sheikh abdus sabur vs bd

8/12/2019 Sheikh Abdus Sabur vs BD

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Sheikh Abdus Sabur Vs. Returning Officer, District Education Officer-in-Charge,

Gopalganj & others, 1988, 17 CLC (AD)

Wednesday, 04 June 2008 20:35

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Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ahmed J

MH Rahman J

ATM Afzal J

Sheikh Abdus Sabur................................Appellant


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Vs.

Returning Officer, District Education Officer-in-charge, Gopalganj &

others.....Respondents

Judgment

September 1, 1988.

Result:

The appeal fails.

The Constitution of the Peoples Republic of Bangladesh, 1972

The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983), section

7(2) (g)

The provision for disqualification of a member of the Union Parishad under section

7(2)(g) of the Union Parishad Ordinance, 1983 for being a defaulter of financial

institutions including a bank in the absence of such disqualification for a member

of the Parliament is not discriminatory but is constitutionally valid.


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Cases Referred to-

AIR 1971 SC 530 (564); Southern Rly Co. V. Greane, 216 U.S. 400; Smt. Indira

Gandhi V. Raj Narayan, AIR 1975; State of West Bengal v. Anowar Ali Sarkar,

AIR 1952, SC 75; Dhirendra Kumar Vs. Government of West Bengal, AIR 1954,

SC 424; Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR

1963, SC 268; State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493;

Jibendra Kishore Vs. Prov. of East Pakistan, 9 DLR SC 21; Charanjit Lai. Vs.

Union of India, AIR 1951 SC 41; Lachhman Das. Vs. The State of Punjab, AIR

1963, SC 22; The State of Bombay Vs. F. N. Balsara, AIR 1951, SC 318, S. 39, the

Bombay Prohibition Act, 1949; Ram Krishna Dalmia vs. Justice Tendolkar, AIR

1958, SC 538; Jalan Trading Company vs. Mill Mazdoor Sabha, AIR 1967, SC691; Anant Mills Vs. State of Gujrat, AIR 1975, SC 134; AIR 1979 SC 478; R.K.

Carg v. Union of India", AIR 1981, SC 2138; Lingappa Pochanna vs. State of

Maharastra, AIR 1985, SC 389; State of Gujarat Vs. Shri Ambica Mills, AIR 1974,

SC 1300; Shujal Ali vs. Union of India, AIR 1974, SC 1631; Southern Railway

Co. Vs. Greane (1909-216 U.S. 400); Middleton Vs. Texas P & L Co, 248 U.S.

152; Gulf Colorado Rly. v. Ellis, 165 U.S. 150; Shujat Ali vs. Union of India, AIR

1974, and SC 1631; the State of Madras Vs. V. G. Row, AIR 1952, and SC 196;

Doland Paul Lublin Vs. Leonard Panish, US-SCR39 L. Ed-2nd, 415-709; BobBullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134; State of Madhya

Pradesh Vs. Mandawar, AIR 1954 (SC); Lachhman Das vs. Punjab 1963 AIR SC

222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of

Tamil Nadu & other 1987 AIR (SC) 2117; State of Madhya Pradesh Vs. G.C.

Mandawar AIR 1954 S.C. 493; A.I.R. 1974 S.C. 1300; AIR 1979 S.C. 478 and

AIR 1981 S.C. 2138; Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa

Pochanna AIR 1985 S.C. 389; Anwar Ali Sarkar AIR 1952 SC 75; Kotch Vs.

River. Port Pilot Commrs (1947) 330 U.S. 552; West Coast Hotel Co. Vs.

Parrish, (1936) 300 U.S. 379 at page 400; AIR 1955 SC 166; R.K. Garg Vs. Union

of India AIR 1951 SC 2138.

Lawyers Involved:


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Khandker Mahbubuddin Ahmed, Senior Advocate (Fida M. Kamal, Advocate

with him) instructed by Sharifuddin Chaklader, Advocate-on-Record.For the

Appellant.

T. H. Khan, Senior Advocate (M.A. Wahab Miah, Advocate with him) instructed

by Md. Aftab Hossain, Advocate-on-RecordFor the Respondent No. 9

M. Nurullah, Attorney General (Hasan Arif, Deputy Attorney General with him)

instructed by B. Hossain, Advocate-on-RecordFor Respondent Nos. 1-3.

Not represented.Respondent Nos. 4-3 & 10-11.

Civil Appeal No. 3 of 1988

Judgement

Badrul Haider Chowdhury J.Appellant was a candidate for election to the

office of Chairman of Borashi Union Parishad in the district of Gopalganj which

was held on 10.2.1988. He filed his nomination paper but it was rejected by the

Returning-Officer on the ground that he defaulted in repaying loan taken by him

from the Janata Bank and Krishi Bank and as such he was disqualified from

seeking election under section 7(2) (g) of the Union Parishad Ordinance which was

inserted by Act 33 of 1987. His appeal was dismissed by the Upazilla Nirbahi-

Officer. Then he moved Writ Petition No. 26 of 1988 challenging the order of the

Returning Officer. The High Court dismissed the writ petition.


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2. Leave was granted to consider the question whether section 7(2) (g) of the

Union Parishad Ordinance is hit by the equality provision under Article 27 of the

Constitution.

3. The matter was heard at length and the learned Attorney General was invited to

address the Court as amicus curiae. Section 7(2) (g) is in the following terms:

"He has defaulted in repaying the loan taken by him from any specified Bank

within the time allowed by the Bank thereon."

Explanation to the enactment gives the list of the specified Banks. It is not disputed

that two Banks referred to above are specified Banks.

4. Mr. Khandker Mahbubuddin Ahmed learned Counsel canvassed that the

impugned legislation is discriminatory and further it gives no clue as to the purpose

of the legislation itself. The gist of his argument can be summed up: "if the

legislation is considered beneficial then why the defaulters are debarred fromcontesting only the Local Council elections. Why not the Parliament?

5. Mr. T. H. Khan learned Counsel appearing for the respondents contended that

the purpose of the legislation is discernible from itself. The learned Counsel went

further to say that this being a beneficial legislation the Court should not strike it

down, rather it should presume the Constitutionality of the impugned legislation

and if the Court takes the view that the purpose of the legislation, though justified,falls short to the expectation of the public, necessary recommendation can be made

so that the legislation can give shape to the aspirations of the people.


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6. Mr. M. Nurullah learned Attorney General in a pains-taking manner has shown

that the basis of classification exists and the Court shall not strike down legislation

unless it becomes palpable that the legislation is discriminatory on the face of it.

7. My learned brother S. Ahmed, J. has exhaustively dealt with the nature of

classification and found that the reasonable classification exists. Though a lengthy

debate had taken place as to the purpose of the legislation yet it was found that the

legislation itself appears to do certain "clean up" business in the administration of

the Local Councils. Defaulters should not be elected members of the Local

Councils, inasmuch as; it might clash with public duty.

8. Local Authority, although representative bodies chosen by adult franchise, have

not the autonomy of the parliament. Indeed they are dependent on Parliament for

their powers. The powers of a local authority derive from statutes and they are

exercised subject to the rule of ultra vires. It is true both the members of the

parliament and the members of the Local Councils are elected by the same voter;

but their respective functions differ widely.

9. The Local Councils are classified on reasonable basis which is apparent from

the nature of its duty and that has been highlighted in the judgment of my brother.

The only question is whether the Court will make any recommendation or voice

the sentiment of the people that the legislation falls short of expectation of the

general public. What is the expectation? To say it in short formula "if the defaulters

are debarred in contesting local elections, how it is the defaulter can contest for the

Parliamentary seat?" Take the case of this person, the appellant, he is debarred

from contesting from the Union Council's election and it is conceded that by mere

being defaulter in the repayment of the loan he cannot be debarred from the

Parliamentary election. My brother Afzal J, focused the sentiment of the appellant

by "quoting the jibe of Mr. Ahmed what is sauce for the goose should be sauce for

the gander. This is the echo of the sentiment expressed in the judgment of S.

Ahmed, J. "when the legislation thought it expedient in the national interest to


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provide for the impugned disqualification for members of local bodies, they

should have provided for similar disqualification for themselves by amending the

Representation of the People Order, 1972. Exclusion of members of Parliament is

found to be an omission of grave impropriety which, however, may be corrected

even now by the law-makers themselves, if not required by any law, at least bydictates of good conscience and high sense of patriotism." I fully subscribe to this

view.

