LL.B.

VI Term

LB-6033 –Election Laws

Cases Selected and Edited by

Monica Chaudhary

FACULTY OF LAW
UNIVERSITY OF DELHI
DELHI-110007
May 2022

For private use only in the course of instruction

 ii

LL.B. VI Term
Paper : LB-6033-Election Laws
Prescribed Legislations:
i. The Constitution of India, 1950
ii. The Representation of the People Act, 1950
iii. The Representation of the People Act, 1951
iv. The Delimitation Act, 2002
v. The Election Commission (Conditions of Service of Election Commissioners and Transaction
of Business) Act, 1991
vi. The Indian Penal Code, 1860 (Selected Relevant Provisions)
vii. The Parliament (Prevention of Disqualification) Act, 1959
viii. The Presidential and Vice-Presidential Elections Act, 1952
Prescribed Books:
1. V.S. Rama Devi and S.K. Mendiratta, How India Votes – Election Laws, Practice and
Procedure (4thed., 2017).
2. Kiran Gupta and P.C. Jain, Chawla’s Elections - Law & Practice (10th ed., 2014).
Topic 1 : Introduction - Meaning of Election and Disputes Regarding Elections to
Parliamentand State Legislatures
The Constitution of India – Preamble, Part XV- Articles 324-329
The Representation of the People Act, 1951(R. P. Act, 1951) – Part VI (sections 79-122)
1.1 Meaning of election; election petition–forum, presentation, grounds and relief that may
be claimed by the petitioner.
The Constitution of India - Article 329(b)
R. P. Act, 1951- sections 80, 80A, 81, 84, 86, 98, 99, 100, 101
1. N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, 1
AIR 1952 SC 64
2. Mohinder Singh Gill v. Chief Election Commissioner, New Delhi,
AIR 1978 SC 851
3. Election Commission of India through Secretary v. Ashok Kumar,
AIR 2000 SC 2979 12
4. G.V. Sreerama Reddy v. Returning Officer,(2009) 9 SCC 736 23
1.2 Time for presentation of an election petition- section 81 read with section
86(1) , R.P. Act, 1951
5. Manohar Joshi v. Nitin Bhaurao Patil,AIR 1996 SC 796 27
 iii

6. Raj Kumar Yadav v. Samir Kumar Mahaseth,(2005) 3 SCC 601 51

1.3 Contents of election petition-material facts and particulars- section 83, R.P.
Act, 1951.
Parties to election petition- sections 82 read with sections 84, 86,
R.P. Act, 1951.
7. Udhav Singh v. Madhav Rao Scindia,AIR 1976 SC 744 55
8. Jyoti Basu v.Debi Ghosal,AIR 1982 SC 983 65
1.4 Recriminatory petition- section 97, R.P. Act, 1951
9. Jabar Singh v. Genda Lal, AIR 1964 SC 1200 71
1.5 Withdrawal (sections 109-111, R.P. Act, 1951), abatement(sections 112, 116,
R.P. Act, 1951) and dismissal (section 86, R.P. Act, 1951)of election petitions;
appeal(sections 116A, 116B, 116C, R.P. Act, 1951)
Topic 2: Composition of Parliament and Election of President and Vice President of India
2.1 Composition and dissolution of Parliament and state legislatures
The Constitution of India - Articles 79-83, 85, 168-172, 174, 330-334
2.2 Delimitation of constituencies
The Constitution of India - Articles 329(a), 81, 82, 170, 330, 332
R.P. Act, 1950- sections 3-13
The Delimitation Act, 2002
The Jammu and Kashmir Reorganisation Act, 2019
2.3 Election of the President and Vice-President of India
Constitution- Articles 52, 54-59, 62-68, 71
The Presidential and Vice-Presidential Elections Act, 1952
10. Charan Lal Sahu v. Giani Zail Singh,AIR 1984 SC 309 80
11. Special Reference No. 1 of 1974,AIR 1974 SC 1682 92
.
Topic 3: Composition, Powers and Functions of the Election Commission
3.1. Composition of the Election Commission
The Constitution of India – Article 324
The Election Commission (Conditions of Service of Election Commissioners and Transaction of
Business) Act, 1991
12. S.S. Dhanoa v. Union of India, AIR 1991 SC 1745
13. T.N. Seshan, Chief Election Commissioner of Indiav. Union of India (1995) 4 102
SCC 611
3.2. Powers and functions of the Election Commission
 iv

The Constitution of India – Articles 324- 328, 103(2), 192(2)

R.P. Act, 1951- sections 8A, 10A, 11, 11A, 11B, 28A(read with section 13CC,
R. P. Act, 1950), 29A, 77, 78, 146, 146A, 146B, 146C
The Election Symbols (Reservation and Allotment) Order, 1968
14. Mohinder Singh Gill v. Chief Election Commissioner, New Delhi,
AIR 1978 SC 851
15. Indian National Congress(I) v. Institute of Social Welfare, AIR 2002 SC 2158 119
16. Special Reference No. 1 of 2002,AIR 2003 SC 87

Topic 4 : Qualifications And Disqualifications of Candidates

The Constitution of India - Articles 84,101-104, 173, 190-193
R.P. Act, 1951- sections 3-6,7, 8, 8A, 9, 9A, 10, 10A, 11, 100(1)(a)
17. Kuldip Nayar v.Union of India, AIR 2006 SC 3127

4.1. Disqualification for holding an office of profit

The Constitution of India- Articles 102(1)(a), 191(1)(a)
R.P. Act, 1951 -section 10
The Parliament (Prevention of Disqualification) Act, 1959
18. Guru Gobind Basu v. Sankari Prasad Ghosal, AIR 1964 SC 254 134
19. Joti Prasad Upadhya v.Kalka Prasad Bhatnagar, AIR 1962 All 128
20. Ashok Kumar Bhattacharya v. Ajoy Biswas (1985) 1 SCC 151 142
21. Jaya Bachchan v. Union of India, AIR 2006 SC 2119 150
22. Consumer Education & Research Society v. Union of India(2009) 9 SCC 648 154
4.2. Disqualification for government contracts
The Constitution of India- Article 299
R.P. Act, 1951-section 9A
23. Konappa Rudrappa Nadgouda v. Vishwanath Reddy, AIR 1969 SC 447 172
24. Smt. Aslhing v. L.S. John, AIR 1984 SC 988
4.3. Disqualification on conviction for certain offences
R.P. Act, 1951-section 8
25. B.R. Kapur v. State of Tamil Nadu (2001) 7 SCC 231
26. K. Prabhakaran v. P. Jayarajan (2005) 1 SCC 754 178
27. Navjot Singh Sidhu v. State of Punjab, (2007) 2 SCC 574
28. Lily Thomas v. Union of India, (2013) 7 SCC 653 197
29. Public Interest Foundation v. Union of India, (2019) 3 SCC 224
Law Commission of India, 244th Report on Electoral Disqualifications
 v

(February, 2014).

Topic 5: Anti-Defection Law

The Constitution (Fifty-second Amendment) Act, 1985
The Constitution of India - Tenth Schedule, Articles 101(3), 102(2), 190(3), 191(2)
The Constitution (Ninety-first Amendment) Act, 2003
The Constitution of India- Articles 75(1A), 75(1B), 164(1A), 164(1B), 361B
30. Kihoto Hollohan v. Zachillhu,AIR 1993 SC 412
31. Ravi S. Naik v. Union of India, AIR 1994 SC 1558 214
32. G. Viswanathan v. Hon’ble Speaker Tamil Nadu Legislative Assembly,
AIR 1996 SC 1060
33. Rajendra Singh Rana v. Swami Prasad Maurya, AIR 2007 SC 1305
34. D. Sudhakar v. D.N. Jeevaraju, (2012) 2 SCC 708
35. Balchandra L. Jarkiholi v. B.S. Yeddyurappa, (2011) 7 SCC 1
36.
40. Shrimanth Balasaheb Patilv.Hon'ble Speaker, Karnataka Legislative Assembly,
201(2020) 2 SCC 595
37. Keisham Meghachandra Singh v. The Hon'ble Speaker, Manipur Legislative
Assembly 2020 SCC OnLine SC 55

Topic 6 : Nominations
6.1Requirements of valid nomination of candidates for election- procedure for filing
nomination paper, number of proposers, security deposit, scrutiny of nomination papers, grounds
of rejection of nomination papers, withdrawal of nomination papersetc.
R.P. Act, 1951 – sections 30-39, 100 (1) (c), 100 (1) (d) (i)
38. Rangilal Choudhury v. Dahu Sao, AIR 1962 SC 1248 233
6.2 Consequences of improper rejection andimproper acceptance of nomination
papers
R.P. Act, 1951 – sections 100 (1) (c) , 100 (1) (d) (i)
39. N.T. Veluswami Thevar v. Raja Nainar,AIR 1959 SC 422 237
40. Vashist Narain Sharma v. Dev Chandra,AIR 1954 SC 513 245
41. Chhedi Ram v. Jhilmit Ram,AIR 1984 SC 146 250
42. Santosh Yadav v. Narender Singh,AIR 2002 SC 241 253
43. Ram Phal Kundu v. Kamal Sharma, AIR 2004 SC 1657 262

Topic 7 : CorruptPractices
 vi

7.1 Distinction between corrupt practices (section 123, R.P.Act, 1951) and electoral offences
(Chapter IXA (sections 171A- 171 I ), Indian Penal Code, 1860 and sections 125-136, R.P.Act,
1951)
7.2 Corrupt Practices
R.P. Act, 1951 – section 123 read with sections 8A, 79, 98, 99, 100(1)(b), 100(1)(d)(ii),
100(2), 101
7.2.1 Bribery (section 123(1), R.P. Act, 1951)
44. H.V. Kamath v. Ch. Nitiraj Singh,AIR 1970 SC 211
45. Ghasi Ram v. Dal Singh,AIR 1968 SC 1191
7.2.2 Undue influence(section 123(2), R.P. Act, 1951)
46. Narbada Prasad v. Chhaganlal,AIR 1969 SC 395
47. Manubhai NandlalAmersey v. Popatlal Manilal Joshi,AIR 1969 SC 734 277
7.2.3 Appeal on the grounds of religion, race, caste, community or language etc.;
promotion of feelings of enmity or hatred between different classes of the
citizens of India on grounds of religion, race, caste, community or language
(sections 123(3), 123(3A), R.P. Act, 1951)
48. Kultar Singh v. Mukhtiar Singh,AIR 1965 SC 141
49. S. Harcharan Singh v. S. Sajjan Singh (1985)1 SCC 370
50. Manohar Joshi v. Nitin Bhaurao Patil,AIR 1996 SC 796
51. Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte,
AIR 1996 SC 1113 283
52. Abhiram Singh v. C.D. Commachen, (2017) 2 SCC 629
7.2.4 Publication of false statement of fact in relation to the personal character or
conduct of any candidate (section 123(4), R.P. Act, 1951)
53. Dev Kanta Barooah v. Golok Chandra Baruah,AIR 1970 SC 1231 311
54. Gadakh Yashwantrao Kanakrao v. Balasaheb Vikhe Patil, AIR 1994 SC 678
Free conveyance of voters (section 123(5), R.P. Act, 1951), incurring or
7.2.5 authorising expenditure in excess of the permissible limit (section 123(6),
R.P. Act, 1951) and booth capturing (section 123(8), R.P. Act, 1951)
Obtaining or procuring the assistance of a government servant (section
7.2.6 123(7), R.P. Act, 1951)
55. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299

Topic 8 : Voters’ Right to Know the Antecedents of the Candidates

R.P. Act 1951 - sections 33A, 33B, 125A
The Goswami Committee Report on Electoral Reforms, 1990
The Vohra Committee Report on Criminalisation of Politics, 1993
 vii

Law Commission of India, 170th Report on Reform of the Electoral Laws(May, 1999)
56. Union of Indiav. Association for Democratic Reforms,(2002) 5 SCC 294
57. People’s Union for Civil Liberties(PUCL) v. Union of India,
AIR 2003 SC 2363 322
58. Resurgence India v. Election Commission of India, 2013 (11) SCALE 348 342
59. Lok Prahari v. Union of India, (2018) 4 SCC 699

IMPORTANT NOTE:
1. The topics and cases given above are not exhaustive. The teachers teaching the course shall be
at liberty to add new topics/cases.
2. The students are required to study the legislations as amended up-to-date and consult the latest
editions of books.

******
 N.P. Ponnuswami v. Returning Officer, Namakkal Constituency
AIR 1952 SC 64

FAZL ALI, J. – 2. The appellant was one of the persons who had filed nomination papers
for election to the Madras Legislative Assembly from the Namakkal Constituency in Salem
district. On 28th November, 1951, the Returning Officer for that constituency took up for
scrutiny the nomination papers filed by the various candidates and on the same day he
rejected the appellant's nomination paper on certain grounds which need not be set out as they
are not material to the point raised in this appeal. The appellant thereupon moved the High
Court under Article 226 of the Constitution praying for a writ of certiorari to quash the order
of the Returning Officer rejecting his nomination paper and to direct the Returning Officer to
include his name in the list of valid nominations to be published. The High Court dismissed
the appellant's application on the ground that it had no jurisdiction to interfere with the order
of the Returning Officer by reason of the provisions of Article 329(b) of the Constitution. The
appellant's contention in this appeal is that the view expressed by the High Court is not
correct, that the jurisdiction of the High Court is not affected by Article 329(b) of the
Constitution and that he was entitled to a writ of certiorari in the circumstances of the case.
3. Broadly speaking, the arguments on which the judgment of the High Court is assailed
are two-fold:-
(1) that the conclusion arrived at by the High Court does not follow from the
language of Article 329(b) of the Constitution, whether that Article is read by itself or
along with the other Articles in Part XV of the Constitution; and
(2) that the anomalies which will arise if the construction put by the High Court on
Article 329(b) is accepted, are so startling that the courts should lean in favour of the
construction put forward on behalf of the appellant.
4. The first argument which turns on the construction of Article 329(b) requires serious
consideration, but I think the second argument can be disposed of briefly at the outset. It
should be stated that what the appellant chooses to call anomaly can be more appropriately
described as hardship or prejudice and what their nature will be has been stated in forceful
language by Wallace J. in Sarvothama Rao v. Chairman, Municipal Council, Saidapet
[(1924) ILR 47 Mad 585, 600] in these words :
I am quite clear that any post-election remedy is wholly inadequate to afford the
relief which the petitioner seeks, namely, that this election, now published be stayed,
until it can be held with himself as a candidate. It is no consolation to tell him that he
can stand for some other election. It is no remedy to tell him that he must let the
election go on and then have it set aside by petition and have a fresh election ordered.
The fresh election may be under altogether different conditions and may bring
forward an array of fresh candidates. The petitioner can only have his proper relief if
the proposed election without him is stayed until his rejected nomination is restored,
and hence an injunction staying this election was absolutely necessary, unless the
relief asked for was to be denied him altogether in limine. In most cases of this kind
no doubt there will be difficulty for the aggrieved party to get in his suit in time,
2

before the threatened wrong is committed; but when he has succeeded in so doing, the
Court cannot stultify itself by allowing the wrong which it is asked to prevent to be
actually consummated while it is engaged in trying the suit.
These observations however represent only one side of the picture and the same learned judge
presented the other side of the picture in a subsequent case Desi Chettiar v. Chinnasami
Chettiar [AIR 1928 Mad.1271, 1272] in the following passage:
The petitioner is not without his remedy. His remedy lies in an election petition
which we understand he has already put in. It is argued for him that that remedy
which merely allows him to have set aside an election once held is not as efficacious
as the one which would enable him to stop the election altogether; and certain
observations at p. 600 of Sarvothama Rao v. Chairman, Municipal Council,
Saidapet are quoted. In the first place, we do not see how the mere fact that the
petitioner cannot get the election stopped and has his remedy only after it is over by
an election petition will in itself confer on him any right to obtain a writ. In the
second place, these observations were directed to the consideration of the propriety of
an injunction in a civil suit, a matter with which we are not here concerned. And
finally it may be observed that these remarks were made some years ago when the
practice of individuals coming forward to stop elections in order that their own
individual interest may be safeguarded was not so common. It is clear that there is
another side of the question to be considered, namely, the inconvenience to the public
administration of having elections and the business of Local Boards held up while
individuals prosecute their individual grievances. We understand the election for the
elective seats in this Union has been held up since 31st May because of this petition,
the result being that the electors have been unable since then to have any
representation on the Board, and the Board is functioning, if indeed it is functioning,
with a mere nominated fraction of its total strength; and this state of affairs the
petitioner proposes to have continued until his own personal grievance is satisfied.
These observations which were made in regard to elections to Local Boards will apply with
greater force to elections to legislatures, because it does not require much argument to show
that in a country with a democratic constitution in which the legislatures have to play a very
important role, it will lead to serious consequences, if the elections are unduly protracted or
obstructed. To this aspect of the matter I shall have to advert later. But it is sufficient for the
present purpose to state firstly that in England the hardship and inconvenience which may be
suffered by an individual candidate has not been regarded as of sufficient weight to induce
Parliament to make provision for immediate relief and the aggrieved candidate has to wait
until after the election to challenge the validity of the rejection of his nomination paper, and
secondly, that the question of hardship or inconvenience is after all only a secondary question,
because if the construction put by the High Court on Article 329(b) of the Constitution is
found to be correct, the fact that such construction will lead to hardship and inconvenience
becomes irrelevant.
5. Article 329 is the last Article in Part XV of the Constitution, the heading of which is
“Elections”. In constructing this Article, reference was made by both parties in the course of
their arguments to the other Articles in the same Part, namely, Articles 324, 325, 326, 327 and
 3

328. Article 324 provides for the constitution and appointment of an Election Commissioner
to superintend, direct and control elections to the legislatures; Article 325 prohibits
discrimination against electors on the ground of religion, race, caste or sex; Article 326
provides for adult suffrage; Article 327 empowers Parliament to pass laws making provision
with respect to all matters relating to, or in connection with, elections to the legislatures,
subject to the provisions of the Constitution; and Article 328 is a complementary Article
giving power to the State Legislature to make provision with respect to all matters relating to,
or in connection with, elections to the State Legislature. A notable difference in the language
used in Articles 327 and 328 on the one hand, and Article 329 on the other, is that while the
first two Articles begin with the words “subject to the provisions of this Constitution” the last
Article begins with the words “notwithstanding anything in this Constitution”. It was
conceded at the bar that the effect of this difference in language is that whereas any law made
by Parliament under Article 327, or by the State Legislatures under Article 328, cannot
exclude the jurisdiction of the High Court under Article 226 of the Constitution, that
jurisdiction is excluded in regard to matters provided for in Article 329.
6. Now, the main controversy in this appeal centres around the meaning of the words “no
election shall be called in question except by an election petition” in Article 329(b), and the
point to be decided is whether questioning the action of the Returning Officer in rejecting a
nomination paper can be said to be comprehended within the words “no election shall be
called in question”. The appellant's case is that questioning something which has happened
before a candidate is declared elected is not the same thing as questioning an election, and the
arguments advanced on his behalf in support of this construction were these:-
(1) That the word “election” as used in Article 329(b) means what it normally and
etymologically means, namely, the result of polling or the final selection of a candidate;
(2) That the fact that an election petition can be filed only after polling is over or after a
candidate is declared elected, and what is normally called in question by such petition is the
final result, bears out the contention that the word “election” can have no other meaning in
Article 329(b) than the result of polling or the final selection of a candidate;
(3) That the words “arising out of or in connection with” which are used in Article 324(1)
and the words “with respect to all matters relating to, or in connection with” which are used in
Articles 327 and 328, show that the framers of the Constitution knew that it was necessary to
use different language when referring respectively to matters which happen prior to and after
the result of polling, and if they had intended to include the rejection of a nomination paper
within the ambit of the prohibition contained in Article 329(b) they would have used similar
language in that Article and
(4) That the action of the Returning Officer in rejecting a nomination paper can be
questioned before the High Court under Article 226 of the Constitution for the following
reason:- Scrutiny of nomination papers and their rejection are provided for in Section 36 of
the Representation of the People Act, 1951. Parliament has made this provision in exercise of
the powers conferred on it by Article 327 of the Constitution which is “subject to the
provisions of the Constitution”. Therefore, the action of the Returning Officer is subject to the
extraordinary jurisdiction of the High Court under Article 226.
4

7. These arguments appear at first sight to be quite impressive, but in my opinion there are
weightier and basically more important arguments in support of the view taken by the High
Court. As we have seen, the most important question for determination is the meaning to be
given to the word “election” in Article 329(b). That word has by long usage in connection
with the process of selection of proper representatives in democratic institutions, acquired
both a wide and a narrow meaning. In the narrow sense, it is used to mean the final selection
of a candidate which may embrace the result of the poll when there is polling, or a particular
candidate being returned unopposed when there is no poll. In the wide sense, the word is used
to connote the entire process culminating in a candidate being declared elected. In Srinivasalu
v. Kuppuswami [AIR 1928 Mad. 253, 255] the learned Judges of the Madras High Court after
examining the question, expressed the opinion that the term "election" may be taken to
embrace the whole procedure whereby an “elected member” is returned, whether or not it be
found necessary to take a poll. With this view, my brother, Mahajan J. expressed his
agreement in Sat Narain v. Hanuman Prasad [AIR 1945 Lah. 85] and I also find myself in
agreement with it. It seems to me that the word “election” has been used in Part XV of the
Constitution in the wide sense, that is to say, to connote the entire procedure to be gone
through to return a candidate to the legislature. The use of the expression “conduct of
elections” in Article 324 specifically points to the wide meaning, and that meaning can also
be read consistently into the other provisions which occur in Part XV including Article 329
(b). That the word “election” bears this wide meaning whenever we talk of elections in a
democratic country, is borne out by the fact that in most of the books on the subject and in
several cases dealing with the matter, one of the questions mooted is, when the election
begins. The subject is dealt with quite concisely in Halsbury's Laws of England (See page
237 of Halsbury's Laws of England, 2nd ed., Vol. 12) in the following passage(s) under the
heading “Commencement of the Election”:
Although the first formal step in every election is the issue of the writ, the
election is considered for some purposes to begin at an earlier date. It is a question of
fact in each case when an election begins in such a way as to make the parties
concerned responsible for breaches of election law, the test being whether the contest
is “reasonably imminent”. Neither the issue of the writ nor the publication of the
notice of election can be looked to as fixing the date when an election begins from
this point of view. Nor, again, does the nomination day afford any criterion. The
election will usually begin at least earlier than the issue of the writ. The question
when the election begins must be carefully distinguished from that as to when “the
conduct and management of” an election may be said to begin. Again, the question as
to when a particular person commences to be a candidate is a question to be
considered in each case.
The discussion in this passage makes it clear that the word “election” can be and has been
appropriately used with reference to the entire process which consists of several stages and
embraces many steps, some of which may have an important bearing on the result of the
process.
8. The next important question to be considered is what is meant by the words “no
election shall be called in question”. A reference to any treatise on elections in England will
 5

show that an election proceeding in that country is liable to be assailed on very limited
grounds, one of them being the improper rejection of a nomination paper. The law with which
we are concerned is not materially different, and we find that in Section 100 of the
Representation of the People Act, 1951, one of the grounds for declaring an election to be
void is the improper rejection of a nomination paper.
9. The question now arises, whether the law of elections in this country contemplates that
there should be two attacks on matters connected with election proceedings, one while they
are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of
the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and
another after they have been completed by means of an election petition. In my opinion, to
affirm such a position would be contrary to the scheme of Part XV of the Constitution and the
Representation of the People Act, which, as I shall point out later, seems to be that any matter
which has the effect of vitiating an election should be brought up only at the appropriate stage
in an appropriate manner before a special tribunal and should not be brought up at an
intermediate stage before any court. It seems to me that under the election law, the only
significance which the rejection of a nomination paper has consists in the fact that it can be
used as a ground to call the election in question. Article 329(b) was apparently enacted to
prescribe the manner in which and the stage at which this ground, and other grounds which
may be raised under the law to call the election in question could be urged. I think it follows
by necessary implication from the language of this provision that those grounds cannot be
urged in any other manner, at any other stage and before any other court. If the grounds on
which an election can be called in question could be raised at an earlier stage and errors, if
any, are rectified, there will be no meaning in enacting a provision like Article 329(b) and in
setting up a special tribunal. Any other meaning ascribed to the words used in the Article
would lead to anomalies, which the Constitution could not have contemplated, one of them
being that conflicting views may be expressed by the High Court at the pre-polling stage and
by the election tribunal, which is to be an independent body, at the stage when the matter is
brought up before it.
10. I think that a brief examination of the scheme of Part XV of the Constitution and the
Representation of the People Act, 1951, will show that the construction I have suggested is
the correct one. Broadly speaking, before an election machinery can be brought into
operation, there are three requisites which require to be attended to, namely, (1) there should
be a set of laws and rules making provisions with respect to all matters relating to, or in
connection with, elections, and it should be decided as to how these laws and rules are to be
made;(2) there should be an executive charged with the duty of securing the due conduct of
elections; and (3) there should be a judicial tribunal to deal with disputes arising out of or in
connection with elections. Articles 327 and 328 deal with the first of these requisites, Article
324 with the second, and Article 329 with the third requisite. The other two Articles in Part
XV, viz. Articles 325 and 326, deal with two matters of principle to which the Constitution-
framers have attached much importance. They are:
(1) prohibition against discrimination in the preparation of, or eligibility for inclusion
in, the electoral rolls, on grounds of religion, race, caste, sex or any of them; and
(2) adult suffrage.
6

Part XV of the Constitution is really a code in itself providing the entire ground-work for
enacting appropriate laws and setting up suitable machinery for the conduct of elections.
11. The Representation of the People Act, 1951, which was passed by Parliament under
Article 327 of the Constitution, makes detailed provisions in regard to all matters and all
stages connected with elections to the various legislatures in this country. That Act is divided
into II parts, and it is interesting to see the wide variety of subjects they deal with. Part Il
deals with the qualifications and disqualifications for membership, Part III deals with the
notification of General Elections, Part IV provides for the administrative machinery for the
conduct of elections, and Part V makes provisions for the actual conduct of elections and
deals with such matters as presentation of nomination papers, requirements of a valid
nomination, scrutiny of nominations, etc., and procedure for polling and counting of votes.
Part VI deals with disputes regarding elections and provides for the manner of presentation of
election petitions, the constitution of election tribunals and the trial of election petitions. Part
VII outlines the various corrupt and illegal practices which may affect the elections, and
electoral offences. Obviously, the Act is a self contained enactment so far as elections are
concerned, which means that whenever we have to ascertain the true position in regard to any
matter connected with elections, we have only to look at the Act and the rules made there
under. The provisions of the Act which are material to the present discussion are Sections 80,
100, 105 and 170, and the provisions of Chapter II of Part IV dealing with the form of
election petitions, their contents and the reliefs, which may be sought in them. Section 80,
which is drafted in almost the same language as Article 329(b), provides that “no election
shall be called in question except by an election petition presented in accordance with the
provisions of this Part”. Section 100, as we have already seen, provides for the grounds on
which an election may be called in question, one of which is the improper rejection of a
nomination paper. Section 105 says that “every order of the Tribunal made under this Act
shall be final and conclusive”. Section 170 provides that “no civil court shall have jurisdiction
to question the legality of any action taken or of any decision given by the Returning Officer
or by any other person appointed under this Act in connection with an election.” These are the
main provisions regarding election matters being judicially dealt with, and it should be noted
that there is no provision anywhere to the effect that anything connected with elections can be
questioned at an intermediate stage.
12. It is now well-recognized that where a right or liability is created by a statute which
gives a special remedy for enforcing it, the remedy provided by that statute only must be
availed of. This rule was stated with great clarity by Willes J. in Wolver Hampton New Water
Works Co. v. Hawkesford [(1859) 6 C.B. (N.S.) 336, 356] in the following passage:
There are three classes of cases in which a liability may be established founded
upon statute. One is, where there was a liability existing at common law and that
liability is affirmed by a statute which gives a special and peculiar form of remedy
different from the remedy which existed at common law; there, unless the statute
contains words which expressly or by necessary implication exclude the common law
remedy, the party suing has his election to pursue either that, or the statutory remedy.
The second class of cases is, where the statute gives the right to sue merely, but
provides no particular form of remedy; there, the party can only proceed by action at
 7

common law. But there is a third class, viz., where a liability not existing at common
law is created by a statute which at the same time gives a special and particular
remedy for enforcing it. The remedy provided by the statute must be followed, and it
is not competent to the party to pursue the course applicable to cases of the second
class. The form given by the statute must be adopted and adhered to.
13. It was argued that since the Representation of the People Act was enacted subject to
the provisions of the Constitution, it cannot bar the jurisdiction of the High Court to issue
writs under Article 226 of the Constitution. This argument however is completely shut out by
reading the Act along with Article 329(b). It will be noticed that the language used in that
Article and in Section 80 of the Act is almost identical, with this difference only that the
Article is preceded by the words “notwithstanding anything in this Constitution”. I think that
those words are quite apt to exclude the jurisdiction of the High Court to deal with any matter
which may arise while the elections are in progress.
14. It may be stated that Section 107(1) of the Representation of the People Act, 1949 in
England is drafted almost in the same language as Article 329(b). That Section runs thus:-
No parliamentary election and no return to Parliament shall be questioned except
by a petition complaining of an undue election or undue return (hereinafter referred to
as a parliamentary election petition) presented in accordance with this Part of this
Act.
It appears that similar language was used in the earlier statutes, and it is noteworthy that it has
never been held in England that the improper rejection of a nomination paper can be the
subject of a writ of certiorari or mandamus. On the other hand, it was conceded at the bar that
the question of improper rejection of a nomination paper has always been brought up in that
country before the appropriate tribunal by means of an election petition after the conclusion of
the election. It is true that there is no direct decision holding that the words used in the
relevant provisions exclude the jurisdiction of the High Court to issue appropriate prerogative
writs at an intermediate stage of the election, but the total absence of any such decision can be
accounted for only on the view that the provisions in question have been generally understood
to have that effect. Our attention was drawn to Rule 13 of the rules appended to the Ballot Act
of 1872 and a similar rule in the Parliamentary Elections Rules of 1949, providing that the
decision of the Returning Officer disallowing an objection to a nomination paper shall be
final, but allowing the same shall be subject to reversal on a petition questioning the election
or return. These rules however do not affect the main argument. I think it can be legitimately
stated that if words similar to those used in Article 329(b) have been consistently treated in
England as words apt to exclude the jurisdiction of the courts including the High Court, the
same consequence must follow from the words used in Article 329(b) of the Constitution. The
words "notwithstanding anything in this Constitution" give to that Article the same wide and
binding effect as a statute passed by a sovereign legislature like the English Parliament.
15. It may be pointed out that Article 329(b) must be read as complimentary to clause (a)
of that Article. Clause (a) bars the jurisdiction of the courts with regard to such law as may be
made under Articles 327 and 328 relating to the delimitation of constituencies or the allotment
of seats to such constituencies. It was conceded before us that Article 329(b) ousts the
8

jurisdiction of the courts with regard to matters arising between the commencement of the
polling and the final selection. The question which has to be asked is what conceivable reason
the legislature could have had to leave only matters connected with nominations subject to the
jurisdiction of the High Court under Article 226 of the Constitution. If Part XV of the
Constitution is a code by itself, i.e., it creates rights and provides for their enforcement by a
special tribunal to the exclusion of all courts including the High Court, there can be no reason
for assuming that the Constitution left one small part of the election process to be made the
subject-matter of contest before the High Courts and thereby upset the time-schedule of the
elections. The more reasonable view seems to be that Article 329 covers all “electoral
matters”.
16. The conclusions which I have arrived at may be summed up briefly as follows:--
(1) Having regard to the important functions which the legislatures have to
perform in democratic countries, it has always been recognized to be a matter of first
importance that elections should be concluded as early as possible according to time
schedule and all controversial matters and all disputes arising out of elections should
be postponed till after the elections are over, so that the election proceedings may not
be unduly retarded or protracted.
(2) In conformity with this principle, the scheme the election law in this country
as well as in England is that no significance should be attached to anything which
does not affect the “election” and if any irregularities are committed while it is in
progress and they belong to the category or class which, under the law by which
elections are governed, would have the effect of vitiating the “election” and enable
the person affected to call it in question, they should be brought up before a special
tribunal by means of an election petition and not be made the subject of a dispute
before any court while the election is in progress.
17. It will be useful at this stage to refer to the decision the Privy Council in Berge v.
Laudry [(1876) 2 AC 102]. Petitioner in that case, having been declared duly elected a
member to represent an electoral district in the Legislative Assembly of the Province of
Quebec, his election was afterwards, on petition, declared null and void by judgment of the
Superior Court, under the Quebec Controverted Elections Act, 1875, and was himself
declared guilty of corrupt practices both personally and by his agents. Thereupon, he applied
for special leave to appeal to Her Majesty in Council, but it was refused on the ground that the
fair construction of the Act of 1875 and the Act of 1872 which preceded it providing among
other things that the judgment of the Superior Court “shall not be susceptible of appeal” was
that it was the intention of the legislature to create a tribunal for the purpose of trying election
petitions in a manner which should make its decision final for all purposes, and should not
annex to it the incident of its judgment being reviewed by the Crown under its prerogative. In
delivering the judgment of the Privy Council, Lord Cairns observed as follows:-
These two Acts of Parliament, the Acts of 1872 and 1875, are Acts peculiar in
their character. They are not Acts constituting or providing for the decision of mere
ordinary civil rights; they are Acts creating an entirely new, and up to that time
unknown, jurisdiction in a particular Court for the purpose of taking out, with its own
consent, of the Legislative Assembly, and vesting in that Court, that very peculiar
 9

jurisdiction which, up to that time, had existed in the Legislative Assembly of

deciding election petitions, and determining the status of those who claimed to be
members of the Legislative Assembly. A jurisdiction of that kind is extremely special,
and one of the obvious incidents or consequences of such a jurisdiction must be that
the jurisdiction, by whomsoever it is to be exercised, should be exercised in a way
that should as soon as possible become conclusive; and enable the constitution of the
Legislative Assembly to be distinctly and speedily known.
After dealing with certain other matters, the Lord Chancellor proceeded to make the following
further observations:--
Now, the subject-matter, as has been said, of the legislation is extremely peculiar.
It concerns the rights and privileges of the electors and of the Legislative Assembly to
which they elect members. Those rights and privileges have always, in every colony,
following the example of the mother country, been zealously maintained and guarded
by the Legislative Assembly. Above all, they have been looked upon as rights and
privileges which pertain to the Legislative Assembly, in complete independence of
the Crown, so far as they properly exist. And it would be a result somewhat
surprising, and hardly in consonance with the general scheme of the legislation, if,
with regard to rights and privileges of this kind, it were to be found that in the last
resort the determination of them no longer belonged to the Legislative Assembly, no
longer belonged to the Superior Court which the Legislative Assembly had put in its
place, but belonged to the Crown in Council, with the advice of the advisers of the
Crown at home, to be determined without reference either to the judgment of the
Legislative Assembly, or of that Court which the Legislative Assembly had
substituted in its place.
18. The points which emerge from this decision may be stated as follows : (1) The right to
vote or stand as a candidate for election is not a civil right but is a creature of statute or
special law and must be subject to the limitations imposed it (2) Strictly speaking, it is the
sole right of the Legislature to examine and determine all matters relating to the election of its
own members, and if the legislature takes it out of its own hands and vests in a special
tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be
exercised in accordance with the law which creates it.
20. It is necessary to refer at this stage to an argument advanced before us on behalf of the
appellant which was based on the language of Article 71(1) of the Constitution. That
provision runs thus:-
All doubts and disputes arising out of or in connection with the election of a
President or Vice-President shall be inquired into and decided by the Supreme Court
whose decision shall be final.
The argument was as follows. There is a marked contrast between the language used in Article
71(1) and that of Article 329(b). The difference in the phraseology employed in the two
provisions suggests that they could not have been intended to have the same meaning and
scope as regards matters to be brought up before the tribunals they respectively deal with. If
the framers of the Constitution, who apparently knew how to express themselves, intended to
10

include within the ambit of Article 329(b) all possible disputes connected with elections to
legislatures, including disputes as to nominations, they would have used similar words as are
to be found in Article 71(1). It is true that it is not necessary to use identical language in every
provision, but one can conceive of various alternative ways of expression which would convey
more clearly and properly what Article 329(b) is said to convey.
21. It seems to me that once it is admitted that the same idea can be expressed in different
ways and the same phraseology need not be employed in every provision, the argument loses
much of its force. But, however that may be, I think there is a good explanation as to why
Article 329(b) was drafted as it stands.
22. A reference to the election rules made under the Government of India Acts of 1919
and 1935 will show that the provisions in them on the subject were almost in the same
language as Article 329(b). The corresponding rule made under the Government of India Act,
1919, was Rule 31 of the Electoral Rules, and it runs as follows :-
No election shall be called in question, except by an election petition presented in
accordance with the provisions of this Part.
It should be noted that this rule occurs in Part VII, the heading of which is “the final decision
of doubts and disputes as to the validity of an election”. These words throw some light on the
function which the election tribunal was to perform, and they are the very words which the
learned counsel for the appellant argued, ought to have been used to make the meaning clear.
23. The same scheme was followed in the Election Rules framed under the Government of
India Act, 1935, which are contained in “The Government of India (Provincial Elections)
(Corrupt Practices and Election Petitions) Order, 1936” dated the 3rd July, 1936. In that
Order, the Rule corresponding to Rule 31 under the earlier Act, runs thus:-
No election shall be called in question except by an election petition presented in
accordance with the provisions of this Part of the Order.
This rule is to be found in Part III of the Order, the heading of which is “Decision of doubts
and disputes as to the validity of an election and disqualification for corrupt practices.”
24. The rules to which I have referred were apparently framed on the pattern of the
corresponding provisions of the British Acts of 1868 and 1872, and they must have been
intended to cover the same ground as the provisions in England have been understood to
cover in that country for so many years. If the language used in Article 329(b) is considered
against this historical background, it should not be difficult to see why the framers of the
Constitution framed that provision in its present form and chose the language which had been
consistently used in certain earlier legislative provisions and which had stood the test of time.
25. And now a word as to why negative language was used in Article 329(b). It seems to
me that there is an important difference between Article 71(1) and Article 329(b). Article
71(1) had to be in an affirmative form, because it confers special jurisdiction on the Supreme
Court which that Court could not have exercised but for this Article. Article 329(b), on the
other hand, was primarily intended to exclude or oust the jurisdiction of all courts in regard to
electoral matters and to lay down the only mode in which an election could be challenged.
The negative form was therefore more appropriate, and, that being so, it is not surprising that
 11

it was decided to follow the pre-existing pattern in which also the negative language had been
adopted.
26. Before concluding, I should refer to an argument which was strenuously pressed by
the learned counsel for the appellant and which has been reproduced by one of the learned
Judges of the High Court in these words:
It was next contended that if nomination is part of election, a dispute as to the
validity of nomination is a dispute relating to election and that can be called in
question only in accordance with the provisions of Article 329(b) by the presentation
of an election petition to the appropriate Tribunal and that the Returning Officer
would have no jurisdiction to decide that matter and it was further argued that
Section 36 of Act XLIII of 1951 would be ultra vires in as much as it confers on the
Returning Officer a jurisdiction which Article 329(b) confers on a Tribunal to be
appointed in accordance with the Article.
This argument displays great dialectical ingenuity, but it has no bearing on the result of this
appeal and I think it can be very shortly answered. Under Section 36 of the Representation of
the People Act, 1951, it is the duty of the Returning Officer to scrutinize the nomination
papers to ensure that they comply with the requirements of the Act and decide all objections
which be made to any nomination. It is clear that unless this duty is discharged properly, any
number of candidates may stand for election without complying with the provisions of the
Act and a great deal of confusion may ensue. In discharging the statutory duty imposed on
him, the Returning Officer does not call in question any election. Scrutiny of nomination
papers is only a stage, though an important stage, in the election process. It is one of the
essential duties to be performed before the election can be completed, and anything done
towards the completion of the election proceeding can by no stretch of reasoning be described
as questioning the election. The fallacy of the argument lies in treating a single step taken in
furtherance of an election as equivalent to election. The decision of this appeal however turns
not on the construction of the single word “election” but on the construction of the
compendious expression – “no election shall be called in question” in its context and setting,
with due regard to the scheme of Part XV of the Constitution and the Representation of the
People Act, 1951. Evidently, the argument has no bearing on this method of approach to the
question posed in this appeal, which appears to me to be the only correct method.
27. We are informed that besides the Madras High Court, seven other State High Courts
have held that they have no jurisdiction under Article 226 of the Constitution to entertain
petitions regarding improper rejection of nomination papers. This view is, in my opinion,
correct and must be affirmed. The appeal must therefore fail and is dismissed.

*****
12

Election Commission of India through Secretary v. Ashok Kumar

AIR 2000 SC 2979

R.C. LAHOTI, J. – 2. The 12th Lok Sabha having been dissolved by the President of India
on 26.4.1999, the Election Commission of India announced the programme for the General
Election to constitute the 13th Lok Sabha. Pursuant thereof, the polling in the State of Kerala
took place on 11.9.1999. The counting of votes was scheduled to take place on 6.10.1999.
3. In exercise of the powers conferred by Rule 59A of the Conduct of Election Rules,
1961, the Election Commission of India issued a notification published in Kerala Gazette
Extra-ordinary dated 1st October, 1999 which reads as under:-
NOTIFICATION NO. 470/99/JUD-II (H.P.)
1. WHEREAS, Rule 59A of the Conduct of Elections Rules, 1961 provides that
where the Election Commission apprehends intimidation and victimisation of electors
in any constituency and it is of the opinion that it is absolutely necessary that ballot
papers taken out of all ballot boxes used in that constituency should be mixed before
counting, instead of being counted polling station wise, it may, by notification in the
Official Gazette, specify such constituency;
2. AND WHEREAS, on such specification under the said Rule 59A of the
Conduct of Election Rules, 1961, the ballot papers of the specified constituency shall
be counted by being mixed instead of being counted polling station wise.
3. AND WHEREAS, the Election Commission has carefully considered the
matter and has decided that in the light of the prevailing situation in the State of
Kerala, and in the interest of free and fair election and also for the safety and security
of electors and with a view to preventing intimidation and victimisation of electors in
that State, each of the Parliamentary Constituencies in the State except Ernakulam
and Trivandrum Parliamentary Constituencies, may be specified under the said Rule
59A for the purposes of counting votes at the general election to the House of the
People, 1999 now in progress.
4. NOW, THEREFORE, the Election Commission hereby specifies that each of
the said Parliamentary Constituencies, except Ernakulam and Trivandrum
Parliamentary Constituencies, in the State of Kerala as the constituencies to which
the provisions of Rule 59A of the Conduct of Elections Rules, 1961 shall apply for
the purpose of counting of votes at the current General Election to the House of the
People.
BY ORDER
Sd/-
(K.J. RAO)
Secretary, Election Commission of India
4. In Ernakulam and Trivandrum constituencies electronic voting machines were
employed for polling. In all other constituencies of Kerala voting was through ballot papers.
5. On 4.10.1999, two writ petitions were filed respectively by the respondents no.1 & 2
herein, laying challenge to the validity of the above notification. In O.P. No. 24444/1999 filed
 13

by respondent no. 2, who was a candidate in the election and has been a member of the
dissolved Lok Sabha having also held the office of a Minister in the Cabinet, it was alleged
that large scale booth capturing had taken place in the Lok Sabha election at Kannur,
Allappuzha and Kasaragod constituencies. Similar allegations of both capturing were made as
to polling stations throughout the State. At such polling stations, the polling agents of the
Congress party and their allies were not allowed to sit in the polling booths. In 70 booths
polling was above 90%, in 25 booths the percentage of polling was more than 92% and in 5
booths it was 95% and above. The presiding officers and the electoral officers did not take
any action on the complaints made to them and they were siding with the ruling party (Left
Democratic Front or the LDF). At some places the representatives of the Congress party were
ordered to be given police protection by the Court but no effective police protection was
given. There are other polling booths where the percentage of polling has been very low, as
less as 7.8% in booth no. 21 at Manivara Government School. No polling was recorded in
booth no. 182. In 27 booths polling was 26%. Complaints were also made to the Chief
Election Commissioner. Under Section 135A of the Representation of the People Act, 1951,
booth capturing is an offence.
6. O.P. no. 24516/1999 was filed by respondent no.1, who contested from the Allapuzha
constituency as an independent candidate, alleging more or less similar facts as were alleged
in O.P. no.24444/1999.
7. In both the writ petitions it is alleged that in the matter of counting the Election
Commission of India issued guidelines on 22nd September, 1999 which directed that all the
ballot boxes of one Polling Station will be distributed to one table for counting the ballot
papers. There was no change in the circumstances ever since the date of the above-said
guidelines and yet on 28.9.1999 the Election Commission of India issued the impugned
notification. According to both the writ petitioners, if counting took place in accordance with
the directions issued on 28.9.1999, valuable piece of evidence would be lost as the allegations
as to booth capturing could best be substantiated if the counting of votes took place polling
station-wise and not by mixing of votes from the various booths. An interim relief was sought
by both the writ petitioners seeking suspension of the notification dated 28.9.1999.
8. Notice of the writ petition and applications seeking interim relief was served on the
standing counsel for the State Government and the Government Pleader who represented the
Chief Electoral Officer. Paucity of time and the urgency required for hearing the matter did
not allow time enough for service of notice on the parties individually.
9. The prayer for the grant of interim relief was opposed by the learned counsel appearing
for the respondents before the High Court by placing reliance on Article 329(b) of the
Constitution. According to the writ petitioners before the High Court, the normal rule was to
count votes booth-wise unless exceptional circumstances were shown to exist whereupon
Rule 59A could be invoked. According to the learned counsel for the respondents before the
High Court, in Ernakulam and Trivandrum parliamentary constituencies, polling was done
with the aid of voting machines and hence, excepting these two constituencies, the Election
Commission of India formed an opinion for invoking Rule 59A which the Election
Commission of India was justified, and well within its power to do. In the opinion of the High
Court, in view of large number of allegations of booth capturing (without saying that such
14

allegations were correct) it was necessary to have the votes counted booth-wise so that the
correctness of the allegations could be found out in an election petition which would be filed
later, on declaration of the results. The High Court also believed the averment made in the
affidavits filed in support of the stay petitions wherein it was stated that training was given to
the officers for counting the votes booth-wise, i.e. with mixing or without mixing. Mixing of
votes of all booths will take more time in counting and require engagement of more officers.
The learned Government pleader was not able to demonstrate before the High Court if the
notification dated 28.9.1999 was published in the official gazette. On a cumulative effect of
the availability of such circumstances, the High Court by its impugned order dated 4th
October, 1999 directed the Election Commission and Chief Electoral Officer to make
directions in such a way that counting was conducted booth-wise consistently with the
guidelines dated 22.9.1999.
10. On 5.10.1999 the Election Commission of India filed the special leave petitions before
this court which were taken up for hearing upon motion made on behalf of the petitioner-
appellant. A copy of the official gazette dated 1st October, 1999 wherein the notification
dated 28.9.1999 was published, was also produced for the perusal of this court on the affidavit
of Shri K.J. Rao, Secretary, Election Commission of India. This court directed notices to be
issued and in the meanwhile operation of the order of the Kerala High Court was also directed
to be stayed.
11. When the matter came up for hearing after notice, leave was granted for filing the
appeals and interim direction dated 5.10.1999 was confirmed to remain in operation till the
disposal of appeals. At the final hearing it was admitted at the Bar that in view of the
impugned order of the High Court having been stayed by this court, the counting had taken
place in accordance with the Notification dated 28.9.1999 made by the Election Commission
of India. In view of these subsequent events, the appeals could be said to have been rendered
infructuous. However, the learned counsel for the appellant submitted that the issue arising
for decision in these appeals is of wide significance in as much as several writ petitions are
filed before the High Courts seeking interim directions interfering with the election
proceedings and therefore it would be in public interest if this court may pronounce upon the
merits of the issue arising for decision in these appeals. We have found substance in the
submission so made and, therefore, the appeals have been heard on merits.
12. The issue arising for decision in these appeals is the jurisdiction of the High Court to
entertain petitions under Article 226 of the Constitution of India and to issue interim
directions after commencement of the electoral process.
13. Article 324 of the Constitution contemplates constitution of the Election Commission
in which shall vest the superintendence, direction and control of the preparation of the
electoral rolls for, and the conduct of, all elections to Parliament and to the Legislature of
every State and of elections to the offices of President and Vice-President held under the
Constitution. The words superintendence, direction and control have a wide connotation so as
to include therein such powers which though not specifically provided but are necessary to be
exercised for effectively accomplishing the task of holding the elections to their completion.
 15

14. The term election as occurring in Article 329 has been held to mean and include the
entire process from the issue of the Notification under Section 14 of the Representation of the
People Act, 1951 to the declaration of the result under Section 66 of the Act.
15. The constitutional status of the High Courts and the nature of the jurisdiction
exercised by them came up for the consideration of this court in Harwan Investment and
Trading Pvt.Ltd., Goa [1993 Supp (2) SCC 433]. It was held that the High Courts in India are
superior courts of record. They have original and appellate jurisdiction. They have inherent
and supplementary powers. Unless expressly or impliedly barred and subject to the appellate
or discretionary jurisdiction of the Supreme Court, the High Courts have unlimited
jurisdiction including the jurisdiction to determine their own powers. The following statement
of law from Halsbury’s Laws of England [4th Edn., Vol.10, para 713] was quoted with
approval:
Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court
unless it is expressly shown to be so, while nothing is within the jurisdiction of an
inferior court unless it is expressly shown on the face of the proceedings that the
particular matter is within the cognizance of the particular court.
16. This Court observed that the jurisdiction of courts is carved out of sovereign power of
the State. People of free India are the sovereign and the exercise of judicial power is
articulated in the provisions of the Constitution to be exercised by the courts under the
Constitution and the laws there under. It cannot be confined to the provisions of imperial
statutes of a bygone age. Access to court which is an important right vested in every citizen
implies the existence of the power of the court to render justice according to law. Where
statute is silent and judicial intervention is required, courts strive to redress grievances
according to what is perceived to be principles of justice, equity and good conscience.
17. That the power of judicial review is a basic structure of the Constitution - is a concept
which is no longer an issue.
18. Is there any conflict between the jurisdiction conferred on the High Courts by Article
226 of the Constitution and the embargoes created by Article 329 and if so how would they
co-exist came up for the consideration of this court in N.P. Ponnuswami v. Returning
Officer, Namakkal Constituency [AIR 1952 SC 64]. The law enunciated in Ponnuswami’s
case was extensively dealt with, and also amplified, by another Constitution Bench in
Mohinder Singh Gill v. Chief Election Commissioner, New Delhi [AIR 1978 SC 851]. The
plenary power of Article 329 has been stated by the Constitution Bench to be founded on two
principles :
(1) The peremptory urgency of prompt engineering of the whole election process
without intermediate interruptions by way of legal proceedings challenging the steps
and stages in between the commencement and the conclusion;
(2) The provision of a special jurisdiction which can be invoked by an aggrieved
party at the end of the election excludes other form, the right and remedy being creatures
of statutes and controlled by the Constitution.
On these principles, the conclusions arrived at in Ponnuswami case were so stated in
Mohinder Singh Gill case:
16

(1) Having regard to the important functions which the legislatures have to
perform in democratic countries, it has always been recognised to be a matter of first
importance that elections should be concluded as early as possible according to time
schedule and all controversial matters and all disputes arising out of elections should
be postponed till after the elections are over, so that the election proceedings may not
be unduly retarded or protracted.
(2) In conformity with this principle, the scheme of the election law in this
country as well as in England is that no sigificance should be attached to anything
which does not affect the election; and if any irregularities are committed while it is
in progress and they belong to the category or class which under the law by which
elections are governed, would have the effect of vitiating the election and enable the
person affected to call it in question, they should be brought up before a special
tribunal by means of an election petition and not be made the subject of a dispute
before any court while the election is in progress.
19. However, the Constitution Bench in Mohinder Singh Gill case could not resist
commenting on Ponnuswami case observing that the non-obstante clause in Article 329
pushes out Article 226 where the dispute takes the form of calling in question an election,
except in special situations pointed out at, but left unexplored in Ponnuswami.
20. Vide para 29 in Mohinder Singh Gill case, the Constitution Bench noticed two types
of decisions and two types of challenges: The first relating to proceedings which interfere
with the progress of the election and the second which accelerate the completion of the
election and acts in furtherance of an election. A reading of Mohinder Singh Gill case points
out that there may be a few controversies which may not attract the wrath of Article 329(b).
To wit:
(i) power vested in a functionary like the Election Commission is a trust and in
view of the same having been vested in high functionary can be expected to be
discharged reasonably, with objectivity and independence and in accordance with
law. The possibility however cannot be ruled out where the repository of power may
act in breach of law or arbitrarily or malafide.
(ii) A dispute raised may not amount to calling in question an election if it
subserves the progress of the election and facilitates the completion of the election.
The Election Commission may pass an order which far from accomplishing and
completing the process of election may thwart the course of the election and such a
step may be wholly unwarranted by the Constitution and wholly unsustainable under
the law.
In Mohinder Singh Gill case, this Court gives an example. Say after the President notifies the
nation on the holding of elections under Section 15 and the Commissioner publishes the
calendar for the poll under Section 30 if the latter orders returning officers to accept only one
nomination or only those which come from one party as distinguished from other parties or
independents, which order would have the effect of preventing an election and not promoting
it, the Court’s intervention in such a case will facilitate the flow and not stop the election
stream.
 17

