Sheikh Abdus Sabur Vs.

Returning Officer, District Education Officer-in-Charge,

Gopalganj & others, 1988, 17 CLC (AD)
Wednesday, 04 June 2008 20:35
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Supreme Court

Appellate Division

(Civil)

Present:

Badrul Haider Chowdhury J

Shahabuddin Ahmed J

MH Rah-man J

ATM Afzal J

Sheikh Abdus Sabur................................Appellant

Vs.

Returning Officer, District Education Officer-in-charge, Gopalganj &
others.....Respondents

Judgment

September 1, 1988.

Result:

The appeal fails.

The Constitution of the Peoples Republic of Bangladesh, 1972

The Local Government (Union Parishad) Ordinance, 1983 (LI of 1983), section
7(2) (g)

The provision for disqualification of a member of the Union Parishad under section
7(2)(g) of the Union Parishad Ordinance, 1983 for being a defaulter of financial
institutions including a bank in the absence of such disqualification for a member
of the Parliament is not discriminatory but is constitutionally valid.

Cases Referred to-

AIR 1971 SC 530 (564); Southern Rly Co. V. Greane, 216 U.S. 400; Smt. Indira
Gandhi V. Raj Narayan, AIR 1975; State of West Bengal v. Anowar Ali Sarkar,
AIR 1952, SC 75; Dhirendra Kumar Vs. Government of West Bengal, AIR 1954,
SC 424; Panduranga Rao vs. Andhra Pradesh Public Service Commission, AIR
1963, SC 268; State of Madhya Pradesh Vs. Mandawar, AIR 1954, SC 493;
Jibendra Kishore Vs. Prov. of East Pakistan, 9 DLR SC 21; Charanjit Lai. Vs.
Union of India, AIR 1951 SC 41; Lachhman Das. Vs. The State of Punjab, AIR
1963, SC 22; The State of Bombay Vs. F. N. Balsara, AIR 1951, SC 318, S. 39, the
Bombay Prohibition Act, 1949; Ram Krishna Dalmia vs. Justice Tendolkar, AIR
1958, SC 538; Jalan Trading Company vs. Mill Mazdoor Sabha, AIR 1967, SC
691; Anant Mills Vs. State of Gujrat, AIR 1975, SC 134; AIR 1979 SC 478; R.K.
Carg v. Union of India", AIR 1981, SC 2138; Lingappa Pochanna vs. State of
Maharastra, AIR 1985, SC 389; State of Gujarat Vs. Shri Ambica Mills, AIR 1974,
SC 1300; Shujal Ali vs. Union of India, AIR 1974, SC 1631; Southern Rail-way
Co. Vs. Greane (1909-216 U.S. 400); Middleton Vs. Texas P & L Co, 248 U.S.
152; Gulf Colorado Rly. v. Ellis, 165 U.S. 150; Shujat Ali vs. Union of India, AIR
1974, and SC 1631; the State of Madras Vs. V. G. Row, AIR 1952, and SC 196;
Doland Paul Lublin Vs. Leonard Panish, US-SCR39 L. Ed-2nd, 415-709; Bob
Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed, 2nd, 405, 134; State of Madhya
Pradesh Vs. Mandawar, AIR 1954 (SC); Lachhman Das vs. Punjab 1963 AIR SC
222, Narottamdas vs. M. P. AIR 1964 SC 1667. In Prabhakaran Nair V. State of
Tamil Nadu & other 1987 AIR (SC) 2117; State of Madhya Pradesh Vs. G.C.
Mandawar AIR 1954 S.C. 493; A.I.R. 1974 S.C. 1300; AIR 1979 S.C. 478 and
AIR 1981 S.C. 2138; Charanjitlal Chowdhury AIR 1951 SC 41 to Lingappa
Pochanna AIR 1985 S.C. 389; Anwar Ali Sarkar AIR 1952 SC 75; Kotch Vs.
River. Port Pilot Commrs (1947) 330 U.S. 552; West Coast Hotel Co. Vs.
Parrish, (1936) 300 U.S. 379 at page 400; AIR 1955 SC 166; R.K. Garg Vs. Union
of India AIR 1951 SC 2138.

Lawyers Involved:

Khandker Mahbubuddin Ahmed, Senior Advo-cate (Fida M. Kamal, Advocate
with him) instructed by Sharifuddin Chaklader, Advocate-on-Record. For the
Appellant.

T. H. Khan, Senior Advocate (M.A. Wahab Miah, Advocate with him) instructed
by Md. Aftab Hossain, Advocate-on-RecordFor the Respondent No. 9

M. Nurullah, Attorney General (Hasan Arif, Deputy Attorney General with him)
instructed by B. Hossain, Advocate-on-Record For Respondent Nos. 1-3.

Not represented. Respondent Nos. 4-3 & 10-11.

Civil Appeal No. 3 of 1988

Judgement

Badrul Haider Chowdhury J. Appel-lant was a candidate for election to the
office of Chairman of Borashi Union Parishad in the district of Gopalganj which
was held on 10.2.1988. He filed his nomination paper but it was rejected by the
Returning-Officer on the ground that he defaulted in re-paying loan taken by him
from the Janata Bank and Krishi Bank and as such he was disqualified from
seeking election under section 7(2) (g) of the Union Parishad Ordinance which was
inserted by Act 33 of 1987. His appeal was dismissed by the Upazilla Nirbahi-
Officer. Then he moved Writ Petition No. 26 of 1988 challenging the order of the
Returning Officer. The High Court dismissed the writ petition.

2. Leave was granted to consider the question whether section 7(2) (g) of the
Union Parishad Ordi-nance is hit by the equality provision under Article 27 of the
Constitution.

3. The matter was heard at length and the learned Attorney General was invited to
address the Court as amicus curiae. Section 7(2) (g) is in the fol-lowing terms:

"He has defaulted in repaying the loan taken by him from any specified Bank
within the time allowed by the Bank thereon."

Explanation to the enactment gives the list of the specified Banks. It is not disputed
that two Banks referred to above are specified Banks.

4. Mr. Khandker Mahbubuddin Ahmed learned Counsel canvassed that the
impugned legislation is discriminatory and further it gives no clue as to the purpose
of the legislation itself. The gist of his argument can be summed up: "if the
legislation is considered beneficial then why the defaulters are de-barred from
contesting only the Local Council elec-tions. Why not the Parliament?

5. Mr. T. H. Khan learned Counsel appearing for the respondents contended that
the purpose of the legislation is discernible from itself. The learned Counsel went
further to say that this being a benefi-cial legislation the Court should not strike it
down, rather it should presume the Constitutionality of the impugned legislation
and if the Court takes the view that the purpose of the legislation, though justified,
falls short to the expectation of the public, necessary recommendation can be made
so that the legislation can give shape to the aspirations of the people.

6. Mr. M. Nurullah learned Attorney General in a pains-taking manner has shown
that the basis of classification exists and the Court shall not strike down legislation
unless it becomes palpable that the legislation is discriminatory on the face of it.

7. My learned brother S. Ahmed, J. has exhaus-tively dealt with the nature of
classification and found that the reasonable classification exists. Though a lengthy
debate had taken place as to the purpose of the legislation yet it was found that the
legislation itself appears to do certain "clean up" business in the administration of
the Local Coun-cils. Defaulters should not be elected members of the Local
Councils, inasmuch as; it might clash with public duty.

8. Local Authority, although representative bodies chosen by adult franchise, have
not the au-tonomy of the parliament. Indeed they are dependent on Parliament for
their powers. The powers of a lo-cal authority derive from statutes and they are
exer-cised subject to the rule of ultra vires. It is true both the members of the
parliament and the members of the Local Councils are elected by the same voter;
but their respective functions differ widely.

9. The Local Councils are classified on reasona-ble basis which is apparent from
the nature of its duty and that has been highlighted in the judgment of my brother.
The only question is whether the Court will make any recommendation or voice
the sentiment of the people that the legislation falls short of expectation of the
general public. What is the expectation? To say it in short formula "if the defaulters
are debarred in contesting local elections, how it is the defaulter can contest for the
Parliamen-tary seat?" Take the case of this person, the appel-lant, he is debarred
from contesting from the Union Council's election and it is conceded that by mere
be-ing defaulter in the repayment of the loan he cannot be debarred from the
Parliamentary election. My brother Afzal J, focused the sentiment of the appel-lant
by "quoting the jibe of Mr. Ahmed what is sauce for the goose should be sauce for
the gander. This is the echo of the sentiment expressed in the judgment of S.
Ahmed, J. "when the legislation thought it expedient in the national interest to
pro-vide for the impugned disqualification for members of local bodies, they
should have provided for similar disqualification for themselves by amending the
Rep-resentation of the People Order, 1972. Exclusion of members of Parliament is
found to be an omission of grave impropriety which, however, may be cor-rected
even now by the law-makers themselves, if not required by any law, at least by
dictates of good conscience and high sense of patriotism." I fully sub-scribe to this
view.

10. Next question is whether the Court should make such recommendation. It has
been argued in a very discreet manner by the learned Attorney General that the
legislature understands and correctly appre-ciates the needs of its own people and
the matter should be left to it. As a general proposition this theory of legislative
supremacy is established especially in a country which has a democratic tradition
and its evolution over the decades. For instance this proposition is fully valid in
Britain. Modem tenden-cies even in England has led judicial opinion to mod-ify
such dictum in its absolute form. Lord Denning observed:

"It is no longer necessary for the judges to wring their hands and say: "There is
nothing we can do about it". Whenever the strict interpreta-tion of a statute gives
rise to an absurd and un-just situation, the judges can and should use their good
sense to remedy it by reading words in, if necessary- so as to do what parliament
would have done, had they had the situation in mind." (The discipline of Law P.
16).

11. In U.S.A. it is the other way about and it is the Supreme Court which has been
empowered by the Constitution to strike down the legislation of-fending the
Constitution.

Prof. K. C. Wheare in Modern Constitution ob-served:

how much more likely is it that declaration of rights may prove to be in practice
little more than words in communities where the ex-ecutive is held in greater awe
than the Constitu-tion, where people are not free to organise them-selves or where
they lack knowledge and capacity to form a public opinion." (P-71).

The same author notices-

"It is argued sometimes too, that it is best to rely upon public opinion to control the
legislature and to leave the electors at the polls to punish its members if they
exceed their powers". The author further observed: "there is not much consolation
here to a minority which hopes to sec its rights protected by a Constitution."
There-fore, the judicial decision becomes unavoidable and the author makes his
reservation by saying "the suc-cess of judicial review depends as much upon a
well-drafted Constitution as upon the caliber of the judge themselves'. (p-177).

