IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.7573 of 2009 CHHAYA-SARKAR THROGH ITS JOINT SECRETARY RABINDRA KUMAR, ADVOCATE, PATNA HIGH COURT S/O LATE RAM BILAS SINGH, RESIDENT OF MOHALLA-KHILCHIPUR, P.O. DIGHAGHAT, P.S. DIGHA, DISTRICT-PATNA. ------------PETITIONER. Versus 1.THE UNION OF INDIA THROUGH THE SECRETARY, DEPARTMENT OF PARLIAMENTARY AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 2.THE SECRETARY, DEPARTMENT OF PARLIAMENTARY AFFAIRS, GOVERNMENT OF INDIA, NEW DELHI. 3.THE STATE OF BIHAR THROUGH THE PRINCIPAL SECRETARY, DEPARTMENT OF PARLIAMENTARY AFFAIRS, GOVERNMENT OF BIHAR, PATNA. 4.THE PRINCIPAL SECRETARY, DEPARTMENT OF PARLIAMENTARY AFFAIRS, GOVERNMENT OF BIHAR, PATNA. 5.THE ELECTION COMMISSION OF INDIA THROUGH CHIEF ELECTION COMMISSIONER, NIRVACHAN BHAWAN, NEW DELHI. 6.THE CHIEF ELECTION COMMISSIONER, ELECTION COMMISSION OF INDIA, NIRVACHAN BHAWAN, NEW DELHI. 7.THE CHIEF ELECTORAL OFFICER, BIHAR. 8.THE BIHAR LEGISLATIVE COUNCIL THROUGH ITS SECRETARY, PATNA. 9.THE SECRETARY, BIHAR LEGISLATIVE COUNCIL, PATNA. ------------------RESPONDENTS. ----------- 12 26-04-2010 The present Public Interest Litigation was preferred under Article 226 of the Constitution of India 2 to issue a direction to the respondent authorities to retire members of Bihar Legislative Council (for short „the Council‟) as per Article 172 (2) of the Constitution of India and to pass such orders as may be deemed fit and proper in the facts and circumstances of the case. Be it noted, in the writ petition it was pleaded that a consolidated list of the 75 (seventy-five) members of the council suggests that presently 24 (twenty-four) members are going to retire on 16.7.2009, 7 (Seven members) will retire in 21.7.2010, 4 (four members) will retire in 8.5.2011, 23 (twenty three) members will be retiring on 9.5.2012 and 17 members will be retiring on 6.5.2014. This pattern of retirement of the members of the Council is not in consonance with the provisions of the Article 172 (2) of the Constitution of India. On the basis of aforesaid, a counter affidavit was called for and in the counter affidavit filed by the Bihar Legislative Council it has been mentioned that the matter has been referred to the Election Commission. A return has also been filed by the Election Commission of India, stating inter-alia, that the matter has been referred 3 to the Ministry of Law and Justice. This Court had passed order on 5.1.2010 and thereafter proceeded to pass the following order on 8.2.2010:- “In pursuance of the aforesaid order a supplementary affidavit has been filed today. In the said affidavit it has been mentioned that there was a meeting held in the chamber of the Secretary, Legislative Department, Shastri Bhawan, New Delhi on 1.2.2010. The said meeting was convened by the Legislative Department, Ministry of Law and Justice, wherein the participants were the officers of the Department of Legal Affairs, Legislative Department, Bihar Legislative Council, representatives of Election Commissioner of India. In the said meeting the following resolution has been passed:- „During the meeting on the issue relating to restoration of cycle of retirement of as nearly as one-third Members of Legislative Council on the expiration of every second year as envisaged under Clause (2) of Article 172 of the Constitution of India, a consensus has been arrived at that since the issue involves more than one State i.e, in the State of Karnataka and U.P. also, implications relating to the implementation of the provisions of the said article and section 156 of the Representation of the People Act 1951 need to be examined closely. It was also pointed out by the representatives of the Election Commission that similar situation obtains in Rajya Sabha. Hence, a holistic policy is to be evolved. It has been decided to solicit the opinion of the Ld. Attorney General of India on this matter as it involves interpretation and implementation of the Constitutional provisions and the Representation of the People Act, 1951.‟ In view of the aforesaid, we would like to adjourn the matter by four weeks as a consensus deision has been taken to solicit the opinion of the learned Attorney General of India in the matter, regard being had to the seriousness and gravity of the same.” 4 As opinion of the learned Attorney General for India was not made available to us the matter was adjourned. Mr. Farook. M. Razack, Learned Additional Solicitor General for the Union of India has filed an affidavit on behalf of respondent nos. 1 and 2. We need not refer to what has been stated in the counter affidavit, inasmuch as, the whole affidavit is based on the opinion which has been given by the learned Attorney General of India. The learned Attorney General of India at Annexure-A has given the following opinion:- “OFFICE OF MR. GOOLAM E. VAHANVATI ATTORNEY GENERAL FOR INDIA (NO. H-11022/ (30)/2009/LEG.II) 1.I have perused the file. A meeting was convened on 1.2.2010 pursuant to an order dated 5.1.2010 passed by the Hon‟ble High Court of Judicature at Patna in CW.J.C. No.7573 of 2009 (Chhaya-Sarkar V. Union of India & Ors.). It was attended by officers from the Department of Legal Affairs, Legislative Department, Legislative Council of Bihar and the Election Commission of India, who, after discussing the matter decided to seek my opinion. The file came to me on 17.3.2010. I have also perused the letter dated 22.3.2010 of the learned Assistant solicitor General. Patna High Court informing me of the order dated 12.3.2010. The matter is now listed on 26.4.2010. 