Judgement
BHIMASANKARAM, J. :-
The petitioner seeks the issue of a writ of mandamus directing the respondents 3 to 9 to forbear from electing a president from among themselves to the village panchayat of Chinalingayapalem. The respondents 3 to 9 have been elected members of the panchayat in an election which took place on 2-5-1956. Under Section 21 of the Act as it stands amended now, the members have got to elect one among themselves, as president. The petitioner contends that the election of these respondents as members is invalid for two reasons.
Firstly, he says that the allotment of an additional member to one of the wards necessitated by the amendment should not have been made by the District Panchayat Officer, without consulting the panchayat as required by Section 9 (1) of the Madras Village Panchayats Act. Secondly, he maintains that in making the actual allotment, there is a violation of Article 14 of the Constitution in that the voters in one of the wards who elected four members obtained special advantage over the voters in the other two wards who elected the other three members between them. As he challeges the validity of the whole election process he has impleaded also the District Panchayat Officer, Guntur, and the Deputy Panchayat Officer, Bapatla (North), as respondents 1 and 2 who were responsible for the allotment of the extra seat to ward No. 1 and the election respectively.
2So far as the first ground is concerned it is already covered by our decision in Panchayat, Pandrapadu v. State of Andhra, W P No. 304 of 1956 : ( (S) AIR 1957 Andh Pra 355) (A). For the reasons given there we cannot entertain this objection.
3. The second contention however requires more serious consideration. The necessary facts are these : This village was originally divided under Section 9 (1) of the Act into three wards. Ward No. 1 consists of 813 voters, ward No 2 of 442 and ward No. 3 of 204 voters. The first ward was to elect 3 members, the second ward 2 members and the third ward one member. After the Amendment Act, the District Panchayat Officer allotted to the first ward the extra seat necessitated by the president also having to be a member. The result was that four members of the panchayat have been elected by 813 voters, 2 members by 442 voters and one member by 204 voters.
It is said that this meant that every voter in the first ward exercised four votes ; every voter in the second ward two votes and every voter in the third ward only one vote. Now, the present Petitioner himself belongs to the first ward. It is difficult to see what his grievance is. On the above facts, it is the voters in the second and third wards that could have a just cause for complaint. The truth seems to be that the petitioner is attempting to invalidate the whole election because those, in whom he is interested, have not been successful.
4The issue of the constitutionality of a law cannot be allowed to be raised at the instance of a person whose rights are not directly affected by the law which he impugns. Apart from this fact, the powers exercisable by the High Court under Article 226 should not, in my opinion, be drawn upon at the instance of a petitioner inspired by indirect motives. In this view, it is unnecessary for me to discuss at length the decisions of the Supreme Court of America purporting to follow which, my learned brother Chandra Reddy J., held in Ratna Sabhapathi Rao v. State of Madras, 1953-1 Mad LJ 252 : (AIR 1953 Mad 510) (B), that questions relating to delimitation of wards and allotment of seats thereto are not justiciable matters being solely within the ambit of executive power. It was a case relating to a municipality. There the division into wards and the allotment of seats was made under Section 43 of the Madras District Municipalities Act, provision very similar in terms to Section 9 (1) of the Madras Village Panchayats Act. The learned Judge made the following observations in that case :
"It is for the Government to arrange the distribution of wards taking into consideration various factors such as compactness of area, the population and the electoral strength, etc. There is bound to be disparity between one ward and another in the matter of voting strength as due regard has to be had to various other factors. The voting strength is not the sole criterion in these matters............. It follows on this discussion that the redistribution of wards is not a matter that can be brought up for a writ of certiorari before this Court. Any interference by Courts with electoral process is not warranted under
Article 226 of the Constitution."