12. While our Constitution recognises the su-premacy of the Constitution, it lays
fundamental principles of the State policy in Part-II although the principles cannot
be judicially enforced. In the Con-stitution the framers had in view the well
defined separation of powers between the executive, legisla-tive and the judiciary.
Since it is the written Consti-tution the judiciary has been conferred the
jurisdic-tion to settle the disputes between citizen and citizen and between State
and the citizens. Of necessity, it is judiciary that has to say the last word even in
mat-ters of propriety of legislation. The concept of legis-lative supremacy imported
from the soil of a devel-oped country cannot be transplanted into the soil of a
developing nation which has a nascent democracy as it is in Bangladesh.

13. A criticism may be levelled that the Court will not go into the morality of any
legislation. The answer is short that no legislation can be made on immoral
philosophy. Constitutional mechanism in a democratic polity does not contemplate
existence of any function what may qua the citizens be designated as political" (Per
Shah, J in AIR 1971 SC 530 (564). In the same case Hedge, J, observed: "There is
nothing like a political power under our Constitu-tion in the matter of relationship
between the execu-tive and the citizens."

14. Salmond Jurisprudence (11 End) points out "we have now come to recognise
that since the law can never be completely certain the judge must be conceded to
have the power of making new law in the course of deciding cases and that in
exercising this power he will naturally act in accordance with his moral ideas.
(P.30)".

15. I would not like to dilate on this point fur-ther for the reason that we have
found the impugned legislation is not offensive. But upon hearing the learned
Counsels there is no hesitation in my mind the frustrated aspiration of the nation
needs consider-ation. If it is a step only that the defaulters should not participate in
the nation-building activities the legitimate aspiration of the people will have to be
given full shape.

16. Mr. T.H. Khan learned Counsel has voiced the public opinion by saying
'example is better than precept'. My brother Afzal, J, has echoed this view and I
fully subscribe to it.

In view of the above, I agree that this appeal should be dismissed.

Shahabuddin Ahmed, J. In this appeal by special leave the question raised
relates to the constitutional validity of Section 7(2) (g) of the Lo-cal Government
(Union Parishads) Ordinance, 1983Ordinance No. LI of 1983. It has been
con-tended that this provision of the Ordinance is violative of the equality clause of
Article 27 of the Con-stitution of Bangladesh. S.7 (2) (g) of the Ordinance, which
has been brought in recently by the Local Government Laws (Amendment) Act,
1987 (Act XXIII of 1987)provides for a disqualification for a person seeking
election as chairman or member of a Union Parishad; the disqualification is that a
person who "has defaulted in repaying any loan taken by him from any specified
bank (nationalised banks) is disqualified from seeking election. But as there has
been no corresponding disqualification for a person seeking election to the
Parliament, though he has alike defaulted in repaying the same kind of loan, it is
contended, the disqualification provision offends. Art. 27 of the Constitution of
Bangladesh which provides that "all citizens are equal before law and are entitled
to equal protection of law", and as such S.7 (2) (g) being discriminatory in nature
should be struck down in terms of Art. 26 of the Constitution.

18. The appellant before us was a candidate for election to the office of Chairman
of Borashi Union Parishad in the district of Gopalganj which was held on 10
February 1988. He filed his Nomination-paper before the Returning-Officer who
however rejected it by an order dated 11 January 1988 on the ground that he
defaulted in repaying the loan taken by him from the Janata Bank and Krishi Bank
at Gopalganj and as such he was disqualified from seeking election to Union
Parishad under S.7 (2) (g) of the Union Pari-shad Ordinance. He preferred tan
appeal before the Nirbahi-Officer, but his appeal was dismissed. There-upon he
filed a writ petitionW.P. No. 26 of 1988challenging the order of the Returning
Offi-cer. In his Writ-petition he claimed that he was a solvent business-man having
a number of business concerns including a brick manufacturing industry and a
transport business, that he obtained two loans of Tk. 7, 67,000/- from Janata Bank
and one loan of Tk. 15, 000/- from Krishi Bank against proper securi-ties by
mortgaging his two residential buildings in Gopalganj town and landed property in
his village, Dhennabari and also by depositing his Fixed Deposit Receipts. He
claimed that he always took keen inter-est in social welfare activities in his locality
and was very popular there. He was elected Chairman of the Union Parishad twice
in the past. As to the repayment of the loans, he explained that the loan being fully
secured it is recoverable according to the exist-ing law and in terms of his
Agreements. He contended that he was not a defaulter in that the loan is to be
repaid by instalments spread over a long period of time and that even if he had
failed to pay a particular instalment in lime he could not be a defaulter, for, such
instalment is recoverable with penalty by way of higher rate of interest. He alleged
in his petition that the impugned provision of disqualification re-cently brought in
by amendment of the Union Pari-shad Ordinance is discriminatory in the absence
of any corresponding disqualification for a person seek-ing election to the
Parliament though the latter might have taken same kind of loan but defaulted in
repayment He assailed this provision invoking Art. 27 of the Constitution and
prayed that this provision in section 7(2) (g) should be declared void.

19. The learned Judges of the High Court Divi-sion by an order dated 1 February,
1988 summarily dismissed the Writ-petition observing that when the Upazilla
Nirbahi-Officer, appellate authority, held on the evidence of two Bank Managers
that the appel-lant was a defaulter there was hardly any ground for interference.
The learned Judges did not consider the question whether non-payment of an
instalment of the loan in time will make the petitioner defaulter within the meaning
of section 7(2) (g) or whether this leg-islation is violative of any Constitutional
provision.

20. The appellant then filed a Leave Petition before us and obtained an order of
slay of the Returning-officer's order and participated in" the election subject to the
decision of this Court on his Leave Petition. After hearing the leave petition in
pres-ence of Kh. Mahbubuddin Ahmed, learned Counsel for the petitioner, and Mr.
T.H. Khan, learned Coun-sel who appeared for the Caveator, Respondent No.9,
one of the candidates in the election, and also after hearing the learned Attorney
General who appeared at our request, we granted leave to consider only one
question, as already referred to namely, whether the impugned disqualification
provision of the Union Parishad Ordinance offends the equality of law provision of
Art. 27 of the Constitution. By way of infor-mation, Kh. Mahbubuddin Ahmed
said that the ap-pellant won the election which was held on time.

21. Kh. Mahbubuddin Ahmed, at the outset, re-ferred to different Constitutional
provisions and legislative enactments by, or in pursuance, of which different
elective bodies including the parliament and Union Parishads have been created
and functioning. Article 65 of the Constitution provides that there shall be a
parliament for Bangladesh (to be known as the House of the Nation) in which shall
be vested the legislative power of the Republic. Art. 66 of the Constitution
provides for qualifications and disquali-fications for election to, and being
members of the Parliament. Qualifications are that a person seeking election to
Parliament shall be a citizen of Bangla-desh and has attained the age of twenty five
years. A person shall be disqualified for election as, or for be-ing, a member of
Parliament, who (a) is declared by a competent court to be of unsound mind; (b) he
is an undischarged insolvent; (c) he acquires the citizen-ship of a foreign state; (d)
has been, on conviction for a criminal offence, sentenced to imprisonment for a
term of not less than two years, unless a period of five years has elapsed since his
release; (e) holds any office of profit in the service of the Republic. Clause (g) of
Art. 66 provide that further disqualification may be provided "by or under any
other law". Repre-sentation of the People Order, 1972 (President's Or-der No. 155
of 1972) which provides for election to Parliament has brought in another
disqualification in S.12. It is that a person may be disqualified if he has any share
or interest in a contract for supply of goods to or for the execution of any contract
with the government.

22. A Union Parishad, and for that purpose all other Local Government Bodies,
such as Upazilla Parishad, Pourashava, is not created by any Article of the
Constitution; but it has been created by a sep-arate Act of Parliament in pursuance,
as appears, of the provision of Art. 9 of the Constitution. This Ar-ticle provides
that the "State shall encourage Local Government institutions composed of
representatives of the areas concerned". The Union Parishad Ordi-nance, 1983,
which repealed and to a large extent re-enacted the Local Government Ordinance,
1976 (Or-dinance No. XC of 1976) in its application to Union Parishad, is the
Statute governing the constitution, function and responsibilities of, and election to,
the Union Parishad. Section 7 of the Ordinance, as al-ready referred to, provides
for qualifications and dis-qualifications of chairman and members of a Union
Parishad. Qualifications for a person seeking such election are that he is a citizen
of Bangladesh and has attained the age of twenty-five years. His disqualifi-cations
are that he has been declared by a competent court to be of unsound mind; he is an
undischarged insolvent; he has ceased to be a citizen of Bangla-desh; he has been,
on conviction for a criminal of-fence, sentenced to imprisonment for a term of not
less than two years, unless a period of five years has elapsed since his release; he
holds any office of profit in the service of the Republic or of the Union Pari-shad
or any other local authority; he is a party to a contract for work to be done for, or
goods to be sup-plied to, the Union Parishad concerned or has otherwise any
pecuniary interest in the affairs of the Un-ion Parishad.

23. It is seen that qualifications and disqualifi-cations in respect of election to a
Union Parishad are identical with those in respect of election to the Par-liament
and that this was the position from the be-ginning of Independence of the country
till" 24 June 1987 when the additional disqualification on the ground of default in
repayment of loan has been im-posed by an Amendment in the case of Union
Pari-shad election and not in the case of Parliament elec-tion. The amending
statute, namely Act XXIII of 1987, has amended not only the Union Parishad
Or-dinance but also has amended five other Ordinance re-lating to other Local
Government Bodies. They are the Paurasava Ordinance, 1977; The Local
Govern-ment (Upazilla Parishad and Upazilla Administration Re-organization)
Ordinance, 1982; The Chittagong Municipal Corporation Ordinance, 1972. The
Dhaka Municipal Corporation Ordinance, 1983; The Khulna Municipal
Corporation Ordinance, 1984. In each of these ordinances the same disqualification
on the ground of default in repayment of loan from the specified banks has been
provided where, till these amendments, there was no such disqualification in these
Ordinances. The disqualification is that "he has defaulted in repaying any loan
taken by him from any specified bank within the time allowed by the bank
therefore". The specified banks are also the same in all these Ordinances.

