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Writ petition



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S.V. Raju's writ petition of 1994: still undecided by the Court.

     http://www.indiapolicy.org/debate/notes.html

BY  L.R. Sampat and S.V. Raju
(placed on the internet in January, 2000)

           [Extracts from]

In the High Court of Judicature at Bombay
Ordinary Orignial & Constitutional Jurisdiction
Writ Petition No. 2602 of 1994


To: 

The Hon'ble the Chief Justice and the other Hon'ble Judges of the High
Court of Judicature at 
Bombay.

	The Humble Petition of the petitioners above named:-

MOST RESPECTFULLY SHOWETH.

1.     The Petitioner No.1 is a political party which came into existence
at a  Preparatory Convention held at Bombay on 1st and 2nd  August 1959.  A
copy of   the 'Statement of principles' adopted at the said Convention as
also a copy of  'Statement of  Policy' adopted  at the National  Convention
of the party at Patna on March 19/20, 1960 are jointly annexed herewith and
marked as Annex 'A' to  this petition. The petitioner seeks registration as
a political party under the  Representation of the People Act, hereinafter
called the Act for the sake of  brevity. The petitioner No. 2 is a citizen
of India, age 61 years, and is the Editor  of a quarterly journal 'Freedom
First'. He fully subscribes the views of the  Petitioner No. 1 Party and is
a member thereof. The petitioners approach this  Hon'ble High Court
challenging the provisions of Section 29 (A) of the Act as  being violative
of fundamental rights and, consequently, ultra vires the  Constitution of
India.


2.       The Respondent  No.1 is the Union of India  and the Respondent
Nos.2  and 3 are the responsible officers of Government of India in
relation to the  Elections to the Parliament and Legislative Assemblies and
Legislative Councils  throughout the Country. The petitioners are seeking
reliefs against all the  Respondents and hence they are necessary parties
to this petition. 


3.       The petitioners state that, though the Preamble to the
Constitution of the  India as enacted in 1949, the people resolved:

"to constitute India into a Sovereign Democratic Republic".

          The 42nd amendment to the Constitution of India, imposed in 1976
upon  the ideals of the people of an earlier generation by introducing
three new tenets.  The relevant part of the Preamble to the Constitution
was consequently changed  to read:

".. to constitute India into a Sovereign Socialist Secular Democratic 
Republic..."

4.        The Petitioners state that, the amendment to the Preamble of the
Constitution was subsequently reflected by the introduction in 1988 of a
new  Section 29(A) in the Representation of the People Act 1951.

5. The petitioners state that, in June 1989, the Election Commission issued
a  notification that under Section 29(A) of the amended the Act, requiring
that the  then existing political parties to register within 60 days from
June 15 i.e. by  August 15 and that any party that came into existence
after June 15 should do so  within 30 days. A copy of the press report that
appeared in the Times of India,  June 17, 1989 is annexed with the present
petition and is marked as Annex 'B'.

6. The new Section 29(A) of the Act as amended in 1988 call on the political 
parties seeking registration to ensure that their memorandum of rules land 
regulations contained a specific provision that they would bear true faith
and 
allegiance.

a. to the Constitution of India;
b. to the principles of  socialism, secularism and democracy; and 
c. uphold the sovereignty, unity and integrity of India.

7. The petitioners state that, on August  1, 1989, the petitioner No.1
Swatantra Party (Maharashtra) wrote to the Election Commission seeking
registration without prejudice to his right to question the Constitutional
validity  of the amendment to the Act making registration mandatory. A copy
of the said  letter is annexed to the present petition and marked as Annex
'C'. 

8. By a letter dated August 12, 1989 bearing No.56/Misc/89/3439 the
respondent No. 3 wrote to the petitioners No. 1 stating that for the
registration of  any organization that the memorandum of regulations of the
organization should  contain a specific provision as required by
Sub-Section 5 of Section 29(A) of the  Act - that the body or association
shall bear true faith and allegiance, inter alia,  to the principle of
socialism emphasis supplied. The said letter is annexed with  the instant
petition and marked  as Annex 'D'.

9.        The Petitioners state that, further, on June 28 ,1994  the
petitioner No.1      wrote to the Election Commission wishing to know if
his application for  registration  will be accepted by the Election
Commission if he rejected the  socialism part of Sub-Section 5 of Section
29(A) of the Act. A copy of letter  dt.28.6.1994 is annexed herewith and
marked as Annex 'E' to this petition.
 
