69 of 1953
Petition under article 32 of the Constitution for enforcement of fundamental rights
1185 section C Isaacs Jai Prasad Agarwal with him for the appellant
K B Asthana for respondent No 1
section P Sinha R Patnaik with him for respondent No 4 1953
May 22
The Judgment of the Court was delivered by PATANJALI SASTRI C J
This is an application under article 32 of the Constitution seeking protection of the petitioners  fundamental right under article 15 1 against alleged violation thereof by the respondents
The petitioners are three residents of Etah in Uttar Pradesh
They complain that at the by election to the Municipal Board of Etah held on November 2 1951 December 8 1951 and March 17 1952 at which respondents 4 11 and 12 were respectively elected the Petitioners were deprived of their rights to exercise their votes and to seek their election as candidates as those by elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution
They also allege that the nomination of respondent 3 as a member of the Board by the Government was an illegal exercise of its powers as the interest which that respondent was nominated to represent in the Board was already sufficiently represented
The petition ners accordingly pray for the issue of writs of quo warranto mandamus and other appropriate writs or directions to respondents 3 4 11 and 12 to show under what authority they are acting as members of the Board and to prevent them from acting assuchmembers
Tbe petitioners also ask for wkits on the District Magistrate and the Civil Judge of Etah respondents 2 and 13 respectively directing them not to hold or permit the holding of any meeting of the Board which is said to be illegally constituted
Now it cannot be seriously disputed that any law providing for elections on the basis of separate electo rates for members of different religious communities offends against article 15 1 of the Constitution which runs thus 1186 15 1 The State shall not discriminate against any citizen on grounds only of religion race caste sex place of birth or any of them
 This constitutional mandate to the State not to diis criminate against any citizen on the ground inter alia of religion clearly extends to political aswell as to other rights and any election held after the Constitution in pursuance of such a law subject to clause 4 must be held void as being repugnant to the Constitution
But the question is whether the petitioners are now entitled to the relief they seek in this application under article 32
It is true as pointed out in the Cross Roads case1 that article 32 provides in some respects for a more effective remedy through this court than article 226 does through the High Courts
But the scope of the remedy is clearly narrower in that it is restricted solely to enforcement of fundamental rights conferred by Part III of the Constitution
Any right for instance which the petitioners may have as rate payers in the Municipality to insist that the Board should be legally constituted and that respondents 3 4 11 and 12 who are not properly elected or nominated members should not be permitted to take part in the proceedings of the Board is outside the purview of article 32 as such right even if it exists is not a fundamental right conferred by Part 111
Petitioners  learned counsel however contended that the fundamental right conferred by article 15 1 on the petitioners as citizens of India was violated by the elections in question having been held on a basis which discriminated against the petitioners on the ground of their religion in that it precluded them from exercising their franchise in relation to all the candidates and from contesting the elections without regard to the reservation of seats on communal basis
Learned counselalso submitted that the delimitation of the constituencies on communal lines was a denial of equality to the petitioners in the matter of their political rights and in that respect also infringed their 1  1187 fundamental right under article 14
We are unable to accede to these contentions
It is plain that the fundamental right conferred by article 151 is conferred on a citizen as an individual and is a guarantee against his being subjected to discrimination in the matter of the rights privileges and immunities pertaining to him as a citizen generally
It is not the petitioners  case that any discrimination is now being practised or threatened against them
Their grievance is that the mode of election by separate electorates formed on communal lines involved discrimination against them in relation to seats other than those reserved for their respective communities as to which they could not exercise their right to vote or their right to stand as candidates
There is no suggestion that the petitioners actually sought to assert those rights by taking appropriate proceedings to have the bar removed and the election conducted in accordance with the Constitution
In fact the petitioners acquiesced in the elections being conducted under the old system of separate electorates and felt no discrimination having been practised against them until a no confidence motion was tabled recently against the former Chairman who has since lost his seat as a result of that motion having been carried
Thus the infringement of their fundamental rights under article 151 and art 61 14 that is the discrimination practised against them of which they now complain related to rights which they in fact never sought to exercise and took no steps to assert while there was still room for doing so and for the exercise of which the opportunity is now lost
But argues Mr Isaacs the election of the respondents 4 11 and 12 being void they are no better than usurpers and the petitioners are entitled to prevent them from functioning as members of the Municipal Board
It may be as we have already remarked that the petitioners could claim such relief as ratepayers of the Municipality in appropriately framed proceedings but there is no question of enforcing petitioners  funda mental right under article 151 or article 14 in such claim There is still less ground for seeking relief on 1188 that basis aoainst respondent 3 who is only a nominated member
The petitioners appear to have misconceived their remedy and their application under article 32 must fail
The petition is dismissed with costs one sot
Petition dismissed
Agent for the petitioners K L Mehta
Agent for respondent No I  C P Lal
Agent for respondent No 4 section P Varma


Summary:
The petitioners who were residents of a municipality alleging that they had been deprived of their rights to exercise their votes and to seek their election as candidates in certain by elections to the Municipal Board as those by elections were held on communal lines on the basis of separate electorates contrary to the provisions of the Constitution applied for writs tinder article 32 of the Constitution for preventing the elected candidates from acting as members of the Board and the District Magistrate and Civil Judge from holding any meetings of the Board Held that though a law which provides for elections on the basis of separate electorates for members of different religious communities offends against article 151 of the Constitution and an election held after the Constitution in pursuance of such a law subject to el 4 would be void the right which the petitioners claimed as rate payers in the municipality to insist that the Board should be legally constituted and that persons who have not been properly elected should not be allowed to take part in the proceedings of the Board was outside the purview of article 32 of the Constitution inasmuch as such a right even if it existed was not a fundamental right conferred by Part III of the Constitution
Held further that the alleged infringement of the fundamental rights of the petitioners under article 151 and article 14 that is the discrimination practised against them related to rights which they in fact never sought to exercise and took no steps to assert while there was occasion for doing so and the petitioners were therefore entitled to no relief under article 32 of the Constitution