Ashwini Kumar Upadhyay v. Union of India & Anr

.1^ $-8 * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 2Cf^ November, 2019 +

ASHWINI KUMAR UPADHYAY Petitioner Through: Petitioner in person versus (2^ UNION OF INDIA & ANR Respondents Through: Ms. Monika Ardra, CGSC with Mr.KushM Kumar Adv. for UOI CORAM:-' HON'BLE THE CHIEIfMsTICE HON'BLE MR. JUSTICE C.HARI SHANKAR D.N. PATEL. Chief Justice

¶1iJ-;, > This Public Interest Lttigatip^ h^Sribeen preferred with the following prayers: "a) Issue a direction including writ in the nature of mandamus or such other writ, order or direction as may be necessary;, to declare the Sections 8 and 9 of the Representation of fhe^R^lc;.Ac^Mifimconstitutional and void as they restrict disqualification period up to 6 years only and allow convicted person to contest Parliament/Assembly Elections and thus are inconsistent with Article 14 of the Constitution of India; b) Issue a direction or order or writ including writ in the nature of mandamus 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 necessary for decriminalization and de-communalization ofPolitics; Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. 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 of the Apex Court Judgment in Rajbala & Others Vs State of Haryana. "

¶2Petitioner 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 limit for contesting the elections of the Council of States (Section 3 of the Representation of the People Act, 1951), for contesting election of House of People (Section 4 of the representation of the People Act, . 1951) as well as for contesting election for State Legislative Assemblies (Section: 5 of the Representation of the People Act, 1951). .

¶3Having heard the counspl for both the sides and looking to the facts and circumstances of the case, it ; appears (hat this petitioner is in search of amendment to Sections 3, 4 ;^#^i]|epresentation of the People Act, 1951 prescribing the qualific|'^p^4f^]^^e^e|hbership.

¶4Party 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 limit for contesting elections of the Council of States, House of People and State Legislative Assemblies under Sections 3, 4 and 5 as well as Section 6 for the Legislative Council;

(ii) We are not inclined to give any direction to the respondents for Page 2 of6 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 of India and Others (1989) 4 Supreme Court Cases 187 held that:

¶51There can be no doubt that no court can direct a legislature to enact a particular law. Similarly, when an executive authority exercises a legislative power by way of subordinate legislation pursuant to the delegated authority of a legislature, such executive authority cannot be asked to enact a law. which he has been empowered to do under the delegated legislative authority. XX f ''\XX 55, ... There can be)nof4p)d)t th0.:a^ authority exercising legislative functibn:fgnnot)bjfd^ to do a particular act. Similarly the Trksid^i^India cannot be directed by the Court to gram::gpprbwMf6{the proposals made by the Registrar General, of the (Supreme Court, presumably on the direction of the ^kfCJustice ofIndia. It is not also the contention cf ariyfffhe j^rtibs^ th such a direction can be made by the The Suprchi^m^r® in Suresh Seth v Indore Municipal Corporation (2005) 13 SCC 287 that: "5. That apart, this Cpurt cannptfs^ue any direction to the Legislature H6^'}mhke& 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 Association vs. Union of India (1989) 4 SCC 187 (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 W.P.(C) 559I/20I6 Page3 of 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 of J & K vs. A.R. Zakki 1992 Supp.

(1) see 548. In A.K. Roy V5. Union of India (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 COMMON eAUSE: A Re2isteredSociety v Union of India (2017) 7 SCC158, the Supreme Court held as follows: "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 of legisldturei:(mdlil^ the province of the Court to express;:pn 7' exercise legislative prerogative in thisTegdj^(:Mf ''- Also in V.KlNasivh^v. ^oine Secretary, Union of India

(2012) 2 see 542') k'wasJh^d;ihat: "6. It is a settl^feggfJ^(^ption that the court can neither Iegislatj:fpr^mi)p^£0ifp(pion to the Legislature to enact in a partidparrmidhenf:}.: ''

¶18Thus, it is crystal clear that the Court has a very limited role and in exercise of thaf it is not open to have judicial legisidtipppljeitjierp^ can legislate, nor it has any competence tb issue directions to the legislature to enact the law in a particular manner. "

(ill) The main and primary work of the Court is to interpret the law. It is only in rare cases, when the law is silent that it 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 7-^ review to even give a direction to the Law Commission of India to submit a report on minimum educational qualification as well as for maximum age limit to contest the elections of the State Legislative Assemblies and of Parliament because already there are two reports: th

(a) 244 report of the Law commission of India; and

(b) 255^*^ report ofthe Law Commission of India

(v) It ought to be kept in mind that all those who are graiduate may y 'I' not be as wise as those who are. not even 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 the law 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 aL advance age. Some persons are older even at a younger age. All depends upon the vibrancy and enthusiastic approach of a person. Hence, we see no reason to give any direction to the respondents to prescribe a maximum age liniit to contest the elections of the Parliament or of the State Legislative Assemblies.

(vii) We have no reason to believe that the respondents are not taking care of the qualifications of their Members of Parliament Page 5 of6 and the Members of the State Legislative Assemblies. Thus, it is left at the discretion of the 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.

¶5For the aforesaid facts and reasons, we see no reason to entertain this wrif petition and the same is, therefore, dismissed. NOVEMBER 20,2019 ns ¥' II? V''! GHIEF JUSTICE C.HARI-SHANKAR, J