24. Kh. Mahbubuddin Ahmed has referred to President's Order No. 104 of 1972
(Bangladesh Electoral Rolls Order, 1972) which provides for prepara-tion of
Electoral Rolls for election of representatives of people to "elective bodies" and
has pointed out that an 'elective body means a body constituted by or under any
law or constitutional provision consist-ing of members to be elected on the basis of
adult franchise, and that" elective bodies" mean both Par-liament and Local
Government Bodies including Un-ion Parishads. This view is correct and it has
been confirmed by the Electoral Rolls (Amendment) Ordi-nance, 1984
Ordinance No. XVIII of 1984which also says that 'elective body' means a local
body or Parliament. All these bodies consist of People's rep-resentatives elected on
the basis of universal adult franchise, that is, they are elected by citizens who have
been enrolled on the electoral rolls in respect of their respective electoral areas.
Qualifications for a person to be enrolled on an electoral roll are that he is a citizen
of Bangladesh and that on the 'qualifying date he has attained the age of 18 years
of age, and that he is not of unsound mind. Electoral rolls are prepared by or under
the authority of the Election Commission in the manner laid down in s. 8 of the
President's Order No. 104 of 1972. P.O. 104 of 1972 was made by the President on
29.8.72, i.e. before the Constitution of Bangladesh was made and put into
operation on and from 16th December 1973. The Constitution, in Art. 119 (1), has
laid down the functions of the Election Commission. The func-tions are
preparation of Electoral Rolls for all elec-tions to the office of President and to
Parliament, de-limitation of electoral areas, called constituencies, in respect of
election to Parliament and conduct of such elections. Under Art. 119 (2) the
Election Commis-sion performs such other functions as prescribed by this
Constitution or "by any other law". It is in pur-suance of this provision of Art. 119
(2) of the Con-stitution that the Election Commission prepares Electoral Rolls for
all other elective bodies including the Union Parishad. In each of the statutes which
provide for constitution and function of different elective bodys specific provision
has been made em-powering the Election Commission to prepare elec-toral rolls
for election of people's representatives to these elective bodieswhich are also
called local government bodies. The provision for preparation of electoral rolls is
uniform in respect of all these bod-ies including the Parliament. From this position
of law, learned Counsel for the appellant argues that law, learned Counsel for the
appellant argues that representatives of the people, whether they consti-tute the
National Legislature at the top or the Union Parishad at, the ground level,
constitute a single class by themselves and that they have all along been gov-erned
by the same or identical law laying down their qualifications and disqualifications
for seeking elec-tion to these elective bodies and it is for the first time in June 1987
that a discriminatory treatment has been given to persons seeking election to the
Local bodies by bringing an additional disqualification for them but exempting
members of the Parliament from this disqualification. The learned Counsel has
con-tended that had the law-makers, who are themselves members of the
Parliament, any regard for the "equality before law and equal protection of law" in
Art. 27 of the Constitution and acted in fair and im-partial manner, they would
have subjected themselves 10 the same 'disqualification' by amending the
Representation of People's Order, 1972.

25. Learned Counsel for the appellant has taken a number of grounds to
substantiate his contention that s.7 (2) (g) of the Union Parishad Ordinance is
discriminatory offending Art. 27 of the Constitution. He has pointed out that the
object and reason for the im-pugned legislation bringing in the disqualification was
not stated in the amending statuteAct XXIII of 1987and contended that
default in payment of loan which is fully secured and recoverable according to
terms of the Agreement between lender and borrower as well as under the
appropriate law got no reasona-ble nexus whatever with the borrower's election to,
the Union Parishad. Again, if the purpose of the im-pugned legislation were to help
recovery of loans taken from State-owned banks and thereby to salvage the
national economy from ruin caused by large scale nonrecovery of the loans, then
this purpose would be better served by bringing members of Parliament also within
the ambit of the disqualification provision, he argues. Learned Counsel further
argues that even if the impugned law is defended on the ground of public goodas
a beneficial legislationthere can be no earthly reason for keeping members of
Parliament away from its ambit. Learned Counsel has argued that persons, such as
the appellant, seeking election to the lowest tier of the democratic set-up ordinarily
take loan in small amounts, whereas persons seeking election to National
Parliament lake loans in big amounts upto crores of taka, and if the latter being
defaulter are exempted from the hands of law but the former are subjected to it
then the impugned legisla-tion has been made on arbitrary classification of
per-sons and as such must be struck down. The learned Counsel has referred to a
number of decisions to sub-stantiate his contentions to which I shall pay atten-tion
in due course.

26. Mr. T.H. Khan, learned Counsel for respon-dent No.9, has also made a lengthy
submission, sup-ported by certain decisions, to show that the im-pugned legislative
provision as to disqualification by being a defaulter is not discriminatory in that
mem-bers of Union Parishad, and for that purpose, all oth-er local bodies,
constitute a separate class distin-guished from those representing the "people in
Parliament. These two kinds of elective bodies, created as they are, by different
statutes for perform-ing different functions and acting in different fields, cannot be
grouped into one class, he has contended. By giving separate treatment to these
distinctly sep-arate bodies of people's representatives, learned Counsel goes on, the
legislature acted quite within its power. He has argued that for reasons of history,
geography level of education, culture and economic condition of people of the
country, the peoples' rep-resentatives may, be treated according to different
standards by the legislative with a view to attaining some definite objects, and
since the local bodies and the Parliament are traveling on distinctly separate paths,
they cannot be treated alike for the purpose of legislation. The learned Counsel has
argued that among the members of the local bodies there is no inter se
discrimination, but all of them have been equally treated. Secondly, a person
seeking election to a local body, such as the appellant, though dis-qualified, is at
liberty to seek election to Parliament where the question of default in payment of
loan will not arise as a disqualification. As to the object of this legislation, that is,
barring a defaulter from seeking election to local bodies, the learned Counsel has
submitted that it is a beneficial piece of legisla-tion and though this object has not
been expressly stated in the statute it may be gathered from com-mon knowledge
about the prevailing state of things and general economic condition of the country
vis--vis the object for achieving which the statutes creat-ed the local bodies.
Learned Counsel has pointed out that because of huge amounts of loans, taken
from nationalised banks remaining unpaid the national economy has been brought
on the verge of collapse and this default clause is quite likely to help strengthen the
battered economy. As to exemption of members of the National Legislature from
this bene-ficial law, he has regretted their exclusion which, he says, is highly
improper though not unconstitution-al. He however hopes that the law-makers will
reconsider this aspect of the matter and bring about ne-cessary amendment in the
law subjecting themselves to the same disqualification.

27. The learned Attorney General has appeared at our request to assist us in
arriving at a correct de-cision in this case as to interpretation of the Consti-tution.
In general he has adopted the arguments ad-vanced by Mr. T.H. Khan. In addition,
he has referred to a great number of decisions of the Indian Supreme Court in
which power of the legislature to make reasonable classification of persons, things
and transaction on the basis of intelligible differentia, for achieving definite
legislative, end, has been exam-ined. He has disagreed with Kh. Mahbubuddin
Ah-med that members of Parliament and those of all other elective bodies also
known as local Govern-ment bodies, constitute one and single class. He has
contended that these bodies, Parliament and local Bodies, are quite dissimilar in
respect of their nature and functions as well as in respect of legislative ob-jectives
for achieving which they are created. He has submitted that in view of special
characteristics and different functions and activities of the local bodies different
qualifications or disqualifications may be re-quired of persons seeking election
thereto. He has re-ferred to the Bengal Municipal Act, 1918 which pro-vides for
disqualification for a person seeking election to the Municipal Corporation if he
has not cleared his municipal rent and charges. This provi-sion has been retained
by the Municipal Ordinance, 1983, he has submitted. He has also cited a decision
of the Patna High Court in which it has been held that a Municipal Law which
provides that a person who has not cleared municipal dues is disqualified from
seeking election as Commissioner thereof is constitutionally valid.

28. From the respective submissions of the parties in this case the question before
us is whether the guarantee of the Constitution, in Art. 27, that "all citizens are
equal before law and are entitled to equal protection of law" has been disregarded
in the impugned legislation, namely section 7 (2) (g) of the Union Parishad
Ordinance. First of all it is to be clearly un-derstood what 'the equality of law'
means. Sir Ivor Jennings in his "The Law and the Constitution" has stated:

"Equality before the law means that among equals the law should be equal and
should be equally administered, that like should be treated alike".

Dicey in his "law of the Constitution', stated:

"Equality before the law does not mean ab-solute equality of men which is a
physical im-possibility, but the denial of any special privi-leges by reason of birth,
creed or the like, in favour of any individual and also the equal sub-jection of all
individuals and classes to the ordi-nary law of the land administered by the
ordinary law Courts."

In the "Limitations of Government Power" by Rotundy and others "equal
protection of the laws" has been described as:

"The equal protection clause guarantees that similar individuals will be dealt with
in a simi-lar manner by the government. It does not reject the government's ability
to classify persons or draw lines' in creation and application of laws, but it does
guarantee that those classifications will not be based upon impermissible criteria or
arbitrarily used to burden a group of individuals. Such a classification does not
violate the guar-antee when it distinguishes persons as 'dissimilar' upon some
permissible basis in order to advance the legitimate interest of society."

In Southern Rly Co. V. Greane, 216 U.S. 400 Day J. observed:

"Equal protection of the laws means subjec-tion to equal laws, applying alike to all
in the same situation."

Chandrachud J., in "Smt. Indira Gandhi V. Raj Narayan", AIR 1975, and SC 2279
described his idea of equality as:

"All who are equal are equal in the eye of law", meaning that it will not accord
favored treatment to persons within the same class."

29. On consideration of the views expressed by these distinguished Judges and
Authors as to the meaning of the "equality before law and equal protec-tion of the
law", I do not think that I will be able to define this term in a better way, "Equality
before law" is not to be interpreted in its absolute sense to hold that all persons are
equal in all respects disre-garding different conditions and circumstances in which
they are placed or special qualities and charac-teristics which some of them may
possess but which are lacking in others. The term 'protection of equal law' is used
to mean that all persons or things are not equal in all cases and that persons
similarly sit-uated should be treated alike. Equal protection is the guarantee that
similar people will be dealt with in a similar way and that people of different
circumstanc-es will not be treated as if they were the same. A single law therefore
cannot he applied uniformly to all persons disregarding their basic differences with
others; and if these differences are identified, then the persons or things may be
classified into different cat-egories according to those distinctions; this is what is
called 'permissible criteria! or "intelligible differen-tia", The Legislature while
proceeding to make law with certain object in view, which is either to remove
some evil or to confer some benefit, has pow-er to make classification on
reasonable basis. Classi-fication of persons for the purpose of legislation is
different from class legislation, which is forbidden.

To stand the test of 'equality' a classification, be-sides being based on intelligent
differentia, must have reasonable nexus with the object the legislature intends to
achieve by making the classification. A classification is reasonable if it aims at
giving spe-cial treatment to a backward section of the popula-tion; it is also
permissible to deal out distributive justice by taxing the privileged class and
subsidising the poor section of the people. What is of funda-mental importance in
law-making is that while mak-ing a classification the legislature shall not act
arbi-trarily but make selection on rational basis. In the light of these observation's I
shall see whether the impugned legislation is supportable in terms of 'equality of
law' within the meaning of Art. 27 of the Constitution. In support of their
respective con-tentions learned Counsels have cited many decisions which I now
proceed to consider.

