Bombay High Court
Manohar S. Prabhu And Uday Bhembre vs Union Of India (Uoi) And Ors. on 3 February, 1986
Equivalent citations: 1987(1)BOMCR130, AIR 1987 BOMBAY 158, (1987) 1 BOM CR 130, ILR 1987 BOM 231, (1987) ILR BOM 231
JUDGMENT G.F. Couto, J.
1. The constitutional validity of section 4 of the Constitution (Fourteenth Amendment) Act, 1962, as well as of sub-section (3) of section 3 of the Government of Union Territories Act, 1963, and of the Notification No. 110123/85-UTL issued by the Government of India, Ministry of Home Affairs, on 16th January, 1985 is being assailed in these two writ petitions filed under Articles 226 of the Constitution of India. The grounds of challenge in both the writ petitions are the same, as same are the reliefs sought. Hence this common judgment.
2. Section 3 of the Government of Union Territories Act, 1963, hereinafter referred to as "the Act", provides that there shall be a Legislative Assembly for each Union territory and that the total number of seats in the Legislative Assembly of a Union territory to be filled by persons chosen by direct election shall be forty in the case of the Union territory of Himachal Pradesh and thirty in the case of any other Union territory. Its sub-section (3) postulates that the Central Government may nominate not more then three persons, not being persons in the service of Government, to be members of the Legislative Assembly of a Union territory and sub-section (4) further lays down that seats shall be reserved for the scheduled castes in the Legislative Assemblies of the Union territories of Goa, Daman and Diu and Pondichery, and for the scheduled tribes in the Legislative Assembly of the Union territory of Goa, Daman and Diu. Consequent upon these provision of law, a Legislative Assembly was created in the Union territory of Goa, Daman and Diu with thirty seats to be filled by persons chosen by direct election. The last general elections to the Legislative Assembly of Goa, Daman and Diu were held in the month of December, 1984, having been contested by persons who fought them either as independents or as candidates fielded by various political parties, amongst others, by the Congress (I), the Maharashtrawadi Gomantak Party and the Goa Congress. The Congress (I) secured 18 seats, the Maharashtrawadi Gomantak Party 8 seats, the Goa Congress 1 seat and the remaining three seats were won by independent candidates. Thereafter, by the Notification under challenge dated 16-1-1985, issued in the exercise of the powers conferred by sub-section (3) of section 3 of the Act, the Government of India nominated the third, fourth and fifth respondents to be members of the Legislative Assembly of the Union territory of Goa, Daman and Diu.
3. This nomination is assailed by the petitioners on several grounds. They first contend that section 4 of the Constitution (Fourteenth Amendment) Act, 1962, is void because it goes beyond the amending power of the Parliament inasmuch as it enables the Parliament by insertion of Article 239-A in the Constitution of India to create a Legislative body nominated and partly elected for the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry. Secondly, it is their contention that sub-section (3) of section 3 of the Act is unconstitutional and ultra vires of the power of parliament under Article 239-A of the Constitution. Thirdly, in any event, the said nominations were made without any valid reason therefore, the power under section 3(3) of the Act having been exercised unreasonably, capriciously, with mala fide and for extraneous and collateral purposes, being thus unconstitutional, ultra vires, illegal, null and void. Fourthly, insofar as the fourth respondent is concerned, she could not have been nominated because she was holding, at the relevant time an office of profit under the Government as Chairman of the Goa, Daman and Diu, Handicrafts, Rural and Small Scale Industry Development Corporation. We will, therefore, proceed to address ourselves to the questions just adumbrated, and for sake of convenience, seriatim.
4. As regards the first contention, it was submitted on behalf of the petitioners that the power of Parliament to amend the Constitution are not unlimited, unrestricted or unfettered. The amending powers conferred by Article 368 of the Constitution, though large, are noutheless limited to same extent, for such powers are indeed bounded by the basic structure or the basic features of the Constitution, as held by the Supreme Court in Kesavananda v. State of Kerala, and in Minerva Mills Ltd. v. Union of India, . One of the main features of our Constitution is that a republican and democratic form of Government has been established and therefore, any Act amending the Constitution that abrogates such democratic form of Government or is susceptible of causing such abrogation will be void as exceeding the Parliament's powers to amend the Constitution. Democratic form of Government, the argument proceeds, implies a Government by the people and, therefore, a Government by persons chosen by the People, a choice that has necessarily to be done through the election process for Democracy proceeds on the basic assumption that the country should be governed by the representatives of the People. The Democracy that our Constitution-makers established is based on the representation of the people in the law-making organs, it was urged, relying on the observations made to that effect by Mathew, J., in Smt. Indira Nehru Gandhi v. Raj Narain, A.I.R. 1975 S.C. 2293. Article 239-A enables the Parliaments to inter alia create in the Union territories specified therein a body partly nominated an partly elected. Therefore, section 4 of the Constitution (Fourteenth Amendment) Act, 1962 through which the said Article 239-A was inserted in the Constitution is beyond the powers of the Parliament under Articles 368 to amend the Constitution.
5. Article 368(1) provides that notwithstanding anything in the Constitution, Parliament may in exercise of its Constitutional power amend by way of addition, variation or repeal any provision of the Constitution in accordance with the procedure laid down in the same Article. Constituent power is indeed vested in the Parliament and therefore, from the wide language in which the Article is couched, it would appear that, subject only to compliance with the procedure laid down in Article 368 itself, the powers of Parliament to amend Constitution are unlimited. This otherwise was the view the taken by the Supreme Court in Shankari Prasad v. Union of India, A.I.R. (38) 1951 S.C. 458 as well as in Sajjan Singh v. State of Rajasthan, . However, in Golak Nath v. State of Punjab, , the Supreme Court overruled its decisions in the cases of Shankari Prasad and Sajjan Singh (supra) and held that, though there is no express exception from the ambit of Article 368, the fundamental rights cannot, by their very nature, be subject to the process of amendment provided for in the said Articles and that if any of such rights is to be amended a new constituent assembly must be convened for making a new Constitution or for radically changing it. We may recall at this stage that the decision in Golak Nath's case was superseded by the Constitution (Twenty-fourth Amendment) Act, 1971 and that Kesavananda's case which holding that this amendment was valid and while overruling the said decision in Golak Nath's case the Supreme Court held that though the fundamental rights did not constitute a restriction on the amending power of the Parliament, there are nonetheless other implied limitations, for the power of the Parliament, there are nonetheless other implied limitations, for the power to amend could not be used to alter the basic structure or the basic features of the Constitution. The majority of the learned Judges held the view that though the amending power is a wide power and it reaches every article or every part of the Constitution, Article 368 does not enable the Parliament to alter the basic structure or the framework of the Constitution, for Parliament cannot, in the exercise of its amending power, abrogate or emasculate or damage the basic elements or the fundamental features of the Constitution, or to destroy its identity. Amendment of the Constitution necessarily contemplates, in the words of Khanna, J., that the Constitution has not to be abrogate, but only changes have to be made in it, because the word "amendment" postulates that the old Constitution survives without loss of its identity despite the change and continues even though it has been subjected to the alteration. This view was reiterated by the Supreme Curt in Minerva Mills's case (supra). In fact, while dealing with the question of validity of section 55 of the Constitution (Forty-Second Amendment) Act, 1976, the Court observed that since the Constitution had conferred a limited amending power on the Parliament, the latter cannot, in the exercise of that limited power, enlarge that very power into an absolute power. It was further added that limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. It could be thus seen that the petitioners contention that though the powers of the Parliament to amend the Constitution are very wide and reach every Article and part of it nonetheless such powers are not unlimited, unrestricted or unfettered, is correct. Such powers are indeed on the contrary, limited, for Article 368 does not enable the Parliament to alter the basic structure of the Constitution.
6. That the establishment of republican and democratic form of Government is one of the basic features of our Constitution is undisputable. The Preamble of the Constitution is by itself elucidative, for it is stated therein that "WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC...do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION". In Kesavananda's case the Supreme Court held that the sovereign democratic and republican structure of India is one of the basic features of our Constitution. This view was reiterated in Smt. Indira Nehru Gandhi v. Raj Narain. There is thus no manner of doubt that the republican democratic form of Government is one of the basic features of our Constitution. The question to which we have to address ourselves is, however different, for what falls for our determination is whether Article 239-A inserted in the Constitution by the Constitution (Fourteenth Amendment) Act, 1962 abrogates that democratic form of Government or is susceptible of causing such abrogation inasmuch as it enables the Parliament to create in the Union territories specified therein Legislative bodies partly nominated and partly elected. The petitioners answered this question in the affirmative because according to them a democratic from of Government, by necessary implication means a Government by representatives of the people and hence, the enabling power conferred on the Parliament to create a body partly nominated and partly elected amounts to abrogation of that basis features of the Constitution, or at least, is susceptible of causing such abrogation.
