K.R.K. Vara Prasad vs Union Of India

Andhra High Court

K.R.K. Vara Prasad vs Union Of India on 12 February, 1980Author: PunnayyaBench: Lakshmaiah, Punnayya

JUDGMENT Punnayya, J.

1. The petitioner is the President of the Indian Fundamental Rights Association having its Head-quarters at Secunderabad. He seeks for the declaration that the definition given under Section 18 of the Indian Penal Code is ultra vires of the Constitution.

2. According to him, Article 1 of the Constitution defines ‘India’ as the Union of States and hence it includes the State of Jammu and Kashmir. He, therefore, contends that Section 18 I. P. C. which defines ‘India’ as the territory of India excluding the State of Jammu and Kashmir, is opposed to Article 1 of the Constitution and is therefore, unconstitutional. He argues that Parliament has no power or authority to exclude the State of Jammu and Kashmir in the definition of India under Section 18 of the I. P. C. contrary to the definition of India under Article 1 which includes the State of Jammu and Kashmir.

3. Article 1 of the Constitution reads as follows:-

“(1) India, that is Bharat, shall be Union of States.

(2) The States and the territories thereof shall be as specified in the First Schedule.

(3) The territories of India shall comprise.

(a) the territories of the States;

(b) the Union territories specified in the First Schedule; and

(c) such other territories as may be acquired.”

4. Clause (2) says that the States and the territories thereof shall be specified in the First Sch. First Sch. mentions the names of the States and the territories that each State comprises of. The State of Jammu and Kashmir takes its place as No. 15 amongst the States mentioned therein.

5. Section 18 of the I. P. C. (hereinafter referred to as the ‘Code’) defines ‘India’ as follows:-

“18. “India” means the territory of India excluding the State of Jammu and Kashmir.”

6. We feel no doubt that the definition of India given by Section 18 of the Code is not co-extensive with the definition of ‘India’ given by Article 1 of the constitution inasmuch as the definition of India given under Section 18 is not inclusive of Jammu and Kashmir. But we find ourselves unable to agree with the contention of Sri Prasad that Section 18 is unconstitutional, as the Parliament has defined ‘India’ under Section 18 of the code to be consistent with the territorial extent and operation as envisaged by Section 1 of the Code.

7. Section 1 of the Code reads as follows:-

“1. This Act shall be called the Indian Penal Code and shall extend to the whole of India except the State of Jammu and Kashmir.”

The local extent of operation of the Code has been declared under this Section to the whole of India except the State of Jammu and Kashmir. It is, therefore, clear that the Code does not apply to the State of Jammu and Kashmir though it applies to all other States in India.

8. To be consistent with the provisions of Section 1 of the Code, Sec. 18 defines ‘India’, as stated above, which means the territories to which the Code extends. When the Parliament intends to apply the code to all the territories of India except the State of Jammu and Kashmir, as provided by Section 1. the definition of India given under Sec. 18 should not be different from the provision of Section 1 of the Code and the Parliament, therefore. felt in its wisdom to define India under Section 18 as the territory of India excluding the State of Jammu and Kashmir. If India is defined under Section 18 co-extensive with Article 1, as advocated by Mr. Prasad, it will be inconsistent with Section 1 of the Code. As the definition of India under Section 18 excluding the State of Jammu and Kashmir is intended for the operation of the Code. Section 18 does not offend Article 1 of the Constitution. Unless Section 1 of the code is amended so as to extend the operation of the Code even to the State of Jammu and Kashmir to be consistent with the definition of India given in Article 1 of the Constitution, Section 18 of the Code should remain, as it stands.

9. Even the contention of Sri Prasad that the Parliament has no power or authority to define ‘India’ under Section 18 of the Code is devoid of substance in view of the express provisions of Article 245 which empowers the Parliament to apply a particular Act to the whole of India or to any part of India. There is no dispute that concurrent list of the Constitution at Item No. 1 contains “Criminal Law including all matters included in the Indian Penal code at the commencement of the Constitution” and hence parliament is competent to enact the Indian Penal Code. Article 245 gives the power to the Parliament to make a law for the whole or any part of the territory of India. It reads as follows:

“245 (1) Subject to the provisions of this constitution, Parliament may make laws for the whole or any part of the territory of India, and the Legislature of a State may make laws for the whole or any part of the State.

