Case No: Civil Appeal No. 3 of 1988
Judge: Badrul Haider Chowdhury,
Court: Appellate Division ,,
Advocate: Mr. Khandaker Mahbuhuddin Ahmed,Mr. Md. Aftab Hossain,Mr. T. H. Khan,,
Citation: 41 DLR (AD) (1989) 30
Case Year: 1989
Appellant: Sheikh Abdus Sabur
Respondent: Returning Officer, Gopalganj
Subject: Election Matter,
Delivery Date: 1988-9-1
Supreme Court of Bangladesh
Badrul Haider Chowdhury J
Shahabuddin Ahmed J
M.H. Rahman J
A.T.M. Afzal J
Sheikh Abdus Sabur
Returning Officer, District Education officer-in-charge, Gopalganj and others
September 1, 1988
The Constitution of the People’s Republic of Bangladesh, 1972
The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983),
Section 7(2) (g)
The provision for disqualification of a member of the Union Parishad under section 7(2)(g) of the Union Parishad Ordinance, 1983 for being a defaulter of financial institutions including a bank in the absence of such disqualification for a member of the Parliament is not discriminatory but is constitutionally valid.
Cases Referred To-
AIR 1971 SC 530 (564); Southern Rly Co. V. Greane, 216 U.S. 400; Smt. Indira Gandhi V. Raj Narayan, AIR 1975; State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75; Dhirendra Kumar Vs. Government of West Bengal, AIR 1954, SC 424; Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR 1963, SC 268; State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493; Jibendra Kishore Vs. Prov. of East Pakistan, 9 DLR SC 21; Charanjit Lai. Vs. Union of India, AIR 1951 SC 41; Lachhman Das. Vs. The State of Punjab, AIR 1963, SC 22; The State of Bombay Vs. F. N. Balsara, AIR 1951, SC 318, S. 39, the Bombay Prohibition Act, 1949; Ram Krishna Dalmia vs. Justice Tendolkar, AIR 1958, SC 538; Jalan Trading Company vs. Mill Mazdoor Sabha, AIR 1967, SC 691; Anant Mills Vs. State of Gujrat, AIR 1975, SC 134; AIR 1979 SC 478; R.K. Carg v. Union of India", AIR 1981, SC 2138; Lingappa Pochanna vs. Slate of Maharastra, AIR 1985, SC 389; State of Gujarat Vs. Shri Ambica Mills, AIR 1974, SC 1300; Shujal Ali vs. Union of India, AIR 1974, SC 1631; Southern Railway Co. Vs. Greane (1909-216 U.S. 400); Middleton Vs. Texas P & L Co, 248 U.S. 152; Gulf Colorado Rly. v. Ellis, 165 U.S. 150; Shujat Ali vs. Union of India, AIR 1974, and SC 1631; the State of Madras Vs. V. G. Row, AIR 1952, and SC 196; Doland Paul Lublin Vs. Leonard Panish, US-SCR—39 L. Ed-2nd, 415-709; Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134; State of Madhya Pradesh Vs. Mandawar, AIR 1954 (SC); Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117; State of Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493; A.I.R. 1974 S.C. 1300; AIR 1979 S.C. 478 and AIR 1981 S.C. 2138; Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa Pochanna AIR 1985 S.C. 389; Anwar Ali Sarkar AIR 1952 SC 75; Kotch Vs. River. Port Pilot ‘Comm’rs (1947) 330 U.S. 552; West Coast Hotel Co. Vs. Parrish, (1936) 300 U.S. 379 at page 400; AIR 1955 SC 166; R.K. Garg Vs. Union of India AIR 1951 SC 2138.
Khandker Mahbubuddin Ahmed, Senior Advocate (Fida M. Kamal, Advocate with him) instructed by Sharifuddin Chaklader, Advocate-on-Record. — For the Appellant.
T. H. Khan, Senior Advocate (M.A. Wahab Miah, Advocate with him) instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondent No. 9
M. Nurullah, Attorney General (Hasan Arif, Deputy Attorney General with him) instructed by B. Hossain, Advocate-on-Record— For Respondent Nos. 1-3.
Not represented. —Respondent Nos. 4-3 & 10-11.
Civil Appeal No. 3 of 1988
Badrul Haider Chowdhury J.
1. Appellant was a candidate for election to the office of Chairman of Borashi Union Parishad in the district of Gopalganj which was held on 10.2.1988. He filed his nomination paper but it was rejected by the Returning-Officer on the ground that he defaulted in repaying loan taken by him from the Janata Bank and Krishi Bank and as such he was disqualified from seeking election under section 7(2) (g) of the Union Parishad Ordinance which was inserted by Act 33 of 1987. His appeal was dismissed by the Upazilla Nirbahi-Officer. Then he moved Writ Petition No. 26 of 1988 challenging the order of the Returning Officer. The High Court dismissed the writ petition.
2. Leave was granted to consider the question whether section 7(2) (g) of the Union Parishad Ordinance is hit by the equality provision under Article 27 of the Constitution.
3. The matter was heard at length and the learned Attorney General was invited to address the Court as amicus curiae. Section 7(2) (g) is in the following terms:—
"He has defaulted in repaying the loan taken by him from any specified Bank within the time allowed by the Bank thereon."
Explanation to the enactment gives the list of the specified Banks. It is not disputed that two Banks referred to above are specified Banks.
4. Mr. Khandker Mahbubuddin Ahmed learned Counsel canvassed that the impugned legislation is discriminatory and further it gives no clue as to the purpose of the legislation itself. The gist of his argument can be summed up: "if the legislation is considered beneficial then why the defaulters are debarred from contesting only the Local Council elections. Why not the Parliament?
5. Mr. T. H. Khan learned Counsel appearing for the respondents contended that the purpose of the legislation is discernible from itself. The learned Counsel went further to say that this being a beneficial legislation the Court should not strike it down, rather it should presume the Constitutionality of the impugned legislation and if the Court takes the view that the purpose of the legislation, though justified, falls short to the expectation of the public, necessary recommendation can be made so that the legislation can give shape to the aspirations of the people.
6. Mr. M. Nurullah learned Attorney General in a pains-taking manner has shown that the basis of classification exists and the Court shall not strike down legislation unless it becomes palpable that the legislation is discriminatory on the face of it.
7. My learned brother S. Ahmed, J. has exhaustively dealt with the nature of classification and found that the reasonable classification exists. Though a lengthy debate had taken place as to the purpose of the legislation yet it was found that the legislation itself appears to do certain "clean up" business in the administration of the Local Councils. Defaulters should not be elected members of the Local Councils, inasmuch as; it might clash with public duty.
8. Local Authority, although representative bodies chosen by adult franchise, have not the autonomy of the parliament. Indeed they are dependent on Parliament for their powers. The powers of a local authority derive from statutes and they are exercised subject to the rule of ultra vires. It is true both the members of the parliament and the members of the Local Councils are elected by the same voter; but their respective functions differ widely.
9. The Local Councils are classified on reasonable basis which is apparent from the nature of its duty and that has been highlighted in the judgment of my brother. The only question is whether the Court will make any recommendation or voice the sentiment of the people that the legislation falls short of expectation of the general public. What is the expectation? To say it in short formula "if the defaulters are debarred in contesting local elections, how it is the defaulter can contest for the Parliamentary seat?" Take the case of this person, the appellant, he is debarred from contesting from the Union Council's election and it is conceded that by mere being defaulter in the repayment of the loan he cannot be debarred from the Parliamentary election. My brother Afzal J, focused the sentiment of the appellant by "quoting the jibe of Mr. Ahmed what is sauce for the goose should be sauce for the gander. This is the echo of the sentiment expressed in the judgment of S. Ahmed, J. "when the legislation thought it expedient in the national interest to provide for the impugned disqualification for members of local bodies, they should have provided for similar disqualification for themselves by amending the Representation of the People Order, 1972. Exclusion of members of Parliament is found to be an omission of grave impropriety which, however, may be corrected even now by the law-makers themselves, if not required by any law, at least by dictates of good conscience and high sense of patriotism." I fully subscribe to this view.
10. Next question is whether the Court should make such recommendation. It has been argued in a very discreet manner by the learned Attorney General that the legislature understands and correctly appreciates the needs of its own people and the matter should be left to it. As a general proposition this theory of legislative supremacy is established especially in a country which has a democratic tradition and its evolution over the decades. For instance this proposition is fully valid in Britain. Modem tendencies even in England has led judicial opinion to modify such dictum in its absolute form. Lord Denning observed:—
"It is no longer necessary, for the judges to wring their hands and say: "There is nothing we can do about it". Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it by reading words in, if necessary- so as to do what parliament would have done, had they had the situation in mind." (The discipline of Law P. 16).
11. In U.S.A. it is the other way about and it is the Supreme Court which has been empowered by the Constitution to strike down the legislation offending the Constitution.
Prof. K. C. Wheare in Modern Constitution observed:—
“how much more likely is it that declaration of rights may prove to be in practice little more than words in communities where the executive is held in greater awe than the Constitution, where people are not free to organise themselves or where they lack knowledge and capacity to form a public opinion." (P-71).
The same author notices "It is argued sometimes too, that it is best to rely upon public opinion to control the legislature and to leave the electors at the polls to punish its members if they exceed their powers". The author further observed: "there is not much consolation here to a minority which hopes to sec its rights protected by a Constitution." Therefore, the judicial decision becomes unavoidable and the author makes his reservation by saying "the success of judicial review depends as much upon a well-drafted Constitution as upon the caliber of the judge themselves'. (p-177).
12. While our Constitution recognises the supremacy of the Constitution, it lays fundamental principles of the State policy in Part-II although the principles cannot be judicially enforced. In the Constitution the framers had in view the well defined separation of powers between the executive, legislative and the judiciary. Since it is the written Constitution the judiciary has been conferred the jurisdiction to settle the disputes between citizen and citizen and between State and the citizens. Of necessity, it is judiciary that has to say the last word even in matters of propriety of legislation. The concept of legislative supremacy imported from the soil of a developed country cannot be transplanted into the soil of a developing nation which has a nascent democracy as it is in Bangladesh.
