Bill, 1939 (commonly known as the Panchayati Raj Bill) which, has since been introduced in the Lok Sabha (the House of the People) has been challenged in a writ application. Apart from the Unio .....

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once: Naturally, he is interested in the political activities and constitutional affairs of the country. 2. The writ, petitioner's case, in short is that the Constitution (Sixty-Fourth Amendment) Bill, 1989 (hereinafter referred to as "the Bill") is not an ordinary amendment of the Constitution bu,t in fact is a manoeuvring for eroding into the foundation of the Constitution of Indiar by legislating about the Panchayats which form an integral part of local government and include vi .....

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h the basic structure as well as the basic features of the Constitution and is against the letter and spirit of Article 40 being the Directive Principles of State Policy as contained in Part IV of the Constitution. The said Directive does riot confer any competence on Parlia-ment either to legislate in the field of village panchayats or to exercise its constituent power to amend the Constitution by adding thereto any provision relating to the organi-sation of village panchayats. Article 246 of t .....

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the election of different bodies of the Panchayats are held periodically. It is further contended that the provisions of the said Constitution (Sixty-Fourth Amendment) Bill purport to establish legislative and execultive supremacy of the Union over the States in the matter of the village Panchayats admin-stration as a whole. The proposed Articles 243B, 243E, 243J and 243M of the Bill make the legislative power of the State Legislature subordinate to the provisions of this consu-tutional amendmen .....

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or operation by the State Legislature a lone. If such encroachments are allowed to be made by grabbing powers of the States by the Union then such amendments of the Constituton will completely destroy the essoutial, basic features and structure of the. Constitution of the country and ultimately the federal system will be turned into a unitary system of Government with the State Government serving as the Central Govenment's subordinate agencies instead' of autonomous units. This process i .....

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ion. It is further contended that List-I U nion List, List-U State List and List-111 Concurrent List in the Seventh Schedule with reference to the distribution of legislative power as envisaged under Article 246 specify the different items which cannot otherwise be interfered with. It is also contended that the Bill and its numerous provisions are ultra views the amending power of the Parliament under Article 368 as thet Bill intends to completely wreck the established. Constitution as envisaged .....

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ional arid ultra vires the basic structure and features of the Constitution, a declaration that the constituent power of the Parliament cannot be exercised to amend the Constitution in derogation to the scheme of distribution oflegislative power contained in Part 'XI of the Constitution read with the Seventh Schedule. The writ petitioner also prayed for ad interim order upon the respondents from proceeding with the Constitution (Sixty-Fourth Amendment) Bill, 1989 and for taking steps for ena .....

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the States-in the federal set-up rule of law upon which the said basic structura is founded and the guarantee of political justice to the citizens of India contained in the Preamble to the Constitution. The impugned Bill is a proposed measure to bring about certain amendments to the Constitution not only in violation of its basic, structure and features but also to overstep the limitation imposed on the constituent and or amending power under Article 368 of the Constitution by the Supreme Court .....

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This Bill is distinguishable from an ordinary legislative measure not affecting the basic structure of the Constitution and as such there is scope of interference under the writ jurisdiction of all the High Courts in India because the threat, which is the substantial part of the cause of action, is pervasive all throughout the country. The impugned measure is not a bona fide attempt to amend the Constitution in furtherance of any of the objects contained in the Preamble or any of the Directive .....

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h Articles 245 and 246 of the Constitution. To superimpose the supremacy of the Central Government and Central Agencies over the establishment, organisation and functioning of Panchayats in the country would amount to undo the established Constitution of the land. According to him the attempt in achieving the object by pretended recourse to the constituent and or amending power under Article 368 of the Constitution is a fraud upon such constituent and or amending power. 5. The learned counsel su .....

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Supreme Court in Keshavananda Bharati's case (supra) containing the conclusions of S. M.Sikri C.J. which is a directive reference to the Parliament's constituent capacity and ordinary legislative capacity, particularly clause (e) thereof at page 1566. The validity of the Constitution (24th Amendment) Act, 1971 and consequently Article 13(4) was upheld by the Supreme Court in Keshavananda Bharati's case (supra) by which the decison in Golak Nath's case was overruled. It was made c .....

