SHEIKH ABDUS SABUR VS RETURNING OFFICER 41 DLR AD 1989

 

 Analysis of the Fact:

Appellant was a candidate for election to the office of chairman of Borashi Union Parishad belonged to Gopalgong. He filed his nomination paper but it was rejected but the Returning officer on the ground that he defaulted in repaying 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, 1987. His appeal was dismissed by the Upazila Nirbahi Officer. The high Court division also dismissed his writ petition. Then a leave to appeal was granted to consider the question whether the section 7(2)(g) of the Union Parishad Ordinance is hit by the equality provision under article 27 of our constitution.

Argument from the appellant:                               

It was argued that        

Section 7(2)(g) of the Union Parishad ordinance, 1987 was discriminatory and further it gave no clue as to the purpose of the legislation. If the legislation was considered beneficial then both the defaulters of Local Council and Parliament were debarred from taking part in the election. So, the impugned legislation was violative of the article 27 of our constitution.

Argument from the Respondent:

It was argued that

Union Parishads and Parliament are two kinds of elective bodies created by different Statutes for performing different functions. They cannot be grouped into one class. It was a beneficial piece of legislation because huge amounts of loans from the nationalized banks remaining unpaid the National economy has brought on the verse of collapse and this default clause is quite likely to help strengthen the blattered economy. The legislation is highly improper but not unconstitutional.

Issue:

1.      Whether the section 7(2)(g) of the Union Parishad Ordinance, 1987 is discriminatory or not ?

2.      Whether the Union Parishad Ordinance, 1987 is a valid legislation or not ?

Decision:

The provision of section 7(2)(g) of the Union Parishad Ordinance, 1987 was not a discriminatory one and constitutionally valid.

Reasoning behind the decision:

The above decision was taken on the following grounds:

•      Provision 7(2)(g) of the Union Parishad Ordinance,1987 was valid because the parliament has made it within its legitimate power.

•      The provision was not discriminatory because the members of union parishads and members of parliament are not included into the same group. They are separated from each other in respect of source and also functions. Here the sort of classification is very reasonable and that does not become discriminatory under article 27 of our constitution.

Principle:

A reasonable classification between two classes of people within the legitimate authority is not unconstitutional though exclusion of one class from the area of law may be unethical and morally undependable.

Importance of the case:

In this case the powers of the court and parliament are demarcated saying that court has duty to offer unsolicited advice as to what the parliament should and should not do. Court also can not strike down a law merely because it fails to spell out the particular objective of a provision in the legislation itself. A member of parliament is not answerable to the court for his legislative functions.

In this case the principle of equality was also clarified as per the provision of Article 27. It was said that principle of equality does not every law must have universal application for all persons irrespective of whether they belong to different classes requiring separate treatment. it requires that all persons shall be treated alike under like circumstances and conditions. Though it forbids class legislation it does not forbid reasonable classification for the purpose of legislation.