10. Next question is whether the Court should make such recommendation. It has

been argued in a very discreet manner by the learned Attorney General that the

legislature understands and correctly appreciates the needs of its own people and

the matter should be left to it. As a general proposition this theory of legislativesupremacy is established especially in a country which has a democratic tradition

and its evolution over the decades. For instance this proposition is fully valid in

Britain. Modem tendencies even in England has led judicial opinion to modify

such dictum in its absolute form. Lord Denning observed:

"It is no longer necessary for the judges to wring their hands and say: "There is

nothing we can do about it". Whenever the strict interpretation of a statute givesrise to an absurd and unjust situation, the judges can and should use their good

sense to remedy it by reading words in, if necessary- so as to do what parliament

would have done, had they had the situation in mind." (The discipline of Law P.

16).

11. In U.S.A. it is the other way about and it is the Supreme Court which has been

empowered by the Constitution to strike down the legislation offending the

Constitution.

Prof. K. C. Wheare in Modern Constitution observed:


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how much more likely is it that declara-tion of rights may prove to be in practice

little more than words in communities where the executive is held in greater awe

than the Constitution, where people are not free to organise themselves or where

they lack knowledge and capacity to form a public opinion." (P-71).

The same author notices-

"It is argued sometimes too, that it is best to rely upon public opinion to control the

legislature and to leave the electors at the polls to punish its members if they

exceed their powers". The author further observed: "there is not much consolation

here to a minority which hopes to sec its rights protected by a Constitution."Therefore, the judicial decision becomes unavoidable and the author makes his

reservation by saying "the success of judicial review depends as much upon a

well-drafted Constitution as upon the caliber of the judge themselves'. (p-177).

12. While our Constitution recognises the supremacy of the Constitution, it lays

fundamental principles of the State policy in Part-II although the principles cannot

be judicially enforced. In the Constitution the framers had in view the welldefined separation of powers between the executive, legislative and the judiciary.

Since it is the written Constitution the judiciary has been conferred the

jurisdiction to settle the disputes between citizen and citizen and between State

and the citizens. Of necessity, it is judiciary that has to say the last word even in

matters of propriety of legislation. The concept of legislative supremacy imported

from the soil of a developed country cannot be transplanted into the soil of a

developing nation which has a nascent democracy as it is in Bangladesh.

13. A criticism may be levelled that the Court will not go into the morality of any

legislation. The answer is short that no legislation can be made on immoral

philosophy. Constitutional mechanism in a democratic polity does not contemplate

existence of any function what may qua the citizens be designated as political" (Per


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Shah, J in AIR 1971 SC 530 (564). In the same case Hedge, J, observed: "There is

nothing like a political power under our Constitution in the matter of relationship

between the executive and the citizens."

14. Salmond Jurisprudence (11 End) points out "we have now come to recognise

that since the law can never be completely certain the judge must be conceded to

have the power of making new law in the course of deciding cases and that in

exercising this power he will naturally act in accordance with his moral ideas.

(P.30)".

15. I would not like to dilate on this point further for the reason that we havefound the impugned legislation is not offensive. But upon hearing the learned

Counsels there is no hesitation in my mind the frustrated aspiration of the nation

needs consideration. If it is a step only that the defaulters should not participate in

the nation-building activities the legitimate aspiration of the people will have to be

given full shape.

16. Mr. T.H. Khan learned Counsel has voiced the public opinion by saying'example is better than precept'. My brother Afzal, J, has echoed this view and I

fully subscribe to it.

In view of the above, I agree that this appeal should be dismissed.

Shahabuddin Ahmed, J.In this appeal by special leave the question raisedrelates to the constitutional validity of Section 7(2) (g) of the Local Government

(Union Parishads) Ordinance, 1983Ordinance No. LI of 1983. It has been

contended that this provision of the Ordinance is violative of the equality clause of

Article 27 of the Constitution of Bangladesh. S.7 (2) (g) of the Ordinance, which

has been brought in recently by the Local Government Laws (Amendment) Act,


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1987 (Act XXIII of 1987)provides for a disqualification for a person seeking

election as chairman or member of a Union Parishad; the disqualification is that a

person who "has defaulted in repaying any loan taken by him from any specified

bank (nationalised banks) is disqualified from seeking election. But as there has

been no corresponding disqualification for a person seeking election to theParliament, though he has alike defaulted in repaying the same kind of loan, it is

contended, the disqualification provision offends. Art. 27 of the Constitution of

Bangladesh which provides that "all citizens are equal before law and are entitled

to equal protection of law", and as such S.7 (2) (g) being discriminatory in nature

should be struck down in terms of Art. 26 of the Constitution.

18. The appellant before us was a candidate for election to the office of Chairmanof Borashi Union Parishad in the district of Gopalganj which was held on 10

February 1988. He filed his Nomination-paper before the Returning-Officer who

however rejected it by an order dated 11 January 1988 on the ground that he

defaulted in repaying the loan taken by him from the Janata Bank and Krishi Bank

at Gopalganj and as such he was disqualified from seeking election to Union

Parishad under S.7 (2) (g) of the Union Parishad Ordinance. He preferred tan

appeal before the Nirbahi-Officer, but his appeal was dismissed. Thereupon he

filed a writ petitionW.P. No. 26 of 1988challenging the order of the ReturningOfficer. In his Writ-petition he claimed that he was a solvent business-man having

a number of business concerns including a brick manufacturing industry and a

transport business, that he obtained two loans of Tk. 7, 67,000/- from Janata Bank

and one loan of Tk. 15, 000/- from Krishi Bank against proper securities by

mortgaging his two residential buildings in Gopalganj town and landed property in

his village, Dhennabari and also by depositing his Fixed Deposit Receipts. He

claimed that he always took keen interest in social welfare activities in his locality

and was very popular there. He was elected Chairman of the Union Parishad twice

in the past. As to the repayment of the loans, he explained that the loan being fully

secured it is recoverable according to the existing law and in terms of his

Agreements. He contended that he was not a defaulter in that the loan is to be

repaid by instalments spread over a long period of time and that even if he had

failed to pay a particular instalment in lime he could not be a defaulter, for, such

instalment is recoverable with penalty by way of higher rate of interest. He alleged


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in his petition that the impugned provision of disqualification recently brought in

by amendment of the Union Pari-shad Ordinance is discriminatory in the absence

of any corresponding disqualification for a person seeking election to the

Parliament though the latter might have taken same kind of loan but defaulted in

repayment He assailed this provision invoking Art. 27 of the Constitution andprayed that this provision in section 7(2) (g) should be declared void.

19. The learned Judges of the High Court Division by an order dated 1 February,

1988 summarily dismissed the Writ-petition observing that when the Upazilla

Nirbahi-Officer, appellate authority, held on the evidence of two Bank Managers

that the appellant was a defaulter there was hardly any ground for interference.

The learned Judges did not consider the question whether non-payment of aninstalment of the loan in time will make the petitioner defaulter within the meaning

of section 7(2) (g) or whether this legislation is violative of any Constitutional

provision.

20. The appellant then filed a Leave Petition before us and obtained an order of

slay of the Returning-officer's order and participated in" the election subject to the

decision of this Court on his Leave Petition. After hearing the leave petition inpresence of Kh. Mahbubuddin Ahmed, learned Counsel for the petitioner, and Mr.

T.H. Khan, learned Counsel who appeared for the Caveator, Respondent No.9,

one of the candidates in the election, and also after hearing the learned Attorney

General who appeared at our request, we granted leave to consider only one

question, as already referred to namely, whether the impugned disqualification

provision of the Union Parishad Ordinance offends the equality of law provision of

Art. 27 of the Constitution. By way of information, Kh. Mahbubuddin Ahmed

said that the appellant won the election which was held on time.