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now. 6. Mr. Chakraborty further contended that the threat and apprehension as pleaded in the writ petition forming a substantial part of the cause of act ion have also arisen within the territorial jurisdiction of this Court and one of the respondents, i.e.. the State of West Bengal being very much within this juris-diction, the High Court has ample requisite jurisdiction to entertain and try the writ. petition in exercise of the power vested in it under clause (2) of Article 226 of the Consti-t .....

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event the writ petition has disclosed a prima facie case as well as a came of action. The issue involved is of paramount national importance requiring complete adjudication. The issues purported to he raised as to non-maintainability and or lack of jurisdiction and or cause of action are in any event triable issues, which can be decided on the basis of materials that may be placed through affidavits. 7. Mr. Chakraborty concluded his argument by emphasising that Political Justice is inherent in t .....

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he State of Orissa : (4) Uma-shankar Chatterjee v. Union of India reported in (1982) 1 Cal HN 100 : (1982 Lab 1C 1361) and (5) Union of India v. Hindustani Aluminium Corporation. Ltd. . On the point of threat some of the decisions cited one noted as follows:-(1) S. P. Gupta v. President of India ; (2) D. A. V. College, Bhatinda v. State of Punjab ; (3) Bharat Sugar Mills ; (4) Dhanpat Singh Surana v. Union of India reported in (1976) 80 Cal WN 605; and (5) A. N. Shashtri v. State of Punjab . 7A. .....

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cannot be restrained from deliberating on the Bill. He further elucidated the point that the respondents, namely (1) The Union of India, through the Secretary to the Government of India, (2) The Secretary to the Government of India, Ministry of Law. (3) The Speaker of the Lok Sabha, (4) The Chairman of the Rajya Sabha, (5) The Prime Minister of India, and (6) Shri Rajiv Gandhi, Prime Minister of India by name do not represent Parliament at all. The Parliament consists of the President and the tw .....

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ferred to Article 361 relating to the protective immunity of the President but submitted that the second proviso of clause (I) of the said Article provides that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Government of India. The Bill as it stands today is not a piece of legislation altogether. It is just a proposal placed" before Parliament where the democratically elected representatives of this Sovereign So .....

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t. 8. On the point of cause of action the learned Attorney-General submitted that the respondents Nos. 1 to 6 are not within the jurisdiction of this Court and unless the Bill becomes an Act it does not affect in any way anybody's right and hence cannot be challenged. He described the writ petition as incompetent and premature at the Bill stage and as such the Court should not interfere with it. He dealt with Article 368 relating to amendment of the Constitution with particular reference to .....

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ases cited v. ith regard to the Bills equally applied for Constitutional Amendment Bills and on principle there is no difference. Undoubtedly the Constitutional Amendment Bill has been challenged in the High Court for the first time but it does not make any difference in principle or justify the issuance of Rule. An ordinary Bill whether introduced in Parliament or in a State Legislature when enacted into law has many more limitations under Article 13(2) of the Constitution than a Bill for the a .....

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aid Bill has not been passed in accordance with the procedure laid down in Article 368 but certainly there cannot be any preventive measure against Pariiament from discussing a Bill because the Court cannot go into the constitutionality or otherwise of a Bill to strike it down. He repeated his earlier submission that unless the Bill becomes an Act and the Act as Law effects the rights of the citizen the functioning of the Court is non est. He very much emphasised the point that Parliament is nev .....

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gument questioning the maintainability of the writ petition by emphasising that there is nothing in the Constitution which prohibits the amendment of the Lists in the Seventh Schedule. The only procedure prescribed as said hereinbefore is Article 368(2) Proviso (c). Only after the Bill is passed it can be said whether it has amended any of the Lists by-passing the procedures laid down in the Constitution. He emphasised that the privilege of Parliament which is sovereign cannot be abrogated by th .....