30. In the case of State of West Bengal v. Anowar Ali Sarkar, AIR 1952, SC 75,
the Su-preme Court of India struck down section 5 (1) of the West Bengal Special
Courts Act, 1950 as violative of Art. 14 of the Indian Constitution which provides
that "the State shall not deny to any person equality before law or the equal
protection of the laws". The impugned section of the law provides that a special
Court shall try offences or classes of offences or cas-es or classes of cases as the
State government may direct. Contention of the accused-respondent was that this
provision gave arbitrary power to the gov-ernment to choose any accused person
for trial before the Special Court which follows a harsher procedure than the
ordinary courts and as such it offended Art. 14 of the Constitution. This contention
was upheld with the observation that "the Act has completely ignored the principle
of classification followed in the Crl. P.C. and has laid down a new procedure
without making any attempt to particularizes or classify the offences or cases to
which it is to apply". In Dhirendra Kumar Vs. Government of West Bengal, AIR
1954, SC 424, a similar question arose and the Supreme Court upheld the
contention of the accused-appellant that the impugned Notification of the State
Government revoking its previous Notification, by which the accused was granted
trial by Jury under section 269(1) Crl. P.C., and directing his trial with the aid of
Assessors, offended the equality provision in Art. 14 in that the classification of
cases and of-fences to be tried with the aid of Assessors as per Government
Notification was not based on any sub-stantial distinction. In Panduranga Rao vs.
Andhra Pradesh Public Service Commission, AIR 1963, SC 268, a rule made by
the Government of the Province laying down certain special qualifications for
recruitment of District Munsifs was challenged on the ground that it made arbitrary
classification be-tween Advocates of one High Court and those of other High
Courts of India. The rule says that a can-didate for the post of District Munsif,
among other things, must be an advocate of the 'the High Court', which expression
meant only the High Court of Andhra Pradesh. The Supreme Court found that this
rule introduced a classification between one class of advocates and the rest and that
this classification was irrational inasmuch as there was no nexus between the basis
of the classification and the object intended to be achieved by the relevant rule.
The Court ob-served:

"When any impugned rule or statutory pro-vision is assailed on the ground that it
contra-venes Art. 14, its validity can be sustained if two tests are satisfied. The
classification must , be based on an intelligent differentia which dis-tinguished
persons or things 'grouped together from others left out of the group, and the
second is that the differentia must have a reasonable re-lation to the object sought
to be achieved by the rule of statutory provision."

The Court held the rule to be unconstitutional offending Art. 14.

31. Kh. Mahbubuddin Ahmed has given much emphasis on an observation of the
Indian Supreme Court in the case of State of Madhya Pradesh Vs. Mandawar, AIR
1954, SC 493 and has argued that the principle indicated therein is quite applicable
to the present case. In that case two laws, one made by the State Legislature and
the other made by the Central Legislature, both providing for Dearness
Al-lowances to government servants but at different rates, the higher rate for the
Central government employees and the lower rate for the State government
employees, came up for consideration of the question whether they were
discriminatory'. Contention of the respondent, an employee of the State
government, that the law governing his case was discriminatory was upheld by the
High Court, but it was rejected by the Supreme Court on appeal on the ground that
granting of Dearness Allowance at a particular rate is a matter of grace and not a
matter of right and hence the claim against the government for granting Dear-ness
Allowance at a particular rate is not justifiable. The Supreme Court however
observed:

"It is conceivable that when the same Leg-islature enacts two different laws but in
sub-stance they form one legislation, it might be open to the court to disregard the
form and treat them as one law and strike it down if in their conjunction they result
in discrimination."

But those laws having been made by two differ-ent Legislatures on their respective
fields the Su-preme Court found no discrimination as alleged by the respondent. In
the instant case Kh. Mahbubuddin Ahmed's argument may be acceptable so far as
the source of authority of making law is concerned, that is, Parliament, in that both
the Representation of the People Order, 1972 and the Union Parishad Ordi-nance,
1983 have been enacted by Parliament. But the question is whether people's
representatives in the parliament and the Union Parishad do constitute one and
single class. This question requires to be an-swered first.

32. A glaring instance of discriminatory legis-lation offending "equality before
law" is available in the case of Indira Gandhi vs. Raj Narayan (supra). There,
amended Art. 329-A (4) of the Indian Consti-tution was assailed, among other
things, on the ground of arbitrary classification. Indira Gandhi's election to
Lokshabha held in March 1971 was held void by the Allahabad High Court and
against that decision she preferred an appeal before the Supreme Court. During
pendency of the appeal, Indian Parlia-ment amended the Constitution inserting
therein Art. 329A. Clause (4) of this Article made the existing Election Laws
retrospectively inapplicable to Parliamentary elections of the Prime Minister and
the Speaker; it kept the election of these two personag-es, who are members of
Parliament, beyond the reach of any law past or present; it declared the dis-puted
election of Indira Gandhi valid and further de-clared that the judgment of the
Allahabad High Court was void and the election petition challenging her election
abated. Existing Election laws were however kept alive to be applicable to
elections of all other members of the Parliament. The Supreme Court struck down
clause (4) as grossly discriminatory.

33. Mr. T.H. Khan, in upholding the classifi-cation as regards the local
Government bodies, has placed reliance on Pakistan Supreme Court's decision in
"Jibendra Kishore Vs. Prov. of East Pakistan", 9 DLR SC 21. In that case, upon the
wholesale ac-quisition of all rent-receiving interests the expropri-ated landlords
were sought to be compensated for to some extent and for that purpose they were
grouped into ten classes under section 37 of the East Bengal State Acquisition and
Tenancy Act, 1950. This classifica-tion was challenged as being violative of the
equality before law provision of Art. 5 of the Constitution of 1956. The
classification was based on the landlords' net annual income from their estates, the
lower the income the higher the rate of compen-sation. Munir CJ., upholding the
classification ob-served that if the Legislature once decided to abolish the system
of private landlordism in agricultural land and the resources of the State were not
sufficient to compensate the outgoing landlords, some means for the rehabilitation
of the expropriated landlords had to be devised, and, if in its anxiety to rehabilitate
such landlords, the legislature took into consideration the net income of the persons
whom it was intended to set on their feet, the classification based on such
considerations must be considered to be a necessary result of bringing the
expropriating provision of the Act into action. As to "equality of the law and equal
protection of law", he observed:

"Whatever the expression equal protection of law may mean, it certainly does not
mean equality of operation of legislation upon all citi-zens of the State... Equal
protection of the laws means that no person or class of persons shall be denied the
same protection of the laws which is enjoyed by other persons or other classes, in
like circumstances."

34. Of the cases referred to by the learned Attor-ney General "Charanjit Lai. Vs.
Union of India", AIR 1951 SC 41, is one of the earliest cases de-cided by the
Indian Supreme Court in the light of Art. 14 of the Indian Constitution. In that case
a sin-gle manufacturing company namely, Sholapur Spin-ning and Weaving
Company, was treated by the Indi-an Central Legislature "as a class by itself in
view of allegation of mismanagement, and a law was made for better management
of the affairs of the company The law, Sholapur Spinning and Weaving Company
(Emergency Provisions) Act, 1950, empowered the Government to appoint
Directors of the Board of Management of the company in place of the existing
ones. It was contended by the appellant, one of the share-holders of the company,
that more or less simi-lar allegation of mismanagement might be brought against
other companies of the country but his com-pany had been singled out for
discriminatory treatment by the Legislature. This contention was over ruled and it
was observed that "guarantee against the denial of equal protection of the law does
not mean that iden-tically the same rule of the law should be made appli-cable to
all persons within the territory of India in spite of different circumstances and
conditions". In "Lachhman Das. Vs. The State of Punjab, AIR 1963, SC 22, a
particular bank, Patiala State Bank, was treated as a class by itself in the Patiala
Recovery of State Dues Act, 1957. This Act provided a special procedure for
determination of this bank's dues and recovery thereofa procedure much harsher
than that of all other banks in the country. Validity of this provision of the Act
came under challenge; but the challenge was overruled on the ground that the fund
of this bank was the state fund distinguished from funds pf other banks which
belonged to subscri-bers and shareholders. In "The State of Bombay Vs. F. N.
Balsara", AIR 1951, SC 318, S. 39, the Bombay Prohibition Act, 1949, was
challenged under Art. 14 of the Constitution on the ground of discrimi-nation in
favour of members of the Armed Forces in respect of use of liquor. The High
Court upheld the contention of the respondent that this provision of the Act was
discriminatory offending Art. 14, but on appeal the Supreme Court took a different
view and up-held the classification observing that "there is noth-ing wrong in the
Legislature according special treat-ment to persons of the armed forces who form a
class by themselves in many respects and who have been treated as such in various
enactments and that relaxation of the prohibitory provisions of the Act in favour of
the members of the armed forces is consti-tutionally valid. In the case of "Ram
Krishna Dalmia vs. Justice Tendolkar", AIR 1958, SC 538, the classification made
was upheld with the observation that the classification to be valid must have
reasona-ble nexus with the object of legislation. In "Jalan Trading Company vs.
Mill Mazdoor Sabha", AIR 1967, SC 691, S.10 of the Payment of Bonus Act, 1965
was assailed as being discriminatory. It provided for making bonus payable to
workers of the company, whether there were profits in the relevant accounting year
or every year. Contention of the Mill owners was rejected by the Supreme Court
upon elucidating the "equality provision in a negative way as:

"Equal protection of the laws is denied if in achieving a certain object, persons,
things or transactions of similar circumstances are differ-ently treated and that the
principle underlying that different treatment has no rational relation to the object
sought to be achieved by the law."

35. In "Anant Mills Vs. State of Gujrat, AIR 1975, SC 134, certain properties were
treated as a special class for the purpose of levying conservancy charges at higher
rates in the Bombay Provincial Corporations Act, 1949, as amended by the Gujarat
Act No. 5 of 1973, in its application to the latter State. The Act also -treated the
decided cases as be-longing to one category and pending cases as belong-ing to
another category. Both the classifications were held to be constitutionally valid.
The Indian Su-preme Court considered a Reference made by the President of India
under Art. 143 of the Indian Con-stitution and this matter was reported in AIR
1979 SC 478 as Special Courts Bill 1978. The question was whether the Special
Courts Bill, if made into law, would be constitutionally valid. The Bill pro-vided
for creation of Special Courts to try certain of-fences committed by high public
officials and political persons during the period of Emergency declared on 25 June,
1974. The classification of persons and offences for trial by the proposed Special
Courts which were to follow a harsher procedure than the or-dinary courts of the
country was seriously assailed on the strength of the equality clause of Art. 14; but
the classification was upheld by the Supreme Court which found that there was a
reasonable nexus be-tween it and the object of the law to ensure speedy trial of
offences committed in peculiar circumstances.

