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(v) The non-exercise of the discretion in this case is patently mala fide. Therefore, it can be struck down and appropriate relief given by way of compelling enforcement of the Act.

55. According to him the decisions relied upon by learned Solicitor General with regard to the first preliminary objection raised as to the maintainability of the writ petition are distinguishable since the points in issue were not discussed in the said decisions.

56. It has further been submitted by Mr. S. Gupta, learned Advocate for the respondent No. 14 that the Supreme Court in the aforesaid decision in the case of A. K. Roy v. Union of India and Than Singh Tyagi v. Union of India, and Dr. Vasant Kr. Pandit v. Union of India, , formulated 6 points which it had to decide on the basis of the arguments advanced before it by the five counsel appearing in the different cases. Of these 6 points we are concerned only with point No. 3 -- "The effect of the non-implementation of the 44th Amendment in so far as it bears upon the Constitution of the Advisory Boards".

57. According to Mr. S. Gupta, the main thrust of the arguments of Dr. Ghatate in the aforesaid decision was "that the Central Government was under an obligation to bring S. 3 of the 44th Amendment into force within a reasonable time after the President gave his assent to the amendment and since it has failed so far to do so the Court must, by a Mandamus, ask the Central Government to issue a notification under S. 1(2) of the Amendment bringing it into force without any further delay." Alternatively Dr. Ghatate contended "that Cl. 2 of S. 1 of the 44th Amendment is ultra vires the amending power conferred upon the Parliament by Art. 369 of the Constitution. The power to amend the Constitution is vested in the Parliament by Art. 368, which cannot be delegated to the executive. By such delegation the Parliament has created a parallel Constituent body which is impermissible under the term of An. 368. Sub-sec. (2) of the S. 1 of the Amendment Act vests an uncontrolled power in the Executive to amend the Constitution at its sweet-will which is violative of the basic structure of the Constitution. Section 1(2) is also bad because by conferring an unreasonable, arbitrary and unguided power on the executive, it violates Articles 14 and 19 which are an integral part of the basic structure of the Constitution."

(Para 41 page 729)

58. Mr. S. Gupta has further submitted that arguments were also advanced in the aforesaid case to contend that S. 1(2) of 44th Amendment Act was ultra vires Art. 368(2) and that S. 1(2) implied an obligation to bring the amendment into force within a reasonable time, that failure to bring the amendment in question into force was mala fide and that in any event the constituent body having expres-ed its will that the Advisory Body would be constituted in a particular manner that would be binding as reasonable whether it has been brought into force or not. We are not concerned with these arguments. From para-graph 46 to para 51 the arguments whether Sec. 1(2) of the 44th Amendment Act is ultra vires Art. 368(2) is considered and rejected (pages 730-732). In paragraph 52 Dr. Ghatate's argument that a mandamus could issue on the Central Govt. because it has failed to bring S. 3 into force is considered and rejected, (pages 732-733).