21. A third category is not far to visualise. Under Section 81 of the Representation of the
People Act, 1951 an election petition cannot be filed before the date of election, i.e., the date
on which the returned candidate is declared elected. During the process of election something
may have happened which would provide a good ground for the election being set aside.
Purity of election process has to be preserved. One of the means for achieving this end is to
deprive a returned candidate of the success secured by him by resorting to means and methods
falling foul of the law of elections. But by the time the election petition may be filed and
judicial assistance secured, material evidence may be lost. Before the result of the election is
declared assistance of Court may be urgently and immediately needed to preserve the
evidence, without in any manner intermeddling with or thwarting the progress of election. So
also, there may be cases where the relief sought for may not interfere or intermeddle with the
process of the election but the jurisdiction of the Court is sought to be invoked for correcting
the process of election, taking care of such aberrations as can be taken care of only at that
moment failing which the flowing stream of election process may either stop or break its
bounds and spill over. The relief sought for is to let the election process proceed in
conformity with law and the facts and circumstances be such that the wrong done shall not be
undone after the result of the election has been announced subject to overriding consideration
that the Court’s intervention shall not interrupt, delay or postpone the ongoing election
proceedings. The facts of the case at hand provide one such illustration with which we shall
deal with a little later. We proceed to refer a few other decided cases of this court cited at the
Bar.
22. In Lakshmi Charan Sen v. A.K.M. Hassan Uzzaman [AIR 1985 SC 1233] writ
petitions under Article 226 of the Constitution were filed before the High Court asking for the
writs of mandamus and certiorari, directing that the instructions issued by the Election
Commission should not be implemented by the Chief Electoral Officer and others; that the
revision of electoral rolls be undertaken de novo; that claims, objections and appeals in regard
to the electoral rolls be heard and disposed of in accordance with the rules; and that, no
notification be issued under section 15(2) of the Representation of the People Act, 1951
calling for election to the West Bengal Legislative Assembly, until the rolls were duly
revised. The High Court entertained the petitions and gave interim orders. The writ petitioners
had also laid challenge to the validity of several provisions of the Acts and Rules, which
challenge was given up before the Supreme Court. The Constitution Bench held, though the
High Court was justified in entertaining the writ petition and issuing a rule therein, since the
writ petition apparently contained a challenge to several provisions of election laws, it was
not justified in passing any order which would have the effect of postponing the elections
which were then imminent. Even assuming, therefore, that the preparation and publication of
electoral rolls are not a part of the process of election within the meaning of Article 329(b),
we must reiterate our view that the High Court ought not to have passed the impugned interim
orders, whereby it not only assumed control over the election process but, as a result of
which, the election to the Legislative Assembly stood the risk of being postponed indefinitely.
23. In Election Commission of India v. State of Haryana [AIR 1984 SC 1406] the
Election Commission fixed the date of election and proposed to issue the requisite
notification. The Government of Haryana filed a writ petition in the High Court and secured
18

an ex-parte order staying the issuance and publication of the notification by the Election
Commission of India under sections 30, 56 and 150 of the Representation of the People Act,
1951. This Court deprecated granting of such ex-parte orders. During the course of its
judgment the majority speaking through the Chief Justice observed that it was not suggested
that the Election Commission could exercise its discretion in an arbitrary or malafide manner;
arbitrariness and malafides destroy the validity and efficacy of all orders passed by public
authorities. The minority view was recorded by M.P.Thakkar, J. quoting the following extract
from A.K.M Hassan Uzzaman v. Union of India [(1982) 2 SCC 218]:
The imminence of the electoral process is a factor which must guide and govern
the passing of orders in the exercise of the High Court’s writ jurisdiction. The more
imminent such process, the greater ought to be the reluctance of the High Court to
do anything, or direct anything to be done, which will postpone that process
indefinitely by creating a situation in which, the Government of a State cannot be
carried on in accordance with the provisions of the Constitution
and held that even according to Hassan case the Court has the power to issue an interim order
which has the effect of postponing an election but it must be exercised sparingly (with
reluctance) particularly when the result of the order would be to postpone the installation of a
democratically elected popular Government.
24. In Digvijay Mote v. Union of India [(1993) 4 SCC 175] this Court has held that the
powers conferred on the Election Commission are not unbridled; judicial review will be
permissible over the statutory body, i.e., the Election Commission exercising its functions
affecting public law rights though the review will depend upon the facts and circumstances of
each case; the power conferred on the Election Commission by Article 324 has to be
exercised not mindlessly nor malafide, nor arbitrarily nor with partiality but in keeping with
the guidelines of the rule of law and not stultifying the Presidential notification nor existing
legislation.
25. Anugrah Narain Singh v. State of U.P. [(1996) 6 SCC 303] is a case relating to
municipal elections in the State of Uttar Pradesh. Barely one week before the voting was
scheduled to commence, in the writ petitions complaining of defects in the electoral rolls and
de-limitation of constituencies and arbitrary reservation of constituencies for scheduled
castes, scheduled tribes and backward classes the High Court passed an interim order stopping
the election process. This Court quashed such interim orders and observed that if the election
is imminent or well under way, the Court should not intervene to stop the election process. If
this is allowed to be done, no election will ever take place because someone or the other will
always find some excuse to move the Court and stall the elections. The importance of holding
elections at regular intervals cannot be over-emphasised. If holding of elections is allowed to
stall on the complaint of a few individuals, then grave injustice will be done to crores of other
voters who have a right to elect their representatives to the democratic bodies.
27. In Mohinder Singh Gill case, the Election Commission had cancelled a poll and
directed a re-polling. The Constitution Bench held that a writ petition challenging the
cancellation coupled with re-poll amounted to calling in question a step in election and is
therefore barred by Article 329(b). However, vide para 32, it has been observed that had it
 19

been a case of mere cancellation without an order for repoll, the course of election would
have been thwarted (by the Election Commission itself) and different considerations would
have come into play.
28. Election disputes are not just private civil disputes between two parties. Though there
is an individual or a few individuals arrayed as parties before the Court but the stakes of the
constituency as a whole are on trial. Whichever way the lis terminates it affects the fate of the
constituency and the citizens generally. A conscientious approach with overriding
consideration for welfare of the constituency and strengthening the democracy is called for.
Neither turning a blind eye to the controversies which have arisen, nor assuming a role of an
over-enthusiastic activist, would do. The two extremes have to be avoided in dealing with
election disputes.
29. Section 100 of the Representation of the People Act, 1951 needs to be read with
Article 329(b), the former being a product of the later. The sweep of Section 100 spelling out
the legislative intent would assist us in determining the span of Article 329(b) though the fact
remains that any legislative enactment cannot curtail or override the operation of a provision
contained in the Constitution. Section 100 is the only provision within the scope of which an
attack on the validity of the election must fall so as to be a ground available for avoiding an
election and depriving the successful candidate of his victory at the polls. The Constitution
Bench in Mohinder Singh Gill case asks us to read Section 100 widely as covering the whole
basket of grievances of the candidates. Sub-clause (iv) of clause (d) of sub-section (1) of
Section 100 is a residual catch-all clause. Whenever there has been non-compliance with the
provisions of the Constitution or of the Representation of the People Act, 1951 or of any rules
or orders made there under if not specifically covered by any other preceding clause or sub-
clause of the Section it shall be covered by sub-clause (iv). The result of the election insofar
as it concerns a returned candidate shall be set aside for any such non-compliance as above
said subject to such non-compliance also satisfying the requirement of the result of the
election having been shown to have been materially affected insofar as a returned candidate is
concerned. The conclusions which inevitably follow are: in the field of election jurisprudence,
ignore such things as do not materially affect the result of the election, unless the requirement
of satisfying the test of material effect has been dispensed with by the law; even if the law has
been breached and such breach satisfies the test of material effect on the result of the election
of the returned candidate yet postpone the adjudication of such dispute till the election
proceedings are over so as to achieve, in larger public interest, the goal of constituting a
democratic body without interruption or delay on account of any controversy confined to an
individual or group of individuals or a single constituency having arisen and demanding
judicial determination.
30. To what extent Article 329(b) has an overriding effect on Article 226 of the
Constitution? The two Constitution Benches have held that the Representation of the People
Act, 1951 provides for only one remedy; that remedy being by an election petition to be
presented after the election is over and there is no remedy provided at any intermediate stage.
The non-obstante clause with which Article 329 opens pushes out Article 226 where the
dispute takes the form of calling in question an election The provisions of the Constitution
and the Act read together do not totally exclude the right of a citizen to approach the Court so
20

as to have the wrong done remedied by invoking the judicial forum; nevertheless the lesson is
that the election rights and remedies are statutory, ignore the trifles even if there are
irregularities or illegalities, and knock the doors of the courts when the election proceedings
in question are over. Two-pronged attack on anything done during the election proceedings is
to be avoided -one during the course of the proceedings and the other at its termination, for
such two-pronged attack, if allowed, would unduly protract or obstruct the functioning of
democracy.
31. The founding fathers of the Constitution have consciously employed use of the words
“no election shall be called in question” in the body of Section 329(b) and these words
provide the determinative test for attracting applicability of Article 329(b). If the petition
presented to the Court calls in question an election, the bar of Article 329(b) is attracted. Else
it is not.
32. For convenience sake, we would now generally sum up our conclusions by partly
restating what the two Constitution Benches have already said and then adding by clarifying
what follows therefrom in view of the analysis made by us hereinabove:-
1) If an election, (the term election being widely interpreted so as to include all steps and
entire proceedings commencing from the date of notification of election till the date of
declaration of result) is to be called in question and which questioning may have the effect of
interrupting, obstructing or protracting the election proceedings in any manner, the invoking
of judicial remedy has to be postponed till after the completing of proceedings in elections.
2) Any decision sought and rendered will not amount to calling in question an election if
it subserves the progress of the election and facilitates the completion of the election.
Anything done towards completing, or in furtherance of the election proceedings cannot be
described as questioning the election.
3) Subject to the above, the action taken or orders issued by the Election Commission are
open to judicial review on the well-settled parameters which enable judicial review of
decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power
being made out or the statutory body being shown to have acted in breach of law.
4) Without interrupting, obstructing or delaying the progress of the election proceedings,
judicial intervention is available if assistance of the Court has been sought for merely to
correct or smoothen the progress of the election proceedings, to remove the obstacles therein,
or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered
irretrievable by the time the results are declared and the stage is set for invoking the
jurisdiction of the Court.
5) The Court must be very circumspect and act with caution while entertaining any
election dispute though not hit by the bar of Article 329(b) but brought to it during the
pendency of election proceedings. The Court must guard against any attempt at retarding,
interrupting, protracting or stalling of the election proceedings. Care has to be taken to see
that there is no attempt to utilise the courts indulgence by filing a petition outwardly
innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end.
Needless to say that in the very nature of the things the Court would act with reluctance and
shall not act except on a clear and strong case for its intervention having been made out by
raising the pleas with particulars and precision and supporting the same by necessary material.
 21

33. These conclusions, however, should not be construed as a summary of our judgment.
These have to be read along with the earlier part of our judgment wherein the conclusions
have been elaborately stated with reasons.
34. Coming back to the case at hand it is not disputed that the Election Commission does
have power to supervise and direct the manner of counting of votes. Till 22nd September,
1999 the Election Commission was of the opinion that all the ballot boxes of one polling
station will be distributed to one table for counting the ballot papers and that would be the
manner of counting of votes. On 28.9.1999 a notification under Rule 59A came to be issued.
It is not disputed that the Commission does have power to issue such notification. What is
alleged is that the exercise of power was mala fide as the ruling party was responsible for
large scale booth capturing and it was likely to lose the success of its candidates secured by
committing an election offence if material piece of evidence was collected and preserved by
holding polling station wise counting and such date being then made available to the Election
Tribunal. Such a dispute could have been raised before and decided by the High Court if the
dual test was satisfied: (i) the order sought from the Court did not have the effect of retarding,
interrupting, protracting or stalling the counting of votes and the declaration of the results as
only that much part of the election proceedings had remained to be completed at that stage,
(ii) a clear case of malafides on the part of Election Commission inviting intervention of the
Court was made out, that being the only ground taken in the petition. A perusal of the order of
the High Court shows that one of the main factors which prevailed with the High Court for
passing the impugned order was that the learned Government Advocate who appeared before
the High Court on a short notice, and without notice to the parties individually, was unable to
tell the High Court if the notification was published in the Government Gazette. The power
vested in the Election Commission under Rule 59A can be exercised only by means of issuing
notification in the official gazette. However, the factum of such notification having been
published was brought to the notice of this Court by producing a copy of the notification.
Main pillar of the foundation of the High Courts order thus collapsed. In the petitions filed
before the High Court there is a bald assertion of malafides. The averments made in the
petition do not travel beyond a mere ipsi dixit of the two petitioners that the Election
Commission was motivated to oblige the ruling party in the State. From such bald assertion
an inference as to malafides could not have been drawn even prima facie. On the pleadings
and material made available to the High Court at the hearing held on a short notice we have
no reason to doubt the statement made by the Election Commission and contained in its
impugned notification that the Election Commission had carefully considered the matter and
then decided that in the light of the prevailing situation in the State and in the interests of free
and fair election and also for safety and security of electors and with a view to preventing
intimidation and victimisation of electors in the State, a case for direction attracting
applicability of Rule 59A for counting of votes in the constituencies of the State, excepting
the two constituencies where electronic voting machines were employed, was made out. Thus,
we find that the two petitioners before the High Court had failed to make out a case for
intervention by the High Court amidst the progress of election proceedings and hence the
High Court ought not to have made the interim order under appeal though the impugned order
did not have the effect of retarding, protracting, delaying or stalling the counting of votes or
the progress of the election proceedings. The High Court was perhaps inclined to intervene so
22

as to take care of an alleged aberration and maintain the flow of election stream within its
permissible bounds.
35. The learned counsel for the Election Commission submitted that in spite of the ballot
papers having been mixed and counting of votes having taken place in accordance with Rule
59A it would not be difficult for the learned Designated Election Judge to order a re-count of
polls and find out polling-wise break-up of the ballots if the election- petitioner may make out
a case for directing a re-count by the Court. In his submission the grievance raised before the
High Court was fully capable of being taken care of at the trial of the election petition to be
filed after the declaration of the results and so the bar of Article 329(b) was attracted. In this
connection he invited our attention to Chapter XIV-B: “Counting of Votes” of Handbook for
Returning Officers (1998) issued by Election Commission of India. This is an aspect of the
case on which we would not like to express any opinion as the requisite pleadings and
material are not available before us.
36. For the foregoing reasons, the appeals are allowed. The impugned orders of the High
Court are set aside.

*****
 23

G.V. Sreerama Reddy v. Returning Officer

(2009) 9 SCC 736

P. SATHASIVAM, J. - 1. This appeal, under Section 116A of the Representation of the

People Act, 1951, is directed against the order dated 19.09.2008 of the High Court of
Karnataka at Bangalore in Election Petition No. 4 of 2008 in and by which the High Court
upheld the objection of the Registry that there was no proper presentation of the election
petition in terms of Section 81(1) of the Representation of the People Act, 1951, (the Act),
consequently dismissed the election petition.
2. Election to Constituency No. 140, Bagepalli, Karnataka Legislative Assembly was
held in the General Elections conducted in the State in 2008. Appellant No.1 was the
candidate of the CPM party. Appellant No.2 was his election agent. Respondent No.1 is the
Returning Officer of Bagepalli Legislative Assembly Constituency. Respondent No.2 is the
Congress candidate who has been declared elected in the election held on 10.05.2008.
Respondent No.3 is the Observer appointed by the Election Commission of India.
3. According to the appellants, election was held on 10.05.2008 and counting took place
on 25.05.2008. Initially, the Media Officer appointed by the Election Commission announced
appellant No.1 as the successful candidate and declared him elected. When the election agents
and counting agents of appellant No.1 had left the place of counting, an application for re-
counting was submitted by the second respondent and thereafter, second respondent was
declared elected. The appellants filed an election petition under Section 81 of the Act on
various grounds pointing out large-scale irregularities and illegalities committed by
respondent-authorities in the voting and the illegalities of allowing the recounting after
announcing the declaration of appellant No.1 as elected.
4. On 06.07.2008, the first appellant, through his advocate, Shri Shiva Reddy presented
the election petition before the Registrar (Judicial), High Court of Karnataka. The Registry of
the High Court put up an office objection that as the appellants were not present at the time of
filing of the election petition, the presentation of the papers were not in accordance with
Section 81 of the Act and as such there was no proper filing of the election petition. Based on
the office objection, the matter was placed before the learned Single Judge of the High Court
dealing with the election petition and arguments were heard. By the impugned order, the
learned Single Judge based on the recorded statement of Registrar (Judicial) dated 07.07.2008
that “petitioners were not present while presenting this petition” and finding that it was not a
proper presentation in terms of Section 81, dismissed the election petition. Aggrieved by the
said order, the appellants have filed this appeal before this Court.
6 Since the election petition was dismissed at the threshold on the alleged ground of
improper filing, there is no need to traverse various averments made therein. The only
question to be considered by this Court is whether the election petition as presented was in
accordance with Section 81 (1) of the Act and whether the High Court was right in dismissing
the same as it was not presented by the candidate or elector?
7. Part VI of the Act relates to disputes regarding elections. Chapter II therein speaks
about presentation of election petitions to the High Court. Section 80 mandates that no
24

election shall be called in question except by an election petition presented in accordance

with the provisions of Part VI. Section 81 relates to presentation of election petitions.
8. Sub-section (1) also makes it clear that the election can be challenged not only by any
candidate of such election but also even an elector who was entitled to vote at the election to
which the election petition relates irrespective of the fact that whether he has voted at such
election or not. Sub-section (3) mandates that depending on the number of respondents
mentioned in the petition, such required copies duly attested by the election petitioner under
his own signature to be a true copy of the petition shall be furnished.
9. Learned counsel appearing for the appellants submitted that in the light of the language
used in sub-section (1) there is no compulsion/obligation to present the election petition by
the candidate himself. In other words, according to him, in view of the fact that the election
petitioner had duly executed a vakalatnama, in favour of his advocate, he is empowered to
present it to the authorized officer of the Registry. It is further contended that presentation of
the election petition by a candidate or elector is not mandatory and if it is presented by his
advocate duly authorized, the same is a proper presentation in terms of sub-section (1) of
Section 81 of the Act. It is also contended that in cases of substantial compliance and where it
is shown that absence was not to harm the respondent's case and certain exigencies existed
which made the presence difficult, the court should not dismiss the petition merely for non-
compliance with Section 81(1) of the Act. On the other hand, learned counsel appearing for
the contesting second respondent-successful candidate submitted that in view of the language
used in sub-section (1), it is mandatory that the candidate or elector is to personally present it
before the High Court. In view of the endorsement by the Registrar (Judicial) stating that the
petitioners (appellants herein) were not present while presenting the election petition, the
impugned order of the High Court dismissing the same cannot be faulted with.
10. A close look of Section 81 reveals that the two remaining Sub-sections after the
amendment introduced by Act 47 of 1966, i.e. (1) and (3) deal with two distinct, but inter-
related issues. Sub-section (1) deals with the necessary requirements of any petition
challenging an election, and Sub-section (3) deals with additional requirements as to the
petition presented.
11. Sub-section (1) has five components, (i) the qualification of the petitioner, i.e. he/she
must be either “a candidate at such election” or an “elector”; (ii) the petition must be
presented ‘by’ the petitioner; (iii) the petition must be based on one or more of the grounds
specified in sub-section (1) of section 100 and section 101; (iv) it must be presented in the
High Court; and (v) it must be presented within 45 days from, but not earlier than the date of
election of the returned candidate, or if there are more than one returned candidate at the
election and dates of their election are different, the later of those two dates.
12. Therefore, all these five requirements are extremely specific and clear. This inference
is further strengthened by Section 86(1) which provides that the “High Court shall dismiss an
election petition which does not comply with the provisions of Section 81”.
13. This Court, on previous occasions, had the chance to interpret Section 81(1). It must
be noted that the Representation of the People Act is a special statute, and a self-contained
regime. In K. Venkateswara Rao v. Bekkam Narasimha Reddi [(1969) 1 SCR 679], a
 25

question arose whether 45 days period provided under Section 81(1) could be condoned
through the application of the Limitation Act? After examining the relevant provisions of the
Act, this Court held: “...the Limitation Act cannot apply to proceedings like an election
petition inasmuch as the Representation of the People Act is a complete and self-contained
code which does not admit of the introduction of the principles or the provisions of law
contained in the Indian Limitation Act.”
15. While interpreting a special statute, which is a self-contained code, the Court must
consider the intention of the Legislature. The reason for this fidelity towards the Legislative
intent is that the statute has been enacted with a specific purpose which must be measured
from the wording of the statute strictly construed. The preamble of the Representation of the
People Act makes it clear that for the conduct of elections of the Houses of Parliament or the
Legislature of each State, the qualification and dis-qualification for membership of those
Houses, the corrupt practice and other offences in connection with such allegations the Act
was enacted by the Parliament. In spite of existence of adequate provisions in the Code of
Civil Procedure relating to institution of a suit, the present Act contains elaborate provisions
as to disputes regarding elections. It not only prescribes how election petitions are to be
presented but it also mandates what are the materials to be accompanied with the election
petition, details regarding parties, contents of the same, relief that may be claimed in the
petition. How trial of election petitions are to be conducted has been specifically provided in
Chapter III of Part VI. In such circumstances, we are of the view that the provisions have to
be interpreted as mentioned by the Legislature.
16. One can discern the reason why the petition is required to be presented by the
petitioner personally. An election petition is a serious matter with a variety of consequences.
Since such a petition may lead to the vitiation of a democratic process, any procedure
provided by an election statute must be read strictly. Therefore, the Legislature has provided
that the petition must be presented "by" the petitioner himself, so that at the time of
presentation, the High Court may make preliminary verification which ensure that the petition
is neither frivolous nor vexatious.
17. In this context, earlier decisions of this Court regarding the interpretation of Section
81(1) must be understood. In Sheo Sadan Singh v. Mohan Lal Gautam [1969 (1) SCC 408],
in paragraph 4, this court held that:
“The High Court has found as a fact that the election petition was presented to the
registry by an advocate's clerk in the immediate presence of the petitioner. Therefore, in
substance though not in form, it was presented by the petitioner himself. Hence the
requirement of the law was fully satisfied.”
Learned counsel for the appellant submitted that even though the “form” of the provision
was not followed, i.e. the petition was not presented “by” the petitioner “personally”, in
“substance”, it was followed. It is to be noted that in Sadan Singh case, it is not in dispute
that the petition was presented to the Registry in the immediate presence of the petitioner. In
other words, the officer authorized by the High Court had an opportunity to verify him but in
the case on hand, admittedly, it was presented only by the advocate and the petitioners were
not present before the Registrar (Judicial). In view of the same, the said decision is not helpful
26

to the appellant's case. This is because the petitioner therein had, in substance, complied with
the provision as strictly construed.
18. Learned counsel appearing for the appellants relied on a decision of the High Court of
Rajasthan (Jaipur Bench) in Bhanwar Singh v. Navrang Singh [AIR 1987 Raj 63]. In the
case before the learned Single Judge, the election petition had been presented by one Rajendra
Prasad, Advocate and not by the petitioner himself. It was argued by learned counsel for the
petitioner therein that election petition had been validly presented under Section 81(1) of the
Act because Section 81 (1) of the Act only makes a provision as to who can file an election
petition and does not deal with as to who should actually present it before the Registry. It is
further submitted that Section 81 of the Act nowhere provides that the petitioner should be
physically present at the time of presentation of the election petition. The learned Single
Judge, after adverting to the words – “by”, “presented” concluded that these words used in
Section 81(1) of the Act have to be given wide meaning and found that election petition filed
through an advocate without the presence of candidate or elector is valid. We are unable to
accept the said conclusion.
19. We have already pointed out that in spite of provisions in CPC and Evidence Act
relating to institution of suit and recording of evidence etc. this Act provides all the details
starting from the presentation of the election petition ending with the decision of the High
Court. In such circumstances, it is but proper to interpret the language used by the Legislature
and implement the same accordingly. The challenge to an election is a serious matter. The
object of presenting an election petition by a candidate or elector is to ensure genuineness and
to curtail vexatious litigations. If we consider sub-section (1) along with the other provisions
in Chapter II and III, the object and intent of the Legislature is that this provision i.e. Section
81(1) is to be strictly adhered to and complied with.
20. In view of the endorsement by the Registrar (Judicial) on 07.07.2008 that the election
petition was presented only by an advocate and not by the election petitioners, we accept the
reasoning of the High Court in dismissing the election petition. We further hold that as per
sub-section (1) of Section 81, election petition is to be presented by any candidate or elector
relating to the election personally to the authorized officer of the High Court and failure to
adhere such course would be contrary to the said provision and in that event the election
petition is liable to be dismissed on the ground of improper presentation. Since, the High
Court has correctly dismissed the election petition, the civil appeal fails and the same is
dismissed with no order as to costs.
*****
 27

Manohar Joshi v. Nitin Bhaurao Patil

AIR 1996 SC 796

J.S. VERMA, J. - This is an appeal under Section 116A of the Representation of the People
Act, 1951 (“the R.P. Act”) against the judgment dated 26.4.1993 by S.N. Variava, J. of the
Bombay High Court in Election Petition No. 24 of 1990 whereby the election of the appellant
Manohar Joshi to the Maharashtra Legislative Assembly from 32, Dadar Constituency of
Greater Bombay held on 27.2.1990 has been declared to be void on the ground under Section
100(1)(b) of the R.P. Act.
2. Manohar Joshi was the candidate of the BJP-Shiv Sena alliance at that election while
the original election petitioner Bhaurao Patil (now dead), was the candidate of the Congress
(I) Party. Manohar Joshi secured the highest number of votes i.e. 47,737, while Bhaurao Patil
secured 24,354 votes. Accordingly, Manohar Joshi was declared duly elected on 1.3.1990.
3. Admittedly, the last date for filing the election petition according to the limitation
prescribed in sub- section (1) of Section 81 of the R.P. Act was 14.4.1990 but the election
petition was actually presented in the Bombay High Court on 16.4.1990. It is also admitted
that 14.4.1990 was a Saturday on which date the High Court as well as its office was closed
on account of a public holiday and 15.4.1990 was a Sunday on which date also the High
Court as well as its office was closed and, therefore, the election petition could not have been
presented on either of these two dates. The first question which arises, relates to compliance
of which renders the election petition liable for dismissal under Section 86 of the R.P. Act.
4. The election petition alleged the commission of corrupt practices under sub-sections (3)
and (3A) of Section 123 of the R.P. Act and sought declaration of the election of Manohar
Joshi to be void on the ground under Section 100(1)(b) of the R.P. Act. The corrupt practices
alleged were, in substance, speeches on 24.2.1990 at Shivaji Park by the returned candidate
Manohar Joshi and leaders of the BJP- Shiv Sena alliance, namely, Bal Thackeray, Chhagan
Bhujbal and Pramod Nawalkar; and some audio and video cassettes played during the election
campaign alleged to contain material constituting these corrupt practices. Any further
reference to the audio cassettes is unnecessary since none was either produced or relied on at
the trial. The petition was supported only on the ground of the said speeches and video
cassettes. Further details of the same would be given later at the appropriate stage.
5. The High Court rejected the contention that the election petition was time barred and,
therefore, liable to be dismissed under Section 86 of the R.P.Act. The High Court has held
that the corrupt practices alleged have been proved. Consequently, the election petition has
been allowed and the election of the returned candidate Manohar Joshi has been declared to
be void on the ground under Section 100(1)(b) of the R.P. Act. Hence, this appeal.
6. It would be appropriate to first deal with the contention of Shri Ram Jethmalani relating
to non-compliance of Section 81 of the R.P. Act which, if correct, renders the election petition
liable to the dismissed under Section 86 thereof. The arguments of Shri Jethmalani in this
respect have to be considered with reference to Sections 81, 83 and 86(1).
7. Shri Jethmalani contended that the election petition should have been dismissed by the
High Court in accordance with Section 86(1) of the R.P. Act for non-compliance of sub-
28

section (1) of Section 81 because it was not presented within the prescribed limitation; and it
ought to have been dismissed thereunder, also for non-compliance of sub-section (3) of
Section 81. For the second part of the submission, Shri Jethmalani contended that sub-section
(3) of Section 81 must be read along with Section 83 and, therefore, the copy of the election
petition must be the copy of a petition satisfying the requirement of Section 83(1) of the R.P.
Act. These are the two parts of the argument for invoking Section 86 for dismissal of the
election petition at the threshold. The question, therefore, is: Whether there has been non-
compliance of any part of Section 81 to attract Section 86 of the R.P. Act ? We will consider
this argument at the outset.
NON COMPLIANCE OF SUB-SECTION (1) AND/OR SUB-SECTION (3) OF
SECTION 81 OF THE R.P. Act
Re: sub-section (1) of section 81
8. In substance, the point for decision is whether the election petition filed on 16.4.1990
was presented within 45 days from the date of election of the returned candidate as required
by sub-section (1) of Section 81, since the last day of limitation, so reckoned, fell on
14.4.1990. Admittedly, the High Court and its office was closed on 14.4.1990 as well as
15.4.1990 on account of which the election petition could not have been presented in the High
Court on any of these two days. Incidentally, even 13.4.1990 was a holiday when the High
Court and its office was closed, but that is not of any significance since the last day of
limitation was 14.4.1990. There is no controversy that the provisions of the Limitation Act,
1963 are not applicable to the election petitions required to be presented under the R.P. Act
and, therefore, Section 4 of the Limitation Act is of no avail. The only question is whether
Section 10 of the General Clauses Act, 1897 applies to an election petition to permit filing of
the election petition on the date when the High Court opened after the holidays. If Section 10
of the General Clauses Act is applicable then the election petition presented on 16.4.1990 was
within the time prescribed by sub-section (1) of Section 81 and there would be no non-
compliance of that provision to attract Section 86(1) of the R.P. Act requiring dismissal of the
election petition as time barred.
9. The submission of Shri Jethmalani is that the R.P. Act is a self-contained Code and,
therefore, no provision outside the Act can be imported for the purpose of computing the
limitation for presentation of an election petition. On this basis, he submitted that Section 10
of the General Clauses Act has no application. In reply, Shri Ashok Desai, learned counsel for
the respondents submitted that the scheme of the R.P. Act and the legislative history of the
limitation prescribed by the Act for presentation of an election petition clearly show that
Section 10 of the General Clauses Act applies for computing limitation for presentation of an
election petition. Shri Desai also relied on the legal maxim - lex non kojit ad impossibillia -
which means `the law does not compel a man to do that which he cannot possibly perform.'
Shri Desai submitted that the election petitioner was entitled as of right to present the election
petition on the last day of limitation which fell on 14.4.1990, but that day and the next day
being holidays when the High Court and its office was closed, the election petition presented
on 16.4.1990, the first day on which the Court and its office opened after the holidays, was
presented within the prescribed period of limitation. On this basis, Shri Desai submitted, there
was no non- compliance of sub-section (1) of Section 81 of the R.P. Act.
 29

10. Section 10 of the General Clauses Act, 1897 is as under:-

10. Computation of time- (1) Where, by any Central Act or Regulation made after the
commencement of this Act, any act or proceeding is directed or allowed to be done or
taken in any Court or office on a certain day or within a prescribed period, then, if the
Court or office is closed on that day or the last day of the prescribed period, the act or
proceeding shall be considered as done or taken in due time if it is done or taken on
the next day afterwards on which the Court or office is open:
Provided that nothing in this Section shall apply to any act or proceeding to
which the Indian Limitation Act, 1877, applies.
(2) This Section applies also to all Central Acts and Regulations made on or after
the fourteenth day of January, 1887.
11. A brief reference to the legislative history of the limitation prescribed by sub-section
(1) of Section 81 is relevant. The limitation of 45 days from the date of election of the
returned candidate for the presentation of an election petition, has been prescribed in sub-
section (1) of Section 81 itself by an amendment by substitution of certain words by Act 27 of
1956. Prior to it, the period of limitation was required to be prescribed by the Rules framed
under the R.P. Act according to the words then used in sub- section (1) of Section 81. Rule
119 of the Representation of the People (Conduct of Elections and Election Petitions) Rules,
1951 (“1951 Rules”), prescribed that period. The 1951 Rules also contained Rule 2(6)
which expressly provided for the application of the General Clauses Act to the provisions in
the Rules.
12. A similar question relating to applicability of Section 10 of the General Clauses Act
arose when the limitation was prescribed by the Rules as required by the then existing sub-
section (1) of Section 81 in, H.H. Raja Harinder Singh v. S. Karnail Singh [1957 SCR 208].
It was held by this Court that Section 10 of the General Clauses Act is applicable to the
presentation of election petitions. Thereafter, the same view has been taken in Hukumdev
Narain Yadav v. Lalit Narain Mishra [1974 (3) SCR 31]; Hari Shankar Tripathi v.
ShivHarsh [1976 (3) SCR 308]; Simhadri Satya Narayana Rao v. M. Budda Prasad [1994
Suppl.(1) SCC 449]. The later decisions were in relation to election petitions filed after
amendment of Section 81(1) by Act 27 of 1956 prescribing the limitation in this Section
itself. Shri Jethmalani tried to distinguish those decisions on the ground that the earlier
decision in H.H. Raja Harinder Singh v. S. Karnail Singh [1957 SCR 208] was followed
without noticing the legislative change by amendment of sub-section (1) of Section 81. In
view of the fact that this point was not raised in the manner it has been done by Shri
Jethmalani before us, it is appropriate that we consider the merit of this submission.
13. It is settled by the decision of this Court in Ramlal, Motilal and Chhotelal v. Rewa
Coalfields Ltd. [1962 (2) SCR 762, 767] that the litigant has a right to avail limitation upto
the last day and his only obligation is to explain his inability to present the suit/petition on the
last day of limitation and each day thereafter till it is actually presented. This being the basic
premise, it cannot be doubted that the election petitioner in the present case was entitled to
avail the entire limitation of 45 days upto the last day, i.e. 14.4.1990 and he was required to
explain the inability of not filing it only on 14.4.1990 and 15.4.1990 since the petition was
30

actually presented in the High Court on 16.4.1990. If Section 10 of the General Clauses Act
applies, the explanation is obvious and the election petition must be treated to have been
presented within time.
14. The question now is: Whether the applicability of Section 10 of the General Clauses
Act to the presentation of election petitions under the R.P. Act is excluded ? No doubt the
R.P. Act is a self-contained Code even for the purpose of the limitation prescribed therein.
This, however, does not answer the question. It has to be seen whether the context excludes
the applicability of Section 10 of the General Clauses Act which is in the part therein relating
to the General Rules of Construction of all Central Acts. The legislative history of prescribing
limitation for presentation of election petitions in accordance with sub- section (1) or Section
81 is also significant for a proper appreciation of the context. Admittedly, Section 10 of the
General Clauses Act applied when by virtue of the requirement in the then existing sub-
section (1) of Section 81, the period of limitation was prescribed by Rules framed under the
R.P. Act, in Rule 119 of the 1951 Rules. This was expressly provided by Rule 2(6) of the
1951 Rules. There is nothing to indicate that providing the period of limitation in sub-section
(1) of Section 81 itself by substitution of certain words by Act 27 of 1956 instead of
prescribing the limitation by Rules, was with a view to exclude the applicability of Section 10
of the General Clauses Act. The change appears to have been made to provide for a fixed
period in the Act itself instead of leaving that exercise to be performed by the rule making
authority. An express provision in Rule 2(6) of the 1951 Rules was required since the General
Clauses Act ipso facto would not apply to Rules framed under the Central Act, even though it
would to the Act itself. The context supports the applicability of Section 10 of the General
Clauses Act instead of indicating its exclusion for the purpose of computing the limitation
prescribed in sub-section (1) of Section 81 for presentation of election petition.
15. In view of the basic premise that the election petitioner is entitled to avail the entire
limitation of 45 days for presentation of the election petition as indicated by Ramlal if the
contrary view is taken, it would require the election petitioner to perform an impossible task
in a case like the present, to present the election petition on the last day of limitation on which
date the High Court as well as its office is closed. It is the underlying principle of this legal
maxim which suggests the informed decision on this point, leading to the only conclusion that
Section 10 of the General Clauses Act applies in the computation of the limitation prescribed
by sub-section (1) of Section 81 of the R.P. Act for presentation of an election petition. So
computed, there is no dispute that the election petition presented in the present case on
16.4.1990 was within limitation and there was no non-compliance of sub-section (1) of
Section 81 of the R.P. Act.
16. We have reached the above conclusion independent of the above decisions of this
Court rendered on petitions presented subsequent to the amendment of sub-section (1) of
Section 81. It may straightaway be said that in all these cases applicability of Section 10 of
the General Clauses Act was either not doubted or was taken for granted. This is how the
position has been understood for all these years and no case taking the contrary view has been
cited at the Bar. This settled position is in conformity with the view we have taken on this
point. There is no basis is law to take a different view.
 31

Re: sub-section (3) of section 81

17. Sub-section (3) of Section 81 requires ‘every election petition to be accompanied by
as many copy thereof' as there are respondents, obviously for the purpose of a copy of the
election petition being served upon each respondent along with the notice of the election
petition. The submission of Shri Jethmalani is that the election petition and, therefore, its
accompanying copy in accordance with Section 81(3) should satisfy the requirement of sub-
section (1) of Section 83 as to the contents of the petition. He argues that if the contents of the
election petition which has been filed and the copy accompanying it do not satisfy the
requirement of Section 83(1), there is non-compliance of Section 81(3) attracting Section 86
for dismissal of the election petition. The argument is that the defect in such a case is in the
accompanying copy of the election petition which is deficient in its contents as required by
Section 83(1). For this reason, he submits, it results in non- compliance of Section 81(3)
which attracts Section 86 of the R.P. Act.
18. In the present case, there is reference in paras 32 and 33 of the election petition to
certain video cassettes, the contents of which are deemed to be incorporated by reference in
the election petition, and since the video cassettes or a transcript of its contents was not filed
along with the election petition and was not supplied with the copy of the election petition to
the respondent (returned candidate), it is argued, that it has resulted in non-compliance of
Section 81(3) which attracts Section 86. No further reference to the audio cassettes is
necessary since the audio cassettes were not produced even at the trial and were not relied on
by the election petitioner for proof of the corrupt practice. These video cassettes were later
produced at the trial but the subsequent production of the video cassettes at the trial, it is
urged, does not cure the defect of non-compliance of Section 81(3). In reply, Shri Ashok
Desai submitted that the video cassettes did not form part of the election petition as the
contents thereof are not incorporated by reference in the election petition and, therefore, non-
production of the video cassettes or their transcript with the election petition and failure to
annex the same to the copy of the election petition served on the returned candidate did not
amount to non-compliance of Section 81(3). Shri Desai submitted that Section 81(3) merely
requires the copy to conform with the election petition as presented in the court and not an
election petition as required to be drafted according to Section 83(1) of the R.P. Act. He
further submitted that any defect or deficiency in the contents of the election petition found
with reference to Section 83(1) of the R.P. Act may have any other consequence requiring the
court to act under Order 7 Rule 11 C.P.C. or order 6 Rule 16 C.P.C., but there is no non-
compliance of Section 81(3) if the copy accompanying the election petition which is served
on the respondent is identical with the election petition as it is actually presented in the court.
In short, Shri Desai submitted that non-compliance of Section 83(1) of the R.P.Act is not
visited with the consequence of dismissal of the election petition at the threshold under
Section 86 and, therefore, the non-compliance of Section 81 which attracts Section 86 has to
be seen without reference to Section 83 of the R.P. Act. Both sides have placed reliance on
the same set of decisions to support the rival contentions.
19. There is no dispute that the election petition as presented in the court, was
accompanied by as many copies thereof as there were respondents in the election petition; and
the copy of the election petition served on the returned candidate with the notice of the
32

election petition was identical with the election petition as it was presented in the court. The
requirement of the plain language of Section 81(3) was, therefore, fully met. The object of the
provision is clearly to ensure that each respondent to the election petition gets an identical
copy of the election petition as presented in the court to acquaint the respondent with the
actual and full contents of the election petition as it is presented in the court. On the basis of
the identical copy the respondent can prepare his defence and also take the plea of deficiency,
if any, in the contents of the election petition with reference to Section 83 of the R.P. Act, in
order to apply in the court for action being taken under Order 7 Rule 11, or Order 6 Rule 16,
C.P.C., as the case may be. These provisions are attracted only after the election petition
survives the liability for dismissal at the threshold under Section 86 of the R.P. Act.
20. Section 86 empowers the High Court to dismiss an election petition at the threshold if
it does not comply with the provisions of Section 81 or Section 82 or Section 117 of the Act,
all of which are patent defects evident on a bare examination of the election petition as
presented. Sub- section (1) of Section 81 requires the checking of limitation with reference to
the admitted facts and sub- section (3) thereof requires only a comparison of the copy
accompanying the election petition with the election petition itself, as presented. Section 82
requires verification of the required parties to the petition with reference to the relief claimed
in the election petition. Section 117 requires verification of the deposit of security in the High
Court in accordance with rules of the High Court. Thus, the compliance of Section 81, 82 and
117 is to be seen with reference to the evident facts found in the election petition and the
documents filed along with it at the time of its presentation. This is a ministerial act. There is
no scope for any further inquiry for the purpose of Section 86 to ascertain the deficiency, if
any, in the election petition found with reference to the requirements of Section 83 of the R.P.
Act which is a judicial function. For this reason, the non-compliance of Section 83, is not
specified as a ground for dismissal of the election petition under Section 86.
21. Acceptance of the argument of Shri Jethmalani would amount to reading into Section
86 an additional ground for dismissal of the election petition under Section 86 for non-
compliance of Section 83. There is no occasion to do so, particularly when Section 86 being
in the nature of a penal provision, has to be construed strictly confined to its plain language.
22. We may now refer to the decisions of this Court on which reliance is placed by both
sides to support the rival contention on this point. In Sahodrabai Rai v. Ram Singh Aharwar
[1968 (3) SCR 13] a translation in English of the pamphlet annexed to the election petition
was incorporated in the body of the election petition and it was stated in the petition that it
formed part of the petition. Along with the copy of the election petition which contained the
entire transcript in English of the pamphlet, a copy of the pamphlet had not been annexed.
The respondent raised the objection that the copy of the election petition served on him was
not a copy of the election petition presented in the High Court and, therefore, the election
petition was liable to be dismissed under Section 86 of the R.P. Act. It was held by this Court
that the pamphlet which was filed as an annexure to the election petition must be treated as a
document filed with the election petition and not a part of the election petition in so far as the
averments are concerned. Obviously, this view was taken because the contents of the
pamphlet were incorporated in the body of the election petition of which a copy was duly
served on the respondent. Accordingly, it was held that there was no non-compliance of
 33

Section 81(3) and the petition was not liable to be dismissed under Section 86 of the R.P. Act.
In A. Madan Mohan v. Kalavakunta Chandrasekhara [1984 (2) SCC 288] the earlier
decision in Sahodrabai Rai was followed. It was held that failure to furnish copy of schedules
and documents which did not form an integral part of the election petition was not fatal to the
petition and it was not liable to be dismissed under Section 86 of the R.P. Act. An earlier
decision in M. Karunanidhi .v. Dr. H.V. Hande [(1983) 2 SCC 473] was distinguished and it
was pointed out that M. Karunanidhi did not depart from the ratio laid down in Sahodrabai
Rai . Para 15 of the decision in A. Madan Mohan is as under:-
This decision in no way departs from the ratio laid down in Sahodrabai case. The
aforesaid case, however, rested on the ground that the document (pamphlet) was
expressly referred to in the election petition and thus became an integral part of the
same and ought to have been served on the respondent. It is, therefore, manifest that
the facts of the case cited above are clearly distinguishable from the facts of the
present case. Furthermore, the decision in M. Karunanidhi case has noticed the
previous decision and has fully endorsed the same.
This decision by a 3-Judge Bench also indicated that this stringent provision must be
construed literally and strictly. Para 13 of the decision is as under:
It is a well settled principle of interpretation of statute that wherever a statute
contains stringent provisions they must be literally and strictly construed so as to
promote the object of the Act. As extracted above, this Court clearly held that if the
arguments of the appellant (in that case) were to be accepted, it would be stretching
and straining the language of Section 81 and 82 and we are in complete agreement
with the view taken by this Court which has decided the issue once for all.(at page
291 of SCC)
Another decision referred is U.S. Sasidharan v. K. Karunakaran [(1989) 4 SCC 482]. That
was a case in which a document was incorporated in the election petition by reference and
was filed with the election petition in a sealed over but a copy was not supplied to the
returned candidate along with a copy of the election petition. In such a situation, it was held to
be non- compliance of Section 81(3) rendering the election petition liable for dismissal under
Section 86(1) of the R.P. Act. This conclusion was reached on the view that non-supply of
copy of the document with a copy of the election petition was a fatal defect because the
document was filed in the High Court with the election petition and it formed an integral part
of the election petition. This decision also indicates the distinction between a document
forming an integral part of the election petition and being produced merely as evidence of an
averment made in the election petition.
23. The distinction brought out in the above decisions is, that in a case where the
document is incorporated by reference in the election petition without reproducing its
contents in the body of the election petition, it forms an integral part of the petition and if a
copy of that document is not furnished to the respondent with a copy of the election petition,
the defect is fatal attracting dismissal of the election petition under Section 86(1) of the R.P.
Act. On the other hand, when the contents of the document are fully incorporated in the body
of the election petition and the document also is filed with the election petition, not
34

furnishing a copy of the document with a copy of the election petition in which the contents
of the document are already incorporated, does not amount to non-compliance of Section
81(3) to attract Section 86(1) of the R.P. Act. In other words, in the former case the
document filed with the election petition is an integral part of the election petition being
incorporated by reference in the election petition and without a copy of the document, the
copy is an incomplete copy of the election petition and, therefore, there is non-compliance of
Section 81(3). In the other situation, the document annexed to the petition is mere evidence
of the averment in the election petition which incorporates fully the contents of the document
in the body of the election petition and, therefore, non-supply of a copy of the document is
mere non-supply of a document which is evidence of the averments in the election petition
and, therefore, there is no non-compliance of Section 81(3). In U.S. Sasidharan, this
distinction is clearly brought out as under:-
The material facts or particulars relating to any corrupt practice may be contained
in a document and the election petitioner, without pleading the material facts or
particulars of corrupt practice, may refer to the document. When such a reference is
made in the election petition, a copy of the document must be supplied inasmuch as
by making a reference to the document and without pleading its contents in the
election petition, the document becomes incorporated in the election petition by
reference. In other words, it forms an integral part of the election petition. Section
81(3) provides for giving a true copy of the election petition. When a document forms
an integral part of the election petition and a copy of such document is not furnished
to the respondent along with a copy of the election petition, the copy of the election
petition will not be a true copy within the meaning of Section 81(3) and, as such, the
court has to dismiss the election petition under Section 86(1) for non-compliance with
Section 81(3).
On the other hand, if the contents of the document in question are pleaded in the
election petition, the document does not form an integral part of the election petition.
In such a case, a copy of the document need not be served on the respondent and that
will not be non-compliance with the provision of Section 81(3). The document may
be relied upon as an evidence in the proceedings. In other words, when the document
does not form an integral part of the election petition, but has been either referred to
in the petition or filed in the proceedings as evidence of any fact, a copy of such a
document need not be served on the respondent along with a copy of the election
petition. (paras 15 and 16 at page 489)
24. It may be mentioned that in all the above decisions cited at the Bar, the document in
question had been filed in the court along with the election petition, but a copy of that
document was not supplied to the respondent with the copy of the election petition. In those
cases wherein the annexed document was treated to be incorporated by reference in the
election petition forming an integral part of the election petition, non-supply of a copy of the
document was held to be fatal warranting dismissal of the election petition under Section 86(1)
for non-compliance of Section 81(3). In the other cases, the document was filed with the
election petition, but the contents thereof were also incorporated in the body of the election
petition, a copy of which had been supplied to the respondent even though copy of that
 35

document was not furnished in addition. In those cases, non-supply of a copy of the document
was held not to be non-compliance of Section 81(3) because the document annexed to the
election petition was treated as evidence of the averments contained in the body of the election
petition, a copy of which had been furnished to the respondent. This is the gist of these
decisions which also indicates that the question has to be answered with reference to the kind
of use made of the document annexed to the petition, whether as an integral part of the
election petition or merely as evidence of the pleadings contained in the body of the election
petition.
25. In the present case, the video cassettes, non-supply of a copy of transcript of which is
urged by Shri Jethmalani to be a ground for non-compliance of Section 81(3), were not even
filed in the High Court with the election petition in the High Court. This is, therefore, not a
case of non-supply of a copy of a document which was filed along with the election petition.
What was supplied to the returned candidate in the present case, was a true copy of the
election petition as it was presented in the court without the video cassettes of which mere
mention was made without incorporating its contents by reference of enumerating it in the
election petition. It is not the case of the election petitioner that the full contents of the video
cassettes or their transcripts are incorporated by reference in the election petition in order to
make the video cassettes an integral part of the election petition, inasmuch as no video cassette
was filed along with the election petition as it was presented in the High Court. Reliance is
placed by the election petitioner on the video cassettes produced later during the trial as only
evidence of the pleading in paras 32 and 33 of the election petition. It is, therefore, clear that
the contents of the video cassettes except to the extent pleaded in paras 32 and 33 of the
election petition, cannot be treated to be incorporated by reference in the election petition as a
part of the pleadings and its use is sought to be made by the election petitioner only as
evidence of the averments contained in paras 32 and 33 of the election petition. Admittedly, a
true copy of the election petition as presented in the High Court was furnished to the returned
candidate along with the notice of the election petition. There was thus no non-compliance of
sub-section (3) of Section 81 of the R.P. Act. The election petition was, therefore, not liable to
be dismissed under Section 86(1) even on the ground of non-compliance of Section 81(3) of
the R.P. Act.
26. The contention of Shri Jethmalani that the entire election petition is liable to be
dismissed under Section 86(1) of the R.P. Act for non-compliance of subs-section (1) and/or
sub-section (3) of Section 81 is, therefore, rejected.
27. The next question now is: Whether the contents of the election petition are as required
by Section 83 of the Act or there is any deficiency therein to attract Order 7 Rule 11 or Order
6 Rule 16, C.P.C.? This question arises from the alternative submission of Shri Jethmalani
who contended that the pleading of corrupt practice with reference to the use of video
cassettes is deficient and is, therefore, liable to be struck out under Order 6 Rule 16, C.P.C. He
submitted that this would leave for consideration only the speeches of Manohar Joshi, Bal
Thackeray, Pramod Nawalkar and Chhagan Bhujbal on 24.2.1990 as the only basis for the
charge of the corrupt practice under sub-section (3) and (3A) of Section 123 for consideration
in the election petition. He urged that there is no pleading of any part of the speech of
Chhagan Bhujbal in the election petition and, therefore, reference to his speech is innocuous.
36

For the speeches of Manohar Joshi, Bal Thackeray and Pramod Nawalkar, he urged that the
specific pleading contained in the body of the election petition alone requires consideration,
excluding all other material brought on record during the trial which is an impermissible
addition to the record on account of a serious mistrial resulting from the unusual procedure
adopted by the learned trial Judge in the High Court. Shri Jethmalani referred copiously to the
evidence to support his submission that the learned trial Judge himself directed a witness to
search for certain documents and produce them in addition to extensively cross- examining
that witness himself to bring on record a log of material which is wholly irrelevant and
inadmissible. In sort, his submission is that on the basis of the only pleading contained in the
body of the election petition and the admissible and relevant evidence alone, no corrupt
practice under sub-section (3) or sub-section (3A) of Section 123 is made out.
28. Some other questions arising out of the remaining arguments of Shri Jethmalani and
reply of Shri Ashok Desai which are referred later, have to be considered with reference to the
pleadings of the parties. It is, therefore, appropriate at this stage to quote the relevant pleadings
in the election petition and the written statement of the returned candidate.
29. We must observe that the pleadings of the parties are frivolous and prolix of which
only certain portions were relied at the hearing of the appeal by the learned counsel for the
parties and, therefore, reference only to the relevant partitions of the pleadings is necessary.
We may add that the failure to exclude from consideration the pleading which is prolix and
irrelevant, has led to the reception of considerable evidence which too is irrelevant and
inadmissible resulting in needless increase in the bulk of the record of the trial court and an
excursion by the High Court into an irrelevant area. There has been a failure to invoke and
apply the provisions in the Code of Civil Procedure at the pretrial stage which has led to an
improper frame of the issues resulting in lack of focus on the real points in controversy alone
confined to the actual pleadings.
30. According to Shri Ashok Desai, learned counsel for the respondents, the relevant
pleadings relating to the allegation of corrupt practices pleaded in the election petition are in
paras 2, 5(o), 7, 8, 16, 17, 18, 30, 31, 32, 33 and the first sentence of para 35 as well as paras
59 and 60 of the written statement. According to Shri Jethmalani, learned counsel for the
appellant, the relevant pleadings are only in paras 30, 31, 32, and 33 of the election petition.
At any rate, nothing more has to be seen in the election petition for this purpose in addition to
the portions pointed out by Shri Desai. These portions of the election petition and the written
statement are as under:
From Election Petition No.24/1990
(2) The petitioner says that the petitioner had contested the general election to the
Maharashtra Legislative Assembly held on 27/2/1990 (hereinafter referred to as "the
said election') as a candidate of Indian National Congress (Congress-I) with the
election symbol of "Hand". The Respondent was the candidate of Shiv Sena Party
with the election symbol of "Bow & Arrow" put by the alliance of two parties, viz.
Shiv Sena and Bhartiya Janata Party (BJP). The other candidates were either
independent candidates or belonging to other political parties like Janata Dal, etc.
 37

5. The Petitioner states that before setting out the nature of corrupt practices
committed by the first respondent, it is necessary to give certain facts which have
transpired in India over the last one decade, which are as under:
(o) The petitioner states that all the aforesaid facts show that the said two parties,
viz; BJP and Shiv Sena have systematically exploited various unfortunate disputes set
out hereinabove so as to seek votes during the parliamentary election and the election
in question in the name of `Hindutva' i.e. Hindu religion.
7. The petitioner states that accepting a candidature in the election of the said
alliance meant that the said particular candidate had accepted the basic concept and
plank on which the said two parties were jointly contesting the elections for the
Assembly. It further meant that the candidate accepted Bal Thackeray, Pramod
Mahajan, Kirti Somaiya as their leaders and consented to the said leaders making an
appeal to vote for the candidates of the said alliance. It further meant that the
philosophy and ideology of the leaders of the alliance, and particularly Bal
Thackeray, such as (a) Hindus are and Hindu religion is in danger, (b) that only the
alliance can protect Hindus and Hindus religion, (c) that the Congress-I and Janata
Dal have failed to protect, and will not protect Hindus and Hindu religion and their
candidates are unfit to be elected, (d) that Hindus have suffered and will continue to
suffer indignity, discrimination and unequal treatment, (e) that the problems in states
like Kashmir, Punjab, Assam etc. have arisen because of the pampering of the
minorities, (f) that Hindus must come together and fight the attack on them and their
religion and say with pride that they are Hindus, (g) that Hindus owed a duty to their
religion and if necessary must give their life for it, (h) that minorities, and particularly
the Muslims, were treated more favourably for their votes than Hindus.
8. The petitioner states that the respondent being a candidate of the said alliance,
has accepted the ideology and philosophy of the said alliance, some of which is set
out hereinabove. The respondent also consented to the leaders of the said alliance
such as Bal Thackeray, Pramod Mahajan, Kirit Somaiya, Gopinath Munde and others
making appeals to the voters to vote for her. In fact, as more particularly set out
hereinbelow, the respondent herself has expressly made an appeal to vote for her to
fight for Hinduism."
16. The petitioner states that similarly another joint public meeting was held in the
said constituency i.e. at Shivaji Park, Dadar on 24/2/1990. At the said meeting most
of the candidates of the BJP-Shiv Sena alliance, including the Respondent herein,
were present. The said meeting was addressed by the leaders of the said alliance. At
the said meeting Bal Thackeray reiterated that the said alliance was contesting the
elections in the name of Hindu religion and to fight for Hindutva. The proceedings of
the said meeting were widely reported in various dailies viz; `Mumbai Sakal', Nava
Kal', `Navshakti', `Maharashtra Times', `Navbharat Times', `Loksatta', `Sunday
Observer', `The Times of India', `Indian Express' all dated 25/2/1990 and `Samma'
dated 25/2/1990 and 26/2/1990. The petitioner craves leave to refer to and rely upon
the said press reports as and when produced.
38