36. In R.K. Carg v. Union of India, AIR 1981, SC 2138, Special Bearer Bonds
(Immunities and Exemptions) Act, 1981, which made a classifica-tion between
persons having 'black money' and oth-ers, was held lo be quite reasonable, and
permissible under the 'equality of law' provision of Art. 14 as the privileges and
immunities were offered to the class of persons in possession of black money for
the purpose of unearthing the black money "for being utilized for productive
purposes with a view to effective social and economic planning". In Lingappa
Pochanna vs. State of Maharastra, AIR 1985, SC 389, the Maharastra Restoration
of Lands to Scheduled Tribes Act, 1975, came under challenge on the ground of
dis-crimination. This Act provided for annulment of transfers of agricultural land
made by members of the Special Tribes to members of the advanced communi-ties.
Members of the Scheduled Tribes, known as Tribal or Aboriginals, were treated as
a distinct, separate class who are poor, backward and very weak in the matter of
bargaining with members of other commu-nities who are far advanced
economically, politically, strong financially and Very affluent. Many members of
the Tribe sold away their agricultural land to mem-bers of the affluent
communities, sometimes at un-conscionable low price. The State Legislature
enacted the law in question providing for annulment of such transfers if they were
made during the "specified peri-od" prior to the making of the law. This
classification was held to be constitutionally valid and not discri-minatory.
Classifications for the purpose of legisla-tion were upheld by the Supreme Court of
India in the remaining two cases cited by the learned Attorney General, namely
State of Gujarat Vs. Shri Ambica Mills. AIR 1974, SC 1300 and Shujal Ali vs.
Union of India, AIR 1974, SC 1631.

37. The principles of reasonable classification of persons and things for legislative
purposes as stated and explained in the decisions of both Indian and Pakistan
Supreme Courts referred to above, have followed the lines of reasonings of the
United States Supreme Court which were based on interpretation of the equality
clause of the 14th Amendment of the U.S. Constitution. I think it would be quite
appro-priate if I quote a passage from one of such deci-sions of the U.S. Supreme
Court. In Southern Rail-way Co. Vs. Greane (1909-216 U.S. 400), supra, Day J,
observed:

"While reasonable classification is permit-ted, without doing violence to the equal
protec-tion of the laws, such classification must be based upon some real and
substantial distinc-tion, bearing a reasonable and just relation to the things in
respect to which such classification is imposed; and the classification cannot be
arbitrarily made without any substantial ba-sis. Arbitrary selection, it has been said
cannot be justified by calling it classification."

38. Kh. Mahbubuddin Ahmed has argued that there was no classification between
people's repre-sentatives in the Local Government bodies and those in the
Parliament and they all were treated as one class, so far as their qualifications and
disqualifica-tions were concerned, till the impugned Amendment which gave a
different treatment to the people's rep-resentatives in the local bodies. He argues
that this differentiation does not attract the classifications found in any of the
decisions cited in this case and this differentiation or classification is arbitrary. He
has pointed out that object of the Amendment bring-ing in the impugned law was
not stated therein and if furtherance of economic or financial interest of the State
were the object, there is no reason whatever for exemption of the members of the
Parliament. But the position of law on this point is that it must be presumed that
the Legislature is fully aware of the Society's problems and the Legislature makes
law to solve such problems keeping in view the welfare of the people. It also must
be presumed that when any law is made it is constitutionally valid until the
presumption is rebutted by the person who challenges its validity. The United
State's Supreme Court in Middleton Vs. Texas P & L Co, 248 U.S. 152, observed:

"It must be presumed that a Legislature un-derstands and correctly appreciates the
needs of its own people, that its laws are directed to prob-lems made manifest by
experience and that its discriminations are based upon adequate grounds."

Bruen J, in Gulf Colorado Rly. v. Ellis, 165 U.S. 150, however, warned against
carrying this presumption too far and observed:

"To carry the presumption to the extent of holding that there must be some
undisclosed and unknown reason for subjecting certain individu-als or corporations
to hostile and discriminatory legislation is to make the protection clause of the 14th
Amendment a mere rope of sand."

Bhagawati J, in Shujat Ali vs. Union of India, AIR 1974, and SC 1631 observed:

"The doctrine of classification should not be carried to a point where instead of
being a useful servant it becomes a dangerous master."

In Lachmon Das vs. State of Punjab (supra) Subha Rao J, observed:

"Over-emphasis on the doctrine of classifica-tion or an anxious and sustained
attempt to find some basis for classification may gradually and imperceptively
deprive the article of its glorious content. That process would gradually and
imper-ceptively substitute the doctrine of classification for the doctrine of
equality".

39. Kh. Mahbubuddin Ahmed has emphasized "the test of reasonableness" in
considering a classifi-cation for legislation and has contended that the im-pugned
classification between the same kind of peo-ple namely, people's representatives,
does not stand the 'test of reasonableness'. He has, in this connec-tion, referred to
an observation of Patanjali Shastri CJ., in the State of Madras Vs. V.G. Row, AIR
1952, and SC 196. It is that in forming a correct con-ception of reasonableness the
social philosophy and the scale of values of the Judges participating in the decision
play an important part. We do not think that in construing a Legislation the court
will adopt a doctrinaire approach which, as F. Ali, J, ob-serves, "might choke all
beneficial Legislation". If two categories of persons or things, though they may
have some resemblances, differ in material points, then they may be separately
treated for the purpose of legislation. I shall, therefore, examine the basic
differences in the two kinds of representatives of people as pointed out by the
learned Attorney General.

40. Parliament is a creation of the Constitution itself; the local elective bodies are
created by their re-spective statutes in pursuance of Art. 9 of the Con-stitution,
which appears in Part II relating to Funda-mental Principles of State Policy. These
Principles, though they must be applied by the State in the making of law, are not
justifiable in court. The main function of Parliament is law making, that is,
legislative, whereas the main functions of local bod-ies are executive in nature. In
the case of Union Parishads, the functions are maintenance of law and order and
rendering assistance to administration in this matter; adoption of measures for
preventing crimes, disorder and smuggling; adoption of development schemes for
socio-economic development and imple-mentation of these schemes as well as
those assigned to them by higher authorities; development of local resources and
their use; protection and maintenance of public properties such as roads, bridges,
canals etc., motivation of people for family planning, im-provement of sanitary
condition and primary education. Besides these functions, the government may
entrust to Union Parishads some of the police and Village defence functions. To
assist revenue officials in collection of rents and taxes and in preparation of records
and assessments is their important responsibilities. For each Union Parishad there
shall be a fund known as Union Fund which is managed by, and in custody of, the
Union Parishad. These are purely executive functions. Parliament has no func-tion
like these. It is true that from among members of Parliament most of the ministers
are appointed whose functions are executive in nature, and that reg-ular
Parliamentary Committees with some members of Parliament are formed for
transaction of business of the parliament. But this does not alter their char-acter
and functions as members of the Supreme law-making Body which is one of the
three Organs of the Government under the Basic Principle of Separation of Powers
between the Executive, Legislative and the Judiciary. Again, a local body is a
"body corpo-rate" having perpetual succession with a right to ac-quire and dispose
of property and to sue and to be sued. Above all, members of a Union Parishad are
'public servants' within the meaning of S. 21 of the Penal Code. The term 'Public
Servants' denotes some executive control over them and they are sub-ject to
disciplinary rules which are applicable to reg-ular government servants. In view of
these differenc-es in respect of functions and duties, the Legislature thought it
proper and expedient to treat them as a separate class of people's representatives
and has pro-vided for the additional disqualification in question.

41. The main object of the 'disqualification provision appears to be the furtherance
of economic and financial interest of the State and though it has not been expressly
stated in the statute it is clear from the nature of duties and responsibilities of the
persons constituting these local bodies. It is a com-mon knowledge that for non-
payment of loans taken from State owned banks, the national economy has been
badly affected. One of the functions of Union Parishads is to help collection of
government dues, rent and taxes. Besides, members of the Union Pari-shad are
directly involved in financial transaction in the course of their official duties and
running the af-fairs of the Union Parishad. The fact that these per-sons are
financially handicapped by being 'defaulters' will embarrass them in the discharge
of their duties. It is quite natural that a person seeking election to local body, such
as a Municipality, will be debarred from doing so unless he clears his dues in rent
and taxes to that body. What is the harm if the Legisla-ture extends this bar to his
dues to the government controlled banks? The Legislature has not imposed similar
bar against persons seeking election to Par-liament because it has treated members
of Parliament as a separate class and in making classification of persons and things
it is not bound by any inflexible standard disregarding vital points of differences.
Dead uniformity in making a classification is not neces-sary and rules of
classification may allow flexibility. As Plato said in his 'Politicus' laws would
operate like an obstinate and ignorant tyrant if they impose inflexible rules without
allowing for exceptional cas-es. If a law is applicable to all persons of a well
de-fined class, then it cannot be criticised on the ground that similar law has not
been made for application to members of other classes. Exclusion of members of
the other class, namely the parliament from this law, which is undisputedly a
beneficial one, is certainly unethical and morally undependable; but it is not
un-constitutional. It is not invalid because it is uniformly applicable to all persons
of the same class, namely members of local bodies. When the Legisla-ture thought
it expedient in the national interest to provide for the impugned disqualification for
mem-bers of local bodies, they should have provided for similar disqualification
for themselves by amending the Representation of the People Order, 1972.
Exclu-sion of members of Parliament is found to be an omission of grave
impropriety, which however, may be corrected even now by the law makers
them-selves, if not required by any law, at least by dictates of good conscience and
high sense of patriotism. But exclusion of members of one elective body from a
particular disqualification cannot be a ground for at-tacking the validity of the law
in respect of other lo-cal bodies; those who are disqualified to seek election to local
bodies face no discrimination if they seek election to Parliament, and secondly,
there is no in-ter se discrimination among members of the elective bodies.

42. The right to seek election to the local bod-ies or even to the Parliament is not
fundamental right guaranteed by the Constitution; it is a statutory right and in the
instant case, created by the Union Parishad Ordinance, 1983. Nevertheless, to be a
can-didate for election is a democratic right which must be jealously guarded and
effectively protected against any invasion from any quarter. Thwarting this right by
creating artificial classification among the people or attaching 'disqualification' for
extraneous consider-ation will cut at the root of the democratic set up of the
republic. In this connection I like to refer to two decisions of the U.S. Supreme
Court, one in Doland Paul Lublin Vs. Leonard Panish, US-SCR39 L. Ed-2nd,
415-709; and the other in Bob Bullock Vs. Van Philip Carter-US-SCR-31-L. Ed,
2nd, 405, 134. In the first mentioned case, the appellant sought nomination for
election to the Country Board of Supervisors. A law of his State Legislature
re-quired of a candidate a 'filing fee' before he submits his nomination paper. The
appellant was unable to pay the fee and challenged the Statute itself in Court
contending that it is discriminatory against him vis--vis other candidates who are
rich and capable of paying the fee which stands in the way of exercising
democratic right. His contention was ultimately up-held by the Supreme Court by a
unanimous decision of seven Judges in which it was observed that the provisions
requiring filing fee violated the equal pro-tection of law guaranteed by the 14th
amendment of the Constitution; it also violated the right of free ex-pressions of
democratic views of electors who are de-prived of casting their votes in favour of
the candi-date of their choice. In the other case, similar filing fee for persons
seeking election to Texas Democratic Primary for country office was required by
the State legislation. This provision of the statute was chal-lenged as violating the
equality clause of the 14th amendment; the challenge was upheld, the statute was
declared unconstitutional being violative of equal protection of law of the 14th
Amendment and was struck down by the Supreme Court.

