Allahabad High Court
A.C. Datt vs Rajiv Gandhi And Others on 23 November, 1989
Equivalent citations: AIR1990ALL38, AIR 1990 ALLAHABAD 38
Author: V.N. Khare
Bench: V.N. Khare
ORDER Ravi S. Dhavan, J.
1. There are some writ petitions which must be dealt with at the threshold. This is one such writ petition. The pendency of such a petition in the High Court could lead to a misunderstanding of this institution which works under the Constitution and may embarrass the position of the Court. There are certain mitters which the constitution of India does not permit this Court to enquire into. These are matters which are exclusively to the business of the legislature, and yet there are certain matters which are the business of the Courts. The two ought not to mix. This in short is a very delicate balance which the executive, Legislature and the judicial institutions will have to respect; a discipline which must be adhered to notwithstanding whether it is written in the Constitution or has or will evolve by convention.
2. The petitioner is an Advocate of the High Court and has presented the writ peti-
tion in person. No court-fee has been paid on the writ petition as, the petitioner has appended an endorsement on the writ petition to the effect: "Public interest litigation and hence no court-fee required : Sd. A. C. Dutt".
3. In the writ petition the petitioner in effect claims that the general elections held in 1984 have no sanctity and the formation of a Government as a consequence of the election in 1984 was illegal and the then President of India committed an illegality in calling upon the party successful in that general election to form the Government. There is a prayer that this Court issue a declaration that the Government which has functioned for five years after the 1984 general election be declared as having functioned illegally and simultaneously the President, Vice President and the Prime Minister be dismissed and the Court give a declaration, in effect, that the Council of Ministers which has functioned for five years be bundled out of their offices. This is not all. It is further submitted that the 1989 general election should be stopped. There are the reliefs sought. In the text of the petition is a criticism of the functioning of the Government for the last five years and the petitioner alleges instances of omissions and commissions, which according to him, are the failures of the Government.
4. The petitioner has also made certain remarks in the writ petition, not even sparing the Mahatma in the company of certain national leaders, at present deceased, by referring to them as being highly communal. The petitioner further goes on to state "that the difference is that they are communal in the sense that they were/are anti-Hindu in their concept and because of confusion in their thoughts they were all traitors for India as the word India invariably means Hindu India and not Muslim India". The petitioner also refers to the passing of the 'Urdu Bill' and states in the petition that the Urdu Bill moved in the States of Uttar Pradesh and Bihar is an action tainted to make this language a second language "with the idea of fanning anti-Hindu communalism amongst Muslims for winning over the Muslims and getting their votes".
5. The Court has no hesitation in declaring that the reliefs which the petitioner seeks are such which are, firstly outside the purview of this Court and secondly they cannot be made an issue at the Bar of this Court. If what the petitioner contends and seeks is accepted and granted, then this Court may be responsible for opening fissures in the Constitution of India. The petitioner may have grievances, but within the limitation of free speech, he may speak from the corner of any public park or any other rostrum available to him. If there are takers they will listen to him.
6. A declaration that the general election which took place five years ago should be declared as illegal and irregular, is a tall order which today even the federal Parliament and the State Legislatures may not consider appropriate to discuss, as these bodies whether at the Centre or the States, and it does not matter who constituted it, have virtually served their terms.
7. Broadly, the petitioner's demands in this petition are-- (a) that the 1984 general election be declared as illegal, (b) the schemes of the Government in pursuance of this election were bad and are liable to be struck by this Court as illegal, (c) secularism as the petitioner understands is to be understood with ethnic bias towards the majority of the Hindu population, and (d) there are other objections in the petition in reference to the schemes, planning and policies of the Government as of date and the prayer, in effect, is that they be struck as irregular, irrational and illegal.
8. This Court will take up each of these arguments. It may, however, be said at the outset that what the petitioner contended could have been an election programme of a candidate. In an election, as such, a candidate would have had the totality of the freedom to express whatever he may desire as part of the election manifesto to persuade the electorate to cast their votes in the manner in which he desires it or dissuade the electorate from exercising their franchise in favour of anyone else. The Bar of this Court is not an alternative forum for general speeches on the conduct and criticism of the political parties and the Government, whoever they may be. This Court is a court of record, more so under Article 226 of the Constitution of India, to exercise power of judicial review against administrative action and exercise its power to protect attacks on the Constitution and the laws of the nation or on challenge to a State action against specific grievances of unconstitutional and illegal acts.
9. This Court will meet the petitioner's submissions.
10. The election is conducted according to the rules of the game. There is a complete Code by which the programme of election, the conduct of it and the result is spelled out, monitored and concluded. On the conclusion the result rests with the elected representative functioning in the federal Parliament and the State Legislatures. It is not the concern of this Court who is elected to power. The election of each candidate does become a matter of judicial scrutiny, but that is in accordance with the Code and the election manual when illegalities are committed in the constituency of a candidate. Thus, when a election petition is filed, this Court is then called upon to discharge its onerous duty. In the event of an election petition being filed, this Court may set aside or retain the candidate. Beyond this, it is hot he business of this Court to comment upon the generality of the election process as this would be a violation of judicial discipline, as also to comment upon a general election which took place as a consequence of which elected members have served their term. The 1984 general election cannot be made a matter of judicial scrutiny and the result of it must rest as recorded in the gazetteer and the return of party representatives to the Legislatures will become a subject-matter of comment by political theorists. This Court has no intention of entering into uncalled for controversies with politicians who have served their term. The generality of their conduct may be a subject-matter of a debate in another forum, but certainly not before this Court.