13. A criticism may be levelled that the Court will not go into the morality of any legislation. The answer is short that no legislation can be made on immoral philosophy. Constitutional mechanism in a democratic polity does not contemplate existence of any function what may qua the citizens be designated as political" (Per Shah, J in AIR 1971 SC 530 (564). In the same case Hedge, J, observed: "There is nothing like a political power under our Constitution in the matter of relationship between the executive and the citizens."
14. Salmond Jurisprudence (11 End) points out "we have now come to recognise that since the law can never be completely certain the judge must be conceded to have the power of making new law in the course of deciding cases and that in exercising this power he will naturally act in accordance with his moral ideas. (P.30)".
15. I would not like to dilate on this point further for the reason that we have found the impugned legislation is not offensive. But upon hearing the learned Counsels there is no hesitation in my mind the frustrated aspiration of the nation needs consideration. If it is a step only that the defaulters should not participate in the nation-building activities the legitimate aspiration of the people will have to be given full shape.
16. Mr. T.H. Khan learned Counsel has voiced the public opinion by saying 'example is better than precept'. My brother Afzal, J, has echoed this view and I fully subscribe to it.
In view of the above, I agree that this appeal should be dismissed.
Shahabuddin Ahmed, J:
In this appeal by special leave the question raised relates to the constitutional validity of Section 7(2) (g) of the Local Government (Union Parishads) Ordinance, 1983—Ordinance No. LI of 1983. It has been contended that this provision of the Ordinance is violative of the equality clause of Article 27 of the Constitution of Bangladesh. S.7 (2) (g) of the Ordinance, which has been brought in recently by the Local Government Laws (Amendment) Act, 1987 (Act XXIII of 1987)—provides for a disqualification for a person seeking election as chairman or member of a Union Parishad; the disqualification is that a person who "has defaulted in repaying any loan taken by him from any specified bank (nationalised banks) is disqualified from seeking election. But as there has been no corresponding disqualification for a person seeking election to the Parliament, though he has alike defaulted in repaying the same kind of loan, it is contended, the disqualification provision offends. Art. 27 of the Constitution of Bangladesh which provides that "all citizens are equal before law and are entitled to equal protection of law", and as such S.7 (2) (g) being discriminatory in nature should be struck down in terms of Art. 26 of the Constitution.
18. The appellant before us was a candidate for election to the office of Chairman of Borashi Union Parishad in the district of Gopalganj which was held on 10 February 1988. He filed his Nomination-paper before the Returning-Officer who however rejected it by an order dated 11 January 1988 on the ground that he defaulted in repaying the loan taken by him from the Janata Bank and Krishi Bank at Gopalganj and as such he was disqualified from seeking election to Union Parishad under S.7 (2) (g) of the Union Parishad Ordinance. He preferred tan appeal before the Nirbahi-Officer, but his appeal was dismissed. Thereupon he filed a writ petition—W.P. No. 26 of 1988—challenging the order of the Returning Officer. In his Writ-petition he claimed that he was a solvent business-man having a number of business concerns including a brick manufacturing industry and a transport business, that he obtained two loans of Tk. 7, 67,000/- from Janata Bank and one loan of Tk. 15, 000/- from Krishi Bank against proper securities by mortgaging his two residential buildings in Gopalganj town and landed property in his village, Dhennabari and also by depositing his Fixed Deposit Receipts. He claimed that he always took keen interest in social welfare activities in his locality and was very popular there. He was elected Chairman of the Union Parishad twice in the past. As to the repayment of the loans, he explained that the loan being fully secured it is recoverable according to the existing law and in terms of his Agreements. He contended that he was not a defaulter in that the loan is to be repaid by instalments spread over a long period of time and that even if he had failed to pay a particular instalment in lime he could not be a defaulter, for, such instalment is recoverable with penalty by way of higher rate of interest. He alleged in his petition that the impugned provision of disqualification recently brought in by amendment of the Union Pari-shad Ordinance is discriminatory in the absence of any corresponding disqualification for a person seeking election to the Parliament though the latter might have taken same kind of loan but defaulted in repayment He assailed this provision invoking Art. 27 of the Constitution and prayed that this provision in section 7(2) (g) should be declared void.
19. The learned Judges of the High Court Division by an order dated 1 February, 1988 summarily dismissed the Writ-petition observing that when the Upazilla Nirbahi-Officer, appellate authority, held on the evidence of two Bank Managers that the appellant was a defaulter there was hardly any ground for interference. The learned Judges did not consider the question whether non-payment of an instalment of the loan in time will make the petitioner defaulter within the meaning of section 7(2) (g) or whether this legislation is violative of any Constitutional provision.
20. The appellant then filed a Leave Petition before us and obtained an order of slay of the Returning-officer's order and participated in" the election subject to the decision of this Court on his Leave Petition. After hearing the leave petition in presence of Kh. Mahbubuddin Ahmed, learned Counsel for the petitioner, and Mr. T.H. Khan, learned Counsel who appeared for the Caveator, Respondent No.9, one of the candidates in the election, and also after hearing the learned Attorney General who appeared at our request, we granted leave to consider only one question, as already referred to namely, whether the impugned disqualification provision of the Union Parishad Ordinance offends the equality of law provision of Art. 27 of the Constitution. By way of information, Kh. Mahbubuddin Ahmed said that the appellant won the election which was held on time.
21. Kh. Mahbubuddin Ahmed, at the outset, referred to different Constitutional provisions and legislative enactments by, or in pursuance, of which different elective bodies including the parliament and Union Parishads have been created and functioning. Article 65 of the Constitution provides that there shall be a parliament for Bangladesh (to be known as the House of the Nation) in which shall be vested the legislative power of the Republic. Art. 66 of the Constitution provides for qualifications and disqualifications for election to, and being members of the Parliament. Qualifications are that a person seeking election to Parliament shall be a citizen of Bangladesh and has attained the age of twenty five years. A person shall be disqualified for election as, or for being, a member of Parliament, who (a) is declared by a competent court to be of unsound mind; (b) he is an undischarged insolvent; (c) he acquires the citizenship of a foreign state; (d) has been, on conviction for a criminal offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; (e) holds any office of profit in the service of the Republic. Clause (g) of Art. 66 provide that further disqualification may be provided "by or under any other law". Representation of the People Order, 1972 (President's Order No. 155 of 1972) which provides for election to Parliament has brought in another disqualification in S.12. It is that a person may be disqualified if he has any share or interest in a contract for supply of goods to or for the execution of any contract with the government.
22. A Union Parishad, and for that purpose all other Local Government Bodies, such as Upazilla Parishad, Pourashava, is not created by any Article of the Constitution; but it has been created by a separate Act of Parliament in pursuance, as appears, of the provision of Art. 9 of the Constitution. This Article provides that the "State shall encourage Local Government institutions composed of representatives of the areas concerned". The Union Parishad Ordinance, 1983, which repealed and to a large extent re-enacted the Local Government Ordinance, 1976 (Ordinance No. XC of 1976) in its application to Union Parishad, is the Statute governing the constitution, function and responsibilities of, and election to, the Union Parishad. Section 7 of the Ordinance, as already referred to, provides for qualifications and disqualifications of chairman and members of a Union Parishad. Qualifications for a person seeking such election are that he is a citizen of Bangladesh and has attained the age of twenty-five years. His disqualifications are that he has been declared by a competent court to be of unsound mind; he is an undischarged insolvent; he has ceased to be a citizen of Bangladesh; he has been, on conviction for a criminal offence, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release; he holds any office of profit in the service of the Republic or of the Union Parishad or any other local authority; he is a party to a contract for work to be done for, or goods to be supplied to, the Union Parishad concerned or has otherwise any pecuniary interest in the affairs of the Union Parishad.
23. It is seen that qualifications and disqualifications in respect of election to a Union Parishad are identical with those in respect of election to the Parliament and that this was the position from the beginning of Independence of the country till" 24 June 1987 when the additional disqualification on the ground of default in repayment of loan has been imposed by an Amendment in the case of Union Parishad election and not in the case of Parliament election. The amending statute, namely Act XXIII of 1987, has amended not only the Union Parishad Ordinance but also has amended five other Ordinance relating to other Local Government Bodies. They are the Paurasava Ordinance, 1977; The Local Government (Upazilla Parishad and Upazilla Administration Re-organization) Ordinance, 1982; The Chittagong Municipal Corporation Ordinance, 1972. The Dhaka Municipal Corporation Ordinance, 1983; The Khulna Municipal Corporation Ordinance, 1984. In each of these ordinances the same disqualification on the ground of default in repayment of loan from the specified banks has been provided where, till these amendments, there was no such disqualification in these Ordinances. The disqualification is that "he has defaulted in repaying any loan taken by him from any specified bank within the time allowed by the bank therefore". The specified banks are also the same in all these Ordinances.