17. Some of the most offending statements made at the said meeting by the
leaders of the said alliance are as under:-
(a) To handle the Congress-I hoodlums the Shiv Sainiks may take law in their
hands and use firearms if necessary (Thackeray).
(b) To save ‘Hindutva' vote for BJP-Sena nominees (Pramod Mahajan, BJP- MP).
(c) Mr. Rajiv Gandhi does not know his own religion, and thus has no right to
speak on Hinduism (Pramod Mahajan).
(d) The result of these elections will not only depend on the solution to the
problem of food, cloth but the same will also decide whether in the state the flame of
Hindutva will grow or will be extinguished. If in Maharashtra the flame of Hinduism
is extinguished, then anti-national Muslims will be powerful and they will convert
Hindustan into Pakistan. If the flame of Hindutva will grow then in that flame the
anti- national Muslims will be reduced to ashes (Pramod Mahajan).
(e) We must protect `Hindutva' at all costs and for that we must not allow the
saffron (Bhagwa) of Shri Chhakravarthi Shivaji Maharaj to fall from our shoulders
(Pramod Mahajan).
(f) Rajiv Gandhi speaking on Hindutva is like a prostitute lecturing on fidelity.
The country is again heading for partition. It is, therefore, necessary that in these
circumstances and to keep the flame of Hindutva alive, the alliance of BJP-Shiv Sena
should be elected (Mahajan).
(g) (Referring to Rajiv Gandhi), wife Christian, mother Hindu, father a Parsee and
therefore himself without any (Hindu) culture/teaching (vevarsi). (Pramod Mahajan).
18. The petitioner states that the proceedings of the said meeting were tape-
recorded and taken down in shorthand by the police authorities. The petitioner craves
leave to refer to and rely upon the said tape-recorded speeches and the speeches taken
down in shorthand by the police authorities.
30. The petitioner states that the respondent himself in his capacity as a candidate
from the said constituency as well as a leader of the said alliance made appeals which
offends the provisions of the said Act. For e.g. in the meeting held on 24.2.1990 at
Shivaji Park, the respondent stated the first Hindu State will be established in
Maharashtra. Similarly in various other public meetings, the respondent herein made
objectionable appeals. Some of the meetings were reported in newspapers.
31. The petitioner states that such meetings were held at Khaddke Building, Dadar
on 21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on 18.2.1990, and Khed
Galli on 19.2.1990. At all the said meetings, as well as meetings at other places, the
other speakers who were present for e.g. Pramod Mahajan (M.P.-BJP) Dada Kondke
(Marathi Actor), Jayantiben Mehta, Chandrika Kenia (MPs) made objectionable
appeals to vote for the respondent.
31. In fact the speakers went on to say that on the respondent being elected and on
the said alliance establishing a Hindu Government, we will give jobs to all Hindus.
The petitioner craves leave to refer to and rely upon the election diaries maintained by
the local police stations, the speeches recorded by the Special Branch-I on audio
cassettes, video cassettes and the speeches recorded in Marathi shorthand. The
 39

petitioner also craves leave to refer to and rely upon the press reports of the said
meetings.
32. The petitioner states that in addition to holding public meetings, the said
alliance had also taken out video cassettes and audio cassettes. The video cassettes
were titled "Challenge & Appeal” "Shiv Sena" and the other called "Ajinkya". The
said video cassettes and audio cassettes discloses promises, appeals, exhortations and
inducements to the voters to vote for the said alliance and their candidates. The said
cassettes show that the said alliance has scant respect for the religious beliefs and
practices of other religions like Muslims, Christians etc. Not only the other religions
are ridiculed but the followers thereof are termed as "traitors" and "betrayers". Under
the guise of protecting Hindu religion/Hindutva the said cassettes attack other
religions and whip up lowered instincts and animosities. The concept of secular
democracy is totally eliminated. It generates powerful emotions by appealing to the
Hindu voters to vote for the candidates of the alliance on a false impression given to
voters that only the alliance and its candidates can protect Hindu religion. The
petitioner will rely upon the visuals which have the aforesaid effect on the voters. The
petitioner also craves leave to refer to and rely upon the said video cassettes as and
when produced.
33. The petitioner states that the said alliance had also issued audio cassettes
wherein the speeches of the leaders of the said alliance like Bal Thackeray, at various
places in Maharashtra are recorded, e.g. Parbhani, Sely Aurangabad, Panvel, Girgaon,
Vashi (New Bombay) etc. The said audio cassettes as well as the video cassettes were
played in the said constituency, particularly at the Shakha offices, street corners after
6.30 p.m. They were regularly exhibited at or near the places of residence of some of
the active workers of the said alliance in the said constituency. The exhibition and
playing of the cassettes was on a large scale in the said constituency. The petitioner
craves leave to refer to and rely upon the said audio cassettes as and when produced.
35. The petitioner states that the aforesaid facts clearly prove that the respondent
and his agents with his consent have indulged into corrupt practices listed under
Section 123 of the said Act.
From Written Statement
59. With reference to para 32 of the Petition, it is true that the said alliance has
taken two video cassettes known as "AJIMKYA" and "AVAHAN AND VAWHAN".
However, it is totally false to the knowledge of the petitioner to allege that the said
alliance and/or Shiv Sena party and/or I have and/or my election agent and/or any
person has with my consent and/or election agent and/or any person has with my
consent and/or knowledge has taken out any audio cassettes as alleged. This
respondent denies that the said video cassettes disclose any promises and/or appeals
and/or extortions and/or inducements which in any manner amount to corrupt practice
and or any other offence under the Representation of People Act, 1951 as alleged or
at all and puts the petitioner to the strict proof thereof. This respondent denies that the
said cassettes or either of them show any religious beliefs and/or practices as alleged.
This Respondent categorically denies that the said cassettes or either of them show
40

any scant respect for Muslims and/or Christian and/or any other religion as alleged or
at all and puts the petitioner to the strict proof thereof. This Respondent categorically
denies that any religion has been ridiculed and/or followers thereof are termed as
"Traitors" and/or "Betrayers" as alleged or at all and puts the Petitioner to the strict
proof thereof.
This Respondent denies that the said cassettes and/or either of them attach other
religions and/or whips up lowered instincts and/or animosities as alleged or at all.
This respondent denies that the said cassettes or either of them had appealed to the
voters in the name of religion as alleged. This respondent submits that it has been
held by the Supreme Court of India innumerable cases that whenever a reference is
made in the election petition to a document, and the document includes an audio or
video cassette, copy of such document must be supplied along with the Election
Petition to the concerned Respondent inasmuch as by making a reference to the
document and without pleading its contents in the Election Petition, the documents
becomes incorporated in the Election Petition by reference. It becomes an integral
part of the Election Petition under Section 81 and as required by Section 81 when
document forms an integral part of the petition and the copy of the said document is
not furnished to the Respondent alongwith the Election Petition, copy of the Election
Petition will not be a true copy within the meaning of Section 81 and the same is
liable to be dismissed under the provisions of Section 86. Paragraph 32 of the Petition
does not give any material particulars about the allegations which are sought to be
made. It is submitted that the test to be applied where the pleadings discloses material
facts and cause of action is that in absence of answer from the Respondent, would the
court be in a position to give a judgment in favour of the petitioner. It is submitted
that in the instant case, the answer is emphatically no and hence the entire contents of
para 32 are wholly irrelevant, vexatious and abuse of this Hon'ble Court. The said
pleadings, therefore, are not a complete cause of action and in breach of provisions of
Sections 81, 82 and 86 of the Representation of People act and the election petition is
liable to be and should be dismissed.
60. With reference to para 33 of the Petition, this Respondent categorically denies
that the said alliance and/or Shiv Sena Party and/or B.J.P. Party issued any audio
cassette as alleged and this Respondent puts the petitioner to strict proof thereof. The
said paragraph alleges that the said video and/or audio cassettes were played in the
said constituency particularly at Shakha Office, Street corners. The said paragraph
does not state the place, date and time when the said cassettes are alleged to have
been played. It further does not mention the names of the persons who are alleged to
have played the said cassettes. This Respondent submits that it has been held by the
Supreme Court of India that the allegations of corrupt practice are in the nature of
criminal charges, and it is necessary that there should be no vagueness in the
allegations so that the returned candidate may know how the case he has to meet. If
the allegations are bogus and general and the particulars of corrupt practice are not
stated in the petition then in such a case the petition does not disclose any cause of
action and the Petition does not disclose any cause of action and the petition is liable
 41

to be and should be dismissed. Furthermore, as mentioned in the above paragraph, it

has been held by the Supreme Court of India that when a reference has been made in
the Petition to any document including a video or audio cassette, a copy of the said
document, must be supplied along with the Election Petition because by making a
reference to such a document the same forms integral part of the petition and
therefore, without a copy of the said document the petition is incomplete.
This Respondent, therefore, submits that for the reasons mentioned above, the
Petition is liable to be and should be dismissed with costs.
31. It would also be appropriate to quote the issues framed on 9.1.1992 by the High Court
on these pleadings, as under -
1. Whether the Respondent has committed any of the corrupt practices as defined
in Section 123(3) of the Representation of the People Act, 1951 as alleged in the
petition?
2. Whether the Election Agent or any other agent of the Respondent has
committed any of the corrupt practices as defined in Section 123(3) of the
Representation of the People Act, 1951 as alleged in the petition?
3. Whether any other person with the consent of the Respondent or his election
agent has committed any of the corrupt practices as defined in Section 123(3) of the
Representation of the People Act, 1951 as alleged in the petition?
4. Whether the Respondent has committed any of the corrupt practices as defined
in Section 123(3A) of the Representation of the People Act, 1951 as alleged in the
petition?
5. Whether the election agent or any other agent of the Respondent has committed
any of the corrupt practices as defined in Section 123(3A) of the Representation of
the People Act, 1951 as alleged in the petition?
6. Whether any other person with the consent of the Respondent or his election
agent has committed any of the corrupt practices as defined in Section 123(3A) of the
Representation of the People Act, 1951 as alleged in the petition?
7. Whether the Petitioner proves that the Respondent has committed the corrupt
practices as defined in Section 123(7) of the Representation of the People Act 1951 as
alleged in the petition?
8. Whether the election of the Respondent is to be set aside?
9. Generally?
It may be mentioned that issue no. 6(A) was framed suo motu by the High Court almost at the
fag end of the trial, as under:
6(A) Whether the Hindutva as used by the Shiv Sena Party during the Maharashtra
Legislative Assembly Election 1990 is as alleged in the Petition or as alleged in the
Written Statement ?
32. After both sides closed their respective cases, on the submission of Shri Jethmalani,
the following issues were also permitted to be raised by an order dated 4th January, 1993:
42

1(A) Whether the Petition is filed beyond the period of 45 days fixed by Section 81 of
the Representation of People Act, 1951 and requires to be peremptorily dismissed
under Section 86 thereof ?
1(B) Whether the Petition must be dismissed for its failure to plead or disclose under
what part of Section 100 of the Act relief is claimed?
33. It was strenuously argued by Shri Desai that there is admission of the returned
candidate in his written statement about the existence and use of the video cassettes during the
election campaign in the constituency and even of its contents, the only dispute being related
to the meaning of the contents. On this basis, it was urged that there is no deficiency in the
pleading of the corrupt practice in the election petition and the requirement of its proof is
reduced to a great extent by admission in the written statement. The High Court has taken this
view which is supported and relied on by Shri Desai in his submission. The High Court's
judgment proceeds on this basis. It is, therefore, necessary to examine this aspect at this stage.
34. Assuming the contents of the video cassette amount to the kind of speech or act which
is a corrupt practice under sub-section (3) or sub-section (3A) of Section 123, in order to
constitute that corrupt practice it must further be shown that the act was done during the
election campaign between 8.2.1990 when the returned candidate became a `candidate' and
27.2.1990 the date of poll, and that it was the act of the candidate or his agent or any other
person with his consent. Unless all these constituent parts of the corrupt practice are pleaded
to constitute the cause of action raising a triable issue and are then proved by evidence, the
corrupt practice cannot be held to be pleaded and proved. If the act attributed is by the display
of a video cassette recorded some time earlier, the display being between the above dates in
the constituency, a mere display of the video cassette does not prove all the constituent parts
of the corrupt practice, inasmuch as it must also be pleaded and proved that such display was
by the candidate or his agent or any other person with his consent. Where the display of the
cassette is attributed to any other person with the consent of the candidate, the liability of the
candidate for commission of the corrupt practice results vicariously from the act of the other
person, done with the consent of the candidate. In such a case, the constituent part of the
corrupt practice is the act done by any other person, not by the candidate himself or his agent
for whose act the candidate's consent is assumed, with the authorisation for the act being done
by any other person with the candidate's consent. This distinction between the act amounting
to corrupt practice done by the candidate himself or his election agent and any other person
with his consent has to be kept in view. This has relevance also for the purpose of Section 99
of the R.P. Act with reference to which one of the arguments has been addressed.
35. It was argued by Shri Ashok Desai that in case of the provocative and incendiary
speeches given by acknowledged leaders of the political party the consent of the candidate set
up by their party has to be assumed being implicit from the relationship of the candidate with
the speaker through the medium of the party. On this basis, it was urged that a party candidate
must be held to have consented to such speeches made by the leaders of that party and,
therefore, if the speech of the leader satisfies the other requirements of the corrupt practice,
the consent of the candidate which too is a constituent part of the corrupt practice, must be
assumed to make out the ground under Section 100(1)(b) of the R.P. Act for declaring his
election to be void. Shri Desai made a fervent emotive appeal that unless the law is so
 43

construed, a candidate of the party will get the benefit of appeal for votes on the ground of his
religion on the basis that his consent has not been pleaded and proved, thereby frustrating the
object of the enactment and adversely affecting the purity of elections which is of essence in a
democracy. It was argued that leaders of the party must be assumed to be agents of the
candidates of that party for the purpose of the ground of corrupt practice.
36. In our opinion, the fallacy in the argument is that it overlooks certain other provisions
of the R.P. Act –such as section 100.
37. The distinction between clause (b) of sub-section (1) and sub-clause (ii) of clause (d)
therein is significant. The ground in clause (b) provides that the commission of any corrupt
practice by a returned candidate or his election agent or by any other person with the consent
of a returned candidate or his election agent by itself is sufficient to declare the election to be
void. On the other hand, the commission of any corrupt practice in the interests of the
returned candidate by an agent other than his election agent (without the further requirement
of the ingredient of consent of a returned candidate or his election agent) is a ground for
declaring the election to be void only when it is further pleaded and proved that the result of
the election in so far as it concerns a returned candidate has been materially affected. This
ground is further subject to sub-section (2) of Section 100 of which the onus is on the returned
candidate.
38. It is, therefore, clear that if the corrupt practice is committed in the interests of the
returned candidate by any other person, even if he be an agent other than his election agent,
without the consent of the returned candidate or his election agent, the law provides for the
election to be declared void under Section 100(1)(d)(ii) provided it is also pleaded and proved
that the result of the election of the returned candidate has been materially affected thereby.
The apprehension expressed by Shri Ashok Desai is, therefore, ill founded since the law
clearly provides that the returned candidate would not get the benefit of a corrupt practice
committed in his interests by anyone if the result of the election is shown to be materially
affected thereby.
39. Apart from this aspect, it has also to be remembered that provision is made in the R.P.
Act as well as in the general law to punish the makers of such incendiary speeches for the
offences committed by them in the form of electoral offences e.g. under Section 125 of the
R.P. Act and Sections 153A, 153B and 295A of the Indian Penal Code. Thus even if the
acknowledged leaders of a party have committed any corrupt practice which results in benefit
to the returned candidate then on proof of the benefit having materially affected the election
result in favour of the candidate, his election would be set aside on the ground under Section
100(1)(d)(ii) of the R.P. Act. There is thus no occasion to read into the ground in Section
100(1)(b) or the definition of "corrupt practice" the implied consent of the candidate for any
act done by a leader of that party to dispense with a clear pleading and proof of the
candidate's or his election agent's consent as a constituent part of the corrupt practice for the
ground under Section 100(1)(b) of the R.P. Act.
40. It may also be mentioned that the proposition suggested in the argument of Shri Desai
does not appear to be correct. Whenever the requirement is of consent, it must be free consent
given by the giver of the consent, of his own volition. Ordinarily, it also implies a subservient
role of the person to whom consent is given and the authority of the giver of the consent to
44

control the actions of the agent. It is difficult to ascribe to an acknowledged leader of the party
a role subservient to the candidate set up by that party inasmuch as the candidate is ordinarily
in no position to control the actions of his leader. However, if even without giving his
consent, the candidate has received benefit from the leader's act in a manner which materially
affects his election favorably, on pleading and proof of such material effect on the election,
the candidate's election is liable to be set aside on the ground under Section 100(1)(d)(ii)
unless, as provided in sub-section (2) of Section 100 he further discharges the onus placed
upon him that in spite of his opposition and taking due precautions that act had been
committed for which he cannot be responsible.
41. Reliance in the election petition on the allegations of corrupt practices was for the
ground under Section 100(1)(b) and not Section 100(1)(d)(ii); and it is under Section
100(1)(b) that the election has been declared to be void by the High Court. There was no
attempt to plead and prove that the result of the election of the appellant was materially
affected for these reasons to make out a ground under Section 100(1)(d)(ii) for declaring the
election of the returned candidate to be void. It is in this manner the present case has to be
viewed.
42. The pleading in paras 2, 5(o), 7 and 8 of the election petition is general relating to the
party of which the appellant was a candidate, and the plank of Hindutva which in the election
petition is equated with Hindu religion. We have already indicated in the connected matters -
Civil Appeal No. 2835 of 1989 - Bal Thackeray v. Prabhakar K. Kunte decided today, that
the word "Hindutva" by itself does not invariably mean Hindu religion and it is the context
and the manner of its use which is material for deciding the meaning of the word "Hindutva"
in a particular text. It cannot be held that in the abstract the mere word "Hindutva" by itself
invariably must mean Hindu religion. The so-called plank of the political party may at best be
relevant only for appreciation of the context in which a speech was made by a leader of the
political party during the election campaign, but no more for the purpose of pleading corrupt
practice in the election petition against a particular candidate.
43. In para 16 of the election petition apart from some general pleading, there is reference
to a speech at Shivaji Park, Dadar on 24.2.1990 by Bal Thackeray and some other leaders
who have not been named therein except for the appellant (respondent in the election
petition). In para 17, the alleged offending portions of the speeches of those leaders of the
BJP-Shiv Sena alliance have been enumerated. These portions are from speeches alleged to
have been made by Bal Thackeray of the Shiv Sena and Pramod Mahajan of the B.J.P. Thus
para 17 contains allegation of specific portions of speeches by Bal Thackeray and Pramod
Mahajan for the purpose of pleading the corrupt practice. Further reference to it would be
made later. Para 18 merely says that the proceedings of the meeting were tape-recorded and
taken down in shorthand by police authorities on which the petitioner would rely. Obviously
this relates only to evidence of what is pleaded and does not amount to incorporation by
reference of the contents of the alleged tapes and there is no enumeration of its contents in the
election petition. Para 30 refers to the speech by the appellant himself and names some other
speakers at different meeting. Further reference to para 30 would be made later. Para 31 is a
general statement referring to speakers in general without naming any one of them and
mentions the existence of certain audio and video cassettes of the speeches. Paras 32 and 33
 45

then refer to certain video cassettes and audio cassettes giving merely the title of the video
cassettes and generally their purport and say that the video cassettes were displayed in the
constituency, particularly at Shakha offices, street corners after 6.30 p.m. and were regularly
exhibited at or near the places of residence of some of the active workers of the said alliance
in the said constituency. It is significant that neither these video cassettes and audio cassettes
nor the transcript of their texts was reproduced in the election petition or annexed to the
election petition so that the contents thereof were not pleaded in either of the required modes.
That apart, there is nothing in the pleading to indicate the names of the persons who are
alleged to have displayed the same or the dates on which they were displayed or in other
words any other fact which would make the allegation clear and specific. The further
requirement of consent of the returned candidate for those acts is not pleaded as required for
the ground under Section 100(1)(b) of the R.P. Act and in the definition of the corrupt
practices under sub-sections (3) and (3A) of Section 123. Para 35 is the only other para in the
election petition which is relied on by Shri Desai in this context and it merely says that the
aforesaid facts clearly prove that the respondent (appellant in this appeal) and his agents with
his consent have indulged into corrupt practice under Section 123 of the said Act. This is a
mere repetition of the statutory provision and not a pleading of any material fact.
44. We have no doubt that the requisite consent of the returned candidate or his election
agent which is a constituent part of the corrupt practices under sub-sections (3) and (3A) of
Section 123, and an ingredient of the ground under Section 100(1)(b) has nowhere been
pleaded in the election petition either in connection with the allegations based on the speeches
by Bal Thackeray, Pramod Mahajan and any other leader or the display of video and audio
cassettes in the constituency, when this is an essential requirement for raising a triable issue of
corrupt practice to bind the appellant with the consequences of such a corrupt practice and to
invalidate his election. In our opinion, this alone is sufficient to ignore the entire pleading in
the election petition relating to speeches by Bal Thackeray, Pramod Mahajan and any other
leader as well as the display of video and audio cassettes since none of those acts is attributed
to the appellant or his election agent. For this reason, it is also not necessary to consider the
specific portions alleged to form parts of speeches of Bal Thackeray and Pramod Mahajan
mentioned in paras 16 and 17 of the election petition. Same is the result of pleadings in paras
32 and 33 relating to the video and audio cassettes. In para 31 there is a general averment that
the speakers went on to say that on the respondent (appellant in this appeal) being elected and
the said alliance establishing a Hindu Government, jobs would be given to all Hindus. No
speaker is specifically named and what is alleged to have been said by the appellant in his
speech in the meeting held on 24.2.1990 is contained only in para 30 of the election petition.
Since the contents of para 31 cannot be related to the speech alleged to have been made by the
appellant in that meeting, that too must be left out of consideration.
45. The only surviving allegation requiring consideration is in para 30 relating to the
allegation made with reference to the speech made by the appellant himself. The portion in
para 30 relating to the appellant (respondent in the election petition) which has to be
considered is as under:
The petitioner states that the respondent himself in his capacity as a candidate
from the said constituency as well as a leader of the said alliance made appeals which
46

offends the provisions of the said Act. For e.g. in the meeting held on 24.2.1990 at
Shivaji Park, the respondent stated the first Hindu State will be established in
Maharashtra. Similarly in various other public meetings, the respondent herein made
objectionable appeals. Some of the meetings were reported in newspapers. The
petitioner states that such meetings were held at Khaddke Building, dadar on
21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on 18.2.1990, and Khed Galli
on 19.2.1990.
46. The High Court failed to appreciate that the only allegation of corrupt practice in this
election petition which raised a triable issue is as indicated above and rest of the general
averments deficient in requisite pleadings of all the constituent parts of the corrupt practice
did not constitute a pleading of the full cause of action and, therefore, had to be ignored and
struck out in accordance with Order 6, Rule 16, C.P.C. However, there being a specific
allegation in para 30 of the election petition relating to the returned candidate himself based
on his speech made on 24.2.1990, to that extent a triable issue had been raised and had to be
decided.
47. It is this failure in the High Court which has led to an unnecessary protracted trial and
reception of considerable irrelevant evidence which in turn has led to the errors found in the
judgment. The reason for this error appears particularly from para 32 of the judgment in
which the High Court has indicated its perception of the nature of trial of the election petition
as under:-
It must be noted that this Election Petition is not based upon individual acts of
Respondent or his Election Agent or any other person with his consent. This petition
is based upon the above mentioned plank and/or policy decision of the Shiv Sena and
B.J.P. and the campaigning by the party and the Respondent on the basis of that
plank.
48. In our opinion, it is this erroneous impression of the High Court which has led to the
serious errors committed during the trial for which the parties are equally to blame inasmuch
as both sides contributed to the expansion of the legitimate scope of the trial by introducing
matters which have no relevance for the pleading and proof of the corrupt practices under
sub-sections (3) and (3A) of Section 123 for the purpose of the ground under Section
100(1)(b) to invalidate the election, which is the true scope of this election petition.
49. Before we take up for consideration the corrupt practice attributed to the appellant
himself in para 30 of the election petition based on his own speech on 24.2.1990, it would be
appropriate at this stage to refer to the argument based on Section 99 of the R.P. Act.
NON COMPLIANCE OF SECTION 99 OF THE R.P. ACT
50. Admittedly, no notice was given to Bal Thackeray, Pramod Mahajan or any other
person against whom allegation was made of commission of corrupt practice in the election
petition, even though the High Court has held those corrupt practices to be proved for the
purpose of declaring the appellant's election to be void on the ground contained in Section
100(1)(b) of the R.P. Act. We would now indicate the effect of the combined reading of
Sections 98 and 99 of the R.P. Act and the requirement of notice under Section 99 to all such
 47

persons before decision of the election petition by making an order under Section 98 of the
R.P. Act.
51. The combined effect of Sections 98 and 99 of the R.P. Act may now be seen.
52. The opening words in Section 98 are "At the conclusion of the trial of an election
petition the High Court shall make an order". There can be no doubt that Section 98
contemplates the making of an order thereunder in the decision of the High Court rendered ‘at
the conclusion of the trial of an election petition’. Declaration of the election of any returned
candidate to be void in accordance with clause (b) is clearly to be made in the decision of the
High Court rendered at the conclusion of the trial of an election petition and not at an
intermediate state. Clauses (a), (b) and (c) in Section 98 contemplate the different kinds of
orders which can be made by the High Court in its decision at the conclusion of the trial
which has the effect of disposing of the election petition in the High Court. There is nothing
in Section 98 to permit the High Court to decide the election petition piecemeal and to declare
the election of any returned candidate to be void at an intermediate stage of the trial when any
part of the trial remains to be concluded.
53. Sub-Section (1) of Section 99 begins with the words "At the time of making an order
under Section 98 the High Court shall also make an order" of the kind mentioned in clauses
(a) and (b) therein. It is amply clear that the order which can be made under clauses (a) and
(b) of sub-section (1) of Section 99 is required to be made at the time of making an order
under Section 98'. As earlier indicated, an order under Section 98 can be made only at the
conclusion of the trial. There can be no doubt that the order which can be made under sub-
section (1) of Section 99 has, therefore, to be made only at the conclusion of the trial of an
election petition in the decision of the High Court made by an order disposing of the election
petition in one of the modes prescribed in clauses (a), (b) and (c) of Section 98. This alone is
sufficient to indicate that the requirement of Section 99 is to be completed during the trial of
the election petition and the final order under Section 99 has to be made in the decision of the
High Court rendered under Section 98 at the conclusion of the trial of the election petition.
54. Clause (a) of sub-section (1) of Section 99 provides for the situation "where any
charge is made in the petition of any corrupt practice having been committed at the election".
In that case, it requires that at the time of making an order under Section 98, the High Court
shall also make an order recording a finding whether any corrupt practice has or has not been
proved to have been committed at the election and the nature of that corrupt practice; and the
names of all persons, if any, who have been proved at the trial to have been guilty of any
corrupt practice and the nature of that corrupt practice. Clause (b) further requires the fixing
of the total amount of costs payable and specifying the person by and to whom costs shall be
paid. The net result is that where any charge is made in the petition of any corrupt practice
having been committed at the election, the High Court shall at the time of making an order
under Section 98' also make an order recording a finding whether any corrupt practice has or
has not been proved to have been committed at the election and the nature of that corrupt
practice; and where the charge of corrupt practice has been found proved, it must also record
the names of all persons, if any, who have been proved at the trial to have been guilty of any
corrupt practice and the nature of that practice. Thus, the trial is only one at the end of which
48

the order made by the High Court must record the names of all persons, if any, who have been
proved at the trial to have been guilty of the corrupt practice and the nature of that practice.
55. It follows that the High Court cannot make an order under Section 98 recording a
finding of proof of corrupt practice against the returned candidate alone and on that basis
declare the election of the returned candidate to be void and then proceed to comply with the
requirement of Section 99 in the manner stated therein with a view to decide at a later stage
whether any other person also is guilty of that corrupt practice for the purpose of naming him
then under Section 99 of the R.P. Act. It is equally clear that the High Court has no option in
the matter to decide whether it will proceed under Section 99 against the other persons alleged
to be guilty of that corrupt practice along with the returned candidate inasmuch as the
requirement of Section 99 is mandatory since the finding recorded by the High Court requires
it to name all persons proved at the trial to have been guilty of the corrupt practice. The
expression “the names of all persons, if any, who have been proved at the trial to have been
guilty of any corrupt practice” in sub-clause (ii) of clause (a) of sub-section (1) of Section 99
clearly provides for such proof being required `at the trial' which means `the trial of an
election petition' mentioned in Section 98, at the conclusion of which alone the order
contemplated under Section 98 can be made. There is no room for taking the view that the
trial of the election petition for declaring the election of the returned candidate to be void
under Section 98 can be concluded first and then the proceedings under Section 99
commenced for the purpose of deciding whether any other person is also to be named as being
guilty of the corrupt practice of which the returned candidate has earlier been held guilty
leading to his election being declared void.
56. The rationale is obvious. Where the returned candidate is alleged to be guilty of a
corrupt practice in the commission of which any other person has participated with him or the
candidate is to be held vicariously liable for a corrupt practice committed by any other person
with his consent, a final verdict on that question can be rendered only at the end of the trial, at
one time, after the inquiry contemplated under Section 99 against the other person, after
notice to him, has also been concluded. Particularly, in a case where liability is fastened on
the candidate vicariously for the act of another person, unless that act is found proved against
the doer of that act, the question of recording a finding on that basis against the returned
candidate cannot arise. Viewed differently, if the final verdict has already been rendered
against the returned candidate in such a case, the opportunity contemplated by Section 99 by
an inquiry after notice to the other person is futile since the verdict has already been given. On
the other hand, if the question is treated as open, a conflicting verdict after inquiry under
Section 99 in favour of the notice would lead to an absurdity which could not be attributed to
the legislature.
57. The plain language of Section 98 and 99 of the R.P. Act indicates the construction
thereof made by us and this is also supported by the likely outcome of a different construction
which is an absurd result and must, therefore, be rejected. The High Court has overlooked the
obvious position in law in taking a different view. No notice under Section 99 was given by
the High Court before making the final order under Section 98 of the R.P. Act declaring the
election to be void. This is a fatal defect.
 49

58. This alone is sufficient to indicate that apart from the reasons given earlier, the
election of the appellant in the present case could not be declared void by making an order
under Section 98 on the ground contained in Section 100(1)(b) of the R.P. Act without prior
compliance of Section 99. Absence of notice under Section 99 of the R.P.Act vitiates the final
order made under Section 98 by the High Court declaring the election to be void.
59. However, in the present case, the remaining pleadings being ignored for the reasons
already given, no further question arises of the effect of non-compliance of Section 99 in
respect of these other persons because the finding of corrupt practices against the appellant
based on the speeches of these other persons and the video and audio cassettes has to be set
aside for the reasons already given. This is yet another instance of a serious defect in the trial
of this election petition by the High Court.
SPEECH OF APPELLANT
60. We would now consider the only surviving question based on the pleading in para 30
of the election petition. The specific allegation in para 30 against the appellant is that in the
meeting held on 24.2.1990 at Shivaji Park, Dadar, he had stated that "the first Hindu State
will be established in Maharashtra". It is further pleaded therein that such meetings were held
at Khaddke Building, Dadar on 21.2.1990, Prabhadevi on 16.2.1990, at Kumbharwada on
18.2.1990, and Khed Galli on 19.2.1990. These further facts are unnecessary in the context
because the maximum impact thereof is to plead that the same statement was made by the
appellant in the other meetings as well, even though such an inference does not arise by
necessary implication. In our opinion, a mere statement that the first Hindu State will be
established in Maharashtra is by itself not an appeal for votes on the ground of his religion but
the expression, at best, of such a hope. However, despicable be such a statement, it cannot be
said to amount to an appeal for votes on the ground of his religion. Assuming that the making
of such a statement in the speech of the appellant at that meeting is proved, we cannot hold
that it constitutes the corrupt practice either under sub-section (3) or sub- section (3A) of
Section 123, even though we would express our disdain at the entertaining of such a thought
or such a stance in a political leader of any shade in the country. The question is whether the
corrupt practice as defined in the Act to permit negation of the electoral verdict has been
made out. To this our answer is clearly in the negative.
64. It is significant that the mere production of the official record including the literature
of Jamaat-e-Islami Hind depicting its philosophy and aims and the intelligence reports
without examining any witness who could depose from personal knowledge to the alleged
unlawful activities of the Association was held to be inadequate to support the declaration that
Jamaat-e-Islami Hind is an unlawful association as defined in the said Act. It need hardly be
mentioned that the requirement of proof of a corrupt practice at the trial of an election petition
is higher and confined to strict legal evidence, in comparison to the material on which the
tribunal can rely for its decision under Section 4 of the Unlawful Activities (Prevention) Act,
1967 to confirm the declaration by the Central Government of an association as unlawful.
65. The High Court misdirected itself by starting on a wrong premise in trying an
allegation not in the pleading and then in admitting and relying on material which is not legal
evidence for the proof of a corrupt practice. The error was aggravated by an incorrect
appreciation of the legal principles and overlooking the meaning of certain terms explained in
50

earlier decisions. The significance of the trial of a corrupt practice and the consequence of the
finding thereon, appears to have been missed in the High Court.
66. As a result of the aforesaid discussion, the finding recorded by the High Court against
the appellant that charge of corrupt practices under sub-section (3) and (3A) of Section 123 of
the R.P. Act has been proved to declare his election to be void on the ground contained in
Section 100(1)(b) of the R.P. Act, is contrary to law and is, therefore, set aside. The result is
that no ground is made out for declaring the appellant’s election to be void. Accordingly, this
appeal is allowed with costs resulting in dismissal of the election petition.

*****
 51

Raj Kumar Yadav v. Samir Kumar Mahaseth

(2005) 3 SCC 601

R.C. LAHOTI, C.J. -An election petition presented under Section 81 of the Representation
of the People Act, 1951 (the Act) has been directed to be dismissed as barred by time. Feeling
aggrieved, the election petitioner has filed this appeal under Section 116-A of the Act.
2. Shorn of all details, suffice it to state that the last date of limitation for presenting the
election petition was 28.8.2003. What transpired in the High Court at the presentation may be
described in the words of the learned designated Election Judge himself from the impugned
judgment of the High Court. The relevant part is extracted and reproduced hereunder:
The admitted position is that the period of limitation of forty five days expired on
27.8.2003 on which date the designated Judge was sitting in court till 4.15 P.M. The
court hours having expired, the designated election Judge retired into the chambers
where at 4.25 p.m. Sri P.K. Verma, the learned counsel for the appellant came and
wanted to file this election petition. Since under High Court Rules the election
petitions could be filed only in the open court, I, as the designated election Judge
refused to accept the petition beyond court hours. Learned counsel said that though
petition was made ready that very day for presentation, because of some delay in
finalizing it, he had gone to the court after court hours but by that time the Judge had
retired to his chambers. Learned Counsel also requested in chambers that the Court
Officer might be directed to accept that by making an initial over the petition noting
the time of presentation so that the petition might be presented on the next working
day. Since High Court Rules did not permit that, I refused that prayer also.
This was how the learned counsel presented the petition in the open court on
28.8.2003…
3. The question arising for decision is: whether an election petition presented at 4.25 p.m.
on 27.8.2003, the last date of limitation, admittedly 10 minutes after the Judge had risen from
the open court but was available in chambers within the court premises can be said to be a
valid presentation so as to be within the period of limitation?
4. Article 329 of the Constitution provides inter alia that no election to either House of
Parliament or to the House or either House of the Legislature of a State shall be called in
question except by an election petition presented to such authority and in such manner as may
be provided for, by or under any law made by the appropriate Legislature. Under Section 80 of
the Act, no election shall be called in question except by an election petition presented in
accordance with the provisions of Part VI of the Act. Under Section 80-A, the High Court has
been conferred with jurisdiction to try an election petition. Such jurisdiction shall be exercised
ordinarily by a single Judge of the High Court assigned for that purpose by the Chief Justice.
Under Section 81 of the Act, an election petition may be presented within forty five days from
the date of election. The rule making power for carrying out the purpose of the Act has been
conferred on the Central Government under Section 169. The Act does not confer power on
the High Court to make any rules. However, the rule making power vests in the High Court
under Article 225 of the Constitution.
52

5. The present matter arises from the High Court of Patna. Chapter XXI-E of the High
Court Rules framed by the Patna High Court incorporates the rules for the disposal of election
petition filed under Section 81 of the Act. Rules 6 and 7, relevant for our purpose, are
reproduced hereunder:
6. Subject always to the orders of the Judge, before a formal presentation of the
election petition is made to the Judge in open Court, it shall be presented to the Stamp
Reporter of the Court, who shall certify thereon if it is in time and in conformity with
the requirements of the Act and the rules in this behalf, or is defective and shall
thereafter return the petition to the petitioner for making the formal presentation after
removing the defects, if any.
Provided that if on any Court day the Judge is not available on account of
temporary absence or otherwise, the petition may be presented before the Bench
hearing civil applications and motions.
7. (1) The date of presentation to the Judge or the Bench as mentioned in the
proviso to Rule 6 shall be deemed to be the date of the filing of the election petition
for the purposes of limitation.
(2) Immediately after it is presented, the petition shall be entered in a special
register maintained for the registration of election petitions.
6. The limitation provided by Section 81 of the Act expires on 45th day from the date of
election. The word 'day' is not defined in the Act. It shall have to be assigned its ordinary
meaning as understood in law. The word 'day' as per English calendar begins at midnight and
covers a period of 24 hours thereafter, in the absence of there being anything to the contrary
in the context. Thus, the election petition could have been presented upto the midnight falling
between 27th and 28th of August, 2003.
7. The statutory period of limitation as provided by the Act cannot be taken away by the
Rules framed by the High Court governing its procedure. The rules framed in exercise of the
power conferred by Article 225 relate to procedural matters and cannot make nor curtail any
substantive law. In S.A. Ganny v. I.M. Russell (1930) ILR 8 Rangoon 380 (FB) Carr
J.said:
I am very clearly of opinion, independently of the authorities to that effect, that a
High Court has no power to alter by rule any period of limitation prescribed in the
Limitation Act.
I am, however, also of opinion that when the High Court by rule gives a right of
application for which no period of limitation is already prescribed the Court may also
fix the period within that right must be exercised.
And, Suncliffe J. said (ILR pp. 395,396):
High Court Rules approximate very closely to Bye-laws. They can be altered at
will. They can be canvassed. They are subordinate and domestic enactments. They
must be intra vires of the power from which they derive and any other power in pari
materia.
In our opinion, the length of any period of limitation provided by a statute cannot
be curtailed by rules of procedure framed by High Court. When the statute prescribes
 53

a particular day or date as the last day for any act being performed, it can be so done
upto as late as the midnight immediately preceding the commencement of the next
day.
8. We are also of the opinion that the High Court has not correctly interpreted Rules 6 and
7 of the High Court Rules. The rules are not meticulously well-drafted rules taking care of
myriad situations which may arise. They appear to be more in the nature of directions aiming
at convenient and smooth functioning of the High Court dealing with election petitions as also
streamlining the procedure and practice of presentation. The designated Election Judge can
always issue such orders as it may deem fit in the matter of presentation of the election
petition. If the court is open, it is desirable that a formal presentation of the election petition is
made to the Judge while sitting in open court. As the Judge himself is not expected to
scrutinize the defects in the election petition presented to him, Rule 6 expects the election
petition to be presented first to the Stamp Reporter of the court and then carried to the Judge
for formal presentation. While presentation to the Stamp Reporter of the court is a
presentation, the presentation before Judge in open court is a formal presentation. There
would be nothing wrong if the election petitioner presents the election petition to the Stamp
Reporter whereafter the election petition is carried to the Judge in open court either by the
election petitioner or his counsel or by the Stamp Reporter or any official of the Registry
under his directions. The Rule contemplates such presentation before the Stamp Reporter and
the formal presentation to the Judge taking place on the same day and almost simultaneously
as two steps of one transaction and in this background the date of presentation to the Judge or
the Bench as described in Rule 6 is deemed to be the date of filing of the election petition.
The process can also be reverse. If Stamp Reporter is not available, the election petition may
be presented to the Judge who may then send it for scrutiny to the Stamp Reporter or any
other official of the Registry. At the time of presentation, the Judge may not be sitting in open
court, but that does not mean that the Judge cannot receive the election petition. He can
receive it and then send it to the Stamp Reporter of the court.
9. In Jamal Uddin Ahmad v. Abu Saleh Najmuddin [(2003) 4 SCC 257] this Court has
held that receiving an election petition presented under Section 81 of the Act is certainly not a
judicial function which necessarily needs to be performed by a Judge alone; it is a ministerial
function which may be performed by a Judge himself or be left to be performed by one of the
administrative or ministerial staff of the High Court which is as much a part of the High
Court.
10. As held by this Court in State of Punjab v. Shamlal Murari [(1976) 1 SCC
719]:
Processual law is not to be a tyrant but a servant, not an obstruction but an aid to
justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant,
not a resistant in the administration of justice.
The election petition, in the present case, could have been presented at any time upto the
midnight falling between 27th and 28th August, 2003 and it would be treated as filed within
the period of limitation.
54

11. Confining the filing time to the working hours of the court is not what is specifically
spelt out by Rules 6 and 7 of the Patna High Court Rules. The High Court, in its impugned
judgment, seems to have thought that the election petition could have been presented only to
the Judge and that too in the open court. The Judge would ordinarily sit in open court upto
4.15 p.m. of the day as per the rules or practice of the High Court but that time is not the end
of that day. The availability of time falling within the meaning of the word 'day', as provided
by Section 81 of the Act, cannot be curtailed by making a provision in the rules contrary to
the Act itself. Ordinarily, no litigant and lawyer would like to delay the presentation till the
fag end of the day and then present it at an odd time to the inconvenience of the Judge
wherever he may be. However, exceptional situations cannot be completely ruled out. It
would be better if the ministerial act of receiving the election petition presented to the High
Court is left to the administrative or ministerial staff of the High Court either by clarifying or
by making a suitable amendment in the Rules of the Patna High Court.
12. In Hukumdev Narain Yadav v. Lalit Narain Mishra [(1974) 2 SCC 133] Election
Petition Rules framed by Patna High Court came up for the consideration of the court and it
was held that it may be that the presentation to the Judge will be the date of filing for the
purpose of limitation, but that does not exclude a different procedure for filing in a case where
limitation is about to expire and the conditions prescribed by Rule 6 in the matter of
presentation cannot be complied with. Under the general rules governing the practice as to
presentation of pleadings and documents in the High Court, an election petition can be
presented on the last day of limitation, when the judges are not sitting to receive or entertain
an election petition, to the Registrar or in his absence to some other officer in the Registry
authorized to receive such presentation.
14. Reverting back to the facts of the present case, we find that the election petition was
handed over to the designated Election Judge on the last day of limitation at 4.25 p.m. when
the learned Judge was still available within the court premises, though he was not sitting in
the open court, as the prescribed time of 4.15 p.m. ordinarily meant for transacting judicial
work was over. The learned Judge did not himself receive the presentation nor did make any
other order such as the one directing any official of the Registry to receive the same. The
election petitioner had done all that was within his power to do for the purpose of presentation
but he failed. He made the presentation on the next day when the Judge was available and
sitting in the open court. The presentation would be deemed to be within limitation and valid.
15. The learned designated Election Judge of the High Court has erred in holding the
presentation to be barred by limitation. The view so taken cannot be countenanced. The
appeal is allowed. The impugned judgment of the High Court dated 10.9.2003 is set aside.
The election petition is held to have been filed within prescribed period of limitation.

*****
 55

Udhav Singh v. Madhav Rao Scindia

AIR 1976 SC 744

SARKARIA, J. - This appeal is directed against a judgment, dated October 27, 1972, of the
High Court of Madhya Pradesh dismissing the election petition filed by the appellant to
question the election of the respondent to Lok Sabha.
2. Six candidates filed nomination papers for contesting the election to Lok Sabha from
Guna Parliamentary Constituency in March 1971. Out of them, Sarvshri Shiv Pratap Singh
and Gaya Prasad withdrew their candidature after their nomination papers were found to be in
order after scrutiny, leaving four candidates in the field viz., Sarvshri Madhavrao Scindia,
Deorao Krishnarao Jadhav, Narayan Singh 'Albela' and Bundel Singh to contest the election.
Shri Madhav Rao Scindia respondent herein who was sponsored by the Jan Sangh was
declared elected by a margin of 1,41,090 votes over his nearest rival, Shri Deorao Krishnarao
Jadhav, sponsored by the Indian National Congress.
3. Udhav Singh, an elector of the Constituency, filed an election petition on 26-4-1971, in
the High Court challenging the election of the respondent on two main grounds viz.:
(i) that the respondent and/or his election agent had incurred or authorised
expenditure in connection with the election in excess of the limit of Rs. 35,000
prescribed under Section 77(3) of the Act read with Rule 90 of the Conduct of
Election Rules, 1961. It was alleged that the respondent made a tour in the
Constituency by helicopters and showed Rs. 5,000 only as an expense towards the
cost of the aviation fuel but did not show the hiring and other charges in respect
thereof. It was further alleged that the respondent hired and used motor vehicles, not
less than 18, but did not show the expenditure incurred in respect thereof in the
statement of election expenses submitted by him to the Election Commission;
(ii) that the workers of the respondent, with his consent, had threatened the
electors with bodily injuries and criminally intimidated them not to vote for Shri
Deorao Krishnarao Jadhav, the Congress candidate. Five instances of such threats and
intimidation interfering with the free exercise of electoral rights, were set out in
clauses (i) to (v) of the original Paragraph 10(iii) of the petition, which, after
amendment, was renumbered as Para 11(iv).
Clause (iv) of Paragraph 11 is as follows:
That, on or before 22-2-71, Shri Mohan Prasad Ojha, a Congress Worker of
Village Umri (Tehsil Guna) was threatened at pistol point by the workers of the
respondent with his consent. Shri Shiv Pratap Singh and others of Umri threatened
not to vote and canvass in favour of the Congress candidate, Deorao Krishnarao
Jadhav and threatening with dire consequences.
4. Process was issued to the lone respondent impleaded in the election petition. On 28-5-
1971, an advocate put in an appearance on his behalf. In the written statement presented on
24-9-1971 the respondent traversed the allegations of corrupt practices made in the petition.
In answer to clause (iv) of Paragraph 11 of the petition, the respondent stated:
56

The allegations of the petitioner that, on or before, 22-2-1971 Shri Mohan Prasad
Ojha, a Congress Worker of the village Umri (Tehsil Guna) was threatened at pistol
point by the workers of the respondent with his consent, is denied. It is also denied
that with the consent of the respondent, Shri Shiv Pratap Singh and others of Umri
threatened him not to vote and canvass in favour of the Congress candidate Shri
Devrao Krishnarao Jadhav and threatened him with dire consequences. This para is
also lacking in material particulars as to who were the alleged workers, what was
their names; their addresses, castes etc. It cannot therefore, be enquired into. The
allegation is incorrect, baseless and vague. It is also vague because particulars as to
when, where and in whose presence the alleged consent of the respondent was given
are not mentioned.
5. The main issues framed on 1-10-1971 were as under:
1. Has the respondent incurred or had authorised expenditure which was more
than the prescribed limit laid down under the Representation of the People Act, 1951
or the Rules made thereunder, as detailed in Para 10(i) and 10(ii) of the petition?
2.(a) Did the worker of the respondent with his consent threaten the voters with
injury, and criminally intimidated them in case they voted for D.K. Jadhav as detailed
in Paragraph 11 of the petition, and if so, what is its effect ?
6. Thereafter, the petitioner examined twelve witnesses on various dates, fixed in the case,
from 16-12-1971 to 24-7-1972.
7. On 3-8-1972, an application (No. 58/72) was submitted by the respondent alleging that
the election-petitioner has in paragraph 11(iv) of the petition alleged the commission of a
corrupt practice within the meaning of Section 123(2) of the Act, by, Shri Shiv Pratap Singh,
one of the candidates, but has failed to join him as a respondent, and as such, his petition is
liable to be dismissed under Section 86 on account of noncompliance with the mandate of
Section 82(b). In this application, the respondent reproduced clause (iv) of para 11 of the
petition as follows:
That on or before 22-2-71, Shri Mohan Prasad Ojha a Congress worker of village
Umri (Tehsil Guna) was threatened at pistol point by the workers of the respondent
with his consent, Shri Shiv Pratap Singh and others of Umri and threatened him not to
vote and canvass in favour of the Congress candidate Deorao Krishnarao Jadav and,
threatening him with dire consequences.
8. Notice of this application was given to the election petitioner, who after taking several
adjournments, ultimately filed a reply on 28-8-1972. In his reply, the petitioner stated that
Paragraph 11(iv) as reproduced in the respondent's application was not a correct reproduction.
It was further stated:
It is denied that there has been any allegation of corrupt practice against Shri
Shiv Pratap Singh who was a candidate at the aforesaid election. The respondent also
understood the same thing, that is why he did not raise any objection for a long period
of 11 months since the respondent filed his written statement.
 57

However, though there is absolutely no doubt about the identity of the said Shri
Shiv Pratap Singh, but the basic question giving rise to this application that an
allegation of corrupt practice has been made against him in para 11(iv) of the petition
is wholly incorrect and based on absolutely wrong interpretation of the statement of
allegation made in the aforesaid paragraph.
The petitioner further stated that the objection as to non-joinder of necessary party not
having been taken at the earliest, should be deemed to have been waived by the
respondent.
9. In his rejoinder (I.A. 76/72, dated 7-9-1972), the respondent maintained that Para 11(iv)
had been correctly extracted by him in his application dated 3-8-72, from the copy of the
election-petition which was served upon him, certified to be true copy under the seal and
signature of Shri R.K. Tankha, Advocate, the then Counsel for the petitioner. On 5-9-72, at
about 4.30 p.m. the Counsel for the respondent on inspecting the original election petition
discovered to their amazement that the three words (now underlined by us) had been erased
and the erasures initialled. It was alleged that this tampering with the petition had been done
to wriggle out of the fatal defect in the petition. The respondent prayed that the petitioner be
recalled and allowed to be cross-examined on this point.
10. The learned trial judge postponed consideration of these applications and of the
objection as to non-joinder of Shri Shiv Pratap Singh till the conclusion of the trial. Thereafter
the respondent examined his witnesses. He also examined his Advocate Shri Baghel, who
produced Ex. R-33, a copy of the petition, he had received from the office of the High Court.
The respondent closed his evidence on 9-7-72.
12. Shri Baghel, Counsel for the respondent, while appearing in the witness-stand was
unable to say definitely whether Ex. R-33, was a true copy of the copy he had received from
the High Court office. In view of this the learned Judge held that it had not been proved that
these erasures in para 11(iv) under initials were made subsequently to the filing of the
petition. He therefore, considered clause (iv) of para 11 sans the words erased. There, as here,
it was contended that the second part of clause (iv) of para 11 if properly construed would
mean that Shri Shiv Pratap Singh and others of Umri were threatened- and not that they
threatened-not to vote and canvass in favour of the Congress candidate. The learned judge
repelled this contention with the observations that “in no circumstances of the case it is
possible to read para 11(iv) in the manner suggested by the petitioner”. According to him the
allegations in this paragraph constituted a charge under Section 123(2) of the Act against Shri
Shiv Pratap Singh and his non-joinder as a respondent was fatal to the petition which was
liable to be dismissed on that score alone under Section 86.
13. On merits he found issues 1 and 2 against the petitioner. In the result, he dismissed the
election petition with costs. Hence, this appeal by the petitioner.
15. It is common ground that Shri Shiv Pratap Singh was one of the candidates who had
withdrawn his nomination papers for election from this Constituency, after the same had been
found in order by the Returning Officer. There was thus no doubt that he was a "candidate"
for the purpose of the relevant provisions of the Act. If therefore, the allegations made in cl
58