21. Kh. Mahbubuddin Ahmed, at the outset, referred to different Constitutional

provisions and legislative enactments by, or in pursuance, of which different

elective bodies including the parliament and Union Parishads have been created


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and functioning. Article 65 of the Constitution provides that there shall be a

parliament for Bangladesh (to be known as the House of the Nation) in which shall

be vested the legislative power of the Republic. Art. 66 of the Constitution

provides for qualifications and disqualifications for election to, and being

members of the Parliament. Qualifications are that a person seeking election toParliament shall be a citizen of Bangladesh and has attained the age of twenty five

years. A person shall be disqualified for election as, or for being, a member of

Parliament, who (a) is declared by a competent court to be of unsound mind; (b) he

is an undischarged insolvent; (c) he acquires the citizenship of a foreign state; (d)

has been, on conviction for a criminal offence, sentenced to imprisonment for a

term of not less than two years, unless a period of five years has elapsed since his

release; (e) holds any office of profit in the service of the Republic. Clause (g) of

Art. 66 provide that further disqualification may be provided "by or under anyother law". Representation of the People Order, 1972 (President's Order No. 155

of 1972) which provides for election to Parliament has brought in another

disqualification in S.12. It is that a person may be disqualified if he has any share

or interest in a contract for supply of goods to or for the execution of any contract

with the government.

22. A Union Parishad, and for that purpose all other Local Government Bodies,such as Upazilla Parishad, Pourashava, is not created by any Article of the

Constitution; but it has been created by a separate Act of Parliament in pursuance,

as appears, of the provision of Art. 9 of the Constitution. This Article provides

that the "State shall encourage Local Government institutions composed of

representatives of the areas concerned". The Union Parishad Ordinance, 1983,

which repealed and to a large extent re-enacted the Local Government Ordinance,

1976 (Ordinance No. XC of 1976) in its application to Union Parishad, is the

Statute governing the constitution, function and responsibilities of, and election to,

the Union Parishad. Section 7 of the Ordinance, as already referred to, provides

for qualifications and disqualifications of chairman and members of a Union

Parishad. Qualifications for a person seeking such election are that he is a citizen

of Bangladesh and has attained the age of twenty-five years. His disqualifications

are that he has been declared by a competent court to be of unsound mind; he is an

undischarged insolvent; he has ceased to be a citizen of Bangladesh; he has been,


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on conviction for a criminal offence, sentenced to imprisonment for a term of not

less than two years, unless a period of five years has elapsed since his release; he

holds any office of profit in the service of the Republic or of the Union Parishad

or any other local authority; he is a party to a contract for work to be done for, or

goods to be supplied to, the Union Parishad concerned or has otherwise anypecuniary interest in the affairs of the Union Parishad.

23. It is seen that qualifications and disqualifications in respect of election to a

Union Parishad are identical with those in respect of election to the Parliament

and that this was the position from the beginning of Independence of the country

till" 24 June 1987 when the additional disqualification on the ground of default in

repayment of loan has been imposed by an Amendment in the case of UnionParishad election and not in the case of Parliament election. The amending

statute, namely Act XXIII of 1987, has amended not only the Union Parishad

Ordinance but also has amended five other Ordinance relating to other Local

Government Bodies. They are the Paurasava Ordinance, 1977; The Local

Government (Upazilla Parishad and Upazilla Administration Re-organization)

Ordinance, 1982; The Chittagong Municipal Corporation Ordinance, 1972. The

Dhaka Municipal Corporation Ordinance, 1983; The Khulna Municipal

Corporation Ordinance, 1984. In each of these ordinances the same disqualificationon the ground of default in repayment of loan from the specified banks has been

provided where, till these amendments, there was no such disqualification in these

Ordinances. The disqualification is that "he has defaulted in repaying any loan

taken by him from any specified bank within the time allowed by the bank

therefore". The specified banks are also the same in all these Ordinances.

24. Kh. Mahbubuddin Ahmed has referred to President's Order No. 104 of 1972

(Bangladesh Electoral Rolls Order, 1972) which provides for preparation of

Electoral Rolls for election of representatives of people to "elective bodies" and

has pointed out that an 'elective body means a body constituted by or under any

law or constitutional provision consisting of members to be elected on the basis of

adult franchise, and that" elective bodies" mean both Parliament and Local


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Government Bodies including Union Parishads. This view is correct and it has

been confirmed by the Electoral Rolls (Amendment) Ordinance, 1984

Ordinance No. XVIII of 1984which also says that 'elective body' means a local

body or Parliament. All these bodies consist of People's representatives elected on

the basis of universal adult franchise, that is, they are elected by citizens who havebeen enrolled on the electoral rolls in respect of their respective electoral areas.

Qualifications for a person to be enrolled on an electoral roll are that he is a citizen

of Bangladesh and that on the 'qualifying date he has attained the age of 18 years

of age, and that he is not of unsound mind. Electoral rolls are prepared by or under

the authority of the Election Commission in the manner laid down in s. 8 of the

President's Order No. 104 of 1972. P.O. 104 of 1972 was made by the President on

29.8.72, i.e. before the Constitution of Bangladesh was made and put into

operation on and from 16th December 1973. The Constitution, in Art. 119 (1), haslaid down the functions of the Election Commission. The functions are

preparation of Electoral Rolls for all elections to the office of President and to

Parliament, delimitation of electoral areas, called constituencies, in respect of

election to Parliament and conduct of such elections. Under Art. 119 (2) the

Election Commission performs such other functions as prescribed by this

Constitution or "by any other law". It is in pursuance of this provision of Art. 119

(2) of the Constitution that the Election Commission prepares Electoral Rolls for

all other elective bodies including the Union Parishad. In each of the statutes which

provide for constitution and function of different elective bodys specific provision

has been made empowering the Election Commission to prepare electoral rolls

for election of people's representatives to these elective bodieswhich are also

called local government bodies. The provision for preparation of electoral rolls is

uniform in respect of all these bodies including the Parliament. From this position

of law, learned Counsel for the appellant argues that law, learned Counsel for the

appellant argues that representatives of the people, whether they constitute the

National Legislature at the top or the Union Parishad at, the ground level,

constitute a single class by themselves and that they have all along been governed

by the same or identical law laying down their qualifications and disqualifications

for seeking election to these elective bodies and it is for the first time in June 1987

that a discriminatory treatment has been given to persons seeking election to the

Local bodies by bringing an additional disqualification for them but exempting

members of the Parliament from this disqualification. The learned Counsel has


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contended that had the law-makers, who are themselves members of the

Parliament, any regard for the "equality before law and equal protection of law" in

Art. 27 of the Constitution and acted in fair and impartial manner, they would

have subjected themselves 10 the same 'disqualification' by amending the

Representation of People's Order, 1972.

25. Learned Counsel for the appellant has taken a number of grounds to

substantiate his contention that s.7 (2) (g) of the Union Parishad Ordinance is

discriminatory offending Art. 27 of the Constitution. He has pointed out that the

object and reason for the impugned legislation bringing in the disqualification was

not stated in the amending statuteAct XXIII of 1987and contended that

default in payment of loan which is fully secured and recoverable according toterms of the Agreement between lender and borrower as well as under the

appropriate law got no reasonable nexus whatever with the borrower's election to,

the Union Parishad. Again, if the purpose of the impugned legislation were to help

recovery of loans taken from State-owned banks and thereby to salvage the

national economy from ruin caused by large scale nonrecovery of the loans, then

this purpose would be better served by bringing members of Parliament also within

the ambit of the disqualification provision, he argues. Learned Counsel further

argues that even if the impugned law is defended on the ground of public goodasa beneficial legislationthere can be no earthly reason for keeping members of

Parliament away from its ambit. Learned Counsel has argued that persons, such as

the appellant, seeking election to the lowest tier of the democratic set-up ordinarily

take loan in small amounts, whereas persons seeking election to National

Parliament lake loans in big amounts upto crores of taka, and if the latter being

defaulter are exempted from the hands of law but the former are subjected to it

then the impugned legislation has been made on arbitrary classification of

persons and as such must be struck down. The learned Counsel has referred to a

number of decisions to substantiate his contentions to which I shall pay attention

in due course.