2.The issue pertains to restoration of Cycle of retirement of 1/3rd members of the council of States and Legislative Councils of the States after every two years as envisages in Article 83 (1) and 172 (2) of the Constitution of India. This issue has arisen in context of the council of States and the Legislative councils of Bihar, Karnataka and U.P. 5 3.Before dealing with the issue, it is important to identify the nature and scope of the problem. For this purpose, it is important to understand the scheme for composition and retirement of members of the Council of States (Rajya Sabha) and Legislative Councils of the States. 4.The relevant provisions regarding the Council of States are: i.Article 80 of the Constitution provides for the composition of the Council of States as follows: 80.Composition of the Council of States. (1)The council of States shall consist of- (a)Twelve members to be nominated by the President in accordance with the provisions of Clause (3); and (b)Not more than two hundred and thirty-eight representatives of the States and of the Union territories. (2)The allocation of seates in the Council of States to be filled by representative of the States and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule. (3)The members to be nominated by the President under sub-clause (a) of Clause (1) shall consist of persons having special knowledge of practical experience in respect of such matters as the following, namely:- Literature, science, art and social service. (4)The representatives of each State in the Council of States shall be elected by the elected members of the legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote. (5)The representatives of the Union territories in the Council of States shall be chosen in such manner as parliament may by law prescribe. ii.Thus, in the council of States, (a) members are nominated by the President, (b)Representatives of States are elected by the elected members of the Legislative Assembly of the State, and (c)Representatives of union Territories are elected by electoral colleges formed in accordance with Part IVA of the Representation of the Prople Act, 1950. iii.Article 83 (1) of the Constitution provides for the duration of the Council of States in the following words: 6 Article 83, Duration of Houses of Parliament:- (1) The Council of States shall not be subject to dissolution, but as nearly as possible one- third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. iv.The law by which Parliament has made such provision is Section 154 of the Representation of the People Act, 1951. It reads: 154.Terms of office of members of the Council of States:- (1)Subject to the provisions of sub-sections (2) and (2A), the term of office of a member of the Council of States, other than a member chosen to fill a casual vacancy, shall be six years. (2)Upon the first constitution of the council of States the President shall, after consultation with the Election Commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seats of each class shall retire in every second year thereafter. (2A)In order that, nearly as may be, one- third of the members may retire on the second day of April, 1958, and on the expiration of every second year thereafter, the President shall, as soon as may be after the commencement of the Constitution (Seventh Amendment) Act, 1956, after consultation with the Election Commission, make by order such provisions as he thinks fit in regard to the terms of office of the members elected under sub-section (2) of section 147. (3)A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor‟s term of office. v.Thus, the term of office of members of the Concil of States shall be six years. However, under sub-clause (2), the President is empowered to curtail the term to ensure the retirement of 1/3rd of the members every two years, upon the first constitution of the Council of States. Clause 2A relates to members elected to fill casual vacancies, and is therefore not relevant for the present discussion. 5.The relevant provisions regarding the Legislative Councils of States are: i.As far as the Legislative Councils of States are concerned, Article 171 (2) of the Constitution provides that “Until Parliament by law 7 otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3).” ii.Parliament has provided for the allocation of seats in Legislative Councils of States under Section 10 of the Representation of People Act, 1950. Section 10 reads: Section 10-Allocation of seats in the Legislative Councils (1)The allocation of seats in the Legislative Councils of the States having such Councils shall be as shown in the Third Schedule. (2)In the Legislative Council of each State specified in the first column of the Third Schedule, there shall be the number of seats specified in the second column thereof opposite to that State, and of those seats; (a)the numbers specified in the third, fourth and fifth columns shall be the numbers of seats to be filled by person elected, respectively, by the electorates referred to in sub-clauses (a), (b) and (c) of clause (3) of article 171; (b)the number specified in the sixth column shall be the number of seats to be filled by persons elected by the members of the Legislative Assembly of the State from amongst persons who are not members of that Assembly; and ©the number specified in the seventh column shall be the number of seats to be filled by persons nominated