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ttar Pradesh , (2) Bhaira-bendra Narayan Bhup v. The State of Assam reported in AIR 1953 Assam 162 (3) Ms. Doypack Systems Pvt. Ltd, v. Union of India , (4) C. Shri-kishan v. The State of Hyderabad reported in AIR 1956 Hyd 186, (5) K. P. Kochanujan Thirumulpad v. The State of Kerata. ,(6) V. Ramchandra Rao v. The Andhra Pradesh Regional Committee (7) Chandra Sekhar Singh Bhoy v. The State of Orissa (8) Sunil Kumar Mondal v. Union of India reported in AIR 1989 Cal 197 and (9) A.K. Roy v. Union of .....

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eavily relied upon Halsbury's Law of England, Vol. 44, 4th Edition, Para 832 on page 505 on Formal Validity of Statute. I have not cited the pre-independence decisions of the High Courts referred to by both the parties. 13. Replying to the learned Attorney-General, Mr. Chakraborty submitted that no post-Keshavananda decision has been cited on behalf of the appearing respondents in support of their contention about the lack of the High Court's jurisdiction to entertain any challenge to a .....

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elate to Bills and in one of those decisions the expression "Ordinarily" has been used to qualify the restriction in the exercise of power by the Courts in going into the question of validity of ah Act or a provision thereof unless the same has been brought into force. The point sought to be made out about the non-maintainability of the present writ petition and the ouster of the jurisdiction of this Court to try the same because the Bill has been challenged has not been made out eithe .....

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s basic structure and basic features are unamendable and indestructible; third, because it is the funda-mental duty of every citizen to abide by the Constitution and respect its ideals and insti-tution and to uphold and protect the sovereignty, unity and integrity of India as enshrined in Article 51A of the Constitution; fourth, because of the limitation imposed by the Supreme Court on the amending power of Parliament in exercise of its constituent power under Article 368; fifth, because the ame .....

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olative of the/judicial mandate in Keshava-nanda's case and the limitations on the proqess of amendment of the Constitution imposed thereby. He further argued that the power and privileges of the members of Parliament, are not above the Constitution nor its supremacy and sancity and the same are not and cannot be claimed to be absolute. As has been held, by the Supreme Court in Kehar Singh's case , all power belongs to the people and it is entrusted by them to specified institutions and .....

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on and remedy within the frame work of the prayers and by moulding the same in such manner as may be conductive to granting of such relief. He further contended that there has been no submission, by the contesting respondents on the merit of the case or the grounds on which the impugned constitutional amendment has been assailed. The case has been heard for quite a number of days and the writ petition raise's important points of great public importance requiring interpretation of several pro .....

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(Sixty-Fourth Amendment) Bill, 1989 which he described as a fraud upon the Constitution. He described the Bill as a manoeuvring of grave consequence where the constitutional provisions have been given a go-bye to inflict a severe blow on the federal structure of the Constitution and by-passing the judicial pronouncement in Keshavananda Bharati's case which is binding upon the respondents and give ample authority and jurisdiction to the High Court to interfere and stop the trampling of the Co .....

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fing and such acts of mischief to undermine the provisions of the Constitution must be nipped in the bud before damage is done and the federal structure is destroyed. He stressed that prima facie this is a fit case where High Court should interfere. 17. I have given my considerate thought to the facts of the writ application and the submissions made by the learned counsel on behalf of the parties. At the very outset 1 must state that Mr. Chakraborty, the learned Counsel for the writ petitioner, .....

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caption 'The Panchayats'. This Part-IX is presently lying 'vacant' omitted by the Constitution (7th Amendment) Act, 1956. A glance through the Bill would lead to the conclusion that the entire constitution, administration and management of the village Panchayats will have a shake-up and to much extent go under the direct supervision and control of the Central Government. The proposed Articles 243A and 243B relate to the Constitution or Panchayats at the village, intermediate and .....

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they have become weak and ineffective owing to a variety of reasons, including the failure to hold regular and periodical elections, prolonged supersession, inadequate representation to the weaker sections like the Schedule Castes, the Schedule Tribes and women, lack of financial resources and inadequate devolution of powers and responsibilities on them". The aforesaid reference is laudable but indicates that this Bill will erode the powers and functions of the States as contained in Entn .....