7. A Democracy undoubtedly requires a from of Government of the People, by the People and for the People, the source of sovereignty being itself in the people. Therefore, a democratic form of Government involves by its very nature and means a Government by the representatives of the people, obviously chosen through elections, To use the words of Mathew J., in Smt. India Nehru Gandhi v. Raj Narayan :-
"334, Democracy proceeds on two basic assumptions : (1) popular sovereignty in the sense that the country should be governed by the representatives of the people; that all power came from them; at their pleasure and under their watchful supervision it must be help; and (2) that there should be equality among the citizens in arriving at the decisions aff."
The Democracy which our Constitution-makers established is based on the representations of the people in the law-making organs and the method by which this representation has to be effectuated has been provided in the Constitution, being through elections, he further observed in para 350. It would thus appear that the contention of the petitioners that Article 239-A abrogates the democratic form of Government established by the Constitution, or at least, is susceptible of causing such abrogation, is correct. But the answer to the question cannot rest only on the fact that Article 239-A enables the Parliament to create Legislative body partly elected and partly nominated and, therefore, a body where some of the members are not chosen by the people though elections. The question indeed involves a wider range of considerations which have to be borne in mind for determining it. Pertinent is, in this connection, what Chandrachud, J., (as he then was) stated in para 673 in Smt. Indira Nehru Gandhi's case. He absolved as under :-
"The contention that 'Democracy' is an essential feature of the Constitution is unassailable. It is therefore, necessary to see whether the impugned provisions of the 39th Amendment damage or destroy that feature. The learned Attorney-General saw an unsurmountable impediment in the existence of various forms of democracies all over the world and he asked :
What kind and form of democracy constitutes a part of our basic structure? The cabinet system, the Presidential system, the French, the Russian or any other? This approach seeks to make the issue unrealistically complex. If the democratic form of Government is the corner-stone of our Constitution, the basic feature is the broad form of democracy that was known to our Nation when the Constitution was enacted with such adjustments and modifications as exigencies may demand but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic doctrine and no one can suggest that a rule is authoritation because some rights and safeguards available to the people to the inception of its Constitution have been abridged or abrogated or because as the result of constitutional amendment, the form of Government does not strictly comport with some classical definition of the concept. The needs of the Nation may call for severe abnegation, though never the needs of the Rulers and evolutionary changes in the fundamental law of the country do not necessarily destroy the basic structure of its Governmental. What does the law cannot therefore, as lawyers and Judges, generalize on what constitutes 'Democracy' though we all know the highest form of that idealistic concept-the state of bliss-in political science."
We may, therefore, safely proceed on the basis that the democratic form of Government which is the corner stone of our Constitution is the broad form of democracy that was known to Our Nation when the Constitution was enacted. It will, therefore, be expedient to find what was the form of Democracy which was known to the founder-fathers of our Constitution at its inception of when it was enacted. We may, therefore, advert to the particular set of historical facts and to the political and social realities which were in existence at the relevant time and to the needs of the administrative expediency which caused the founder-fathers of the Constitution to enact the Constitution it was its inception.
8. India is a vast country, different territories having brought within it at the time of Independence. Some of those territories were under the direct British rule, others were under the rule of Princes and some were being administered by Political Commissioners. Therefore, territories coming from different sources, to say so, had been integrated into the territory of India. This historical background had to be borne, and was actually borne, in mind by the founder-fathers of the Constitution, for the said territories were not only being administered in different manners but also they had their peculiar conditions which were to be considered and safeguarded. Hence the founder-father of the Constitution classified the territory of India in Part A, Part B, and Part C States. Part C States were roughly corresponding to the territories which prior to the Independence were being administered by Political Commissioners. They had their peculiar kind of problems and in many a case they were inter se dissimilar. The circumstances were naturally requiring a different kind of administration for those territories, and as such, considering the administrative exigencies, Article 240 was inserted in the Constitution and the Government of Part C States Act, 1951, was enacted by the Parliament in exercise of its powers under the said Article 240. The original Article 240 of the Constitution was enabling the Parliament to create or continue for any State specified in part C of the First Schedule and minister through a Chief Commissioner or Lt. Governor---(a) a body, whether elected or partly nominated and partly elected, to function as a Legislature for the State, or; (b) a Council of Ministers, or both with such Constitution, powers and functions, in each case as may be specified in the law. This classification of the States as Parts A, B and C had been, however, abolished by the Constitution (Seventh Amendment) Act, 1956, and the territory of India was divided into only two categories, viz., States and Union territories. The original Part VI of the Constitution was substituted and the original Articles 239 and 240 were replaced. Wide powers were vested in the President for the administration of the Union territories which correspond to Part C State. The States Reorganisation Act, 1956, was accordingly enacted. The Constitution (Fourteenth Amendment) Act sought to restore the position which was existing at the inception of the Constitution as can be send from the Statement of objects and Reasons appended to the Constitutional Amendment Bill. It is stated therein that it is proposed to create Legislatures and Council of Ministers in the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry, broadly on the same pattern which was in force in some of the Princely States before the reorganisation of the States. It was further stated that the Bill seeks to confer the required legislative power on the Parliament to make necessary laws for the purpose through a new Article 239-A which generally follows the provisions of Article 240 as it stood before the reorganisation of the States. Pursuant to this, the Act was enacted by the Parliament and once again, in the Statement of Objects and Reasons, it is specifically stated that the Bill had been introduced in order to establish Legislatures and Council of Ministers in the Union territories specified therein, broadly, on the pattern of the scheme in force in some of the Part C States under the Government of Part C States Act, 1951, which had been repelled by the States Reorganisation Act, 1956. It is thus clear that the Constitution as it stood at its inception was having a provision similar to Article 239-A of the Constitution which was inserted in the Constitution by the Constitution (Fourteenth Amendment) Act, 1962. In this historical background of the constitutional provisions relevant for our case it is thus rather difficult to accept the contention of the petitioners that section 4 of the Constitution (Fourteenth Amendment) Act, 1962 is beyond the amending power of the Parliament under Article 368 of the Constitution. In fact, a provision similar to Article 239-A had been inserted in the original Constitution, being the original Article 240. The said Article was enabling the Parliament to create in Part C States a body nominated or elected or partly nominated and partly elected, to function so legislature for the respective States. This means that though republican and democratic form of Government is a basic feature of our Constitution and though such democratic form of Government implies a Government by the representatives of the people, it was nonetheless felt that in view of the historical, social and political reasons as well as for administrative expediency, the creation of some Legislatures in some territories entirely nominated, or partly elected and partly nominated, was justified and that this was not abrogating that essential feature of the Constitution. Further, it may be pointed out that power of nomination has existed in the Constitution right from the inception. For instance, Article 331 of the Constitution provides that notwithstanding anything in Article 81, the President may, if he is of the opinion that the Anglo-Indian community is not adequately represented in the House of the People, nominate not more than two members of that community to the House of the People. Similarly, Article 80, which deals with the composition of the Council of States, provides that the Council of State shall consist of---(a) twelve members to be nominated by the President in accordance with the provisions of Clause (3); and (b) not more than two hundred and thirty-eight representatives of the States and of the Union territories. So also, while giving the composition of the Legislative Council of a State. Article 171(3)(e) provides that some members shall be nominated by the Governor in accordance with the provisions of Clause (5). These provisions clearly show that the power of nominations of member of a Legislature is not abridging or abrogating the basic feature of the Constitution which requires a democratic form of Government. As observed by Chandrachud, J., in the above quoted portion of his judgment in Smt. Indira Nehru Gandhi's case, the base feature of the democratic form of Government which is the corner-stone of our Constitution is the broad from of democracy that was known to our Nation when the Constitution was enacted with such adjustments and modification as exigencies may demand but not so as to leave the mere husk of a popular rule, Section 4 of the Constitution (Fourteenth Amendment) Act, 1962, by inserting Article 239-A in the Constitution has not, in any manner, gone against that broad form of democracy as was known to our Nation when the Constitution was enacted. Article 239-A does not indeed damage, emasculates or destroys the identity of the Constitution. We, therefore, have no hesitation in holding that section 4 of the Constitution (Fourteenth Amendment) Act is not beyond the amending powers of the Parliament under Article 368 of the Constitution.