10.      The Respondent Election Commission replied to this by it's letter
dated  14.9.94 reiterating the provision i.e. Section 29(A)(5) of the Act
and demanding  compliance therewith. On this occasion also, as on the
previous occasion, the  letter was accompanied by a copy of Sec.29(A) of
the Representation of the  People Act. A copy of letter dated 14.9.94 is
annexed herewith and marked as  Annex 'F'. 

11.     The stipulations of Section 29(A) create problems of conscience and
 principles which the petitioner No.1 party does not wish to circumvent by
prevarication and falsehood as has been done by other parties in the
country. For  example, the extreme leftist revolutionary parties have
apparently constituted  themselves by a memorandum which contains a
provision to the effect that they  bear allegiance to the principle of
democracy; crassly communal parties have  sworn allegiance to secularism
and the ruling party despite its declared objective    of liberalization
and globalization has pledged or at any rate continues to pledge  its
allegiance to the principle of socialism. Section 29(A) poses no problem
that  can not be overcome by recourse to pliable conscience. There is no
provision for  any verification of the truth of the memoranda or
regulations nor is there any  instance of registration being denied to or
withdrawn from any party on the basis  of proven falsehood of the
provisions in the memorandum of association of any  party. The petitioner
No. 1 has no wish to resort to such unconscionable  procedure followed
quasi-universally. 

12.      The petitioner No. 1 has no difficulty whatsoever in confirming
its  allegiance to the principles of democracy and secularism as also to
uphold the  territorial integrity of the republic. It encounters
insurmountable difficulty in  declaring allegiance to the principle of
socialism. The term socialism has not  been defined in the Constitution of
India or in the said Act. The requirement to  declared allegiance to a
tenet so shrouded in vagueness can serve no possible  purpose. If the
provision contained in the Constitution represent, in the view of   the
authors of the stipulation, the essential content of socialism, the
specific  requirement of the section 29 (A) is unnecessary since the oath
of allegiance to  the Constitution as by law established would more than
cover the requirement.

            On the other hand, if the disposition of the Constitution of
India are  entirely socialistic but are a little less or a little more,
there would arise a  contradiction between the declaration of allegiance to
the Constitution and that  to the principle of socialism.

13. The petitioners submit that, it is significant that the Third Schedule
to the  Constitution which contains the texts of oaths to be taken by
candidates to the  election of Lok  Sabha and of the State legislatures has
not been modified  following the amendment to the Preamble to the
Constitution and of the  amendment to the Act. The text of oaths required
to be taken by individual  candidates continue to be limited to swearing
true faith and allegiance to the  Constitution of India as by Law
established without any reference to the  principle of socialism. The oath
of allegiance to the principle of socialism is  insisted upon only in case
of association of persons wishing to be registered as a  political party.
The petitioners further submit that the provisions of the Act  which deal
with qualification and disqualification for membership to Legislature  does
not impose any such precondition. Nor do the provisions which lay down  the
requirement of a valid nomination lay down any such precondition. The
effect of the relevant provisions of the Act is that whereas individual
candidates  i.e. those not set up by a registered political party may
contest elections without  having to bear any allegiance to the principles
of socialism, parties which seek  registration for the same purpose are
required to do so. It is submitted that qua  the purposes of the said Act,
namely to confers and regulate the right to contest  election, there is no
intelligible differential between political parties and  individual
candidates. The provision i.e. Section 29 (A) which only requires
political parties to bear allegiance to the principle of socialism is
wholly  discriminatory and void being in violation of Article 14 of the
Constitution of  India. That socialists have the possibility of organising
themselves as political  parties while those having problem of conscience
in declaring adherence to  socialism should be stopped from organising
themselves into a political party is  wholly discriminatory and hence,
clearly in breach of the fundamental right of  association.