(iv) of para 11 of the petition relate to him and amount to a charge of corrupt practice against
him, his non-joinder as a respondent would be fatal to the election petition.
16. Mr. Dixit, the learned Counsel for the appellant, contends that this objection as to non-
joinder was not taken in the written statement, that it was raised for the first time about 14
months after the service of the notice of the election petition on the respondent-after the
petitioner had examined all his witnesses in the case. It is submitted that this amounted to
waiver. According to the learned Counsel, in view of the mandate of Order 8, Rule 2, Code of
Civil Procedure, it was obligatory for the respondent to take all such pleas showing the
petition to be non-maintainable, in his written statement. Since this was not done, the
respondent should not have been allowed to raise this plea, namely, by an application when
the case was in an advanced stage, and an amendment of the written statement was liable to
be refused on the ground of latches.
17. On the other hand, Mr. Gupte, learned Counsel for the respondent, submits that it was
not obligatory to take this objection in the written statement. It was a purely legal objection
which for its determination did not require any facts to be pleaded and proved by the
respondent. The fatal defect, it is submitted, is patent on the face of the election petition. Mr.
Gupte submits that Order 8, Rule 2, is not attracted because that provision, as its marginal
heading shows, enjoins the pleading of new facts, only as distinguished from bare points of
law. In the alternative, it is submitted that the application, dated 3-8-72, whereby this
objection was raised was in nature and substance additional pleading of the respondent which
was accepted as such by the Court. The petitioner also submitted his reply thereto and he
could not complain that he was taken by surprise. It is further urged that the provisions of
Section 86 read with Section 82(b) are in the nature of a mandate to the Court which is bound
to dismiss an election petition wherever it comes to its notice, whether on its own motion, or
on the motion of the respondent, that there has been a non-compliance with the imperative of
Section 82(b).
18. The material part of Section 82 reads thus:
Parties to the petition - A petitioner shall join as respondent to his petition -
(b) any other candidate against whom allegations of any corrupt practice are
made in the petition.
19. Behind this provision is a fundamental principle of natural justice viz., that nobody
should be condemned unheard. A charge of corrupt practice against a candidate, if
established, entails serious penal consequences. It has the effect of debarring him from being
a candidate at an election for a considerably long period. That is why, Section 82(b) in clear,
peremptory terms, obligates an election- petitioner to join as respondent to his petition, a
candidate against whom allegations of any corrupt practice are made in the petition.
Disobedience of this mandate inexorably attracts Section 86 which commands the High
Court, in equally imperative language, to- “dismiss an election petition which does not
comply with the provisions of section 82”.
20. The respondent cannot by consent, express or tacit, waive these provisions or
condone-a non-compliance with the imperative of Section 82(b). Even inaction, latches or
delay on the part of the respondent in pointing out the lethal defect of non-joinder cannot
 59

relieve the Court of the statutory obligation cast on it by Section 86. As soon as the non-
compliance with Section 82(b) comes or is brought to the notice of the court, no matter in
what manner and at what stage, during the pendency of the petition, it is bound to dismiss the
petition in unstinted obedience to the command of Section 86.
21. Considered in the light of the above enunciation, the respondent was not precluded
from raising the objection as to non-joinder merely because he had done so after the close of
the petitioner's evidence, and not at the earliest opportunity. Nor was the respondent obligated
to raise this objection only by his written statement, and in no other mode. Rule 2 of Order 8
of the Code of Civil Procedure is a rule of practice and convenience and justice. This
procedural Rule is to subserve and not enslave the cause of justice. It lays down broad
guidelines and not cast-iron traps for the defendant in the matter of drawing up his statement
of defence. It says:
The defendant must raise by his pleading all matters which show the suit not to be
maintainable, or that the transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the opposite party by
surprise or would raise issues of fact not arising out of the plaint, as for instance
fraud, limitation, release, payment, performance, or facts showing illegality.
22. The key-words are those that have been underlined. These words indicate the broad
test for determining whether a particular defence plea or fact is required to be incorporated in
the written statement. If the plea or ground of defence raises issues of fact not arising out of
the plaint, such plea or ground is likely to take the plaintiff by surprise, and is therefore
required to be pleaded. If the plea or ground of defence raises an issue arising out of what is
alleged or admitted in the plaint, or is otherwise apparent from the plaint itself, no question of
prejudice or surprise to the plaintiff arises. Nothing in the Rule compels the defendant to
plead such a ground, nor debars him from setting it up at a later stage of the case, particularly
when it does not depend on evidence but raises a pure question of law turning on a
construction of the plaint. Thus, a plea of limitation that can be substantiated without any
evidence and is apparent on the face of the plaint itself, may be allowed to be taken at any
stage of the suit.
23. An objection on the ground of non-compliance with the requirement of Section 82(b)
is a plea of this category. It arises out of allegations made in the petition itself. Such a plea
raises a pure question of law depending on a construction of the allegations in the petition,
and does not require evidence for its determination. Such a plea therefore, can be raised at any
time even without formal amendment of the written statement.
24. In the instant case, it was raised by an application, dated 3.8.72, which was accepted
by the court as a supplementary pleading of the respondent, and the petitioner had also
pleaded in reply to the same. There are several decisions wherein an objection as to non-
joinder of a necessary party in an election petition was allowed to be raised by means of a
simple application submitted long after the presentation of the written statement by the
respondent.
25. In Rao Abhe Singh v. Rao Nihal Singh [AIR 1964 Punj 209] a Division Bench
allowed an objection as to non-joinder of a candidate, against whom a corrupt practice was
60

alleged, to be raised by way of an application which was filed after practically the whole
evidence in the case had been recorded.
28. What should be the fair construction of the allegations in Para 11(iv) of the petition? Is
it possible to read-as Shri Dixit wants us to read-this paragraph as containing a charge that
Shri Shiv Pratap Singh and others of Umri were threatened by the workers of the respondent,
not to canvass and vote for the Congress candidate ? Or, does it mean that Shri Mohan Prasad
Ojha, an elector and a Congress worker was threatened by Shri Shiv Pratap Singh and others
of Umri not to canvass and vote for the Congress candidate, Shri Deorao Krishnarao Jadhav?
29. Mr. Dixit submits that clause (iv) of Para 11 falls in two parts, separated by a comma,
and the allegations in each part are distinct from the other. The first part comprising the
allegations “That, on or before 22-2-71, Shri Mohan Prasad Ojha, a Congress Worker of
Village Umri (Tehsil Guna) was threatened at pistol point by the workers" according to the
Counsel, stands alone, and should not be read conjointly with the second part which speaks of
Shri Shiv Pratap Singh and others of Umri. However, not very consistently with this
argument, it is urged further that since the allegations in the first part are set out in passive
voice, the contents of the second part should also be deemed to have been expressed in
passive voice. If this methodology is adopted, the second part of Para 11(iv) according to Mr.
Dixit, would read like this: “Shri Shiv Pratap Singh and others of Umri (were) threatened not
to vote and canvass in favour of the Congress candidate, Deorao Krishnarao Jadhav ...."
30. We are afraid, this ingenious method of construction after compartmentalisation,
dissection, segregation and inversion of the language of the paragraph, suggested by the
Counsel, runs counter to the cardinal canon of interpretation, according to which, a pleading
has to be read as a whole to ascertain its true import. It is not permissible to call out a
sentence or a passage and to read it out of the context, in isolation. Although it is the
substance and not merely the form that has to be looked into, the pleading has to be construed
as it stands without addition or subtraction of words, or change of its apparent grammatical
sense. The intention of the party concerned is to be gathered, primarily, from the tenor and
terms of his pleading taken as a whole.
31. The construction of Para 11(iv) suggested by Mr. Dixit is not possible without a
radical change in its sense and tense by unwarranted addition and excision of words. It would
necessitate a material change in the tense by reading the verb “threatened” as “were
threatened” so that what was clearly expressed by its author in active voice gets converted
into a passive voice with consequent inversion and subversion of the original sense. Even the
addition and attachment of the word “were” to the pre-existing verb “threatened” would not
completely transform Shri Shiv Pratap Singh and others of Umri from “threateners” into the
“threatened” unless the contra-indicative phrase “and threatening with dire consequences”
was also amputated.
32. In our opinion, the correct way of construing Para 11(iv) is to take it as it stands, and
read it not in parts but as a whole together with its preamble and the rest of the pleading. Thus
read, the relevant allegation in clause (iv) of Para 11 would fairly and clearly admit of only
this construction:
That on or before 22-2-71, Shri Mohan Prasad Ojha, a Congress Worker and
elector of village Umri (Tehsil Guna) was threatened at pistol point with dire
 61

consequences by Shri Shiv Partap Singh and others of Umri, the workers of the
respondent with his consent, not to vote and canvass in favour of the Congress
Candidate, Deorao Krishnarao Jadhav.
33. In our opinion, this is the only reasonable construction that the language of para 11(iv)
without undue stretching, straining and twisting can bear. Indeed, from the relevant portions of
the pleadings extracted earlier in this judgment, it is evident that both the parties, including the
petitioner, had understood the allegations in para 11(iv) in the sense in which we have
construed them. It was only after the presentation of the application, dated 3- 8-72, raising the
objection, the petitioner in an attempt-as the High Court rightly put it-"to wriggle out from the
unfortunate position he was placed in not making Shiv Pratap Singh a party", has started
claiming the antic interpretation quite different from the one flowing from the plain language
and tenor of para 11(iv).
We have therefore, no hesitation in repelling the second contention also, canvassed on
behalf of the appellant.
34. The last contention of the learned Counsel for the appellant is that even if the second
part of clause (iv) is construed as an allegation that Shri Shiv Pratap Singh and others of Umri
threatened not to vote and canvass, then also, this allegation is so bereft of material facts and
material particulars, that it does not constitute a complete charge of corrupt practice under
Section 123(2). The material facts and material particulars, which according to the Counsel
were, in view of the mandate of Section 83, required to be pleaded but have not been pleaded
are: the place where the threat was given, the kind and nature of the injury threatened, or
injury, if any, actually caused, the particulars of the parentage, address of Shiv Pratap Singh
and others, the fact that this Shiv Pratap Singh of Umri was the same who was one of the
candidates at the election and that the person threatened was an elector, and how the threat
constituted an interference with the free exercise of his electoral right. It is urged that in
ascertaining whether or not the allegations in para 11(iv) constitute a complete cause of action
relating to a corrupt practice, the Court has to confine itself to this Para, and cannot take into
consideration even an admission of the petitioner appearing in evidence or in any document
extraneous to the election petition.
35. As against this, Mr. Gupte, has pointed out that all the material facts, as distinct from
material particulars, necessary to constitute a complete charge of corrupt practice under
Section 123(2) against Shri Shiv Pratap Singh, a candidate can be found in the petition if the
same is read as a whole. In any case, the identity of this Shiv Pratap Singh as a candidate was
admitted by the petitioner in the particulars supplied by him pursuant to an order of the Court
on 8-8-1972. Those particulars, according to the Counsel are to be treated as a part of the
Petitioner's pleading. It is further submitted that if there is any deficiency of particulars, as
distinguishable from material facts, in Para 11(iv), then also they could be supplied, even after
the expiry of limitation for the petition, pursuant to an order of the Court, made at the instance
of the respondent. The petitioner cannot, it is stressed, take advantage of his own default, in
not setting forth full particulars of basic facts set out in the petition.
62

36. Section 83 lays down:

(1) An election petition-
(a) shall contain a concise statement of the material facts on which the
petitioner relies;
(b) shall set forth full particulars of any corrupt practice that the petitioner
alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date and place of the
commission of each such practice….
37. Like the Code of Civil Procedure, this section also envisages a distinction between
material facts and material particulars. Clause (a) of sub-section (1) corresponds to Order 6,
Rule 2, while clause (b) is analogous to Order 6 Rules 4 and 6 of the Code. The distinction
between “material facts” and “material particulars” is important because different
consequences may flow from a deficiency of such facts or particulars in the pleading. Failure
to plead even a single material fact leads to an incomplete cause of action and incomplete
allegations of such a charge are liable to be struck off under Order 6, Rule 16, Code of Civil
Procedure. If the petition is based solely on those allegations which suffer from lack of
material facts, the petition is liable to be summarily rejected for want of a cause of action. In
the case of a petition suffering from a deficiency of material particulars, the court has the
discretion to allow the petitioner to supply the required particulars even after the expiry of
limitation.
38. All the primary facts which must be proved at the trial by a party to establish the
existence of a cause of action or his defence, are “material facts”. In the context of a charge of
corrupt practice, “material facts” would mean all the basic facts constituting the ingredients of
the particular corrupt practice alleged, which the petitioner is bound to substantiate before he
can succeed on that charge. Whether in an election-petition, a particular fact is material or not
and as such required to be pleaded is a question which depends on the nature of the charge
levelled, the ground relied upon and the special circumstances of the case. In short, all those
facts which are essential to clothe the petitioner with a complete cause of action, are “material
facts” which must be pleaded and failure to plead even a single material fact amounts to
disobedience of the mandate of section 83(1) (a).
39. “Particulars”, on the other hand, are "the details of the case set up by the party".
“Material particulars” within the contemplation of clause (b) of Section 83(i) would therefore
mean all the details which are necessary to amplify, refine and embellish the material facts
already pleaded in the petition in compliance with the requirements of clause (a). 'Particulars'
serve the purpose of finishing touches to the basic contours of a picture already drawn, to
make it full, more detailed and more informative.
40. The distinction between ‘material facts’ and ‘material particulars’ was pointed out by
this Court in several cases, three of which have been cited at the bar. It is not necessary to
refer to all of them. It will be sufficient to close the discussion by extracting what A. N. Ray J.
(as he then was) said on this point in Hardwari Lal’s case:
 63

It is therefore vital that the corrupt practice charged against the respondent should
be a full and complete statement of material facts to clothe the petitioner with a
complete cause of action and to give an equal and full opportunity to the respondent
to meet the case and to defend the charges. Merely, alleging that the respondent
obtained or procured or attempted to obtain or procure assistance are extracting words
from the statute which will have no meaning unless and until facts are stated to show
what that assistance is and how the prospect of election is furthered by such
assistance. In the present case, it was not even alleged that the assistance obtained or
procured was other than the giving of vote. It was said by the counsel for the
respondent that because the statute did not render the giving of vote a corrupt practice
the words “any assistance” were full statement of material fact. The submission is
fallacious for the simple reason that the manner of assistance, the measure of
assistance are all various aspects of fact to clothe the petition with a cause of action
which will call for an answer. Material facts are facts which if established would give
the petitioner the relief asked for. If the respondent had not appeared, could the court
have given a verdict in favour of the election petitioner. The answer is in the negative
because the allegations in the petition did not disclose any cause of action.
41. Bearing in mind the criteria for distinguishing material facts from material particulars,
let us now see whether the allegations in Para 11(iv) of the petition cover all the material facts
constituting a complete charge of corrupt practice within the meaning of section 123(2)
against Shri Shiv Pratap Singh who was a candidate at the election.
42. The gist of the corrupt practice of “undue influence” as defined in sub-section (i) of
section 123 is “direct or indirect interference or attempt to interfere on part of the candidate or
his agent, or of any other person with the consent of the candidate or his election agent, with
the free exercise of any electoral right”.
43. By way of illustration sub-clause (1) of clause (a) of the proviso lays down that if a
person who threatens any candidate or any elector or any person in whom a candidate or an
elector is interested, with injury of any kind shall be deemed to interfere with the free exercise
of the electoral right of such candidate or elector within the meaning of sub-section (2).
44. In Para 11(iv) the particular corrupt practice alleged is of the kind indicated in the
aforesaid sub-clause (i) of the Proviso. Reading Para 11 as a whole, it is clear that it is pleaded
that Shri Shiv Pratap Singh and others of Umri had administered a threat to Shri Mohan
Prasad Ojha who was a Congress Worker and an elector of Umri; that the threat was not to
vote for the Congress candidate, Shri Jadhav, the threat was of causing bodily injury to the
said elector, that the threatener Shri Shiv Pratap Singh, was an election worker of the
respondent and had administered the threat to the said elector, with the consent of the
respondent. Reading Para 11(iv) together with the contents of Para 10 of the petition, the
import is clear that this threatener was none else but “Shri Shiv Pratap Singh MLA, s/o Shri
Birjendra Singh r/o Umri House, Guna”, who “during the election of the respondent acted as
his agent.”
45. It will thus be seen that all the “material facts” constituting a complete charge of
corrupt practice under Section 123(2) against Shri Shiv Pratap Singh were stated in the
petition. The approximate date of administering the threat which was only a material
64

particular as distinguished from a material fact-was also given. Only the place and the precise
time of giving the threat were not stated. But these were, at best, only material particulars, and
not “material facts”. The occasion for furnishing such particulars would have arisen only if
the respondent had asked for them. Similarly, further and better particulars of the address etc.
of Shri Shiv Pratap Singh would fall within the category of particulars. By an application
dated 1-8-1972, the respondent, obviously as a matter of abundant caution, asked for fuller
particulars of Shiv Pratap Singh referred to in para 11(iv). The petitioner submitted his reply,
dated 8-8-72, through his Counsel in which he furnished these particulars of the said Shri
Shiv Pratap Singh:
Shiv Pratap Singh s/o Brijendra Singh, aged about 35 years, occupation
cultivation (at present M.L.A.Guna) resident of Umri House, Guna, Distt. Guna.
46. These particulars supplied by the election-petitioner were in the nature of his
supplemental pleading. They could not be treated as something extraneous to his pleading.
They could be legitimately looked into for construing Paragraph 11(iv) of the petition. These
particulars supplied by the petitioner were substantially the same as given in Para 10 of the
petition. These particulars doubly confirmed the identity of Shiv Pratap Singh mentioned in
Para 11(iv) as the same person who was one of the candidates.
47. In sum, Para 11(iv) of the petition contained allegations of a complete charge of
corrupt practice against a candidate, Shri Shiv Pratap Singh and consequently in view of
section 82(b) it was obligatory for the petitioner to implead him also as a respondent. Failure
to do so, would inexorably lead to the dismissal of his petition under section 86. Accordingly,
on this short ground, and for all the reasons aforesaid, we uphold the dismissal of the election
petition and disallow this appeal with costs.

*****
 65

Jyoti Basu v. Debi Ghosal

AIR 1982 SC 983

CHINNAPPA REDDY, J. - The first appellant, Jyoti Basu, is the Chief Minister and
appellants two and three, Budhadeb Bhattacharya and Hashim Abdul Halim, are two
Ministers of the Government of West Bengal. They have been impleaded by the first
respondent as parties to an election petition filed by him questioning the election of the
second respondent to the House of the People from the Barrackpore Parliamentary
Constituency in the mid-term Parliamentary election held in January, 1980. There were five
candidates who sought election from the Constituency. Mohd. Ismail, the first respondent,
whose candidature was sponsored by the Communist Party of India (Marxist) was, elected
securing 2,66,698 votes as against Debi Ghosal, a candidate sponsored by the Indian National
Congress led by Smt. Indira Gandhi who secured 1,62,770 votes. The other candidates Ramjit
Ram, Robi Shankar Pandey and Bejoy Narayan Mishra secured 25,734, 12,271 and 2,763
votes respectively. The first respondent filed an election petition in the High Court of Calcutta
questioning the election of the second respondent Mohd. Ismail on various grounds. He
impleaded the returned candidate as the first respondent, and the other three unsuccessful
candidates -respondents 2, 3 and 4 to the election petition. Besides the candidates at the
election, he impleaded several others as respondents. The District Magistrate and Returning
Officer was impleaded as the fifth respondent, Buddhadeb Bhattacharya, the Minister for
Information and Publicity, Government of West Bengal as the sixth respondent, Jyoti Basu,
the Chief Minister as the seventh respondent, Md. Amin, the Minister of the Transport Branch
of the Home Department as the eighth respondent, Hashim Abdul Halim, the Minister of the
Legislative and the Judicial Department as the ninth respondent and the Electoral Registration
Officer as the tenth respondent. It was averred in the election petition that the Chief Minister
and the other Ministers of the Government of West Bengal who were impleaded as parties to
the election petition had colluded and conspired with the returned candidate to commit
various alleged corrupt practices. Apart from denying the commission of the various alleged
corrupt practices, the Chief Minister and the other Ministers claimed in their written
statements that the election petitioner was not entitled to implead them as parties to the
election petition. They claimed that as they were not candidates at the election they could not
be impleaded as parties to the election petition. The Chief Minister and two of the other
Ministers, Hashim Abdul Halim and and Buddhadeb Bhattacharya filed an application before
the High Court of Calcutta to strike out their names from the array of parties in the election
petition. The application was dismissed by the Calcutta High Court on the ground that the
applicants (appellants) were proper parties to the election petition and, therefore, their names
should not be struck out of the array of parties. The appellants have preferred this appeal after
obtaining special leave of this Court under Article 136 of the Constitution.
2. Shri Somnath Chatterjee, learned counsel for the appellant submitted that the concept of
a proper party was not relevant in election law and that only those persons could be impleaded
as parties who were expressly directed to be so impleaded by the Representation of the People
Act, 1951. He claimed that in any case such persons were entitled to be struck out from the
array of parties. On the other hand Shri Sidhartha Shankar Ray, and Shri R.K. Lala, learned
66

counsel for the first respondent submitted that the appellants were proper parties to the
election petition and their presence was necessary for a complete, final and expeditious
decision on the questions involved in the action.
3. To properly appreciate the rival contentions, it is necessary to refer to the relevant
provisions of the Constitution of India and the two Representation of the People Acts of 1950
and 1951.
4. First, the Constitution. Part XV deals with elections. Article 324 vests in the Election
Commission the superintendence, direction and control of the preparation of the Electoral
rolls, and the conduct of all elections to Parliament and to the Legislatures of the States.
Article 325 provides that there shall be one general electoral roll for every territorial
constituency and that no person shall be ineligible for inclusion in such rolls on grounds only
of religion, caste, sex or any of them. Article 326 provides that election to the House of the
People and to the Legislative Assemblies of States shall be on the basis of adult franchise.
Article 327 enables Parliament to make laws with respect to all matters relating to elections to
either House of Parliament or to the Houses of the Legislature of a State. Article 328 enables
the Legislature of a State, if Parliament has not made such legislation, to make laws with
respect to all matters relating to elections to the Houses of the Legislature of the State. Article
329 bars interference by Courts in electoral matters and clause (b), in particular, provides that
no election to either House of Parliament or to the House or either House of the Legislature of
a State shall be called in question except by an election petition presented to such authority
and in such manner as may be provided for by or under any law made by the appropriate
legislature.
5. Next, the Representation of the People Act, 1950. This Act provides for the
delimitation of the Constituencies for the purpose of elections to the House of the people and
the legislatures of States, the qualification of voters at such elections, the preparation of
electoral rolls and other matters connected therewith.
6. Last, the Representation of the People Act of 1951, Part VI of the Act deals with
“Disputes regarding Elections”. Section 79 defines various terms and expressions used in the
Parts VI and VII. Clause (b) defines a ‘candidate’ as meaning “a person who has been or
claims to have been duly nominated as a candidate at any election, and any such person shall
be deemed to have been a candidate as from the time when, with the election in prospect, he
began to hold himself out as a prospective candidate”. Section 80 imposes a statutory ban on
an election being called in question except by an election petition presented in accordance
with the provisions of Part VI of the Act. Section 80-A vests in the High Court the
jurisdiction to try an election petition. Section 81 provides for the presentation of an election
petition on one or more of the grounds specified in Section 100(1) and Section 101 by any
candidate at such election or any elector who was entitled to vote at the election. Section 82
is titled “Parties to the petition”. Section 83 prescribes the contents of the petition. Section
84 provides that a petitioner may, in addition to claiming a declaration that the election of
the returned candidate is void, claim a further declaration that he himself or any other
candidate has been duly elected. Section 86 deals with trial of election petitions. Sub-section
(4) provides for an application by a candidate who is not already a respondent to be joined as
a respondent. Section 87 is concerned with the procedure before the High Court. Section 90
 67

enables the returned candidate or any other party to 'recriminate' in cases where, in the
election petition, a declaration that a candidate other than the returned candidate has been
elected is claimed. Section 98 prescribes the orders that may be made by the High Court at
the conclusion of the trial of an election petition. It provides that the High Court shall make
an order dismissing the election petition or declaring the election of all or any of the returned
candidates to be void and the petitioner or any other candidate to have been duly elected.
Section 99, enables the High Court to make, at the time of making order under Section 98,
an order recording a finding whether any corrupt practice has or has not been proved to have
been committed at the election, and the nature of corrupt practice; and the names of all
persons, if any, who have been proved at the trial to have been guilty of corrupt practice and
the nature of that practice. The proviso to Section 99 (1), however, prescribes that no person
who is not a party to the petition shall be named in the order unless he had been given notice
to appear before the High Court to show cause why he should not be so named and he had
also been given an opportunity to cross examine any witness who had already been
examined by the High Court and had given evidence against him and an opportunity of
calling evidence in his defence and of being heard. Section 100 enumerates the grounds on
which an election may be declared void. The High Court, it is said, among other grounds,
shall declare the election of a returned candidate void in cases where corrupt practices are
proved, where such corrupt practice has been committed by a returned candidate or his
election agent or by any other person with the consent of the returned candidate or his
election agent. Where the corrupt practice has been committed in the interests of the returned
candidate by an agent other than his election agent, the result of the election in so far as it
concerns the returned candidate must also be shown to have been materially affected.
Section 101 prescribes the grounds for which a candidate, other than the returned candidate
may be declared to have been elected. Section 110 provides for the procedure when an
application for withdrawal of an election petition is made to the Court. Section 110(3)(c)
says that a person who might himself have been a petitioner may apply to the Court to be
substituted as a petitioner in place of the party withdrawing. Section 112(3) provides for the
continuance of the election petition on the death of the sole petitioner in an election petition
or of the survivor of several petitioners, by any person who might himself have been a
petitioner and who applies for substitution within the stipulated period.
8. A right to elect, fundamental though it is to democracy, is, anomalously enough, neither
a fundamental right nor a common law right. It is pure and simple, a statutory right. So is the
right to be elected. So is the right to dispute an election. Outside of statute, there is no right to
elect, no right to be elected and no right to dispute an election. Statutory creations they are,
and therefore, subject to statutory limitation. An election petition is not an action at common
law, nor in equity. It is a statutory proceeding to which neither the common law nor the
principles of equity apply but only those rules which the statute makes and applies. It is a
special jurisdiction, and a special jurisdiction has always to be exercised in accordance with
the statutory creating it. Concepts familiar to common law and equity must remain strangers
to Election Law unless statutorily embodied. A court has no right to resort to them on
considerations of alleged policy because policy in such matters as those, relating to the trial of
election disputes, is what the statute lays down. In the trial of election disputes, court is put in
a straight-jacket. Thus the entire election process commencing from the issuance of the
68

notification calling upon a constituency to elect a member or members right up to the final
resolution of the dispute, if any, concerning the election is regulated by the Representation of
the People Act, 1951, different stages of the process being dealt with by different provisions
of the Act. There can be no election to Parliament or the State Legislature except as provided
by the Representation of the People Act 1951 and again, no such election may be questioned
except in the manner provided by the Representation of the People Act. So the Representation
of the People Act has been held to be a complete and self contained code within which must
be found any rights claimed in relation to an election or an election dispute. We are concerned
with an election dispute. The question is, who are parties to an election dispute and who may
be impleaded as parties to an election petition. We have already referred to the scheme of the
Act. We have noticed the necessity to rid ourselves of notions based on common law or
equity. We see that we must seek an answer to the question within the four corners of the
statute. What does the Act say?
9. Section 81 prescribes who may present an election petition. It may be any candidate at
such election; it may be any elector of the constituency; it may be none else. Section 82 is
headed “Parties to the petition” and clause (a) provides that the petitioner shall join as
respondents to the petition the returned candidates if the relief claimed is confined to a
declaration that the election of all or any of the returned candidates is void and all the
contesting candidates if a further declaration is sought that he himself or any other candidate
has been duly elected. Clause (b) of Section 82 requires the petitioner to join as respondent
any other candidate against whom allegations of any corrupt practice are made in the petition.
Section 86(4) enables any candidate not already a respondent to be joined as a respondent.
There is no other provision dealing with the question as to who may be joined as respondents.
It is significant that while clause (b) of Section 82 obliges the petitioner to join as a
respondent any candidate against whom allegations of any corrupt practice are made in the
petition, it does not oblige the petitioner to join as a respondent any other person against
whom allegations of any corrupt practice are made. It is equally significant that while any
candidate not already a respondent may seek and, if he so seeks, is entitled to be joined as a
respondent under Section 86(4), any other person cannot, under that provision seek to be
joined as respondent, even if allegations of any corrupt practice are made against him. It is
clear that the contest of the election petition is designed to be confined to the candidates at the
election. All others are excluded. The ring is closed to all except the petitioner and the
candidates at the election. If such is the design of the statute, how can the notion of 'proper
parties' enter the picture at all? We think that the concept of 'proper parties' is and must
remain alien to an election dispute under the Representation of the People Act, 1951. Only
those may be joined as respondents to an election petition who are mentioned in Section 82
and Section 86(4) and no others. However desirable and expedient it may appear to be, none
else shall be joined as respondents.
10. It is said, the Civil Procedure Code applies to the trial of election petitions and so
proper parties whose presence may be necessary in order to enable the Court 'effectually and
completely to adjudicate upon and settle all questions involved' may be joined as respondents
to the petitions. The questions is not whether the Civil Procedure Code applies because it
undoubtedly does, but only 'as far as may be' and subject to the provisions of the
 69

Representation of the People Act, 1951 and the rules made thereunder. Section 87(1)
expressly says so. The question is whether the provisions of the Civil Procedure Code can be
invoked to permit that which the Representation of the People Act does not. Quite obviously
the provisions of the Code cannot be so invoked. In Mohan Raj v. Surendra Kumar Taparia
[AIR 1968 Raj. 287] this Court held that the undoubted power of the Court (i.e. the Election
Court) to permit an amendment of the petition cannot be used to strike out allegations against
a candidate not joined as a respondent so as to save the election petition from dismissal for
non-joinder of necessary parties. It was said:
The Court can order an amendment and even strike out a party who is not
necessary. But where the Act makes a person a necessary party and provides that the
petition shall be dismissed if such a party is not joined, the power of amendment or to
strike out parties cannot be used at all. The Civil Procedure Code applies subject to
the provisions of the Representation of the People Act and any rules made thereunder.
When the Act enjoins the penalty of dismissal of the petition for non-joinder of a
party the provisions of the Civil Procedure Code cannot be used as a curative means
to save the petition.
Again, in K.Venkateswara Rao v. Bekkam Narasimha Reddi [AIR 1969 SC 872], it was
observed:
With regard to the addition of parties which is possible in the case of a suit under
the provisions of Order l Rule 10 subject to the added party right to contend that the
suit as against him was barred by limitation when he was added, no addition of parties
is possible in the case of an election petition except under the provisions of sub-
section (4) of Section 86.
11. The matter may be looked at from another angle. The Parliament has expressly
provided that an opportunity should be given to a person who is not a candidate to show cause
against being 'named' as one guilty of a corrupt practice. Parliament however, has not thought
fit to expressly provide for his being joined as a party to the election petition either by the
election-petitioner or at the instance of the very person against whom the allegations of a
corrupt practice are made. The right given to the latter is limited to show cause against being
'named' and that right opens up for exercise when, at the end of the trial of the election
petition notice is given to him to show cause why he should not be 'named'. The right does not
extend to participation at all stages and in all matters, a right which he would have if he is
joined as a party at the commencement. Conversely the election petitioner cannot by joining
as a respondent a person who is not a candidate at the election subject him to a prolonged trial
of an election petition with all its intricacies and ramifications. One may well imagine how
mischievous minded persons may harass public personages like the Prime Minister of the
country, the Chief Minister of a State or a political leader of a national dimension by
impleading him as a party to election petitions, all the country over. All that would be
necessary is a seemingly plausible allegation, casually or spitefully made, with but a facade of
truth. Everyone is familiar with such allegations. To permit such a public personage to be
impleaded as a party to an election petition on the basis of a mere allegation, without even
prime facie proof, an allegation which may ultimately be found to be unfounded, can cause
needless vexation to such personage and prevent him from the effective discharge of his
70

public duties. It would be against the public interest to do so. The ultimate award of costs
would be no panacea in such cases, since the public mischief cannot be repaired. That is why
public policy and legislative wisdom both seem to point to an interpretation of the provisions
of the Representation of the People Act which does not permit the joining, as parties, of
persons other than those mentioned in Sections 82 and 86(4). It is not as if a person guilty of a
corrupt practice can get away with it. Where at the concluding stage of the trial of an election
petition, after evidence has been given, the Court finds that there is sufficient material to hold
a person guilty of a corrupt practice, the Court may then issue a notice to him to show cause
under Section 99 and proceed with further action. In our view the legislative provision
contained in Section 99 which enables the Court, towards the end of the trial of an election
petition, to issue a notice to a person not a party to the proceeding to show cause why he
should not be 'named' is sufficient clarification of the legislative intent that such person may
not be permitted to be joined as a party to the election petition.
12. There is yet another view-point. When in an election petition, in addition to the
declaration that the election of the returned candidate is void, a further declaration is sought
that any candidate other than the returned candidate has been duly elected, Section 97 enables
the returned candidate or any other party to 'recriminate' i.e. to give evidence to prove that the
election of such candidate would have been void if he had been a returned candidate and a
petition had been presented to question his election. If a person who is not a candidate but
against whom allegations of any corrupt practice are made is joined as a party to the petition
then, by virtue of his position as a party, he would also be entitled to 'recriminate' under
Section 97. Surely such a construction of the statute would throw the doors of an election
petition wide open and convert the petition into a 'free for all' fight. A necessary consequence
would be an unending, disorderly election dispute with no hope of achieving the goal
contemplated by Section 86(6) of the Act that the trial of the election petition should be
concluded in six months. It is just as well to remember that 'corrupt practice' as at present
defined by Section 123 of the Act is not confined to the giving of a bribe but extends to the
taking of a bribe too and, therefore, the number of persons who may be alleged to be guilty of
a corrupt practice may indeed be very large, with the consequence that all of them may
possibly be joined as respondents.
13. In view of the foregoing discussion we are of the opinion that no one may be joined as
a party to an election petition otherwise than as provided by Sections 82 and 86(4) of the Act.
It follows that a person who is not a candidate may not be joined as a respondent to the
election petition. The appeal is therefore, allowed with costs and the names of the appellants
and the seventh respondent in the appeal are directed to be struck out from the array of parties
in the election petition

*****
 71

Jabar Singh v. Genda Lal

AIR 1964 SC 1200

GAJENDRAGADKAR, J. - The question of law which this appeal has raised for our
decision is in relation to the nature and scope of the enquiry contemplated by Sections 97, 100
and 101 of the Representation of the People Act, 1951 (the Act). The appellant Jabar Singh
and the respondent Genda Lal, besides five others, had contested the election to the Madhya
Pradesh Assembly on behalf of Morena Constituency No. 5. This election took place on the
21st February, 1962. In due course, the scrutiny of recorded votes took place and counting
followed on the 27th February, 1962. As a result of the counting, the appellant was shown to
have secured 5,671 votes, whereas the respondent 5,703 votes. It is not necessary to refer to
the votes secured by the other candidates. After the result of the counting was thus
ascertained, the appellant applied for recounting of the votes and thereupon, recounting
followed as a result of which the appellant was declared elected having defeated the
respondent by 2 votes. The recounting showed that the appellant secured 5,656 votes and the
respondent 5,654. Thereafter, the respondent filed an election petition from which the present
appeal arises. By his petition the respondent challenged the validity of the appellant's election
on the ground of improper reception of votes in favour of the appellant and improper rejection
of votes in regard to himself. The respondent urged before the Tribunal either for the
restoration of the results in accordance with the calculations initially made before recounting,
or a re-scrutiny of the votes by the Tribunal and declaration of the result according to the
calculations which the Tribunal may make. His prayer was that the appellant's election should
be declared to be void and a declaration should be made that the respondent was duly elected.
2. The Election Tribunal found that 10 ballot papers in favour of the respondent had been
improperly rejected and 4 had been improperly accepted in favour of the appellant. That led to
a difference of 12 votes and the position of the votes was found to be the respondent 5,664
and the appellant 5,652 votes.
3. At this stage, the appellant urged before the Tribunal that there had been improper
rejection of his votes and improper acceptance of the votes of the respondent, and his case
was that, if recounting and re-scrutiny was made, it would be found that he had secured a
majority of votes. The respondent objected to this course; his case was that since the appellant
had not recriminated under Section 97 of the Act, it was not open to him to make the plea that
a recounting and re-scrutiny should be made on the ground that improper votes had been
accepted in favour of the respondent and valid votes had been improperly rejected when they
were cast in favour of the appellant. The respondent's contention was that in order to justify
the claim made by the appellant it was necessary that he should have complied with the
provisions of the proviso to Section 97(1) of the Act and should have furnished security as
required by it. The failure of the appellant in that behalf precluded him from raising such a
contention.
4. The Tribunal rejected the respondent’s contention and held that in order to consider the
relief which the respondent had claimed in his election petition, it was necessary for it to
decide whether the respondent had in fact received a majority of votes under section 101 of
the Act, and so, he re-examined the ballot papers of the respondent as well as the appellant
72

and came to the conclusion that 22 ballot papers cast in favour of the respondent had been
wrongly accepted. The result was that the respondent had, in fact, not secured a majority of
votes. As a consequence of these findings, the Tribunal declared that the election of the
appellant was void and refused to grant a declaration to the respondent that he had been duly
elected.
5. This decision led to two cross-appeals before the High Court of Madhya Pradesh, No.
46 of 1952 and No. 1 of 1963 respectively. The appellant challenged the conclusion of the
Tribunal that his election was void, whereas the respondent disputed the correctness of the
decision of the Tribunal that no declaration could be granted in his favour that he had been
duly elected. In these appeals the main question which was agitated before the High Court
was about the nature and scope of the enquiry permissible under sections 100 and 101 of the
Act. In dealing with this question, the High Court based itself upon its own earlier decision in
Inayatullah Khan v. Diwanchand Mahajan [15 E.L.R. 219] as well as the decision of this
Court in Bhim Sen v. Gopali [22 E.L.R. 288] and held that the grievance made by both the
parties in their respective appeals was not well founded and that the decision of the Tribunal
was right. In the result, both the appeals were dismissed and the decision of the Tribunal was
confirmed. Against this decision, the appellant has come to this Court by special leave. Later
on, the respondent filed an application for leave to appeal to this Court, but the said
application was filed beyond time. When the said application came on for hearing before this
Court, the delay made by the respondent in preferring his application for special leave was not
condoned, and so, the decision of the High Court against the respondent has become final and
is no longer open to challenge in this Court. When the application for leave filed by the
appellant was argued, and admitted by this Court, it was urged by Mr. Kapoor on his behalf
that the observations made by this Court in the case of Bhim Sen on which the High Court
substantially relied required reconsideration. That is why the appeal has been placed before a
Bench of five Judges for final hearing.
6. In dealing with the question raised by Mr. Kapoor before us, it is necessary to refer to
the provisions of the Act in regard to the presentation of election petitions and the prayers that
the petitioners can make therein. Section 81 provides that an election petition calling in
question any election on one or more of the grounds specified in sub- section (1) of Section
100 and Section 101 may be presented to the Election Commission by any candidate or any
elector within the time specified by the said section. It is thus clear that when a person
presents an election petition, it is open to him to challenge the election of the returned
candidate under Section 100 (1) and claim a declaration that the returned candidate's election
is void. He can also claim a further declaration that he himself or any other candidate has been
duly elected. In other words, if the election petition contents itself with claiming a simple
declaration that the election of the returned candidate should be declared to be void, the
petition falls under Section 100 and the Election Tribunal can either grant the said declaration
in which case the petition is allowed, or refuse to grant it in which case the petition is
dismissed. It is also possible that the election petition may claim two reliefs, one under
Section 100 (1), and the other under Section 101. In this category of cases, the Tribunal first
decides the question as to whether the election of the returned candidate is valid or not, and if
it is found that the said election is void, it makes a declaration to that effect and then deals
 73

with the further question whether the petitioner himself or some other person can be said to
have been duly elected. The scope of the enquiry which the Tribunal has to hold in such cases
would obviously depend upon the nature of the reliefs claimed by the petition.
7. There is another fact which it is necessary to bear in mind in dealing with the
controversy before us in the present appeal. When elections are held, the declarations of the
results are governed by the statutory rules framed under the Act. The counting of votes is
dealt with in the relevant rules under Part V. Rule 55 deals with the scrutiny and opening of
ballot boxes. Rule 56(1) requires that the ballot papers taken out of each ballot box shall be
arranged in convenient bundles and scrutinised. Rule 56 (2) provides when the returning
officer has to reject a ballot paper, the grounds for rejection are specified in clauses (a) to (h).
Rules 56(3), (4) and (5) prescribe the procedure for rejecting ballot papers. When the ballot
papers have been taken out of the ballot boxes and have been scrutinised, counting follows
and that is dealt with by Rule 57 and the following Rules. Rule 63 provides for recounting of
votes; Rule 63(1) lays down that after the counting has been completed, the returning officer
shall record in the result sheet in Form 20 the total number of votes polled by each candidate
and announce the same. Rule 63(2) permits an application to be made for a recounting and if
that application is allowed, a recounting follows. If a recounting is made, then the result is
declared once again on the sheet in Form 20. In pursuance of the result of counting thus
announced, the result of the election is declared under Rule 64 and a certificate of election is
granted to the returned candidate. It is significant that Rule 57(1) provides that every ballot
paper which is not rejected under Rule 56 shall be counted as one valid vote, which means
that after the ballot papers have been scrutinised and invalid papers are rejected under Rule
56(2), all voting papers which have been taken into the counting by the returning officer shall
be deemed to be valid under Rule 57(1). Similarly, when the scrutiny of the nomination
papers is made by the returning officer under Section 36 of the Act and as a result, certain
nomination papers are accepted, Section 36(8) provides that the said acceptance shall be
presumed to be valid. In other words, when an election petition is filed before an Election
Tribunal challenging the validity of the election of the returned candidate, prima facie the
acceptance of nomination papers is presumed to be valid and the voting papers which have
been counted are also presumed to be valid. The election petition may challenge the validity
of the votes counted, or the validity of the acceptance or rejection of a nomination paper; that
is a matter of proof. But the enquiry would commence in every case with prima facie
presumption in favour of the validity of the acceptance or rejection of nomination paper and
of the validity of the voting papers which have been counted. It is necessary to bear in mind
this aspect of the matter in dealing with the question about the scope and nature of the enquiry
under Sections 100 and 101 of the Act.
8. Mr. Kapoor contends that in dealing with the cases falling under Section 100(1)(d) (iii),
Section 97 can have no application and so, the enquiry contemplated in regard to cases falling
under that class is not restricted by the prohibition prescribed by Section 97(1). He suggests
that when the Tribunal decides whether or not the election of the returned candidate has been
materially affected by the improper reception, refusal or rejection of any vote, or the reception
of any vote which is void, it has to examine the validity of all votes which have been counted
in declaring the returned candidate to be elected, and so, no limitation can be imposed upon
74

the right of the appellant to require the Tribunal to consider his contention that some votes
which were rejected though cast in his favour, had been improperly rejected and some votes
which were accepted in favour of the respondent had been improperly accepted. Basing
himself on this position, Mr. Kapoor further contends that when Section 101 requires that the
Tribunal has to come to the conclusion that in fact the petitioner or such other candidate
received a majority of the valid votes, that can be done only when a recount is made after
eliminating invalid votes, and so, no limitations can be placed upon the scope of the enquiry
contemplated by Section 101(a). Since Section 100(1)(d)(iii) is outside the purview of Section
97, it would make no difference to the scope of the enquiry even if the appellant has not
recriminated as required by Section 97(1).
9. On the other hand, Mr. Garg who has addressed to us a very able argument on behalf of
the respondent, urged that the approach adopted by the appellant in dealing with the problem
posed for our decision in the present appeal is inappropriate. He contends that in construing
Sections 97, 100 and 101, we must bear in mind one important fact that the returned candidate
whose election is challenged can face the challenge under Section 100 only by making pleas
which can be described as pleas affording him a shield of defence, whereas if the election
petition besides challenging the validity of the returned candidate claims that some other
person has been duly elected, the returned candidate is given an opportunity to recriminate
and by way of recrimination he can adopt pleas which can be described as weapons of attack
against the validity of the election of the other person. His argument is that though Section
100(1)(d)(iii) is outside Section 97, it does not mean that in dealing with a claim made by an
election petition challenging the validity of his election, a returned candidate can both defend
the validity of his election and assail the validity of the votes cast in favour of the petitioner or
some other person. It is in the light of these two rival contentions that we must now proceed
to decide 'what the true legal position in the matter is.
10. It would be convenient if we take a simple case of an election petition where the
petitioner makes only one claim and that is, that the election of the returned candidate is void.
This claim can be made under Section 100. Section 100(1)(a),(b) and (c) refer to three distinct
grounds on which the election of the returned candidate can be challenged. We are not
concerned with any of these grounds. In dealing with the challenge to the validity of the
election of the returned candidate under Section 100(1)(d), it would be noticed that what the
election petition has to prove is not only the existence of one or the other of the grounds
specified in clauses (i) to (iv) of Section 100(1)(d), but it has also to establish that as a result
of the existence of the said ground, the result of the election in so far as it concerns a returned
candidate has been materially affected. It is thus obvious that, what the Tribunal has to find is
whether or not the election in so far as it concerns the returned candidate has been materially
affected, and that means that the only point which the Tribunal has to decide is: has the
election of the returned candidate been materially affected? And no other enquiry is legitimate
or permissible in such a case. This requirement of Section 100(1)(d) necessarily imports
limitations on the scope of the enquiry. Confining ourselves to clause (iii) of Section
100(1)(d), what the Tribunal has to consider is whether there has been an improper reception
of votes in favour of the returned candidate. It may also enquire whether there has been a
refusal or rejection of any vote in regard to any other candidate or whether there has been a
 75

reception of any vote which is void and this can only be the reception of a void vote in favour
of the returned candidate. In other words, the scope of the enquiry in a case falling under
Section 100(1)(d)(iii) is to determine whether any votes have been improperly cast in favour
of the returned candidate, or any votes have been improperly refused or rejected in regard to
any other candidate. These are the only two matters which would be relevant in deciding
whether the election of the returned candidate has been materially affected or not. At this
enquiry, the onus is on the petitioner to show that by reason of the infirmities specified in
Section 100(1)(d)(iii), the result of the returned candidate's election has been materially
affected, and that, incidentally, helps to determine the scope of enquiry. Therefore, it seems to
us that in the case of a petition where the only claim made is that the election of the returned
candidate is void, the scope of the enquiry is clearly limited by the requirement of Section
100(1)(d) itself. The enquiry is limited not because the returned candidate has not
recriminated under Section 97(1); in fact, Section 97(1) has no application to the case falling
under Section 100(1)(d)(iii); the scope of the enquiry is limited for the simple reason that,
what the clause requires to be considered is whether the election of the returned candidate has
been materially affected and nothing else. If the result of the enquiry is in favour of the
petitioner who challenges the election of the returned candidate, the Tribunal has to make a
declaration to that effect, and that declaration brings to an end the proceedings in the election
petition.
11. There are, however, cases in which the election petition makes a double claim; it
claims that the election of the returned candidate is void, and also asks for a declaration that
the petitioner himself or some other person has been duly elected. It is in regard to such a
composite case that Section 100 as well as Section 101 would apply, and it is in respect of the
additional claim for a declaration that some other candidate has been duly elected, that
Section 97 comes into play. Section 97(1) thus allows the returned candidate to recriminate
and raise pleas in support of his case that the other person in whose favour a declaration is
claimed by the petition cannot be said to be validly elected, and these would be pleas of attack
and it would be open to the returned candidate to take these pleas, because when he
recriminates, he really becomes a counter-petitioner challenging the validity of the election of
the alternative candidate. The result of Section 97(1) therefore, is that in dealing with a
composite election petition, the Tribunal enquires into not only the case made out by the
petitioner, but also the counter-claim made by the returned candidate. That being the nature of
the proceedings contemplated by Section 97(1), it is not surprising that the returned candidate
is required to make his recrimination and serve notice in that behalf in the manner and within
the time specified by Section 97 (1) proviso and Section 97 (2). If the returned candidate does
not recriminate as required by Section 97, then he cannot make any attack against the
alternative claim made by the petition. In such a case, an enquiry would be held under Section
100 so far as the validity of the returned candidate's election is concerned, and if as a result of
the said enquiry a declaration is made that the election of the returned candidate is void, then
the Tribunal will proceed to deal with the alternative claim, but in doing so, the returned
candidate will not be allowed to lead any evidence because he is precluded from raising any
pleas against the validity of the claim of the alternative candidate.
76

12. It is true that Section 101(a) requires the Tribunal to find that the petitioner, or such
other candidate for the declaration of whose election a prayer is made in the election petition,
has in fact received a majority of the valid votes. It is urged by Mr. Kapoor that the Tribunal
cannot make a finding that the alternative candidate has in fact received a majority of the
valid votes unless all the votes cast at the election are scrutinised and counted. In our opinion,
this contention is not well-founded. We have already noticed that as a result of Rule 57, the
Election Tribunal will have to assume that every ballot paper which had not been rejected
under Rule 56 constituted one valid vote and it is on that basis that the finding will have to be
made under Section 101(a). Section 97(1) undoubtedly gives an opportunity to the returned
candidate to dispute the validity of any of the votes cast in favour of the alternative candidate
or to plead for the validity of any vote cast in his favour which has been rejected; but if by his
failure to make recrimination within time as required by Section 97 the returned candidate is
precluded from raising any such plea at the hearing of the election petition, there would be
nothing wrong if the Tribunal proceeds to deal with the dispute under Section 101(a) on the
basis that the other votes counted by the returning officer were valid votes and that votes in
favour of the returned candidate, if any, which were rejected were invalid. What we have said
about the presumed validity of the votes in dealing with a petition under Section 101 (a) is
equally true in dealing with the matter under Section 100(1)(d)(iii) We are, therefore, satisfied
that even in cases to which Section 97 applies, the enquiry necessary while dealing with the
dispute under Section 101(a) will not be wider if the returned candidate has failed to
recriminate.
13. If the returned candidate has recriminated and has raised pleas in regard to the votes
cast in favour of the alternative candidate or his votes wrongly rejected, then those pleas may
have to be tried after a declaration has been made under Section 100 and the matter proceeds
to be tried under Section 101(a). In other words, the first part of the enquiry in regard to the
validity of the election of the returned candidate must be tried within the narrow limits
prescribed by Section 100(1)(d)(iii) and the latter part of the enquiry which is governed by
Section 101(a) will have to be tried on a broader basis permitting the returned candidate to
lead evidence in support of the pleas which he may have taken by way of recrimination under
Section 97(1). If Mr. Kapoor's construction of Section 100(1)(d)(iii) is accepted, it would
either make Section 97 otiose and ineffective or make the operation of Section 101 read with
Section 97 inconsistent with the operation of Section 100(1)(d)(iii). We are therefore, satisfied
that the High Court was right in coming to the conclusion that the Tribunal was in error in
holding that "it was an authority charged with the duty of investigating the validity of votes
for and against the petitioning and returned candidate or for that matter of any other
contesting candidate."
14. It, however, appears that following its own earlier decision in Inayatullah Khan case
[15 E.L.R. 219] the High Court was disposed to take the view that the enquiry under Section
101(a) was wider and that in making its finding under the said provision, it was open to the
Tribunal to scrutinise the votes and determine whether in fact, the petitioner or some other
person had received a majority of the valid votes. As we have already indicated, this would be
the position only if the returned candidate had recriminated; in the absence of recrimination, it
would not be open to the Election Tribunal to allow the returned candidate to challenge the
 77

validity of votes cast in favour of the petitioner or any other candidate in whose favour a
declaration is claimed by the election petition or to contend that any of his votes were
improperly rejected. We ought to add that the view taken by the Madhya Pradesh High Court
in the case of Inayatullah Khan in regard to the scope of the enquiry under Section 101 (a)
does not correctly represent the true legal position in that behalf. Similarly, the view taken by
the Allahabad Court in Lakshmi Shankar Yadav v. Kunwar Sripal Singh [22 E.L.R. 47]
cannot be said to interpret correctly the scope of the enquiry either under Section 100 or
Section 101. The conclusion which we have reached in the present appeal is substantially in
accord with the observations made by this Court in the case of Bhim Sen though it appears
that the points in question were not elaborately argued before the Court in that case.
15. There is another point to which reference must be made. Mr. Garg contended that even
if the view taken by the Tribunal about the scope of the enquiry under Section 100 (1) (d) (iii)
and Section 101 was right, the relief granted by it was not justified by the pleadings of the
appellant in the present proceeding. In support of this argument, he referred us to paragraph 4
of the special pleas filed by the appellant, and relied on the fact that, at the initial stage of the
hearing- the Tribunal had framed 18 issues including issue no. 16 which consisted of three
parts, viz.,-
(a) Whether any votes cast in favour of respondent no. 1 were wrongly rejected
especially pertaining to polling station mentioned in para 4 of the written statement under
heading special pleas?
(b) Whether many votes were wrongly accepted in favour of the petitioner
appertaining to the polling stations mentioned in para 4 of the special pleas in written
statement?
(c) What is the effect of the above in the case?
Later on, when the respondent contended that in the absence of any recrimination by the
appellant these issues did not arise on the pleadings, they were struck out, and yet in its
judgment the Tribunal has virtually tried these issues and given relief on grounds which were
not included even in his written statement. Since this appeal was admitted mainly on the
ground that the appellant wanted this Court to reconsider the observations made by it in the
case of Bhim Sen, we do not propose to rest our decision on this subsidiary point raised by
Mr. Garg.
16. It now remains to refer to two decisions which were cited before us during the course
of the arguments. In Vashist Narain Sharma v. Dev Chandra [(1955)1 SCR 509] this Court
has held that Section 100(1)(c), as it then stood, places a burden on the objector to
substantiate the objection that the result of the election has been materially affected by the
improper acceptance or rejection of the nomination paper. In that connection, this Court
observed that where the margin of votes is greater than the votes secured by the candidate
whose nomination paper had been improperly accepted, the result is not only materially not
affected but not affected at all; but where it is not possible to anticipate the result, the
petitioner must discharge the burden of proving that fact and on his failure to do so, the
election must be allowed to stand.
78

17. In Hari Vishnu Kamath v. Syed Ahmed Ishaque [AIR 1955 SC 233] adverting to the
expression "the result of the election" in Section 100(1)(c), this Court stated that unless there
is something in the context compelling a different interpretation, the said expression must be
construed in the same sense as in Section 66, and there it clearly means the result on the basis
of the valid votes. Basing himself on this observation, Mr. Kapoor has urged that while the
Tribunal decides the question as to whether the election of the returned candidate has been
materially affected or not, the validity of the votes falls to be considered, and that inevitably
enlarges the scope of the enquiry. We do not think that the observation on which Mr. Kapoor
relies was intended to lay down any such proposition. All that the reference to Section 66
denotes is that after considering the pleas raised, the Tribunal has to decide whether the
election of the returned candidate has been materially affected or not, and that only means that
if any votes are shown to have been improperly accepted, or any votes are shown to have been
improperly refused or rejected, the Tribunal has to make calculations on the basis of its
decisions on those points and nothing more. It is necessary to recall that the votes which have
not been rejected by the returning officer under Rule 56 have to be treated as valid, unless the
contrary is specifically pleaded and proved. Therefore, we do not think that Mr. Kapoor is
justified in contending that the observations in Hari Vishnu Kamath case support his plea
that the enquiry under Section 100(1)(d)(iii) is wide enough to take in the scrutiny of the
validity of all voting papers.
18. In Keshav Laxman Borkar v. Dr. Devrao Laxman Anande [(1960)1 S.C.R. 902] this
Court has pointed out that the expression " valid votes" has nowhere been defined in the Act,
but in the light of the provision of Section 36 (8 ) of the Act read with Rule 58, two things are
clear, first that the candidates are validly nominated candidates whose nomination papers are
accepted by the returning officer after scrutiny, and second that the provision of Section 58
provides that the ballot papers which are not rejected under Rule 57 are deemed to be "valid
ballot papers" and are to be counted as such.
19. It appears that the position under English Law in regard to the recounting of votes in
proceedings under election petitions is substantially similar. As Halsbury points out
(Halsbury's Laws of England, p. 306 paras 553 & 554):
Where a petitioner claims the seat for an unsuccessful candidate, alleging that he
had a majority of lawful votes, either party must, six days before that appointed for
the trial, deliver to the master, and also at the address, if any, given by the other side,
a list of the votes intended to be objected to and of the heads of the objection to each
of those votes.
It further appears that no evidence may be given against the validity of any vote or under any
head not specified in the list, unless by leave of the Court upon such terms as to amendment
of the list, postponement of the enquiry, and payment of costs as may be ordered. Where no
list of the votes, to which it is intended to take objection, has been delivered within the time
specified, the Court has no power to extend the time or to allow evidence of the votes
objected to or of the objections thereto to be given at the trial. Therefore, it seems clear that in
holding an enquiry either under Section 100(1)(d)(iii) or under Section 101, where Section 97
has not been complied with, it is not competent to the Tribunal to order a general recount of
the votes preceded by a scrutiny about their validity.
 79

20. In the result, the appeal fails and is dismissed. We would like to add that though we
have accepted the construction of Section 100(1)(d)(iii) and Section 101 for which Mr. Garg
contended, no relief can be granted to the respondent, because his application for special leave
to appeal against the decision of the High Court has been dismissed since he was unable to
make out a sufficient cause for condoning the delay made by him in preferring the said
application. In the circumstances of this case, we direct that the parties should bear their own
costs. We ought to mention that when this appeal was argued before us on 4th December,
1963, we were told that the fresh election which had been ordered to be held in accordance
with the decision of the High Court was fixed for 6th December, 1963; and so, after the case
was argued, we announced our decision and intimated to the learned Advocates that our
reasons will follow. The present judgment gives the reasons for our decision. Appeal
dismissed.