9. Having thus disposed of the first ground for challenging the impugned notification, we will now turn to the second contention of the petitioners and consider it on its merits. The constitutional validity of sub-section (3) of section 3 the Act is assailed on the grounds that the said provision of law is hit by the vice of arbitrariness, being also ultra vires the powers of the Parliament under Article 239-A inasmuch as it enables the Central Government to, at its sweet will, nominate or abstain from nominating persons to be members of the Legislative Assembly of a Union Territory In fact, Mr. S.M. Kakodkar, the learned Counsel appearing for the petitioner in Writ Petition No. 41 of 1985, argued that plain reading of section 3 suffices to make it clear that it is not obligatory for the Central Government under sub-section (3) of section 3 to nominate a person to be a member of the Legislative Assembly of Union territory. The said sub-section (3) indeed is an enabling provision, for it merely permits the Central Government in exercise to its discretion to nominate or not persons to the Legislative Assembly of a Union territory, the word "may" occurring therein in the absence of any compulsion in the Article itself being incapable of being construed as "shall" or "must". He further submitted, placing reliance on the decision of the Supreme Court in Official Liquidator v. Dharti Dhan (p) Ltd., that no guidelines were laid down for the exercise of this discretion which thus turns to be unlimited, unfettered, unreasonable and inherently arbitrary. In fact, on the one hand, it is not said in what cases or circumstances the Central Government may make a nomination and when such nomination should be of one, or of two or of three, and on the other, from which class or classes of persons the nomination should come except that the nominated person should not be a Government servant. He further urged that the qualifications and disqualifications laid down in sections 4 and 14 of the Act do not give any guidance for the exercise of the discretion by the Central Government while making a nomination, for such qualifications and disqualifications do not apply to nominees, but are attracted only in the case of persons who seek the membership of the Legislative Assembly through elections. This is so, according to the learned Counsel, because the word "chosen" occurring in the said provisions of the Act can only mean in the democratic set up of our country "selected through elections." This kind of discretion, therefore, contains in its core the seeds of arbitrariness and makes the provision of sub-section (3) of section 3 of the Act unconstitutional. Reliance was placed in this connection on the decisions of the Supreme Court in the cases of State of West Bengal v. Anwar Ali, ; Jyoti Pershad v. Union Territory of Delhi, A.I.R 1961 S.C. 1660; State of Maharashtra v. Kamal, ; Ramana v. I.A. Authority of India, ; Maneka Gandhi v. Union of India, ; Bachan Singh v. State of Punjab, ; Ram Prasad v. State of Bihar, ; In re Special Courts Bill, 1978, , and State Electricity Board & others v. Desh Bandhu Ghosh, 1985(1) L.L.J. 373.
10. We may, oft the sake of convenience and before going into the merits of the above submissions of the learned Counsel, advert to the said authorities in order to appreciate the impact therefore in the case before us and to see as to whether the principles laid down in those authorities re attracted to the case of the petitioners.
11. In Anwar Ali's case the question of the validity of section 5 of the West Bengal Special Courts Act. 1950, came for consideration Under the said Act, Special Courts had been created for the trial of some offences and it has been laid down in the challenged section 5 that the Special Court would try such offences or classes of offences or cases or classes of cases, as the State Government may by general or special order in writing direct. The justification given for this classification was the need of speedier trial of some offences. It has been contended that the classification based on reasons of the need of speedier trial of offences was offending Article 14 of the Constitution and was ultra vires. The Court, dealing with this contention, observed that the impugned Act has completely ignored the principle of classification followed in the Criminal Procedure Code and it proceeds to lay down a new procedure without making any attempt to particularize or classify the offences or cases to which it was to apply. Besides, the Act Itself lays down a procedure which is less advantageous to the accused than the ordinary procedure, and this fact must in all cases be the root-cause of the discrimination which may result by the applications of the Act. It was further held that speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or cases and the necessity of a speedy trial is too vague, uncertain and elusive criterion to form the basis of a valid and reasonable classification. Such classification is no classification at all in the real sense of the item as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act. Therefore, the Court held that this classification, not being based on reasonable grounds, was violative of Article 14 of the Constitution.
12. In Jyoti Pershad's case, the constitutional validity of the Slum Areas (Improvement and Clearance) Act, 1956, fell for consideration. The Court held that the Act does not violate the equal protection of laws guaranteed by Article 14 of the Constitution. It further held that though section 19 of the Act does not interns lay down any rules for the guidance to the competent authority in the use of his discretion under section 19(1) of the Act, there is enough guidance in the Act, which can be gathered from the policy and purpose of the Act as set out in the Preamble and in the operative provisions of the Act. Such guidance may thus be obtained from or afforded by the Preamble read in the light of the surrounding circumstances which necessitated the legislation, taken in conjunction with well-known facts of which the Court might take judicial notice or of which it is appraised by evidence before it in the form of affidavits, or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally from the object sought to be achieved by the enactment. It was further observed that so long as the Legislative indicates, in the operative provisions of the statute, with certainty the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a discretion is left to those entrusted with administering the law, it affords no basis either for the contention that there has been an excessive delegation of legislative power as to amount to an abdication of its functions or that the discretion vested is uncanalised and unguided as to amount to a carte blanche to discriminate. If the power or discretion has been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more detailed provisions, could obviously not be a ground for invalidating the law. Therefore, the principle that can be inferred from this decision is that if there is sufficient guidance in the Act itself in the exercise of discretion by the competent authority, such Act cannot be held to be obnoxious to the equal protection of law guaranteed by Article 14 of the Constitution. The Preamble read in the light of the surrounding circumstances which necessitated the legislation, together with the well-known facts of which the Court might take judicial notice or even from the policy and purpose of the enactment which may be gathered from other operative provisions applicable to analogous or comparable situations or generally the object sought to be achieved by the enactment, constitutes relevant factor for determining whether there is or not guidance of the exercise of the discretion.
13. In State of Maharashtra v. Kamal, the validity of some provisions of the Maharashtra Vacant Land (Prohibition of Unauthorised Occupation and Summary Eviction) Act, 1975, was considered. The Court observed that the said Act does not provide for ay safeguard against the arbitrary exercise of the discretion conferred upon the competent authority to declare a land as a vacant land, nor for any procedure which the competent authority is required to adopt before declaring a land as a vacant land was prescribed. The Court added that it is true that abuse of power is not to be assumed lightly but, experience belies the expectation that discretionary powers are always exercised fairly and objectively and hence, the fact that the power to make the requisite declaration under the Act is vested in officers of the higher echelons makes no difference to this and is not a palliative to the prejudice which is inherent in the situation. The Court also observed that even in the Rules which were formed no guidelines of any kind had been laid down for the exercise of the discrediting conferred upon the competent authority. In the circumstances, the challenged provisions were held to be violative of Articles 14 and 19(1)(f) of the Constitution.
14. In Ramana v. I.A. Authority of India, the Supreme Court has made it clear that the rule inhibiting arbitrary action by the Government flows directly from the doctrine of equality embodied in Article 14 and that the State cannot act arbitrarily in entering into relationship, contractual or otherwise with a third party, but its actions must conform to some standard or norm which is rational and non-discriminatory. It further observed that the principle of reasonableness and rationality is an essential element of equality and non-arbitrariness.
15. In Maneka Gandhi v. Union of India, the Court observed that the law is well settled that when a statute vests unguided and unrestricted power in an authority to affect the rights of a person without laying down any policy or principle which is to guide the authority in exercise of this power, it would be affected by the vice of discrimination, since it would leave it open to the authority to discriminate between persons and things similarly situated.
16. In Bachan Singh v. State of Punjab, Bhagwati, J., (as he then was) observed that it can now be taken to be well-settled that if a law is arbitrary or irrational, it would fall foul of Article 14 and would be liable to be struck down as invalid. A law may contravene Article 14 because it enacts provisions which are arbitrary; as for example, they make discriminatory classification which is not founded on intelligible defferentia having rational relation to the object sought to be achieved by the law or they arbitrarily select persons or things for discriminatory treatment. It was further observed that there is also another category of cases where without enactment of specific provisions which are arbitrary, a law may still offend Article 14 because it confers discretion on an authority to select persons or things for application of the law without laping down any policy or principle to guide the exercise of such discretion.
17. In Ram Prasad v. State of Bihar, it was held that the presumption is in favour of the constitutionality of a legislative enactment and it has to be presumed that a Legislature understands and correctly appreciates the needs of its own people. But when on the face of a statute there is no classification at all, and no attempt has been made to select any individual or group with reference to any differentiating attribute peculiar to that individual or group and not possessed by others, this presumption is of little or no assistance to the State.