24. Kh. Mahbubuddin Ahmed has referred to President's Order No. 104 of 1972 (Bangladesh Electoral Rolls Order, 1972) which provides for preparation of Electoral Rolls for election of representatives of people to "elective bodies" and has pointed out that an 'elective body means a body constituted by or under any law or constitutional provision consisting of members to be elected on the basis of adult franchise, and that" elective bodies" mean both Parliament and Local Government Bodies including Union Parishads. This view is correct and it has been confirmed by the Electoral Rolls (Amendment) Ordinance, 1984—Ordinance No. XVIII of 1984—which also says that 'elective body' means a local body or Parliament. All these bodies consist of People's representatives elected on the basis of universal adult franchise, that is, they are elected by citizens who have been enrolled on the electoral rolls in respect of their respective electoral areas. Qualifications for a person to be enrolled on an electoral roll are that he is a citizen of Bangladesh and that on the 'qualifying date’ he has attained the age of 18 years of age, and that he is not of unsound mind. Electoral rolls are prepared by or under the authority of the Election Commission in the manner laid down in s. 8 of the President's Order No. 104 of 1972. P.O. 104 of 1972 was made by the President on 29.8.72, i.e. before the Constitution of Bangladesh was made and put into operation on and from 16th December 1973. The Constitution, in Art. 119 (1), has laid down the functions of the Election Commission. The functions are preparation of Electoral Rolls for all elections to the office of President and to Parliament, delimitation of electoral areas, called constituencies, in respect of election to Parliament and conduct of such elections. Under Art. 119 (2) the Election Commission performs such other functions as prescribed by this Constitution or "by any other law". It is in pursuance of this provision of Art. 119 (2) of the Constitution that the Election Commission prepares Electoral Rolls for all other elective bodies including the Union Parishad. In each of the statutes which provide for constitution and function of different elective body’s specific provision has been made empowering the Election Commission to prepare electoral rolls for election of people's representatives to these elective bodies—which are also called local government bodies. The provision for preparation of electoral rolls is uniform in respect of all these bodies including the Parliament. From this position of law, learned Counsel for the appellant argues that law, learned Counsel for the appellant argues that representatives of the people, whether they constitute the National Legislature at the top or the Union Parishad at, the ground level, constitute a single class by themselves and that they have all along been governed by the same or identical law laying down their qualifications and disqualifications for seeking election to these elective bodies and it is for the first time in June 1987 that a discriminatory treatment has been given to persons seeking election to the Local bodies by bringing an additional disqualification for them but exempting members of the Parliament from this disqualification. The learned Counsel has contended that had the law-makers, who are themselves members of the Parliament, any regard for the "equality before law and equal protection of law" in Art. 27 of the Constitution and acted in fair and impartial manner, they would have subjected themselves 10 the same 'disqualification' by amending the Representation of People's Order, 1972.
25. Learned Counsel for the appellant has taken a number of grounds to substantiate his contention that s.7 (2) (g) of the Union Parishad Ordinance is discriminatory offending Art. 27 of the Constitution. He has pointed out that the object and reason for the impugned legislation bringing in the disqualification was not stated in the amending statute—Act XXIII of 1987—and contended that default in payment of loan which is fully secured and recoverable according to terms of the Agreement between lender and borrower as well as under the appropriate law got no reasonable nexus whatever with the borrower's election to, the Union Parishad. Again, if the purpose of the impugned legislation were to help recovery of loans taken from Stale-owned banks and thereby to salvage the national economy from ruin caused by large scale nonrecovery of the loans, then this purpose would be better served by bringing members of Parliament also within the ambit of the disqualification provision, he argues. Learned Counsel further argues that even if the impugned law is defended on the ground of public good—as a beneficial legislation—there can be no earthly reason for keeping members of Parliament away from its ambit. Learned Counsel has argued that persons, such as the appellant, seeking election to the lowest tier of the democratic set-up ordinarily take loan in small amounts, whereas persons seeking election to National Parliament lake loans in big amounts upto crores of taka, and if the latter being defaulter are exempted from the hands of law but the former are subjected to it then the impugned legislation has been made on arbitrary classification of persons and as such must be struck down. The learned Counsel has referred to a number of decisions to substantiate his contentions to which I shall pay attention in due course.
26. Mr. T.H. Khan, learned Counsel for respondent No.9, has also made a lengthy submission, supported by certain decisions, to show that the impugned legislative provision as to disqualification by being a defaulter is not discriminatory in that members of Union Parishad, and for that purpose, all other local bodies, constitute a separate class distinguished from those representing the "people in Parliament. These two kinds of elective bodies, created as they are, by different statutes for performing different functions and acting in different fields, cannot be grouped into one class, he has contended. By giving separate treatment to these distinctly separate bodies of people's representatives, learned Counsel goes on, the legislature acted quite within its power. He has argued that for reasons of history, geography level of education, culture and economic condition of people of the country, the peoples' representatives may, be treated according to different standards by the legislative with a view to attaining some definite objects, and since the local bodies and the Parliament are traveling on distinctly separate paths, they cannot be treated alike for the purpose of legislation. The learned Counsel has argued that among the members of the local bodies there is no inter se discrimination, but all of them have been equally treated. Secondly, a person seeking election to a local body, such as the appellant, though disqualified, is at liberty to seek election to Parliament where the question of default in payment of loan will not arise as a disqualification. As to the object of this legislation, that is, barring a defaulter from seeking election to local bodies, the learned Counsel has submitted that it is a beneficial piece of legislation and though this object has not been expressly stated in the statute it may be gathered from common knowledge about the prevailing state of things and general economic condition of the country vis-à-vis the object for achieving which the statutes created the local bodies. Learned Counsel has pointed out that because of huge amounts of loans, taken from nationalised banks remaining unpaid the national economy has been brought on the verge of collapse and this default clause is quite likely to help strengthen the battered economy. As to exemption of members of the National Legislature from this beneficial law, he has regretted their exclusion which, he says, is highly improper though not unconstitutional. He however hopes that the law-makers will reconsider this aspect of the matter and bring about necessary amendment in the law subjecting themselves to the same disqualification.
27. The learned Attorney General has appeared at our request to assist us in arriving at a correct decision in this case as to interpretation of the Constitution. In general he has adopted the arguments advanced by Mr. T.H. Khan. In addition, he has referred to a great number of decisions of the Indian Supreme Court in which power of the legislature to make reasonable classification of persons, things and transaction on the basis of intelligible differentia, for achieving definite legislative, end, has been examined. He has disagreed with Kh. Mahbubuddin Ahmed that members of Parliament and those of all other elective bodies also known as local Government bodies, constitute one and single class. He has contended that these bodies, Parliament and local Bodies, are quite dissimilar in respect of their nature and functions as well as in respect of legislative objectives for achieving which they are created. He has submitted that in view of special characteristics and different functions and activities of the local bodies different qualifications or disqualifications may be required of persons seeking election thereto. He has referred to the Bengal Municipal Act, 1918 which provides for disqualification for a person seeking election to the Municipal Corporation if he has not cleared his municipal rent and charges. This provision has been retained by the Municipal Ordinance, 1983, he has submitted. He has also cited a decision of the Patna High Court in which it has been held that a Municipal Law which provides that a person who has not cleared municipal dues is disqualified from seeking election as Commissioner thereof is constitutionally valid.
28. From the respective submissions of the parties in this case the question before us is whether the guarantee of the Constitution, in Art. 27, that "all citizens are equal before law and are entitled to equal protection of law" has been disregarded in the impugned legislation, namely section 7 (2) (g) of the Union Parishad Ordinance. First of all it is to be clearly understood what 'the equality of law' means. Sir Ivor Jennings in his "The Law and the Constitution" has stated:
"Equality before the law means that among equals the law should be equal and should be equally administered, that like should be treated alike".
Dicey in his "law of the Constitution', stated:
"Equality before the law does not mean absolute equality of men which is a physical impossibility, but the denial of any special privileges by reason of birth, creed or the like, in favour of any individual and also the equal subjection of all individuals and classes to the ordinary law of the land administered by the ordinary law Courts".
In the "Limitations of Government Power" by Rotundy and others "equal protection of the laws" has been described as:
"The equal protection clause guarantees that similar individuals will be dealt with in a similar manner by the government. It does not reject the government's ability to classify persons or draw lines' in creation and application of laws, but it does guarantee that those classifications will not be based upon impermissible criteria or arbitrarily used to burden a group of individuals. Such a classification does not violate the guarantee when it distinguishes persons as 'dissimilar' upon some permissible basis in order to advance the legitimate interest of society."
In Southern Rly Co. V. Greane, 216 U.S. 400 Day-J observed:
"Equal protection of the laws means subjection to equal laws, applying alike to all in the same situation."
Chandrachud J., in "Smt. Indira Gandhi V. Raj Narayan", AIR 1975, and SC 2279 described his idea of equality as:
"All who are equal are equal in the eye of law", meaning that it will not accord favored treatment to persons within the same class."
29. On consideration of the views expressed by these distinguished Judges and Authors as to the meaning of the "equality before law and equal protection of the law", I do not think that I will be able to define this term in a better way, "Equality before law" is not to be interpreted in its absolute sense to hold that all persons are equal in all respects disregarding different conditions and circumstances in which they are placed or special qualities and characteristics which some of them may possess but which are lacking in others. The term 'protection of equal law' is used to mean that all persons or things are not equal in all cases and that persons similarly situated should be treated alike. Equal protection is the guarantee that similar people will be dealt with in a similar way and that people of different circumstances will not be treated as if they were the same. A single law therefore cannot he applied uniformly to all persons disregarding their basic differences with others; and if these differences are identified, then the persons or things may be classified into different categories according to those distinctions; this is what is called 'permissible criteria! or "intelligible differentia", The Legislature while proceeding to make law with certain object in view, which is either to remove some evil or to confer some benefit, has power to make classification on reasonable basis. Classification of persons for the purpose of legislation is different from class legislation, which is forbidden.
To stand the test of 'equality' a classification, besides being based on intelligent differentia, must have reasonable nexus with the object the legislature intends to achieve by making the classification. A classification is reasonable if it aims at giving special treatment to a backward section of the population; it is also permissible to deal out distributive justice by taxing the privileged class and subsidising the poor section of the people. What is of fundamental importance in law-making is that while making a classification the legislature shall not act arbitrarily but make selection on rational basis. In the light of these observation's I shall see whether the impugned legislation is supportable in terms of 'equality of law' within the meaning of Art. 27 of the Constitution. In support of their respective contentions learned Counsels have cited many decisions which I now proceed to consider.