(2) No law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.”

Under the Article, the Constitution has given the legislative power to the Parliament to make laws for the whole or any part of the territory of India. In exercise of the power given by the Constitution under this Article, the Parliament, has extended the Code under S. 1 to all the States of India except the State of Jammu and Kashmir and accordingly has defined under Section 18 so as to be consistent with Section 1 of the Code. The legislative power of the Parliament in extending the Code under Sec. 1 to all the States of India except the State of Jammu and Kashmir and defining India under Section 18 to be consistent with Section 1 cannot therefore be questioned. Thus, on merits the contentions of Sri. Prasad are devoid of substance.

10. Sri Subramanya Reddy, the learned Standing Counsel of the Central Government, questions the maintainability of the petition. According to him, any one is not entitled to invoke the jurisdiction of this court under Article 226 and the petition is not maintainable unless the petitioner satisfies the court that he has a valuable right and that right has been infringed. He, therefore, contends that the petitioner has not established that any of his rights has been infringed and hence this Writ Petition is not maintainable.

11. We think that this contention is well-founded. It is now well settled that the existence of a right and the infringement thereof are the foundation of the exercise of the jurisdiction of the High Court under Article 226 of the Constitution. An application under Art. 226 can only be made at the instance of an individual who is himself an aggrieved person. If he is not aggrieved, he cannot seek for relief under Article 226. The rule that it is only a person whose rights are directly affected that can apply under Article 226 is in accordance with the established principle of law that no one except those whose rights and interest are directly affected can raise the question of the constitutionality of the law. The Supreme court in State of Orissa v. Madan Gopal, held that the issuance of writs or directions by the High Court is founded only on its decision that a right of the aggrieved party under Part III of the Constitution (Fundamental Rights) has been infringed. It can also issue writs or give some directions for any other purpose. Therefore, the existence of the right is the foundation of the exercise of jurisdiction of the court under Article 226. This proposition of law was reiterated in State of Orissa v. Ram Chandra . Their Lordships held that though the jurisdiction of the High Court under Article 226 is wide in that sense, the concluding words of the Article clearly indicate that before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened. The existence of a right is thus the foundation of a petition under Article 226. The petitioner does not complain that any of his rights -personal or fundamental have been infringed or violated by any law or order or by any action of Government or any authority. If that be so, he is not entitled to invoke the jurisdiction of the High Court under Article 226. The mere fact that the petitioner is a citizen of India or the President of the Indian Fundamental Rights Association does not confer any right on him to seek relief under Article 226 of the Constitution.

12. But Sri Prasad contends that the Constitution provides under Article 51-A certain Fundamental duties just as fundamental rights which are guaranteed by the Constitution to a citizen. He, therefore, claims that in respect of Article 51-A he is entitled to apply under Article 226 for the issuance of a writ of mandamus declaring that Section 18 of the Code is opposed to Article 1 of the Constitution.

13. We find ourselves unable to accept even this contention. Article 51-A was inserted in the Constitution by the 42nd Amendment Act of 1976 which came into force from 3-1-1977. It reads as follows:

“51-A Fundamental Duties:- It shall be the duty of every citizen of India-

(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;

(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;

(c) to uphold and protect the sovereignty unity and integrity of India;

(d) to defend the country and render national service when called upon to do so;

(e) to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;

(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;

(h) to develop the scientific temper, humanism and the sprit of inquiry and reform;

(I) to safeguard public property and to abjure violence;

(j) to strive towards excellence in all spheres of individual and collective activity, so that the nation constantly rises to higher levels of endeavour and achievement.”

14. A careful examination of these provisions makes it abundantly clear that the Constitution commands the citizen of India to follow the duties enumerated under this Article. The petitioner is not able to show how his claim will come under any of the duties stated under Article 51-A. He is, therefore, not entitled to invoke the jurisdiction of the High Court under Article 226.

15. In view of the aforesaid reasons, we find no merits in the Writ Petition. It is, therefore, dismissed, but in the circumstances. without costs.

16. Petition dismissed.

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