14. The petitioners' grievance is not against the amendment to the Preamble
 incorporating therein a reference to socialism. The Constitution contains
many  dispositions not all of which need be uniformly acceptable to any
given  individual or association of individuals. What is essential is that
a citizen must  have the right and the possibility at par with any other
citizen to act and to act  and to canvass by constitutional means, for
changing the dispositions of the  Constitution in accordance with his
inclinations howsoever unreasonable they  may look to others at a given
point of time. Section 29 (A) of the Act prevents  committed and sincere
non-socialists from agitating as an organised force in  favour of getting
the Constitution modified in their favour by entering the  Legislature -
State Assemblies as also Parliament - and influencing the  persuasions of
the others members of the Parliament.
 15. Thus, without going into the question of the precise definition of the
 terms socialism, the right of a non-socialist citizen to hold his personal
views  and be entitled to all the privileges enjoy by the socialist
fellow-citizens can not  be denied. In particular his access to the
legislative body as an individual and as  a party can not be hindered by
denying him the privileges of registration as  political party. The term
socialism has been applied to a large spectrum of  theories over the last
two centuries. Saint Simonism based on compassion for  the less fortunate
and suffering fraternity, Owenism as a serious attempt at  organization of
the weaker sections into economical viable units, Fabianism  with its
mighty intellectual prestige provided by G.B. Shaw, Sidney and  Beatrice
Webb, Guild Socialism advocated by G.D.H. Cole, Welfarim providing  a
misplace justification for equal distribution of wealth, European type of
liberal, democratic, welfarist socialism,, Keynesiam model entrusting the
responsibility of ensuring fuller levels of employment and investment,
third  world states restoring to planning as an instrument of accelerating
growth and  equality, soviet type of bolshevik growth and equality, soviet
type of bolshevik  scientific socialism based on dialectical materialism,
historical determinism,  class conflict, theory of surplus value and aimed
at industrialization,  nationalization, planning and dictatorship of the
proletariat and last but not the  least the Maoist, Guevarist, Castroist,
Royist, etc. provide only part of the  spectrum of ideas that have been
identified with the word socialism By virtue of  their vast expanse and the
political and economic power of the erstwhile Soviet  Union and the use of
the word socialist in the nomenclature of the Soviet block  countries, the
word is now understood to mean, in popular parlance, a system  associated
with the soviet model. Other schools of socialist thought are  identified
by the appendage of qualifications like democratic, Christian, liberal.
The term socialism used without qualification is interpreted to refer to
the  system of thought propagated by Marx, Engels supplemented  by the
lesser  prophets like Lenin, Stalin etc.

16. The Concise Oxford dictionary defines the word socialism as Political
and  economic theory of social organization which advocates that community
as a  whole should own and control the means of production, distribution
and  exchange; policy or practice based on this theory. It is quite clear
that the word  socialism in its unmixed form means much more and much less
than a system  based on justice, liberty, equality and fraternity that is
envisaged in the  Constitution of India. It, therefore, follows that oath
of allegiance to both the  Constitution of India and to socialisms are in
goods party mutually  contradictory.

17. The petitioners submit that, certain traits of the mainstream theory of
 socialism are clearly opposed if not repugnant to the basic principles and
 structure of the Constitution of India; for example, class-contradiction,
atheism,  dictatorship of the proletariat.

18. An argument maybe made that the term socialism is so vague that the
term socialism is so vague that the term socialism is to vague that no
individual  should have any difficulty in adhering to it or should feel any
need to dissociate  himself from it. The obvious corollary is that the
declaration of allegiance to the  principle of socialism is unnecessary.
Further, the argument is far from true. The  essential part of all brands
of socialism is the notion of the paramountacy of  society over an
individual, of social decision-making over individual behavior.  This
concept of paramountacy stands in ruins today. It is now accepted quasi-
universally that the mankind has, till to date, not invented anything
better than  the market mechanism for arriving at best decisions for the
society as a whole,  that holistic social decision-making is a masquerade
for a few individuals  hijacking the system to their advantage, that
individuals are unique and hence  equal, that individuals pursuing
fulfillment if their unique personality interact  amongst each other to
produce the most desirable results and that there are no  Masters neither
spiritual nor economic with superior lights.


19. In most countries of the world the socialist are collapsing under the
weight of their own non-viability. Even the Government of India has
admitted  the errors of its socialist past and professes to be pursuing the
path of market  oriented economies. It makes little sense in this era to
deny non-socialists the  possibility of organising themselves as a party in
order to be able to contest  political elections.



20. The Position of the petitioners is thus diametrically opposed to the
basic  minimum of the world-view, economics, sociology and politics that is
 associated with the term socialist. The petitioners are, therefore,
approaching  this Hon'ble Court to seek relief from being forced to change
his convictions or  to have recourse to deceit in order to be able to
exercise the basic democratic  human rights embodied in the fundamental
rights of being able to form a party  with a view to contesting elections.


21. Sections 29 (A) (5) of the Act suffers from the vice of vagueness in
that it  compels an association to swear allegiance to the principle of
socialism without  any attempt to define or even indicate the meaning of
the term socialism. The  Section is, therefore, illegal and
unconstitutional being arbitrary and, therefore,  violative of article 14
of the Constitution of India.

22. Sub-Section 5 of Section 29(A) of the Act, in as much as it compels an
association or a political party to bear allegiance to the principle of
socialism as  a precondition to its applying for registration as political
party is ultra vires  Article 19 (1) (a) and (c) of the Constitution of
India. The said Section has the  effect of hindering and inhibiting the
formation of a political party with full  advantages of registration and
its functioning in the political arena of the  country unless it conforms
to a certain point of view. The said provision is not  saved by sub-clauses
2 and 4 of article 19 in that it has no bearing on the  sovereignty and
integrity of India or public order. 