43. Those cases, we find, are distinguishable from the instant case in that there the
persons seek-ing election did not by their own volition incur the financial
disqualification, but the disqualification was imposed by law requiring payment of
high amount of filing fee which many candidates found difficult to pay. In the
instant case, it is the appellant himself who borrowed the money from bank for his
own benefit but did not repay it.

44. In the result, we find that the provision in section 7(2)(g) of the Union Parishad
Ordinance, 1983, is not discriminatory but is constitutionally valid. The appeal is,
therefore, dismissed. The order of stay granted by this Court is vacated and the
appellant's election as Chairman of the Union Parishad in ques-tion is set aside. He
is directed to vacate his office at once. Fresh election may be held by the Election
Commission. In view of the important question of law involved in this appeal we
make no order as to costs.

M.H. Rahman J. I have read the judgments of brother Shahabuddin Ahmed and
broth-er A.T.M. Afzal. I agree that the appeal should be dismissed. As I hold a
slightly different view on one or two points I think I should give my own
reason-ings.

46. The appellant's nomination-paper for elec-tion lo the office of the Chairman of
Borashi Union Parishad was rejected by the Returning Officer on the ground that
he was disqualified from seeking election under S.7(2)(g) of the Local Government
(Union Parishads) Ordinance, 1983 (Ordinance No. LI of 1983) as he defaulted in
repaying the loan he had tak-en from the Janata Bank and Krishi Bank at
Gopalganj.

47. The appellant contends that he is similarly circumstanced with a Member of the
Parliament, both being a representative of the people elected by the electors on the
basis of adult franchise, but the Legislature in violation of Art. 27 of the
Constitu-tion provided a different disqualification in his case by inserting a new
clause, clause (g) in sub-section (2) of Section 7 of the Ordinance No. LI of 1983
by sect. 6 of the Local Government (Amendment) Act, 1987 (Act XXIII of 1987).

48. The appellant's contention may appear irresolvable when one hurriedly glances
through the re-spective provisions for disqualification for election. Art. 66 (2) of
the Constitution provides:

"66. (2) A person shall be disqualified for election as, or for being, a member of
Parlia-ment who

(a) is declared by a competent court to be of unsound mind;

(b) is an undischarged insolvent;

(c) acquires the citizenship of, or affirms or acknowledges allegiance lo, a foreign
state;

(d) has been, on conviction for a criminal offence involving moral turpitude,
sentenced to imprisonment for a term of not less than two years, unless a period of
five years has elapsed since his release;

(dd) holds any office of profit in the service of the Republic other than an office
which is de-clared by law not to disqualify its holders;

(g) is disqualified for such election by or under any law."

Proviso to Art. 12 of the Representation of the People Order, 1972 (P.O. No. 155
of 1972) provides for another disqualification for election to Parliament-

"Provided that a person shall be disqualified for being a member if he, whether by
himself or by any person or body of persons in trust for him or for his benefit or on
his account or as a member of a Hindu undivided family, has any share or interest
in a contract, not being a con-tract between a co-operative society and
Govern-ment, for the supply of goods, to or for the exe-cution of any contract or
the performance of any services undertaken, Government."

Sub-section 2 of Section 7 of the Local Govern-ment (Union Parishads) Ordinance
1983 reads as fol-lows:

"7. (2) A person shall be disqualified for elec-tion or nomination as, or for being, a
Chairman or a member if

(a) he is declared by a competent court to be of unsound mind;

(b) he is an undischarged insolvent;

(c) he has ceased to be a citizen of Bangla-desh;

(d) he has been, on conviction for a crimi-nal offence involving moral turpitude,
sentenced to imprisonment for a term of not less than two years, unless 9 periods
of five years has elapsed since his release;

(e) he holds any full-time office of profit in the service of the Republic or of the
Union Parishad or of any other local authority; or

(f) he is a party to a contract for work to be done for, or goods to be supplied to,
the Union Parishad concerned, or has otherwise any pecuni-ary interest in its
affairs, or is a dealer in essen-tial commodities appointed by the Government.

(g) he has defaulted in repaying any loan taken by him from any specified bank
within the lime allowed by the bank therefore."

Clause (g) was inserted by Sect. 6 of the Act XXIII of 1987, the impeached
legislation. It is sub-mitted that in view of similar provisions for disqual-ification
in the two laws passed by the same Legisla-ture insertion of the new financial
disqualification, clause (g), without making a corresponding provi-sion in case of a
member of the Parliament has vio-lated Art. 27 of the Constitution. It is suggested
that such a provision can easily be made by amending P.O. 155 of 1972.

49. It is not necessary to examine in this case whether in view of clause (b) of sub-
Art. 2 of Art. 66 of the Constitution any financial disqualification like the
impugned clause (g) can be added by making an amendment in P.O. 155 of 1972. I
find it more im-portant to point out that in case of the member of the Parliament all
provisions for disqualification ex-cept the one provided in Art. 12 of P.O. 155 of
1972 are provided in the Constitution. This is important because of the initial
objection raised by the appellants opponent, respondent 9, that the
disqualifica-tions for two different categories of representatives of people having
been provided under two separate laws governing distinctly two separate
institutions, the question of violation of Art. 27 can not be tested by comparing the
two sets of laws, Reliance has been placed on State of Madhya Pradesh Vs.
Mandawar, AIR 1954 (SC) 493.

50. In reply to that objection the appellant re-lied on the following observation
made in para 9 of the report of that case;

"It is conceivable that when the same Leg-islature enacts two different laws but in
sub-stance they form one, legislation, it might be open to the court to disregard the
form and treat them as one law and strike it down if in their, conjunction they
result in discrimination."

51. No case was cited to show whether the In-dian Supreme Court had any
occasion to consider the useful hypothesis. For a clear understanding of the ratio
decidendi of that case I think I should quote the sentence preceding that
observation as well as the sentences following it:

"This power of the Court to declare a law void under Article 13 has to be exercised
with reference to the specific legislation which is im-pugned. It is conceivable that
when the same legislature enacts two different laws but in sub-stance they form
one legislation, it might be open to the Court to disregard the form and treat them
as one law and strike it down, if in their conjunction they result in discrimination.
But such a course is not open where, as here, the two laws sought to be read in
conjunction are by different Governments and by different Legis-latures. Article 14
does not authorise the striking down of a law of one State on the ground that in
contrast with a law of another State on the same subject its provisions are
discriminatory. Nor does it contemplates a law of the Centre or of the State dealing
with similar subjects be-ing held lo be unconstitutional by a process of
comparative study of the provisions of the two enactments. The sources of
authority for the two statutes being different, Article 14 can have no application".

That decision has been consistently followed by the Indian Supreme Court: see
Lachhman Das vs. Punjab 1963 AIR SC 222, Narottamdas vs. M. P. AIR 1964 SC
1667. In Prabhakaran Nair V. State of Tamil Nadu & other 1987 AIR (SC) 2117, it
was contended that Tamil Nadu Rent Act was violative of Art. 14 of the Indian
Constitution as in that law, unlike many other Rent Acts in India, there was no
provision for re-induction of the tenants in the premises after reconstruction. After
referring to Mandawar's case the Indian Supreme Court reject-ed the contention.

52. The two sets of laws in the instant case cannot be termed as one law, though
they were passed by the same Legislature. They are classes apart. The impeached
legislation govern only those, and governs them equally, who aspire to be elected
to a Local Government institution. The appellant, despite his disqualification to the
office of the Chair-man of the Union Parishad, will not be debarred from
contesting, an election for the membership of the Parliament, if he is otherwise
qualified. The Leg-islative sanctions behind the two sets of laws are also
dissimilar. The laws relating to disqualification for election to Parliament
excepting the one provided in P. 0. 155 of 1972, can only be amended by two-
thirds of the total number of Members of the Parlia-ment. The law relating to the
Chairman or member of the Union Parishad can only be amended by a simple
majority like any other ordinary law. For this singular distinction I hold that the
two sets of laws in the instant case are not comparable for an enquiry into the
constitutionality of the impeached legisla-tion.

53. The similarity between a Member of the Parliament and a member of a local
body is literally nominal, confined only to the nomenclature of the "representative
of the "People". The Local Govern-ment institutions in our country had always
been un-der the tutelage of the Government. With the commencement of the
Constitution of 16th December, 1972 the concept of Local Self-Government had a
promising start. One of the Fundamental principles of State policy was provided in
Art. 11 which reads as:

"The Republic shall be a democracy in which fundamental human rights and
freedoms and respect for the dignity and worth of the hu-man person shall be
guaranteed, and in which ef-fective participation by the people through their
elected representatives in administration at all levels shall be ensured."
(Underlining is mine) There was a separate chapter in Part IV of the Constitution,
Chapter II containing articles 59 and 60, for the Local Government."

54. In 1975 by the Fourth Amendment the constitutional structure for the Local
Government was radically changed. By Section 2 of Act II of 1975, the comma
and all the words after the word ' "guaranteed" in Art. 11 were omitted. Two years
af-ter with a view to promoting Local Government in-stitutions the Proclamation
(Amendment) Order, 1977 (Proclamations Order No. 1 of 1977) substituted old
Art. 9 by the following:

"9. The State shall encourage Local Gov-ernment institutions composed of
representa-tives of the areas concerned and in such institu-tions special
representation shall be given, as/far as possible, to peasants, workers and women
(underlining is mine)".

55. The difference 'between the terms 'ensures' and 'encourage' hardly needs an
underlining. The Lo-cal Government institutions are now under the fos-tering care
of the Government. The provision for en-couraging Local Government institution
as enjoined under Art. 9 is directory in nature. On the other hand the establishment
of a Parliament has been provided in Art. 65 of the Constitution. The Parliament
has been invested with the legislative powers of the Re-public. Art. 72 provide
there shall be at least two sessions of Parliament in every year. Arts. 65 and 72 are
mandatory provisions of the Constitution.

56. The learned Counsel for the appellant has strenuously argued that the
Legislature had no clear objective when Act XXIII of 1987 was passed. In the
preamble the object of the legislation was not at all spelt out. It is submitted that if
the recovery of the loans taken from the State-owned Banks were the real object
then that object could have been better re-alised by subjecting all kinds of
representatives of the people to the same financial disqualification.

57. In modern day legislations the long-winded whereasexpressions have been
given a go-bye. I do not find any fault for not mentioning the object in the laconic
preamble of the impeached legislation. A mere reading of the law makes the object
clear. The object is not the recovery of the loan as suggested by the learned
Counsel. The Object is to debar the de-faulters from being a member of the local
body. It is package legislation. It provides for similar provi-sion for the
Paurashabhas, Municipal Corporations, Upazila Parishads and Union Parishads.
The rationale for the insertion of new disqualification in case of the members of
the local bodies will be abundantly clear if we consider the financial functions of
the two different categories of the representatives of the peo-ple.

