Delhi High Court
Satya Narayan Prasad vs Union Of India & Ors on 24 August, 2017
$~14
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C)No.7374/2017 and CM Nos.30434-36/2017
% Date of decision : 24th August, 2017
SATYA NARAYAN PRASAD ..... Petitioner
Through : Petitioner in person.
versus
UNION OF INDIA & ORS ..... Respondents
Through : Mr. Arun Bhardwaj, CGSC.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. This writ petition purporting to be in public interest states in
para (iv) of the grounds that the petitioner "wants that this method of
Election for member of Rajyasabha should be changed modified and
reconsidered by Election Commission as well as by the ministry of
Law and Justice, govt. of India. Wherein the govt. of India and
Election Commission of India should frame/pass rules and regulations
in this context that defeated leader in Loksabha/Vidhan Sabha
Election cannot be elected as member of Rajyasabha and also cannot
be appointed as the minister of the ruling party." Additionally, in para
(v), the petitioner seeks information from the Ministry of Law and
Justice as to "under what provision/rule/law, defeated leader of Lok
Sabha/Vidhan Sabha election are again nominated and elected as
member of Rajya Sabha Election. But Election Commission of India
has not given detail information in this context and stated that there is
no legal restriction and provision that defeated leader in Lok
Sabha/Vidhan Sabha Election has not contest in the Election of Rajya
Sabha. In the same way Ministry of Law and Justice has also failed to
give sufficient information in this context and mention that the
Government of India is abided by whatever provision given in Article-
84 of Indian Constitution. Wherein qualification for member of
council of state (Rajyasabha) has been already given".
2. Premised on the above grounds, the following prayer is made :
"1. Issue writ of mandamus or order or direction to the
respondent to impose restriction/ban on those leaders who
have lost their election in Lok Sabha or Vidhan Sabha
election to again contest in the Election of Rajya Sabha for
five years."
It is apparent from the above that the writ petitioner wants this
court to legislate and prescribe conditions as to the eligibility of a
person to be nominated as a member of the Rajya Sabha.
3. Mr. Arun Bhardwaj, Central Government Standing Counsel for
the respondents has drawn our attention to the letter dated 22 nd May,
2017 whereby the Ministry of Law and Justice has clearly informed
the petitioner as follows :
"F.No.H-11021/7/2017-Leg-II
Government of India
Ministry of Law & Justice
Legislative Department
4th Floor, "A" Wing
Shastri Bhawan
New Delhi the 22 May, 2017
To
Shri Satyaa Narayan Prasad,
AB-431/2, Amarpuri, Nabi Karim
New Delhi-110055
Subject : Writ petition (Civil) No.1222 of 2017 - in the matter of
Shri Satya Narayan Prasad Versus Ministry of Law &
Justice & another before Hon'ble Delhi High Court -
regarding.
Sir,
I am directed to refer to the directions of the Delhi High Court
dated 21/4/2017 in Writ Petition (Civil) No.1222 of 2017 and to say
that articles 102 and 191 of the Constitution of India and Part II and
Chapter III of the Representation of the People Act, 1951 contain
detailed provisions for disqualification for membership of Parliament
and State Legislatures. A perusal of teh said provisions would make it
clear that the existing constitutional and statutory scheme of laws
relating to elections does not envisage disqualification for
Membership of Rajya Sabha on the ground of defeat of a candidate in
Lok Sabha/State Assembly elections. You may kindly appreciate that
the founding fathers of the Constitution in their collective wisdom did
not consider such a provision to be circumscribed by the tenets of the
democratic system of governance envisioned for the country.
Apart from the above, I may state that the electoral reforms in
its entirety was examined by the Law Commission of India which,
after consulting various stake holders including political parties,
Election Commission etc., submitted its 244th and 255th Reports
containing recommendations on a wide spectrum of electoral issues.
However, the Law Commission has not made any recommendation
for disqualification of a person for membership of Rajya Sabha on
the ground of defeat of a candidate in Lok Sabha/Assembly
elections.
Yours faithfully,
s/d
(KK Saxena)
Deputy Secretary to the Govt. of India
Telefax:2338 4603"
(Emphasis by us)
4. Mr. Arun Bhardwaj also places reliance on the pronouncement
of the Supreme Court reported at (2005) 13 SCC 287, Suresh Seth v.
Commissioner, Indore Municipal Corporation & Ors.
5. In this case, a similar prayer made before the Supreme Court for
amendment in the M.P. Municipal Corporation Act, 1956 in Suresh
Seth was rejected by the court holding as follows :
"5. Learned counsel for the appellant has also submitted that
this Court should issue directions for an appropriate
amendment in the M.P. Municipal Corporation Act, 1956 so
that a person may be debarred from simultaneously holding
two elected offices, namely, that of a member of the
Legislative Assembly and also of Mayor of a Municipal
Corporation. In our opinion, this is a matter of policy for the
elected representatives of people to decide and no direction in
this regard can be issued by the Court. That apart this Court
cannot issue any direction to the legislature to make any
particular kind of enactment. Under our constitutional
scheme Parliament and Legislative Assemblies exercise
sovereign power to enact laws and no outside power or
authority can issue a direction to enact a particular piece of
legislation. In Supreme Court Employees' Welfare
Assn. v. Union of India[(1989) 4 SCC 187 : 1989 SCC (L&S)
569] (SCC para 51) it has been held that no court can direct a
legislature to enact a particular law. Similarly, when an
executive authority exercises a legislative power by way of a
subordinate legislation pursuant to the delegated authority of
a legislature, such executive authority cannot be asked to
enact a law which it has been empowered to do under the
delegated legislative authority. This view has been reiterated
in State of J&K v. A.R. Zakki [1992 Supp (1) SCC 548 : 1992
SCC (L&S) 427 : (1992) 20 ATC 285] . In A.K. Roy v. Union
of India [(1982) 1 SCC 271 : 1982 SCC (Cri) 152] it was held
that no mandamus can be issued to enforce an Act which has
been passed by the legislature. Therefore, the submission
made by the learned counsel for the appellant cannot be
accepted."
(Emphasis by us)
These principles bind this court.
6. It is therefore, well settled that it is not open to this court to
legislate on the present issue or issue directions in terms of the prayers
made by the petitioner in the instant writ petition.
7. In view of the above, the present writ petition is clearly
misconceived and the prayer made herein cannot be granted.
This writ petition and applications are dismissed in the above
terms.
ACTING CHIEF JUSTICE
SANGITA DHINGRA SEHGAL, J
AUGUST 24, 2017
aj
