Case ID: 180

Judgment:
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 as.well 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 case(1)	 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 counsel	also 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 15(1) 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 15(1) 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 15(1) 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 15(1) 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 15(1) 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.