by the Governor of the State in accordance with the provisions of clause (5) of article 171. iii.Thus, as per Section 10, the members of a Legislative Council of a State are either Elected or Nominated by the following: (a)Elected by Members of municipalities, district board and such other local authorities in the State (Section 10 (2) (a) read with Article 171 (3) (a). (b)Elected by persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university (Section 10(2) (a) read with Article 171 (3) (b). ©Elected by persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school (Section 10 8 (2) (a) read with Article 171 (3) (c). (d)Elected by Members of Legislative Assembly of the State (Section 10 (2) (b). (e)Nominated by the Governor of the State (Section 10 (2) ©. iv.For the retirement of the Members, Article 172 (2) of the Constitution provides as follows: Article 172-Duration of State Legislaztures (1)xxx (2)The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. v.The law by which Parliament has made such provision is Section 156 of the Representation of the Prople Act, 1951: Section 156-Term of office of members of State Legislative Councils (1)The term of office of a member of the Legislative Council of a State, other than a member chosen to fill a casual vacancy, shall be six years, but upon the first constitution of the Council the Governor shall, after consultation with the Election commission, make by order such provision as he thinks fit for curtailing the term of office of some of the members then chosen in order that, as nearly as may be, one-third of the members holding seals of each class shall retire in every second year thereafter. (2)A member chosen to fill a casual vacancy shall be chosen to serve for the remainder of his predecessor‟s term of office. vi.Thus, just like section 154 (1) & (2), Section 156 (1) provides for a term of 6 year for each member of a Legislative Council. The second part of Section 156 (1) mandates the Governor to provide for curtailing the terms of members upon the first constitution of the Council, to meet the requirement of 1/3rd members retiring after every two years as prescribed by Article 172 (2). 6.The above provisions show that Parliament has prescribed a term of 6 years for members of the Council of States, as well as for members of Legislative Councils of States. Further, in both cases, section 154 and 156 permit the curtailment of the term at the time of rist constitution of the Council. 7.The curtailment of the term of office at 9 the time of first constitution was designed to ensure that 1/3rd of the members retire after every two years, in accordance with Article 83 (1) and 172 (2) respectively. However, the cycles of biennial retirement in the Council of States as well as in Legislative Councils of States like Bihar, Karnataka and U.P. have been disturbed. The reasons for this have been (a) the imposition of President‟s Rule and premature dissolution of Legislative Assemblies and the consequent non-availability of electoral colleges for holding the biennial elections from certain States, (b) delays in nomination of members, (c)creation of new seats in the Upper Houses, etc. 8.The case of the Bihar Legislative Council amply demonstrates the problem: i.On 17th June, 1953, the Governor of Bihar passed the Bihar Legislative Council (Term of Office of Members) Order, 1953. Under this Order, the members of the Legislative Council were divided into three categories, and it was provided that the members of the three categories would retire on the 7th May, 1954, 1956 and 1958 respectively. ii.The system of biennial retirement of 1/3rd members had worked till 1978. However, from 1978 to 2003, elections to local bodies were not conducted in the State of Bihar. This meant that the electorate for electing members in accordance with Section 10 (2) (a) of the 1950 Act read with Article 171 (3) (a) of the Constitution was not available. As a result, election of members of the Legislative Council to be elected from this electorate could not be done. iii.Ultimately, when the local bodies elections took place in 2003, the members of the Legislative Council were also duly elected and appointed for a term of 6 years from 17.7.2003. iv.Since the term of office of the members is mandated as 6 years, compliance with the same has resulted in the break-down of the system of biennial retirement of 1/3rd members. From the information available, there are 75 members in the Bihar Legislative Council, out of which 24 retired on 16.7.2009, 7 are due to retire on 21.7.2010, 4 on 8.5.2011, 23 on 9.5.2012 and 17 on 6.5.2014. 9.The above facts show that the provisions of Section 154 92) and 156 (1) of the Representation of the People Act, 1951 have been complied with by the States, as they have provided for a term of 6 years for each member, and have also curtailed the terms of the members at the time of first 10 constitution of the Council. Yet, compliance with Sections 154 and 156 of the Act has not ensured compliance with Articles 83 (1) and 172 (2) of the Constitution. 10.I have seen the proposal made by the Election Commission of India in 1991 for restoring the cycle of biennial retirement. As per the proposal, all seats in each of the Upper Houses (Rajya Sabha and Legislative Councils) would be divided into three groups covering members upto specified dates so that the members elected or nominated to those seats would hold office, irrespective of the dates of election or nomination, upto a specified date. At the same time, a special provision was proposed to protect the tenures of the existing members. 