18. In re Special Courts Bill, 1978, the Supreme Court, after reviewing various authorities on Article 14 of the Constitution, stated some of the propositions that emerge from the judgments of the Court. Inter alia, it was observed that one of the propositions was that the constitutional command to the State to afford equal protection of its laws sets a goal not attainable by the invention and application of a precise formula and, therefore, classification need not be constituted by an exact or scientific exclusion or inclusion of persons of things. The Courts should not insist on delusive exactness or apply doctrinaire tests for determining the validity of classification in any given case. Thus, classification is justified if it is not palpably arbitrary. Then, the Court stated that the principle underlying the guarantee of Article 14 is not that the same rules of law should be applicable to all persons within the Indian territory, or that the same remedies should be made available to them irrespective of differences of circumstances. It only means that all persons similarly circumstanced shall be treated alike, both in privileges conferred and liabilities imposed. Equal laws would have to be applied to all in the same situation, and there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is substantially the same. It was further observed that if the legislative policy is clear and definite and, so an effective method of carrying out that policy, a discretion is vested by the statute upon a body of administrators or officers to make selective application of the law to certain classes or groups of persons the statute itself cannot be condemned as a piece of discriminatory legislation. In such cases, the power given to the executive body would import a duty on it to classify the subject matter of legislation in accordance with the objective indicated in the statute. If the administrative body proceeds to classify persons or things on a basis which has no rational relation to the objective of the legislature, its action can be annulled as offending against the equal protection clause. On the other hand, if the statute itself does not disclose a definite policy or objective and it confers authority on another to make selection at its pleasure, the statute would be held on the face of it, to be discriminatory, irrespective of the way in which it is applied. The Court also observed that weather a law conferring discretionary powers on an administrative authority is constitutionally valid or not should not be determined on the assumption that such authority will act in an arbitrary manner in exercising the discretion committed to it. Abuse of power given by law does occur; but the validity of the law cannot be contested because of such an apprehension. Discriminatory power is not necessarily a discriminatory power.
19. Then, in State Electricity Board & others v. Desh Bandhu Ghosh it was observed that if on the face of it, a Regulation or a law is totally arbitrary and confers on the authority a power which is capable of vicious discrimination, then, such statute will be violative of Article 14 of the Constitution, and, consequently, bad.
20. Summarising the principles that flow form the above authorities of the Supreme Court, we can safely say that it is now well settled that if a law is arbitrary or irrational, it will be liable to be struck down as invalid and violative of Article 14 of the Constitution. Classification of persons or classes of persons can be made, but such classification should be based on intelligible and reasonable grounds and should not be arbitrary. In addition, such classification should have a nexus with the object to be achieved. It further flows from the above decisions of the Supreme Court that whenever any discretion is vested by the statute upon a body of administration or officers to make a selective application of the law to some classes or group of persons, there should be a clear and definite policy and objective to be achieved.
21. Now, on a careful reading and analysis of section 3 of the Act we are clear in our mind that its sub-section (3) is not obligatory in nature and constitutes a mere enabling provision empowering the Central Government to nominate persons, not being persons in the service of Government, to be members of the Legislative Assembly of a Union territory. No element of compulsion to make the nomination is found in section 3 and hence, applying the test laid down by the Supreme Court in Official Liquidator v. Dharti Dhan (p) Ltd., there is no manner of doubt that the word "may" in sub-section (3) cannot be construed as "shall" or "must". That sub-section (3) is merely an enabling provision empowering the Central Government to make nominations is otherwise not denied by the respondents. It confers on the Central Government a discretionary powers to make or to abstain to make nominations to the legislative Assembly of a Union Territory and therefore, it is on such basis that we have to test its legality and constitutional validity.
22. Section 3 of the Act reads as under :-
"Legislative assemblies for Union territories and their composition.---(1) There shall be a Legislative Assembly for each Union territory.
(2) The total number of seats in the Legislative Assembly of Union territory to be filled by persons chosen by direct election shall be forty in the case of the Union territory of Himachal Pradesh and thirty in the case of any other Union territory.
(3) The Central Government may nominate not more than three persons, not being persons in the service of Government, to be members of the Legislative Assembly of a Union Territory.
(4) Seats shall reserved for the scheduled castes in the Legislative Assemblies of the Union territories of Goa, Daman and Diu and Pondicherry and for the scheduled tribes in the Legislative Assembly of the Union territory of Goa, Daman and Diu.
(5) The number of seats reserved for the scheduled castes or the scheduled tribes in the Legislative Assembly (of any Union territory) under sub-section (4) shall bear, as nearly as may be, the same proportion to the total number of seats in the Assembly as the population of the scheduled tribes in the Union territory or of the scheduled tribes in the Union territory, as the case may be, in respect of which seats are so reserved, bears to the total population of the Union territory.
(6) Notwithstanding anything in the foregoing provisions of the section the provisions relating to the reservation of seats for the scheduled castes and the scheduled tribes (in the Legislative Assemblies of the Union territories of Goa, Daman and Diu and Pondicherry) shall cease to have effect on the same date on which the reservation of seats for the scheduled castes and the scheduled tribes in the House of the People shall cease to have effect under Article 334:
Provided that nothing in this sub-section shall effect any representation in the Legislative Assembly of a Union territory until the dissolution of then existing Assembly."
It is clear from the above provisions of the Act that, except for postulating that the Central Government may nominate not more than three persons, not being persons in the service of Government, no guidelines were laid down therein indicating from what class or classes the persons to be nominated should come, not in what cases the nomination should be of one, or of two, or of three persons. This may apparently give support to the petitioners contention that an unguided unfettered and arbitrary discretion was conferred on the Central Government to that effect. But on a deeper consideration of the Act as a whole we are of the firm view that it is not so and that though the field of discretion is large, some guidelines were actually provided for. We cannot, in fact accept Mr. Kakodkar's submission that the qualifications and disqualifications for persons to be chosen to fill a seat in the Legislative Assembly of a Union territory prescribed in sections 4 and 14 of the Act, respectively, do not apply to nominees. The argument, though ingenious and subtle, is equally fallacious and based on a very narrow interpretation given to the word "chosen" occurring in the said provision of the Act, which otherwise does not conform with the Act itself. It was indeed argued that the word "chosen" has necessarily to mean "selected through elections," for in the democratic form of Government which constitutes one of the basic features of our Constitution, a choice can be made only through the democratic process of elections. The word "choosen" has the common dictionary meaning of "select out of greater number" i.e. pick up out of a plurality. The word choose is thus, in its meaning, wide enough to take within it a selection made by any mode or process, and as such, it would be necessary to see whether the word "chosen" occurring in sections 4 and 14 of the Act was used in its ordinary dictionary meaning, or in the meaning as contended by the petitioners. Though it is undisputable that a democratic form of Government constitutes one of the basic features of our Constitution it is also undeniable that the Constitution-makers had, right from the inception of the Constitution, contemplated cases where the filling of seats in various bodies was not made by way of elections, but through nominations. This in no manner is, as we have already observed, destroying the basic structure of our Constitution, nor is it affecting the democratic form of Government. Thus, a choice of persons to be nominated does not imply that the selection has necessarily to be made by elections. On the contrary, the filling up of seats by nomination, being basically different from filling by elections, unmistakably indicates that the choice of persons to be nominated cannot be made by elections. In addition, we may point out that the word "chosen" occurs also in some Articles of the Constitution, such as in Article 84, while providing that a person shall not be qualified to be chosen to fill a seat in Parliament if such a person does not satisfy the conditions laid down in its clauses (a), (b) and (c). This provision of Article 84 read with Article 80 clearly shows that the choice is not to be made merely be way of elections. This, also, can be inferred from section 6 of the Representation of the People Act, 1951, which provides that a person shall not be qualified to be chosen to fill a seat in the legislative Council of a State unless he is an elector for any Assembly Constituency in that State. We are, therefore, one with Mr. Dhanuka, the learned Counsel appearing for the first and second respondents, that the qualifications and disqualifications prescribed in sections 4 and 14 of the Act are operative both in cases of persons seeking a seat in the Legislative Assembly of a Union territory through elections and of persons to be nominated. That this view is correct is also corroborated by the fact that in section 14, the disqualifications provided for are not restricted only for being chosen to fill a seat in the Legislative Assembly of a Union territory but also operate for being a member of such Assembly, as very aptly was pointed out by Mr. Nadkarni, the learned Advocate for respondents 3 to 5. It can thus be seen that in addition to the guideline that persons in the service of Government cannot be nominated inserted in section 3(3) itself, sections 4 and 14 provide for other guidelines, viz, that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a Union territory unless he is a citizen of India, is not less than twenty-five years of age, possess such other qualifications as prescribed in that behalf by or under any law, and that the is not qualified for being chosen as, and for being a member of either House of Parliament under the provisions of sub-clause (b), sub-clause (c) or sub-clause (d) of Clause (1) of Article 102 or any law made in pursuance of that Article. Another guideline is found as correctly submitted by Mr. Dhanuka, in section 5(c) of the Representation of the People Act, 1951. The said section provides for qualifications for membership of a Legislative Assembly and prescribes that a person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless, inter alia, he is an elector for any Assembly constituency in that State. Some guidelines for making the choice of the persons to be nominated had, therefore, been prescribed in the Act itself and some other flow from the co-related laws, in particular from the Representation of the People Act, 1951. Though no guidelines were enunciated as to indicate in what circumstances or cases nominations are to be made, we nonetheless find it difficult and, in fact, we are unable to accept the contention that sub-section (3) of section 3 of the Act confers on the Central Government an unlimited, unguided, unfettered and arbitrary discretion.