*****
80

Charan Lal Sahu v. Giani Zail Singh

AIR 1984 SC 309

CHANDRACHUD, C.J.- These three election petitions are filed under section 14 of the
Presidential and Vice-Presidential Elections Act, 1952 to challenge the election of
Respondent 1, Giani Zail Singh, as the President of India. The election to the office of the
President of India was held on July 12, 1982. In all, 36 candidates had filed nomination
papers including Shri Charan Lal Sahu who is the petitioner in election petition no. 2 of 1982
and Shri Nem Chandra Jain who is the petitioner in election petition no.3 of 1982. The
Returning Officer accepted the nomination papers of two candidates only: Gaini Zail Singh
and Shri H.R. Khanna, a retired Judge of this Court. The result of the election was published
in the Extraordinary Gazette of India on July 15, 1982 declaring Giani Zail Singh as the
successful candidate. He took oath of office on July 25, 1982.
2. We will first take up for consideration election petitions 2 and 3 of 1982 which are filed
respectively by Shri Charan Lal Sahu and Shri Nem Chandra Jain both of whom, incidentally,
are advocates.
Election Petitions Nos. 2 & 3 of 1982:
3. In Petition No.2 of 1982, the petitioner asks for the following reliefs:
(1) That the Constitutional Eleventh Amendment Act 1961 be declared ultra-vires
of the Constitution.
(2) That the sections 5B(6) and 5C, 21(3) of the Presidential and Vice-
Presidential Elections Act 1952 (Amended) with Election Rules 1974 be declared,
illegal, void and unconstitutional under Article 58 of the Constitution.
(3) That the post of Prime Minister and other Ministers be declared that they are
in office of profit hence they have played undue influence in the election of the
returned candidate.
(4) That the election of the (Returned Candidate) Respondent No. 1 be declared
void and nomination of respondent no. 2 be declared illegally accepted thus, the
petitioner be declared as elected as President under the Constitution, as stated in the
petition under section 18 of the Act.
(5) That the above system of election of President is bad and unconstitutional.
Therefore, it should be held directly in future by all the electorals and Union of India
be directed to amend Articles 54, 55 and 56 of the Constitution of India.
(6) That sections 4(1), (2), 5, 6, 7 & 11 of the Salaries and Allowances of
Ministers Act 1952 (Act No. 58 of 1952) along with sections 3, 4, 5, 6, 7, 8, and 9 of
the Salaries and Allowances of Members of Parliament Act, 1954 be declared void
and unconstitutional.
4. In Petition no. 3 of 1982, the petitioner prays that the election of Respondent 1 be set
aside on the various grounds mentioned in the petition.
5. Apart from making several vague, loose and offhand allegations, the petitioners allege
that Respondent 1 exercised undue influence over the voters through his confidants. We do
 81

not consider it necessary to reproduce those allegations since we are of the opinion that these
petitions are not maintainable.
6. A preliminary objection is taken to the maintainability of these petitions by Shri Asoke
Sen who appears on behalf of Respondent 1 and by the learned Attorney General. They
contend that neither of the two petitioners was a 'candidate' within the meaning of section
13(1) of the Act and since, under section 14A, an election petition can be filed only by a
person who was a candidate at the election, the petitioners have no standing to file the
petitions and therefore, the petitions must be dismissed as not maintainable.
7. Since the petitioners contested their alleged lack of locus to file the petitions, the
following issue was framed by us as a preliminary issue in each of the two election petitions:
Does the petitioner have no locus standi to maintain the petition on the ground
that he was not a 'candidate' within the meaning of section 13(a) read with section
14A of the Presidential and Vice- Presidential Elections Act, 1952?
8. Section 14 of the Act provides in sub-section (1) that no election shall be called in
question except by presenting an election petition to the authority specified in sub-section (2).
According to sub-section (2), the authority having jurisdiction to try an election petition is the
Supreme Court. By section 14A(1) of the Act, an election petition may be presented on the
grounds specified in section 18(1) and 19 "by any candidate at such election" or, "in the case
of Presidential election, by twenty or more electors joined together as petitioners". Section
13(a) of the Act provides that unless the context otherwise requires, 'candidate' means a
person "who has been or claims to have been duly nominated as a candidate at an election".
9. These provisions show that there are three pre-conditions which govern an election
petition by which a Presidential election is challenged. In the first place, such a petition has to
be filed in the Supreme Court. Secondly, the petition must disclose a challenge to the election
on one or more of the grounds specified in sub- section (1) of section 18 or section 19.
Thirdly, and that is important for our purpose, an election petition can be presented only by a
person who was a candidate at the Presidential election or by twenty or more electors joined
together as petitioners. Since the two election petition which are at present under our
consideration have not been filed by twenty or more electors, the question which arises for
our consideration is whether the two petitioners in the respective election petitions were
'candidates' at the election held to the office of the President of India.
10. The definition of the word 'candidate' in section 13(a) of the Act consists of two parts.
'Candidate' means a person who has either been duly nominated as a candidate at a
presidential election or a person who claims to have been duly nominated. Neither of the two
petitioners was duly nominated. This is incontrovertible. Section 5B(1)(a) of the Act provides
that on or before the date appointed for making nominations, each candidate shall deliver to
the Returning Officer a nomination paper completed in the prescribed form, subscribed by the
candidate as assenting to the nomination, and "in the case of Presidential election, also by at
least ten electors as proposers and at least ten electors as seconders". It is common ground that
the nomination papers filed by the two petitioners were not subscribed by ten electors as
proposers and ten electors as seconders. In fact, it is precisely for that reason that the
nomination papers filed by the two petitioners were rejected by the Returning Officer. Since
82

the nomination papers of the two petitioners were not subscribed as required by section 5B (1)
(a) of the Act, it must follow that they were not duly nominated as candidate at the election.
11. The petitioners, however, contend that even if it is held that they were not duly
nominated as candidates their petitions cannot be dismissed on that ground since they 'claim
to have been duly nominated'. It is true that in the matter of claim to candidacy, a person who
claims to have been duly nominated is on par with a person who, in fact, was duly nominated.
But the claim to have been duly nominated cannot be made by a person whose nomination
paper does not comply with the mandatory requirements of section 5B(1) (a) of the Act. That
is to say a person whose nomination paper, admittedly, was not subscribed by the requisite
number of electors as proposers and seconders cannot claim that he was duly nominated. Such
a claim can only be made by a person who can show that his nomination paper conformed to
the provisions of section 5B and yet it was rejected, that is, wrongly rejected by the Returning
Officer. To illustrate, if the Returning Officer rejects a nomination paper on the ground that
one of the ten subscribers who had proposed the nomination is not an elector, the petitioner
can claim to have been duly nominated if he proves that the said proposer was in fact an
'elector'.
12. Thus, the occasion for a person to make a claim that he was duly nominated can arise
only if his nomination paper complies with the statutory requirements which govern the
filling of nomination papers and not otherwise. The claim that he was 'duly' nominated
necessarily implies and involves the claim that his nomination paper conformed to the
requirements of the statute. Therefore, a contestant whose nomination paper is not subscribed
by at least ten electors as proposers and ten electors as seconders, as required by section 5B(1)
(a) of the Act, cannot claim to have been duly nominated, any more than a contestant who had
not subscribed his assent to his own nomination can. The claim of a contestant that he was
duly nominated must arise out of his compliance with the provisions of the Act. It cannot
arise out of the violation of the Act. Otherwise, a person who had not filed any nomination
paper at all but who had only informed the Returning Officer orally that he desired to contest
the election could also contend that he "claims to have been duly nominated as a candidate".
13. It is not the case of the petitioners that the Returning Officer had wrongly rejected
their nomination papers even though they were subscribed by ten or more electors as
proposers and ten or more electors as seconders. Not only were the nomination papers rightly
rejected on the ground of non-compliance with the mandatory requirement of section 5B(1)
(a) of the Act, but the very case of the petitioners is that their nomination papers could not
have been rejected by the Returning Officer on the ground of non- compliance with the
aforesaid provision. Thus, their claim that they have been duly nominated is not within the
framework of the Act but is de hors the Act. It cannot be entertained.
14. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed [AIR 1975 SC 1288], the
petitioner claimed to have been duly nominated as a candidate though his nomination paper
was rightly rejected on the ground of non-compliance with the provisions of sections 5B and
5C of the Act. It was held by this Court that merely because a candidate is qualified under
Article 58 of the Constitution, it does not follow that he is exempt from compliance with the
requirements of law which the Parliament has enacted under Article 71(3) for regulating the
mode and the manner in which nominations should be filed. Since the petitioner did not
 83

comply with the provisions of the aforesaid two sections, it was held that he could not claim
to have been duly nominated and was therefore not a "candidate". In the result, the election
petition was dismissed by the Court on the ground that the petitioner did not have the locus
standi to maintain it.
15. The challenge of the petitioners to the provision contained in section 5B(1)(a) of the
Act on the ground of its alleged unreasonableness has no substance in it. The validity of that
provision was upheld by this Court in Charan Lal Sahu v. Neelam Sanjeeva Reddy [(1978)3
SCR 1]. Besides, if the petitioners have no locus to file the election petitions, they cannot be
heard on any of their contentions in these petitions.
16. Accordingly, our finding on the preliminary issue is against the petitioners. We hold
that they have no locus standi to file the election petitions since they were neither duly
nominated nor can they claim to have been duly nominated as candidates at the presidential
election. In view of this finding, Election Petition Nos. 2 and 3 of 1982 are dismissed.
17. It is regrettable that election petitions challenging the election to the high office of the
President of India should be filed in a fashion as cavalier as the one which characterises these
two petitions. The petitions have an extempore appearance and not even a second look, leave
alone a second thought, appears to have been given to the manner of drafting these petitions
or to the contentions raised therein. In order to discourage the filing of such petitions, we
would have been justified in passing a heavy order of costs against the two petitioners. But
that is likely to create a needless misconception that this Court, which has been constituted by
the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-
Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of
the functioning of a democracy that election to public offices must be open to the scrutiny of
an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on
their own facts, should not result in nipping in the bud a well-founded claim on a future
occasion. Therefore, we refrain from passing any order of costs and, instead, express our
disapproval of the light-hearted and indifferent manner in which these two petitions are
drafted and filed.
Election Petition No. 4 of 1982
18. This Election Petition is filed by 27 Members of Parliament to challenge the election
of Giani Zail Singh as the President of India. The petitioners belong to four opposition
parties: The Lok Dal, The Democratic Socialist Party of India, the Bharatiya Janata Party and
the Janata Party. These parties had jointly sponsored the candidature of Shri H.R. Khanna, a
former Judge of this Court. Giani Zail Singh was returned as the successful candidate by a
large margin of votes.
19. The petitioners, being Members of Parliament, were electors at the Presidential
election. Their standing to file this petition is unquestioned.
20. One of the principal challenges of the petitioners to the election of Giani Zail Singh is
that he is not a "suitable person" for holding the high office of the President of India. The
petitioners have given their own reasons in support of this contention in paragraphs 5 to 8 of
the petition. No useful purpose will be served by repeating those reasons in this judgment
since, we are of the opinion that the election to the office of the President of India cannot be
84

questioned on the ground that the returned candidate is not a suitable person for holding that
office.
21. The following issue arises on the above contention raised by the petitioners:
Can the election of a candidate to the office of the President of India be challenged on
the ground that he is not a suitable person for holding that office?
22. Section 18 of the Presidential and Vice-Presidential Elections Act, 1952, which
specifies the "grounds for declaring the election of a returned candidate to be void", reads
thus:
18. (1) If the Supreme Court is of the opinion,-
(a) that the offence of bribery or undue influence at the election has been
committed by the returned candidate or by any person with the consent of the
returned candidate; or
(b) that the result of the election has been materially affected-
(i) by the improper reception or refusal of a vote, or
(ii) by any non-compliance with the provisions of the Constitution or
of this Act or of any rules or orders made under this Act; or
(iii) by reason of the fact that the nomination of any candidate (other
than the successful candidate), who has not withdrawn his candidature,
has been wrongly accepted; or
(c) that the nomination of any candidate has been wrongly rejected or the
nomination of the successful candidate has been wrongly accepted;
the Supreme Court shall declare the election of the returned candidate to be void.
(2) For the purposes of this section, the offences of bribery and undue influence
at an election have the same meaning as in Chapter IXA of the Indian Penal Code.
23. Section 19 of the Act, which specifies the "grounds for which a candidate other than
the returned candidate may be declared to have been elected", reads thus:
If any person who has lodged an election petition has, in addition to calling in
question the election of the returned candidate, claimed a declaration that he himself
or any other candidate has been duly elected and the Supreme Court is of opinion that
in fact the petitioner or such other candidate received a majority of the valid votes, the
Supreme Court shall, after declaring the election of the returned candidate to be void,
declare the petitioner or such other candidate, as the case may be, to have been duly
elected.
Provided that the petitioner or such other candidate shall not be declared to be
duly elected if it is proved that the election of such candidate would have been void if
he had been the returned candidate and a petition had been presented calling in
question his election.
24. These being the only provisions of the Act under which the election of a returned
candidate can be declared void, the question as to whether the returned candidate is suitable
for holding the office of the President is irrelevant for the purposes of this election petition.
 85

While dealing with an election petition filed under section 14 of the Act, this Court cannot
inquire into the question whether the returned candidate is suitable for the office to which he
is elected. The rights arising out of elections, including the right to contest or challenge an
election, are not common law rights. They are creatures of the statutes which create, confer or
limit those rights. Therefore, for deciding the question whether an election can be set aside on
any alleged ground, the courts have to consult the provisions of law governing that particular
election. They have to function within the framework of that law and cannot travel beyond it.
Only those persons on whom the right of franchise is conferred by the statute can vote at the
election. In the instant case, that right is conferred on every 'elector' as defined in section 2(d)
of the Act, which provides:
'Elector' in relation to a presidential election, means a member of the electoral
college referred to in Article 54, and in relation to a Vice-Presidential election, means
a member of the electoral college referred to in Article 66.
Only those persons who are qualified to be elected to the particular office can contest the
election. In the instant case, that right is regulated by section 5A of the Act which provides:
Any person may be nominated as a candidate for election to the office of
President or Vice-President if he is qualified to be elected to that office under the
Constitution.
The election can be called into question in the manner prescribed by the statute and not in any
other manner. In the instant case, section 14(1) of the Act provides that no election shall be
called in question except by presenting an election petition to the authority specified in sub-
section (2). By sub-section (2) of section 14, the Supreme Court is constituted the sole
authority for trying an election petition. Finally, an election can be called into question and set
aside on those grounds only which are prescribed by the statute. In the instant case, the
grounds for setting aside the election to the office of the President or the Vice President and
the grounds on which a candidate other than the returned candidate may be declared to have
been elected are laid down in sections 18 and 19 of the Act. The election can neither be
questioned nor set aside on any other ground. Therefore, the challenge to the election of the
returned candidate on the ground of his want of suitability to occupy the office of the
President cannot be entertained and must be rejected out of hand.
25. Apart from the legal position that the rights flowing out of an election are statutory
and not common law rights, it is impossible to conceive that any court of law can arrogate to
itself the power to declare an election void on the ground that the returned candidate is not a
suitable person to hold the office to which he is elected. Suitability of a candidate is for the
electorate to judge and not for the court to decide. The Court cannot substitute its own
assessment of the suitability of a candidate for the verdict returned by the electorate. The
verdict of the electorate is a verdict on the suitability of the candidate. 'Suitability' is a fluid
concept of uncertain import. The ballot-box is, or has to be assumed to be, its sole judge.
Were the Court to exercise the power to set aside an election on the ground that, in its
opinion, the returned candidate is not a suitable person for the office to which he is elected,
the statute will stand radically amended so as to give to the Court a virtual right of veto on the
question of suitability of the rival candidates. And then, an unsuccessful candidate will
86

challenge the election of the successful candidate on the ground that he is more suitable than
the latter. That is an impossible task for the Courts to undertake and indeed, far beyond the
limits of judicial review by the most liberal standard.
26. Accordingly, the challenge to the election of the returned candidate on the ground that
he is not suitable for holding the office of the President of India fails and is rejected. Our
finding on the issue is in the negative.
27. The other grounds on which the petitioners have challenged the election of
Respondent 1 are these:
(1) That Shri M.H. Beg, former Chief Justice of the Supreme Court and now Chairman of
the Minorities Commission, was engaged by Respondent 1 and by the Prime Minister Smt.
Indira Gandhi "for influencing the votes of the minority communities";
(2) that Rao Birendra Singh, a cabinet Minister of the Government of India, who is a
"supporter and a close associate" of Respondent 1, exercised undue influence over the voters
by misusing the Government machinery in that, a statement issued by him asking the voters to
vote for Respondent 1 was published by the Press Information Bureau, Government of India;
(3) that the Prime Minister participated in the election campaign of Respondent I and
misused the Government machinery for that purpose;
(4) that the Prime Minister made a communal appeal to the Akali Dal that its members
should vote for Respondent 1; and
(5) that Government helicopters and cars belonging to the Government were misused for
the purpose of election of Respondent 1. It is alleged by the petitioners that these various acts
were committed by the well-wishers and supporters of Respondent 1 with his connivance.
28. It was contended by Shri Asoke Sen that, even assuming that these allegations are
true, they do not disclose any cause of action for setting aside the election of the Respondent.
In view of these rival contentions, we framed the following issue for consideration:
Whether the averments in the Election Petition, assuming them to be true and correct,
disclose any cause of action for setting aside the election of the returned candidate
(Respondent 1) on the ground stated in section 18(1) (a) of the Presidential and Vice-
Presidential Elections Act, 1952?
29. Section 18(1) (a) of the Act which we have already set out, provides that the
Supreme Court shall declare the election of the returned candidate to be void if it is of
opinion-
That the offence of bribery and undue influence at the election has been
committed by the returned candidate or by any person with the consent of the
returned candidate.(emphasis supplied)
We may keep aside the question of bribery since there is no allegation in that behalf. Nor is it
alleged that the offence of undue influence was committed by the returned candidate himself.
The allegation of the petitioners is that the offence of undue influence was committed by
certain supporters and close associates of Respondent 1 with his connivance. It is patent that
this allegation, even if it is true, is not enough to fulfil the requirements of section 18(1) (a).
 87

What that section, to the extent relevant, requires is that the offence of undue influence must
be committed by some other person with the "consent" of the returned candidate. There in no
plea whatsoever in the petition that undue influence was exercised by those other persons with
the consent of Respondent 1.
30. It is contended by Shri Shujatullah Khan who appears on behalf of the petitioners, that
connivance and consent are one and the same thing and that there is no legal distinction
between the two concepts. In support of this contention, learned counsel relies upon the
meaning of the word 'connivance' as given in Webster's Dictionary (Third Edition, Volume
1, p. 481); Random House Dictionary (p.311); Black's Law Dictionary (p. 274); Words and
Phrases (Permanent Edition, Volume 8A, p. 173); and Corpus Juris Secundum (Volume
15A, p. 567). The reliance on these dictionaries and texts cannot carry the point at issue any
further. The relevant question for consideration for the decision of the issue is whether there is
any pleading in the petition to the effect that the offence of undue influence was committed
with the consent of the returned candidate. Admittedly, there is no pleading of consent. It is
then no answer to say that the petitioners have pleaded connivance and, according to
dictionaries, connivance means consent. The plea of consent is one thing: the fact that
connivance means consent (assuming that it does) is quite another. It is not open to a
petitioner in an election petition to plead in terms of synonyms. In these petitions, pleadings
have to be precise, specific and unambiguous so as to put the respondent on notice. The rule
of pleadings that facts constituting the cause of action must be specifically pleaded is as
fundamental as it is elementary. 'Connivance' may in certain situations amount to consent,
which explains why the dictionaries give 'consent' as one of the meanings of the word
'connivance'. But it is not true to say that 'connivance' invariably and necessarily means or
amounts to consent, that is to say, irrespective of the context of the given situation. The two
cannot, therefore, be equated. Consent implies that parties are ad idem. Connivance does not
necessarily imply that parties are of one mind. They may or may not be, depending upon the
facts of the situation. That is why, in the absence of a pleading that the offence of undue
influence was committed with the consent of the returned candidate, one of the main
ingredients of section 18(1) (a) remains unsatisfied.
31. The importance of a specific pleading in these matters can be appreciated only if it is
realised that the absence of a specific plea puts the respondent at a great disadvantage. He
must know what case he has to meet. He cannot be kept guessing whether the petitioner
means what he says- 'connivance' here, or whether the petitioner has used expression as
meaning 'consent'. It is remarkable that, in their petition, the petitioners have furnished no
particulars of the alleged consent, if what is meant by the use of the word connivance is
consent. They cannot be allowed to keep their options open until the trial and adduce such
evidence of consent as seems convenient and comes handy. That is the importance of
precision in pleadings, particularly in election petitions. Accordingly, it is impermissible to
substitute the word 'consent' for the word 'connivance' which occurs in the pleadings of the
petitioners.
32. The legislative history of the statute lends support to our view that for the purposes of
section 18(1) (a), connivance is not the same thing as consent. Originally, when the Act was
passed in 1952, section 18(1)(a) provided that the Supreme Court shall declare the election of
88

the returned candidate void if it is of the opinion that the offence of bribery or undue
influence has been committed by the returned candidate or by any person 'with the
connivance' of the returned candidate. This sub-section was amended by section 7 of the
Presidential and Vice-Presidential Elections (Amendment) Act of 1974, which came into
force on March 23, 1974. The word 'connivance' was substituted by the word 'consent' by the
Amendment Act. If connivance carried the same meaning as consent and if one was the same
as the other. Parliament would not have taken the deliberate step of deleting the word
'connivance' and substituting it by the word 'consent'. The amendment made by the
Amendment Act of 1947 shows that connivance and consent connote distinct concepts for the
purpose of section 18(1) (a) of the Act.
33. Since, admittedly, there is no pleading in the Election Petition that the offence of
undue influence was committed with the consent of the returned candidate, the petition must
be held to disclose no cause of action for setting aside the election of the returned candidate
under section 18(1) (a) of the Act.
34. Apart from this, Shri Asoke Sen is right that granting everything in favour of the
petitioners and assuming that all that they have alleged is true and correct, no case is made out
for setting aside the election of the returned candidate under section 18(1) (a) of the Act. We
will first take up the allegation of the petitioners that Shri M.H. Beg, Chairman of the
Minorities Commission, canvassed support for Respondent 1. The question which we have to
consider is whether, in doing so, Shri Beg is guilty of the offence of undue influence. Section
18(2) of the Act provides that for purposes of section 18, the offences of bribery and undue
influence at an election have the same meaning as in Chapter IXA of the Penal Code. That
Chapter which was introduced into the Penal Code by Act 39 of 1920, deals with "Offences
relating to Elections". Sections 171B and 171C of the Penal Code define the offences of
bribery and undue influence respectively. Section 171C reads thus:
171C. Undue influence at elections: (1) Whoever voluntarily interferes or
attempts to interfere with the free exercise of any electoral right commits the offence
of undue influence at an election.
(2) Without prejudice to the generality of the provisions of sub-section (1),
whoever- (a) threatens any candidate or voter, or any person in whom a candidate or
voter is interested, with injury of any kind, or (b) induces or attempts to induce a
candidate or voter to believe that he or any person in whom he is interested will
become or will be rendered an object of Divine displeasure or of spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right of such
candidate or voter, within the meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action or the mere
exercise of a legal right without intent to interfere with an electoral right, shall not be
deemed to be interference within the meaning of this section.
35. The gravamen of this section is that there must be interference or attempted
interference with the 'free exercise' of any electoral right. 'Electoral right' is defined by section
171A(b) to mean the right of a person to stand, or not to stand as, or to withdraw from being,
a candidate or to vote or refrain from voting at an election. In so far as is relevant for our
purpose, the election petition must show that Shri Beg interfered with the free exercise of the
 89

voters' right to vote at the Presidential election. The petition does not allege or show that Shri
Beg interfered in any manner with the free exercise of the right of the voters to vote according
to their choice or conscience. The petition alleges that Shri Beg commented severely upon the
suitability of the rival candidate Shri H.R. Khanna by pointing out the so-called infirmities in
his judgment in the Fundamental Rights case. On the supposition that Judges constitute
brotherhood and are bound by ties of institutional loyalty, one may not approve of the tone
and temper of the personal attack made by Shri Beg on Shri H.R.Khanna. But that is beside
the point. We are neither concerned with the propriety of the statement made by Shri Beg nor
with the question as to who out of the two candidates, is more suitable to be the President of
India. The point of the matter is that by conveying to the voters that Respondent 1 was a much
safer candidate than Shri Khanna and that Shri Khanna would not be a suitable candidate to
hold the office of the President of India by reason of a judgment of his, Shri Beg could not be
said to have interfered with the free exercise of the right of the voters to vote at the election. If
the mere act of canvassing in favour of one candidate as against another were to amount to
undue influence, the very process of a democratic election shall have been stifled because, the
right to canvass support for a candidate is as much important as the right to vote for a
candidate of one's choice. Therefore, in order that the offence of undue influence can be said
to have been made out within the meaning of section 171C of the Penal Code, something
more than the mere act of canvassing for a candidate must be shown to have been done by the
offender. That something more may, for example, be in the nature of a threat of an injury to a
candidate or a voter as stated in sub-section 2(a) of section 171C of the Penal Code or, it may
consist of inducing a belief of divine displeasure in the mind of a candidate or a voter as
stated in sub-section 2(b). The act alleged as constituting undue influence must be in the
nature of a pressure or tyranny on the mind of the candidate or the voter. It is not possible to
enumerate exhaustively the diverse categories of acts which fall within the definition of undue
influence. It is enough for our purpose to say, that of one thing there can be no doubt: The
mere act of canvassing for a candidate cannot amount to undue influence within the meaning
of section 171C of the Penal Code.
36. In Baburao Patel v. Dr. Zakir Husain [AIR 1968 SC 904], this Court while
emphasising the distinction between mere canvassing and the exercise of undue influence,
observed:
It is difficult to lay down in general terms where mere canvassing ends and
interference or attempt at interference with the free exercise of any electoral right
begins. That is a matter to be determined in each case; but there can be no doubt that,
if what is done is merely canvassing, it would not be undue influence. As sub-section
(3) of section 171C shows, the mere exercise of a legal right without intent to
interfere with an electoral right would not be undue influence.
37. In Shiv Kripal Singh v. Shri V.V. Giri [AIR 1970 SC 2097 ], the Court observed that
“if any acts are done which merely influence the voter in making his choice between one
candidate or another, they will not amount to interference with the free exercise of the
electoral right”, that the expression ‘free exercise’ of the electoral right must be read in the
context of an election in a democratic society and, therefore, candidates and their supporters
must be allowed to canvass support by all legal and legitimate means. Accordingly, the
90

offence of undue influence can be said to have been committed only if the voter is put under a
threat or fear of some adverse consequence, or if he is induced to believe that he will become
an object of divine displeasure or spiritual censure if he casts or does not cast a vote in
accordance with his decision:
But, in cases where the only act done is for the purpose of convincing the voter that a
particular candidate is not the proper candidate to whom the vote should be given, that act
cannot be held to be one which interferes with the free exercise of the electoral right.
38. Ram Dial v. Sant Lal [AIR 1959 SC 855] was a case of undue influence under
proviso(a)(ii) to section 123(2) of the Representation of the People Act, 1951 The appellant
therein had circulated a poster under the authority of the supreme religious leader of the
Namdhari Sikhs in a constituency where a large number of voters were Namdhari Sikhs. This
Court observed that there cannot be the least doubt that even a religious leader has the right to
freely express his opinion on the comparative merits of the contesting candidates and to
canvass for such of them as he considers worthy of the confidence of the electors. Such a
course of conduct on his part will only be a use of his great influence amongst a particular
section of the voters in the constituency and that, it will amount to an abuse of his great
influence only if the words which he utters leave no choice to the persons addressed by him in
the exercise of their electoral rights. On the facts of the case it was held that the religious
leader, by his exhortations and warnings to the Namdhari electors, that disobedience of his
mandate will carry divine displeasure and spiritual censure left no choice to them to exercise
their right of voting freely.
39. Thus, the allegation of the petitioners that Shri Beg asked the voters to cast their votes
in favour of Respondent 1 and not to cast them for Shri H.R. Khanna on the ground that the
latter was not a safe or suitable candidate as compared with Respondent 1, does not make out
the offence of undue influence as defined in Section 171C of the Penal Code. It must follow
that the election petition does not disclose any cause of action for setting aside the election of
Respondent 1 on the ground of undue influence as specified in section 18(1) (a) of the Act.
40. The remaining grounds alleged by the petitioners for invalidating the election of
Respondent 1 are misconceived. The use of Government machinery, abuse of official position
and appeal to communal sentiments so long as such appeal does not amount to undue
influence, are not considered by the Legislature to be circumstances which would invalidate a
Presidential or a Vice-Presidential election. Assuming, therefore, that any such acts were
done, they cannot be relied upon for declaring the election of Respondent 1 void. As we have
said already, the laws of election are self-contained codes and the rights arising out of
elections are the off-springs of those laws. We cannot engraft the provisions of the
Representation of the People Act, 1951 upon the statute under consideration and thereby
enlarge the scope of an election petition filed to challenge a Presidential or Vice-Presidential
election. Such an election can be set aside on the grounds specified in section 18(1) of the Act
only. Since the other allegations made by the petitioners do not fall within the scope of that
provision, they have to be rejected.
41. For these reasons, our finding on the issue under consideration is that the averments in
the election petition, assuming them to be true and correct, do not disclose any cause of action
 91

for setting aside the election of the returned candidate on the grounds stated in section
18(1)(a) of the Act.
42. It was contended on behalf of the petitioners that the Act would be unconstitutional if
it is interpreted as limiting the challenge to the Presidential or Vice- Presidential election to
the grounds set forth in section 18(1). In support of this argument reliance is placed by
learned counsel for the petitioners on the provisions contained in Article 71(1) of the
Constitution which says:
All doubts and disputes arising out of or in connection with the election of a
President or Vice-President shall be inquired into and decided by the Supreme Court
whose decision shall be final.
It is urged that the Constitution has conferred upon the Supreme Court the power to inquire
into and decide upon every kind of doubt or dispute arising out of or in connection with a
Presidential election and since, section 18(1) restricts that power to the grounds stated therein,
it is ultra vires Article 71(1). This argument overlooks that clause (3) of Article 71 confers
power upon the Parliament, subject to the provisions of the Constitution, to make a law for
regulating matters relating to or connected with the election of the President or the Vice-
President. While enacting a law in pursuance of the power conferred by Article 71(3), the
Parliament is entitled to specify the particular kind of doubts or disputes which shall be
inquired into and decided by the Supreme Court. If the petitioners were right in their
contention, every kind of fanciful doubt or frivolous dispute under the sun will have to be
inquired into by this Court and election petitions will become a fertile ground for fighting
political battles.
43. That leaves for consideration one other contention. Article 58(1) of the Constitution
provides that no person shall be eligible for election as President unless he (a) is a citizen of
India, (b) has completed the age of thirty-five years, and (c) is qualified for election as a
member of the House of the People. Article 84(a) provides that a person shall not be qualified
to be chosen to fill a seat in Parliament unless, inter alia he makes and subscribes an oath or
affirmation set out for the purpose in the Third Schedule. The argument of the petitioners is
that a candidate contesting a Presidential election must take the oath as prescribed by Article
84(a) and since Respondent 1 had not taken such oath, his election is unconstitutional. This
argument is untenable. Article 58 which prescribes "Qualifications for Elections as
President", provides three conditions of eligibility for contesting the Presidential election. One
of these conditions is that the candidate must be qualified for election as a member of the
House of the People. Article 84 speaks of "qualifications for membership of Parliament". No
person can fill a seat in the Parliament unless, inter alia, he subscribes to the oath or
affirmation according to the form set out in the Third Schedule. The form prescribed by the
Third Schedule shows that it is restricted to candidates who desire to contest the election to
the Parliament. In the very nature of things, a candidate who wants to contest the election for
the office of the President cannot take the oath in any of the forms prescribed by the Third
Schedule. That Schedule does not prescribe any form of oath for a person who desires to
contest a Presidential election.
44. In the result, Election Petition No. 4 of 1982 is also dismissed.
92

Special Reference No. 1 of 1974

AIR 1974 SC 1682

RAY, C.J.-This reference has been made by the President under Article 143(1) of the
Constitution of India for the opinion of this Court on certain questions of constitutional
importance bearing upon the election to fill the vacancy on the expiry of the term of office of
the President on 24th August, 1974.
2. The reference turns on the principal question as to whether the election to fill the
vacancy caused on the expiry of the term of office of the President must be completed before
the expiry of the term of office notwithstanding the fact that the Legislative Assembly of the
State of Gujarat is dissolved.
3. Article 52 states that there shall be a President of India. Article 56(1) states that the
President shall hold office for a term of five years from the date on which he enters upon his
office. Article 60 states that every President before entering upon his office shall make and
subscribe an oath or affirmation as mentioned therein. Article 63(1) states that an election to
fill a vacancy caused by the expiration of the term of the office of President shall be
completed before the expiration of the term. Article 56(1) (c) states that the President shall,
notwithstanding, the expiration of his term, continue to hold office until his successor enters
upon his office.
4. The fixed term of office mentioned in Article 56(1) as well as the mandate in Article
62(1) that the election to fill a vacancy caused by the expiration of the term of office shall be
completed before the expiration of the term reflects the dominant constitutional purpose and
intent regarding the time when the election of the President is to be held. Further, the
provision in Article 62(2) that an election to fill a vacancy in the office of the President by
reason of his death, resignation or removal or otherwise be held as soon as possible after and
in no case later than six months from the date of the occurrence of the vacancy, shows that the
time to hold an election to fill a vacancy is also mandatory in character.
5. The completion of election before the expiration of the term in the case of vacancy
caused by the expiry of the term as well as filling the vacancy by holding an election not later
than six months from the date of the occurrence of the vacancy in the other case does not
contain any provision for extension of time. By way of contrast reference may be made to
Article 83 where it is said that though the expiration of the period of five years shall operate
as a dissolution of the house, the period may, while a proclamation of emergency is in
operation, be extended by Parliament by law for a period not exceeding one year at a time and
not extending in any case beyond a period of six months after the proclamation has ceased to
operate.
6. The interveners suggested that the word "otherwise" occurring in Article 62(2) of the
Constitution contemplates a case of filling a vacancy occurring by the expiration of the term
but where such vacancy cannot be filled up by completing the election before the expiration
of the term by reason of dissolution of the Assembly. The interveners submitted that a
vacancy could in such a case be filled up not later than six months from the date of the
occurrence of the vacancy. The submission of the interveners is unsound. The word
 93

"otherwise" does not refer to a vacancy caused by the expiration of the term of office for the
obvious reason that the same is the subject matter of Article 62(1). The marginal note to
Article 62 fully bears this out. Further, a President whose term has expired can continue to
hold the office only under Article 56(1) (c) until his successor enters upon his office. Article
56(1) (c) is complementary to Article 62(1). Here successor means a successor elected before
or even after the expiration of the term stated in Article 62(1) and as fully explained later on.
7. The word "otherwise" may take in cases where, for example, a President becomes
disqualified to hold the office or where his election is declared void, and, therefore, he cannot
hold the office. In such cases, an election is to be held not later than six months from the date
of the occurrence of the vacancy.
8. Article 65(1) provides that where the office of the President by reason of his death,
resignation or removal or otherwise becomes vacant, the Vice-President shall act as President
until the date on which a new President elected to fill vacancy enters upon his office. Article
56(1) is complementary to Article 62(2). An election to fill a vacancy in the office of the
President for the reasons mentioned in Article 62(2) obviously does not attract Article 56(1)
(c). This is another reason which establishes that the word "otherwise" used in relation to
vacancy in the office of the President under Article 62(2) cannot cover the case of a vacancy
in the office of the President by the expiration of the term. Vacancy under Article 62(2) does
not enable the President to continue in office.
9. The interveners suggested that section 7 of the Presidential and Vice-Presidential
Elections Act, 1952 (hereinafter referred to as the 1952 Act) shows that an election to fill the
vacancy in the office of the President may not be completed before the expiration of the term.
The interveners, therefore, submitted that it could not be held that the completion of election
before the expiration of the term was a mandatory provision.
10. Section 7 of the 1952 Act states that if a candidate whose nomination has been made
and is found to be in order on scrutiny, dies after the time fixed for nomination and a report of
his death is received by the Returning Officer before the commencement of the poll, the
Returning Officer shall, upon being satisfied of the fact of the death of the candidate,
countermand the poll and report the fact to the Election Commission, and all proceedings with
reference to the election shall be commenced anew in all respects as if for a new election.
11. These provisions in section 7 of the 1952 Act are to be considered along with section
4 of the 1952 Act. Section 4(3) of the 1952 Act states that in the case of an election to fill a
vacancy caused by the expiration of the term of office of the President or Vice-President, the
notification under sub- section (1) shall be issued on, or as soon as conveniently may be, after
the sixtieth day before the expiration of the term of office of the outgoing President or Vice-
President, as the case may be, and the dates shall be so appointed under the said sub-section
that the. election will be completed at such time as will enable the President or the Vice-
President thereby elected to enter upon his office on the day following the expiration of the
term of office of the outgoing President or Vice-President, as the case may be.
12. The 1952 Act indicates that the provisions contemplate the completion of the election
before the expiration of the term. Section 7 of the 1952 Act speaks of the contingency of
death. Inspite of the countermanding of the election in the case of death of a person whose
94

nomination has been found in order it is provided that any other candidate whose nomination
was valid at the time of the countermanding of the poll will not be required to present a fresh
nomination. Again, it is provided that no person who has withdrawn his candidature before
the countermanding of the poll shall be ineligible for being nominated as a candidate for the
election. Therefore, it is the same process of Presidential election which, was commenced
under the Act for completion before the expiration of the term. It is true that fresh
nominations can be presented by persons other than those whose nominations have been
found to be in order. That is only because people are given the choice for presenting fresh
nomination papers for candidates of choice because of the new and unanticipated events. It is
not entirely a fresh election. It is in some respects a new election. It is in other respects a
continuation of the election which commenced but could not be completed because of death.
13. In determining the question whether a provision is mandatory or directory, the subject
matter, the importance of the provision, the relation of that provision to tile general object
intended to be secured by the Act will decide whether the provision is directory or mandatory.
It is the duty of the courts to get at the real intention of the legislature by carefully attending
the whole scope of the provision to be construed. The key to the opening of every law, is the
reason and spirit of the law, it is the animus impotentia, the intention of the law maker
expressed in the law itself, taken as a whole.
14. If the completion of election before the expiration of the term is not possible because
of the death of the prospective candidate it is apparent that the election has commenced before
the expiration of the term but completion before the expiration of the term is rendered
impossible by an act beyond the control of human agency. The necessity for completing the
election before the expiration of the term is enjoined by the Constitution in public and state
interest to see that the governance of' the country is not paralysed by non-compliance with the
provision that there shall be a President of India.
15. The impossibility of the completion of the election to fill the vacancy in the office of
the President before the expiration of the term of office in the case of death of a candidate as
may appear from section 7 of' the 1952 Act does not rob Article 62(1) of its mandatory
character. The maxim of law impotentia excusat legem is intimately connected with another
maxim of law lex non cogit ad impossibilia. Impotentia excusat legem is that when there is a
necessary or invincible disability to perform the mandatory part of the law that impotentia
excuses. The law does not compel one to do that which one cannot possibly perform. "Where
the law creates a duty or charge, and the party is disabled to perform it, without any default in
him, and has no remedy over it, there the law will in general excuse him." Therefore, when it
appears that the performance of the formalities prescribed by a statute, has been rendered
impossible by circumstances over which the persons interested had no control, like the act of
God, the circumstances will be taken as a valid excuse. Where the act of God prevents the
compliance of the words of a statute, the statutory provision is not denuded of its mandatory
character because of supervening impossibility caused by the act of God.
16. The effect of Article 62(1) was considered by this Court in Narayan Bhasker Khare
v. The Election Commission of India [(1957) SCR 1081]. Das, C.J. spoke, for the
Constitution Bench of seven learned Judges. The petitioner there made an application under
Article 71(1) of the Constitution invoking the jurisdiction of this Court to inquire into and
 95

decide what had been described as a grave doubt in connection with the election of the
President and to direct the Election Commission not to proceed with the polling which had
been fixed for 6 May, 1957 but to hold the same after completing the elections to the Lok
Sabha and the Legislatures in all the States of the Indian Union including the Union territory.
One of the contentions in that case was that one of the petitioners was a prospective candidate
for election to the Lok Sabha from one of the Punjab constituencies where election was yet to
be held and he would be prevented from exercising his right to vote for the election of the
President. This Court held that Article 62 of the Constitution required that the election of the
President must be completed within the time fixed by it and this provision is conceived in the
interest of the people in general and is mandatory in character. The interveners submitted that
the observation of this Court in the Khare case about the peremptory requirement to fill the
vacancy caused by the expiration of the term of office was obiter. That is not so. Das, C. J.
speaking of Article 62 said "it is necessary to bear in mind this clear mandatory provision of
the Constitution". That is the true position.
17. There, is another important observation in the Khare case. It was contended there that
the electoral college mentioned in Article 54 must be constituted after elections in all States
and Union Territories are completed and should consist of all the elected members falling
within both the categories because the Presidential election could not be held until the
vacancies were filled up. Elections did not take place in Himachal Pradesh. Elections in two
constituencies of the State of Punjab also did not take place. It was held that the election
process could not be held up till after the expiry of the five years term because it would
involve non-compliance with the mandatory provisions of Article 62. Das, C. J. referred to the
electoral college and said that if there are vacancies in Parliament or in the Legislature of one
or more States, the election of the President required by Article 62(1) to be held before the
expiry of the term of the outgoing President cannot be held up until the vacancies were filled
up. This Court found that not holding the election in Himachal Pradesh could not hold up the
election of the President.
18. The term of office of the President is fixed. The election to fill the vacancy caused by
the expiration of the term is to be completed before the expiration of the term. It is in that
context that the outgoing President notwithstanding the expiration of the term continues to
hold office under Article 56(1) until his successor enters upon office. The successor can only
enter upon his office after he takes the oath under Article 60. He can take oath only after the
election. It is possible that the, successor cannot enter upon his office on the day following the
expiration of the term of office of the outgoing President for unavoidable reasons. That is why
Articles 56(1), 56(1) (c) and 62(1) are to be read together to give effect to the constitutional
intent and content that the election to the vacancy caused by the expiration of the term of the
President is to be completed before the expiration of the term.
19. The interveners submitted that the true character of Article 62 depended on Articles 54
and 55 of the Constitution. Article 54 states that the President shall be elected by the members
of an electoral college consisting of (a) the elected members of both Houses of Parliament;
and (b) the elected members of the Legislative Assemblies of the states. The Constitution-
makers may well have visualised that all legislative bodies should be in existence at the time
of the Presidential election and all elected members of such bodies should participate in that
96

election. But that is only an ideal. The realisation of this ideal is not practicable, because of
the likely vacancies in the legislative bodies due to death, disqualification, resignation and the
like.
20. Article 55(1) states that as far as practicable, there shall be uniformity in the scale of
representation of the different states at the election of the President. Article 55(2) states that
for the purpose of securing such uniformity among the states inter se as well as parity
between the states as a whole and the union, the number of votes which each elected member
of Parliament and of the Legislative Assembly of each state is entitled to cast at such election
shall be determined in a manner set out in the sub-article.
21. The interveners submitted that the units of the electoral college were Houses of
Parliament and the Legislative Assemblies of states. The Jan Sangh submitted that the
democratic character of the Constitution demanded that there should be elected members of
Legislative Assemblies of States to be entitled to cast votes at such election. It was said that if
states were denied such right, they would be denied representation. It was also said that if
states were denied the right to cast votes at the election, the parity between the states and the
union would be disturbed.
22. The members of electoral college mentioned in Article 54 are not both Houses of
Parliament and the Legislative Assemblies of the states. The essence as well as scope of
Article 54 is merely to prescribe qualifications required for electors to elect President. The
elected members of both Houses of Parliament and the Legislative Assemblies of states are
the only members of the electoral college.
23. The essence of Article 55 merely lies in the application of formulae each elector
having the required qualifications under Article 54 shall be entitled to exercise the number of
votes in accordance with Article 55. Neither Article 54 nor Article 55 has anything to do
either with the time of the election to fill the vacancy before the expiration of the term or to
prevent the holding of the election before the expiration of the term by reason of dissolution
of Legislative Assembly of a state.
24. The electoral college as mentioned in Article 54 is independent of the legislatures
mentioned in Article 54. None of the legislatures mentioned in Article 54 has, for the purpose
of that Article, any separate identity vis-a-vis the electoral college. The electoral college
compendiously indicates a number of persons, holding the qualifications specified in the
Article to constitute the electorate for the election of the President and to act as independent
electors.
25. Neither Article 54 nor Article 55 prescribes the circumstances in which or the time
when the election of the President shall take place. Article 55 has no concern with the
competence of the election of the President because of dissolution of the Legislative
Assembly of a state. Article 55(2) deals with the formulae for securing uniformity among the
states inter se and parity between states as a whole and the union. It is important to notice that
parity is not between each state separately as a unit on the one hand and the union on the other
but between the states as a whole and the union.
26. Article 55(1) states that as far as practicable, there shall be uniformity in the scale of
representation. It is indisputable that the uniformity among the states inter se and parity
between the states as a whole and the union which are contemplated in Article 55(2) are not
 97

the same thing as uniformity in the scale of representation of the different states contemplated
in Article 55(1). The words 'as far as practicable' in Article 55(1) in relation to uniformity in
the scale of representation of the states are important. Article 55(1) shows that the words 'as
far as practicable' indicate that in practice the scale of representation may not be uniform
because of the actual number of electors entitled at the date of election to cast their votes. The
actual number of electors at the date of the election of the President may not be equal to the
total number of all the elected members of both Houses of Parliament and all Legislative
Assemblies of all states.
27. Article 55 indicates the method of calculating as to how many votes an elected
member of the electoral college can cast at the Presidential election. Article 55 has nothing to
do with any vacancy in the electoral college as mentioned in Article 71 (4), or a censer of
membership of the electoral college, by reason of a member not fulfilling the character of
elected member of both Houses of Parliament or of Legislative Assemblies of states.
28. The words “an electoral college consisting of” in Article 54 mean that the electoral
college shall consist of persons mentioned therein. The words 'consisting of' refer to the
strength of the electoral college. The Houses of Parliament and the Legislative Assemblies are
mentioned in Article 54 only for the purpose of showing the qualifications of electoral
college. The dissolution of the Assembly means that there are no elected members of that
dissolved Assembly. The electoral college is always ready to meet the situation at the expiry
of the term of office or any vacancy caused by death, resignation or removal or otherwise.
The elected members of a dissolved Legislative Assembly of a state are no longer members of
the electoral college consisting of the elected members of both Houses of Parliament and
elected members of the Legislative Assemblies of the states and are, therefore, not entitled to
cast votes at the Presidential election.
29. It was said by the interveners that Article 54 reflects the democratic pattern of
participation by the states in the choice of the President and if a state were denied such a right,
it would be undemocratic. Recourse was taken to Article 368 to show that Articles 54 and 55
were mentioned in the proviso to Article 368 and if any amendment of Article 54 and 55 was
required, consent of the states was necessary. It was, therefore, said by the interveners that
Articles 54 and 55 read with Article 368 would be a key to the interpretation of Article 62 that
no election of the President could be held without the representation of elected members of
Legislative Assemblies of the State where the Assembly has been dissolved. These
submissions on behalf of the interveners are without substance.
30. Article 54 lays down the qualifications for membership of the electoral college. The
Gujarat State Assembly has been dissolved under Article 174. As a result of the dissolution,
there are no elected members of the Legislative Assembly in a state. The electoral college
consists of elected members of State Assemblies. If the Legislative Assembly of a state is
dissolved, the members of that dissolved Legislative Assembly do not fulfil the character of
elected members of a state assembly. It will not only be undemocratic but also
unconstitutional to deny the elected members of both the Houses of Parliament as well as the
elected members of the Legislative Assemblies of the states the right to elect the President in
accordance with the provisions of the Constitution only because the Assembly of a State is
dissolved. The true meaning of Article 54 is that such persons as possess the qualification of
98

being elected members of both Houses of Parliament and of Legislative Assemblies of states
at the crucial time of the date of election will be eligible members of the electoral college
entitled to cast vote at the election to fill the vacancy caused by the expiration of the term of
office of the President.
31. The submissions of the interveners that Article 62 will be construed in the light of
Articles 54, 55 and 368 are unsound. It has always to be remembered that Constitution is "the
revelation of great purposes" which were intended to be achieved by the Constitution as a
continuing instrument of Government. In Warburton v. Loveland [(1832) 2D & Cl. 480] it
has been said that 'no rule of construction can require that when the words of one part of a
statute convey a clear meaning, it shall be necessary to introduce another part of a statute for
the purpose of controlling or diminishing the efficacy of the first part". Article 62 is the
constitutional date and other provisions like Articles 54, 55 subserve Article 62. The
Legislative Assemblies of the States are not members of the electoral college. None of the
Articles 368, 54, 55 can rob Article 62 of its constitutional content. Article 62 stands by itself
independent of any other provision.
32. It is appropriate at this stage to refer to provisions contained in Article 71(4) of the
Constitution. Article 71(4) was introduced by Constitution (Eleventh Amendment) Act, 1961.
The provision in Article 71(4) is that the election of a person as President or Vice-President
shall not be called in question on the ground of the existence of any vacancy for whatever
reason among the members of the electoral college electing him. Article 71(4) was introduced
after the decision of this Court in the Khare case. Das, C.J. said in the Khare case that though
there are vacancies in the Parliament or the State Legislative Assemblies by reason of
elections not having been held in Himachal Pradesh and two Constituencies in the State of
Punjab, the holding of Presidential Election cannot be postponed. This Court in the Khare
case stated that doubts or disputes of that nature could be canvassed only after the conclusion
of the entire election. No opinion was expressed in the Khare case as to whether a vacancy of
the type in that case in the Electoral College could be a ground for calling in question the
election of the President. To remove all doubts, Article 71 (4) was introduced.
33. If as a result of dissolution of a Legislative Assembly of a state, there are no elected
members of the Legislative Assembly of a state, a state will not have any elected members of
a state Legislative Assembly to qualify for the electoral college. It may be said on the analogy
of the observations in the Khare case that there are vacancies in the electoral college by
reason of the fact that there are no elected members of the Legislative Assembly of a state
where the Legislative Assembly is dissolved. That matter will not be a ground either for
preventing the holding of the election on the expiry of the term of the President or suggesting
that the election to fill the vacancy caused by the expiry of the term of the office of the
President could be held only after the election to the Legislative Assembly of a state where
the Legislative Assembly is dissolved is held.
34. Under Article 54, only elected numbers of both Houses of Parliament and the
Legislative Assemblies of the states are members of the electoral college. The numerical
strength of the electoral college will be the total number of elected members of both Houses
of Parliament and the Legislative Assemblies of the states. At any particular time there may
not be the full strength of the electoral college. At the relevant date of the Presidential election
 99

if a person who was prior to that relevant date an elected member of the Houses of Parliament
or of the Legislative Assemblies of the states and ceased to become an elected member of any
of the legislative bodies by reason of death or resignation or disqualification or dissolution of
the legislative body such a person would not possess the qualification to be an elector. Article
71(4) was really introduced after the Khare case to shut out any challenge to the election on
the ground that there was any vacancy among members of the electoral college. In view of the
constitutional declaration or exposition of Article 71(4) it is manifest that the language is of
wide amplitude, viz., existence of any vacancy for any reason whatever among the members
of the electoral college. It will take in any case where a person who as an elected member of
the Houses of Parliament or the Legislative Assembly of a state became, entitled to be a
member of the electoral college but ceased to be an elected member at the relevant date of the
election and therefore became disentitled to cast vote at the election and that vacancy among
members of the electoral college was not filled up.
35. We refrain from expressing any opinion on the question which has been posed during
arguments as to what would be the position if there is "malafide dissolution" of a state
Legislative Assembly or Assemblies, or if there is, after the dissolution of the Assembly or
Assemblies, a "malafide refusal" to hold elections thereto within reasonable time before the
Presidential election because such a question does not arise on the present reference.
Likewise, we refrain from expressing any opinion on the effect of the dissolution of a
substantial number of State Legislative Assemblies before the Presidential election.
36. The intervener Jana Sangh submitted that the reference should be declined for four
reasons. First, that the recital in the order of reference that election to the Legislative
Assembly of the State of Gujarat is impossible is not correct. It was said that the election is
possible. Second, the vital question is not whether the Presidential election could be valid or
not in the absence of the Gujarat State Assembly but whether the election of the President
would be valid if the authority charged with election by acts of omission or commission have
not held the Gujarat Assembly election. Third, the election to the State Assembly of Gujarat
could have been held on the basis of the 1961 census. Fourth, Article 143 stipulates a general
doubt about the Constitution and not doubts of parties.
37. This Court is bound by the recitals in the order of Reference. Under Article 143(1) we
accept the statements of fact set out in the reference. The truth or otherwise of the facts cannot
be inquired or gone into nor can Court go into the question of bona fides or otherwise of the
authority making the reference. This Court cannot go behind the recital. This Court cannot go
into disputed questions of fact in its advisory jurisdiction under Article 143(1).
38. The Federal Court in Re The Allocation of Lands and Buildings in a Chief
Commissioner's Province [(1943) FCR 20] a reference under section 213(1) of the
Government of India Act which is similar to Article 143 said that though the terms of that
section do not impose an obligation on the Court, the court should be unwilling to accept a
reference except for good reasons. This court accepted the reference for reasons which
appeared to be of constitutional importance as well as in public interest.
39. In Re. Kerala Education Bill case [(1959) SCR 995] Das, C.J. referred to the
Reference in Re The Allocation of Lands and Buildings and the Reference in Re Levy of
Estate Duty [(1944) FCR 522] and the observation in both the cases that the Reference should
100

not be declined excepting for good reasons. This Court accepted the Reference on the
questions of law arising or likely to arise. Das, C.J. in In Re Kerala Education Bill case said
that it is for the President to determine what questions should be referred and if he does not
have any serious "doubt" on the provisions, it is not for any party to say that doubts arise out
of them. In short, parties appearing in the Reference cannot go behind the order of Reference
and present new questions by raising doubts.
40. On behalf of the intervener Jana Sangh, reliance was placed on section 10(4) of the
Delimitation Act, 1972 hereinafter referred to as the 1972 Act. Broadly stated, the submission
on behalf of the Jana Sangh is that by reason of section 10(4) of the 1972 Act election to the
Gujarat Legislative Assembly could be held on the basis of the 1961 census, and the existing
electoral rolls.
41. The 1972 Act in section 8 speaks of the readjustment of number of seats. This
readjustment is on the basis of the latest census figures-The latest census of 1971. The
Delimitation Commission has by order under section 8 of the 1972 Act determined the total
number of seats to be assigned to the Gujarat State Assembly as 182. The previous number
was 168. Under section 9 of the 1972 Act the Commission shall distribute the seats in the
Legislative Assembly to single member territorial constituencies and delimit them on the
latest census figures. The Commission has published proposals for delimitation and invited
objections. The Commission has not yet made any order determining the delimitation of
assembly constituencies.
42. The provisions contained in Article 170 repel the submission that the election to the
Gujarat Legislative Assembly can be held on the basis of 1961 census. Article 170 provides
that the Legislative Assembly of each State shall consist of not more than five hundred, and
not less than sixty, members chosen by direct election from territorial constituencies in the
State. Each State shall be divided into territorial constituencies in such manner that the ratio
between the population of each constituency and the number of seats allotted to it shall, so far
as practicable, be the same throughout the State. The expression "population" means the
population as ascertained at the last preceding census of which the relevant figures have been
published. The 1971 census has been published. Upon the completion of each census, the total
number of scats and the division of each State into territorial constituencies shall be
readjusted by such authority and in such manner as Parliament may by law determine. The
Delimitation Commission under the 1972 Act is engaged in the division of the State into
territorial constituencies.
43. It is apparent and there is nothing in section 10(4) of the 1972 Act to the contrary
which enjoins the Election Commission to hold elections to the House of the People or the
Legislative Assembly dissolved after the census of 1971 according to the electoral rolls
prepared of the constituencies delimited on the basis of the census of 1961. It is evident that
under clause (2) of Article 170 read with the Explanation and clause (3) of Article 170
elections to the Legislative Assembly after the relevant figures of the population of the last
preceding census have been ascertained and published can only be held on that basis of the
total number of seats in the Legislative Assembly of each State and the division of each State
into territorial constituencies readjusted by the Election Commission under the 1972 Act.
Now that the census figures of 1971 have been published elections have to be held under
 101