23 Section 29(A) makes a hostile and invidious discrimination between
political parties which bear allegiance to the principles of socialism and
those  that do not. It is submitted that qua the purpose of registration of
political parties  i.e. for the purpose of contesting elections and
conferring certain rights and  privileges and imposing certain liabilities
in relation thereto, there is no  intelligible differential between the two
kinds of political parties. It is further  submitted that qua the election
law the differences in beliefs or political  philosophies which parties may
hold can not become a ground for  discriminating between them so as to
confer certain privileges only on parties  holding one set of beliefs as
long as the beliefs do not contradict or adversely  affect the sovereignity
and integrity of India or public order. Such a difference,  as is sought to
be emphasized by section 29(A) (5) is without any basis and has  no nexus
with the purpose of the Act which is avowedly an Act which provides  "for
the conduct of elections to the Houses of Parliament and to the House or
Houses of Legislature of each State, the qualifications and
disqualifications for  membership of those Houses, the corrupt practices
and other offences at or in  connection with such elections and the
decisions of doubts and disputes arising  out of or in connection with such
elections".

24 The petitioners further submit that qua the aforesaid objective of the
Act,  there is no valid difference in individuals contesting elections and
parties doing  so. There is thus an arbitrariness and a hostile
discrimination writ large in the  scheme of the Act in that it enables
individual candidates contesting as  independents to contest elections even
though they do not bear allegiance to the  principles of socialism but
prevents an association of such individuals from  doing so as a registered
political party unless it bears allegiance to the said  principles. The
petitioners submit that this constitutes an unreasonable and  unjustified
denial of the advantages of registration only because as an  association
the said individuals are non-socialists. 

25 The petitioners submit that the restriction which Section 29 (A) imposes
 on political parties nullifies the very essential and basic feature of the
 Constitution of India namely democracy and the fundamental right of
freedom  of association and of thoughts and expression on citizens for the
purpose of 
preserving the democracy.

26 It is submitted that the right to amend the Constitution so as not to
change  its basic structure having been upheld and socialism not being part
of the basic  structure of the Constitution, the restriction imposed by
Section 29(A) has the  effected of virtually denying the right to attempt
an amendment of the political  philosophy of the Government of the day
reflected in the Constitution of India.  The petitioners therefore approach
this Hon'ble High Court under Article 226 of  the Constitution of India for
appropriate writ, direction and/ or order in nature of  writ for the
reliefs prayed herein. The petitioners are entitled to all the reliefs
prayed in the petition and this Hon'ble High Court has jurisdiction to try
and  entertain this petition.

27 The petitioners have not filed any other petition either in this Hon'ble 
Court or in the Supreme Court of India in this matter. 

28 The petitioners state that the Petitioners have their offices at Bombay.
The 
Respondents have their offices at Bombay. The cause of action arose at 
Bombay, and  therefore, the Hon'ble High Court therefore has jurisdiction
to try 
this Petition on its Original side. 

29 The petitioners state that their rights are protected under the
Constitution 
of India and the Petitioners are entitled for the reliefs prayed herein.

30 The Petitioners crave leave to add to, to alter, to amend, to delete, to
vary 
any of the grounds urged hereinabove if necessity may demand or occasion may 
require.

31 The Petitioners, therefore, pray that this Hon'ble  court be pleased to:-

A) issue a writ of Mandamus, or a writ in the nature of mandamus or any 
other appropriate writ order or direction and thereby strike down Sub-
Section 5 of Section 29(A) of the Representation of the People Act 
1951 as being ultra vires the Constitution of India to the extent it 
requires the memorandum and rules and  regulations of the association 
or body desiring registration to contain a specific provision that such 
an association and body shall bear true faith and allegiance to the 
principle of  socialism;

B) direct,thereupon, the Respondent No.3 to register the Petitioner No.1 
as a political party under the Representation of the People Act, 1951 
forthwith with law;

C) grant interim reliefs directing the Respondent No.3 to register the 
Petitioner No.1 as a political party under the Representation of the 
People act 1951 in accordance with law;

D) grant any other relief which this Hon'ble Court deems fit in the facts 
and circumstances of the case.

E) To award costs of the petition.

             
And for this Act of Kindness, The Petitioners as in Duty Bound Shall Pray.


Bombay: 
Dated : 15th day of December, 1994                              Petitioners





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