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that it affects the federal character of the Constitution and takes away the powers of the States guaranteed by the Constitution thereby tampering with the basic structure and features of the federal Constitution by over-stepping the limitation imposed on the amending power under Article 368 of the Constitution. Article 368 relates to the constituent power given to Parliament to amend by addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down .....

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cising its 'constituent power'under Article 368 must not undermine the basic features of the Constitution. In the Keshavananda Bharati's case it was also held that the objective specified in the Preamble contained the basic structure of the Constitution which cannot be amended in exercise of the power under Article 368. Chief Justice Sikri in his Conclusions in Part-VIII of the Keshavananda's case summarised his findings under eight heads of which (c) and (e) deserve to be quoted .....

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on of amending the Constitution to another Legislature or to itself in its ordinary legislative capacity''. In the above background and the mandate of the Hon'ble Supreme Court in the aforesaid three leading cases there may be a genuine apprehension that the federal structure of the Constitution may be tampered with and the framework of the Constitution may be shaken. But I keep this issue open to be decided on merits. 19. Now I come to the vital questions as to the jurisdiction of t .....

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exercise jurisdiction "within which the cause of action, wholly or in part, arises". He further contended that the view that Parliament is sovereign and cannot be subordinate to a Court of Law is not tenable because of the fact that even, at the Bill stage the Court can interfere if it finds that the judicial pronouncements safeguarding the basic structure of the Constitution are tampered with. It is not necessary that all the Members of Parliament need be impleaded as parties to the p .....

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nd adjudicate the matter even at the Bill stage. But the learned Attorney-General by citing a number of decisions argued that Parliament with its two Houses presently deliberating upon the Constitution (Sixty-Fourth Amendment) Bill, 1989 is not before the Court and the Court cannot pass any order interfering with the proceedings of the Parliament. The Court cannot go into the constitutionality or otherwise of a Bill and prevent the Parliament from discussing it or striking-trie same down until a .....

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as jurisdiction to interfere with the legislative function of Parliament in a democratic sovereign republic and the freedom of speech of the Members of the Parliament and their deliberations within the four walls of Parliament cannot be restrained. Unless a Bill is turned into a piece of legislation and affects anybody's right it cannot be put to the dock to test its vires and/or validity. 20. Now let me first see what is laid down in Halsbury's Laws of England, 4th Edition, ' Para 8 .....

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f Chotelal v. The State of Uttar Pradesh (supra) a Division Bench of Allahabad High Court held that the Courts in India have no jurisdiction to interfere with the proceedings of legislatures with reference to Article 13(2) of the Constitution. The Division Bench said that if the Legislature does what it is directed by the Constitution not to do, its Act may be declared void, but this Article does not confer a right upon a citizen to move the Court for the issue of a writ or direction to the Legi .....

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ra vires their powers. Now I quote from a Supreme Court decision presided over by S. M. Sikri, C.J. (supra) where their Lordships in words categorical held that the Court should not ordinarily go into the question of the validity of an Act or a provision of an Act unless it has been brought into force. If this is the position then how this Court can go into the question of the validity of a Bill or the provisions of a Bill which has yet to be converted into an Act of Parliament. Further, in the .....

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iction. Blackstone in his "Commentaries on the Laws of England". Vol. I, suggests : "The fairest and most rational method to interpret the will of the Legislator is by exploring his intention at the time when the law was made, by signs, most natural and probable. And these signs are the word;., the context, the subject matter, the effect and consequence, or the spirit and reason of the law". This quotation must be supplemented with the words of Lord Scarman : "We are to .....

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egislative competency of Parliament must not and should not be interfered with by the High Court at a stage when the Constitution (Sixty-Fourth Amendment) Bill, 1%9 is under its "active-consideration: The Court must not create a constitutional crisis by passing any order which may affect the smooth functioning of Parliament. I have no hesitation to hold that the Bill, presently before Parliament, if enacted and enforced and thereafter if it affects the federal structure and the framework of .....

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