Article 170 only after delimitation of the constituencies has been made in accordance with
clauses (2) and (3) of Article 170.
44. When a notification under section 8 of the 1972 Act has been published by assigning
182 seats to the Gujarat Assembly which notification under section 10(2) of the 1972 Act has
the force of law and cannot be questioned in any court, elections to these 182 seats cannot be
held on the basis of the old electoral rolls because those electoral rolls applied only to the 168
seats as fixed under the old Delimitation Act.
45. It is provided in Article 170 that the readjustment by the Delimitation Commission
shall not affect representation in the Legislative Assembly until the dissolution of the then
existing Assembly. The Legislative Assembly of the State of Gujarat has been dissolved.
Therefore, any election which has to be held to the Legislative Assembly of the State of
Gujarat can only be held after the Delimitation of Constituencies under the 1972 Act. Any
Legislative Assembly of a State which is to be composed after the 1971 census is to be in
accordance with Article 170. The contention of Jana Sangh is without substance.
46. On behalf of the intervener Socialist Party, it was said that the Constitution (Eleventh
Amendment) Act, 1961 is unconstitutional. We cannot go into that question in this Reference.
47. For the foregoing reasons we give the following answers:
1. Only such persons who are elected members of both Houses of Parliament and the
Legislative Assemblies of the States on the date of the election to fill the vacancy caused
by the expiration of the term of office of the President will be entitled to cast their votes at
the election.
2. Subject to the aforesaid observation as to the effect of the dissolution of a
substantial number of the Legislative Assemblies the vacancies caused by the dissolution
of an Assembly or Assemblies will be covered by Article 74(4).
3, 4 and 5. The election to the office of the President must be held before the
expiration of the term of the President notwithstanding the fact that at the time of such
election the Legislative Assembly of a State is dissolved. The election to fill the vacancy
in the office of the President is to be held and completed having regard to Articles 62(1),
54, 55 and the Presidential and Vice-Presidential Elections Act, 1952.
6. Article 56(1)(c) applies to a case where a successor as explained in the foregoing
reasons has not entered on his office and only in such circumstances can a President
whose term has expired continue.
*****
102

T.N. Seshan, Chief Election Commissioner of India v. Union of India

(1995) 4 SCC 611

AHMADI, C.J. - The President of India, in exercise of powers conferred upon him by
clause (1) of Article 123 of the Constitution of India, promulgated an Ordinance (No.32 of
1993) entitled "The Chief Election Commissioner and other Election Commissioners
(Conditions of Service) Amendment Ordinance, 1993" ('the Ordinance') to amend "The Chief
Election Commissioner and other Commissioners (Conditions of Service) Act, 1991" ("the
Act'). This Ordinance was published in the Gazette of India on October 1, 1993. Before we
notice the amendments made in the 1991 Act, by the said Ordinance it may be appropriate to
notice the provisions of the 1991 Act. As the long title of the Act suggests it lays down the
conditions of service of the Chief Election Commissioner (“the CEC”) and Election
Commissioners (“the ECs”) appointed under Article 324 of the Constitution of India. Section
3(1) provides that the CEC shall be paid a salary which is equal to the salary of a Judge of the
Supreme Court of India. Section 3(2) says that an EC shall be paid a salary which is equal to
the salary of a Judge of a High Court. Section 4 lays down the term of office of the CEC and
ECs to be six years from the date on which the incumbent assumes charge of his office
provided that the incumbent shall vacate his office on his attaining, in the case of the CEC,
the age of 65 years and the EC the age of 62 years, notwithstanding the fact that the term of
office is for a period of six years. Section 8 extends the benefit of traveling allowance, rent
free residence, exemption from payment of income-tax on the value of such rent free
residence, conveyance facility, sumptuary allowance, medical facilities, etc., as applicable to
a Judge of the Supreme Court or a Judge of the High Court to the CEC and the EC,
respectively.By the Ordinance the title of the Act was sought to be amended by substituting
the words "and to provide for the procedure for transaction of business by the Election
Commission and for matters" for the words "and for matters". By the substitution of these
words the long title of the Act got further elongated as an Act to determine the conditions of
service of the CEC and other ECs and to provide for the procedure for transaction of business
by the Election Commission and for matters connected therewith or incidental thereto. In
section 1 of the Principal Act for the words and brackets "the Chief Election Commissioner
and other Election Commissioners (Conditions of Service)" the words and brackets "the
Election Commission (Conditions of Service of Election Commissioners and Transaction of
Business)" came to be substituted with the result that the amended provision read as the
Election Commission (Conditions of Service of Election Commissioners and Transaction of
Business) Act, 1991. The definition clause in section 2 also underwent a change, in that, the
extant clause (b) came to be re-numbered as clause (c) and a new clause (b) came to be
substituted by which the expression "Election Commission" came to be defined as Election
Commission referred to in Article 324 of the Constitution of India. Consequent changes were
also made elsewhere. In sub-section (1) of section 3, after the words "Chief Election
Commissioner", the words "and other Election Commissioners" came to be inserted with the
result they came to be placed at par in regard to salary payable to them and sub-section (2)
came to be omitted. In section 4 the first proviso came to be substituted as under:
 103

Provided that where the Chief Election Commissioner or an Election

Commissioner attains the age of 65 years before the expiry of the said term of six
years, he shall vacate his office on the date on which he attains the said age.
Thus, the age of superannuation of both the CEC and the ECs was fixed at 65 years. If they
attain the age of 65 years before completing their tenure of six years they would in view of the
proviso have to vacate office on attaining the age of 65 years. In Section 6, sub-section (2),
after the words "Chief Election Commissioner" the words "or an Election Commissioner"
came to be inserted and for the words "sub-section (4)" the words "sub-section (3)" came to
be substituted. It further provided for the deletion of sub- section (3) and for renumbering sub-
section (4) as sub- section (3) and provided that in clause (b) the words "or as the case may
be, 62 years" shall be omitted. After section 8 in the Principal Act, by the Ordinance a new
Chapter came to be inserted comprising of two provisions, namely, Sections 9 and 10. The
new Chapter so inserted is relevant for our purpose and may be reproduced at this stage:
CHAPTER III
TRANSACTION OF BUSINESS OF ELECTION COMMISSION
9. The business of the Election Commission shall be transacted in accordance
with the provisions of this Act.
10(1) The Election Commission may, by unanimous decision, regulate the
procedure for transaction of the business as also allocation of the business amongst
the Chief Election Commissioner and other Election Commissioners.
(2) Save as provided in sub-section (1) all business of the Election Commission
shall, as far as possible, be transacted unanimously.
(3) Subject to the provisions of sub-section (2), if the Chief Election
Commissioner differs in opinion on any matter, such matter shall be decided
according to the opinion of the majority.
2. On the day of publication of the Ordinance, 1st October, 1993, the President of India, in
exercise of powers conferred by clause 2 of Article 324 of the Constitution of India, fixed,
until further orders, the number of Election Commissioners (other than the CEC) at two. By a
further notification of even date the President was pleased to appoint Mr. M.S. Gill and Mr. G.
V. G. Krishnamurthy as Election Commissioners with effect from 1st October, 1993.
3. The first salvo was fired by Cho Ramaswamy, a journalist, on 13th October, 1993. By a
Writ Petition (Civil) No.791 of 1993 he prayed for a declaration that the Ordinance was
arbitrary, unconstitutional and void and for issuance of a writ of certiorari to quash the
notifications fixing the number of Election Commissioners at two and the appointment of Mr.
M.S.Gill and Mr.G.V.G. Krishnamurthy made thereunder. This was followed by Writ Petition
No.805 of 1993 by the incumbent CEC himself claiming similar relief on 26th October, 1993,
two other writ petitions were also filed questioning the validity of the Ordinance and the
notifications referred to earlier. Three of these writ petitions came up for preliminary hearing
on November 15, 1993. While admitting the writ petitions and directing rule to issue in all of
them, in the writ petition filed by the CEC, notice on the application for interim stay as well
as for production of documents was ordered to issue and an ad-interim order to the following
effect was passed:
104

Until further orders, to ensure smooth and effective working of the Commission
and also to avoid confusion both in the administration as well as in the electoral
process, we direct that the Chief Election Commissioner shall remain in complete
overall control of the Commission's work. He may ascertain the views of other
Commissioners or such of them as he chooses, on the issues that may come up before
the Commission from time to time. However, he will not be bound their views. It is
also made clear that the Chief Election Commissioner alone will be entitled to issue
instructions to the Commission's staff as well as to the outside agencies and that no
other Commissioner will issue such instructions.
By a subsequent order dated 15.12.1993, after hearing the learned Attorney General for the
Union of India and the learned Advocates General for the States of Maharashtra and West
Bengal, the Court directed that all the State Governments who want to be heard will be heard
through their counsel and further directed that the interim order shall continue till further
orders. Lastly, it observed that since questions involved related to the interpretation of Article
324 in particular, the matters should be placed before a Constitution Bench.
4. During the pendency of the aforesaid Writ Petitions, the Ordinance became an Act (Act
No.4 of 1994) on 4th January, 1994 without any change.
6. The present CEC claims that after his appointment on 12.12.1990 he insisted on strict
compliance with the Model Code of Conduct by all political parties and candidates for
election and took stern action against infractions thereof regardless of the political party or
candidate involved. The ruling party at the centre was irked as a few of the bye- elections of
the ruling party leaders/cabinet ministers were put off for the Government's failure to deploy
sufficient staff and police force for the elections and the ruling party lost the elections in
Tripura on account of strict action taken by the CEC against erring officials and consequent
postponement of elections. The ruling party made attempts to influence the CEC but could not
do so as he did not allow the emissaries of the party to meet him. The CEC also filed a writ
petition in the Supreme Court for enforcing the constitutional right of the Election
Commission for staff and force. The CEC declined to postpone elections for four State
assemblies despite requests from the ruling party, including the Prime Minister, got irritated
with such unbending attitude of the CEC. The ruling party, therefore, with a view to freeze
the powers of the CEC and to prevent him from taking any action against violation of code of
conduct chose to amend the law and misused the power of the President under Article 324(2)
of the Constitution by issuing the notification dated 1st October, 1993 fixing the number of
ECs at two and simultaneously appointing Mr. M.S. Gill and Mr. G.V.G. Krishnamurthy as
the other two ECs.
7. The CEC not only imputes malafides for the issuance of the aforesaid notifications and
appointments but also alleges that the intention behind issuing the Ordinance was to sideline
the CEC and to erode his authority so that the ruling party at the centre could extract
favourable orders by using the services of the newly appointed ECs.
8. Sections 9 and 10 of the Ordinance (now Act) are challenged as ultra vires the
Constitution on the plea that they are inconsistent with the scheme underlying Article 324 of
the Constitution, in that, the said Article 324 did not give any power to the Parliament to
 105

frame rules for transaction of business of the Election Commission. Section 10 is also
challenged on the ground that it is arbitrary and unworkable, so also the notification fixing the
number of other ECs at two is challenged as arbitrary and violative of Article 14 of the
Constitution.
9. The writ petitions are resisted by the respondents, viz., the Union of India and the two
other ECs, Mr. M.S. Gill and Mr. G.V.G. Krishnamurthy as wholly misconceived. It is
contended on behalf of the Union Government that various advisory bodies had from time to
time called for a multi-member body had any connection with the alleged discomfiture of the
ruling party at the centre on account of the stiff attitude of the CEC. It is further stated that the
multi-member body would not have been able to function without a supporting statute
providing for dealing with different situations likely to arise in the course of transaction of
business. The Ordinance was framed keeping in view the observations made in this regard by
this Court in the case of S.S. Dhanoa v. Union of India [(1991) 3 SCC 567]. It is strongly
denied that the changes in the law were made malafide with a view to taming the CEC into
submission or to erode his authority by providing that, in the event of a difference of opinion,
the majority view would prevail. It is contended that the plain language of Article 324(2)
envisages a multi-member Commission and, therefore, any exercise undertaken to achieve
that objective would be consistent with the scheme of the said constitutional provision and
could, therefore, never be branded as malafide or ultra vires the Constitution. A provision to
the effect that, in the event of a difference of opinion between the three members of the
Election Commission, the majority view should prevail is consistent with democratic
principles and can never be described as arbitrary or ultra vires Article 14 of the Constitution.
The Union of India, has, therefore, contended that the writ petitions are wholly misconceived
and deserve to be dismissed with costs.
10. The Preamble of our Constitution proclaims that we are a Democratic Republic.
Democracy being the basic feature of our constitutional set up, there can be no two opinions
that free and fair elections to our legislative bodies alone would guarantee the growth of a
healthy democracy in the country. In order to ensure the purity of the election process it was
thought by our Constitution-makers that the responsibility to hold free and fair elections in the
country should be entrusted to an independent body which would be insulated from political
and/or executive interference. It is inherent in a democratic set up that the agency which is
entrusted the task of holding elections to the legislatures should be fully insulated so that it
can function as an independent agency free from external pressures from the party in power or
executive of the day. This objective is achieved by the setting up of an Election Commission,
a permanent body, under Article 324(1) of the Constitution. The superintendence, direction
and control of the entire election process in the country has been vested under the said clause
in a commission called the Election Commission. Clause (2) of the said article then provides
for the constitution of the Election Commission by providing that it shall consist of the CEC
and such number of ECs, if any, as the President, may from time to time fix. It is thus obvious
from the plain language of this clause that the Election Commission is composed of the CEC
and, when they have been appointed, the ECs. The office of the CEC is envisaged to be a
permanent fixture but that cannot be said of the ECs as is made manifest from the use of the
words "if any". Dr. Ambedkar while explaining the purport of this clause during the debate in
the Constituent Assembly said:
106

Sub-clause (2) says that there shall be a Chief Election Commissioner and such
other Election Commissioners as the President may, from time to time appoint. There
were two alternatives before the Drafting Committee, namely, either to have a
permanent, body consisting of four or five members of the Election Commission who
would continue in office throughout without any break, or to permit the President to
have an ad-hoc body appointed at the time when there is an election on the anvil. The
Committee has steered a middle course. What the Drafting Committee proposes by
sub-clause (2) is to have permanently in office one man called the Chief Election
Commissioner, so that the skeleton machinery would always be available.
It is crystal clear from the plain language of the said clause (2) that our Constitution-makers
realised the need to set up an independent body or commission which would be permanently
in session with at least one officer, namely, the CEC, and left it to the President to further add
to the Commission such number of ECs as he may consider appropriate from time to time.
Clause (3) of the said article makes it clear that when the Election Commission is a multi-
member body the CEC shall act as its Chairman. What will be his role as a Chairman has not
been specifically spelt out by the said article and we will deal with this question hereafter.
Clause (4) of the said Article further provides for the appointment of RCs to assist the
Election Commission in the performance of its functions set out in clause (1). This, in brief, is
the scheme of Article 324 in so far as the constitution of the Election Commission is
concerned.
11. We may now briefly notice the position of each functionary of the Election
Commission. In the first place, clause (2) states that the appointment of the CEC and other
ECs shall, subject to any law made in that behalf by Parliament, be made by the President.
Thus, the President shall be the appointing authority. Clause (5) provides that subject to any
law made by Parliament, the conditions of service and the tenure of office of the RCs shall be
such as may be determined by rule made by the President. Of course the RCs do not form part
of the Election Commission but are appointed merely to help the commission, that is to say,
the CEC and the ECs if any. As we have pointed out earlier the tenure, salaries, allowances
and other perquisites of the CEC and ECs had been fixed under the Act as equivalent to a
Judge of the Supreme Court and the High Court, respectively. This has undergone a change
after the ordinance which has so amended the Act as to place them on par. However, the
proviso to clause (4) of Article 324 says (i) the CEC shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court and (ii) the
conditions of service of the CEC shall not be varied to his disadvantage after his appointment.
These two limitations on the power of Parliament are intended to protect the independence of
the CEC from political and/or executive interference. In the case of ECs as well as RCs the
second proviso to clause (5) provides that they shall not be removed from office except on the
recommendation of the CEC. It may also be noticed that while under clause (4), before the
appointment of the RCs, consultation with the Election Commission (not CEC) is necessary;
there is no such requirement in the case of appointments of ECs. The provision that the ECs
and the RCs once appointed cannot be removed from office before the expiry of their tenure
except on the recommendation of the CEC ensures their independence. The scheme of Article
324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs
 107

and the RCs have been assured independence of functioning by providing that they cannot be
removed except on the recommendation of the CEC. Of course, the recommendation for
removal must be based on intelligible and cogent considerations which would have relation to
efficient functioning of the Election Commission. That is so because this privilege has been
conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of
political or executive bosses of the day. It is necessary to realise that this check on the
executive's power to remove is built into the second proviso to clause (5) to safeguard the
independence of not only these functionaries but the Election Commission as a body. If,
therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC
himself would become an instrument of oppression and would destroy the independence of
the ECs and the RCs if they are required to function under the threat of the CEC
recommending their removal. It is, therefore, needless to emphasise that the CEC must
exercise this power only when there exist valid reasons which are conducive to efficient
functioning of the Election Commission. This, briefly stated, indicates the status of the
various functionaries constituting the Election Commission.
12. The concept of plurality is writ large on the face of Article 324, clause (2) whereof
clearly envisages a multi- member Election Commission comprising the CEC and one or
more ECs. Visualising such a situation, clause (3) provides that in the case of a multi-member
body the CEC will be its Chairman. If a multi-member Election Commission was not
contemplated where was the need to provide in clause (3) for the CEC to act as its Chairman?
There is, therefore, no room for doubt that the Election Commission could be a multi-
member body. If Article 324 does contemplate a multi-member body, the impugned
notifications providing for the other two ECs cannot be faulted solely on that ground. We may
here quote, with approval, the observations of a two-Judge Bench of this Court in S.S.
Dhanoa v. Union of India [(1991) 3 SCC 567]:
There is no doubt that two heads are better than one, and particularly when an
institution like the Election Commission is entrusted with vital functions, and is armed
with exclusive uncontrolled powers to execute them, it is both necessary and desirable
that the powers are not exercised by one individual, however, all-wise he may be. It ill-
conforms to the tenets of democratic rule. It is true that the independence of an
institution depends upon the persons who man it and not on their number. A single
individual may sometimes prove capable of withstanding all the pulls and pressures,
which many may not. However, when vast powers are exercised by an institution which
is accountable to none, it is politic to entrust its affairs to more hands than one. It helps
to assure judiciousness and want of arbitrariness. The fact, however, remains that where
more individuals than one man an institution, their roles have to be clearly defined, if
the functioning of the institution is not to come to a naught.
It must be realised that these observations were made, notwithstanding the fact that the
learned judges were alive to and aware of the circumstances in which the President was
required in that case to rescind the notifications creating two posts of ECs and appointing the
petitioner Dhanoa and another to them.
13. There can be no dispute, and indeed there never was, that the Election Commission
must be an independent body. It is also clear from the scheme of Article 324 that the said
108

body shall have the CEC as a permanent incumbent and under clause (2) such number of
other ECs, if any, as the President may deem appropriate to appoint. The scheme of Article
324, therefore, is that there shall be a permanent body to be called the Election Commission
with a permanent incumbent to be called the CEC. The Election Commission can therefore be
a single-member body or a multi-member body if the President considers it necessary to
appoint one or more ECs. Upto this point there is no difficulty. The argument that a multi-
member Election Commission would be unworkable and should not, therefore, be appointed
must be stated to be rejected. Our Constitution-makers have provided for a multi-member
body. They saw the need to provide for such a body. If the submission that a multi-member
body would be unworkable is accepted it would tantamount to destroying or nullifying
clauses (2) and (3) of Article 324 of the Constitution. Strong reliance was, however, placed on
Dhanoa case to buttress the argument. The facts of that case were just the reverse of the facts
of the present case. In that case the President by a notification issued in pursuance of clause
(2) of Article 324 fixed the number of ECs, besides the CEC, at two and a few days thereafter
by a separate notification appointed the petitioner and one other as ECs. By yet another
notification issued under clause (5) of Article 324 the President made rules to regulate their
tenure and conditions of service. After watching the functioning of the multi-member body
for about a couple of months, the President issued two notifications rescinding with
immediate effect the notification by which the two posts of ECs were created and the
notification by which the petitioner and one other were appointed thereto. The petitioner S.S.
Dhanoa challenged the notifications rescinding the earlier notification firstly on the ground
that once appointed an EC continues in office for the full term determined by rules made
under clause (5) of Article 324 and, in any event, the petitioner could not be removed except
on the recommendation of the CEC. At the same time it was also contended that the
notifications were issued malafide under the advice of the CEC to get rid of the petitioner and
his colleague because the CEC was from the very beginning ill-disposed or opposed to the
creation of the posts of ECs. According to the petitioner, there were differences of opinion
between the CEC on the one hand and the ECs on the other and since the CEC desired that he
should have the sole power to decide he did not like the association of the ECs.
14. The principal question which the Division Bench of this Court was called upon to
decide was whether the President was justified in rescinding the earlier notifications creating
two posts of ECs and the subsequent appointments of the petitioner and his colleague as ECs.
The Court found as a fact that there was no imminent need to create two posts of ECs and fill
them up by appointing the petitioner and his colleague. The additional work likely to be
generated on account of the lowering of the voting age from 21 years to 18 years could have
been handled by increasing the staff rather than appoint two ECs. So the Court look the view
that from the inception the Government had committed an error in creating two posts of ECs
and filling them up. We do not at the present desire to comment on the question whether this
aspect of the matter was justiciable. It was further found as a fact that the petitioner's and his
colleague's attitude was not co-operative and had it not been for the sagacity and restraint
shown by the CEC, the work of the Commission would have come to a standstill and the
Commission would have been rendered inactive. It is for this reason that the court observed
that no one need shed tears on the posts being abolished (vide paragraphs 20, 23, 24 and 25 of
the judgment.). The Court, therefore, upheld the Presidential notifications rescinding the
 109

creation of the two posts of ECs and the appointments of the petitioner and his colleague
thereon. Notwithstanding this bitter experience, the Division Bench made the observations in
paragraph 26 extracted hereinbefore, with which we are in respectful agreement. We cannot
overlook the fact that when the Constitution-makers provided for a multi-member Election
Commission they were not oblivious of the fact that there may not be agreement on all points,
but they must have expected such high ranking functionaries to resolve their differences in a
dignified manner. It is the constitutional duty of all those who are required to carry out certain
constitutional functions to ensure the smooth functioning of the machinery without the clash
of egos. This should have put an end to the matter, but the Division Bench proceeded to make
certain observations touching on the status of the CEC vis-a-vis the ECs, the procedure to be
followed by a multi-member body in decision making in the absence of rules in that behalf
etc., on which considerable reliance was placed by counsel for the petitioners.
15. We have already highlighted the salient features regarding the composition of the
Election Commission. We have pointed out the provisions regarding the tenure, conditions of
service, salary, allowances, removability, etc., of the CEC, the ECs and the RCs. The CEC
and the ECs alone constitute the Election Commission whereas the RCs are appointed merely
to assist the Commission. The appointment of the RCs can be made after consulting the
Election Commission since they are supposed to assist that body in the performance of the
functions assigned to it by clause (1) of Article 324. If that be so there can be no doubt that
they would rank next to the CEC and the ECs. That brings us to the question regarding the
status of the CEC vis-a-vis the ECs. It was contended by the learned counsel for the
petitioners that the CEC enjoyed a status superior to the ECs for the obvious reason that (i)
the CEC has been granted conditions of service on par with a Judge of the Supreme Court
which was not the case with the conditions of service of ECs before the Ordinance, (ii) the
CEC has been given the same protection against removal from service as available to a Judge
of the Supreme Court whereas the ECs can be removed on the CEC's recommendation, (iii)
the CEC's conditions of service cannot be altered or varied to his disadvantage after his
appointment, (iv) the CEC has been conferred the privilege to act as Chairman of the multi-
member Commission and (v) the CEC alone is the permanent incumbent whereas the ECs
could be removed, as happened in the case of Dhanoa. Strong reliance was placed on the
observations in paragraphs 10 and 11 of Dhanoa case in support of the argument that the
CEC enjoys a higher status vis-a-vis the ECs while functioning as the Chairman of the
Election Commission. The observations relied upon read thus:
10. However, in the matter of the conditions of service and tenure of office of the
Election Commissioners, a distinction is made between the Chief Election
Commissioner on the one hand and Election Commissioners and Regional
Commissioners on the other. Whereas the conditions of service and tenure of office of
all are to be such as the President may, by rule determine, a protection is given to the
Chief Election Commissioner in that his conditions of service shall not be varied to
his disadvantage after his appointment, and he shall not be removed from his office
except in like manner and on the like grounds as a Judge of the Supreme Court. These
protections are not available either to the Election Commissioners or to the Regional
Commissioners. Their conditions of service can be varied even to their disadvantage
after their appointment and they can be removed on the recommendation of the Chief
110

Election Commissioner, although not otherwise. It would thus appear that in these
two respects not only the Election Commissioners are not on par with the Chief
Election Commissioner, but they are placed on par with the Regional Commissioners
although the former constitute the Commission and the latter do not and are only
appointed to assist the Commission.
11. It is necessary to bear these features in mind because, although clause (2) of
the article states that the Commission will consist of both the Chief Election
Commissioner and the Election Commissioners if and when appointed, it does not
appear that the framers of the Constitution desired to give the same status to the
Election Commissioners as that of the Chief Election Commissioner. The Chief
Election Commissioner does not, therefore, appear to be primus inter partes, i.e., first
among the equals, but is intended to be placed in a distinctly higher position. The
conditions that the President may increase or decrease the number of Election
Commissioners according to the needs of the time, that their service conditions may
be varied to their disadvantage and that they may be removed on the recommendation
of the Chief Election Commissioner militate against their being of the same status as
that of the Chief Election Commissioner.
16. While it is true that under the scheme of Article 324 the conditions of service and
tenure of office of all the functionaries of the Election Commission have to be determined by
the President unless determined by law made by Parliament, it is only in the case of the CEC
that the first proviso to clause (5) lays down that they cannot be varied to the disadvantage of
the CEC after his appointment. Such a protection is not extended to the ECs. But it must be
remembered that by virtue of the Ordinance the CEC and the ECs placed on par in the matter
of salary, etc. Does the absence of such provision for ECs make the CEC superior to he ECs?
The second ground relates to removability. In the case of the CEC he can be removed from
office in like manner and on the like ground as a judge of the Supreme Court whereas the ECs
can be removed on the recommendation of the CEC. That, however, is not an indicia for
conferring a higher status on the CEC. To so hold is to overlook the scheme of Article 324 of
the Constitution. It must be remembered that the CEC is intended to be a permanent
incumbent and, therefore, in order to preserve and safeguard his independence, he had to be
treated differently. That is because there cannot be an Election Commission without a CEC.
That is not the case with other ECs. They are not intended to be permanent incumbents.
Clause (2) of Article 324 itself suggests that the number of ECs can vary from time to time. In
the very nature of things, therefore, they could not be conferred the type of irremovability that
is bestowed on the CEC. If that were to be done, the entire scheme of Article 324 would have
to undergo a change. In the scheme of things, therefore, the power to remove in certain cases
had to be retained. Having insulated the CEC from external political or executive pressures,
confidence was reposed in this independent functionary to safeguard the independence of his
ECs and even RCs by enjoining that they cannot be removed except on the recommendation
of the CEC. This is evident from the following statement found in the speech of Shri K.M.
Munshi in the Constituent Assembly when he supported the amended draft submitted by Dr.
Ambedkar:
We cannot have an Election Commission sitting all the time during those five
years doing nothing. The Chief Election Commissioner will continue to be a whole-
 111

time officer performing the duties of his office and looking after the work from day to
day but when major elections take place in the country, either Provincial or Central,
the Commission must be enlarged to cope with the work. More members therefore
have to be added to the Commission. They are no doubt to be appointed by the
President. Therefore, to that extent their independence is ensured. So there is no
reason to believe that these temporary Election Commissioners will not have the
necessary measure of independence.
Since the other ECs were not intended to be permanent appointees they could not be granted
the irremovability protection of the CEC, a permanent incumbent, and, therefore, they were
placed under the protective umbrella of an independent CEC. This aspect of the matter
escaped the attention of the learned Judges who decided Dhanoa’s case. We are also of the
view that the comparison with the functioning of the executive under Articles 74 and 163 of
the Constitution in paragraph 17 of the judgment, with respect, cannot be said to be apposite.
17. Under clause (3) of Article 324, in the case of a multi-member Election Commission,
the CEC 'shall act' as the Chairman of the Commission. As we have pointed out earlier,
Article 324 envisages a permanent body to be headed by a permanent incumbent, namely, the
CEC. The fact that the CEC is a permanent incumbent cannot confer on him a higher status
than the ECs for the simple reason that the latter are not intended to be permanent appointees.
Since the Election Commission would have a staff of its own dealing with matters concerning
the superintendence, direction and control of the preparation of electoral rolls, etc., that staff
would have to function under the direction and guidance of the CEC and hence it was in the
fitness of things for the Constitution-makers to provide that where the Election Commission is
a multi-member body, the CEC shall act as its Chairman. That would also ensure continuity
and smooth functioning of the Commission.
18. That brings us to the question: what role has the CEC to play as the Chairman of a
multi-member Election Commission? Article 324 does not throw any light on this point. The
debates of the Constituent Assembly also do not help. Although there had been a multi-
member Commission in the past, no convention or procedural arrangement had been worked
out then. It is this situation which compelled the Division Bench of this Court in Dhanoa case
to inter alia observe that in the absence of rules to the contrary, the members of a multi-
member body are not and need not always be on par with each other in the matter of their
rights, authority and powers. Proceeding further in paragraph 18 it was said: (SCC p. 580)
18. It is further an acknowledged rule of transacting business in a multi-member
body that when there is no express provision to the contrary, the business has to be
carried on unanimously. The rule to the contrary, such as the decision by majority,
has to be laid down specifically by spelling out the kind of majority -whether simple,
special, of all the members or of the members present and voting etc. In a case such
as that of the Election Commission which is not merely an advisory body but an
executive one, it is difficult to carry on its affairs by insisting on unanimous decisions
in all matters. Hence, a realistic approach demands that either the procedure for
transacting business is spelt out by a statute or a rule either prior to or simultaneously
with the appointment of the Election Commissioners or that no appointment of
112

Election Commissioners is made in the absence of such procedure. In the present

case, admittedly, no such procedure has been laid down.
We must hasten to add that the accuracy of the statement that in a multi-member body the rule
of unanimity would prevail in the absence of express provision to the contrary was doubted
by counsel for the respondents-ECs. At the same time, counsel for the Union of India and the
contesting ECs contended that the Ordinance was promulgated by the President strictly in
conformity with the view expressed in Dhanoa case.
19. From the discussion upto this point what emerges is that by clause (1) of Article 324,
the Constitution-makers entrusted the task of conducting all elections in the country to a
Commission referred to as the Election Commission and not to an individual. It may be that if
it is a single-member body the decisions may have to be taken by the CEC but still they will
be the decisions of the Election Commission. They will go down as respondents of the
Election Commission and not the individual. It would be wrong to project the individual and
eclipse the Election Commission. Nobody can be above the institution which he is supposed
to serve. He is merely the creature of the institution; he can exist only if the institution exists.
To project the individual as mightier than the institution, would be a grave mistake.
Therefore, even if the Election Commission is a single-member body, the CEC is merely a
functionary of that body; to put it differently, the alter ego of the Commission and no more.
And if it is a multi-member body, the CEC is obliged to act as its Chairman. 'Chairman'
according to the Concise Oxford Dictionary means a person chosen to preside over meetings,
e.g., one who presides over the meetings of the Board of Directors. In Black’s Law
Dictionary, 6th Edition, page 230, the same expression is defined as a name given to a
Presiding Officer of an assembly, public meeting, convention, deliberative or legislative body,
board of directors, committee, etc. Similar meanings have been attributed to that expression in
Ballentine's Law Dictionary, 3rd Edition, pages 189-190, Webster’s New Twentieth
Century Dictionary, Unabridged, 2nd Edition, page 299, and Aiyer’s Judicial Dictionary,
11th Edition, page 238. The function of the Chairman would, therefore, be to preside over
meetings, preserve order, conduct the business of the day, ensure that precise decisions are
taken and correctly recorded and do all that is necessary for smooth transaction of business.
The nature and duties of this office may vary depending on the nature of business to be
transacted but by and large these would be the functions of a Chairman. He must so conduct
himself at the meetings chaired by him that he is able to win the confidence of his colleagues
in the Commission and carry them with him. This, a Chairman may find difficult to achieve if
he thinks that others who are members of the Commission are his subordinates. The functions
of the Election Commission are essentially administrative but there are certain adjudicative
and legislative functions as well. The Election Commission has to lay down certain policies,
decide on certain administrative matters of importance as distinguished from routine matters
of administration and also adjudicate certain disputes, e.g., disputes relating to allotment of
symbols. Therefore, besides administrative functions it may be called upon to perform quasi-
judicial duties and undertake subordinate legislation making functions as well. See M.S. Gill
v. Chief Elecction Commissioner [(1978) 2 SCR 272]. We need say no more on this aspect
of the matter.
 113

20. There can be no doubt that the Election Commission discharges a public function. As
pointed out earlier, the scheme of Article 324 clearly envisages a multi-member body
comprising the CEC and the ECs. The RCs may be appointed to assist the Commission. If
that be so the ECs cannot be put on par with the RCs. As already pointed out, ECs form part
of the Election Commission unlike the RCs. Their role is, therefore, higher than that of RCs.
If they form part of the Commission, it stands to reason to hold that they must have a say in
decision-making. If the CEC is considered to be a superior in the sense that his word is final,
he would render the ECs non-functional or ornamental. Such an intention is difficult to cull
out from Article 324, nor can we attribute it to the Constitution-makers. We must reject the
argument that the ECs' function is only to tender advice to the CEC.
21. We have pointed out the distinguishing features from Article 324 between the position
of the CEC and the ECs. It is essentially on account of their tenure in the Election
Commission that certain differences exist. We have explained why in the case of ECs the
removability clause had to be different. The variation in the salary, etc., cannot be a
determinative factor otherwise that would oscillate having regard to the fact that the executive
or the legislature has to fix the conditions of service under clause (5) of Article 324. The only
distinguishing feature that survives for consideration is that in the case of the CEC his
conditions of service cannot be varied to his disadvantage after his appointment whereas there
is no such safeguard in the case of ECs. That is presumably because the posts are temporary
in character. But even if it is not so, that feature alone cannot lead us to the conclusion that the
final word in all matters lies with the CEC. Such a view would render the position of the ECs
to that of mere advisers which does not emerge from the scheme of Article 324.
22. As pointed out earlier, neither Article 324 nor any other provision in the Constitution
expressly states how a multi-member Election Commission will transact its business nor has
any convention developed in this behalf. That is why in Dhanoa case this Court thought the
gap could be filled by an appropriate statutory provision. Taking a clue from the observations
in that connection in the said decision, the President promulgated the Ordinance whereby a
new chapter comprising sections 9 and 10 was added to the Act indicating how the Election
Commission will transact its business. Section 9 merely states that the business of the
Commission shall be transacted in accordance with the provisions of the Act. Section 10 has
three sub-sections. Sub-section (1) says that the Election Commission may, by unanimous
decision, regulate the procedure for transaction of its business and for allocation of its
business among the CEC and the ECs. It will thus be seen that the legislature has left it to the
Election Commission to finalize both the matters by a unanimous decision. Sub-section (2)
says that all other business, save as provided in sub-section (1), shall also be transacted
unanimously, as far as is possible. It is only when the CEC and the ECs cannot reach a
unanimous decision in regard to its business that the decision has to be by majority. It must be
realised that the Constitution- makers preferred to remain silent as to the manner in which the
Election Commission will transact its business, presumably because they thought it
unnecessary and perhaps even improper to provide for the same having regard to the level of
personnel it had in mind to man the Commission. They must have depended on the sagacity
and wisdom of the CEC and his colleagues. The bitter experience of the past, to which a
reference is made in Dhanoa case, made legislative interference necessary once it was also
114

realised that a multi-member body was necessary. It has yet manifested the hope in sub-
sections (1) and (2) that the Commission will be able to take decisions with one voice. But
just in case that hope is belied the rule of majority must come into play. That is the purport of
section 10 of the Act. The submission that the said two sections are inconsistent with the
scheme of Article 324 inasmuch as they virtually destroy the two safeguards, namely (i) the
irremovability of the CEC and (ii) prohibition against variation in service conditions to his
disadvantage after his appointment, does not cut ice. In the first place, the submission
proceeds on the basis that the other two ECs will join hands to render the CEC non-
functional, a premise which is not warranted. It betrays the CEC's lack of confidence in
himself to carry his colleagues with him. In every multi- member commission it is the quality
of leadership of the person heading the body that matters. Secondly, the argument necessarily
implies that the CEC alone should have the power to take decisions which, as pointed out
earlier, cannot be accepted because that renders the ECs’ existence ornamental. Besides, there
is no valid nexus between the two safeguards and Section 9 and 10; in fact the submission is a
repetition of the argument that a multi-member commission cannot function, that it would be
wholly unworkable and that the Constitution-makers had erred in providing for it. Tersely put,
the argument boils down to this: erase the idea of a multi-member Election Commission from
your minds or else give exclusive decision making power to the CEC. We are afraid such an
attitude is not conducive to democratic principles. Foot Note 6 at page 657 of Halsbury’s
Laws of England, 4th Edition (Re-issue), Vol. 7(1) posits:
The principle has long been established that the will of a Corporation or body can
only be expressed by the whole or a majority of its principles, and the act of a
majority is regarded as the act of the whole. (See Shakelton on the Law and Practice
of Meetings, eighth edition, Compilation of AG, page 116).
The same principle was reiterated in Grindley v. Barker [126 ER 875 at 879 & 882]. We do
not consider it necessary to go through various decisions on this point.
23. The argument that the impugned provisions constitute a fraud on the Constitution
inasmuch as they are designed and calculated to defeat the very purpose of having an Election
Commission is begging the question. While in a democracy every right thinking citizen
should be concerned about the purity of the election process - this Court is no less concerned
about the same as would be evident from a series of decisions - it is difficult to share the
inherent suggestion that the ECs would not be as concerned about it. And to say that the CEC
would have to suffer the humiliation of being overridden by two civil servants is to ignore the
fact that the present CEC was himself a civil servant before his appointment as CEC.
24. The Election Commission is not the only body which is a multi-member body. The
Constitution also provides for other public institutions to be multi-member bodies. For
example, the Public Service Commission, Article 315 provides for the setting up of a Public
Service Commission for the Union and every State and Article 316 contemplates a multi-
member body with a Chairman. Article 338 provides for a multi-member National
Commission for SC/ST comprising a Chairman, Vice- Chairman and other members. So also
there are provisions for the setting up of certain other multi-member Commissions or
Parliamentary Committees under the Constitution. These also function by the rule of majority
and so we find it difficult to accept the broad contention that a multi-member Commission is
 115

unworkable. It all depends on the attitude of the Chairman and its members. If they work in
co-operation, appreciate and respect each other's point of view, there would be no difficulty,
but if they decide from the outset to pull in opposite directions, they would by their conduct
make the Commission unworkable and thus fail the system.
25. That takes us to the question of malafides. It is in two parts. The first part relates to
events which preceded the Ordinance and the second part to post-Ordinance and notification
events. On the first part the CEC contends that since, after his appointment, he had taken
various steps with a view to ensuring free and fair elections and was constrained to postpone
certain elections which were to decide the fate of certain leaders belonging to the ruling party
at the Centre, i.e., the Indian National Congress (I), he had caused considerable discomfiture
to them. His insistence on strict observance of the Model Code of Conduct had also disturbed
the calculations of the ruling party. According to him, he had postponed the elections in Kalka
Assembly constituency, Haryana, because the Chief Minister of Haryana, belonging to the
ruling party at the Centre, had flouted the guidelines. So also he had postponed the elections
in the State of Tripura which ultimately led to the dismissal of the Government headed by the
Chief Minister belonging to the ruling party at the Centre. The postponement of the bye-
elections involving Shri Sharad Pawar and Shri Pranab Mukherjee also upset the calculations
of the said party. He had also postponed the election in Anipet Assembly constituency, Tamil
Nadu, as the Chief Minister of the State had flouted the Model Code of Conduct by
announcing certain projects on the eve of the elections. Shri Santosh Mohan Deb, Union
Minister, belonging to the ruling party, was also upset because the CEC took disciplinary
action against officials who were found present at his election meetings. The ruling party was
also unhappy with his decision to announce general elections for the State Assemblies for
Madhya Pradesh, Uttar Pradesh, Rajasthan, Himachal Pradesh and the National Capital
Territory of Delhi as the party was not ready for the same.According to the CEC he had also
spurned the request made through the Lieutenant Governor of Delhi by the said party for
postponement of the Delhi elections. According to him, emissaries were sent by the said party
at the Centre to him but he did not oblige and he even took serious exception regarding the
conduct of the Governor of Uttar Pradesh, Shri Moti Lal Vohra, for violating the Model Code
of Conduct. Since the ruling party at the Centre failed in all its attempts to prevail upon him,
it decided to convert the Election Commission into a multi-member body and, after having the
Ordinance issued by the President, the impugned notifications appointing the two ECs were
issued. The extraordinary haste with which all this was done while the CEC was at Pune and
the urgency with which one of the appointees Shri M.S. Gill was called to Delhi by a special
aircraft betrayed the keenness on the part of the ruling party to install the two newly appointed
ECs. The CEC describes in detail the post-appointment events which took place at the
meeting of 11th October, 1993 in paragraphs 18 (c) to (f) and (g) of the writ petition.
According to him, by the issuance of the Ordinance and the notifications the ruling party is
trying to achieve indirectly that which it could not achieve directly. These, in brief, are the
broad counts on the basis whereof he contends that the ruling party at the Centre was keen to
dislodge him.
26. On behalf of the Union of India it is contended that the allegation that the power to
issue an Ordinance was misused for collateral purpose, namely, to impinge on the
116

independence of the Election Commission, is wholly misconceived since it is a known fact

that the demand for a multi-member Commission had been raised from time to time by
different political parties. The Joint Committee of both Houses of Parliament had submitted a
report in 1972 recommending a multi-member body and the Tarkunde Committee appointed
on behalf of the Citizens for Democracy also favoured a multi-member Election Commission
in its report submitted in August 1974. Similarly, the Committee on Electoral Reforms
appointed by the Janata Dal Government, in its report in May, 1990, favoured a three member
Election Commission. Various Members of Parliament belonging to different political shades
had also raised a similar demand from time to time. The Advocates General of various States
in their meeting held on 26th September, 1993 at New Delhi had made a similar demand. It
was, therefore, not correct to contend that the decision to constitute a multi-member Election
Commission was abruptly taken with a malafide intention, to curb the activities of the present
CEC. The allegation that the decision was taken because the ruling party at the Centre was
irked by the attitude of the CEC in postponing elections on one ground or the other is denied.
The issue regarding the constitution of a multi-member Election Commission was a live issue
and the same was discussed at various fora and even the Supreme Court in Dhanoa case had
indicated that vast discretionary powers, with virtually no checks and balances, should not be
left in the hands of a single individual and it was desirable that more than one person should
be associated with the exercise of such discretionary powers. It was, therefore, in public
interest that the Ordinance in question was issued and two ECs were appointed to associate
with the CEC. The deponent contends that this was a bona fide exercise and it was
unfortunate that a high ranking official like the CEC had alleged that one of the ECs had been
appointed because he was a close friend of the Prime Minister, an allegation which was
unfounded. It is therefore denied that the Ordinance and the subsequent notifications
appointing the two ECs were intended to sideline the CEC and erode his authority. The
Government bonafide followed the earlier reports and the observations made in Dhanoa case
to which a reference has already been made. It is, therefore, contended that Sections 9 and 10
do not suffer from any vice as alleged by the CEC. The two ECs have also filed their counter
affidavits denying these allegations. Shri G.V.G. Krishnamurthy, Respondent 3 in the CEC's
petition, has pointed out that the CEC had made unprecedented demands, for example, (i) to
be equated with Supreme Court Judges, and had pressurised the Government that he be
ranked along with Supreme Court Judges in the Warrant of Precedence, (ii) the powers of
contempt of court be conferred upon the Election Commission, (iii) the CEC had refused to
participate in meetings as ex-officio member of the Delimitation Commission headed by Mr.
Justice A.M. Mir, Judge of the High Court of J & K, on the ground that his position was
higher, he having been equated with judges of the Supreme Court, (iv) the CEC be exempted
from personal appearance in Court, (v) the Election Commission be exempted from the
purview of the UPSC, so far as its staff was concerned, etc.
27. The learned Attorney General pointed out that no malafides can be attributed to the
exercise of legislative power by the President of India under Article 123 of the Constitution.
He further pointed out that having regard to the express language of Article 324(2) of the
Constitution, it was perfectly proper to expand the Election Commission by making
appropriate changes in the extant law. The question whether it is necessary to appoint other
ECs besides the CEC is for the Government to decide and that is not a justiciable matter. The
 117

demand for a multi-member Commission was being voiced for the last several years and
merely because it was decided to make an amendment in the statute through an Ordinance, it
is not permissible to infer that the decision was actuated by malice. It was lastly contended
that Article 324 nowhere stipulates that before ECs are appointed, the CEC will be consulted.
In the absence of an express provision in that behalf, it cannot be said that the failure to
consult the CEC before the appointments of the two ECs vitiates the appointment.
28. One of the interveners, the petitioner of SLP No.16940 of 1993, has filed written
submissions through his counsel wherein, while supporting the action to constitute the multi-
member Commission, he has criticised the style of functioning of the CEC and has contended
that his actions have, far from advancing the cause of free and fair elections, resulted in
hardships to the people as well as the system. It has been pointed out that several rash
decisions were taken by the CEC on the off-chance that they would pass muster but when
challenged in court he failed to support them and agreed to withdraw his orders. It is,
therefore, contended that the style of functioning of the present CEC itself is sufficient reason
to constitute a multi-member Commission so that the check and balance mechanism that the
Constitution provides for different institutions may ensure proper decision-making.
29. There is no doubt that when the Constitution was framed the Constitution-makers
considered it necessary to have a permanent body headed by the CEC. Perhaps the volume of
work and the complexity thereof could be managed by a single- member body. At the same
time it was realised that with the passage of time it may become necessary to have a multi-
member body. That is why express provision was made in that behalf in clause (2) of Article
324. It seems that for about two decades the need for a multi-member body was not felt. But
the issue was raised and considered by the Joint Committee which submitted a report in 1972.
Since no action was taken on that report, the Citizens for Democracy, a non- governmental
organisation, appointed a committee headed by Shri Tarkunde, a former Judge of the Bombay
High Court, which submitted its report in August 1974. Both these bodies favoured a multi-
member Commission but no action was taken and, after a lull, when the Janata Dal came to
power, a committee was appointed which submitted a report in May 1990. That committee
also favoured a multi-member body. Prior to that, in 1989 a multi-member Commission was
constituted but we know its fate. But the issue was not given up and demands continued to
pour in from Members of Parliament of different hues. These have been mentioned in the
counter-affidavit of the Union of India. It cannot, therefore, be said that this idea was
suddenly pulled out of a bag. Assuming the present CEC had taken certain decisions not
palatable to the ruling party at the Centre as alleged by him, it is not permissible to jump to
the conclusion that that was cause for the Ordinance and the appointments of the ECs. If such
a nexus is to weigh, the CEC would continue to act against the ruling party to keep the move
for a multi-member Commission at bay. We find it difficult to hold that the decision to
constitute a multi- member Commission was actuated by malice. Therefore, even though it is
not permissible to plead malice, we have examined the contention and see no merit in it. It is
wrong to think that the two ECs were pliable persons who were being appointed with the sole
object of eroding the independence of the CEC.
31. That takes us to the question of legislative competence. The contention is that since
Article 324 is silent, Parliament expected the Commission itself to evolve its own procedure
118

for transacting its business and since the CEC was the repository of all power to be exercised
by the Commission falling within the scope of its activity, it did not see the need to engraft
any procedure for transacting its business. If the Election Commission at any time saw the
need for it, it would itself evolve its procedure but Parliament cannot do so and hence
Sections 9 and 10 are unconstitutional. Except the legislation specifically permitted by clauses
(2) and (5) of Article 324 and Articles 327 and 328, Part XV of the Constitution does not
conceive of a law by Parliament on any other matter and hence the impugned legislation is
unconstitutional.
32. Now it must be noticed at the outset that both clauses (2) and (5) of Article 324
contemplate a statute for the appointment of ECs and for their conditions of service. The
impugned law provides for both these matters and provisions to that effect cannot be
challenged as unconstitutional since they are expressly permitted by the said clauses (2) and
(5). Once the provision for the constitution of a multi-member Commission is unassailable,
provisions incidental thereto cannot be challenged. It was urged that the legislation squarely
fell within Entry 72 of List I of the Seventh Schedule. That entry refers to "Elections to
Parliament, to Legislatures of States and to the Offices of President and Vice-President; the
Election Commission". If, as argued, the scope of this entry is relatable and confined to
clauses (2) and (5) of Article 324 and Articles 327 and 328 only, it would be mere tautology.
If the contention that the CEC alone has decisive power is not accepted, and we have not
accepted it, and even if it is assumed that the normal rule is of unanimity, sub-sections (1) and
(2) of Section 10 provide for unanimity. It is only if there is no unanimity that the rule of
majority comes into play under sub-section (3). Therefore, even if we were to assume that the
Commission alone was competent to lay down how it would transact its business, it would be
required to follow the same pattern as is set out in Section 10. We, therefore, see no merit in
this contention also.
33. We would here like to make it clear that we should not be understood to approve of
the rating of Dhanoa case in its entirety. We have expressly approved it where required.
36. In the result, we uphold the impugned Ordinance (now Act 4 of 1994) in its entirety.
We also uphold the two impugned notifications dated 1st October, 1993. Hence, the writ
petitions fail and are dismissed. The interim order dated 15th November, 1993 will stand
vacated. If, as is reported, the incumbent CEC has proceeded on leave, leaving the office in
charge of Shri Bagga, Shri Bagga will forthwith hand over charge to Shri Gill till the CEC
resumes duty. The IAs will stand disposed of. In the facts and circumstances of the case, we
direct parties to bear their own costs. If the CEC has incurred the costs of his petition from the
funds of the Election Commission, the other two ECs will be entitled to the same from the
same source.