30. In the case of State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75, the Supreme Court of India struck down section 5 (1) of the West Bengal Special Courts Act, 1950 as violative of Art. 14 of the Indian Constitution which provides that "the State shall not deny to any person equality before law or the equal protection of the laws". The impugned section of the law provides that a special Court shall try offences or classes of offences or cases or classes of cases as the State government may direct. Contention of the accused-respondent was that this provision gave arbitrary power to the government to choose any accused person for trial before the Special Court which follows a harsher procedure than the ordinary courts and as such it offended Art. 14 of the Constitution. This contention was upheld with the observation that "the Act has completely ignored the principle of classification followed in the Crl. P.C. and has laid down a new procedure without making any attempt to particularizes or classify the offences or cases to which it is to apply". In Dhirendra Kumar Vs. Government of West Bengal, AIR 1954, SC 424, a similar question arose and the Supreme Court upheld the contention of the accused-appellant that the impugned Notification of the State Government revoking its previous Notification, by which the accused was granted trial by Jury under section 269(1) Crl. P.C., and directing his trial with the aid of Assessors, offended the equality provision in Art. 14 in that the classification of cases and offences to be tried with the aid of Assessors as per Government Notification was not based on any substantial distinction. In Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR 1963, SC 268, a rule made by the Government of the Province laying down certain special qualifications for recruitment of District Munsifs was challenged on the ground that it made arbitrary classification between Advocates of one High Court and those of other High Courts of India. The rule says that a candidate for the post of District Munsif, among other things, must be an advocate of the 'the High Court', which expression meant only the High Court of Andhra Pradesh. The Supreme Court found that this rule introduced a classification between one class of advocates and the rest and that this classification was irrational inasmuch as there was no nexus between the basis of the classification and the object intended to be achieved by the relevant rule. The Court observed:
"When any impugned rule or statutory provision is assailed on the ground that it contravenes Art. 14, its validity can be sustained if two tests are satisfied. The classification must , be based on an intelligent differentia which distinguished persons or things 'grouped together from others left out of the group, and the second is that the differentia must have a reasonable relation to the object sought to be achieved by the rule of statutory provision."
The Court held the rule to be unconstitutional offending Art. 14.
31. Kh. Mahbubuddin Ahmed has given much emphasis on an observation of the Indian Supreme Court in the case of State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493 and has argued that the principle indicated therein is quite applicable to the present case. In that case two laws, one made by the State Legislature and the other made by the Central Legislature, both providing for Dearness Allowances to government servants but at different rates, the higher rate for the Central government employees and the lower rate for the State government employees, came up for consideration of the question whether they were discriminatory'. Contention of the respondent, an employee of the State government, that the law governing his case was discriminatory was upheld by the High Court, but it was rejected by the Supreme Court on appeal on the ground that granting of Dearness Allowance at a particular rate is a matter of grace and not a matter of right and hence the claim against the government for granting Dear-ness Allowance at a particular rate is not justifiable. The Supreme Court however observed:
"It is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their conjunction they result in discrimination."
But those laws having been made by two different Legislatures on their respective fields the Supreme Court found no discrimination as alleged by the respondent. In the instant case Kh. Mahbubuddin Ahmed's argument may be acceptable so far as the source of authority of making law is concerned, that is, Parliament, in that both the Representation of the People Order, 1972 and the Union Parishad Ordinance, 1983 have been enacted by Parliament. But the question is whether people's representatives in the parliament and the Union Parishad do constitute one and single class. This question requires to be answered first.
32. A glaring instance of discriminatory legislation offending "equality before law" is available in the case of Indira Gandhi vs. Raj Narayan (supra). There, amended Art. 329-A (4) of the Indian Constitution was assailed, among other things, on the ground of arbitrary classification. Indira Gandhi's election to Lokshabha held in March 1971 was held void by the Allahabad High Court and against that decision she preferred an appeal before the Supreme Court. During pendency of the appeal, Indian Parliament amended the Constitution inserting therein Art. 329A. Clause (4) of this Article made the existing Election Laws retrospectively inapplicable to Parliamentary elections of the Prime Minister and the Speaker; it kept the election of these two personages, who are members of Parliament, beyond the reach of any law past or present; it declared the disputed election of Indira Gandhi valid and further declared that the judgment of the Allahabad High Court was void and the election petition challenging her election abated. Existing Election laws were however kept alive to be applicable to elections of all other members of the Parliament. The Supreme Court struck down clause (4) as grossly discriminatory.
33. Mr. T.H. Khan, in upholding the classification as regards the local Government bodies, has placed reliance on Pakistan Supreme Court's decision in "Jibendra Kishore Vs. Prov. of East Pakistan", 9 DLR SC 21. In that case, upon the wholesale acquisition of all rent-receiving interests the expropriated landlords were sought to be compensated for to some extent and for that purpose they were grouped into ten classes under section 37 of the East Bengal State Acquisition and Tenancy Act, 1950. This classification was challenged as being violative of the ‘equality before law’ provision of Art. 5 of the Constitution of 1956. The classification was based on the landlords' net annual income from their estates, the lower the income the higher the rate of compensation. Munir CJ., upholding the classification observed that if the Legislature once decided to abolish the system of private landlordism in agricultural land and the resources of the State were not sufficient to compensate the outgoing landlords, some means for the rehabilitation of the expropriated landlords had to be devised, and, if in its anxiety to rehabilitate such landlords, the legislature took into consideration the net income of the persons whom it was intended to set on their feet, the classification based on such considerations must be considered to be a necessary result of bringing the expropriating provision of the Act into action. As to "equality of the law and equal protection of law", he observed:
"Whatever the expression equal protection of law may mean, it certainly does not mean equality of operation of legislation upon all citizens of the State... Equal protection of the laws means that no person or class of persons shall be denied the same protection of the laws which is enjoyed by other persons or other classes, in like circumstances."
34. Of the cases referred to by the learned Attorney General "Charanjit Lai. Vs. Union of India", AIR 1951 SC 41, is one of the earliest cases decided by the Indian Supreme Court in the light of Art. 14 of the Indian Constitution. In that case a single manufacturing company namely, Sholapur Spinning and Weaving Company, was treated by the Indian Central Legislature "as a class by itself in view of allegation of mismanagement, and a law was made for better management of the affairs of the company The law, Sholapur Spinning and Weaving Company (Emergency Provisions) Act, 1950, empowered the Government to appoint Directors of the Board of Management of the company in place of the existing ones. It was contended by the appellant, one of the share-holders of the company, that more or less similar allegation of mismanagement might be brought against other companies of the country but his company had been singled out for discriminatory treatment by the Legislature. This contention was over ruled and it was observed that "guarantee against the denial of equal protection of the law docs not mean that identically the same rule of the law should be made applicable to all persons within the territory of India in spite of different circumstances and conditions". In "Lachhman Das. Vs. The State of Punjab, AIR 1963, SC 22, a particular bank, Patiala State Bank, was treated as a class by itself in the Patiala Recovery of State Dues Act, 1957. This Act provided a special procedure for determination of this bank's dues and recovery thereof—a procedure much harsher than that of all other banks in the country. Validity of this provision of the Act came under challenge; but the challenge was overruled on the ground that the fund of this bank was the state fund distinguished from funds pf other banks which belonged to subscribers and shareholders. In "The State of Bombay Vs. F. N. Balsara", AIR 1951, SC 318, S. 39, the Bombay Prohibition Act, 1949, was challenged under Art. 14 of the Constitution on the ground of discrimination in favour of members of the Armed Forces in respect of use of liquor. The High Court upheld the contention of the respondent that this provision of the Act was discriminatory offending Art. 14, but on appeal the Supreme Court took a different view and upheld the classification observing that "there is nothing wrong in the Legislature according special treatment to persons of the armed forces who form a class by themselves in many respects and who have been treated as such in various enactments and that relaxation of the prohibitory provisions of the Act in favour of the members of the armed forces is constitutionally valid. In the case of "Ram Krishna Dalmia vs. Justice Tendolkar", AIR 1958, SC 538, the classification made was upheld with the observation that the classification to be valid must have reasonable nexus with the object of legislation. In "Jalan Trading Company vs. Mill Mazdoor Sabha", AIR 1967, SC 691, S.10 of the Payment of Bonus Act, 1965 was assailed as being discriminatory. It provided for making bonus payable to workers of the company, whether there were profits in the relevant accounting year or every year. Contention of the Mill owners was rejected by the Supreme Court upon elucidating the "equality” provision in a negative way as:
"Equal protection of the laws is denied if in achieving a certain object, persons, things or transactions of similar circumstances are differently treated and that the principle underlying that different treatment has no rational relation to the object sought to be achieved by the law."
35. In "Anant Mills Vs. State of Gujrat, AIR 1975, SC 134, certain properties were treated as a special class for the purpose of levying conservancy charges at higher rates in the Bombay Provincial Corporations Act, 1949, as amended by the Gujarat Act No. 5 of 1973, in its application to the latter State. The Act also -treated the decided cases as belonging to one category and pending cases as belonging to another category. Both the classifications were held to be constitutionally valid. The Indian Supreme Court considered a Reference made by the President of India under Art. 143 of the Indian Constitution and this matter was reported in AIR 1979 SC 478 as Special Courts Bill 1978. The question was whether the Special Courts Bill, if made into law, would be constitutionally valid. The Bill provided for creation of Special Courts to try certain offences committed by high public officials and political persons during the period of Emergency declared on 25 June, 1974. The classification of persons and offences for trial by the proposed Special Courts which were to follow a harsher procedure than the ordinary courts of the country was seriously assailed on the strength of the equality clause of Art. 14; but the classification was upheld by the Supreme Court which found that there was a reasonable nexus between it and the object of the law to ensure speedy trial of offences committed in peculiar circumstances.