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26. Mr. T.H. Khan, learned Counsel for respondent No.9, has also made a lengthy

submission, supported by certain decisions, to show that the impugned legislative

provision as to disqualification by being a defaulter is not discriminatory in that

members of Union Parishad, and for that purpose, all other local bodies,

constitute a separate class distinguished from those representing the "people inParliament. These two kinds of elective bodies, created as they are, by different

statutes for performing different functions and acting in different fields, cannot be

grouped into one class, he has contended. By giving separate treatment to these

distinctly separate bodies of people's representatives, learned Counsel goes on, the

legislature acted quite within its power. He has argued that for reasons of history,

geography level of education, culture and economic condition of people of the

country, the peoples' representatives may, be treated according to different

standards by the legislative with a view to attaining some definite objects, andsince the local bodies and the Parliament are traveling on distinctly separate paths,

they cannot be treated alike for the purpose of legislation. The learned Counsel has

argued that among the members of the local bodies there is no inter se

discrimination, but all of them have been equally treated. Secondly, a person

seeking election to a local body, such as the appellant, though disqualified, is at

liberty to seek election to Parliament where the question of default in payment of

loan will not arise as a disqualification. As to the object of this legislation, that is,

barring a defaulter from seeking election to local bodies, the learned Counsel has

submitted that it is a beneficial piece of legislation and though this object has not

been expressly stated in the statute it may be gathered from common knowledge

about the prevailing state of things and general economic condition of the country

vis--vis the object for achieving which the statutes created the local bodies.

Learned Counsel has pointed out that because of huge amounts of loans, taken

from nationalised banks remaining unpaid the national economy has been brought

on the verge of collapse and this default clause is quite likely to help strengthen the

battered economy. As to exemption of members of the National Legislature from

this beneficial law, he has regretted their exclusion which, he says, is highly

improper though not unconstitutional. He however hopes that the law-makers will

reconsider this aspect of the matter and bring about necessary amendment in the

law subjecting themselves to the same disqualification.


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27. The learned Attorney General has appeared at our request to assist us in

arriving at a correct decision in this case as to interpretation of the Constitution.

In general he has adopted the arguments advanced by Mr. T.H. Khan. In addition,

he has referred to a great number of decisions of the Indian Supreme Court in

which power of the legislature to make reasonable classification of persons, thingsand transaction on the basis of intelligible differentia, for achieving definite

legislative, end, has been examined. He has disagreed with Kh. Mahbubuddin

Ahmed that members of Parliament and those of all other elective bodies also

known as local Government bodies, constitute one and single class. He has

contended that these bodies, Parliament and local Bodies, are quite dissimilar in

respect of their nature and functions as well as in respect of legislative objectives

for achieving which they are created. He has submitted that in view of special

characteristics and different functions and activities of the local bodies differentqualifications or disqualifications may be required of persons seeking election

thereto. He has referred to the Bengal Municipal Act, 1918 which provides for

disqualification for a person seeking election to the Municipal Corporation if he

has not cleared his municipal rent and charges. This provision has been retained

by the Municipal Ordinance, 1983, he has submitted. He has also cited a decision

of the Patna High Court in which it has been held that a Municipal Law which

provides that a person who has not cleared municipal dues is disqualified from

seeking election as Commissioner thereof is constitutionally valid.

28. From the respective submissions of the parties in this case the question before

us is whether the guarantee of the Constitution, in Art. 27, that "all citizens are

equal before law and are entitled to equal protection of law" has been disregarded

in the impugned legislation, namely section 7 (2) (g) of the Union Parishad

Ordinance. First of all it is to be clearly understood what 'the equality of law'

means. Sir Ivor Jennings in his "The Law and the Constitution" has stated:

"Equality before the law means that among equals the law should be equal and

should be equally administered, that like should be treated alike".


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Dicey in his "law of the Constitution', stated:

"Equality before the law does not mean absolute equality of men which is a

physical impossibility, but the denial of any special privileges by reason of birth,

creed or the like, in favour of any individual and also the equal subjection of all

individuals and classes to the ordinary law of the land administered by the

ordinary law Courts."

In the "Limitations of Government Power" by Rotundy and others "equal

protection of the laws" has been described as:

"The equal protection clause guarantees that similar individuals will be dealt with

in a similar manner by the government. It does not reject the government's ability

to classify persons or draw lines' in creation and application of laws, but it does

guarantee that those classifications will not be based upon impermissible criteria or

arbitrarily used to burden a group of individuals. Such a classification does not

violate the guarantee when it distinguishes persons as 'dissimilar' upon some

permissible basis in order to advance the legitimate interest of society."

In Southern Rly Co. V. Greane, 216 U.S. 400 Day J. observed:

"Equal protection of the laws means subjection to equal laws, applying alike to all

in the same situation."

Chandrachud J., in "Smt. Indira Gandhi V. Raj Narayan", AIR 1975, and SC 2279

described his idea of equality as:


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"All who are equal are equal in the eye of law", meaning that it will not accord

favored treatment to persons within the same class."

29. On consideration of the views expressed by these distinguished Judges and

Authors as to the meaning of the "equality before law and equal protection of the

law", I do not think that I will be able to define this term in a better way, "Equality

before law" is not to be interpreted in its absolute sense to hold that all persons are

equal in all respects disregarding different conditions and circumstances in which

they are placed or special qualities and characteristics which some of them may

possess but which are lacking in others. The term 'protection of equal law' is used

to mean that all persons or things are not equal in all cases and that persons

similarly situated should be treated alike. Equal protection is the guarantee thatsimilar people will be dealt with in a similar way and that people of different

circumstances will not be treated as if they were the same. A single law therefore

cannot he applied uniformly to all persons disregarding their basic differences with

others; and if these differences are identified, then the persons or things may be

classified into different categories according to those distinctions; this is what is

called 'permissible criteria! or "intelligible differentia", The Legislature while

proceeding to make law with certain object in view, which is either to remove

some evil or to confer some benefit, has power to make classification onreasonable basis. Classification of persons for the purpose of legislation is

different from class legislation, which is forbidden.

To stand the test of 'equality' a classification, besides being based on intelligent

differentia, must have reasonable nexus with the object the legislature intends to

achieve by making the classification. A classification is reasonable if it aims at

giving special treatment to a backward section of the population; it is also

permissible to deal out distributive justice by taxing the privileged class and

subsidising the poor section of the people. What is of fundamental importance in

law-making is that while making a classification the legislature shall not act

arbitrarily but make selection on rational basis. In the light of these observation's I

shall see whether the impugned legislation is supportable in terms of 'equality of


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law' within the meaning of Art. 27 of the Constitution. In support of their

respective contentions learned Counsels have cited many decisions which I now

proceed to consider.

30. In the case of State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75,

the Supreme Court of India struck down section 5 (1) of the West Bengal Special

Courts Act, 1950 as violative of Art. 14 of the Indian Constitution which provides

that "the State shall not deny to any person equality before law or the equal

protection of the laws". The impugned section of the law provides that a special

Court shall try offences or classes of offences or cases or classes of cases as the

State government may direct. Contention of the accused-respondent was that this

provision gave arbitrary power to the government to choose any accused personfor trial before the Special Court which follows a harsher procedure than the

ordinary courts and as such it offended Art. 14 of the Constitution. This contention

was upheld with the observation that "the Act has completely ignored the principle

of classification followed in the Crl. P.C. and has laid down a new procedure

without making any attempt to particularizes or classify the offences or cases to

which it is to apply". In Dhirendra Kumar Vs. Government of West Bengal, AIR

1954, SC 424, a similar question arose and the Supreme Court upheld the

contention of the accused-appellant that the impugned Notification of the StateGovernment revoking its previous Notification, by which the accused was granted

trial by Jury under section 269(1) Crl. P.C., and directing his trial with the aid of

Assessors, offended the equality provision in Art. 14 in that the classification of

cases and offences to be tried with the aid of Assessors as per Government

Notification was not based on any substantial distinction. In Panduranga Rao vs.

Andhra Pradesh Public Service Commission, AIR 1963, SC 268, a rule made by

the Government of the Province laying down certain special qualifications for

recruitment of District Munsifs was challenged on the ground that it made arbitrary

classification between Advocates of one High Court and those of other High

Courts of India. The rule says that a candidate for the post of District Munsif,

among other things, must be an advocate of the 'the High Court', which expression

meant only the High Court of Andhra Pradesh. The Supreme Court found that this

rule introduced a classification between one class of advocates and the rest and that

this classification was irrational inasmuch as there was no nexus between the basis


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form and treat them as one law and strike it down if in their conjunction they result

in discrimination."