*****
 119

Indian National Congress (I) v. Institute of Social Welfare

AIR 2002 SC 2158

V.N. KHARE, J. - The foremost question that arises in this group of appeals is whether the
Election Commission of India under Section 29A of the Representation of the People Act,
1951 (the 'Act') has power to de-register or cancel the registration of a political party on the
ground that it has called for hartal by force, intimidation or coercion and thereby violated the
provisions of the Constitution of India.
2. The aforesaid question has arisen out of the directions issued by the High Court of
Kerala on the writ petitions filed for enforcement of the decision in the case of Communist
Party of India (Marxist) v. Bharat Kumar [AIR 1998 SC 184] wherein it was held that
There is a distinction between 'bundh' and 'hartal'. A call for a bundh involves
coercion of others into towing the lines of those who called for the bundh and that the
act was unconstitutional, since it violated the rights and liberty of other citizens
guaranteed under the Constitution.
3. In the writ petitions filed before the High Court it was alleged that despite the law
having been declared by the Supreme Court that calling of a bundh is unconstitutional, the
political parties in the State of Kerala continued to call bundh under the name and cover of
hartal. It was prayed that direction be issued to the government of Kerala for taking
appropriate measures to give effect to the declaration of law by the Supreme Court in the case
of Communist Party of India. The High Court from time to time issued orders and in
compliance thereof, the Chief Secretary as well as Director General of Police issued necessary
orders, but such directions proved ineffective and the political parties continued to give call
for bundh in the name of hartal. It was also alleged that some of the writ petitioners submitted
representations to the Election Commission of India for taking necessary proceedings against
the registered political parties for de-registration as they had contravened the provisions of the
Constitution, but no action has been taken by the Election Commission in that regard. In one
of the writ petitions one of the reliefs sought for with which we are concerned in this group of
appeals, was to issue a direction to the Election Commission of India to take action against
the registered political parties for violation of their undertaking that they will abide by the
Constitution. In a nutshell, the case of the writ petitioners before the High Court was that by
holding a hartal and enforcing it by force, threat and coercion, there is the performance of an
unconstitutional act and one of the clear and definite ways of preventing such unconstitutional
activity on the part of political parties registered under the Representation of the People Act is
to take steps for their de-registration on the ground of violation of the Constitution of India.
4. In the said writ petitions, the Communist Party of India (Marxist) filed counter affidavit
and stated therein that they did not give call for a bundh and, in fact, the call given by them
was for a hartal. It is also stated therein that at the call for hartal, it was optional for every
citizen either to open or close their shops and in fact there was only an appeal to public to join
the hartal and further there was no element of compulsion in the appeal and, therefore, the
Communist Party of India (Marxist) did not violate either the provisions of the Constitution or
decision rendered by the Supreme Court in the case of Communist Party of India (Marxist)
120

v. Bharat Kumar. Indian National Congress (I) also filed a counter affidavit submitting that
the call for hartal given by them was not a bundh. It was also stated therein that giving a call
for hartal was a part of freedom of speech and expression protected under Article 19(1)(a) of
the Constitution and it was merely a device to elicit the support of the people towards the
specific issues highlighted by political parties, organisation and also to inform and educate the
public regarding specific problems affecting their day to day life. It was also stated that the
State can take preventive measures in case there is any violence or interference of
constitutional or legal rights of the citizens.
5. The Election Commission of India also filed its return and stated therein that it does not
have power to de-register or cancel the registration of a political party under Section 29A of
the Act. It was also stated by the Election Commission that similar matter arose before it in a
petition filed by Shri Arjun Singh and others seeking de-registration of the Bharatiya Janata
Party as a political party and also freezing of its reserved symbol 'Lotus' and the Election
Commission of India by its order dated 19.2.92 rejected the petition after having found that it
does not have power under Section 29A of the Act to de-register a registered political party. It
was also brought to the notice of the High Court that the decision of the Election Commission
of India was also tested by filing a special leave petition before the Supreme Court, but the
same was dismissed on 28.8.92. In that view of the matter, no direction can be issued by the
High Court to the Election Commission of India to take any proceeding for de-registration of
a registered political party for having violated the constitutional provisions.
6. The High Court was of the view that mere giving a call for a hartal or advocating of it
as understood in the strict sense cannot be held to be illegal in the context of the decision in
Communist Party of India v. Bharat Kumar. However, the moment a hartal seeks to impinge
the rights of others, it ceases to be a hartal in a real sense of the freedom and really turns out a
violent demonstration affecting the rights of others and such an act has to be curtailed at the
instance of other citizens whose rights are affected by such an illegal act. The High Court, as
a matter of fact, found that what was called a hartal was not what was strictly meant by that
term, but a form of a bundh involving intimidation and coercion of those who do not want to
respond to the call or participate in it. The High Court after having found that the political
parties have contravened the constitutional provisions of guaranteed freedom to the citizens,
they are liable to be appropriately dealt with. In that context, the High Court was of the view
that although Section 29A of the Act expressly does not empower the Election Commission
of India to de-register a registered political party for having contravened the provisions of the
Constitution, but on application of Section 21 of the General Clauses Act, the Election
Commission of India has power on a complaint filed with it, to initiate proceedings for de-
registration against a political party for having violated the constitutional provisions and after
giving opportunity to such political parties, if it is found that they have committed breach of
the provisions of the Constitution, the Election Commission of India has power to de-register
or cancel the registration of such political parties. The High Court distinguished the summary
dismissal of the special leave petition no. 8738/1992 filed by Shri Arjun Singh against
Bharatiya Janata Party and another by the Apex Court on 28.8.92 on the ground that dismissal
of a special leave petition without any reason is not binding as it does not lay down law
within the meaning of Article 141 of the Constitution.
 121

7. In the aforesaid view of the matter, the High Court while allowing the writ petitions
passed the following orders:
i. We declare that the enforcement of a hartal call by force, intimidation, physical
or mental and coercion would amount to an unconstitutional act and a party or has no
right to enforce it by resorting to force or intimidation.
ii. We direct the State, Chief Secretary to the State, Director General of Police and
all the administrative authorities and police officers in the State to implement strictly
the directives issued by the directions given by the Director General of Police dated
4.2.1999 and set out fully in the earlier part of this judgment.
iii. We issue a writ of mandamus to the Election Commission to entertain
complaints, if made, of violation of Section 29A(5) of the Representation of the
People Act, 1951 by any of the registered political parties or associations, and after a
fair hearing, to take a decision thereon for de-registration or cancellation of
registration of that party or organisation, if it is warranted by the circumstances of the
case.
iv. We issue a writ of mandamus directing the Election Commission to consider
and dispose of in accordance with law, the Representation Ext. P9 in o.p. 20641 of
1998, after giving all the affected parties an opportunity of being heard.
v. We direct the State of Kerala, the Chief Secretary to the Government, the
Director General of Police and all other officers of the State to take all necessary
steps at all necessary times, to give effect to this judgment.
vi. We direct the State, District Collectors, all other officers of the State and
Corporations owned or controlled by the State to take immediate and prompt action,
for recovery of damages in cases where pursuant to a call for hartal, public property
or property belonging to the corporation is damaged or destroyed, from the
perpetrators of the acts leading to destruction/damage and those who have issued the
call for hartal.
8. It is against the aforesaid decision of the High Court that these appeals have been filed
by way of separate special leave petitions.
9. We have heard Shri Ashwani Kumar, learned senior counsel appearing for the Indian
National Congress (I), Shri Soli J. Sorabjee, learned Attorney General appearing for the
Union of India, Shri S. Muralidhar, learned counsel, appearing for Election Commission of
India, Shri Rajeev Dhavan, learned senior counsel and Shri B.K. Pal, learned counsel
appearing for the Communist Party of India (Marxist) and Communist Party of India,
respectively, and Shri L.Nageswara Rao, learned senior counsel appearing for the writ
petitioners-respondents.
10. Shri Soli Sorabjee, learned Attorney General and other learned counsel for the
appellants appearing in other connected civil appeals stated that these appeals are pressed
only against direction Nos. (iii) and (iv) given by the High Court to the Election Commission
of India.
11. Learned counsel appearing for the appellants, inter alia, argued - that there being no
express provision in the Act to cancel the registration of a political party under Section 29A of
the Act, and as such no proceedings can be taken by the Election Commission of India against
122

a political party for having violated the provisions of the Constitution; that the Election
Commission of India while exercising the power to register a political party under Section
29A of the Act acts quasi-judicially and once a political party is registered, no power of
review having been conferred on the Election Commission of India, the Election Commission
has no power to de-register a political party for having violated the provisions of the
Constitution or committed breach of undertaking given to the Election Commission at the
time of its registration; and that the view taken by the High Court that since the Election
Commission has power to register a political party under Section 29A of the Act, it is equally
empowered to revoke or rescind the order of registration on application of Section 21 of the
General Clauses Act is erroneous.
13. Before we advert to the arguments raised by learned counsel for the parties it is
necessary to refer to relevant provisions of the Act and rules framed thereunder and the
provisions of the Election Symbols (Reservation and Allotment) Order, 1968 (hereinafter
referred to as the 'Symbols Order') framed by the Election Commission in exercise of its
power under Article 324 of the Constitution to find out whether the Election Commission has
power to de-register a registered political party.
14. By the Representation of the People (Amendment) Act, 1988, Section 29A was
inserted in the Act. The Statement of Objects and Reasons appended to the Bill which was
introduced in the Parliament and subsequently was converted into an Act, runs as under:
At present, there is no statutory definition of political party in Election Law. The
recognition of a political party and the allotment of symbols for each party are
presently regulated under the Election Symbols (Reservation and Allotment) Order,
1968. It is felt that Election Law should define political party and lay down procedure
for its registration. It is also felt that the political parties should be required to include
a specific provision in the memorandum or rules and regulations governing their
functioning that they would be fully committed to and abide by the principles
enshrined in the preamble to the Constitution.
15. Before Section 29A of the Act came into force, the political parties were registered
under the Election (Reservation and Allotment) Symbols Order 1968 (hereinafter referred to
as the 'Symbols Order) read with Rules 5 and 10 of the Conduct of Election Rules. Paragraph
3 of the Symbols Order as it existed prior to the coming into force of Section 29A of the Act,
runs as under:
3. Registration with the Commission of associations and bodies as political
parties for the purposes of this Order - (1) Any association or body of individual
citizens of India calling itself a political party and intending to avail itself of the
provisions of this Order shall make an application to the Commission for its
registration as a political party for the purposes of this Order.
(2) Such application shall be made–
(a) if the association or body is in existence at the commencement of this
Order, within sixty days next following such commencement;
(b) if the association or body is formed after the commencement of this
Order, within sixty days next following the date of its formation;
 123

Provided that no such application for registration shall be necessary on

the part of any political party which immediately before the commencement
of this Order is either a multi-state party or a recognised party other than a
multi-state party and every such party shall be deemed to be registered with
the Commission as a political party for the purposes of this Order.
(3) Every application under sub-paragraph (1) shall be signed by the chief
executive officer of the association or body (whether such chief executive officer is
known as Secretary or by any other designation) and either presented to a Secretary to
the Commission or sent to such Secretary by registered post.
(4) Every such application shall contain the following particulars, namely :
(a) the name of the association or body;
(b) the State in which its head office is situated;
(c) the address to which letters and other communications meant for it should
be sent;
(d) the names of its president, secretary and all other office-bearers;
(e) the numerical strength of its members, and if there are categories of its
members, the numerical strength in each category;
(f) whether it has any local units; if so, at what levels (such as district level,
thana or block level), village level, and the like);
(g) the political principles on which it is based;
(h) the policies, aims and objects it pursues or seeks to pursue;
(i) its programs, functions and activities for the purpose of carrying out its
political principles, policies, aims and objects;
(j) its relationship with the electors and popular support it enjoys, and
tangible proof, if any, of such relationship and support;
(k) whether it is represented by any member or members in the House of the
People or any State Legislative Assembly, if so, the number of such member
or members;
(l) any other particulars which the association or body may like to mention.
(5) The Commission may call for such other particulars as it may deem fit from
the association or body.
(6) After considering all the particulars as aforesaid in its possession and any
other necessary and relevant factors and after giving the representatives of the
association or body reasonable opportunity of being heard, the Commission shall
decide either to register the association or body as a political party for the purposes of
this Order, or not so to register it; and the Commission shall communicate its decision
to the association or body.
(7) The decision of the Commission shall be final;
(8) After an association or body has been registered as a political party as
aforesaid, any change in its name, head office, office-bearers, address or political
principles, policies, aims and objects and any change in any other material matters
shall be communicated to the Commission without delay.
124

Section 29A of the Act runs as under:

29A. Registration with the Election Commission of association and bodies as
political parties.- (1)Any association or body of individual citizens of India calling
itself a political party and intending to avail itself of provisions of this Part shall make
an application to the Election Commission for its registration as a political party for
the purposes of this Act.
(2) Every such application shall be made:
(a) if the association or body is in existence at the commencement of the
Representation of the People (Amendment) Act, 1988, (1 of 1989), within
sixty days next following such commencement.
(b) if the association or body is formed after such commencement, within
thirty days next following the date of its formation.
(3) Every application under sub-section (1) shall be signed by the chief executive
officer of the association or body (whether such chief executive officer is known as
Secretary or by any other designation) and presented to the Secretary to the
Commission or sent to such Secretary by registered post.
(4) Every such application shall contain the following particulars, namely:
(a) the name of the association or body;
(b) the State in which its head office is situated;
(c) the address to which letters and other communications meant for it
should be sent;
(d) the names of its president, secretary, treasurer and other office-bearers;
(e) the numerical strength of its members, and if there are categories of its
members, the numerical strength in each category;
(f)) whether it has any local units; if so, at what levels;
(g) whether it is represented by any member or members in either House of
Parliament or of any State Legislature; if so, the number of such member or
members.
(5) The application under sub-section (1) shall be accompanied by a copy of the
memorandum or rules and regulations of the association or body, by whatever name
called, and such memorandum or rules and regulations shall contain a specific
provision that the association or 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 sovereignty, unity and integrity of
India.
(6) The Commission may call for such other particulars as it may deem fit from
the association or body.
(7) After considering all the particulars as aforesaid in its possession and any
other necessary and relevant factors and after giving the representatives of the
association or body reasonable opportunity of being heard, the Commission shall
decide either to register the association or body as a political party for the purposes of
 125

this Part, or not so to register it; and the Commission shall communicate its decision
to the association or body.
Provided that no association or body shall be registered as a political party under
this sub-section unless the memorandum or rules and regulations of such association
or body conform to the provisions of sub- section (5).
(8) The decision of the Commission shall be final.
(9) After an association or body has been registered as a political party as
aforesaid, any change in its name, head office, office-bearers, address or in any other
material matters shall be communicated to the Commission without delay.
16. A conjoint reading of Section 29A and paragraph 3 of the Symbols Order as it existed
prior to enforcement of Section 29A of the Act shows that there were only two significant
changes and other provisions remained the same. The first change is reflected in sub-section
(5) of Section 29A of the Act which provides that the application for registration shall be
accompanied by a copy of memorandum or rules and regulations of the political party seeking
registration under the Act and such memorandum or rules and regulations shall contain a
specific provision that such a political party 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 sovereignty, unity and integrity of India. The second change
is reflected in sub-section (4) of Section 29A of the Act which embodied in it, the provisions
of different clauses of sub-paragraph (4) of paragraph 3 of the Symbols Order.
17. After Section 29A of the Act came into force, paragraph 3 of the Symbols Order stood
amended inasmuch as the definition of a political party in paragraph 2(1)(4) of the Symbols
Order was also amended. Earlier, under paragraph 3 of the Symbols Order, a political party
was defined as a registered party. After Section 29A was inserted in the Act, the definition of
a political party in the Symbols Order was amended to the effect that the political party means
a party registered with the Election Commission under Section 29A of the Act. Consequently,
paragraph 3 of the Symbols Order was also amended to the extent it prescribed additional
information which a political party was required to furnish to the Election Commission along
with an application for registration. Now such additional information the Election
Commission is authorised to call for under sub-section (6) of Section 29A of the Act. A
perusal of un-amended paragraph 3 of the Symbols Order shows that it did not provide for de-
registration of a political party registered under the Symbols Order. Nor any such provision
was made after the Symbols Order was amended after Section 29A was inserted in the Act.
Further, neither the provisions of Section 29A of the Act nor the rules framed thereunder,
provide for de-registration or cancellation of registration of a political party. We are,
therefore, of the view that neither under the Symbols Order nor under Section 29A of the Act,
the Election Commission has been conferred with any express power to de-register a political
party registered under Section 29A of the Act on the ground that it has either violated the
provisions of the Constitution or any provision of undertaking given before the Election
Commission at the time of its registration.
18. The question then arises whether, in the absence of an express power in the Act, the
Election Commission is empowered to de-register a registered political party. Learned
126

Attorney General, appearing for the Union of India urged that the Election Commission while
exercising its power under Section 29A of the Act, acts quasi-judicially and in absence of any
express power of review having been conferred on the Election Commission, the Election
Commission has no power to de-register a political party. According to learned Attorney
General, excepting in three circumstances when the Election Commission could not be
deprived of the power to de-register a party are –
(a) when the Election Commission finds that the party has secured registration by playing
fraud on the Commission,
(b) when a political party itself informs the Commission in pursuance of Section 29A(9)
that it has changed its constitution so as to abrogate the provision therein conforming to the
provisions of Section 29A(5) or does not believe in the provisions of the Constitution,
rejecting the very basis on which it secured registration as a registration political party and
(c) any like ground where no enquiry is called for on the part of the Election Commission,
the Commission has no power to de-register a political party.
Learned Attorney General further argued that in a situation where a complaint is made to the
Election Commission and it is required to make an inquiry that a particular registered political
party has committed breach of the undertaking given before the Election Commission or has
violated the provisions of the Constitution, the Election Commission has neither any power to
make any inquiry into such a complaint nor de-register such a political party.
19. Whereas, Shri L. Nageshwara Rao, learned counsel appearing for Respondent 1 urged
that the discharge of function by the Election Commission under Section 29A of the Act
cannot be termed as quasi-judicial function, in the absence of a lis-a proposition and
apposition between the two contending parties which the statutory authority is required to
decide. According to him, unless there is a lis or two contending parties before the Election
Commission, the function assigned to the Election Commission under Section 29A is
administrative in nature. His further argument is that where exercise of an administrative
function manifests one of the attributes of quasi-judicial function, such a discharge of function
is not quasi-judicial.
20. On the argument of parties, the question that arises for our consideration is, whether
the Election Commission, in exercise of its powers under Section 29A of the Act, acts
administratively or quasi-judicially. We shall first advert to the argument raised by learned
counsel for the respondent to the effect that in the absence of any lis or contest between the
two contending parties before the Election Commission under Section 29A of the Act, the
function discharged by it is administrative in nature and not a quasi judicial one. The
dictionary meaning of the word quasi is 'not exactly' and it is just in between a judicial and
administrative function. It is true, in many cases, the statutory authorities were held to be
quasi-judicial authorities and decisions rendered by them were regarded as quasi-judicial,
where there was contest between two contending parties and the statutory authority was
required to adjudicate upon the rights of the parties. In Cooper v. Wilson [(1937) 2 KB 309] it
is stated that
The definition of a quasi-judicial decision clearly suggests that there must be two
or more contending parties and an outside authority to decide those disputes.
 127

In view of the aforesaid statement of law, where there are two or more parties contesting each
other's claim and the statutory authority is required to adjudicate the rival claims between the
parties, such a statutory authority was held to be quasi-judicial and decision rendered by it as
a quasi-judicial order. Thus, where there is a lis or two contesting parties making rival claims
and the statutory authority under the statutory provision is required to decide such a dispute,
in the absence of any other attributes of a quasi-judicial authority, such a statutory authority is
a quasi-judicial authority.
21. But there are cases where there is no lis or two contending parties before a statutory
authority, yet such a statutory authority has been held to be quasi-judicial and decision
rendered by it as quasi-judicial decision when such a statutory authority is required to act
judicially. In Queen v. Dublin Corporation [(1878) 2 Ir. R. 371] it was held thus:
In this connection the term judicial does not necessarily mean acts of a Judge or
legal tribunal sitting for the determination of matters of law, but for purpose of this
question, a judicial act seems to be an act done by competent authority upon
consideration of facts and circumstances and imposing liability or affecting the rights.
And if there be a body empowered by law to enquire into facts, makes estimates to
impose a rate on a district, it would seem to me that the acts of such a body involving
such consequence would be judicial acts.
22. Atkin L.J. as he then was, in Rex v. Electricity Commissioners [(1924) 1 KB 171]
stated that when any body of persons having legal authority to determine questions affecting
the rights of subjects and having the duty to act judicially, such body of persons is a quasi-
judicial body and decision given by them is a quasi-judicial decision. In the said decision,
there was no contest or lis between the two contending parties before the Commissioner. The
Commissioner, after making an enquiry and hearing the objections was required to pass order.
In a nutshell, what was held in the aforesaid decision was, where a statutory authority is
empowered to take a decision which affects the rights of persons and such an authority under
the relevant law required to make an enquiry and hear the parties, such authority is quasi-
judicial and decision rendered by it is a quasi-judicial act.
23. In Province of Bombay v. Kusaldas S Advani, it was held thus:
(i) that if a statute empowers an authority, not being a Court in the ordinary sense,
to decide disputes arising out of a claim made by one party under the statute which
claim is opposed by another party and to determine the respective rights of the
contesting parties who are opposed to each other, there is a lis and prima facie and in
the absence of anything in the statute to the contrary it is the duty of the authority to
act judicially and the decision of the authority is a quasi-judicial act ; and (ii) that if a
statutory authority has power to do any act which will prejudicially affect the subject,
then, although there are not two parties apart from the authority and the contest is
between the authority proposing to do the act and the subject opposing it, the final
determination of the authority will yet be a quasi-judicial act provided the authority is
required by the statute to act judicially. In other words, while the presence of two
parties besides the deciding authority will prima facie and in the absence of any other
factor, impose upon the authority the duty to act judicially, the absence of two such
128

parties is not decisive in taking the act of the authority out of the category of quasi-
judicial act if the authority is nevertheless required by the statute to act judicially.
24. The legal principles laying down when an act of a statutory authority would be a
quasi-judicial act, which emerge from the aforestated decisions, are these: Where (a) a
statutory authority is empowered under a statute to do any act (b) which would prejudicially
affect the subject (c) although there is no lis or two contending parties and the contest is
between the authority and the subject and (d) the statutory authority is required to act
judicially under the statute, the decision of the said authority is quasi-judicial. Applying the
aforesaid principle, we are of the view that the presence of a lis or contest between the
contending parties before a statutory authority, in the absence of any other attributes of a
quasi-judicial authority is sufficient to hold that such a statutory authority is a quasi judicial
authority. However, in the absence of a lis before a statutory authority, the authority would be
quasi-judicial authority if it is required to act judicially.
25. Coming to the second argument of learned counsel for the respondent, it is true that
mere presence of one or two attributes of quasi-judicial authority would not make an
administrative act as a quasi-judicial act. In some cases, an administrative authority may
determine a question of fact before arriving at a decision which may affect the right of an
appellant but such a decision would not be a quasi-judicial act. It is a different thing that in
some cases fair-play may demand affording of an opportunity to the claimant whose right is
going to be affected by the act of the administrative authority; still such an administrative
authority would not be a quasi-judicial authority.
26. What distinguishes an administrative act from a quasi-judicial act is, in the case of
quasi-judicial functions under the relevant law the statutory authority is required to act
judicially. In other words, where law requires that an authority before arriving at a decision
must make an enquiry, such a requirement of law makes the authority a quasi-judicial
authority.
27. Learned counsel for the respondent then contended that a quasi-judicial function is an
administrative function which the law requires to be exercised in some respects as if it were
judicial and in that view of the matter, the function discharged by the Election Commission
under Section 29A of the Act is totally administrative in nature. Learned counsel in support of
his argument relied upon the following passage from Wade & Forsyth's Administrative
Law:
A quasi-judicial function is an administrative function which the law requires to
be exercised in some respects as if it were judicial. A typical example is a minister
deciding whether or not to confirm a compulsory purchase order or to allow a
planning appeal after a public inquiry. The decision itself is administrative, dictated
by policy and expediency. But the procedure is subject to the principles of natural
justice, which require the minister to act fairly towards the objections and not (for
example) to take fresh evidence without disclosing it to them. A quasi-judicial
decision is therefore an administrative decision which is subject to some measure of
judicial procedure.
 129

28. We do not find any merit in the submission. At the outset, it must be borne in mind
that another test which distinguishes administrative function from quasi-judicial function is,
the authority who acts quasi-judicially is required to act according to the rules, whereas the
authority which acts administratively is dictated by policy and expediency. In the present
case, the Election Commission is not required to register a political party in accordance with
any policy or expediency but strictly in accordance with the statutory provisions. The afore-
quoted passage from Administrative Law by Wade & Forsyth is wholly inapplicable to the
present case. Rather, it goes against the argument of learned counsel for the respondent. The
afore-quoted passage shows that where an authority whose decision is dictated by policy and
expediency exercises administratively although it may be exercising functions in some
respects as if it were judicial, which is not the case here.
29. We shall now examine Section 29A of the Act in the light of the principles of law
referred to above. Section 29A deals with the registration of a political party for the purposes
of the Representation of the People Act. Sub-section (1) of Section 29A of the Act provides
who can make an application for registration as a political party. Sub-sections (2) and (3) of
the said Section lay down making an application to the Commission. Sub- sections (4) and (5)
of the said Section provide for contents of the application. Sub-section (7) of Section 29
provides that the Election Commission after considering all the particulars in its possession
and any other necessary and relevant factors and after giving the representatives of the
association reasonable opportunity of being heard shall decide either to register the
association or body as a political party or not so to register it and thereupon the Commission
is required to communicate its decision to the political party. Further, sub-section (8) of
Section 29A attaches finality to the decision of the Commission.
30. From the aforesaid provisions, it is manifest that the Commission is required to
consider the matter, to give opportunity to the representative of the political party and after
making enquiry and further enquiry arrive at the decision whether to register a political party
or not. In view of the requirement of law that the Commission is to give decision only after
making an enquiry, wherein an opportunity of hearing is to be given to the representatives of
the political party, we are of the view that the Election Commission under Section 29A is
required to act judicially and in that view of the matter the act of the Commission is quasi-
judicial.
31. This matter may be examined from another angle. If the directions of the High Court
for considering the complaint of the respondent that some of the appellants/political parties
are not functioning in conformity with the provisions of Section 29A is to be implemented,
the result will be that a detailed enquiry has to be conducted where evidence may have to be
adduced to substantiate or deny the allegations against the parties. Thus, a lis would arise.
Then there would be two contending parties opposed to each other and the Commission has to
decide the matter of de-registration of a political party. In such a situation the proceedings
before the Commission would partake the character of quasi-judicial proceeding. De-
registration of a political party is a serious matter as it involves divesting of the party of a
statutory status of a registered political party. We are, therefore, of the view that unless there
is express power of review conferred upon the Election Commission, the Commission has no
130

power to entertain or enquire into the complaint for de-registering a political party for having
violated the Constitutional provisions.
32. However, there are three exceptions where the Commission can review its order
registering a political party. One is where a political party obtained its registration by playing
fraud on the Commission; secondly, it arises out of sub-section (9) of Section 29A of the Act
and thirdly, any like ground where no enquiry is called for on the part of the Election
Commission, for example, where the political party concerned is declared unlawful by the
Central Government under the provisions of the Unlawful Activities (Prevention) Act, 1967
or any other similar law.
33. Coming to the first exception, it is almost settled law that fraud vitiates any act or
order passed by any quasi-judicial authority even if no power of review is conferred upon it.
In fact, fraud vitiates all actions. In Smith v. East Ellos Rural Distt. Council [(1956) 1 All
ER 855] it was stated that the effect of fraud would normally be to vitiate all acts and order. In
Indian Bank v. Satyam Fibres (India) Pvt. Ltd. [(1996) 5 SCC 550], it was held that a power
to cancel/recall an order which has been obtained by forgery or fraud applies not only to
courts of law, but also statutory tribunals which do not have power of review. Thus, fraud or
forgery practised by a political party while obtaining a registration, if it comes to the notice of
the Election Commission, it is open to the Commission to de-register such a political party.
34. The second exception is where a political party changes its nomenclature of
association, rules and regulations abrogating the provisions therein conforming to the
provisions of Section 29A (5) or intimating the Commission that it has ceased to have faith
and allegiance to the Constitution of India or to the principles of socialism, secularism and
democracy, or it would not uphold the sovereignty, unity and integrity of India so as to
comply with the provisions of Section 29A(5). In such cases, the very substratum on which
the party obtained registration is knocked of and the Commission in its ancillary power can
undo the registration of a political party. Similar case is in respect of any like ground where
no enquiry is called for on the part of the Commission. In this category of cases, the case
would be where a registered political party is declared unlawful by the Central Government
under the provisions of the Unlawful Activities (Prevention) Act, 1967 or any other similar
law. In such cases, power of the Commission to cancel the registration of a political party is
sustainable on the settled legal principle that when a statutory authority is conferred with a
power, all incidental and ancillary powers to effectuate such power are within the conferment
of the power, although not expressly conferred. But such an ancillary and incidental power of
the Commission is not an implied power of revocation. The ancillary and incidental power of
the Commission cannot be extended to a case where a registered political party admits that it
has faith in the Constitution and principles of socialism, secularism and democracy, but some
people repudiate such admission and call for an enquiry by the Election Commission. Reason
being, an incidental and ancillary power of a statutory authority is not the substitute of an
express power of review.
35. Now, coming to the decisions relied upon by the learned counsel for the respondent,
we are of the view that none of the decisions relied upon are of any assistance to the argument
of learned counsel for the respondent. The decision of this Court in Province of Bombay v.
Kusaldas Advani has been dealt with by us in the foregoing paragraph and is of no help to the
 131

case of the respondent. In the case of Radhey Shyam Khare v. State of M.P [AIR 1959 SC
107] the State government issued an order on the ground of expediency and policy and,
therefore, it was held that the impugned order is administrative in nature. In T.N. Seshan v.
Union of India [(1995)4 SCC 611] it was held that the Election Commission besides
administrative function is required to perform quasi-judicial duties and undertake subordinate
legislation making functions as well. This decision also is of no help to the case of the
respondent. In the case of State of H.P. v. Raja Mahendra Pal [AIR 1999 SC 1786] this
Court found that Price Committee appointed by the government was not constituted under any
statutory or plenary administrative power and, therefore, did not discharge any quasi-judicial
function. This decision again is of no assistance to the case of the respondent.
36. It was next urged by the learned counsel for the appellants that the view taken by the
High Court that by virtue of application of provisions of Section 21 of the General Clauses
Act, 1897 the Commission has power to de-register a political party if it is found having
violated the undertaking given before the Election Commission, is erroneous. According to
him, once it is held that the Commission while exercising its powers under Section 29A of the
Act acts quasi-judicially and an order registering a political party is a quasi-judicial order, the
provision of Section 21 of the General Clauses Act has no application. We find merit in the
submission.
37. We have already extensively examined the matter and found that Parliament
consciously had not chosen to confer any power on the Election Commission to de-register a
political party on the premise that it has contravened the provisions of sub-section (5) of
Section 29A. The question which arises for our consideration is whether in the absence of any
express or implied power, the Election Commission is empowered to cancel the registration of
a political party on the strength of the provisions of Section 21 of the General Clauses Act.
Section 21 of the General Clauses Act runs as under:
21. Power to issue, to include power to add, to amend, vary or rescind
notification, orders, rules or bye-laws - Where by any central Act or Regulation, a
power to issue notifications, orders, rules or bye-laws is conferred then that power
includes a power exercisable in the like manner and subject to the like sanction, and
conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules
or bye-laws so issued.
38. On perusal of Section 21 of the General Clauses Act, we find that the expression
'order' employed in Section 21 shows that such an order must be in the nature of notification,
rules and bye-laws etc. The order which can be modified or rescinded on the application of
Section 21 has to be either executive or legislative in nature. But the order which the
Commission is required to pass under Section 29A is neither a legislative nor an executive
order but is a quasi-judicial order. We have already examined this aspect of the matter in the
foregoing paragraph and held that the functions exercisable by the Commission under Section
29A is essentially quasi-judicial in nature and order passed thereunder is a quasi-judicial
order. In that view of the matter, the provisions of Section 21 of the General Clauses Act
cannot be invoked to confer powers of de-registration/cancellation of registration after
enquiry by the Election Commission. We, therefore, hold that Section 21 of the General
Clauses Act has no application where a statutory authority is required to act quasi-judicially.
132

39. It may be noted that the Parliament deliberately omitted to vest the Election
Commission of India with the power to de-register a political party for non-compliance with
the conditions for the grant of such registration. This may be for the reason that under the
Constitution the Election Commission of India is required to function independently and
ensure free and fair elections. An enquiry into non-compliance with the conditions for the
grant of registration might involve the Commission in matters of a political nature and could
mean monitoring by the Commission of the political activities, programmes and ideologies of
political parties. This position gets strengthened by the fact that on 30th June, 1994 the
Representation of the People (Second Amendment) Bill, 1994 was introduced in the Lok
Sabha proposing to introduce Section 29-B whereunder a complaint to be made to the High
Court within whose jurisdiction the main office of a political party is situated for cancelling
the registration of the party on the ground that it bears a religious name or that its
memorandum or rules and regulations no longer conform to the provisions of Section 29-A
(5) or that the activities are not in accordance with the said memorandum or rules and
regulations. However, this bill lapsed on the dissolution of the Lok Sabha in 1996.
40. To sum up, what we have held in the foregoing paragraphs are as under:
1. That there being no express provision in the Act or in the Symbols Order to cancel the
registration of a political party, and as such no proceeding for de-registration can be taken by
the Election Commission against a political party for having violated the terms of Section
29A(5) of the Act on the complaint of the respondent.
2. The Election Commission while exercising its power to register a political party under
Section 29A of the Act, acts quasi-judicially and decision rendered by it is a quasi-judicial
order and once a political party is registered, no power of review having been conferred on
the Election Commission, it has no power to review the order registering a political party for
having violated the provisions of the Constitution or for having committed breach of
undertaking given to the Election Commission at the time of registration.
3. However, there are exceptions to the principle stated in paragraph 2 above where the
Election Commission is not deprived of its power to cancel the registration. The exceptions
are these –
(a) where a political party has obtained registration by practising fraud or forgery;
(b) where a registered political party amends its nomenclature of association, rules
and regulations abrogating therein conforming to the provisions of Section 29A(5) of the
Act or intimating the Election Commission that it has ceased to have faith and allegiance
to the Constitution of India or to the principles of socialism, secularism and democracy
or it would not uphold the sovereignty, unity and integrity of India so as to comply with
the provisions of Section 29A(5) of the Act; and
(c) any like ground where no enquiry is called for on the part of the Commission.
4. The provisions of Section 21 of the General Clauses Act cannot be extended to the
quasi-judicial authority. Since the Election Commission while exercising its power under
Section 29A of the Act acts quasi-judicially, the provisions of Section 21 of the General
Clauses Act has no application.
 133

41. For the aforesaid reasons, the appeals deserve to be allowed in part. Consequently,
direction nos. (iii) and (iv) of the impugned judgment are set aside. The appeals are allowed in
part. The contempt petitions are rejected. There shall be no order as to costs.

**** *
134

Guru Gobind Basu v. Sankari Prasad Ghosal

AIR 1964 SC 254

S.K. DAS, Ag. C.J. – 2. The short facts giving rise to the appeal are these. The appellant
before us is Guru Gobind Basu who is a chartered accountant and a partner of the firm of
auditors carrying on business under the name and style of G. Basu and Company. This firm
acted as the auditor of certain companies and corporations, such as Life Insurance
Corporation of India, Durgapur Projects Ltd., and Hindustan Steel Ltd., on payment of certain
remuneration. The appellant was also a Director of the West Bengal Financial Corporation
having been appointed or nominated as such by the State Government of West Bengal. The
appointment carried with it the right to receive fees or remuneration as director of the said
corporation.
3. In February-March, 1962, the appellant was elected to the House of People from
Constituency No. 34 (Burdwan Parliamentary Constituency) which is a single member
constituency. The election was held in February, 1962. There were two candidates, namely,
the appellant and respondent 3 to this appeal. The appellant was declared elected on March 1,
1962, he having secured 1,55,485 votes as against his rival who secured 1,23,015 votes. This
election was challenged by two voters of the said constituency by means of an election
petition dated April 10, 1962. The challenge was founded on two grounds:
(1) that the appellant was, at the relevant time, the holder of offices of profit both under the
Government of India and the Government of West Bengal and this disqualified him from
standing for election under Article 102(1)(a) of the Constitution; and
(2) that he was guilty of certain corrupt practices which vitiated his election.
The second ground was abandoned at the trial, and we are no longer concerned with it.
4. The Election Tribunal held that the appellant was a holder of offices of profit both
under the Government of India and the Government of West Bengal and was therefore,
disqualified from standing for election under Article 102(1)(a) of the Constitution. The
Election Tribunal accordingly allowed the election petition and declared that the election of
the appellant to the House of the People was void. There was an appeal to the High Court
under section 116-A of the Representation of the People Act, 1951. The High Court dismissed
the appeal, but granted a certificate of fitness under Article 133(1)(c) of the Constitution.
5. The only question before us is whether the appellant was disqualified from being
chosen as, and for being, a member of the House of the People under Article 102(1)(a) of the
Constitution. The answer to the question depends on whether the appellant held any offices of
profit under the Government of India or the Government of any State other than such offices
as had been declared by Parliament by law not to disqualify their holder. It has not been
seriously disputed before us that the office of auditor which the appellant held as partner of
the firm G. Basu and Company was an office of profit. It has not been contended by the
appellant before us that the office of profit which he held had been declared by Parliament by
law not to disqualify the holder. Therefore the arguments before us have proceeded entirely
on the question as to the true scope and meaning of the expression "under the Government of
India or the Government of any State"occurring in clause (a) of Article 102(1) of the
 135

Constitution. The contention on behalf of the appellant has been that on a true construction of
the aforesaid expression, the appellant cannot be said to hold an office of profit under the
Government of India or the Government of West Bengal. On behalf of the respondents the
contention is that the office of auditor which the appellant holds is an office of profit under
the Government of India in respect of the Life Insurance Corporation of India, Durgapur
Projects Ltd. and Hindustan Steel Ltd.; and in respect of the West Bengal Financial
Corporation of which the appellant is a Director appointed by the Government of West
Bengal, he holds an office of profit under the Government of West Bengal. These are the
respective contentions which fall for consideration in the present appeal.
6. It is necessary to state here that if in respect of any of the four companies or
corporations it be held that the appellant holds an office of profit under the Government, be it
under the Government of India or the Government of West Bengal, then the appeal must be
dismissed. It would be unnecessary then to consider whether the office of profit which the
appellant holds in respect of the other companies is an office of profit under the Government
or not. We would therefore take up first the two companies, namely, the Durgapur Projects
Ltd., and the Hindustan Steel Ltd., which are 100% Government companies and consider the
respective contentions of the parties before us in respect of the office of auditor which the
appellant holds in these two companies. If we hold that in respect of any of these two
companies the appellant holds an office of profit under the Government of India, then it
would be unnecessary to consider the position of the appellant in any of the other companies.
7. It is not disputed that Hindustan Steel Ltd., and Durgapur Projects Ltd. are Government
companies within the meaning of Section 2(18) read with Section 617 of the Indian
Companies Act, 1956. It has been stated before us that 100% of the shares of Durgapur
Projects Ltd. are held by the Government of West Bengal and 100% of the shares of
Hindustan Steel Ltd. are held by the Union Government. We may now read Section 619 of the
Indian Companies Act, 1956.
(1) In the case of a Government company, the following provisions shall apply,
notwithstanding any thing contained in sections 224 to 233.
(2) The auditor of a Government company shall be appointed or re-appointed by
the Central Government on the advice of the Comptroller and Auditor-General of
India.
(3) The Comptroller and Auditor-General of India shall have power-
(a) to direct the manner in which the company's accounts shall be audited by the
auditor appointed in pursuance of sub-section (2) and to give such auditor instructions
in regard to any matters relating to the performance of his functions as such.
(b) to conduct a supplementary or test audit of the company's accounts by such
person or persons as he may authorise in this behalf, and for the purposes of such
audit, to require information or additional information to be furnished to any person
or persons so authorised, on such matters, by such person or persons, and in such
form, as the Comptroller and Auditor-General may, by general or special order,
direct.
136

(4) The auditor aforesaid shall submit a copy of his audit report to the
Comptroller and Auditor-General of India who shall have the right to comment upon,
or supplement, the audit report in such manner, as he may think fit.
(5) Any such comments upon, or supplement to the audit report shall be placed
before the annual general meeting of the company at the same time and in the same
manner as the audit report.
It is clear from the aforesaid provisions that notwithstanding Section 224 of the Act which
empowers every company to appoint an auditor or auditors at each annual general meeting,
the appointment of an auditor of a Government company rests solely with the Central
Government and in making such appointment the Central Government takes the advice of the
Comptroller and Auditor-General of India. Under Section 224(7) of the Act an auditor
appointed under Section 224 may be removed from office before the expiry of his term only
by the company in general meeting, after obtaining the previous approval of the Central
Government in that behalf. The remuneration of the auditors of a company is to be fixed in
accordance with the provisions of sub-section (8) of Section 224. It is clear however that sub-
section (7) of Section 224 does not apply to a Government company because the auditor of a
Government company is not appointed under Section 224 of the Act, but is appointed under
sub-section (2) of Section 619 of the Act. It is clear therefore that the appointment of an
auditor in a Government company rests solely with the Central Government and so also his
removal from office. Under sub-section (3) of Section 619 the Comptroller and Auditor-
General of India exercises control over the auditor of a Government company in respect of
various matters including the manner in which the company's accounts shall be audited. The
Auditor-General has also the right to give such auditor instructions in regard to any matter
relating to the performance of his functions as such. The Auditor-General may conduct a
supplementary or test audit of the company's accounts by such person or persons as he may
authorise in this behalf. In other words, the Comptroller and Auditor-General of India
exercises full control over the auditors of a Government company. The powers and duties of
auditors in respect of companies other than Government companies are laid down in Section
227 of the Act but by virtue of sub-section (1) of Section 619 of the Act, the provisions in
Section 227 of the Act do not apply to a Government company because a Government
company is subject to the provisions of Section 619 of the Act. Under Section 619-A of the
Act, where the Central Government is a member of a Government company, an annual report
of the working and affairs of the company has to be prepared and laid before both Houses of
Parliament with a copy of the audit report and the comments made by the Comptroller and
Auditor General. Under Section 620 of the Act the Central Government may by notification
direct that any of the provisions of the Act, other than Sections 618, 619 and 639, shall not
apply to any Government company.
8. The net result of the aforesaid provisions is that so far as Durgapur Projects Ltd. and
Hindustan Steel Ltd. are concerned, the appellant was appointed an auditor by the Central
Government; he is removable by the Central Government and the Comptroller and Auditor-
General of India exercises full control over him. His remuneration is fixed by the Central
Government under sub-section (8) of Section 224 of the Act though it is paid by the company.
 137

9. In these circumstances the question is, does the appellant hold an office of profit under
the Central Government? We may now read Article 102(1) of the Constitution.
102. (1) A person shall be disqualified for being chosen as, and for being, a
member of either House of Parliament-
(a) if he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law not
to disqualify its holder
We have stated earlier that the sole question before us is whether the office of profit which the
appellant undoubtedly holds as auditor of Durgapur Projects Ltd., and Hindustan Steel Ltd. is
or is not under the Government of India. According to Mr. Chaudhuri who has argued the
appeal on behalf of the appellant, the expression “under the Government” occurring in Article
102(1)(a) implies sub-ordination to Government. His argument is that ordinarily there are five
tests of such subordination, namely:
(1) whether the Government makes the appointment to the office;
(2) whether the Government has the right to remove or dismiss the holder of office;
(3) whether the Government pays the remuneration;
(4) what are the functions which the holder of the office performs and does he
perform them for the Government; and
(5) does the Government exercise any control over the performance of those
functions.
His argument further is that the tests must all co-exist and each must show subordination to
Government so that the fulfilment of only some of the tests is not enough to bring the holder
of the office under the Government. According to him all the tests must be fulfilled before it
can be said that the holder of the office is under the Government. His contention is that the
Election Tribunal and the High Court were in error in holding that the appellant was a holder
of office under the Government, because they misconstrued the scope and effect of the
expression "under the Government" in Article 102(1)(a) of the Constitution. He has
contended that tests (3), (4) and (5) adverted to above are not fulfilled in the present case. The
appellant gets his remuneration from the company though fixed by Government; he performs
functions for the company and he is controlled by the Comptroller and Auditor-General who
is different from the Government.
10. On behalf of the respondents it is argued that the tests are not cumulative in the sense
contended for by the appellant, and what has to be considered is the substance of the matter
which must be determined by a consideration of all the factors present in a case, and whether
stress will be laid on one factor or the other will depend on the circumstances of each
particular case. According to the respondents, the tests of appointment and dismissal are
important tests in the present case, and in the matter of a company which is a 100%
Government company, the payment of remuneration fixed by Government, the performance
of the functions for the company and the exercise of control by the Comptroller and Auditor-
General, looked at from the point of view of substance and taken in conjunction with the
138

power of appointment and dismissal, really bring the holder of the office under the
Government which appoints him.
11. One point may be cleared up at this stage. On behalf of the respondents no question
has been raised that Durgapur Projects Limited, or Hindustan Steel Limited, is a department
of Government or an emanation of Government - a question which was considered at some
length in Narayanaswamy v. Krishnamurthi [ILR 1958 Mad. 513]. Learned counsel for the
respondents has been content to argue before us on the basis that the two companies having
been incorporated under the Indian Companies Act, 1956 are separate legal entities distinct
from Government. Even on that footing he has contended that in view of the provisions of
Section 619 and other provisions of the Indian Companies Act, 1956, an auditor appointed by
the Central Government and liable to be removed from office by the same Government, is a
holder of an office of profit under the Government in respect of a company which is really a
hundred per cent Government company.
12. We think that this contention is correct. We agree with the High Court that for holding
an office of profit under the Government, one need not be in the service of Government and
there need be no relationship of master and servant between them. The Constitution itself
makes a distinction between 'the holder of an office of profit under the Government' and 'the
holder of a post or service under the Government'; see Articles 309 and 314. The Constitution
has also made a distinction between 'the holder of an office of profit under the Government'
and 'the holder of an office of profit under a local or other authority subject to the control of
Government'; see Articles 58(2) and 66(4). In Maulana Abdul Shakur v. Rikhab Chand
[(1958) SCR 387] the appellant was the manager of a school run by a committee of
management formed under the provisions of the Durgah Khwaja Saheb Act, 1955. He was
appointed by the administrator of the Durgah and was paid Rs. 100 per month. The question
arose whether he was disqualified to be chosen as a member of Parliament in view of Article
102(1)(a) of the Constitution. It was contended for the respondent in that case that under
Sections 5 and 9 of the Durgah Khwaja Saheb Act, 1955 the Government of India had the
power of appointment and removal of members of the committee of management as also the
power to appoint the administrator in consultation with the committee; therefore the appellant
was under the control and supervision of the Government and that therefore he was holding
an office of profit under the Government of India. This contention was repelled and this court
pointed out the distinction between 'the holder of an office of profit under the Government'
and 'the holder of an office of profit under some other authority subject to the control of
Government'. Mr. Chaudhuri has contended before us that the decision is in his favour. He
has argued that the appellant in the present case holds an office of profit under the Durgapur
Projects Ltd. and the Hindustan Steel Ltd. which are incorporated under the Indian
Companies Act; the fact that the Comptroller and Auditor-General or even the Government of
India exercises some control does not make the appellant any less a holder of office under the
two companies. We do not think that this line of argument is correct. It has to be noted that in
Maulana Abdul Shakur case [(1958) SCR 387] the appointment of the appellant in that case
was not made by the Government nor was he liable to be dismissed by the Government. The
appointment was made by the administrator of a committee and he was liable to be dismissed
by the same body. In these circumstances this Court observed:
 139

No doubt the Committee of the Durgah Endowment is to be appointed by the

Government of India but it is a body corporate with perpetual succession acting,
within the four corners of the Act. Merely because the Committee or the members of
the Committee are removable by the Government of India or the Committee can
make bye-laws prescribing the duties and powers of its employees cannot in our
opinion convert the servants of the Committee into holders of office of profit under
the Government of India. The appellant is neither appointed by the Government of
India nor is removable by the Government of India nor is he paid out of the revenues
of India. The power of the Government to appoint a person to an office of profit or to
continue him in that office or revoke his appointment at their discretion and payment
from out of Government revenues are important factors in determining whether that
person is holding an office of profit under the Government, though payment from a
source other than Government revenue is not always a decisive factor. But the
appointment of the appellant does not come within this test.
It is clear from the aforesaid observations that in Maulana Abdul Shakur case the
factors which were held to be decisive were:
(a) the power of the Government to appoint a person to an office of profit or to continue
him in that office or revoke his appointment at their discretion, and
(b) payment from out of Government revenues, though it was pointed out that payment
from a source other than Government revenues was not always a decisive factor.
In the case before us the appointment of the appellant as also his continuance in office rests
solely with the Government of India in respect of the two companies. His remuneration is also
fixed by the Government. We assume for the purpose of this appeal, that the two companies
are statutory bodies distinct from Government but we must remember at the same time that
they are Government companies within the meaning of the Indian Companies Act, 1956 and
100% of the shares are held by the Government. We must also remember that in the
performance of his functions the appellant is controlled by the Comptroller and Auditor-
General who himself is undoubtedly holder of an office of profit under the Government,
though there are safeguards in the Constitution as to his tenure of office and removability
therefrom. Under Article 148 of the Constitution, the Comptroller and Auditor-General of
India is appointed by the President and he can be removed from office in like manner and on
the like grounds as a judge of the Supreme Court. The salary and other conditions of service
of the Comptroller and Auditor-General shall be such as may be determined by Parliament by
law and until they are so determined shall be as specified in the Second Schedule to the
Constitution. Under clause (4) of Article 148 the Comptroller and Auditor-General is not
eligible for further office either under the Government of India or under the Government of
any State after he has ceased to hold his office. Clause (5) of the said Article lays down that
subject to the provisions of the Constitution and of any law made by Parliament, the
administrative powers of the Comptroller and Auditor-General shall be such as may be
prescribed by rules made by the President after consultation with the Comptroller and
Auditor-General. Under Article 149 of the Constitution, the Comptroller and Auditor-General
shall perform such duties and exercise such powers in relation to the accounts of the Union
and of the States and of any other authority or body as may be prescribed by or under any law
140

made by Parliament and, until provision in that behalf is so made, shall perform such duties
and exercise such powers in relation to the accounts of the Union and of the States as were
conferred on or exercisable by the Auditor General of India immediately before the
commencement of the Constitution in relation to the accounts of the Dominion of India and of
the Provinces respectively. The reports of the Comptroller and Auditor-General of India
relating to the accounts of the Union have to be submitted to the President and the reports of
the Comptroller and Auditor General relating to the accounts of the State have to be submitted
to the Governor. From the aforesaid provisions it appears to us that the Comptroller and
Auditor-General is himself a holder of an office of profit under the Government of India,
being appointed by the President and his administrative powers arc such as may be prescribed
by rules made by the President, subject to the provisions of the Constitution and of any law
made by Parliament. Therefore, if we look at the matter from the point of view of substance
rather than of form, it appears to us that the appellant as the holder of an office of profit in the
two Government companies, Durgapur Projects Ltd. and Hindustan Steel Ltd., is really under
the Government of India; he is appointed by the Government of India, he is removable from
office by the Government of India; he performs functions for two Government companies
under the control of the Comptroller and Auditor-General who himself is appointed by the
President and whose administrative powers may be controlled by rules made by the President.
13. In Ramappa v. Sangappa [(1959)1 SCR 1167], the question arose as to whether the
holder of a village office who has a hereditary right to it is disqualified under Article 191 of
the Constitution, which is the counterpart of Article 102, in the matter of membership of the
State Legislature. It was observed therein:
The Government makes the appointment to the office though it may be that it has
under the statute no option but to appoint the heir to the office if he has fulfilled the
statutory requirements. The office is, therefore, held by reason of the appointment by
the Government and not simply because of a hereditary right to it. The fact that the
Government cannot refuse to make the appointment does not alter the situation.
14. There again the decisive test was held to be the test of appointment. In view of these
decisions we cannot accede to the submission of Mr. Chaudhury that the several factors which
enter into the determination of this question-the appointing authority, the authority vested
with power to terminate the appointment, the authority which determines the remuneration,
the source from which the remuneration is paid, and the authority vested with power to
control the manner in which the duties of the office are discharged and to give directions in
that behalf-must all co-exist and each must show subordination to Government and that it
must necessarily follow that if one of the elements is absent, the test of a person holding an
office under the Government, Central or State, is not satisfied. The cases we have referred to
specifically point out that the circumstance that the source from which the remuneration is
paid is not from public revenue is a neutral factor-not decisive of the question. As we have
said earlier whether stress will be laid on one factor or the other will depend on the facts of
each case. However, we have no hesitation in saying that where the several elements-the
power to appoint, the power to dismiss, the power to control and give directions as to the
manner in which the duties of the office are to be performed, and the power to determine the
 141

question of remuneration are all present in a given case, then the officer in question holds the
office under the authority so empowered.
15. For the reasons given above we have come to the conclusion that the Election
Tribunal and the High Court were right in coming to the conclusion that the appellant as an
auditor of the two Government companies held an office of profit under the Government of
India within the meaning of Article 102(1)(a) of the Constitution. As such he was disqualified
for being chosen as, and for being, a member of either House of Parliament.
16. The appeal accordingly fails and is dismissed with costs.

