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Date ofDecision:2Cf^November,2019
ASHWINIKUMAR UPADHYAY Petitioner
Through: Petitionerin person
Through: Ms.Monika Ardra,CGSC with Mr.KushM Kumar Adv.for UOI
HON'BLE MR.JUSTICE C.HARISHANKAR D.N.PATEL.ChiefJustice
1. iJ-;,> This Public Interest Lttigatip^ h^Sribeen preferred with the following prayers:
"a)Issue a direction including writ in the nature ofmandamus or such other writ, order or direction as may be necessary;, to declare the Sections 8 and 9 of the
Representation offhe^R^lc;.Ac^Mifimconstitutional and void as they restrict disqualification period up to6years only and allow convicted person to contest Parliament/Assembly
Elections and thus are inconsistent with Article 14 of the
Constitution ofIndia; b) Issue a direction or order or writ including writ in the nature ofmandamus or such other writ, order or direction as may be necessary; directing the respondents to implement the
Election Commission's Proposed Electoral Reform and Law
Commission Report No-244 and 255, which is necessaryfor decriminalization andde-communalization ofPolitics;
W.P.
(C)5591/2016 Page1 of6 2019:DHC:7720-DB L 0^ c) Issue such other writ; order or directions as may be necessary, directing the respondents to set Minimum
Educational Qualification and Maximum Age Limit for contesting candidates in spirit ofthe Apex Court
JUDGMENT
Rajbala & Others Vs State ofHaryana."
2. Petitioner appearing in person submits that prayers(a)and(b)are not pressed. It is further submitted by the party in person that this matter has been argued out only for prayer (c) which is for prescribing minimum qualification as well as for prescribing maximum age limitfor contesting the elections of the Council of States (Section 3 of the Representation of the People Act, 1951),for contesting election ofHouse ofPeople(Section 4 of the representation ofthe People Act,.1951)as well as for contesting election for State Legislative Assemblies (Section:5 of the Representation of the People Act,1951)..
3. Having heard the counsplfor both the sides and looking to the facts and circumstances ofthe case, it;appears(hat this petitioner is in search of amendmentto Sections 3,4;^#^i]|epresentation ofthe People Act, 1951 prescribingthe qualific|'^p^4f^]^^e^e|hbership.
4. Party in person has placed feliahce upon the Law Commission of India's reports i.e. 244 report as well as 255 report. Looking to the facts and circumstances of the i^(Mse^::y^sed5n^ entertain this writ petition mainly for the following reasons
(i) Legislative amendments are required for prescribing minimum educational qualification and maximum age limitfor contesting elections ofthe Council of States, House ofPeople and State Legislative Assemblies under Sections 3, 4 and 5 as well as Section6for the Legislative Council;
(ii) We are not inclined to give any direction to the respondents for
W.P. (C)5591/2016 Page2of[6] bringing legislative amendments because it is dependent on the discretion of the respondents and not of the Court. The Supreme Court in Supreme Court Employees Welfare A.ssociotion v Union ofIndia and Others (1989) 4 Supreme Court Cases 187held that:
51. There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislativepower by way of subordinate legislationpursuantto the delegatedauthority ofa legislature, such executive authority cannot be asked to enacta law.which he has been empowered to do under the delegatedlegislative authority. XX f ' '\XX 55,... There can be)nof4p)d)tth0.:a^ authority exercising legislativefunctibn:fgnnot)bjfd^ to do a particular act. Similarly theTrksid^i^India cannot be directed by the Court to gram::gpprbwMf6{theproposals made by the the direction ofthe^kfCJustice ofIndia.Itis notalso the contention cfariyfffhej^rtibs^th such a direction can be made by the The Suprchi^m^r® in Suresh Seth v Indore MunicipalCorporation(2005)13SCC287that:
W.P.(C)559I/20I[6] Page3of[6] 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 ofJ& K vs. A.R. Zakki 1992 Supp. (1)see 548. In A.K. Roy V[5]. Union ofIndia (1982) 1 see 271, it was held that no mandamus can be issued to enforce an Act which has been passed by the legislature." In COMMONeAUSE:A Re2isteredSociety v Union of India(2017)7SCC158,the Supreme Courtheld asfollows: "18. There can be no manner of doubt that the Parliamentary wisdom of seeking changes in the existing law by means df)an amendment lies in the domain oflegisldturei:(mdlil^ the province ofthe Court to express;:pn7' exercise legislative prerogative in thisTegdj^(:Mf''- Also in V.KlNasivh^v.^oine Secretary, Union ofIndia (2012)2see542')k'wasJh^d;ihat: "6. It is a settl^feggfJ^(^ption that the court can neitherIegislatj:fpr^mi)p^£0ifp(pion to theLegislature to enactin apartidparrmidhenf:}.:''
18. Thus, it is crystal clear that the Court has a very limited role and in exercise ofthaf it is not open to have judicial legisidtipppljeitjierp^ can legislate, nor it hasany competence tb issuedirections to the legislature to enactthelaw in aparticular manner."
(ill) The main and primary work ofthe Courtis to interpretthe law.
Itis only in rare cases,when thelaw is silentthatit befalls upon the Court to fill the gap. The Court can fill up such a gap by drafting law for a temporary period tftl the law is actually amended.
(iv) We are not inclined to exercise our powers under judicial
W.P.(C)5591/2016 Page4of[6] 7-^ review to even give a direction to the Law Commission ofIndia to submit a report on minimum educational qualification as well as for maximum age limit to contest the elections ofthe State Legislative Assemblies and ofParliament because already there are two reports: th (a) 244 report ofthe Law commission ofIndia;and (b) 255^*^reportoftheLaw Commission ofIndia
(v) It oughtto be keptin mind that all those who are graiduate may y 'I' not be as wise as those who are.noteven in 10^*^ standard. Such type of argument is easy^to be made but such pre-conceived notions in the petitioner's mind are wrong, as not only knowledge but wisdom and experience are required to serve in the Parliament and/of St^-Assem^ which rhay or may not come with graduation,,tH^ it is for the Parliament to amend thelaw and hotfoiliEiliCourt.
(vi) Similarly, for prescri|ipj^;^^ age limit, we see no justifiable reasdhitcLgiye;|^^ to the respondents to prescribe maximum^"agd'®limit to contest the elections of Parliament or of the State Legislative Assemblies. Some persons are vounger--e^en aLadvance age. Some persons are older even at a younger age. All depends upon the vibrancy and enthusiastic approach ofa person. Hence,we see no reason to give any direction to the respondents to prescribe a maximum age liniit to contestthe elections ofthe Parliament or ofthe State Legislative Assemblies.
(vii) We have no reason to believe that the respondents are not taking care ofthe qualifications oftheir Members ofParliament W.P. (C)5591/2016 Page5of[6] and the Members ofthe State Legislative Assemblies. Thus,it is left at the discretion ofthe Parliament whether to prescribe the minimum educational qualification or not for the Members of Parliament or not. Similarly, it is at discretion of the Parliament to prescribe the maximum age limit for their Members or not.
5. For the aforesaid facts and reasons, we see no reason to entertain this wrifpetition and the same is,therefore,dismissed.
NOVEMBER 20,2019 ns ¥' II? V''! GHIEF JUSTICE C.HARI-SHANKAR,J