But those laws having been made by two different Legislatures on their respective

fields the Supreme Court found no discrimination as alleged by the respondent. In

the instant case Kh. Mahbubuddin Ahmed's argument may be acceptable so far as

the source of authority of making law is concerned, that is, Parliament, in that both

the Representation of the People Order, 1972 and the Union Parishad Ordinance,

1983 have been enacted by Parliament. But the question is whether people's

representatives in the parliament and the Union Parishad do constitute one and

single class. This question requires to be answered first.

32. A glaring instance of discriminatory legislation offending "equality before

law" is available in the case of Indira Gandhi vs. Raj Narayan (supra). There,

amended Art. 329-A (4) of the Indian Constitution was assailed, among other

things, on the ground of arbitrary classification. Indira Gandhi's election to

Lokshabha held in March 1971 was held void by the Allahabad High Court and

against that decision she preferred an appeal before the Supreme Court. During

pendency of the appeal, Indian Parliament amended the Constitution insertingtherein Art. 329A. Clause (4) of this Article made the existing Election Laws

retrospectively inapplicable to Parliamentary elections of the Prime Minister and

the Speaker; it kept the election of these two personages, who are members of

Parliament, beyond the reach of any law past or present; it declared the disputed

election of Indira Gandhi valid and further declared that the judgment of the

Allahabad High Court was void and the election petition challenging her election

abated. Existing Election laws were however kept alive to be applicable to

elections of all other members of the Parliament. The Supreme Court struck down

clause (4) as grossly discriminatory.

33. Mr. T.H. Khan, in upholding the classification as regards the local

Government bodies, has placed reliance on Pakistan Supreme Court's decision in


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"Jibendra Kishore Vs. Prov. of East Pakistan", 9 DLR SC 21. In that case, upon the

wholesale acquisition of all rent-receiving interests the expropriated landlords

were sought to be compensated for to some extent and for that purpose they were

grouped into ten classes under section 37 of the East Bengal State Acquisition and

Tenancy Act, 1950. This classification was challenged as being violative of theequality before law provision of Art. 5 of the Con-stitution of 1956. The

classification was based on the landlords' net annual income from their estates, the

lower the income the higher the rate of compensation. Munir CJ., upholding the

classification observed that if the Legislature once decided to abolish the system

of private landlordism in agricultural land and the resources of the State were not

sufficient to compensate the outgoing landlords, some means for the rehabilitation

of the expropriated landlords had to be devised, and, if in its anxiety to rehabilitate

such landlords, the legislature took into consideration the net income of the personswhom it was intended to set on their feet, the classification based on such

considerations must be considered to be a necessary result of bringing the

expropriating provision of the Act into action. As to "equality of the law and equal

protection of law", he observed:

"Whatever the expression equal protection of law may mean, it certainly does not

mean equality of operation of legislation upon all citizens of the State... Equalprotection of the laws means that no person or class of persons shall be denied the

same protection of the laws which is enjoyed by other persons or other classes, in

like circumstances."

34. Of the cases referred to by the learned Attorney General "Charanjit Lai. Vs.

Union of India", AIR 1951 SC 41, is one of the earliest cases decided by the

Indian Supreme Court in the light of Art. 14 of the Indian Constitution. In that case

a single manufacturing company namely, Sholapur Spinning and Weaving

Company, was treated by the Indian Central Legislature "as a class by itself in

view of allegation of mismanagement, and a law was made for better management

of the affairs of the company The law, Sholapur Spinning and Weaving Company

(Emergency Provisions) Act, 1950, empowered the Government to appoint


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"Equal protection of the laws is denied if in achieving a certain object, persons,

things or transactions of similar circumstances are differently treated and that the

principle underlying that different treatment has no rational relation to the objectsought to be achieved by the law."

35. In "Anant Mills Vs. State of Gujrat, AIR 1975, SC 134, certain properties were

treated as a special class for the purpose of levying conservancy charges at higher

rates in the Bombay Provincial Corporations Act, 1949, as amended by the Gujarat

Act No. 5 of 1973, in its application to the latter State. The Act also -treated the

decided cases as belonging to one category and pending cases as belonging to

another category. Both the classifications were held to be constitutionally valid.

The Indian Supreme Court considered a Reference made by the President of India

under Art. 143 of the Indian Constitution and this matter was reported in AIR

1979 SC 478 as Special Courts Bill 1978. The question was whether the Special

Courts Bill, if made into law, would be constitutionally valid. The Bill provided

for creation of Special Courts to try certain offences committed by high public

officials and political persons during the period of Emergency declared on 25 June,

1974. The classification of persons and offences for trial by the proposed Special

Courts which were to follow a harsher procedure than the ordinary courts of the

country was seriously assailed on the strength of the equality clause of Art. 14; but

the classification was upheld by the Supreme Court which found that there was a

reasonable nexus between it and the object of the law to ensure speedy trial of

offences committed in peculiar circumstances.

36. In R.K. Carg v. Union of India, AIR 1981, SC 2138, Special Bearer Bonds

(Immunities and Exemptions) Act, 1981, which made a classification betweenpersons having 'black money' and others, was held lo be quite reasonable, and

permissible under the 'equality of law' provision of Art. 14 as the privileges and

immunities were offered to the class of persons in possession of black money for

the purpose of unearthing the black money "for being utilized for productive

purposes with a view to effective social and economic planning". In Lingappa


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Pochanna vs. State of Maharastra, AIR 1985, SC 389, the Maharastra Restoration

of Lands to Scheduled Tribes Act, 1975, came under challenge on the ground of

discrimination. This Act provided for annulment of transfers of agricultural land

made by members of the Special Tribes to members of the advanced communities.

Members of the Scheduled Tribes, known as Tribal or Aboriginals, were treated asa distinct, separate class who are poor, backward and very weak in the matter of

bargaining with members of other communities who are far advanced

economically, politically, strong financially and Very affluent. Many members of

the Tribe sold away their agricultural land to members of the affluent

communities, sometimes at unconscionable low price. The State Legislature

enacted the law in question providing for annulment of such transfers if they were

made during the "specified period" prior to the making of the law. This

classification was held to be constitutionally valid and not discriminatory.Classifications for the purpose of legislation were upheld by the Supreme Court of

India in the remaining two cases cited by the learned Attorney General, namely

State of Gujarat Vs. Shri Ambica Mills. AIR 1974, SC 1300 and Shujal Ali vs.

Union of India, AIR 1974, SC 1631.

37. The principles of reasonable classification of persons and things for legislative

purposes as stated and explained in the decisions of both Indian and PakistanSupreme Courts referred to above, have followed the lines of reasonings of the

United States Supreme Court which were based on interpretation of the equality

clause of the 14th Amendment of the U.S. Constitution. I think it would be quite

appropriate if I quote a passage from one of such decisions of the U.S. Supreme

Court. In Southern Railway Co. Vs. Greane (1909-216 U.S. 400), supra, Day J,

observed:

"While reasonable classification is permitted, without doing violence to the equal

protection of the laws, such classification must be based upon some real and

substantial distinction, bearing a reasonable and just relation to the things in

respect to which such classification is imposed; and the classification cannot be


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arbitrarily made without any substantial basis. Arbitrary selection, it has been said

cannot be justified by calling it classification."

38. Kh. Mahbubuddin Ahmed has argued that there was no classification between

people's representatives in the Local Government bodies and those in the

Parliament and they all were treated as one class, so far as their qualifications and

disqualifications were concerned, till the impugned Amendment which gave a

different treatment to the people's representatives in the local bodies. He argues

that this differentiation does not attract the classifications found in any of the

decisions cited in this case and this differentiation or classification is arbitrary. He

has pointed out that object of the Amendment bringing in the impugned law was

not stated therein and if furtherance of economic or financial interest of the Statewere the object, there is no reason whatever for exemption of the members of the

Parliament. But the position of law on this point is that it must be presumed that

the Legislature is fully aware of the Society's problems and the Legislature makes

law to solve such problems keeping in view the welfare of the people. It also must

be presumed that when any law is made it is constitutionally valid until the

presumption is rebutted by the person who challenges its validity. The United

State's Supreme Court in Middleton Vs. Texas P & L Co, 248 U.S. 152, observed:

"It must be presumed that a Legislature understands and correctly appreciates the

needs of its own people, that its laws are directed to problems made manifest by

experience and that its discriminations are based upon adequate grounds."

