Decided on May 10,1955

STATE Appellant
KISHAN Respondents


- (1.) THIS is a reference by the Sub-Divisional Magistrate, First Class, Mhow Under Section 432, Criminal P. C, and involves a question whether the Harijan Ayogyata Niwaran Sanshodhan Vidham, Samvat 2007, No. 63 of 1950 which received the assent of H. H. the Raj Pramukh on 17-5-1950 is a good law.
(2.) THE question arose in connection with prosecution of accused Kishan, a barber and another accused Ramnath Under Section 4 and 5 read with S. and of the Act aforesaid. Accused Kishan. is said have refused his services as a barber though complainant Chenya, a Balai Harijan, was prepared to pay-reasonable charges for the same. Accused Ram-nath is said to have poured out vulgar abuses upon the complainant for his being a member of lower order.
(3.) ON these facts both the accused are being prosecuted and tried. At the close of the trial at the stage of argument question arose whether the Amended Act referred to above can be looked into1 in this case if the question of passing a sentence arises. It was contended on behalf of the accused that the Amendment Act of Madhya Bharat Legislature, Act No. 63 of 1950 is contrary to Article 35 of the Constitution and hence ultra vires the powers of the body. Article 17 of the Constitution provides as follows : Untouchability' is abolished and its practice in any form is forbidden. The enforcement of ainy disability arsing out of 'untouchability' shall be an offence punishable in accordance with law. Article 35 then provides : Notwithstanding anything in this Constitution: (a) Parliament shall have, and the Legislature of a State shall not have, power to make laws : (i) with respect to any of the matters which under Clause (3) of Article 16, Clause (3) of Article 32, Article 33 and Article 34 may be provided for by law made by Parliament; and (ii) for prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in Sub-clause (ii); (b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the- matters referred to in Sub-clause (i) of (a) or providing for punishment for any act referred to in Sub-clause (ii) of that clause shall subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament.;

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