58. While a member of the Parliament has no specific function as to the custody,
receipt or dis-bursement of any public money the Union Parishad has been
invested under sections 44 and 45 with ex-tensive powers as to the custody and
application of the Union Fund constituted under section 43 of the Ordinance No.
LIX of 1983. Those sections have been quoted in the judgment of brother A.T.M
Af-zal. I need not quote them again. The rational be-hind the impeached legislation
is simple. A person who defaults in repaying his own loans can not be entrusted
with wide powers of governance and man-agement of a public fund. In view-of the
above, I hold that the rule of parity that enjoins equal treat-ment of equals in equal
circumstances is not attracted in this case. The impeached legislation is not viola-
live of Art. 27 of the Constitution.

59. The learned Counsel for both the appellant and respondent No. 9 have
questioned the wisdom and propriety of the Legislature in not providing a
disqualification similarly to the impeached one in the case of the members of the
Parliament. Wisdom and propriety are non-issues in the statute jurisdiction of this
Court. When the constitutionality of a statute is challenged the members of the
Parliament are not ar-raigned before the Court. When the Court strikes down
legislation no legal consequence follows af-fecting the members of the Parliament.
A member of the Parliament is not answerable to the Court for his legislative
functions. He is only answerable to his electors. If the electors are dissatisfied with
his work they can give him a lesson by refusing lo reelect him. For a politician that
would be a great lesson, indeed, but that is the only democratic means availa-ble to
the electors for expressing their disapproval to a statute whose constitutionality is
otherwise in or-der.

60. Art. 21 of the Constitution, however, en-joins that it is the duty of every citizen
to observe the Constitution. In making a law if the members of the Parliament fail
to observe the Constitution then this Court shall remedy that wrong by striking that
law down, but what norm other than what is provid-ed in the constitution, should
be followed or upheld in making a legislation must be left with the mem-bers of
The Parliament themselves. Citizens, howev-er, expect that their representatives
will set an exam-ple worth the trust and the confidence put in them by their
electors.

A.T.M. Afzal J. While I agree with the decision of my learned brother
Shahabuddin Ah-med, J. I feel tempted to add a few words because of the prime
nature of the question raised in our juris-diction.

62. The appellant, a candidate for the office of Chairman of an Union Parishad,
alleges that the 'disqualification' on the ground of being a defaulter in repaying
loan to any specified bank attached to a per-son seeking election to an Union
Parishad as per Section 7(2) (g) of the Local Government (Union Parishads)
Ordinance, 1983 (Ordinance No. LI of 1983) is discriminatory because there is no
such 'disqualification' provided in the case of election to Parliament. The argument
rests on the Constitution-al assurance of equality before law and equal protec-tion
of law, a fundamental right, as enshrined in Article 27 of our Constitution which
reads;

"All citizens are equal before law and are entitled to equal protection of law".

63. Mr. T. H. Khan, learned counsel for respon-dent No.9, raised an initial
objection contending that qualification and disqualification for election to
Par-liament & Local Government bodies having been provided under separate laws
governing the two sep-arate institutions, one distinct from the other, and there
being no discrimination as far as the local bod-ies are concerned, the question of
alleged violation of equality under Article 27 does not arise. Provisions of two
distinct and separate laws cannot be read to-gether, he submits, for invoking the
protection of Article 27. I do not consider the objection to be sound. The laws may
be different but the field of leg-islation is the same and they are enacted or capable
of being enacted by the same Legislature. The Su-preme Court of India in State of
Madhya Pradesh Vs. G.C. Mandawar AIR 1954 S.C. 493 held that "it is
conceivable that when the same Legislature enacts two different laws but in
substance they form one legislation, it might be open to the court to disregard the
form and treat them as one law and strike it down if in their conjunction they result
in discrimination."

64. The question pointedly raised is, why the 'disqualification' of being a defaulter
should attach to an election to a local government body only and not to that of
Parliament. The provision for such 'disqualification' affecting a person seeking
election to a local government body, therefore, offends the guarantee under Article
27.

65. In order to lest the validity of the argument it will be necessary to consider the
meaning and scope of Article 27. In the 1956 Constitution of Pa-kistan it was
Article 5(1) and in 1962, Article 15. This Article corresponds to Article 14 of the
Consti-tution of India which reads thus:

"The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India".

This again corresponds to the last clause of the first section of the Fourteenth
Amendment of the American Constitution which reads as follows:

1. "All persons born or naturalized in the United States, and subject to the
jurisdiction thereof, are citizens of the United States and of the State wherein they
reside. No State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States, nor shall any state deprive any
person of life, liberty, or property without due process of law; nor deny to any
person with its Jurisdic-tion the equal protection of the laws."

66. This provision of 'equality before law and 'equal protection of law. The first
clause has been re-garded by American Judges as The "basic principle of
republicanism and the second 'a pledge of the protection of equal laws' has been
the subject of discussion by eminent authors and judges in numerous cas-es
particularly in the United States of America and India. The broad principles
governing the application and extent of the Article in question have been iterat-ed
and reiterated in so many cases that "it would be an idle parade of familiar learning
to review the multitudinous cases in which the constitutional assurance of equality
before the law has been applied" observed Mathew, J. in A.I.R. 1974 S.C. 1300. In
later decisions AIR 1979 S.C. 478 and AIR 1981 S.C. 2138 Chandrachud CJ. and
Bhagwali, J. (as he then was) respectively observed the proposi-tions applicable to
cases arising under Article 14 have been repealed so many times during the last 30
years in course of "the avalanche of the cases which have flooded this court" since
the commencement of The constitution the they now sound almost platitudinous.

67. I shall, therefore, refrain from making copi-ous reference to the decisions cited
at the Bar begin-ning from the case of Charanjitlal Chowdhury AIR 1951 SC 41 to
Lingappa Pochanna AIR 1985 S.C. 389 besides some cases from the American
Jurisdiction. Nevertheless, I propose to project a Ka-leidoscopic view of the
wisdom and learning through the books referred to us and try to find out normative
generalizations which are accepted on all hands.

68. It will be seen that the Indian Court's view has been moulded on the American
lines and it is perhaps imperative to begin with Professor Wills who in his book
"Constitutional Law" Edn. 1 p.578 summed up the law as to the Fourteenth
Amendment thus:

"It forbids class legislation, but does not forbid classification which rests upon
reasonable grounds of distinction. It does not prohibit leg-islation, which is limited
cither in the objects to which it is directed or by the territory within which it is to
operate. 'It merely requires that all persons subjected to such legislation shall be
treated alike under like circumstances and condi-tions both in the privileges
conferred and in the liabilities imposed'. The inhibition of the amendment was
designed to prevent any person or class of persons from being singled out as a
special subject for discriminating and hostile legislation". It does not take from the
States the power to classify either in the adoption of Po-lice laws or lax laws, or
eminent domain laws, but permits to them the exercise of a wide scope of
discretion, and nullifies what they do only when it is without any reasonable basis.
If any state of facts can reasonably be conceived to sustain a classification, the
existence of that state of facts must be assumed. One who assails a classification
must carry the burden of showing that it does not rest upon any reasonable basis."

69. It appears the all the decisions whether in America, India or Pakistan have
echoed and reechoed in different language the view expressed above and are
unanimous on the following propositions relating to the guarantee under Article
27:

1. The principle of equality does not mean that every law must have universal
application for all persons who are not by nature, attainment or circumstances in
the same position and the varying needs of different classes of persons require
separate treatment.

2. It requires the all persons shall be treated alike, under like circumstances and
conditions, both in the privileges conferred and in the liabilities imposed.

3. It forbids class legislation but it does not forbid reasonable classification for the
purpose of legislation. In order, however, to pass The test of permissible
classification two conditions must be fulfilled, namely, (i) that the classifica-tion
must be founded on an intelligible differen-tia which distinguishes persons or
things that are grouped together from others left out of the group and (ii) the
differentia must have a ra-tional relation to the object sought to be achieved by the
statute in question. The classifi-cation may be founded on different bases, name-ly,
geographical or according to objects or occu-pations or the like, what is necessary
is that there must be a nexus between the basis of clas-sification and the object of
the Act under consid-eration.

4. The Suite, in the exercise of its government power, has of necessity to make
laws op-erating differently on different groups or classes of persons to attain
particular ends in giving ef-fect to its policies, and it must possess for that purpose
large powers of distinguishing and clas-sifying persons or things lo be subjected lo
such laws. The laws can make and set apart the class-es according to the needs and
exigencies of the Society and as suggested by experience. It can recognise even
degree of evil, but the classifica-tion should never be arbitrary, artificial or
eva-sive.

5. To overdo classification, however, is to undo equality. The doctrine of
classification should not be carried to a point where instead of being a useful
servant, it becomes a dangerous master, for otherwise, the guarantee of equality
will be submerged in class legislation masque-rading as laws meant to govern well
marked classes characterised by different and distinct attainments.

6. The Courts should not insist on delusive exactness or classification in any given
case. Classification is justified if it is not palpably ar-bitrary.

7. There is always a presumption in favour of the Constitutionality of a Statute and
the bur-den is upon him who attacks it to show that there has been a clear
transgression of the Con-stitutional principles. This rule is based on the
assumption, judicially recognised and accepted, that the Legislature understands
and correctly ap-preciates the needs of its own people, its laws are directed to
problems made manifest by exper-ience and its discriminations are based on
ade-quate grounds.

70. As far as, the aforesaid principles are con-cerned, the learned counsel
appearing in this case do not join any issue but they have tried to put occa-sional
emphasis on certain observations made in the reported judgments according to
their respective ad-vantage. Indeed there has hardly been any dispute on the
question of principles; the difficulty is created in their application to concrete case.
No two cases are similar in facts although the question raised is the same, i.e. of
discrimination. The courts have always objectively considered the impugned
provision in question in each case in the light of the aforesaid principles for an
answer to the charge of violation of the constitutional guarantee as under Article
27.

71. However it is interesting to find, observed Patanjali Sastri CJ. in the case of
Anwar Ali Sarkar AIR 1952 SC 75 that the trend of recent deci-sions in America
has been to lean strongly towards sustaining State action both in the legislative and
in the administrative spheres against attacks based on hostile discrimination and
"the farthest swing of the pendulum" is to be found in the case of Kotch Vs. River.
Port Pilot Commrs (1947) 330 U.S. 552. It says:

"The Constitutional Command for a State to afford equal protection of the laws
sets a goal not attainable by the invention and application of a precise formula.
This Court has never attempt-ed that impossible task. A law which affects the
activities of some groups differently from the way in which it affects the activities
of other groups is not necessarily banned by the 14th Amendment. Otherwise,
effective regulation in the public interest could not be provided, how ever essential
that regulation might be."