23. This takes us to the question as to whether the above enumerated guidelines in the exercise of the discretion by the Central Government in making nominations under sub-section (3) of section 3 of the Act are sufficient for removing from it the seeds of arbitrariness, it any, that might have an effect on its constitutional validity. Mr. Kakodkar answered this question in the negative, for he (sic) placing reliance on the decisions of the Supreme Court in the cases of Anwar Ali, Jyoti Parshad, Kamal, Ramana, Maneka Gandhi, Bachan Singh, Ram Parsad. In re Special Court Bill, 1978 and Desh Bhandu Ghosh (supra), contended that an unintelligible, arbitrary and unreasonable classification has been made which has no rational nexus with the objective to be achieved. He further urged that in any event, as observed in the cases of Kamal and Bachan Singh, the conferment of such discretion on officers highly situated, or even for that matter on the Central Government, will not remove the vice of arbitrariness and will not be sufficient to validate sub-section (3) of section 3 of the Act. This view was, however, strongly opposed by Mr. Dhanuka. He contended that the above submissions made on behalf of the petitioners have no merit for the authorities relied upon by Mr. Kakodkar to support them over an area which is entirely different from the one that is relevant in the case before us and are, therefore, clearly not attracted and distinguishable. The said authorities are indeed irrelevant in cases where a classification is made, because they cover only that facet of Article 14 of the Constitution and lay down the principle that a classification which in unintelligible and is not made reasonably becomes arbitrary and violative of Article 14 and further that in any event, the classification to be valid should have a rational nexus with the object to be achieved. This facet of Article 14 has no relevance in the present case, the learned Counsel further urges, because the material area is different and the real question to which we have to address ourselves is whether in matters relating to appointments and nominations, the discretion vested in some authorities should be controlled by strict, minute and detailed guidelines. He urged that the observations made in State of Maharashtra v. Kamal. and in Bachan Singh v. State of Punjab, do not help the case of the petitioners, for such observation were made in the particular facts and circumstances of those cases. He submitted that in Kamal's case there were no guidelines at all, even in the Rules which were framed, and it was in this context that the Court made the observation that the conferment of such discretion on an authority, however highly situated will be violative of Article 14 of the Constitution. So far as the authority in Bachan Singh's case, the observations made by Bhagwati, J., (as he then was) were in considering the imposition of the supreme penalty on an accused. In the case before us, the learned Counsel further contended, there are same guidelines laid down in the Act itself and also in the Representation of the People Act. In addition, the learned Counsel contended that there was provisions in the Constitution for appointments of different posts and functions and only qualifications for such appointments of different posts and functions and only qualifications for such appointments have been laid down, leaving the choice to the discretion of the authorities concerned. Such discretion is very large. For instance, Article 157 lays down the qualifications for appointment of a person as Governor, Article 217(2) deals the qualifications required for appointment as a Judge of a High Court, Article 124(3) lays down the qualifications for appointments as Judge of the Supreme Court, Article 165 the qualifications for appointment as Advocate-General for the State, Article 76 the qualifications of appointment as Attorney General for India. It is, therefore, clear that the Constitution itself, while making provision for appointments of many dignitaries and some high posts in the administration and in the judiciary, lays down only qualifications, leaving the choice to the discretion of the competent authority. It is thus clear, according to the learned Counsel, that guidelines to control the discretion would entirely depend on the nature of the power and functions conferred upon and whenever power of selection, nomination or appointment is conferred on a high authority, qualifications or conditions of eligibility are sufficient and it is always relevant to see on whom the discretion is conferred. Moreover, the conferment of discretion does not by itself amount to conferment of arbitrariness and, therefore, one has to see why such wide discretionary powers are conferred. Sometimes a wide discretion is required in order got enable the competent authority to deal with dissimilar, and unforeseen situations which requires an experiment in legislation. Needs of clasticity and experimentation are justifying, many a time, the conferment of a large discretion as was held in A.K. Roy v. Union of India, . Similarly, the nature of the power conferred and the purpose to be achieved are to be borne in mind and that the conferment of reasonable area of a discretion is entirely permissible and not violative of Article 14 of the Constitution. In this connection, the learned Counsel placed reliance on the decisions of the Supreme Court in the cases of S.B. Dayal v. State of U.P, A.I.R. 1972 S.C. 1168 and M/s. Devi Das v. State of Punjab, . Reliance was also placed in Moti Ram v. Union of India, and in C.B. Boarding & Lodging v. State of Mysore, , as well as on the observations made by the Supreme Court in the Special Court Bill's Case to the effect that abuse of power given by law does occur, but the validity of law cannot be contested because of such an apprehension, for discretionary power is not necessarily a discriminatory power. The learned Counsel then placing reliance in Registrar Co-operative Societies v. K. Kuniabmu, submitted that the preamble and the other provisions are to be considered for the purpose of finding whether or not there are guidelines to control the conferment of discretion. There is great force in the above submissions of Mr. Dhanuka in fact as rightly pointed out by him, the various authorities relied upon by Mr. Kakodkar in support of his submission are not attracted to the facts and circumstances of the case before us. The sum and substance of such authorities is that if an order is arbitrary or irrational, obviously, the same would be violative of Article 14 and, therefore, liable to be struck down as invalid. Such violation may be arbitrary, as in the case where a discriminatory classification which is not based on intelligible differentia having a rational relation to the object sought to be achieved by law is made, or persons are arbitrarily selected for discriminatory treatment. So also, the law may offend Article 14 because it confers discretion on an authority to select persons or things for application of the law without laying down any policy or principle to guide the exercise of such discretion. Now, in the case before us, the question of a classification which is not founded on an intelligible differentia having a rational nexus with the object sought to be achieved is not in question. What is in question is whether the large discretion which has been conferred on the Central Government by sub-section (3) of section 3 is violative of Article 14 of the Constitution since guidelines in the Act are not extensive and the exercise of such discretion may become arbitrary and subject to the whims of the authority concerned. In our view, the authorities relied upon by Mr. Dhanuka are more to the point and more material for the decision of the question before us. In A.K. Roy's case, it was observed that as held by Khanna, J. In Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. Assistant Commr. of Sales Tax, . The growth of the legislative power of the executive is a significant development of the twentieth century and therefore, provision had to be made for delegated legislation to obtain flexibility, elasticity, expedition and opportunity for experimentation. Similarly, in C.B Boarding & Lodging v. State of Mysore, the Court observed that before a power can be held to be bad, the same should be found to be an unguided and unregulated one. But if a power is given to an authority to have recourse to different procedures under different circumstances, that power cannot be considered as an arbitrary power. The Court further observed that the question that the power is given to the State Government and not to any petty official is relevant and that the State Government can be trusted to exercise that power to further the purpose of the Act. Also, that it is not the law that the guidance for the exercise of power should be gatherable from one of the provisions in the Act. In fact such guidance can be gathered from the circumstances that led to the enactment of the law in question, i.e. the mischief that was intended to be remedied, the preamble to the Act or even from the scheme of the Act. And in Registrar, Co-op. Societies v. K. Kuniabmu, it was observed that the preamble and the material provisions of the Act are relevant for determining whether or not powers are delegated within the permissible limits. It, therefore, flows from the above decisions of the Supreme Court that if a discretionary power is conferred by a law on an authority, the validity of the said conferment is to be determined by finding whether there are guidelines provided in the Act, or in its preamble or even from the circumstances which led to the enactment of the said Act, that control the exercise of such discretion. Further, it can be safely inferred that if such discretionary power is conferred on a higher authority, such circumstance is to be borne in mind for the proper determination of the question as to whether or not the provision conferring the power is arbitrary and violative of Article 14 of the Constitution.