Bruen J, in Gulf Colorado Rly. v. Ellis, 165 U.S. 150, however, warned against

carrying this presumption too far and observed:

"To carry the presumption to the extent of holding that there must be some

undisclosed and unknown reason for subjecting certain individuals or corporations


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to hostile and discriminatory legislation is to make the protection clause of the 14th

Amendment a mere rope of sand."

Bhagawati J, in Shujat Ali vs. Union of India, AIR 1974, and SC 1631 observed:

"The doctrine of classification should not be carried to a point where instead of

being a useful servant it becomes a dangerous master."

In Lachmon Das vs. State of Punjab (supra) Subha Rao J, observed:

"Over-emphasis on the doctrine of classification or an anxious and sustained

attempt to find some basis for classification may gradually and imperceptively

deprive the article of its glorious content. That process would gradually and

imperceptively substitute the doctrine of classification for the doctrine of

equality".

39. Kh. Mahbubuddin Ahmed has emphasized "the test of reasonableness" in

considering a classification for legislation and has contended that the impugned

classification between the same kind of people namely, people's representatives,

does not stand the 'test of reasonableness'. He has, in this connection, referred to

an observation of Patanjali Shastri CJ., in the State of Madras Vs. V.G. Row, AIR

1952, and SC 196. It is that in forming a correct conception of reasonableness the

social philosophy and the scale of values of the Judges participating in the decision

play an important part. We do not think that in construing a Legislation the courtwill adopt a doctrinaire approach which, as F. Ali, J, observes, "might choke all

beneficial Legislation". If two categories of persons or things, though they may

have some resemblances, differ in material points, then they may be separately

treated for the purpose of legislation. I shall, therefore, examine the basic


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differences in the two kinds of representatives of people as pointed out by the

learned Attorney General.

40. Parliament is a creation of the Constitution itself; the local elective bodies are

created by their respective statutes in pursuance of Art. 9 of the Constitution,

which appears in Part II relating to Fundamental Principles of State Policy. These

Principles, though they must be applied by the State in the making of law, are not

justifiable in court. The main function of Parliament is law making, that is,

legislative, whereas the main functions of local bodies are executive in nature. In

the case of Union Parishads, the functions are maintenance of law and order and

rendering assistance to administration in this matter; adoption of measures for

preventing crimes, disorder and smuggling; adoption of development schemes forsocio-economic development and implementation of these schemes as well as

those assigned to them by higher authorities; development of local resources and

their use; protection and maintenance of public properties such as roads, bridges,

canals etc., motivation of people for family planning, improvement of sanitary

condition and primary education. Besides these functions, the government may

entrust to Union Parishads some of the police and Village defence functions. To

assist revenue officials in collection of rents and taxes and in preparation of records

and assessments is their important responsibilities. For each Union Parishad thereshall be a fund known as Union Fund which is managed by, and in custody of, the

Union Parishad. These are purely executive functions. Parliament has no function

like these. It is true that from among members of Parliament most of the ministers

are appointed whose functions are executive in nature, and that regular

Parliamentary Committees with some members of Parliament are formed for

transaction of business of the parliament. But this does not alter their character

and functions as members of the Supreme law-making Body which is one of the

three Organs of the Government under the Basic Principle of Separation of Powers

between the Executive, Legislative and the Judiciary. Again, a local body is a

"body corporate" having perpetual succession with a right to acquire and dispose

of property and to sue and to be sued. Above all, members of a Union Parishad are

'public servants' within the meaning of S. 21 of the Penal Code. The term 'Public

Servants' denotes some executive control over them and they are subject to

disciplinary rules which are applicable to regular government servants. In view of


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these differences in respect of functions and duties, the Legislature thought it

proper and expedient to treat them as a separate class of people's representatives

and has provided for the additional disqualification in question.

41. The main object of the 'disqualification provision appears to be the furtherance

of economic and financial interest of the State and though it has not been expressly

stated in the statute it is clear from the nature of duties and responsibilities of the

persons constituting these local bodies. It is a common knowledge that for non-

payment of loans taken from State owned banks, the national economy has been

badly affected. One of the functions of Union Parishads is to help collection of

government dues, rent and taxes. Besides, members of the Union Parishad are

directly involved in financial transaction in the course of their official duties andrunning the affairs of the Union Parishad. The fact that these persons are

financially handicapped by being 'defaulters' will embarrass them in the discharge

of their duties. It is quite natural that a person seeking election to local body, such

as a Municipality, will be debarred from doing so unless he clears his dues in rent

and taxes to that body. What is the harm if the Legislature extends this bar to his

dues to the government controlled banks? The Legislature has not imposed similar

bar against persons seeking election to Parliament because it has treated members

of Parliament as a separate class and in making classification of persons and thingsit is not bound by any inflexible standard disregarding vital points of differences.

Dead uniformity in making a classification is not necessary and rules of

classification may allow flexibility. As Plato said in his 'Politicus' laws would

operate like an obstinate and ignorant tyrant if they impose inflexible rules without

allowing for exceptional cases. If a law is applicable to all persons of a well

defined class, then it cannot be criticised on the ground that similar law has not

been made for application to members of other classes. Exclusion of members of

the other class, namely the parliament from this law, which is undisputedly a

beneficial one, is certainly unethical and morally undependable; but it is not

unconstitutional. It is not invalid because it is uniformly applicable to all persons

of the same class, namely members of local bodies. When the Legislature thought

it expedient in the national interest to provide for the impugned disqualification for

members of local bodies, they should have provided for similar disqualification

for themselves by amending the Representation of the People Order, 1972.


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Exclusion of members of Parliament is found to be an omission of grave

impropriety, which however, may be corrected even now by the law makers

themselves, if not required by any law, at least by dictates of good conscience and

high sense of patriotism. But exclusion of members of one elective body from a

particular disqualification cannot be a ground for attacking the validity of the lawin respect of other local bodies; those who are disqualified to seek election to local

bodies face no discrimination if they seek election to Parliament, and secondly,

there is no inter se discrimination among members of the elective bodies.

42. The right to seek election to the local bodies or even to the Parliament is not

fundamental right guaranteed by the Constitution; it is a statutory right and in the

instant case, created by the Union Parishad Ordinance, 1983. Nevertheless, to be acandidate for election is a democratic right which must be jealously guarded and

effectively protected against any invasion from any quarter. Thwarting this right by

creating artificial classification among the people or attaching 'disqualification' for

extraneous consideration will cut at the root of the democratic set up of the

republic. In this connection I like to refer to two decisions of the U.S. Supreme

Court, one in Doland Paul Lublin Vs. Leonard Panish, US-SCR39 L. Ed-2nd,

415-709; and the other in Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed,

2nd, 405, 134. In the first mentioned case, the appellant sought nomination forelection to the Country Board of Supervisors. A law of his State Legislature

required of a candidate a 'filing fee' before he submits his nomination paper. The

appellant was unable to pay the fee and challenged the Statute itself in Court

contending that it is discriminatory against him vis--vis other candidates who are

rich and capable of paying the fee which stands in the way of exercising

democratic right. His contention was ultimately upheld by the Supreme Court by a

unanimous decision of seven Judges in which it was observed that the provisions

requiring filing fee violated the equal protection of law guaranteed by the 14th

amendment of the Constitution; it also violated the right of free expressions of

democratic views of electors who are deprived of casting their votes in favour of

the candidate of their choice. In the other case, similar filing fee for persons

seeking election to Texas Democratic Primary for country office was required by

the State legislation. This provision of the statute was challenged as violating the

equality clause of the 14th amendment; the challenge was upheld, the statute was


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declared unconstitutional being violative of equal protection of law of the 14th

Amendment and was struck down by the Supreme Court.

43. Those cases, we find, are distinguishable from the instant case in that there the

persons seeking election did not by their own volition incur the financial

disqualification, but the disqualification was imposed by law requiring payment of

high amount of filing fee which many candidates found difficult to pay. In the

instant case, it is the appellant himself who borrowed the money from bank for his

own benefit but did not repay it.

