- (1.)WHETHER , clause ( ) of sub-section (1) of Section 8 and Section 29-A amended by the Representation of the People (Amendment) Act, 1988 (hereinafter referred to as the' Amended Act') is ultra vires of Articles 14, 15,16,19, 25, 26,29 and 30 of the Constitution is the principal question which arises for adjudication in this writ petition.
(2.)THE facts : The petitioner claims himself to be the General Secretary of Shiromani Akali Dal (Simranjit Singh Mann Group ). He is a staunch believer of Sikh religion and has always been resisting any move by the State to interfere with its essential tenents. The concept of Sikh religions and politics are totally inseparable for Sikhs. The politics gets birth from the religion. Shiromani Akali Dal came into existence in order to protect the Sikh religion from atrocities being committed b other communities and is fighting for the noble cause for last 70 years. It has its own Constitution. As provided therein, any Sikh man or woman, who is not less than 18 years of ago, can become a member of the Shiromani Akali Dal. The Government of India, in order to crush the Sikhs, their religion and their religious institutions, passed 'religious Institutions (Prevention of misuse) Act, 1988'. The purpose appears to be to crush the Sikhs politically, economically as well as socially and create hatred towards them. A provision has been inserted in sub-clause (h) of clause (2) of subsection (1) to Section 8 of the Amended Act. This clause populates that a person convicted under Section. 7 (offence of contravention of the provisions of Sections 3 to 6) of the Religious Institutions (Prevention of Misuse) Act, 1988, shall be disqualified for being a member of either House of Parliament or the Legislative Assembly or Legislative Council of a State for a period of six years from the date of election. Section 29- A of the Amended Act provides that any association or body of individual citizens of India calling itself a political party and intending to avail itself of the provisions, shall make an application to the Election Commission for its registration as a political party for the purposes' of the Act. Sub-section (2) of Section 29-A of the Amended Act provides for the procedure for submitting the application and the documents to be appended to the application. Sub-sections (2) to (9) of Section 29-A of the Amended Act provided for the documents to be appended to the application. Sub-section (5) enjoins upon the applicant that the application for registration as a political party shall be accompanied by copy of memorandum or rules and regulations of the association or body and specific provision must be made that the association or the body shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of socialism, secularism and democracy and would uphold the sovereign unity and integrity of India. This declaration has to be filed before the Election Commission within 60 days from the publication of the Act. The Act was published in Haryana Government Gazette on 6-6-1989 and declaration has to be filed on or before August 5, 1989. The petitioner contends that clause (5) of sub-section of Section 29-A of the Amended Act and clause (h) of sub-section (1) of Section 4 amending Section 8 of the Principal Act, is ultra vires of the Constitution.
(3.)BEFORE we deal with the question of validity of the Act, it is necessary to state the distinction between the civil rights or common law rights and political rights or rights created by a statute. Civil rights are recognised and guaranteed and adhered to the status of a citizen of free country. Article 19 (1) of the Constitution of India guarantees certain basic rights, Of course, the State can impose restrictions on the exercise of those rights. The right to stand as a candidate and contest election is not a common law right. It is a special right created by a statute. It can only be exercised on the conditions laid down by the statute This distinction was stated in Sakhwant Ali v. State of Orissa, A. I. R. 1955 S. C. 166. Sakhwant Ali was a legal practitioner. He wanted to contest as a Councillor in the Municipal election. Section 16 (1) (ix) of Orissa Municipal Act provided that person shall be disqualified for election as a councillor of the Municipality if he is employed as a paid practitioner on behalf of the Municipality or as legal practitioner against the Municipality. The appellant was employed as a legal practitioner against the Municipality in a case under Section 198 of the Bihar and Orissa Municipal Act which was pending in the S D M. 's Court. His nomination papers were rejected by the Election Officer. He challenged the action in the High Court and sought prohibition to the State Government from holding elections to Kendrapa Municipality under the Orissa Municipal Act. It was urged that the right of the writ petitioner as enshrined in Article 19 (l) (g) was violated and the submission was rejected with following observations :" the right of the appellant to practice the profession of law guaranteed by Article 19 (I) (g) cannot be said to have been violated, because in laying down the disqualification in Section 16 (!) (ix) of the Act the Legislature does not prevent him from practising his profession of law but it only lays down that if be wants to stand as a candidate for election he shall not either be employee as a paid legal practitioner on behalf of the municipality or act as a legal practitioner against the municipality. There is no fundamental right in any person to stand as a candidate to the municipality. The only fundamental right which is guaranteed is that of practising any profession or carrying on any occupation, trade or business. There is no violation of the latter right in prescribing the disqualification of the type enacted in Section 16 (1) (ix) of the Act. "