36. In "R.K. Carg v. Union of India", AIR 1981, SC 2138, Special Bearer Bonds (Immunities and Exemptions) Act, 1981, which made a classification between persons having 'black money' and others, was held lo be quite reasonable, and permissible under the 'equality of law' provision of Art. 14 as the privileges and immunities were offered to the class of persons in possession of black money for the purpose of unearthing the black money "for being utilized for productive purposes with a view to effective social and economic planning". In "Lingappa Pochanna vs. Slate of Maharastra", AIR 1985, SC 389, the Maharastra Restoration of Lands to Scheduled Tribes Act, 1975, came under challenge on the ground of discrimination. This Act provided for annulment of transfers of agricultural land made by members of the Special Tribes to members of the advanced communities. Members of the Scheduled Tribes, known as Tribal or Aboriginals, were treated as a distinct, separate class who are poor, backward and very weak in the matter of bargaining with members of other communities who are far advanced economically, politically, strong financially and Very affluent. Many members of the Tribe sold away their agricultural land to members of the affluent communities, some-times at unconscionable low price. The State Legislature enacted the law in question providing for annulment of such transfers if they were made during the "specified period" prior to the making of the law. This classification was held to be constitutionally valid and not discriminatory. Classifications for the purpose of legislation were upheld by the Supreme Court of India in the remaining two cases cited by the learned Attorney General, namely "State of Gujarat Vs. Shri Ambica Mills." AIR 1974, SC 1300 and "Shujal Ali vs. Union of India", AIR 1974, SC 1631.
37. The principles of reasonable classification of persons and things for legislative purposes as stated and explained in the decisions of both Indian and Pakistan Supreme Courts referred to above, have followed the lines of reasonings of the United States Supreme Court which were based on interpretation of the equality clause of the 14th Amendment of the U.S. Constitution. I think it would be quite appropriate if I quote a passage from one of such decisions of the U.S. Supreme Court. In Southern Railway Co. Vs. Greane (1909-216 U.S. 400), supra, Day J, observed:
"While reasonable classification is permitted, without doing violence to the equal protection of the laws, such classification must be based upon some real and substantial distinction, bearing a reasonable and just relation to the things in respect to which such classification is imposed; and the classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said cannot be justified by calling it classification."
38. Kh. Mahbubuddin Ahmed has argued that there was no classification between people's representatives in the Local Government bodies and those in the Parliament and they all were treated as one class, so far as their qualifications and disqualifications were concerned, till the impugned Amendment which gave a different treatment to the people's representatives in the local bodies. He argues that this differentiation does not attract the classifications found in any of the decisions cited in this case and this differentiation or classification is arbitrary. He has pointed out that object of the Amendment bringing in the impugned law was not stated therein and if furtherance of economic or financial interest of the Slate were the object, there is no reason whatever for exemption of the members of the Parliament. But the position of law on this point is that it must be presumed that the Legislature is fully aware of the Society's problems and the Legislature makes law to solve such problems keeping in view the welfare of the people. It also must be presumed that when any law is made it is constitutionally valid until the presumption is rebutted by the person who challenges its validity. The United State's Supreme Court in Middleton Vs. Texas P & L Co, 248 U.S. 152, observed:
"It must be presumed that a Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based upon adequate grounds.
Bruen J, in Gulf Colorado Rly. v. Ellis, 165 U.S. 150, however, warned against carrying this presumption too far and observed:
"To carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting certain individuals or corporations to hostile and discriminatory legislation is to make the protection clause of the 14th Amendment a mere rope of sand."
Bhagawati J, in Shujat Ali vs. Union of India, AIR 1974, and SC 1631 observed:
"The doctrine of classification should not be carried to a point where instead of being a useful servant it becomes a dangerous master."
In Lachmon Das vs. State of Punjab (supra) Subha Rao J, observed:
"Over-emphasis on the doctrine of classification or an anxious and sustained attempt to find some basis for classification may gradually and imperceptively deprive the article of its glorious content. That process would gradually and imperceptively substitute the doctrine of classification for the doctrine of equality".
39. Kh. Mahbubuddin Ahmed has emphasized "the test of reasonableness" in considering a classification for legislation and has contended that the impugned classification between the same kind of people namely, people's representatives, does not stand the 'test of reasonableness'. He has, in this connection, referred to an observation of Patanjali Shastri CJ., in the State of Madras Vs. V.G. Row, AIR 1952, and SC 196. It is that in forming a correct conception of reasonableness the social philosophy and the scale of values of the Judges participating in the decision play an important part. We do not think that in construing a Legislation the court will adopt a doctrinaire approach which, as F. Ali, J, observes, "might choke all beneficial Legislation". If two categories of persons or things, though they may have some resemblances, differ in material points, then they may be separately treated for the purpose of legislation. I shall, therefore, examine the basic differences in the two kinds of representatives of people as pointed out by the learned Attorney General.
40. Parliament is a creation of the Constitution itself; the local elective bodies are created by their respective statutes in pursuance of Art. 9 of the Constitution, which appears in Part II relating to Fundamental Principles of Slate Policy. These Principles, though they must be applied by the State in the making of law, are not justifiable in court. The main function of Parliament is law making, that is, legislative, whereas the main functions of local bodies are executive in nature. In the case of Union Parishads, the functions are maintenance of law and order and rendering assistance to administration in this matter; adoption of measures for preventing crimes, disorder and smuggling; adoption of development schemes for socio-economic development and implementation of these schemes as well as those assigned to them by higher authorities; development of local resources and their use; protection and maintenance of public properties such as roads, bridges, canals etc., motivation of people for family planning, improvement of sanitary condition and primary education. Besides these functions, the government may entrust to Union Parishads some of the police and Village defence functions. To assist revenue officials in collection of rents and taxes and in preparation of records and assessments is their important responsibilities. For each Union Parishad there shall be a fund known as Union Fund which is managed by, and in custody of, the Union Parishad. These are purely executive functions. Parliament has no function like these. It is true that from among members of Parliament most of the ministers are appointed whose functions are executive in nature, and that regular Parliamentary Committees with some members of Parliament are formed for transaction of business of the parliament. But this does not alter their character and functions as members of the Supreme law-making Body which is one of the three Organs of the Government under the Basic Principle of Separation of Powers between the Executive, Legislative and the Judiciary. Again, a local body is a "body corporate" having perpetual succession with a right to acquire and dispose of property and to sue and to be sued. Above all, members of a Union Parishad are 'public servants' within the meaning of S. 21 of the Penal Code. The term 'Public Servants' denotes some executive control over them and they are subject to disciplinary rules which are applicable to regular government servants. In view of these differences in respect of functions and duties, the Legislature thought it proper and expedient to treat them as a separate class of people's representatives and has provided for the additional disqualification in question.
41. The main object of the 'disqualification’ provision appears to be the furtherance of economic and financial interest of the State and though it has not been expressly stated in the statute it is clear from the nature of duties and responsibilities of the persons constituting these local bodies. It is a common knowledge that for non-payment of loans taken from State owned banks, the national economy has been badly affected. One of the functions of Union Parishads is to help collection of government dues, rent and taxes. Besides, members of the Union Parishad are directly involved in financial transaction in the course of their official duties and running the affairs of the Union Parishad. The fact that these persons are financially handicapped by being 'defaulters' will embarrass them in the discharge of their duties. It is quite natural that a person seeking election to local body, such as a Municipality, will be debarred from doing so unless he clears his dues in rent and taxes to that body. What is the harm if the Legislature extends this bar to his dues to the government controlled banks? The Legislature has not imposed similar bar against persons seeking election to Parliament because it has treated members of Parliament as a separate class and in making classification of persons and things it is not bound by any inflexible standard disregarding vital points of differences. Dead uniformity in making a classification is not necessary and rules of classification may allow flexibility. As Plato said in his 'Politicus' laws would operate like an obstinate and ignorant tyrant if they impose inflexible rules without allowing for exceptional cases. If a law is applicable to all persons of a well defined class, then it cannot be criticised on the ground that similar law has not been made for application to members of other classes. Exclusion of members of the other class, namely the parliament from this law, which is undisputedly a beneficial one, is certainly unethical and morally undependable; but it is not unconstitutional. It is not invalid because it is uniformly applicable to all persons of the same class, namely members of local bodies. When the Legislature thought it expedient in the national interest to provide for the impugned disqualification for members of local bodies, they should have provided for similar disqualification for themselves by amending the Representation of the People Order, 1972. Exclusion of members of Parliament is found to be an omission of grave impropriety, which however, may be corrected even now by the law makers themselves, if not required by any law, at least by dictates of good conscience and high sense of patriotism. But exclusion of members of one elective body from a particular disqualification cannot be a ground for attacking the validity of the law in respect of other local bodies; those who are disqualified to seek election to local bodies face no discrimination if they seek election to Parliament, and secondly, there is no inter se discrimination among members of the elective bodies.
42. The right to seek election to the local bodies or even to the Parliament is not fundamental right guaranteed by the Constitution; it is a statutory right and in the instant case, created by the Union Parishad Ordinance, 1983. Nevertheless, to be a candidate for election is a democratic right which must be jealously guarded and effectively protected against any invasion from any quarter. Thwarting this right by creating artificial classification among the people or attaching 'disqualification' for extraneous consideration will cut at the root of the democratic set up of the republic. In this connection I like to refer to two decisions of the U.S. Supreme Court, one in Doland Paul Lublin Vs. Leonard Panish, US-SCR—39 L. Ed-2nd, 415-709; and the other in Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134. In the first mentioned case, the appellant sought nomination for election to the Country Board of Supervisors. A law of his State Legislature required of a candidate a 'filing fee' before he submits his nomination paper. The appellant was unable to pay the fee and challenged the Statute itself in Court contending that it is discriminatory against him vis-à-vis other candidates who are rich and capable of paying the fee which stands in the way of exercising democratic right. His contention was ultimately upheld by the Supreme Court by a unanimous decision of seven Judges in which it was observed that the provisions requiring filing fee violated the equal protection of law guaranteed by the 14th amendment of the Constitution; it also violated the right of free expressions of democratic views of electors who are deprived of casting their votes in favour of the candidate of their choice. In the other case, similar filing fee for persons seeking election to Texas Democratic Primary for country office was required by the State legislation. This provision of the statute was challenged as violating the equality clause of the 14th amendment; the challenge was upheld, the statute was declared unconstitutional being violative of equal protection of law of the 14th Amendment and was struck down by the Supreme Court.