44. In the result, we find that the provision in section 7(2)(g) of the Union ParishadOrdinance, 1983, is not discriminatory but is constitutionally valid. The appeal is,

therefore, dismissed. The order of stay granted by this Court is vacated and the

appellant's election as Chairman of the Union Parishad in question is set aside. He

is directed to vacate his office at once. Fresh election may be held by the Election

Commission. In view of the important question of law involved in this appeal we

make no order as to costs.

M.H. Rahman J.I have read the judgments of brother Shahabuddin Ahmed and

brother A.T.M. Afzal. I agree that the appeal should be dismissed. As I hold a

slightly different view on one or two points I think I should give my own

reasonings.

46. The appellant's nomination-paper for election lo the office of the Chairman of

Borashi Union Parishad was rejected by the Returning Officer on the ground thathe was disqualified from seeking election under S.7(2)(g) of the Local Government

(Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) as he defaulted in

repaying the loan he had taken from the Janata Bank and Krishi Bank at

Gopalganj.


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47. The appellant contends that he is similarly circumstanced with a Member of the

Parliament, both being a representative of the people elected by the electors on the

basis of adult franchise, but the Legislature in violation of Art. 27 of the

Constitution provided a different disqualification in his case by inserting a new

clause, clause (g) in sub-section (2) of Section 7 of the Ordinance No. LI of 1983by sect. 6 of the Local Government (Amendment) Act, 1987 (Act XXIII of 1987).

48. The appellant's contention may appear irresolvable when one hurriedly glances

through the respective provisions for disqualification for election. Art. 66 (2) of

the Constitution provides:

"66. (2) A person shall be disqualified for election as, or for being, a member of

Parliament who

(a) is declared by a competent court to be of unsound mind;

(b) is an undischarged insolvent;

(c) acquires the citizenship of, or affirms or acknowledges allegiance lo, a foreign

state;

(d) has been, on conviction for a criminal offence involving moral turpitude,

sentenced to imprisonment for a term of not less than two years, unless a period offive years has elapsed since his release;

(dd) holds any office of profit in the service of the Republic other than an office

which is declared by law not to disqualify its holders;


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(d) he has been, on conviction for a criminal offence involving moral turpitude,

sentenced to imprisonment for a term of not less than two years, unless 9 periods

of five years has elapsed since his release;

(e) he holds any full-time office of profit in the service of the Republic or of the

Union Parishad or of any other local authority; or

(f) he is a party to a contract for work to be done for, or goods to be supplied to,

the Union Parishad concerned, or has otherwise any pecuniary interest in its

affairs, or is a dealer in essential commodities appointed by the Government.

(g) he has defaulted in repaying any loan taken by him from any specified bank

within the lime allowed by the bank therefore."

Clause (g) was inserted by Sect. 6 of the Act XXIII of 1987, the impeached

legislation. It is submitted that in view of similar provisions for disqualification

in the two laws passed by the same Legislature insertion of the new financialdisqualification, clause (g), without making a corresponding provision in case of a

member of the Parliament has violated Art. 27 of the Constitution. It is suggested

that such a provision can easily be made by amending P.O. 155 of 1972.

49. It is not necessary to examine in this case whether in view of clause (b) of sub-

Art. 2 of Art. 66 of the Constitution any financial disqualification like the

impugned clause (g) can be added by making an amendment in P.O. 155 of 1972. Ifind it more important to point out that in case of the member of the Parliament all

provisions for disqualification except the one provided in Art. 12 of P.O. 155 of

1972 are provided in the Constitution. This is important because of the initial

objection raised by the appellants opponent,respondent 9, that the

disqualifications for two different categories of representatives of people having


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been provided under two separate laws governing distinctly two separate

institutions, the question of violation of Art. 27 can not be tested by comparing the

two sets of laws, Reliance has been placed on State of Madhya Pradesh Vs.

Mandawar, AIR 1954 (SC) 493.

50. In reply to that objection the appellant relied on the following observation

made in para 9 of the report of that case;

"It is conceivable that when the same Legislature enacts two different laws but in

substance they form one, legislation, it might be open to the court to disregard the

form and treat them as one law and strike it down if in their, conjunction theyresult in discrimination."

51. No case was cited to show whether the Indian Supreme Court had any

occasion to consider the useful hypothesis. For a clear understanding of the ratio

decidendi of that case I think I should quote the sentence preceding that

observation as well as the sentences following it:

"This power of the Court to declare a law void under Article 13 has to be exercised

with reference to the specific legislation which is impugned. It is conceivable that

when the same legislature enacts two different laws but in substance they form

one legislation, it might be open to the Court to disregard the form and treat them

as one law and strike it down, if in their conjunction they result in discrimination.

But such a course is not open where, as here, the two laws sought to be read in

conjunction are by different Governments and by different Legislatures. Article 14does not authorise the striking down of a law of one State on the ground that in

contrast with a law of another State on the same subject its provisions are

discriminatory. Nor does it contemplates a law of the Centre or of the State dealing

with similar subjects being held lo be unconstitutional by a process of


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comparative study of the provisions of the two enactments. The sources of

authority for the two statutes being different, Article 14 can have no application".

That decision has been consistently followed by the Indian Supreme Court: see

Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC

1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117, it

was contended that Tamil Nadu Rent Act was violative of Art. 14 of the Indian

Constitution as in that law, unlike many other Rent Acts in India, there was no

provision for re-induction of the tenants in the premises after reconstruction. After

referring to Mandawar's case the Indian Supreme Court rejected the contention.

52. The two sets of laws in the instant case cannot be termed as one law, though

they were passed by the same Legislature. They are classes apart. The impeached

legislation govern only those, and governs them equally, who aspire to be elected

to a Local Government institution. The appellant, despite his disqualification to the

office of the Chairman of the Union Parishad, will not be debarred from

contesting, an election for the membership of the Parliament, if he is otherwise

qualified. The Legislative sanctions behind the two sets of laws are also

dissimilar. The laws relating to disqualification for election to Parliamentexcepting the one provided in P. 0. 155 of 1972, can only be amended by two-

thirds of the total number of Members of the Parliament. The law relating to the

Chairman or member of the Union Parishad can only be amended by a simple

majority like any other ordinary law. For this singular distinction I hold that the

two sets of laws in the instant case are not comparable for an enquiry into the

constitutionality of the impeached legislation.

53. The similarity between a Member of the Parliament and a member of a local

body is literally nominal, confined only to the nomenclature of the "representative

of the "People". The Local Government institutions in our country had always

been under the tutelage of the Government. With the commencement of the

Constitution of 16th December, 1972 the concept of Local Self-Government had a


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promising start. One of the Fundamental principles of State policy was provided in

Art. 11 which reads as:

"The Republic shall be a democracy in which fundamental human rights and

freedoms and respect for the dignity and worth of the human person shall be

guaranteed, and in which effective participation by the people through their

elected representatives in administration at all levels shall be ensured."

(Underlining is mine) There was a separate chapter in Part IV of the Constitution,

Chapter II containing articles 59 and 60, for the Local Government."

54. In 1975 by the Fourth Amendment the constitutional structure for the LocalGovernment was radically changed. By Section 2 of Act II of 1975, the comma

and all the words after the word ' "guaranteed" in Art. 11 were omitted. Two years

after with a view to promoting Local Government institutions the Proclamation

(Amendment) Order, 1977 (Proclamations Order No. 1 of 1977) substituted old

Art. 9 by the following:

"9. The State shall encourage Local Government institutions composed ofrepresentatives of the areas concerned and in such institutions special

representation shall be given, as/far as possible, to peasants, workers and women

(underlining is mine)".

55. The difference 'between the terms 'ensures' and 'encourage' hardly needs an

underlining. The Local Government institutions are now under the fostering care

of the Government. The provision for encouraging Local Government institutionas enjoined under Art. 9 is directory in nature. On the other hand the establishment

of a Parliament has been provided in Art. 65 of the Constitution. The Parliament

has been invested with the legislative powers of the Republic. Art. 72 provide

there shall be at least two sessions of Parliament in every year. Arts. 65 and 72 are

mandatory provisions of the Constitution.