24. Bearing in mind the above principles, it will be advantageous to advert to the provisions of the Constitution cited by Mr. Dhanuka which deal with the qualifications laid down for appointment to some higher posts. Article 157 of the Constitution lays down the qualifications for appointment as Governor by saying that no person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years. Article 217(2) lays down the qualifications for appointment as a Judge of a High Court and provides that a person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and has for at least ten years held a judicial office in the territory of India: or has for at least ten years been an Advocate of a High Court or of two or more such Courts in succession. Article 124(3) lays down the qualifications for appointment as a Judge of the Supreme Court and provides that a person shall not be qualified for such appointment unless he is a citizen of India and has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or has been for at least ten years an Advocate of a High Court or of two or more such Courts in succession; or is; in the opinion of the President, a distinguished jurist. Article 165 provides that the Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State, and Article 76(1) lays down that the President shall appoint a person who is qualified to be appointed a Judge of the Supreme Court to be Attorney-General for India. An analysis of the aforesaid provisions of the Constitution shows that merely qualification for appointments to the said posts had been laid down and a vast discretion without any other guidelines beyond the qualification, was given to the President to make the appointment to the said posts. It can be, therefore, safely held that when the exercise of the discretion involves the power of selection, nomination or appointments and such power is conferred on a high authority, are qualifications or conditions of eligibility are sufficient guidelines. We have already said that there are some guidelines laid down in the Act itself for the exercise of discretion conferred on the Central Government for making the nomination of a person for the Legislative Assembly We have also shown that another guideline can be found in the relevant provisions of the Representation of the People Act, 1951. In addition, we may also point out that the Statement of Objects and Reasons attached to the Bill of the Constitution (Fourteenth Amendment) clearly shows that by insertion of Article 239-A in the Constitution, it has been intended to restore the situation which was prevailing before the reorganisation of States and was existing at the time of the inception of the Constitution. Similarly, the Statement of Objects and Reasons attached to the Bill of the Government of Union Territories Act shows that it was intended to establish Legislatures and also Council of Ministers in the Union territories of Himachal Pradesh, Manipur, Tripura, Goa, Daman and Diu and Pondicherry, broadly on the pattern of the scheme in force in some of the Part C States under the Government of Part C States Act, 1951. We have already observed that the division of the territory in Part A, Part B and Part C States were motivated by historical, political and social considerations as well as for administrative exiagencies. Those administrative exigencies required that the Government of such territories was to be done in accordance with the needs and peculiar realities of each of them. We have further noted that problems of different territories were not always similar, and sometimes, they were completely different. Therefore, the needs of elasticity and of administrative experimentation existed. In the circumstances, therefore, in our view, the conferment of a large discretion on the Central Government cannot be said to be arbitrary to the extent of making it offensive and violative of Article 14 of the Constitution.
25. But it was also contended by Mr. Kakodkar that even if sub-section (3) of section 3 of the Act is not unconstitutional because an unguided unfettered and arbitrary discretion was conferred on the Central Government, non-the-less the same provision violates the Constitution and is, therefore, void because it is ultra vires the power of Parliament under Article 239-A of the Constitution. We will, therefore, turn to this limb of the contention of the learned Counsel. He submitted that Article 239-A of the Constitution enables the Parliament to create by law for any of the Union territories specified therein---(a) a body, whether elected or partly nominated and partly elected to function as a Legislature for the Union territory, or (b) a Council of Ministers, or both with such Constitution, powers and functions, in each case, as may be specified in the law. Therefore, the learned Counsel contended that under sub-clause (a) of Clause (1) of Article 239-A of the Constitution, the Parliament could have been empowered to create for each of such territories either totally elected Legislative Assembly or a Legislative Assembly partly nominated and partly elected. It was not open to the Parliament under Article 239-A of the Constitution to leave it to the discretion of the Central Government to nominate or not members to the Legislative Assembly of a Union territory, for this could give cause to abnormal situations, such as that after one election, there will be a purely and totally elected Legislative Assembly and after other election, same Legislative Assembly may have elected as well as nominated members. Therefore, according to the learned Counsel, it has to be held that the Parliament intended to create a Legislative Assembly wholly elected and, consequently the provision of sub-section (3) of section 3, of the Act is ultra vires and constitutionally invalid. The submission of the learned Councel need not detain us long, for it is clear that the same has no merit. Undoubtedly Article 239-A of the Constitution enables the Parliament to create in the Union territories specified therein a body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory. This has to be done by enacting a law for that purpose. In the exercise of the said enabling powers the Parliament enacted the Act and by section 3 thereof, it has specifically created a Legislative Assembly for the Union territory which is partly nominated and partly elected. A reading of sub-sections (1), (2) and (3) together makes this very clear. Now, the Parliament, while creating such a partly nominated and partly elected Legislative Assembly, left to the discretion of the Central Government the question as to when the nomination was to be made. This provision which was inserted in sub-section (3) appears to have been motivated by the need of giving flexibility, elasticity and an opportunity of experimentation to the Central Government, considering the diversity and dissimilarity of the problems faced by each Union territory and the particular needs of the said territory at a particular time. Therefore, it is obviously erroneous to say that section 3 of the Act is ultra vires the powers of Parliament under Article 239-A of the Constitution. In any event, it will be pertinent to recall that the discretion conferred on the Central Government by sub-section (3) of section 3 of the Act does not vitiate and turn it unconstitutional as violative of Article 14 of the Constitution.
26. The next contention of the petitioners was that, in any event, the nominations of respondents 3, 4 and 5 had been made without any valid reason therefor, the power under section 3(3) of the Act having been exercised unreasonably, capriciously, with mala fide and for extraneous and collateral purposes. The said nomination are thus unconstitutional, ultra vires, illegal, null and void. Elaborating the above contention it was contended by Mr. Kakodkar that no valid reasons were given by respondents 1 and 2 in their affidavit-in -reply for making the nominations. In fact, the petitioners had alleged that soon after the elections of December 1984, rumours were rife in Goa that the Maharashtrawadi Gomantak Party would form an alliance with Goa Congress, the independents and six dissident members of the Congress (I) and make a bid to form the Government. It has been further alleged that the nominations of respondents 3, 4 and 5 were made by Notifications dated 16-1-1985 and that in this background, it was not clear that the Central Government had made the Notification mala fide with a view to giving additional props to the Congress (I) in the Legislative Assembly of the Union territory of Goa , Daman and Diu and to discredit the Maharashtrawadi Gomantak Party candidates elected by the people from the constituencies of Ponda, Mapusa and Mandrem in the eyes of the electorate, especially because the aforesaid respondents 3, 4 and 5 are all members of the Congress (I), respondent No. 3 being the President of the Goa Pradesh Congress (I) Committee, respondent No. 4 the Chairperson of the Goa Handicrafts, Rural and a Small Scale Industries Development Corporation Limited and a Member of a Co-operative Society for Women of which the wife of the Chief Minister is the Chairperson, and respondent No, 5 being the wife of one Gopal Parab, who contested the election to the Legislative Assembly of Goa, Daman and Diu from Mandrem Constituency on Congress (I) ticket in the years 1977, 1980 and 1984, but always lost to Mr. Ramakant D. Khalap the leader of the Maharashtrawadi Gomantak Party. In addition, it was alleged that respondent No. 3 had also contested the election to the Legislative Assembly of Goa, Daman and Diu in the year 1972 from Shiroda constituency but had been defeated. The respondents dealing with these averments, according to the learned Counsel for the petitioners, purely denied them without giving any special reasons therefor. In the circumstances therefore, it is to be held that the respondents had accepted the said averments as correct. Now, according to the learned Counsel, in the return filed by Mr. J.G. Biswas, Under Secretary to the Government of India, Ministry of Home Affairs, on behalf of respondents 1 and 2, it is stated that under sub-section (3) of section 3 of the Act, the Central Government may nominate not more than three persons, not being persons in the service of Government, to be members of the Legislative Assembly of a Union territory. In such circumstances, it does not require that a person to be nominated as a member of an Assembly should have any special knowledge or practical experience in literature, science art or social service. It was further stated that the Lt. Governor of Goa, Daman and Diu had stated that no woman candidate had been elected to the Legislative Assembly and the inclusion of women in the said Assembly would enhance the prestige of the territory and also bring some balance in the composition of the Assembly itself, besides contributing with the socially involved women's point of view to the debates of the Assembly since respondents 3, 4 and 5 are active social workers. It was also averred that the practice of making nominations to the Legislative Assembly of a Union territory is only on a joint recommendation made by the Chief Minister as well as the Administrator of the said Union territory. According to Mr. Kakodkar, those reasons to justify the nominations of respondents 3, 4 and 5 to be members of the Legislative Assembly of Goa, Daman and Diu are not germane, for on one hand, no details of the social work done by the said nominees had been given, and on the other hand, there is no law imposing the inclusion of women in a Legislative Assembly, being a fact that there should be no discrimination based on sex. He also contended that questions of prestige are not relevant and one fails to see in what manner appointment of women in the Legislative Assembly will contribute to bring some balance in the Assembly. He submitted that the reasons given are not, therefore, reasons at all in the eyes of law. In addition, the learned Counsel contended that the nominations of respondents 3, 4 and 5 are clearly made with mala fide. The Congress (I) has not indeed fielded as a candidate any woman in the elections held in December 1984 for the Legislative Assembly of Goa, Daman and Diu. However, there were three women candidates who were defeated in their bid to get elected. In this context, the learned Counsel asked why the said defeated candidates were not nominated if at all the prestige of the territory would be enhanced with the inclusion of women in the Legislative Assembly and if such inclusion would bring some balance in its composition. He contended, that obviously, the nominations of respondents 3, 4 and 5 who are supporters and belong to the Congress (I) was not a mere coincidence, but it is not clear that the power conferred on the Central Government by sub-section (3) of section 3 of the Act was exercised to consolidate the ruling party. Secondly, he submitted that respondents 3, 4 and 5 hail from constituencies which had not returned candidates belonging to the Congress (I). For all these reasons, the learned Counsel urged, it is clear that the impugned nominations were made for collateral purposes.