11.This proposal for fixation of fixed periods of retirement is similar to the exercise contemplated under section 154 (2) and 156 (1) at the time of first constitution of the Council. 12.The question is whether the Power under Section 154 (2) and 156 (1) is a one-time exercise, or whether it can be resorted to even after the first constitution of the Council. 13.I am of the opinion that it cannot, since it applies only upon the first constitution of the Council, and cannot apply thereafter. It is well settled principle of statutory interpretation, captured by the latin maxim “expressio unius est exclusio alterius”, that the mentioning of one thing implies the exclusion of another. In Gram panchayat vs. Director, Consolidation of Holdings, 1989 Supp (2) SCC 465, the Hon‟ble Supreme Court explained this principle as follows: 16.We have already extracted Section 42 of the Act and Rule 18 of the Rules. It would be clear that though Section 42 envisages orders, preparation or confirmation of schemes and repartition separately, Rule 18 provides for limitation only in respect of an application under that section in a proceeding where an order was passed. There is the maxim expressio unius est exclusio alterius- expression of one thing is the exclusion of another. Mention of one thing implies the exclusion of another. When certain persons or things are specified in a law an intention to exclude all others from its operation may be inferred. When mention has been made only of “orders”, the inference would be that preparation or confirmation of scheme and repartition are excluded. 14.Since both Section 154 (2) and 156 (1) expressly permit the curtailing of the term of 6 11 years at the time of first constitution of the Council, it follows that curtailment of term after the first constitution is prohibited. 15.Further, the use of the words “shall be six years” in Sections 154 (2) and 156 (1) would indicate that the term of six years is mandatory, and therefore, curtailing the same after the first constitution does not appear to be permissible. 16.Thus, as the law stands now, the proposal of the Election Commission cannot be given effect to by resorting to Section 154 (2) or Section 156 (1). Having regard to the fact that it is essential that the term of 6 years is curtailed in situations like the present one, so that the mandate of biennial retirement of 1/3rd members as prescribed under Article 172 (2) is not given a go-by, there is need for appropriate Statutory Amendments to the Representation of the People Act, 1951. 17.The Words “as nearly as may be” occurring in Article 83 (1) and 172 (2) do not permit relaxing of the condition of biennial retirement of 1/3rd members. They refer to a situation where the total number of members of a Legislative Council is not perfectly divisible by 3, and provide that the number which must retire must be as near as possible to 1/3rd of the total members. CONCLUSION. 18.Theefore, in my opinion, the proposal of the Election Commission of India can be acted upon, but after suitable amendments are made in Sections 154 (2) and 156 (1) of the Representation of the People Act, 1951. The amendments must provide for the curtailment of the term of six years after the first constitution of the Council, in order to comply with the requirement of Articles 83 (1) and 172 (2) of the Constitution. Sd. (GOOLAM E.VAHANVATI) Attorney General for India. 7th April,2010. We have reproduced the entire opinion for the sake of completeness. In course of hearing after certain debate and a 12 suggestion being made, Mr. Farook. M. Razack, Learned Additional Solicitor General of India has fairly submitted that this Court may request the learned Attorney General for India as well as the Election Commission of India to work in harmony with the Ministry of Law and Justice so that the problem that has emerged can be solved as the learned Attorney General for India has suggested amendments to a Central enactment. Having heard Mr. M.P. Gupta, learned counsel for the petitioner, Mr. Farook. M. Razack, learned Additional Solicitor General of India along with Mr. Sajid Salim Khan, Mr. Raghib Ahsan, learned Sr. Advocate, Mr. P.K. Shahi, learned Advocate General for the State, Mr. Kaushal Kumar Jha, learned counsel appearing on behalf of the Bihar Legislative Council and Mr. J.P. Karn, learned Senior counsel appearing on behalf of Election Commission for the Union of India, we are only inclined to state as has been suggested by Mr. Farook. M. Razack, learned Additional Solicitor General for India that the learned Attorney General of India and the Chief Election Commissioner of Election 13 Commission of India shall bring it to the notice of the competent authority in the Ministry of Law and Justice and all shall work in harmony to put the controversy to rest as it is necessary to do so to avoid any kind of future anomaly and uncertainty. We may note with profit that such a dispute really cannot be adjudicated by a Court of Law. It is in the domain of the Legislature. With the aforesaid observation the writ petition stands disposed of. Before parting with the case we must record our appreciation for the pains taken by the learned Attorney General and the suggestions given by Mr. Farook. M. Razack, learned Additional Solicitor General of India. (Dipak Misra, C.J.) Abhay Kumar ( Mihir Kumar Jha, J.)