Earlier in his judgment he referred to Colegrove v. Gree, (
1946) 90 Law Ed 1432 :
328 US 549 (C), and South v Peters, (
1950) 94 Law Ed 836 :
339 US 276 (D), both decisions of the Supreme Court of the United States of America. It is to be noticed that in the first of these cases the Judges of the Supreme Court were sharply divided in their opinions three Judges being of one opinion on the merits and three others being of the contrary opinion. The decision really turned on the view of the only other Judge who participated in the hearing that the case was not one in which the equity jurisdiction of the Supreme Court ought to be exercised. The latter decision also exhibits a similar divergence of views. The RATIO of the decision of the majority in the latter case may be put thus :
"A Federal Court properly refuses to exercise its equity powers where a state statute providing that county unit votes shall determine the outcome of a primary election, that each county is allotted a number of unit votes, and that the candidate who receives the highest popular vote in the county is awarded the appropriate number of unit votes, is attacked as violating the Fourteenth and Seventeenth Amendments of the Federal Constitution."
5. Two Judges who were in a minority thought on the other hand that the right to vote at a primary election
"is protected by the Fifteenth Amendment, which prohibits a denial or abridgment of the right to vote on account of race, colour, or previous conditions of servitude."
This is therefore no authority for the proposition that the Court has no jurisdiction to decide questions of that character. Indeed in another case which came up between these two, reported in Macdougall v. Gree, (1948) 93 Law Ed 3 (E), a majority of the Supreme Court Judges expressed their view in these terms :
"It would be strange indeed, and doctrinaire, for this Court, applying such broad constitutional concepts as due process and equal protection of the laws, to deny a State the power to assure a proper diffusion of political initiative as between its thinly populated countries and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former. The Constitution - a practical instrument of Government - Makes no such demands on the States."
Rutledge J., whose view was decisive of the issue in (1946) 90 Law Ed 1432 : 328 US 549 (C), stuck to his former view however. In doing so, he said :
"As in Colegrove v. Green (C), supra, I think the case is one in which for the reasons stated, this Court may properly, and should, decline to exercise its jurisdiction in equity. Accordingly but solely for this reason, I agree that the judgment refusing injunctive relief should be affirmed."
Three other Judges who heard the case expressed an opinion opposed to the majority view and observed thus :
"The theme of the Constitution is equality among citizens in the exercise of their political rights. The notion that one group can be granted greater voting strength than another is hostile to our standards for popular representative government."
It must be noticed that these decisions relate to delimitation of constituencies and distribution of voting strength for the purpose of elections to State and Federal Legislatures. I do not think that these cases throw any light on a question which relates to the electoral process concerning purely local bodies.
6It is to be noted that under Article 327 of our Constitution, Parliament is entrusted with the power to make provision
"with respect to all matters relating to, or in connection with elections to either House of Parliament or to the House or either House of the Legislature of a State including the preparation of electoral rolls, the delimitation of constituencies and all other matters necessary for securing the due constitution of such House or Houses."
But, even this power is, it must be noted, made subject to the provisions of the Constitution, that is to say subject INTER ALIA to Part III of the Constitution. There is no such limitation in the Constitution of the United States of America. One may therefore venture to doubt whether the American decisions, based as they are on the language of their own organic instrument, should be followed.
7. In any case, it would be difficult to hold that the division of a local constituency into wards for the purpose of election to a local body poses the decision of a political question for consideration. Furthermore, we are not here dealing with a legislative provision directing unequal distribution but with the action of the Executive purporting to act under the terms of a statute. The Legislature itself has not authorised any inequality. We are not therefore dealing with the power of the Legislature but with the power of the Executive to act in contravention of the equality rule. If the Executive is free to do these things even without authorization from the Legislature and be immune from judicial review the door will be open in my opinion for what is called in political parlance gerrymandering.
8It is however unnecessary to discuss this point for the purposes of the present decision. This writ petition must fail on the ground that the petitioner has no grievance. It is therefore dismissed with costs. Advocates fee Rs. 100/-.
9. SATYANARAYANA RAJU, J. : I am in agreement with my learned brother that this petition must fail on the short ground that the petitioner is not a person aggrieved. In this view it is unnecessary to go into the other questions raised before us.
Petition dismissed.