27. Dealing with the above submissions of the learned Counsel for the petitioners. Mr. Dhanuka urged that, first of all, it is not open to the Court to go into the merits of the reasons that moved the Central Government to make the nominations. That question is not according to him, justiciable. Reliance was placed, in this respect, on the decisions of the Allahabad High Court in Har Sharan v. Chandra Bhan, and of the Supreme Court in State of Rajasthan v. Union of India, and in Charanlal v. Giani Zail Singh, . The learned Counsel contended that even if this is not so, the reasons given are entirely germane and it was for the Central Government to consider and decide whether, for administrative expediency and other reasons, there was a need to give an adequate representation in the Legislative Assembly of Goa, Daman and Diu, to women as well as to social workers who had experience in the field. He contended that the petitioner themselves merely alleged that rumours were rife in Goa that the other parties with the help of Independents and dissidents would make a bid to form the Government. Now, he contended that in a Court of law, rumours cannot be considered for determination of the issue before it. He urged that however, ex facie these rumours seem to be incorrect, for admittedly in a Legislative Assembly comporting 30 seats, the Congress (I) has secured 18 seats and this fact alone is sufficient to show that the ruling party had no need of props to consolidate its position. So also, the nominations of respondents 3, 4 and 5 do not imply any discredit to the elected members of the Assembly who hail from the same constituencies. He urged that, naturally, the nominated members have to hail from one constituency or the other but having been nominated, they are not represented a particular constituency. They are merely nominated to the Assembly. He also brought to our notice that in 1967 two persons had been nominated to the Legislative Assembly and such persons were belonging to the party which was ruling at the relevant time, their nominations having been done on the joint recommendation of the Chief Minister and of the Administrator and after the Central Government had considered all the relevant aspects. This joint recommendation is considered to be relevant because the Chief Minister and the Administrator of the Union territory are naturally better situated to assess the needs of a particular Union territory which may justify the nominations. He further submitted that respondents 3, 4 and 5 were said to be active social workers by both the Chief Minister and the Administrator of the Union territory. There was nothing to show that this was not so and therefore, there was no reason for the Central Government to think that a false or incorrect statement in that respect had been made in the joint recommendation. That woman may enhance the prestige of the Assembly and may contribute advantageously to the debtors in the Assembly are relevant considerations which cannot be interfered with by the Court. He also submitted that the issue of nominations may involve political considerations and as such, will not be fit for judicial determination or review, for where the reasons for the nominations fall within the field and sphere for political considerations and where the learned Counsel contended relying on the observations made by Durga Das Basu in his Comparative Constitutional Law at page 196, the Constitution has empowered the Executive to exercise a power upon a subjective satisfaction as to the existence of certain circumstances, the Court may possibly interfere in case such determination, being the condition precedent to the exercise of that power, has not taken place at all or it has been vitiated by mala fide, but the Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the subjective satisfaction of the Executive, had been based because that would lead the Court into political thicket' as the satisfaction of executive, being a subjective one, cannot be tested by reference to any objective tests and is not for judicial determination and also where the power relates to a matter that involves political considerations and assessment of other factors, such as in the cases of mala fides, dismissal of Governor, selection of Chief Minister, etc.
28. In the return filed by the first and second respondents, it is specifically stated that the nominations of respondents 3, 4 and 5 had been made because the Lt. Governor of Goa, Daman and Diu had stated that no woman candidate had been elected as a member of the Legislative Assembly and that the inclusion of women as members in the Assembly would enhance the prestige of the territory and also bring some balance in the composition of the Assembly, contributing to bring the socially involved woman's point of view to the debates of the Assembly. It is also alleged that making of the nominations follows the practice that the joint recommendation of the Chief Minister and the Administrator of the concerned Union territory is considered. These are the reasons which were given by the Central Government to justify the nominations. Now, the petitioners case is that on one hand, there were rumours that the Maharashtrawadi Goamantak Party would form an alliance with the Goa Congress, the independents and six dissident members of the Congress (i) and make a bid to form a Government and on the other, that the appointment of respondents 3, 4 and 5 was made mala fide and with a view to give props to the Congress (I) as well as to discredit the Maharashtrawadi Gomantak Party candidates elected from some constituencies, a fact that become obvious from the circumstances that the said respondents are Congress (I) supporters and members and hail from constituencies from where the Maharashtrawadi Gomantak Party candidates had been returned.
29. Rumours, gossip or mere speculation cannot be and will never be the basis for a judicial determination. They have no place in a Court of law the rights of the litigants in general and of the citizens in particular having indeed to be determined on positive, firm and reasonably well established facts. Otherwise, the Court will leave the boundaries of the world of realities and will walk into the realm of fantasy and imagination with the inherent danger of absolute arbitrariness. Therefore, whatever rumours may have been spread got to the effect that the Maharashtrawadi Gomantak Party would form an alliance with the Goa Congress, independents and six dissident members of the Congress (I) and attempt to form the Government, they have no relevancy and cannot be considered at all for the purpose of determining the validity of the nominations of respondents 3, 4 and 5. And in so far as the mala fide, it may be pointed out that, as rightly submitted by Mr. Dhanuka, the question of the soundness of the soundness of the reasons why the nominations were made is out side the purview of a judicial review. Reason good or bad were given and that much is sufficient, for the Court cannot go into the question of correctness or adequacy of the facts and circumstances on which the subjective satisfaction of the Central Government had been based. Otherwise, the Court to use the expression of Durga Das Basu, would go into the 'political thicket'. The satisfaction of the Executive, being a subjective one cannot be tested by reference to any objective tests and therefore, is not fit for judicial determination. Besides, as the matter of nomination may involve political considerations and assessment of other factors, it cannot be the subject matter of judicial determination. In this respect we may advert with advantage to the observations made in Har Sharan's case (supra) to the effect that, in such cases, the Courts have no power to Interfere, as well as to State of Rajasthan v. Union of India wherein it was held that satisfaction of the President under Article 356 is not subject to judicial review. In fact, the Supreme Court observed that the satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. It is deliberately and advisely subjective because the matter in respect to which he is to be satisfied is of such a nature that its decision must necessarily be left to the executive branch of the Government. We may also refer to the decision for the Supreme Court to the same effect in Charn Lal v. Giani Zail Singh. This being so, it is not necessary for us to deal in detail with the allegations made by the petitioners to justify their charge that the impugned nominations were made by the Central Government mala fide with a view to giving additional props to the Congress (I) in the Legislative Assembly of Union territory of Goa, Daman and Diu and to discredit the Maharashtrawadi Goamantak Party candidates elected by the people in Ponda, Mapusa and Madrem constituencies in the eyes of their electorate. We may, however, mention that it does appear that the view taken in this respect by Mr. Dhanuka is correct. In fact, it is the case of the petitioners themselves that in the last elections held in the month of December 1984, the Congress (I) secured 18 seats the Maharashtrawadi Gomantak Party 8 seats, the Goa Congress (1) seat and Independents 3 seats. This means that in a Legislative Assembly of 30 seats, the Congress (I) has secured an absolute majority and has secured six seats more then the combined strength of other parties and independents. We may also mention that it was not denied by the petitioners that in all other previous Assemblies, except the fifth Assembly which functioned from 21-1-1980 to 7-1-1985, women were represented and further, that, in 1967, two persons had been nominated by the Central Government to be members of the Legislative Assembly, both the nominees belonging to the then ruling party, the Maharashtrawadi Gomantak Party. These facts, in our view, support the submission of Mr. Dhanuka that the alleged mala fide had not motivated the impugned nominations. We also fail to understand in what manner the nominations will contribute to discredit the elected candidates of the Maharashtrawadi Gomantak Party, Therefore, considering the problem from the different angles, as discussed above, we fail to agree with Mr. Kakodkar that the impugned nominations are unconstitutional, illegal, null and void.