11. The plans and schemes of the Government which came to power in pursuance of 1984 election were always available to be criticised or praised, but before the Parliament and the State Legislatures, as the case may be, whatever was discussed is on record of the proceedings of the Legislatures, federal or State. The success or failure of the plans, it's outlay or scheme are matters before the electorate in the election which is in progress. It is not for this Court to comment on them unless the illegality of a Government action is before the Court in a specific case.
12. The petitioner's idea of what secularism may be is a matter of his personal opinion. This Court will always interpret secularism as what the Constitution of India projects it to be in its Preamble and the text following it. The Constitution of India is without ethnic bias and protects and respects the beliefs of all creeds and religions, non conformist and agnostic included, no matter what may be the ethnic background of a citizen. The protection is, however, to beliefs carried out by whatever form, limited to the reasonable restrictions laid down in the Constitution of India. This Court cannot subscribe to the views of the petitioner that secularism must be understood in terms of upholding a special status for the majority religion. Such expressions offend the Preamble of the Constitution of India. The Constitution is above religions and ethnic bias, and this is the difference between the tenets of the Third Reich and our Consti-
tution, on these aspects. Even languages have found expression of assimilation in the Constitution under Part XVII, and language as a matters of public policy will have to be seen in this context and in no other. There is more to the idea of the languages of the peoples of India as are mentioned in the VIII Schedule to the Constitution, than is otherwise under-stood. There are sixteen languages referred to by name. The context of languages is to be seen as Part XVII implies it to be.
13. The Court is dismayed to find what the petitioner contends are attempts to undermine the cultural unity of the nation. The republic is barely 39 years' old and this Constitution has to survive ad infinitum for generations. It has stood the test of time and must continue to do so. Let no culture, whether ethnic or religious, be subjected to negative criticism. This is a confusing phenomenon which can be put in very simple terms. The people of India are proud of the glory of the Taj Mahal which is prepared to fill the coffers of the nation with foreign exchange, the advertisement of the Taj makes tourists, foreign or Indian flock to see its magnificence in awe. The splendor that is the Taj Mahal is a national heritage, claimed equally and with pride by all the peoples of this nation. If this were not so, a time would come when those who project such views will face a counter force which will per force insist upon detachment with the heritage of the great Indian civilisation, known as the Indus Valley civilisation. A part of it lies excavated in Mohenjodaro and Harappa in a neighbouring nation and will remain there as part of history. Whose? This Court cannot suffer such expressions as they are repugnant to the ideals of the Constitution of India and an insult to Indian polity and civilisation. The petition preaches religious and ethnic discord, which is the anti-thesis of the quality of the Indian civilisation to preserve itself, a key on which it has survived and is the only living continuous civilisation in the world. The mystery on which it continues is best expressed by the mystic poet Iqbal. This Court can put it no better:
^^etgc ugh fl[kkrk vkil es cSj j[kuk A fgUnh gS ge] oru gS fgUnksLrka gekjk AA ;wuku&vks&fe&vks&jksek lc feV x, tgka ls A vc rd exj gS ckdh ukeksa&fu'kka gekjk AA dqN ckr gS fd gLrh feVrh ugh gekjh A lfn;ks jgk gS nq'eu nkSjs&tek gekjk AA** and ^^oru dh fQa dj ukank eqlhcr vkuh okyh gS A rsjh cjckfn;ksa ds e'ojs gS vkLekuksa esa AA tjk ns[k mldks tks dqN gks jgk gS] gksus okyk gS A /kjk D;k gS Hkyk vgns&dqgu dh nkLrkuksa esa AA u le>ksxs rks feV tkvksaxs ,s fgUnksLrka okyks A rqEgkjh nkLrka rd Hkh u gksxh nkLrkuks esa AA**
14. For any illegality or arbitrariness of an executive action not in conformity with the laws of the State and inconsistent with the Constitution of India, the doors of this Court are always open to any citizen. But, this Court is not the forum of a general criticism on aspects of Government action or inaction or its success or failure. Such criticisms are to be aired in the forum where elected representatives function. The elected representatives having been returned to power on the mandate of an election are a working institution themselves. The petitioner's comments on generalities are matters for the elected representatives to consider. This was an ill-advised petition and must be laid to rest as dismissed.
15. Notwithstanding that the court-fees has not been paid on it, this Court was constrained to meet this petition at the threshold because the filing was chosen midway through the process of the general election. This hardly left the Court with any opportunity to require the petitioner to append court-fees on this petition as by the time the petitioner would have returned after this long weekend, the election process would be over. The filing of it was the purpose. This was an exceptional case that the Court had to meet the petitioner and hear him on his terms. The petitioner is an Advocate enrolled at the Bar of this Court. He cannot escape the payment of court-fee. The Registrar, High Court will call upon the petitioner, Mr. A. C. Dutt, Advocate, to append the appropriate court-fees on the writ petition immediately. If the petitioner fails to comply with this direction, then no case upon which the petitioner as an Advocate signs the memoranda shall be entertained in this Court. This is a direction for the Registrar, the taxing and the reporting section is to be informed immediately.
16. Let the filing of such cases, in the circumstance, not become a precedent. This case the petitioner could have filed five years ago, but chose to file it five years after the election of 1984, which bothers him until today. In the context of manipulating the timing of filing the petition, the primary question before the Court was the priority of meeting the petition as soon as it was presented. Such cases warrant such reception. Direction on Court fee has been given, above.
17. The writ petition is, thus, dismissed in limine.
18. Petition dismissed.