43. Those cases, we find, are distinguishable from the instant case in that there the persons seeking election did not by their own volition incur the financial disqualification, but the disqualification was imposed by law requiring payment of high amount of filing fee which many candidates found difficult to pay. In the instant case, it is the appellant himself who borrowed the money from bank for his own benefit but did not repay it.
44. In the result, we find that the provision in section 7(2)(g) of the Union Parishad Ordinance, 1983, is not discriminatory but is constitutionally valid. The appeal is, therefore, dismissed. The order of stay granted by this Court is vacated and the appellant's election as Chairman of the Union Parishad in question is set aside. He is directed to vacate his office at once. Fresh election may be held by the Election Commission. In view of the important question of law involved in this appeal we make no order as to costs.
M.H. Rahman J.
I have read the judgments of brother Shahabuddin Ahmed and brother A.T.M. Afzal. I agree that the appeal should be dismissed. As I hold a slightly different view on one or two points I think I should give my own reasonings.
46. The appellant's nomination-paper for election lo the office of the Chairman of Borashi Union Parishad was rejected by the Returning Officer on the ground that he was disqualified from seeking election under S.7(2)(g) of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) as he defaulted in repaying the loan he had taken from the Janata Bank and Krishi Bank at Gopalganj.
47. The appellant contends that he is similarly circumstanced with a Member of the Parliament, both being a representative of the people elected by the electors on the basis of adult franchise, but the Legislature in violation of Art. 27 of the Constitution provided a different disqualification in his case by inserting a new clause, clause (g) in sub-section 2 of Section 7 of the Ordinance No. LI of 1983 by sect. 6 of the Local Government (Amendment) Act, 1987 (Act XXIII of 1987).
48. The appellant's contention may appear irresolvable when one hurriedly glances through the respective provisions for disqualification for election. Art. 66 (2) of the Constitution provides:
"66. (2) A person shall be disqualified for election as, or for being, a member of Parliament who—
(a) is declared by a competent court to be of unsound mind;
(b) is an undischarged insolvent;
(c) acquires the citizenship of, or affirms or acknowledges allegiance lo, a foreign state;
(d) has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless a period of five years has elapsed since his release;
(dd) holds any office of profit in the service of the Republic other than an office which is declared by law not to disqualify its holders;
(g) is disqualified for such election by or under any law."
Proviso to Art. 12 of the Representation of the People Order, 1972 (P.O. No. 155 of 1972) provides for another disqualification for election to Parliament-
"Provided that a person shall be disqualified for being a member if he, whether by himself or by any person or body of persons in trust for him or for his benefit or on his account or as a member of a Hindu undivided family, has any share or interest in a contract, not being a contract between a co-operative society and Government, for the supply of goods, to or for the execution of any contract or the performance of any services undertaken, Government."
Sub-section 2 of Section 7 of the Local Government (Union Parishads) Ordinance 1983 reads as follows:
"7. (2) A person shall be disqualified for election or nomination as, or for being, a Chairman or a member if—
(a) he is declared by a competent court to be of unsound mind;
(b) he is an undischarged insolvent;
(c) he has ceased to be a citizen of Bangladesh;
(d) he has been, on conviction for a criminal offence involving moral turpitude, sentenced to imprisonment for a term of not less than two years, unless 9 periods of five years has elapsed since his release;
(e) he holds any full-time office of profit in the service of the Republic or of the Union Parishad or of any other local authority; or
(f) he is a party to a contract for work to be done for, or goods to be supplied to, the Union Parishad concerned, or has otherwise any pecuniary interest in its affairs, or is a dealer in essential commodities appointed by the Government.
(g) he has defaulted in repaying any loan taken by him from any specified bank within the lime allowed by the bank therefore."
Clause (g) was inserted by Sect. 6 of the Act XXIII of 1987, the impeached legislation. It is submitted that in view of similar provisions for disqualification in the two laws passed by the same Legislature insertion of the new financial disqualification, clause (g), without making a corresponding provision in case of a member of the Parliament has violated Art. 27 of the Constitution. It is suggested that such a provision can easily be made by amending P.O. 155 of 1972.
49. It is not necessary to examine in this case whether in view of clause (b) of sub-Art. 2 of Art. 66 of the Constitution any financial disqualification like the impugned clause (g) can be added by making an amendment in P.O. 155 of 1972. I find it more important to point out that in case of the member of the Parliament all provisions for disqualification except the one provided in Art. 12 of P.O. 155 of 1972 are provided in the Constitution. This is important because of the initial objection raised by the appellant’s opponent, respondent 9, that the disqualifications for two different categories of representatives of people having been provided under two separate laws governing distinctly two separate institutions, the question of violation of Art. 27 can not be tested by comparing the two sets of laws, Reliance has been placed on State of Madhya Pradesh Vs. Mandawar, AIR 1954 (SC) 493.
50. In reply to that objection the appellant relied on the following observation made in para 9 of the report of that case;
"It is conceivable that when the same Legislature enacts two different laws but in substance they form one, legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their, conjunction they result in discrimination."
51. No case was cited to show whether the Indian Supreme Court had any occasion to consider the useful hypothesis. For a clear understanding of the ratio decidendi of that case I think I should quote the sentence preceding that observation as well as the sentences following it:
"This power of the Court to declare a law void under Article 13 has to be exercised with reference to the specific legislation which is impugned. It is conceivable that when the same legislature enacts two different laws but in substance they form one legislation, it might be open to the Court to disregard the form and treat them as one law and strike it down, if in their conjunction they result in discrimination. But such a course is not open where, as here, the two laws sought to be read in conjunction are by different Governments and by different Legislatures. Article 14 docs not authorise the striking down of a law of one State on the ground that in contrast with a law of another State on the same subject its provisions are discriminatory. Nor does it contemplates a law of the Centre or of the State dealing with similar subjects being held lo be unconstitutional by a process of comparative study of the provisions of the two enactments. The sources of authority for the two statutes being different, Article 14 can have no application".
That decision has been consistently followed by the Indian Supreme Court: see Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117, it was contended that Tamil Nadu Rent Act was violative of Art. 14 of the Indian Constitution as in that law, unlike many other Rent Acts in India, there was no provision for re-induction of the tenants in the premises after reconstruction. After referring to Mandawar's case the Indian Supreme Court rejected the contention.
52. The two sets of laws in the instant case cannot be termed as one law, though they were passed by the same Legislature. They are classes apart. The impeached legislation govern only those, and governs them equally, who aspire to be elected to a Local Government institution. The appellant, despite his disqualification to the office of the Chairman of the Union Parishad, will not be debarred from contesting, an election for the membership of the Parliament, if he is otherwise qualified. The Legislative sanctions behind the two sets of laws are also dissimilar. The laws relating to disqualification for election to Parliament excepting the one provided in P. 0. 155 of 1972, can only be amended by two-thirds of the total number of Members of the Parliament. The law relating to the Chairman or member of the Union Parishad can only be amended by a simple majority like any other ordinary law. For this singular distinction I hold that the two sets of laws in the instant case are not comparable for an enquiry into the constitutionality of the impeached legislation.
53. The similarity between a Member of the Parliament and a member of a local body is literally nominal, confined only to the nomenclature of the "representative of the "People". The Local Government institutions in our country had always been under the tutelage of the Government. With the commencement of the Constitution of 16th December, 1972 the concept of Local Self-Government had a promising start. One of the Fundamental principles of State policy was provided in Art. 11 which reads as:
"The Republic shall be a democracy in which fundamental human rights and freedoms and respect for the dignity and worth of the human person shall be guaranteed, and in which effective participation by the people through their elected representatives in administration at all levels shall be ensured." (Underlining is mine) There was a separate chapter in Part IV of the Constitution, Chapter II containing articles 59 and 60, for the Local Government".
54. In 1975 by the Fourth Amendment the constitutional structure for the Local Government was radically changed. By Section 2 of Act II of 1975, the comma and all the words after the word ' "guaranteed" in Art. 11 were omitted. Two years after with a view to promoting Local Government institutions the Proclamation (Amendment) Order, 1977 (Proclamations Order No. 1 of 1977) substituted old Art. 9 by the following:
"9. The State shall encourage Local Government institutions composed of representatives of the areas concerned and in such institutions special representation shall be given, as/far as possible, to peasants, workers and women (underlining is mine)".
55. The difference 'between the terms 'ensures' and 'encourage' hardly needs an underlining. The Local Government institutions are now under the fostering care of the Government. The provision for encouraging Local Government institution as enjoined under Art. 9 is directory in nature. On the other hand the establishment of a Parliament has been provided in Art. 65 of the Constitution. The Parliament has been invested with the legislative powers of the Republic. Art. 72 provide there shall be at least two sessions of Parliament in every year. Arts. 65 and 72 are mandatory provisions of the Constitution.
56. The learned Counsel for the appellant has strenuously argued that the Legislature had no clear objective when Act XXIII of 1987 was passed. In the preamble the object of the legislation was not at all spelt out. It is submitted that if the recovery of the loans taken from the Stale-owned Banks were the real object then that object could have been better realised by subjecting all kinds of representatives of the people to the same financial disqualification.