72. All that have been argued by Kh. Mahbubuddin Ahmed in support of his
contention of dis-crimination is that there is no reasonable basis of differentiation
between a member of the Parliament and a member of the Local Government
body, they belong to one class and that is, they are representa-tives of the people,
elected by the same electorate on the basis of adult franchise. The qualification and
dis-qualification for seeking election in both cases have hitherto been the same.
Now an additional dis-qualification has been provided for election in the lo-cal
government body only. He has submitted that even if it be conceded that there is
some recognisable basis of difference between the two bodies yet the impugned
provision will offend Article 27 because there is no nexus between the basis of
difference and the object sought to be achieved by the impugned provision.

That there is an 'intelligible differentia' between Parliament and a Local
Government body will not perhaps be resisted except by an unrepentant diehard.
Parliament is an institution created under the Consti-tution and vested with the
legislative powers of the Republic whereas a Local Government body is a creature
of ordinary law and entrusted with the au-thority of local administration only. They
are legal-ly, historically and functionally different even though they consist of
peoples' representatives. I need not dilate any further because my learned broth-er
Shahabuddin Ahmed, J. has considered the matter at length and found that
although people's representa-tive they belong to separate class. I venture to think
that Kh. Mahbubuddin Ahmed also did not consider himself on particularly strong
ground as to the first part of his submission. So he put all emphasis on the second
part contending that the disqualification of being a defaulter in the case of a Local
Government body only does not bear any rational relationship with the basis of
difference between it and the Parlia-ment. He submits that if the provision of
'disqualification' of being a defaulter was fell so ne-cessary in the public interest,
could there be any good reason to attach the same only in case of elec-tion to the
Local Government body and exclude the members of the Parliament from its
operation. What is sauce for the goose should be sauce for the gander, he argues.

73. In answer to the last part of the second submission, apart from the principles
referred to in item 4 above, 1 shall quote Hughes CJ. in West Coast Hotel Co. Vs.
Parrish, (1936) 300 U.S. 379 at page 400:

"This Court has frequently held that the leg-islative authority, acting within its
proper field, is not bound to extend its regulation to all class-es which it might
possibly reach. The legisla-ture is free to recognise degree of harm and it may
confine its restrictions to those classes of cases where the need is deemed to be
clearest. If the law presumably hits the evil where it is most felt, it is not to be
overthrown because there are other instances to which it might have been applied.
There is no 'doctrinaire require-ment' that the legislation should be couched in all
embracing terms."

74. In the same vein Bhagwati, J. said in the case of Sakhawat Ali AIR 1955 SC
166:

*********** that legislation enacted in the achievement of a particular object or
purpose need not be all embracing. It is for the legisla-ture to determine what
categories it would em-brace within the scope of legislation and merely because
certain categories which would stand on the same footing as those which are
covered by the legislation are left out would not render leg-islation which has been
enacted in any manner discriminatory and violative of the fundamental right
guaranteed by Article 14 of the Constitu-tion".

75. Mr. Ahmed contended as part of his sub-mission that impugned legislation on
the face of it is bad in any case because it does not inform or lay down the object
and purpose for which it was enact-ed. The law does not say why the
disqualification was attached to Local Government body only leaving out the
Parliament.

76. A law cannot be struck down merely because it fails to spell out the particular
objective of provision in the legislation itself. In the instant case the impugned
clause (g) was brought in by the Local Government Laws (Amendment) Act, 1987
(Act XXIII of 1987) apparently for the purpose of provid-ing an additional
'disqualification' for a person seek-ing election to an Union Parishad. For the
purpose of withstanding a challenge to its constitutionality as being violative of
Article 27 it was to stand the test of justification for being attached to Local
Gov-ernment body election only. And for that, to begin with, item 7 of the
propositions as above will be at-tracted, i.e., the court will presume the
Constitution-ality of a Statute until shown otherwise. Bhagwati, J. in the case of
R.K. Garg Vs. Union of India AIR 1951 SC 2138 reiterated that "the presumption
of Constitutionality is indeed so strong that in order to sustain it, the Court may
take into Consideration matters of common knowledge, matters of common report,
the history of the times and may assume eve-ry state of facts which can be
conceived existing at the time of legislation".

77. Taking a cue from the said observation, Mr. T. H. Khan argued, that it is a
matter of common knowledge, a fact of life, that non-repayment of loan to the
public loan-giving agencies (specified banks) has taken such proportions that the
economy of the country has been adversely affected. The threat of
"disqualification" for being a defaulter to persons seeking election in the local
government bodies will be a great incentive for repayment of the said loans which
ultimately will benefit the economy and the country. Beneficial as it is the court
will not undo such legislation on the ground that its wholesome provision has not
been made operative in the case of members of Parliament. Mr. Khan, an ex-
member of Parliament and once a Law Minister himself has urged that instead of
undoing the good work done by the Parliament in providing the 'disqualification'
for being a defaulter in the Local Government election, this court should
recommend similar provision to be made in case of Parliament election also on the
gen-eral principle that 'example is better than precept'. While I appreciate the moral
tenor of Mr. Khan's submission and indeed the reasons, to some extent, for
upholding the impugned piece of legislation, I do not think that his arguments have
completely answered the second branch of Mr. Mahbubuddin's con-tention upon
which he laid stress over again.

78. Now coming to that part, I think the sub-mission made by the learned Attorney
General has squarely met the said contention on constitutional premises. The
substance of his submission is that the 'disqualification' as provided in the
impugned leg-islation has got a direct relationship with those con-siderations
which distinguish the Parliament from a Local Government body. Thus the two
tests, that of reasonable classification and nexus between the basis of classification
and the object of the legislation, having been satisfied, the learned Attorney-
General concluded, the challenge to the constitutionality of section 7(2)(g) does
not hold good.

79. It has been noticed that both historically and legally the functions of the two
bodiesthat of Parliament and Local Government body, are different and it is this
characteristic which mainly distinguish-es one from the other. I shall presently
consider the Union Parishad only vis--vis the Parliament. One of the important
functions of the Union Parishad relates to dealing with public funds. If one goes to
the roots, it will be seen that since the creation of the 'Union-Board,' predecessor of
the present day Union Parishad, under the Bengal Village Self-Government Act,
1919, provision has been made for a "Union Fund". This Union Fund has grown in
bulk and size over the years and its application expanded greatly with the ever-
expanding area of activity assigned to a Union Parishad.

80. In order to appreciate how much public money are in the hands of an Union
Parishad and how wide are its powers in dealing with such public money it is
necessary to see the provisions of sec-tions 43, 44 and 45 of the Local Government
(Union Parishads) Ordinance, 1983.

43. Constitution Union Fund.-(1) For every Union Parishad there shall be formed a
fund which shall be known as the Union Fund.

(2) To the credit of a Union Fund formed under sub-section (1) shall be placed

(a) the balance of such fund as on the coming into force of this Ordinance is at the
dispo-sal of the Union Parishad of which the Union Parishad concerned is the
successor;

(b) the proceeds of all taxes, rates, fees and other charges levied by the Union
Parishad under this Ordinance.

(c) all rents and profits payable or accruing to the Union Parishad from the
property vested in or managed by the Union Parishad;

(d) all sums received by the Union Parishad in the performance of its functions
under this Ordinance or under any other law for the time being in force;

(e) all sums contributed by individuals or institutions or by any local authority;

(f) all receipts accruing from the trusts placed under the management of the Union
Pari-shad;

(g) all grants made by the Government and other authorities;

(h) all profits accruing from investments; and

(i) such proceeds from such sources of in-come as the Government may direct to
be placed at the disposal of the Union Parishad.

44. Custody or investment of Union Fund and establishment of Special fund. - (1)
The moneys cred-ited to a Union Fund shall be kept in Government treasury, or in
a bank transacting the business of a Government treasury, or in such other manner
as may be specified by the Government from time to time.

(2) A Union Parishad may invest any por-tion of the Union Fund in such manner as
may be prescribed.

(3) A Union Parishad may, and if required by the Government shall, establish and
maintain a separate fund for any special purpose, which shall be administered and
regulated in such man-ner as, may be prescribed.

45. Application of Union fund.- The moneys from time to time credited to a Union
Fund shall be applied in the following order of preference:-

First, in the payment of salaries and allow-ances to the officer and employees of
the Union Parishad;

Secondly, in meeting the expenditure charged on the Union Fund under this
Ordi-nance;

Thirdly, in the fulfillment of any obligation and in the discharge of any duly
imposed on a Union Parishad under this Ordinance or under any other law for the
time being in for

Fourthly, in meeting the expenditure de-clared by the Union Parishad with the
previous sanction of the Upazila

Parishad or the Thana Parishad, as the case may be, to be an appropri-ate charge on
the Union Fund; and

Fifthly, in meeting the expenditure declared by the Government to be an
appropriate charge on a Union Fund.

81. On the other hand, Parliament has no such public fund at its disposal and it is
no part of its business to engage in spending public money. There may be a
popular belief that Parliament have also to deal with public fund in' the sense that it
has to ap-prove the national budget. Yes, it does but that is only a part of the
Parliament's legislative function. It never sees the colour of the Money as does an
Un-ion Parishad every day, seven days a week.

82. In this context having regarded to the finan-cial duties and responsibilities and
Union Parishad, is it very difficult to see the import of the 'disqualification' of
being a defaulter attached to a per-son seeking election in the Union Parishad? A
man who is himself a defaulter in repaying public money is certainly not the ideal
person to be entrusted with public fund. To allow such a defaulter to deal with
public fund is to ignore the conflict that must arise between his liability and public
duty a situation which cannot be in the public interest and welfare, f have,
therefore, no hesitation to hold that the impugned legislation qualifies the second
test also and the challenge to its constitutionality as offending Ar-ticle 27 must fail.

83. Mr. Mahbubuddin submitted that it may not be denied that the new
'disqualification' is a measure in the public interest but the members of the
Parliament having not subjected themselves to such a 'disqualification' have acted
malafide in attach-ing the same only to local body election. Mr. T. H. Khan only
deplored, what he called, the lapse on the part of the Parliament and asked for a
recommenda-tion as already stated.

84. I do not think that this court has any duty under the Constitution to offer
unsolicited advice as to what the Parliament should or should not do. As long as
the law enacted by it is within the bounds of the Constitution it will be upheld by
this court but if the law is otherwise open to criticism, it is for the Parliament itself
to respond in the manner it thinks best. The new 'disqualification' the Parliament
has not attached to persons seeking election to it (The House of the Nation) which
means that a defaulter in repay-ing public money can sit in the House of the Nation
with glory but he cannot sit in the Union Parishad or a local body. The members of
the Parliament owe an answer to this, not the Court. But now that they have
declared Islam as the State Religion of the Republic by the Constitution (Eighth
Amendment) Act, 1988, I shall content myself by reminding them two verses from
the Holy Koran:

)

2. Ye who believe why say ye that which ye do not?

3. Grievously odious is it in the sight of God that ye say that which ye do not.
(Sura Saff Ayat 2 and 3) I wish to record my appreciation for the learned Attorney-
General for making available all the books cited by the parties in this case.

For the reasons, the appeal fails.

Ed.

This Case is also Reported in: 41 DLR (AD) (1989) 30