NAIN SUKH DAS AND ANOTHER versus THE STATE OF UTTAR PRADESH AND OTHERS

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P S .- an app 11cat10n under article 32 of the Constitution seeking protection of the petitioners' fundamental right under article 15 ( 1) against alleged violation thereof by the respondentB.

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The petitioners are three residents of Etah in Uttar Pradesh. They complain that at the by-elections to the Municipal Board of Etah held on November 2, 1951, December 8, 1951, and March 17, 1952, at which respondents 4, II and 12 were respectively elected, the petitioners were deprived of their rights to exercise their votes and to seek their election as candidates, as thosr by-elections were held on communal lines on the basis of separate electorates rnntrary to the provisions of the Constitution. They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise ofits powers, as the interest which that respondent was nominated to represent in the Board was already sufficiently represented. The petitioners accordingly pray for the issue of writs of quo warranto, mandamus and other appropriate writs or directions to respondents 3, 4, II and 12 to show under what authority they are acting as members of the Board and to prevent them from acting as such mem hers. The petitioners also ask for writs on the District :Magistrate and the Civil Judge ofEtah, respondents 2 and 13 respectively, directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted.

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Now, it cannot be seriously disputed that any law providing for elections on the basis of separate electorates for members of different religious communities offends againRt article 15 (1) of the Constitution which runs thus: · 1186 8UPREiVIE COURT REPORT8 tl95:JJ

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"15. (1) The State shall not discriminate against auy citizen on grounds only of religion, race, caste, sex, l f b' h f h ,, p ace o 1rt or any o t em.

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This constitutional mandate to the State not to discriminate against any citizen ou the ground, inter alia, l' . 1 ] t d t l't' ] t t] o re 1g10n c ear y ex ~n ·o po.' .1~a as we as o .o 1~r rights, and any elect1011 held atter the Const.itut10n rn pursuance of such a law subject to "1ause (4) must be held void as being repugnant to the Constitution. But the question is whether the petitioners are now entitled to the relief they seek in this application under artide :J2.

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It is true, as pointed out in the Cross Roads casc(1 ), that article :J2 provides, in some respects, for a more effective remedy through this court than article 226 does through the High Courts. But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution. Any right, for instance, which the petitioners may have as rate-payers in the ;}funicipality to insist that t.he Board should be legally const,ituted and that respondents 3, 4, 11 and 12, who are not properly elected or nominated members, should not be permitted to take part in the proceedings of the Board, is outside the purview of article :J2, as such right, even if it exists, is not a fundamental right conferred by Pa.rt III.

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Petitioners' learned counsel, however, uontended that the fundamental right conferred by a.rticle 15 (1) on the petitiont'rs a.s citizens oi' India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis. Learned counsel also submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their S.C.H.· fundamental ri~ht under article 14. We are unable to accede to theRe contentions.

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It is plain that the fundamental right conferred by article 15( 1) is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights, privileges and immunities pertaining to him as a citizen generally. It is not the petitioners' ease that any discrimination is now being practised or threatened against them. Their grievance that the mode of election by separate electorates formed on communal lines involved dist·.rimination against them in relation to seats other than those reserved for their respective eommunities as to which they <:ould not exercise their right to vote or their right to stand as candidates. There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution. In fact, the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no-confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having bePn carried. Thus, the infringement of their fundamental rights under article 15( 1) and article 14, that is, the discrimination practised against them, of which they now complain, related to rights which they in fact never sought to exercise and took no steps to assert, while there 'ms still room for doing so, and for the exercise of which the opportunity is now lost. But, argues Mr. Isaacs, the elention of the respondents 4, 11 and 12 being void, they are no better than usurpers, and tlw petitioners are entitled to prevent them from functioning as members of the Municipal Board. It may be, as we have already remarked, that the petitioners could daim such relief as rate-payers of the Municipality in appropriately framed proceedings, but there is no question of enforcing petitioners' fundamental right under article 15(1) or article 14 in such chim, Tlwn' is still less ground for seeking rclief o~ that basis against respondent 3 who is pnly a nominat· ed member.

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The petitioners appear to have misconceived their remedy and their application under article 32 must fail. The petition is dismissed with costs, one set.

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Petition dismissed. Agent for the petitioners: K. L. 11fehta. Agent for respondent No. 1 : 0. P. Lal.

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Agent for respondent No. 4: S. P. Varma. RAO SHIV BAHADUR SINGH AND ANOTHER

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v .

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THE STATE OF VINDHYAPRADESH. PATANJALI SASTm C. J., Mt:KHERJEA, VIVIAN BosE, GHULAM HASAN and JAGANNADHA DAS JJ.

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