57. In modern day legislations the long-winded whereas—expressions have been given a go-bye. I do not find any fault for not mentioning the object in the laconic preamble of the impeached legislation. A mere reading of the law makes the object clear. The object is not the recovery of the loan as suggested by the learned Counsel. The Object is to debar the defaulters from being a member of the local body. It is package legislation. It provides for similar provision for the Paurashabhas, Municipal Corporations, Upazila Parishads and Union Parishads. The rationale for the insertion of new disqualification in case of the members of the local bodies will be abundantly clear if we consider the financial functions of the two different categories of the representatives of the people.
58. While a member of the Parliament has no specific function as to the custody, receipt or disbursement of any public money the Union Parishad has been invested under sections 44 and 45 with extensive powers as to the custody and application of the Union Fund constituted under section 43 of the Ordinance No. LIX of 1983. Those sections have been quoted in the judgment of brother A.T.M Afzal. I need not quote them again. The rational behind the impeached legislation is simple. A person who defaults in repaying his own loans can not be entrusted with wide powers of governance and management of a public fund. In view-of the above, I hold that the rule of parity that enjoins equal treatment of equals in equal circumstances is not attracted in this case. The impeached legislation is not viola-live of Art. 27 of the Constitution.
59. The learned Counsel for both the appellant and respondent No. 9 have questioned the wisdom and propriety of the Legislature in not providing a disqualification similarly to the impeached one in the case of the members of the Parliament. Wisdom and propriety are non-issues in the statute jurisdiction of this Court. When the constitutionality of a statute is challenged the members of the Parliament are not arraigned before the Court. When the Court strikes down legislation no legal consequence follows affecting the members of the Parliament. A member of the Parliament is not answerable to the Court for his legislative functions. He is only answerable to his electors. If the electors are dissatisfied with his work they can give him a lesson by refusing lo reelect him. For a politician that would be a great lesson, indeed, but that is the only democratic means available to the electors for expressing their disapproval to a statute whose constitutionality is otherwise in order.
60. Art. 21 of the Constitution, however, enjoins that it is the duty of every citizen to observe the Constitution. In making a law if the members of the Parliament fail to observe the Constitution then this Court shall remedy that wrong by striking that law down, but what norm other than what is provided in the constitution, should be followed or upheld in making a legislation must be left with the members of The Parliament themselves. Citizens, however, expect that their representatives will set an example worth the trust and the confidence put in them by their electors.
A.T.M. Afzal J.
While I agree with the decision of my learned brother Shahabuddin Ahmed, J. I feel tempted to add a few words because of the prime nature of the question raised in our jurisdiction.
62. The appellant, a candidate for the office of Chairman of an Union Parishad, alleges that the 'disqualification' on the ground of being a defaulter in repaying loan to any specified bank attached to a person seeking election to an Union Parishad as per Section 7(2) (g) of the Local Government (Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) is discriminatory because there is no such 'disqualification' provided in the case of election to Parliament. The argument rests on the Constitution-al assurance of equality before law and equal protection of law, a fundamental right, as enshrined in Article 27 of our Constitution which reads;
"All citizens are equal before law and are entitled to equal protection of law".
63. Mr. T. H. Khan, learned counsel for respondent No.9, raised an initial objection contending that qualification and disqualification for election to Parliament & Local Government bodies having been provided under separate laws governing the two separate institutions, one distinct from the other, and there being no discrimination as far as the local bodies are concerned, the question of alleged violation of equality under Article 27 docs not arise. Provisions of two distinct and separate laws cannot be read together, he submits, for invoking the protection of Article 27. I do not consider the objection to be sound. The laws may be different but the field of legislation is the same and they are enacted or capable of being enacted by the same Legislature. The Supreme Court of India in State of Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493 held that "it is conceivable that when the same Legislature enacts two different laws but in substance they form one legislation, it might be open to the court to disregard the form and treat them as one law and strike it down if in their conjunction they result in discrimination."
64. The question pointedly raised is, why the 'disqualification' of being a defaulter should attach to an election to a local government body only and not to that of Parliament. The provision for such 'disqualification' affecting a person seeking election to a local government body, therefore, offends the guarantee under Article 27.
65. In order to lest the validity of the argument it will be necessary to consider the meaning and scope of Article 27. In the 1956 Constitution of Pakistan it was Article 5(1) and in 1962, Article 15. This Article corresponds to Article 14 of the Constitution of India which reads thus:
"The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India".
This again corresponds to the last clause of the first section of the Fourteenth Amendment of the American Constitution which reads as follows:
1. "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any state deprive any person of life, liberty, or property without due process of law; nor deny to any person with its Jurisdiction the equal protection of the laws."
66. This provision of 'equality before law’ and 'equal protection of law’. The first clause has been regarded by American Judges as The "basic principle of republicanism and the second 'a pledge of the protection of equal laws' has been the subject of discussion by eminent authors and judges in numerous cases particularly in the United States of America and India. The broad principles governing the application and extent of the Article in question have been iterated and reiterated in so many cases that "it would be an idle parade of familiar learning to review the multitudinous cases in which the constitutional assurance of equality before the law has been applied" observed Mathew, J. in A.I.R. 1974 S.C. 1300. In later decisions AIR 1979 S.C. 478 and AIR 1981 S.C. 2138 Chandrachud CJ. and Bhagwali, J. (as he then was) respectively observed the propositions applicable to cases arising under Article 14 have been repealed so many times during the last 30 years in course of "the avalanche of the cases which have flooded this court" since the commencement of The constitution the they now sound almost platitudinous.
67. I shall, therefore, refrain from making copious reference to the decisions cited at the Bar beginning from the case of Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa Pochanna AIR 1985 S.C. 389 besides some cases from the American Jurisdiction. Nevertheless, I propose to project a Kaleidoscopic view of the wisdom and learning through the books referred to us and try to find out normative generalizations which are accepted on all hands.
68. It will be seen that the Indian Court's view has been moulded on the American lines and it is perhaps imperative to begin with Professor Wills who in his book "Constitutional Law" Edn. 1 p.578 summed up the law as to the Fourteenth Amendment thus:
"It forbids class legislation, but docs not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited cither in the objects to which it is directed or by the territory within which it is to operate. 'It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed'. The inhibition of the amendment was designed to prevent any person or class of persons from being singled out as a special subject for discriminating and hostile legislation". It does not take from the Slates the power to classify either in the adoption of Police laws or lax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis. If any state of facts can reasonably be conceived to sustain a classification, the existence of that state of facts must be assumed. One who assails a classification must carry the burden of showing that it does not rest upon any reasonable basis."
69. It appears the all the decisions whether in America, India or Pakistan have echoed and reechoed in different language the view expressed above and are unanimous on the following propositions relating to the guarantee under Article 27:
1. The principle of equality docs not mean that every law must have universal application for all persons who are not by nature, attainment or circumstances in the same position and the varying needs of different classes of persons require separate treatment.
2. It requires the all persons shall be treated alike, under like circumstances and conditions, both in the privileges conferred and in the liabilities imposed.
3. It forbids class legislation but it docs not forbid reasonable classification for the purpose of legislation. In order, however, to pass The test of permissible classification two conditions must be fulfilled, namely, (i) that the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) the differentia must have a rational relation to the object sought to be achieved by the statute in question. The classification may be founded on different bases, namely, geographical or according to objects or occupations or the like, what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration.
4. The Suite, in the exercise of its government power, has of necessity to make laws operating differently on different groups or classes of persons to attain particular ends in giving effect to its policies, and it must possess for that purpose large powers of distinguishing and classifying persons or things lo be subjected lo such laws. The laws can make and set apart the classes according to the needs and exigencies of the Society and as suggested by experience. It can recognise even degree of evil, but the classification should never be arbitrary, artificial or evasive.
5. To overdo classification, however, is to undo equality. The doctrine of classification should not be carried to a point where instead of being a useful servant, it becomes a dangerous master, for otherwise, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterised by different and distinct attainments.
6. The Courts should not insist on delusive exactness or classification in any given case. Classification is justified if it is not palpably arbitrary.
7. There is always a presumption in favour of the Constitutionality of a Statute and the burden is upon him who attacks it to show that there has been a clear transgression of the Constitutional principles. This rule is based on the assumption, judicially recognised and accepted, that the Legislature understands and correctly appreciates the needs of its own people, its laws are directed to problems made manifest by experience and its discriminations are based on adequate grounds.
70. As far as, the aforesaid principles are concerned, the learned counsel appearing in this case do not join any issue but they have tried to put occasional emphasis on certain observations made in the reported judgments according to their respective advantage. Indeed there has hardly been any dispute on the question of principles; the difficulty is created in their application to concrete case. No two cases are similar in facts although the question raised is the same, i.e. of discrimination. The courts have always objectively considered the impugned provision in question in each case in the light of the aforesaid principles for an answer to the charge of violation of the constitutional guarantee as under Article 27.
71. However it is interesting to find, observed Patanjali Sastri CJ. in the case of Anwar Ali Sarkar AIR 1952 SC 75 that the trend of recent decisions in America has been to lean strongly towards sustaining State action both in the legislative and in the administrative spheres against attacks based on hostile discrimination and "the farthest swing of the pendulum" is to be found in the case of Kotch Vs. River. Port Pilot ‘Comm’rs (1947) 330 U.S. 552. It says:
"The Constitutional Command for a Slate to afford equal protection of the laws sets a goal not attainable by the invention and application of a precise formula. This Court has never attempted that impossible task. A law which affects the activities of some groups differently from the way in which it affects the activities of other groups is not necessarily banned by the 14th Amendment. Otherwise, effective regulation in the public interest could not be provided, how ever essential that regulation might be."
72. All that have been argued by Kh. Mahbubuddin Ahmed in support of his contention of discrimination is that there is no reasonable basis of differentiation between a member of the Parliament and a member of the Local Government body, they belong to one class and that is, they are representatives of the people, elected by the same electorate on the basis of adult franchise. The qualification and disqualification for seeking election in both cases have hitherto been the same. Now an additional disqualification has been provided for election in the local government body only. He has submitted that even if it be conceded that there is some recognisable basis of difference between the two bodies yet the impugned provision will offend Article 27 because there is no nexus between the basis of difference and the object sought to be achieved by the impugned provision.