30. We may now deal with the last contention of the petitioners, according to which, in any event, respondent No. 4 could not have been nominated because, at the relevant time, she was holding an office of profit under the Government as Chair person of the Goa Handicrafts, Rural and Small Scale industries Development Corporation Limited, for such nomination was directly hit by the provisions of sub-section (3) of section 3 of the Act. Mr. Kakodkar, elaborating this view, invited our attention to the relevant provisions of the Memorandum and Articles of Association of Goa Handicrafts, Rural and Small Scale Industries Development Corporation Limited. He submitted that it is clear from the relevant provisions of the said Memorandum and Articles of Association that capital is entirely of the Government and that the Economic Development Corporation of Goa, Daman and Diu Limited controls entirely the Goa, Handicrafts, Rural and Small Scale Industries Development Corporation Limited. The Economic Development Corporation can give directions in respect of the change of the capital, the Board of Directors and all the relevant things. The Economic Development Corporation is clearly a Government Company and therefore, the fourth respondent, who at the relevant time, was the Chairperson of the Board of Directors of the Goa Handicrafts, Rural and Small Scale Industries Development Corporation was disqualified for being nominated. The said post of Chairperson of the Board of Directors is an office of profit and clearly under the Government. In fact, she was being paid, besides sitting fees, also T.A. and D.A. Under sub-section (3) of section 3 of the Act, it is specifically provided that a person in the service of the Government is disqualified. So also, section 10 of the Representation of the People Act disqualifies a person who is holding an office of profit under the Government. He further contended that the fact that the fourth respondent addressed a letter of resignation to the Chief Minister and the Administrator of Goa, Daman and Diu accepted the resignation is of no consequence for neither the Chief Minister nor the Administrator had powers to accept the resignation. In fact, she ought to have submitted her resignation to the Board of Directors of the Handicrafts Development Corporation and only after the acceptance of such resignation, she would have been free and qualified to be nominated. He further urged the fact that the Goa, Daman and Diu Members of Legislative Assembly (Removal of Disqualification) (Amendment) Act, 1985 made some amendments under which, inter alia, the office of Chairman of the Goa Handicrafts, Rural and Small Scale Industries Development Corporation Limited is not an office of profit. This clearly shows that the Government was fully aware that the said office of Chairperson of the said Corporation was an office of profit.
31. Mr. Dhanuka, however, while with his characteristic fairness conceded and accepted that the Economic Development Corporation of Goa, Daman and Diu is a public limited company within the meaning of section 670 of the Companies Act and that the Goa Handicrafts. Rural and Small Scale Industries Development Corporation Limited is a subsidiary company of the Economic Development Corporation within the meaning of section 4 of the Companies Act, submitted that the office of Chairman or Chairperson of the Board of Directors of the Handicrafts Development Corporation is not an office of profit under the Government. He specifically invited our attention to the Articles of Association, namely, Article 78 of the Goa Handicrafts Development Corporation and submitted that the Economic Development Corporation may from among the Directors nominate one as Chairman and another as Vice-Chairman of the Board of Directors' meetings and determines the period for which they are to hold office. The learned Counsel then argued that no remuneration, salary, or any pecuniary compensation is given to the Chairman of the Board of Directors, being a fact that such Chairman is appointed only to chair the meetings of the Board of Directors. No sitting fees are paid as Chairman and the sitting fees prescribed for the Directors are not attached to the post of Chairman or Chairperson. Then, the learned Counsel, placing reliance on the decision of the Supreme Court in Umrao Singh v. Darbara Singh, , contended that the test to find whether a person is holding an office of profit is whether such person is getting a pecuniary gain, and further, the burden of proving this lies on the person who alleges that such office is an office of profit. Similarly, in K.B. Rohamare v. Shanker Rao, , the Supreme Court observed that the law regarding the question whether a person holds an office of profit should be interpreted reasonably, having regard to the circumstances of the case and the times with which one is concerned as also the class of persons whose case the Court is dealing with and not divorced from reality. The Court further observed that the question has to be looked at in a realistic manner and merely because part of the payment made to the member is called honorarium and part of the payment daily allowance, the Court cannot come to the conclusion that the daily allowance is sufficient to meet his daily expenses and the honorarium is a source of profit. And in Divyara Prakash v. Kultar Chand, , the Supreme Court held that in the absence of any profit accruing to the Chairman as a result of the holding of the office of Chairman, it cannot be said that he was holding an office of profit. The learned Counsel, therefore, submitted that in the absence of any remuneration to or any pecuniary gain on the part of the fourth respondent while holding the post of Chairperson of the Goa Handicrafts Development Corporation, it is wrong to say that she was holding an office of profit. It is not disputed that, in fact, the only remuneration that the fourth respondent was receiving was by way of T.A. and D.A. and also that she was receiving sitting fees in her capacity as Director of the said Corporation. Now, as held in R.B. Rohamare's case (supra), law regarding the question whether a person holds an office of profit should be interpreted reasonably, having regard to the circumstances of each case and in that, the Court cannot be divorced from reality. Admittedly, the sitting fees were of a small amount and in the circumstances, it is difficult to hold that merely because some sitting fees were being paid to the fourth respondent, she was holding an office of profit. The test, as rightly pointed out by the learned Counsel, for determining whether an office is of profit or not is the one laid down in Umrao Singh's case. In that case, the question arose as to whether the Chairman of the Panchayat Samiti's was holding an office of profit since some allowances were being paid to him for performing some official duties and journeys concerning the Panchayat Samities or Zilla Parishads. The Supreme Court observed that the Chairman of a Panchayat Samiti does not have to spend money out of his own pocket for the discharge of his duties and, therefore, if a consolidated amount in lieu of travelling allowance, daily allowance, or any other allowances to which he might have been entitled in order to compensate him for the expenses incurred in connection with the discharge of his duties was paid to him, it would not import in the said office an element of pecuniary remuneration. So also, the Court observed that the evidence that such consolidation amount amounted to a pecuniary gain or remuneration was lying on the person who had made such allegation. Applying this test, it is obvious that the fourth respondent was not getting any pecuniary gain and the sitting fees, D.A. and T.A were meant only to cover expenses she was incurring in the discharge of her duties. It is reasonable, in the circumstances, to hold that the payment of sitting fees, D.A. and T.A. was not sufficient to make the office of the Chairman of Board of Directors an office of profit. But even if the said payment of sitting fees, D.A. and T.A. can be construed as a remuneration paid to the fourth respondent, we may point out that this remuneration was not sufficient to make the office of Chairperson of the Handicrafts Development Corporation an office of profit under the Government. We may, in this connection, advert to the decision of the Supreme Court in Garushanthappa v. Abdul Khuddus, . It was observed in that case that section 10 of the Representation of the People Act, by laying down that "a person shall be disqualified if and for so long as, he is a managing agent, manager or secretary of any company or corporation (other than a co-operative society) in the capital of which the appropriate Government has not less than twenty-five per cent share", limited the disqualification only to a person holding the office of a managing agent, manager or secretary of a company and not to other employees of the company. Similar view was also taken by the Supreme Court in the case of K. Prabhakara Rao v. Seshagiri Rao, . The Court also observed that the question as to what are the ingredients of a person holding an office of profit under the Government is no larger res integra as the same is concluded by a catena of decisions of the Supreme Court. It was further observed that in the case of Gurugobinda Basu v. Sanskari Prasad Ghosal, , it has been pointed out that one of the dominant tests to determine this question would be to find out as to who was the appointing and removing authority of the officer concerned. Applying the above observations of the Supreme Court, it is obvious that even if the sitting fees, travelling allowances and daily allowances paid to the fourth respondent amount to a remuneration for the discharge of her duties as Chairperson of the Handicrafts Development Corporation, the office held by her could not be said to be an office of profit under the Government. In fact, on one hand, admittedly, she was not the Managing Director nor the Managing Agent nor the Secretary of the said Corporation and she was holding only the post of Chairperson of the meetings of the Board of Directors, being in addition merely a Director, and on the other, her appointment as Chairperson has been done by the Board of Directors and not by the Government. It is thus, clear, in view of the law on the subject as laid down by the Supreme Court, that the fourth respondent was not, as Chairperson of the Goa Handicrafts Development Corporation holding an office of profit and for that matter an office of profit under the Government.
32. This being the question, it is not, strictly speaking, necessary for us to deal with the submission of Mr. Kakodkar that the resignation of the fourth respondent is not valid as she addressed her letter resignation to the Chief Minister of Goa, Daman & Diu and the said resignation was accepted by the Lt. Governor of the Union territory of Goa, Daman & Diu. We may only note that it does appear that such resignation ought to have been submitted to the Board of Directors and not to the Chief Minister as well as that the letter of resignation should not have been dealt with by the Lt. Governor. In this connection, Mr. Dhanuka submitted that, as held by the Madras High Court in T. Murari v. State, 1977 Tax. L.R. 1847, where there in no provision in respect of resignation under the Act or under the Articles of Association of the Company, even in absence of such provisions, the resignation tendered by a Director or a Managing Director unequivocally in writing will take effect from the time when such resignation is tendered and, therefore, since respondent No. 4 sent a letter of resignation and the acceptance of the resignation was communicated to the company, the irregularity in the submission of the said resignation would have been cured and consequently, the resignation would be effective. He also placed reliance, in this connection, on another decision of the Madras High Court in Abdul Huq v. Katpadi Industries Ltd., , wherein it was held that a Director who has resigned will be deemed to have resigned from the date of his resignation, without prejudice to his liabilities and obligations which had occurred up to that date and which he cannot evade by severing his connections with the company. The view taken by the Madras High Court appears, in our opinion to be correct. But as we have already said, it is not necessary for us to determine the said question as the fourth respondent was not at all holding an office of profit under the Government.
33. In the result, these writ petitions fail and are consequently, dismissed with costs. The rule issued in each of the cases is, accordingly, discharged.