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56. The learned Counsel for the appellant has strenuously argued that the

Legislature had no clear objective when Act XXIII of 1987 was passed. In the

preamble the object of the legislation was not at all spelt out. It is submitted that ifthe recovery of the loans taken from the State-owned Banks were the real object

then that object could have been better realised by subjecting all kinds of

representatives of the people to the same financial disqualification.

57. In modern day legislations the long-winded whereasexpressions have been

given a go-bye. I do not find any fault for not mentioning the object in the laconic

preamble of the impeached legislation. A mere reading of the law makes the object

clear. The object is not the recovery of the loan as suggested by the learned

Counsel. The Object is to debar the defaulters from being a member of the local

body. It is package legislation. It provides for similar provision for the

Paurashabhas, Municipal Corporations, Upazila Parishads and Union Parishads.

The rationale for the insertion of new disqualification in case of the members of

the local bodies will be abundantly clear if we consider the financial functions of

the two different categories of the representatives of the people.

58. While a member of the Parliament has no specific function as to the custody,

receipt or disbursement of any public money the Union Parishad has been

invested under sections 44 and 45 with extensive powers as to the custody and

application of the Union Fund constituted under section 43 of the Ordinance No.

LIX of 1983. Those sections have been quoted in the judgment of brother A.T.M

Afzal. I need not quote them again. The rational behind the impeached legislation

is simple. A person who defaults in repaying his own loans can not be entrusted

with wide powers of governance and management of a public fund. In view-of theabove, I hold that the rule of parity that enjoins equal treatment of equals in equal

circumstances is not attracted in this case. The impeached legislation is not viola-

live of Art. 27 of the Constitution.


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59. The learned Counsel for both the appellant and respondent No. 9 have

questioned the wisdom and propriety of the Legislature in not providing a

disqualification similarly to the impeached one in the case of the members of the

Parliament. Wisdom and propriety are non-issues in the statute jurisdiction of this

Court. When the constitutionality of a statute is challenged the members of theParliament are not arraigned before the Court. When the Court strikes down

legislation no legal consequence follows affecting the members of the Parliament.

A member of the Parliament is not answerable to the Court for his legislative

functions. He is only answerable to his electors. If the electors are dissatisfied with

his work they can give him a lesson by refusing lo reelect him. For a politician that

would be a great lesson, indeed, but that is the only democratic means available to

the electors for expressing their disapproval to a statute whose constitutionality is

otherwise in order.

60. Art. 21 of the Constitution, however, enjoins that it is the duty of every citizen

to observe the Constitution. In making a law if the members of the Parliament fail

to observe the Constitution then this Court shall remedy that wrong by striking that

law down, but what norm other than what is provided in the constitution, should

be followed or upheld in making a legislation must be left with the members of

The Parliament themselves. Citizens, however, expect that their representativeswill set an example worth the trust and the confidence put in them by their

electors.

A.T.M. Afzal J.While I agree with the decision of my learned brother

Shahabuddin Ahmed, J. I feel tempted to add a few words because of the prime

nature of the question raised in our jurisdiction.

62. The appellant, a candidate for the office of Chairman of an Union Parishad,

alleges that the 'disqualification' on the ground of being a defaulter in repaying

loan to any specified bank attached to a person seeking election to an Union

Parishad as per Section 7(2) (g) of the Local Government (Union Parishads)


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Ordinance, 1983 (Ordinance No. LI of 1983) is discriminatory because there is no

such 'disqualification' provided in the case of election to Parliament. The argument

rests on the Constitution-al assurance of equality before law and equal protection

of law, a fundamental right, as enshrined in Article 27 of our Constitution which

reads;

"All citizens are equal before law and are entitled to equal protection of law".

63. Mr. T. H. Khan, learned counsel for respondent No.9, raised an initial

objection contending that qualification and disqualification for election to

Parliament & Local Government bodies having been provided under separate lawsgoverning the two separate institutions, one distinct from the other, and there

being no discrimination as far as the local bodies are concerned, the question of

alleged violation of equality under Article 27 does not arise. Provisions of two

distinct and separate laws cannot be read together, he submits, for invoking the

protection of Article 27. I do not consider the objection to be sound. The laws may

be different but the field of legislation is the same and they are enacted or capable

of being enacted by the same Legislature. The Supreme Court of India in State of

Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493 held that "it isconceivable that when the same Legislature enacts two different laws but in

substance they form one legislation, it might be open to the court to disregard the

form and treat them as one law and strike it down if in their conjunction they result

in discrimination."

64. The question pointedly raised is, why the 'disqualification' of being a defaulter

should attach to an election to a local government body only and not to that of

Parliament. The provision for such 'disqualification' affecting a person seeking

election to a local government body, therefore, offends the guarantee under Article

27.


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65. In order to lest the validity of the argument it will be necessary to consider the

meaning and scope of Article 27. In the 1956 Constitution of Pakistan it was

Article 5(1) and in 1962, Article 15. This Article corresponds to Article 14 of the

Constitution of India which reads thus:

"The State shall not deny to any person equality before the law or the equal

protection of the laws within the territory of India".

This again corresponds to the last clause of the first section of the Fourteenth

Amendment of the American Constitution which reads as follows:

1. "All persons born or naturalized in the United States, and subject to the

jurisdiction thereof, are citizens of the United States and of the State wherein they

reside. No State shall make or enforce any law which shall abridge the privileges

or immunities of citizens of the United States, nor shall any state deprive any

person of life, liberty, or property without due process of law; nor deny to any

person with its Jurisdiction the equal protection of the laws."

66. This provision of 'equality before law and 'equal protection of law. The first

clause has been regarded by American Judges as The "basic principle of

republicanism and the second 'a pledge of the protection of equal laws' has been

the subject of discussion by eminent authors and judges in numerous cases

particularly in the United States of America and India. The broad principles

governing the application and extent of the Article in question have been iterated

and reiterated in so many cases that "it would be an idle parade of familiar learningto review the multitudinous cases in which the constitutional assurance of equality

before the law has been applied" observed Mathew, J. in A.I.R. 1974 S.C. 1300. In

later decisions AIR 1979 S.C. 478 and AIR 1981 S.C. 2138 Chandrachud CJ. and

Bhagwali, J. (as he then was) respectively observed the propositions applicable to

cases arising under Article 14 have been repealed so many times during the last 30


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years in course of "the avalanche of the cases which have flooded this court" since

the commencement of The constitution the they now sound almost platitudinous.

67. I shall, therefore, refrain from making copious reference to the decisions cited

at the Bar beginning from the case of Charanjitlal Chowdhury AIR 1951 SC 41 to

Lingappa Pochanna AIR 1985 S.C. 389 besides some cases from the American

Jurisdiction. Nevertheless, I propose to project a Kaleidoscopic view of the

wisdom and learning through the books referred to us and try to find out normative

generalizations which are accepted on all hands.

68. It will be seen that the Indian Court's view has been moulded on the Americanlines and it is perhaps imperative to begin with Professor Wills who in his book

"Constitutional Law" Edn. 1 p.578 summed up the law as to the Fourteenth

Amendment thus:

"It forbids class legislation, but does not forbid classification which rests upon

reasonable grounds of distinction. It does not prohibit legislation, which is limited

cither in the objects to which it is directed or by the territory within which it is tooperate. 'It merely requires that all persons subjected to such legislation shall be

treated alike under like circumstances and conditions both in the privileges

conferred and in the liabilities imposed'. The inhibition of the amendment was

designed to prevent any person or class of persons from being singled out as a

special subject for discriminating and hostile legislation". It does not take from the

States the power to classify either in the adoption of Police laws or lax laws, or

eminent domain laws, but permits to them the exercise of a wide scope of

discretion, and nullifies what they do only when it is without any reasonable basis.

If any state of facts can reasonably be conceived to sustain a classification, the

existence of that state of facts must be assumed. One who assails a classification

must carry the burden of showing that it does not rest upon any reasonable basis."


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69. It appears the all the decisions whether in America, India or Pakistan have

echoed and reechoed in different language the view expressed above and are

unanimous on the following propositions relating to the guarantee under Article

27:

1. The principle of equality does not mean that every law must have universal

application for all persons who are not by nature, attainment or circumstances in

the same position and the varying needs of different classes of persons

sheikh abdus sabur vs bd

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