That there is an 'intelligible differentia' between Parliament and a Local Government body will not perhaps be resisted except by an unrepentant diehard. Parliament is an institution created under the Constitution and vested with the legislative powers of the Republic whereas a Local Government body is a creature of ordinary law and entrusted with the authority of local administration only. They are legally, historically and functionally different even though they consist of peoples' representatives. I need not dilate any further because my learned brother Shahabuddin Ahmed, J. has considered the matter at length and found that although people's representative they belong to separate class. I venture to think that Kh. Mahbubuddin Ahmed also did not consider himself on particularly strong ground as to the first part of his submission. So he put all emphasis on the second part contending that the disqualification of being a defaulter in the case of a Local Government body only docs not bear any rational relationship with the basis of difference between it and the Parliament. He submits that if the provision of 'disqualification' of being a defaulter was fell so necessary in the public interest, could there be any good reason to attach the same only in case of election to the Local Government body and exclude the members of the Parliament from its operation. What is sauce for the goose should be sauce for the gander, he argues.
73. In answer to the last part of the second submission, apart from the principles referred to in item 4 above, 1 shall quote Hughes CJ. in West Coast Hotel Co. Vs. Parrish, (1936) 300 U.S. 379 at page 400:
"This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all classes which it might possibly reach. The legislature is free to recognise degree of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest. If the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied. There is no 'doctrinaire requirement' that the legislation should be couched in all embracing terms."
74. In the same vein Bhagwati, J. said in the case of Sakhawat Ali AIR 1955 SC 166:
“*********** that legislation enacted in the achievement of a particular object or purpose need not be all embracing. It is for the legislature to determine what categories it would embrace within the scope of legislation and merely because certain categories which would stand on the same footing as those which are covered by the legislation are left out would not render legislation which has been enacted in any manner discriminatory and violative of the fundamental right guaranteed by Article 14 of the Constitution".
75. Mr. Ahmed contended as part of his submission that impugned legislation on the face of it is bad in any case because it does not inform or lay down the object and purpose for which it was enacted. The law does not say why the disqualification was attached to Local Government body only leaving out the Parliament.
76. A law cannot be struck down merely because it fails to spell out the particular objective of provision in the legislation itself. In the instant case the impugned clause (g) was brought in by the Local Government Laws (Amendment) Act, 1987 (Act XXIII of 1987) apparently for the purpose of providing an additional 'disqualification' for a person seeking election to an Union Parishad. For the purpose of withstanding a challenge to its constitutionality as being violative of Article 27 it was to stand the test of justification for being attached to Local Government body election only. And for that, to begin with, item 7 of the propositions as above will be attracted, i.e., the court will presume the Constitutionality of a Statute until shown otherwise. Bhagwati, J. in the case of R.K. Garg Vs. Union of India AIR 1951 SC 2138 reiterated that "the presumption of Constitutionality is indeed so strong that in order to sustain it, the Court may take into Consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation".
77. Taking a cue from the said observation, Mr. T. H. Khan argued, that it is a matter of common knowledge, a fact of life, that non-repayment of loan to the public loan-giving agencies (specified banks) has taken such proportions that the economy of the country has been adversely affected. The threat of "disqualification" for being a defaulter to persons seeking election in the local government bodies will be a great incentive for repayment of the said loans which ultimately will benefit the economy and the country. Beneficial as it is the court will not undo such legislation on the ground that its wholesome provision has not been made operative in the case of members of Parliament. Mr. Khan, an ex-member of Parliament and once a Law Minister himself has urged that instead of undoing the good work done by the Parliament in providing the 'disqualification' for being a defaulter in the Local Government election, this court should recommend similar provision to be made in case of Parliament election also on the general principle that 'example is better than precept'. While I appreciate the moral tenor of Mr. Khan's submission and indeed the reasons, to some extent, for upholding the impugned piece of legislation, I do not think that his arguments have completely answered the second branch of Mr. Mahbubuddin's contention upon which he laid stress over again.
78. Now coming to that part, I think the submission made by the learned Attorney General has squarely met the said contention on constitutional premises. The substance of his submission is that the 'disqualification' as provided in the impugned legislation has got a direct relationship with those considerations which distinguish the Parliament from a Local Government body. Thus the two tests, that of reasonable classification and nexus between the basis of classification and the object of the legislation, having been satisfied, the learned Attorney-General concluded, the challenge to the constitutionality of section 7(2)(g) docs not hold good.
79. It has been noticed that both historically and legally the functions of the two bodies—that of Parliament and Local Government body, are different and it is this characteristic which mainly distinguishes one from the other. I shall presently consider the Union Parishad only vis-à-vis the Parliament. One of the important functions of the Union Parishad relates to dealing with public funds. If one goes to the roots, it will be seen that since the creation of the 'Union-Board,' predecessor of the present day Union Parishad, under the Bengal Village Self-Government Act, 1919, provision has been made for a "Union Fund". This Union Fund has grown in bulk and size over the years and its application expanded greatly with the ever-expanding area of activity assigned to a Union Parishad.
80. In order to appreciate how much public money are in the hands of an Union Parishad and how wide are its powers in dealing with such public money it is necessary to sec the provisions of section 43, 44 and 45 of the Local Government (Union Parishads) Ordinance, 1983.
43. Constitution Union Fund.-(1) For every Union Parishad there shall be formed a fund which shall be known as the Union Fund.
(2) To the credit of a Union Fund formed under sub-section (1) shall be placed—
(a) the balance of such fund as on the coming into force of this Ordinance is at the disposal of the Union Parishad of which the Union Parishad concerned is the successor;
(b) the proceeds of all taxes, rates, fees and other charges levied by the Union Parishad under this Ordinance.
(c) all rents and profits payable or accruing to the Union Parishad from the property vested in or managed by the Union Parishad;
(d) all sums received by the Union Parishad in the performance of its functions under this Ordinance or under any other law for the time being in force;
(e) all sums contributed by individuals or institutions or by any local authority;
(f) all receipts accruing from the trusts placed under the management of the Union Parishad;
(g) all grants made by the Government and other authorities;
(h) all profits accruing from investments; and
(i) such proceeds from such sources of income as the Government may direct to be placed at the disposal of the Union Parishad.
44. Custody or investment of Union Fund and establishment of Special fund. - (1) The moneys credited to a Union Fund shall be kept in Government treasury, or in a bank transacting the business of a Government treasury, or in such other manner as may be specified by the Government from time to time.
(2) A Union Parishad may invest any portion of the Union Fund in such manner as may be prescribed.
(3) A Union Parishad may, and if required by the Government shall, establish and maintain a separate fund for any special purpose, which shall be administered and regulated in such manner as, may be prescribed.
45. Application of Union fund.- The moneys from time to time credited to a Union Fund shall be applied in the following order of preference:-
First, in the payment of salaries and allowances to the officer and employees of the Union Parishad;
Secondly, in meeting the expenditure charged on the Union Fund under this Ordinance;
Thirdly, in the fulfillment of any obligation and in the discharge of any duly imposed on a Union Parishad under this Ordinance or under any other law for the time being in for
Fourthly, in meeting the expenditure declared by the Union Parishad with the previous sanction of the Upazila Parishad or the Thana Parishad, as the case may be, to be an appropriate charge on the Union Fund; and
Fifthly, in meeting the expenditure declared by the Government to be an appropriate charge on a Union Fund.
81. On the other hand, Parliament has no such public fund at its disposal and it is no part of its business to engage in spending public money. There may be a popular belief that Parliament have also to deal with public fund in' the sense that it has to approve the national budget. Yes, it docs but that is only a part of the Parliament's legislative function. It never sees the colour of the Money as does an Union Parishad every day, seven days a week.
82. In this context having regarded to the financial duties and responsibilities and Union Parishad, is it very difficult to see the import of the 'disqualification' of being a defaulter attached to a person seeking election in the Union Parishad? A man who is himself a defaulter in repaying public money is certainly not the ideal person to be entrusted with public fund. To allow such a defaulter to deal with public fund is to ignore the conflict that must arise between his liability and public duty — a situation which cannot be in the public interest and welfare, f have, therefore, no hesitation to hold that the impugned legislation qualifies the second test also and the challenge to its constitutionality as offending Article 27 must fail.
83. Mr. Mahbubuddin submitted that it may not be denied that the new 'disqualification' is a measure in the public interest but the members of the Parliament having not subjected themselves to such a 'disqualification' have acted malafide in attaching the same only to local body election. Mr. T. H. Khan only deplored, what he called, the lapse on the part of the Parliament and asked for a recommendation as already stated.
84. I do not think that this court has any duty under the Constitution to offer unsolicited advice as to what the Parliament should or should not do. As long as the law enacted by it is within the bounds of the Constitution it will be upheld by this court but if the law is otherwise open to criticism, it is for the Parliament itself to respond in the manner it thinks best. The new 'disqualification' the Parliament has not attached to persons seeking election to it (The House of the Nation) which means that a defaulter in repaying public money can sit in the House of the Nation with glory but he cannot sit in the Union Parishad or a local body. The members of the Parliament owe an answer to this, not the Court. But now that they have declared Islam as the State Religion of the Republic by the Constitution (Eighth Amendment) Act, 1988, 1 shall content myself by reminding them two verses from the Holy Koran Translation:
2. Ye who believe why say ye that which ye do not?
3. Grievously odious is it in the sight of God that ye say that which ye do not. (Sura Saff Ayat 2 and 3) I wish to record my appreciation for the learned Attorney-General for making available all the books cited by the parties in this case.
For the reasons, the appeal fails.