*****
142

Ashok Kumar Bhattacharya v. Ajoy Biswas

(1985) 1 SCC 151

SABYASACHI MUKHARJI, J.- This appeal arises out of the judgment and an order of
the Gauhati High Court in an election petition. The petitioner appellant was a voter in the
West Tripura Parliamentary Constituency from No. 7 Ramnagar Assembly Segment. He
contested the mid-term Lok Sabha election held in 1980 from the West Tripura Parliamentary
Constituency as a nominee of Congress (I). There were six candidates including the petitioner
contesting the said election. Respondent 1 was a C.P.I.(M) candidate. 8th December, 1979
was the date of filing of the nominations. Nominations were scrutinised on 11th December,
1979 and the withdrawal date was 13th December, 1979. On 6th January, 1980 the polling
was held and the result of the election was declared on 8th January, 1980. The main contest
was between the petitioner/appellant and the respondent 1, Ajoy Biswas. The respondent 1
had secured 1,98,335 votes as against the appellant who had secured 1,42,990 votes. The
respondent no. 1 was declared elected.
2. The only point on which the election petition by the appellant/petitioner was pressed
before the High Court and the only point urged before us in this appeal, is whether respondent
1 was disqualified for being elected as a member of the House of People as he held an office
of profit under the Government of Tripura within the meaning of Article 102(1)(a) of the
Constitution. On the relevant date, respondent 1 was the accountant-in-charge of the Agartala
Municipality. Therefore, the question involved in this appeal, is, whether an accountant-in-
charge of the Agartala Municipality holds an office of profit within the meaning of Article
102(1)(a) of the Constitution. In order to determine this question, it will be necessary to refer
to certain facts.
3. Respondent 1 was employed in Agartala Municipality and held the post carrying the
scale of pay of Rs. 80-180 per month. The Commissioners of the Agartala Municipality were
superseded by an order of the State Government under Section 553 of the Bengal Municipal
Act, 1932 as extended to the State of Tripura in 1975. The effect of Section 554 of the said
Act is that during the period of supersession the powers and duties of the Commissioners and
Chairman shall be exercised and performed by the Administrator appointed by the State
Government under that section. Respondent 1 who was under suspension at the time of
supersession was dismissed from service in the disciplinary proceedings against him by the
Administrator of Agartala Municipality on 20th December, 1975. The State Government
thereafter had confirmed the order of dismissal. When the Left Front Government came in
power in the State of Tripura, respondent 1 was reinstated to the post of accountant- in-charge
of Agartala Municipality on 6th May, 1978 with immediate effect by the Administrator. So, at
the relevant time he was an assistant accountant and was accountant-in- charge under the
Agartala Municipality drawing a monthly salary of Rs. 200.
4. It is necessary to briefly note some of the relevant provisions of the said Act in view of
the contentions urged in this appeal. Proviso (ii) to Section 66(2) of the said Municipal Act
provides that no appointment carrying a monthly salary of more than two hundred rupees or a
salary rising by periodical increments to more than two hundred rupees shall be created
without the sanction of the State Government, and every nomination to, and dismissal from,
 143

any such nomination shall be subject to confirmation by the State Government. It appears that
the Deputy Secretary to the Government of Tripura by his letter dated 6th May 1978 had
conveyed to the Administrator, Agartala Municipality, decision of the Government for
cancellation of the order of confirmation of the dismissal communicated to him on l9th
December, 1975. As a result, the cancellation order ceased to be effective and respondent 1
was reinstated and it was further provided that the period between the date of dismissal and
the date of reinstatement would he treated as period spent on duty for all purposes.
5. The Act further provides that there shall be established for each Municipality a body of
Commissioners consisting of such members or Commissioners, not being more than twenty
nor less than six, as the State Government may specify in the notification constituting the
Municipality. Such Commissioners shall be a body corporate by the name of the Municipal
Commissioners of the place by reference to which the Municipality is known, having
perpetual succession and a common seal, and by that name shall sue and be sued. The
Municipality consists of elected Commissioners. A Chairman is elected by the
Commissioners from amongst the Commissioners within 30 days from the date of publication
of the result of the general election of the Commissioners in the Municipality failing which
the State Government has the power to appoint one of the Commissioners to be the Chairman.
A Vice-Chairman is also to be elected from amongst themselves. The Chairman is
empowered within certain limitations to transact the business connected with the Act and
exercise all the powers vested in the Commissioners under the Act, except as otherwise
provided. The Commissioners are to hold office for four years commencing from the date of
the first meeting of the newly formed body of Commissioners after a general election of
Commissioners in the Municipality at which a quorum is present. An elected Chairman or
Vice-Chairman may, at any time, be removed from his office by a resolution of the
Commissioners as laid down in section 61(2) or (3) of the said Act. The Act also empowered
the State Government to remove an elected Commissioner on certain grounds set out in
section 62 of the said Act.
6. In view of the contentions raised in this appeal, it would be relevant to refer and set out
section 66 of the said Act which is as follows:
66. Appointment of subordinate officers.-
(1) The Commissioners at a meeting may, subject to the provisions of this Act and the
Rules made thereunder from time to time, determine what officers and what servants of the
Commissioners are necessary for the municipality and may fix the salaries and allowances to
be paid and granted to such officers and servants.
(2) Subject to the scale of establishment approved by the Commissioners under sub-
section (1), the Chairman shall have power to appoint such persons as he may think fit, and
from time to time to remove such persons and appoint others in their places.
Provided as follows:
(i) a person shall not be appointed to an office carrying a monthly salary of more than
fifty rupees or a salary rising by periodical increments to more than fifty rupees without
the sanction of the Commissioners at a meeting, and an officer or servant whose post
144

carries a monthly salary of more than twenty rupees shall not be dismissed without such
sanction.
(ii) no appointment carrying a monthly salary of more than two hundred rupees or a
salary rising by periodical increments to more than two hundred rupees shall be created
without the sanction of the State Government, and every nomination to, and dismissal
from, any such appointment shall be subject to confirmation by the State Government.
(iii) no person holding an office carrying a monthly salary of one hundred rupees or
more shall be dismissed unless such dismissal is sanctioned by a resolution of the
Commissioners passed at a special meeting called for the purpose and, except with the
consent of the State Government, unless such resolution has been supported by the votes
of not less than two-thirds of the total number of Commissioners holding office for the
time being.
(3) Notwithstanding anything contained in sub-section (2), the creation of and nomination
to or suspension, removal or dismissal from, the post of Executive officer shall, irrespective
of the salary assigned to the post, be subject to confirmation by the State Government.
7. The Act further provides that besides the officers and the servants mentioned above, all
or any of the officers mentioned in section 67 may be appointed by the Commissioners. In
certain circumstances, the Act provides, that the State Government may have an Executive
officer for such period as may be specified in the Notification. Section 93 provides that as
soon as may be after the first day of April in every year not later than such date as may be
fixed by the State Government, the Commissioners shall submit to the State Government a
report on the administration of the Municipality during the preceding year in such form and
with such details as the State Government may direct, and a copy of the report shall also be
submitted by the Commissioners to the District Magistrate. The Commissioners of a
Municipality may acquire and hold property within or without the limits of the Municipality,
and all property within the Municipality, of the nature specified in section 95, other than
property maintained by the Central Government or any other local Authority, are vested in
and belong to the Commissioners, and are under their direct management and control. By
section 102 of the said Act, the Commissioners are empowered to purchase, take on lease or
otherwise acquire any land for the purposes of the said Act, and may sell, lease, exchange or
otherwise dispose of any land not required for such purposes. They are also empowered to
enter into and perform any contract necessary for the purpose of the Act. A fund called the
Municipal fund is constituted for each Municipality and all sums received by or on behalf of
the Commissioners under the said Act or otherwise, and the balance, if any, standing at the
credit of the Municipal fund of the Municipality at the commencement of the said Act, are
credited to the said fund. The purposes to which the Municipal Fund is applicable are
enumerated in section 108 of the Act. If any work is estimated to cost above ten thousand
rupees, the State Government may require the plans and estimates of such works to be
submitted for its approval, or for the approval of any servant of the Government before such
work, in such form as it might prescribe.
8. There are provisions for imposing taxes, tolls and fees under section 123 of the said Act
and to make assessment of the rate on the annual value of the holdings under section 128 of
the said Act. Powers are conferred to impose taxes. There are other provisions for raising fund
 145

for the Municipality by way of charging fee for registration etc. The Act empowers raising of
funds for the Municipality for carrying out the purposes of the said Act.
9. In this connection it may be relevant to refer to clause (31) of section 3 of the General
Clauses Act, 1897, and in view of the provisions of the Act it was held by the High Court that
Agartala Municipality is a 'Local Authority' within the meaning of that expression as defined
in clause (31) of section 3 of the General Clauses Act, 1897. We are of the opinion that the
High Court was right.
10. In view of the facts narrated before, it was found by the High Court, and in our
opinion rightly, that respondent 1 was at the relevant time holding an office of profit under a
local municipality. Section 66 which we have set out hereinbefore indicates that the
appointment of persons to the category of post held by respondent 1 was to be made by the
Commissioners of Municipality, but the appointment was subject to the confirmation by the
State Government. The High Court held and we are of the opinion rightly that the respondent
1 was an officer of the Commissioners. Section 63 of the said Act provides that such officers
and servants of the Commissioners shall be subordinate to the Executive Officer appointed by
the Commissioners. Respondent 1 was appointed by Commissioners, though sanction of the
Government was obtained. He could be removed by the Commissioners, again subject to the
sanction of the Government. He was paid out of the municipal funds which the Municipality
was and is competent to raise. From the analysis of the provisions of the Act it is clear that
though the Government exercises certain amount of control and supervision, respondent 1
was not an employee of the Government nor was he required to perform governmental
functions for the Government.
11. Municipalities are separately mentioned in contradistinction of the State Government
as it will be clear from reference to Item 5 in List II of the VII Schedule of the Constitution.
Therefore, a local authority as such is a separate and distinct entity. This will become further
clear from Article 58(2) of the Constitution.
12. The question involved in this appeal is whether respondent 1 held an office of profit
under sub-clause (a) of Clause (1) of Article 102 of the Constitution. Sub-clause (a) of Article
102 (1) provides as follows:-
Article 102- Disqualification for membership - (1) A person shall be disqualified for
being chosen as, and for being, a member of either House of Parliament-
(a) If he holds any office of profit under the Government of India or the
Government of any State, other than an office declared by Parliament by law not to
disqualify its holder.
13. In contradistinction, clause (2) of Article 58 which mentions disqualifications for
election as President provides as follows :-
58. Disqualifications for elections President:
(1).....
(2) A person shall not be eligible for election as President if he holds any office of
profit under the Government of India or the Government of any State or under any local
or other authority subject to the control of any of the said Governments.
146

14. In fact a person who is holding an office of profit either under the Government of
India or the Government of any State or under any local or other authority subject to the
control of any of the said Governments is disqualified from becoming the President but if a
person holds an office of profit under the Government of India or the Government of any state
he is only disqualified from being a member of Parliament. A holder of the office of profit
under any local or other authority subject to the control of the State or Central Government is
as such not disqualified from becoming a Member of Parliament. Keeping in view these
provisions, it is necessary to consider the question whether respondent 1 was holding an
office of profit under the State Government.
15. In the case of D. R. Gurushantappa v. Abdul Khuddus Anwar [(1969) 3 SCR 425]
this Court had to consider whether a candidate employed in a company owned by the
Government was disqualified under Article 102(1) (a) and 191 (l)(a) of the Constitution and
in this connection considered the relevant provisions of Articles 102(1) (a) and 191(1) (a) of
the Constitution. After discussing the case of Gurugobinda Basu v. Sankari Prasad Ghosal
[(1964) 4 SCR 311] and the decision in the case of Maulana Abdul Shakur v. Rikhab Chand
[(1958) 3 SCR 387], this Court came to the conclusion that the mere fact that the Government
had control over the Managing Director and other Directors as well as the power of issuing
directions relating to the working of the company could not lead to the inference that every
employee of the company was under the control of the Government.
16. The true principle behind this provision in Article 102 (1) (a) is that there should not
be any conflict between the duties and the interests of an elected member. Government
controls various activities in various spheres and in various measures. But to judge whether
employees of any authority or local authorities under the control of Government become
Government employees or not, or holders of office of profit under the Government the
measure and nature of control exercised by the Government over the employee must be
judged in the light of the facts and circumstances in each case so as to avoid any possible
conflict between his personal interests and duties and those of the Government. This position
was further examined in the case of Surya Kant Roy v. lmamul Hai Khan [(1975) 3 SCR
909] There, under the Bihar and Orissa Mining Settlement Act, 1920, a Board called the
Mines Board of Health may be established to provide for the control and sanitation of any
area within which the persons employed in a mine reside and for the prevention therein of the
outbreak and spread of epidemic diseases. After analysing the facts of that case, this Court
held that the mere fact that the candidate was appointed Chairman of the Board by the State
Government would not make him a person holding an office of profit under the State
Government. There the Supreme Court referred to the decision in the case of Shivamurthy
Swami v. Agadi Sanganna Andanappa [(1971) 3 SCC 870]. This Court in Surya Kant Roy
v. Imamul Hai Khan observed at page 911 as follows:
Here again it is to be pointed out that the Government does not pay the
remuneration nor does the holder perform his functions for the Government. To hold
otherwise would be to hold that local bodies like Municipal Councils perform their
functions for the Government though in one sense the functions they perform are
governmental functions.
 147

17. In the case of D.R. Gurushantappa v. Abdul Khuddus Anwar mentioned herein
before, at page 434 this Court observed as follows:
Thus, in the case of election as President or Vice President, the disqualification
arises even if the candidate is holding an office of profit under a local or any other
authority under the control of the Central Government or the State Government,
whereas, in the case of a candidate for election as a Member of any of the
Legislatures, no such disqualification is laid down by the Constitution if the office of
profit is held under a local or any other authority under the control of the
Governments and not directly under any of the Governments. This clearly indicates
that in the case of eligibility for election as a member of a Legislature, the holding of
an office of profit under a corporate body like a local authority does not bring about
disqualification even if that local authority be under the control of the Government.
The mere control of the Government over the authority having the power to appoint,
dismiss, or control the working of the officer employed by such authority does not
disqualify that officer from being a candidate for election as a member of the
Legislature in the manner in which such disqualification comes into existence for
being elected as the President or the Vice-President. The Company, in the present
case, no doubt did come under the control of the Government and respondent 1 was
holding an office of profit under the Company; but, in view of the distinction
indicated above, it is clear that the disqualification laid down under Article 191 (1)
(a) of the Constitution was not intended to apply to the holder of such an office of
profit.
18. This view was again reiterated by this Court in the case of Madhuker G.E.
Panakakar v. Jaswant Chabbildas Rajani [(1976) 3 SCR 832 at 851] where this Court
observed as follows:
The core question that comes to the fore from the survey of the panorama of
case law is as to when we can designate a person gainfully engaged in some work
having a nexus with Government as the holder of an 'office of profit' under the
Government in the setting of disqualification for candidature for municipal or like
elections. The holding of an office denotes an office and connotes its holder and this
duality implies the existence of the office as an independent continuity and an
incumbent thereof for the once.
Certain aspects appear to be elementary. For holding an office of profit under
the Government one need not be in the service of Government and there need be no
relationship of master and servant (Guru Gobinda). Similarly, we have to look at
the substance, not the form. Thirdly, all the several factors stressed by this Court as
determinative of the holding of an 'office' under Government, need not be conjointly
present, the critical circumstances, not the total factors, prove decisive. A practical
view not pedantic basket of tests, should guide in arriving at a sensible conclusion.
19. In a recent decision of this Court in the case of Biharilal Dobray v. Roshan Lal
Dobray [(1984)1 SCC 155] this Court was concerned with the question whether an office of
profit was held directly under the Government in the facts of that case. There was an assistant
teacher of a Basic Primary School run by the U.P. Board of Basic Education under the U.P.
148

Basic Education Act, and it was held that it was an office of profit under the State
Government within the meaning of Article 191 (1) (a) of the Constitution and therefore he
was disqualified from election. There the respondent was originally employed as an assistant
teacher in a Basic Primary School which was being run and managed by the Zila Parishad. On
coming into force of the U.P. Basic Education Act, 1972, he became an employee of the
Board of Basic Education under Section 9 (1) of the Act. While holding the post of an
assistant teacher as such he filed his nomination for his election to the State Legislative
Assembly. But the Returning officer rejected his nomination paper on the ground that he was
holding an office of profit under the State Government and hence he was disqualified under
Article 191 (1) (a) for being elected as an M.L.A. Article 191 (1) (a) is in terms pari materia
with Article 102 (1) (a) of the Constitution regarding the election to the State Assembly. The
respondent herein filed an election petition and the High Court allowed the same declaring
that the election of the appellant by rejecting the nomination of the respondent was void. The
appellant therefore preferred the appeal to this Court. This Court allowed the appeal and it
was held that the respondent was holding an office of profit under the State Government.
20. As we have mentioned before, the object of enacting provisions like Article 102 (1)
(a) and Article 191(1) (a) is that a person who is elected to Parliament or a Legislature should
be free to carry on his duties fearlessly without being subjected to any kind of governmental
pressure. The term ‘office of profit under the Government’ used in clause (a) of Article 102(1)
is an expression of wider import than a post in connection with the Union or of any State
which is dealt with in Part XIV of the Constitution. The measure of control by the
Government over a local authority should be judged in order to eliminate the possibility of
conflict between duty and interest and to maintain the purity of the elected bodies. After
reviewing various cases, and the provisions of the various sections of the U.P. Basic
Education Act, 1972, especially in view of section 13 of the Act, this Court held in the last
mentioned case that the measure of control was such that the U.P. Education Board was an
authority which was not truly independent of the Government and every employee of the
Board was in fact holding an office of profit under the State Government. The statement of
Objects and Reasons of the U.P. Basic Education Act, 1972 and sections 4, 6, 7, 13 and 19 all
of which have been set out in extenso in that decision make that conclusion irresistible.
21. For determination of the question whether a person holds an office of profit under the
Government, each case must be measured and judged in the light of the relevant provisions of
the Act. Having regard to the provisions of the Bengal Municipal Act, 1932 as extended to
Tripura, the provisions of which have been set out hereinbefore, we are of the opinion that the
State Government does not exercise any control over officers like respondent 1 and that he
continues to be an employee of the Muncipality though his appointment is subject to
confirmation by the Government. Just by reason of this condition an employee of a local
authority does not cease to be an employee of the Muncipality. Local authority as such or any
other authority does not cease to become independent entity separate from Government.
Whether in a particular case it is so or not must depend upon the facts and circumstances of
the relevant provisions. To make in all cases employees of local authorities subject to the
control of Government and to treat them as holders of office of profit under the Government
would be to obliterate the specific differentiation made under Article 58(2) and Article 102
 149

(1) (a) of the Constitution and to extend disqualification under Article 58 (2) to one under
Article 102 (1) (a) to an extent not warranted by the language of the Article.
22. Having noted the relevant provisions, we are of the opinion that respondent 1 was not
at the relevant time a holder of office of profit under the Government. Some amount of
control is recognised even in a local authority which is taken account of under Article 58. The
High Court held that respondent 1did not hold an office of profit under the Government of
Tripura on the date of filing of the nomination on an analysis of relevant provisions of the Act
which we have set out hereinbefore. We are in agreement with this view of the High Court.
23. In the premises, respondent 1 was not disqualified from filing his nomination. The
appeal, therefore, fails and is accordingly dismissed with costs.

*****
150

Jaya Bachchan v. Union of India

AIR 2006 SC 2119

After obtaining the opinion of the Election Commission as required by Article

103(2) of the Constitution of India, the President of India in exercise of powers
conferred under clause (1) of Article 103 had decided that the petitioner stands
disqualified for being a Member of Rajya Sabha on and from 14th July, 2004. As per
the opinion of the Election Commission rendered to the President of India under
clause (2) of Article 103 that the petitioner became disqualified under Article
102(1)(a) of the Constitution for being a Member of Rajya Sabha on 14th July, 2006
on her appointment by the Government of Uttar Pradesh as Chairperson of the U.P.
Film Development Council terming the same as “office of profit” under the
Government of Uttar Pradesh. The petitioner challenged both the said decision of the
President of India as well as the opinion of the Election Commission rendered by it to
the President of India.
The petitioner relied on the decisions in Umrao Singh v. Darbara Singh [(1969)
1 SCR 421] and Divya Prakash v. Kultar Chand Rana [(1975)1 SCC 264] and also
referred to Biharilal Dobray v. Roshan Lal Dobray [(1984)1 SCC 551] and
contended that the post of Chairperson of the Council, and the conferment of the rank
of a Cabinet Minister were only decorative; that she did not receive any remuneration
or monetary benefit or other facilities from the State Government. After a careful
examination of the decisions relied upon by the petitioner, the Hon’ble Supreme
Court held that it was well settled that where the office carries with it certain
emoluments or the order of the appointment states that the person appointed was
entitled to certain emoluments, then it will be an office of profit, even if the holder of
the office chooses not to receive/draw such emoluments and stated that what was
relevant was whether pecuniary gain is ‘receivable’ in regard to the office and not
whether pecuniary gain was in fact, received or received negligibly.
The Supreme Court held that the office did carry with it a monthly honorarium of
Rs. 5000/-, entertainment expenditure of Rs. 10,000/-, other facilities including free
accommodation and medical facilities and that these were pecuniary gains, cannot be
denied. Thus, the Hon’ble Supreme Court found no merit in the writ petition and the
same was accordingly dismissed.

Y.K. SABHARWAL, C.J.I., C.K. THAKKER and R.V. RAVEENDRAN, JJ. -

ORDER
The challenge in this petition filed under Article 32 of the Constitution of India, is to the
order of the Hon’ble President of India, dated 16th March 2006, whereby, in exercise of
powers conferred under clause (1) of Article 103 of the Constitution of India, the Hon’ble
President has decided, after obtaining the opinion of the Election Commission as required by
Article 103(2), that the petitioner stands disqualified for being a Member of the Rajya Sabha
on and from the 14th day of July 2004. The challenge is also to the opinion dated 2nd March,
2006 rendered by the Election Commission to the Hon’ble President under clause (2) of
 151

Article 103, that the Petitioner became disqualified under Article 102(1)(a) of the Constitution
for being a Member of the Rajya Sabha on and from 14th July, 2004 on her appointment by
the Government of Uttar Pradesh as Chairperson of the U.P. Film Development Council.
2. The Government of Uttar Pradesh, by Official Memorandum dated 14-7-2004,
appointed the petitioner as the Chairperson of Uttar Pradesh Film Development Council (for
short ‘the Council’) and sanctioned to her the rank of a Cabinet minister with the facilities as
mentioned in O.M. No. 14/1/46/87-C Ex.(1) dated 22.3.1991 (as amended from time to time).
The benefits to which she became entitled, as a consequence, are:
(i) Honorarium of Rs. 5,000/- per month.
(ii) Daily allowance @ Rs. 600 per day within the State and Rs. 750/- outside the
State.
(iii) Rs. 10,000/- per month towards entertainment expenditure.
(iv) Staff car with driver, telephones at office and residence, one P.S., one P.A. and
two class IV employees.
(v) Body guard and night escort.
(vi) Free accommodation and medical treatment facilities to her and family members.
(vii)Free accommodation in government circuit houses/guest houses and hospitality
while on tour.
3. The Election Commission, after referring to the facts and the law enunciated by this
Court in several decisions, has expressed the opinion that the office of Chairperson of the
Council to which the petitioner was appointed by the State Government by O. M. dated
14.7.2004, on the terms and conditions specified therein, is an “office of profit” under the
Government of Uttar Pradesh for the purposes of Article 102(1)(a) of the Constitution. The
Commission also found that Section 3 of the Parliament (Prevention of Disqualification) Act,
1959 did not exempt the said office of profit from disqualification under Article 102(1) (a) of
the Constitution.
4. The petitioner contends that the post of Chairperson of the council, and the conferment
of the rank of Cabinet Minister, were only “decorative”; that she did not receive any
remuneration or monetary benefit from the State Government; that she did not seek residential
accommodation, nor used telephone or medical facilities; that though she travelled several
times in connection with her work as chairperson, she never claimed any reimbursement; and
that she had accepted the chairpersonship of the Council honorarily and did not use any of the
facilities mentioned in the O.M. dated 22.3.1991. The petitioner contends that in the absence
of any finding by the Election Commission that she had received any payment or monetary
consideration from the State government, she could not be said to hold any office of profit
under the State Government and, therefore, her disqualification was invalid.
5. It is not in dispute that the Council is not an autonomous body or statutory corporation,
that the council has no budget of its own, and that all its expenses are met by the Department
of the State Government administratively in-charge of it. Similarly, the fact that the petitioner
was appointed as Chairperson of the Council, conferring on her the rank of a Cabinet Minister
entitling her to all the remuneration and benefits as provided in the O.M. dated 22.3.1991
(extracted above), is also not disputed.
152

6. Clause (1) (a) of Article 102 provides that a person shall be disqualified for being
chosen as, and for being, a member of either House of Parliament if he holds any office of
profit under the Government of India or the Government of any State, other than an office
declared by Parliament by law not to disqualify its holder. The term ‘holds an office of profit’
though not defined, has been the subject matter of interpretation, in several decisions of this
Court. An office of profit is an office which is capable of yielding a profit or pecuniary gain.
Holding an office under the Central or State Government, to which some pay, salary,
emolument, remuneration or non-compensatory allowance is attached, is ‘holding an office of
profit’. The question whether a person holds an office of profit is required to be interpreted in
a realistic manner. Nature of the payment must be considered as a matter of substance rather
than of form. Nomenclature is not important. In fact, mere use of the word ‘honorarium’
cannot take the payment out of the purview of profit, if there is pecuniary gain for the
recipient. Payment of honorarium, in addition to daily allowances in the nature of
compensatory allowances, rent free accommodation and chauffeur driven car at State
expense, are clearly in the nature of remuneration and a source of pecuniary gain and hence
constitute profit. For deciding the question as to whether one is holding an office of profit or
not, what is relevant is whether the office is capable of yielding a profit or pecuniary gain and
not whether the person actually obtained a monetary gain. If the “pecuniary gain” is
“receivable” in connection with the office then it becomes an office of profit, irrespective of
whether such pecuniary gain is actually received or not. If the office carries with it, or entitles
the holder to, any pecuniary gain other than reimbursement of out of pocket / actual expenses,
the office will be an office of profit for the purpose of Article 102(1)(a). This position of law
stands settled for over half a century.
7. The petitioner relied on the decisions in Umrao Singh v. Darbara Singh [(1969)1
SCR 421] and Divya Prakash v. Kultar Chand Rana [(1975)1 SCC 264].
8. In Umrao Singh case, the question that arose for consideration was whether payment
of a monthly consolidated allowance for performing all official duties and journeys
concerning the work and a mileage allowance for the journeys performed for official work
outside the district and daily allowance for the days of attendance of meetings/travel/halt,
would convert the office of Chairman of a Panchayat Samiti into an office of profit. This
Court held that these were allowances paid for the purpose of ensuring that the Chairman did
not have to spend money out of his own pocket for discharging his official duties, and
therefore, receipt of such allowances did not make the office one of profit.
9. In Divya Prakash case, this Court held that the post of the Chairman of the Board of
School Education of the State of Himachal Pradesh was not an office of profit. The candidate
was appointed specifically in an honorary capacity without any remuneration. Further that
post of Chairman did not carry with it a scale of pay. On the same date the Bench also decided
the case of K.B. Rohamare v. Shankar Rao [(1975)1 SCC 252] where while discussing the
question at length, Ravanna Subanna v. G. S. Kaggeerappa [AIR 1954 SC 653] was cited
with approval. It was held in the said case that amount of money receivable (emphasis
supplied by us) by a person in connection with the office he holds is material when deciding
whether the office carried any profit.
 153

10. Learned counsel for the petitioner has also referred to Biharilal Dobray v. Roshanlal
Dobray [(1984) 1 SCC 551] and contended that, citing Divya Prakash case with approval, it
was held that when a candidate is appointed in an honorary capacity without any
remuneration, even though the post carried remuneration, he cannot be said to be holding an
office of profit and thus, was not disqualified under Article 191 (1) (a) of the Constitution. In
Biharilal Dobray case it was held that the respondent was holding an office of profit under
the State Government and his nomination was rightly rejected by the Returning Officer. In
that case, the only question was whether the post the respondent was holding was one under
the State Government or not. The observations made with reference to Divya Prakash case
were clearly obiter. Further, an error seems to have been made while noticing Divya Prakash
case. In Divya Prakash case, it was held that the post did not carry with it any remuneration
but in Biharilal Dobray case, it was said that the post carried remuneration.
11. A careful examination of the decisions relied upon by the learned counsel on behalf
of the petitioner shows that each of those cases turned on its own facts and did not lay down
any proposition of law contrary to what has been laid down in a series of decisions starting
from Ravanna Subanna to Shibu Soren. It is well settled that where the office carries with it
certain emoluments or the order of appointment states that the person appointed is entitled to
certain emoluments, then it will be an office of profit, even if the holder of the office chooses
not to receive/draw such emoluments. What is relevant is whether pecuniary gain is
“receivable” in regard to the office and not whether pecuniary gain is, in fact, received or
received negligibly.
12. In this case, as noticed above, the office carried with it a monthly honorarium of Rs.
5000/-, entertainment expenditure of Rs. 10,000/-, staff car with driver, telephones at office
and residence, free accommodation and medical treatment facilities to self and family
members, apart from other allowances etc.- that these are pecuniary gains, cannot be denied.
The fact that the petitioner is affluent, or was not interested in the benefits/facilities given by
the State Government, or did not in fact receive such benefits till date, are not relevant to the
issue.
13. In this view, the question whether the petitioner actually received any pecuniary gains
or not is of no consequence. We find no merit in the writ petition and the same is,
accordingly, dismissed

*****
154

Consumer Education & Research Society v. Union of India

(2009) 9 SCC 648

K. G. BALAKRISHNAN, C.J. - 1. These two writ petitions filed under Article 32 of the
Constitution by way of public interest litigation, challenge the constitutional validity of the
Parliament (Prevention of Disqualification) Amendment Act, 2006 (Act No. 31/2006,
'Amendment Act'). It amended the Parliament (Prevention of Disqualification) Act, 1959
(`Principal Act'). The Amendment Act adds to the list of `Offices of Profit' which do not
disqualify the holders thereof for being chosen as, or for being the Members of Parliament.
Historical background
2. The expression ‘Office of Profit’ is not defined in the Constitution. The view that
certain offices or positions held by a Member of Parliament (Hereinafter also referred to as
`MP') may be either incompatible with his/her duty as an elected representative of the people,
or affect his/her independence, and thus weaken the loyalty to his/her constituency and,
therefore, should disqualify the holder thereof, had its origin in the Parliamentary history of
the United Kingdom. (See: The Introduction to the Bhargava Committee Report on Office of
Profit, dated 22.10.1955). The concept of `office of profit' has a history of more than four
centuries in United Kingdom and it has evolved through many phases. The first was the
"privilege" phase (prior to 1640). The second was the "corruption" phase (from 1640). The
third was the "ministerial responsibility" phase (after 1705). Initially the English Parliament
claimed priority over the services of its Members and it was considered derogatory to its
privilege if any of its Members accepted some other office which would require a great deal
of their time and attention. This led to the evolution of the idea that the holding of certain
offices would be incompatible with the responsibilities of a Member of Parliament. This was
the first phase. During the second phase, there was a protracted conflict between the Crown
and the House of Commons. Loyalty to the King and the loyalty to the House of Commons
representing the will of the people became growingly irreconcilable and it was thought that if
any Member accepted an `office of profit' under the Crown, there was every chance of his
loyalty to Parliament being compromised.
Subsequently came the third phase. The King was reduced to the position of a
constitutional head and the cabinet, functioning in the name of the Crown became the centre
of the executive government. The Privy Councillors, who during the second phase were
invariably considered to be the henchmen of the King and were as such looked upon with
suspicion by the House of Commons, yielded place to the Ministers, who for some time were
also disqualified from holding a seat in the House. Later it came to be recognized that the
application of the disqualification rule to incumbent ministers was too extreme and with the
intent of ensuring effective coordination between the executive and the legislature, it was
accepted that the Members of the executive should be represented in the Parliament. This
recognition led to the passing of several enactments by the British Parliament. The Re-
Election of Ministers Act enacted by the British Parliament in 1919 and 1926 required any
Member who was appointed to a `political office' to seek re-election.
 155

3. As we have adopted the British Parliamentary form of Government, the concept of

‘office of profit' was also adopted with some modifications. The concept of `office of profit'
began to develop with the entry of non-official members in the Legislature. A clear and
precise statement in this regard was made in Section 26(1)(a) of the Government of India Act,
1935 which provided that a person shall be disqualified for being chosen as, and for being, a
Member of either Chamber if he held any office of profit under the Crown of India, other than
an office declared by Act of the Federal Legislature not to disqualify its holder.
4. When the Constitution of India came into force on 26th January, 1950 declaring that
a person holding an office of profit would be disqualified, the explanation to Article 102
clarified that a person who is a Minister (either for the Union or for any State) shall not be
deemed to hold an office of profit. However, there existed Ministers of State as also Deputy
Ministers in the Union Government who were not specifically exempted from disqualification
under Article 102 because the expression `minister' was construed as referring only to a
Cabinet Minister. In order to address this situation, the Parliament (Prevention of
Disqualification) Act, 1950 was enacted. Section 2 of the said Act provided:
2. Prevention of disqualification for membership of Parliament: A person
shall not be disqualified for being chosen as, and for being a member of Parliament
by reason only of the fact that he holds any of the following offices of profit under
the Government of India or the Government of any State, namely, an office of
Minister of State or a Deputy Minister, or a Parliamentary Secretary or a
Parliamentary Under Secretary.
5. This was followed by the Parliament (Prevention of Disqualification) Act, 1951
declaring that certain offices (specified in Section 2 thereof) under the government shall not
disqualify, and shall be deemed never to have disqualified the holders thereof for being
chosen as, or for being, Members of Parliament. The said Act was given retrospective effect
from 26.1.1950.
6. In 1954, a Committee was constituted under the chairmanship of Pandit Thakur Das
Bhargava to study the various matters connected with the disqualification of MP's and to
make recommendations in order to enable the government to consider the manner in which a
comprehensive legislation should be brought. The Committee submitted its report in 1955. In
1959 the Parliament (Prevention of Disqualification) Act, 1959 was enacted, thereby
declaring that certain offices of profit under the government shall not disqualify the holders
thereof for being chosen as or for being, Members of Parliament. Section 3 of the Principal
Act (amended from time to time) declared that none of the following offices in so far as it is
an office of profit under the government of India or the government of any State, shall
disqualify the holder thereof for being chosen as, or for being, a Member of Parliament:
"(a) any office held by a Minister, Minister of State or Deputy Minister for the Union or
for any State, whether ex officio or by name;
(aa) the office of a Leader of the Opposition in Parliament;
(ab) the office of Deputy Chairman, Planning Commission;
156

(ac) the office of each leader and deputy leader of a recognized party and
recognized group in either House of Parliament;
(b) the office of Chief Whip, Deputy Chief Whip or Whip in Parliament or of a
Parliamentary Secretary;
(ba) the National Commission for Minorities constituted under Section 3 of the
National the office of Chairperson of –
(i) Commission for Minorities Act, 1992 (19 of 1992);
(ii) the National Commission for the Scheduled Castes and Scheduled Tribes
constituted under clause (1) of article 338 of the Constitution;
(iii) the National Commission for Women constituted under Section 3 of the
National Commission for Women Act, 1990 (20) of 1990;
(c) the office of member of any force raised or maintained under the National Cadet
Corps Act, 1948 (56 of 1948), or the Reserve and Auxiliary Air Forces Act, 1952 (62 of
1952);
(d) the office of a member of a Home Guard constituted under any law for the time
being in force in any State;
(e) the office of sheriff in the city of Bombay, Calcutta or Madras;
(f) the office of chairman or member of the syndicate, senate, executive committee,
council or court of a university or other body connected with a university;
(g) the office of a member of any delegation or mission sent outside India by the
Government for any special purpose;
(h) the office of chairman or member of a committee (whether consisting of one or
more members), set up temporarily for the purpose of advising the Government or any other
authority in respect of any matter of public importance or for the purpose of making an
inquiry into, or collecting statistics in respect of, any such matter, if the holder of such office
is not entitled to any remuneration other than compensatory allowance;
(i) the office of Chairman, director or member of any statutory or non- statutory body
other than any such body as is referred to in clause (h), if the holder of such office is not
entitled to any remuneration other than compensatory allowance, but excluding (i) the office
of chairman of any statutory or non-statutory body specified in Part I of the Schedule, (ii) the
office of chairman or secretary of any statutory or non-statutory body specified in Part II of
the Schedule;
(j) the office of village revenue officer, whether called a lambardar, malguzar, patel,
deshmukh or by any other name, whose duty is to collect land revenue and who is
remunerated by a share of, or commission on, the amount of land revenue collected by him,
but who dies not discharge any police functions."
7. The trigger for the present controversy arose when a Member of the Rajya Sabha -
Mrs. Jaya Bachchan was appointed as the Chairperson of the Uttar Pradesh Film
Development Council on 14.7.2004. A complaint was made that this amounted to the holding
of an `office of profit' on her part and thus, she was not entitled to continue as a Member of
 157

the Rajya Sabha in view of Article 102(1)(a) of the Constitution. A Presidential Order was
passed under Article 103(1) of the Constitution of India by which the said Member of the
Rajya Sabha was disqualified from being a Member of the Rajya Sabha on the ground that she
was holding an `office of profit'. That order was challenged before this Court in Jaya
Bachchan v. Union of India [(2006) 5 SCC 266] and the challenge was rejected by this
Court. Thereafter, it was discovered that a large number of MPs' were holding ‘Offices of
Profit’ and they also would incur the same disqualification. A Bill titled the Parliament
(Prevention of Disqualification) Amendment Bill, 2006 was therefore introduced on 16th of
May, 2006 in the Lok Sabha and was passed on the same day. On the next day, it was
introduced in the Rajya Sabha and was debated on and passed on the same day. The Bill was
sent to the President of India for his assent on 25th May, 2006. The President returned the Bill
on 30th May, 2006 to the Parliament for reconsideration under Article 111 of the Constitution
of India. The Bill was passed again by both the Houses without amendment and presented to
the President for assent and the said assent was given on 18.8.2006. Thus, the Amendment
Act came into existence.
8. Section 2 of the Amendment Act inserted the following clauses as (ad) after clause
(ac) of section 3 of the Principal Act:
“(ad) the office of the chairperson of the National Advisory Council
constituted by the Government of India in the Cabinet Secretariat vide Order No.
631/2/1/2004-Cab, dated the 31st May, 2004;”
Section 2 of Amendment Act also inserted after clause (j) the following clauses, which
were to be deemed to have been inserted with effect from the 4 th day of April, 1959, namely:
“(k) the office of Chairman, Deputy Chairman, Secretary or Member (by
whatever name called) in any statutory or non-statutory body specified in the Table;
(l) the office of Chairperson or trustee (by whatever name called) of any
Trust, whether public or private, not being a body specified in the Schedule;
(m) the office of Chairman, President, Vice-President or Principal Secretary or
Secretary of the Governing Body of any society registered under the Societies
Registration Act, 1860 or under any other law relating to registration of societies,
not being a body specified in the Schedule.”
Section 3 of the Amendment Act inserted a Table referred to in Section 2(k), listing 55
statutory and non-statutory bodies, following the Schedule in the Principal Act, which was
also deemed to have been inserted with effect from 4th April, 1959. Section 4 contained a
special provision as to validation and other matters and it is extracted below:
4(1) Notwithstanding any judgment or order of any court or tribunal or any
order or opinion of any other authority, the offices mentioned in clauses (ad), (k), (l)
and (m) of Section 3 of the Principal Act shall not disqualify or shall be deemed
never to have disqualified the holders thereof for being chosen as, or for being, as
member of either House of Parliament as if the Principal Act as amended by this Act
and been in force at all material times.
158

(2) Nothing contained in sub-section (l) shall be construed as to entitle any

person who has vacated a seat owing to any order or judgment, as aforesaid, to
claim any reinstatement or any other claim in that behalf.
(3) For the removal of doubts, it is hereby clarified that any petition or
reference pending before any court or other authority on the date of commencement
of this Act, shall be disposed of in accordance with the provisions of the Principal
Act, as amended by this Act."
Relevant constitutional provisions:
9. In order to understand the scope, applicability and impact of the Amendment Act, it
is necessary to refer to the constitutional provisions (Article 101 to 104 of the Constitution of
India) which deal with the disqualification of Members of Parliament. Article 101 enumerates
the circumstances in which the seats of Members of Parliament will become vacant. Article
103 deals with the procedure to be followed in case a decision is required as to the
disqualification of sitting MPs. Article 104 lays down the penalty for sitting and voting, by
disqualified Members. The corresponding provisions relating to disqualification of members
of the State Legislature are Articles 190, 191, 192 and 193. They correspond to and are
substantially similar to Articles 101, 102, 103 and 104 which are applicable to Parliament.
10. Article 102(1)(a) lays down that a Member of either House of Parliament shall be
disqualified if he holds any `office of profit' under the Government of India or the
Government of any State, other than an office declared by Parliament by law not to disqualify
its holder. Section 101(3)(a) provided that if a Member of either House of Parliament
becomes subject to any of the disqualifications mentioned in Article 102(1), his seat shall
thereupon become vacant. Article 103 provides for reference of any question as to whether a
Member of either House of Parliament has become subject to any of the disqualifications
mentioned in Article 102(1) to the decision of the President, whose decision on the question is
made final.
Contentions
11. The learned senior counsels Shri Harish Salve and Shri Ravinder Srivastava who
appeared on behalf of the petitioners contended that the amendment that retrospectively
exempted certain offices of profit from the disqualification rule was violative of the
constitutional scheme of Articles 101 to 104 of the Constitution. It was submitted that the
purpose of removal of disqualification by a retrospective amendment to the Act was to ensure
that persons who had ceased to be MPs on account of incurring disqualifications would be re-
inducted to Parliament without election, and that was impermissible and unconstitutional. It
was asserted that several MPs were holding “offices of profit under the Government of India
or the State Government, other than offices declared by Parliament by law not to disqualify
their holder” (for short `the disqualifying offices of profit') when they were elected. It was
further stated that several others had accepted the disqualifying offices of profit, after
becoming Members, i.e. during their tenure as Members of Parliament. Hence, it was
reasoned that a person holding such office of profit, was disqualified to become or be a
Member of Parliament and that such Member's seat would become vacant on the very day
when they were elected (with respect to those who were already holding the disqualifying
 159

office of profit, when they were elected) and on the day they accepted the disqualifying office
of profit (with respect to those who accepted such disqualifying offices of profit during their
tenure as Members of Parliament). It was submitted that when a Member's seat had already
became vacant by virtue of incurring a constitutional disqualification, his/her membership
cannot be revived by enacting a legislation which retrospectively removed the applicable
disqualification. According to the petitioner, a legislation retrospectively removing the
disqualification will help a person to continue to be a Member, only if he/she had continued
as a Member and his/her seat had not fallen vacant. The reasoning advanced was that in
instances where the seat had already become vacant on account of incurring a constitutional
disqualification, any legislative attempt to revive the membership of the Member whose seat
had become vacant, would violate Articles 102(1) read with Article 101(3)(a) of the
Constitution.
12. Alternatively, it was submitted that the objects and reasons as well as the provisions
of the Amendment Act made it obvious that retrospective operation had been given to its
provisions with the sole intention of enabling the continuance of MPs who would have
otherwise been disqualified under Article 102(1)(a) of the Constitution. Therefore, such
retrospective operation is unconstitutional. It is submitted that ever since the
recommendations of the Bhargava Committee in November, 1955, a constitutional
convention had evolved wherein every Lok Sabha had a Joint Committee for the purpose of
identifying and classifying `offices of profit'. Whenever a particular `office" had to be
exempted from the disqualification rule, the Joint Committee's opinion was sought on the
question of whether the said office was an `office of profit' or not, whether the holding of
such office by a MP would conflict with his duties, and whether or not the office should be
granted exemption. It was only after a report was given by the Joint Committee
recommending exemption, that a particular `office' would be exempted. It was contended that
the said constitutional convention which has been followed for more than half a century was
violated when 55 offices were given a `wholesale' exemption with retrospective effect without
obtaining any report from the Joint Committee on the question of whether the said "offices of
profit" deserved to be exempted or not. It was hence argued that the Amendment Act was a
colourable legislation which violated a well established constitutional convention. It was also
contended that the provisions of the impugned legislation violated the guarantee of "equality
before law and equal protection of the laws" that has been enshrined in Article 14 of the
Constitution. It was contended that the offices under certain bodies which had been
enumerated in the Schedule, were included without any basis in discernible principles. It was
argued that there was no rational criterion for the wholesale exemption of the enumerated 55
`offices of profit' from the disqualification rule, by means of the impugned legislation.
13. On the other hand, Shri Gopal Subramaniam and Shri Mohan Parasaran, learned
Additional Solicitors General, opposed these contentions on behalf of the respondents. In
response to the first contention, it was submitted that the power of Parliament to enact a law
declaring with retrospective effect that certain offices of profit will not disqualify the holder
from being chosen as, and for being a Member of Parliament has already been upheld by this
court in Srimati Kanta Kathuria v. Manak Chand Surana [(1969) 3 SCC 268]. It was further
submitted that a Member's seat would become vacant, not at the point of accepting the
160

disqualifying office of profit, but after the President of India has decided and declared under
Article 103(1) of the Constitution, with the aid and advice of Election Commission of India,
that the Member had incurred the alleged disqualification. Hence it was contended that till
such a decision by the President, a Member who is alleged to have incurred a disqualification
continues to be a Member. It was submitted that since there was no declaration of
disqualification by the President and because the Amendment Act had retrospectively
removed the disqualifications, the seats of Members (who had accepted the disqualifying
office of profit) did not fall vacant. Reference was made to section 4(2) of the Amendment
Act which makes it clear that nothing contained in sub- section (1) thereof, shall be construed
as to entitle any person who has vacated a seat owing to any order or judgment as aforesaid,
to claim any reinstatement or any other claim in that behalf. It was submitted that no Member
who held an office of profit in respect of which the grounds for disqualification was removed
by the Amendment Act, would incur disqualification and consequently all of them would
continue to be Members and their seats did not fall vacant under Article 101(3).
14. The respondents also contended that the Amendment Act did not violate Article 14.
They submitted that the past practice of seeking the opinion of a Joint committee on any
proposal to add to the list of exempted offices of profit cannot be described as `Constitutional
Convention'. It was submitted that even if there was a practice of referring such questions to a
Joint Committee, the same cannot denude the power of Parliament to make a law under
Article 102(1)(a) of the Constitution.
15. The aforesaid contentions give rise to the following questions for consideration by
this Court:
(i) Whether the Amendment Act retrospectively exempting certain offices of profit from
disqualification, violates Articles 101 to 104 of the Constitution and is therefore invalid?
(ii) Whether exemption of as many as 55 offices relating to statutory bodies/non-
statutory bodies, without referring the proposal to the Joint Committee would render the
Amendment a colourable legislation which violated any `constitutional convention' or Article
14 of the Constitution?
Re : Question (i)
16. The question of whether a law can be made retrospectively to remove the
disqualification incurred on account of holding offices of profit is no longer res integra. This
Court in Srimati Kanta Kathuria has clearly laid down that the power of Parliament to enact
a law under Article 102(1)(a) includes the power of Parliament to enact such law
retrospectively. In that case, the appellant Mrs. Kanta Kathuria, an Advocate practicing at
Bikaner was appointed as a Special Government Pleader. She was subsequently elected to the
Rajasthan Legislative Assembly. The respondent therein challenged her election alleging that
she was disqualified to be chosen as a Member of the Legislative Assembly since she held the
office of Special Government Pleader, which was an office of profit under the Government of
Rajasthan. The High Court accepted the contention and allowed the Election Petition. The
elected candidate preferred an appeal to the Supreme Court on August 2, 1968. During the
pendency of the appeal, The Rajasthan State Legislature passed the Rajasthan Legislative
Assembly Members (Prevention of Disqualification) Act, 1969 which removed the
 161

disqualification that had been applicable to Government pleaders, Government Advocates and
Special Government Pleaders with retrospective effect. The respondent contended that the
Rajasthan State Legislature was not competent to remove the disqualification retrospectively.
Two opinions were delivered - one by Hidayatullah.C.J. (for himself and Mitter J), and
another by Sikri, J, (as he then was) (for himself, Ray, J. and Jaganmohan Reddy, J) since
there was a difference of opinion on the question whether, on the date of her election, the
appellant held an office of profit. The minority view was that she did, whereas the majority
view was that she did not. However, there was unanimity in respect of the finding that the
state legislature was competent to enact a law for the purpose of removing the disqualification
with retrospective effect. Hidayatullah, C.J. had made the following observations in the
majority opinion:
“In other words, the Legislature of a State is empowered to declare that an
office of profit of a particular description or name would not disqualify its holder.”
(Para. 26)
“It has been held in numerous cases by this Court that the State Legislatures
and Parliament can legislate retrospectively subject to the provisions of the
Constitution. Apart from the question of fundamental rights, no express restriction
has been placed on the power of the Legislature of the State, and we are unable to
imply, in the context, any restriction.” (Para. 40).
“The apprehension that it may not be a healthy practice and this power might
be abused in a particular case are again no grounds for limiting the powers of the
State Legislature.” (Para. 43)
The minority concurred and held as follows (Sikri, J. at Para. 12 and 13):
“12. At the hearing our attention was drawn to a number of such Acts passed
by our Parliament and the Legislatures of the States. It seems that there is a settled
legislative practice to make validation laws. It is also well-recognised that
Parliament and the Legislatures of the States can make their laws operate
retrospectively. Any law that can be made prospectively may be made with
retrospective operation except that certain kinds of laws cannot operate
retroactively. This is not one of them.
13. This position being firmly grounded we have to look for limitations, if any,
in the Constitution. Article 191 (which has been quoted earlier) itself recognises the
power of the Legislature of the State to declare by law that the holder of an office
shall not be disqualified for being chosen as a member. The Article says that a
person shall be disqualified if he holds an office of profit under the Government of
India or the Government of any State unless that office is declared by the
Legislature not to disqualify the holder. Power is thus reserved to the Legislature of
the State to make the declaration. There is nothing in the words of the article to
indicate that this declaration cannot be made with retrospective effect. It is true that
it gives an advantage to those who stand when the disqualification was not so
removed as against those who may have kept themselves back because the disability
was not removed. That might raise questions of the propriety of such retrospective
162

legislation but not of the capacity to make such laws. Regard being had to the
legislative practice in this country and in the absence of a clear prohibition either
express or implied we are satisfied that the Act cannot be declared ineffective in its
retrospective operation."
17. In Indira Nehru Gandhi v. Raj Narain [(1975) Supp. SCC 1], another Constitution
Bench of this Court reiterated Kantha Kathuria. The following observations were made by
A.N. Ray, C.J.:
“The power of the Legislature to pass a law includes a power to pass it
retrospectively. An important illustration with reference to retrospective legislation
in regard to election is the decision of this court in Kantha Kathuria's case.” (Para.
138)
“A contention was advanced that the legislative measure could not remove the
disqualification retrospectively, because the Constitution contemplates
disqualification existing at certain time in accordance with law existing at that time.
One of the views expressed in that case is that Article 191 recognizes the power of
the Legislature of the State to declare by law that the holder of the office shall not
be disqualified for being chosen as a member. Power is reserved to a Legislature of
the State to make the declaration. There is nothing in the Article to indicate that this
declaration cannot be made with retrospective effect. The act was held not to be
ineffective in its retrospective operation on the ground that it is well recognized that
Parliament and State Legislatures can make their laws operate retrospectively. Any
law that can be made prospectively can be made with retrospective operation.”
(Para. 139)
18. Kanta Kathuria and Indira Gandhi were followed by a three judge bench of this
Court in Nongthombam Ibomcha Singh v. Leisangthem Chandramani Singh & Ors.
[(1976) 4 SCC 291] where this Court affirmed the decision of the High Court that the
respondent therein was not disqualified from seeking election because of the fact that he held
the office of the Speaker. The following reasoning was given by H.R. Khanna, J. (at Para. 3):
“We find that the Manipur Legislature has now passed the Manipur Legislature
(Removal of Disqualifications) (Amendment) Act, 1975 (Manipur Act 1 of 1975).
As a result of this amendment, a person holding the office of Speaker of Manipur
Legislative Assembly shall not be disqualified from seeking election to the
Legislative Assembly of that State because of his holding that office. The amending
Act, according to Clause (2) of Section 1, shall be deemed to have come into force
on February 6, 1973. The fact that the legislature is competent to enact such a law
with retrospective operation is well-established. In view of the above amending
Act, the respondent cannot be held to be disqualified from seeking election to the
Legislative Assembly of Manipur on account of his having held the office of the
Speaker of the Legislative Assembly.”
19. We now proceed to examine another aspect of the first question. Article 101(3)
provides that if a Member of either House of Parliament becomes subject to any of the
disqualifications mentioned in Article 102, his seat will thereupon become vacant. Article 103
 163

provides that if any question arises as to whether a Member of either House of Parliament has
become subject to any of the disqualifications mentioned in clause (1) of Article 102, the
question shall be referred to the decision of the President and his decision shall be final. The
use of the words “becomes subject to” in Article 101 and in Article 103 clearly demonstrates
that these Articles contemplate a situation where a sitting MP incurs the disqualification
during his tenure and they do not apply to a candidate who held a disqualifying office of
profit before being elected as a Member of Parliament.
20. This does not mean that a Member, who was holding a disqualifying office of profit
when he was elected and sworn in as a MP, is immune from challenge. Separate provisions
deal with pre-election disqualifications. Section 36 of Representation of the People Act, 1951
(Hereinafter `RP Act') provides that the Returning Officer shall examine the nomination
papers and shall decide all objections which may be made to any nomination and may after a
summary inquiry, if any, reject the nomination if he is of the view that on the date fixed for
the scrutiny of nominations the candidate was either not qualified or was disqualified for
being chosen to fill the seat under the provisions of Article 102 or 191. Even if his/her
nomination is not rejected and a person holding a disqualifying office of profit, is elected as a
MP, an election petition can be filed under section 100(1)(a) of RP Act which provides that if
the High Court is of opinion that on the date of his election, a returned candidate was
disqualified from being chosen to fill the seat under the Constitution, the High Court shall
declare the election of the returned candidate to be void.
21. This position was clearly settled by the decisions of two Constitution Benches of
this Court in Election Commission, India v. Saka Venkata Subba Rao & Union of India
[1953 SCR 1144] and Brundaban Nayak v. Election Commission of India [(1965) 3 SCR
53]. Both these decisions referred to and dealt with Article 190 and 192 which are applicable
to State Legislatures and whose provisions are identical with the provisions of Articles 101
and 103 relating to Parliament.
22. Thus, it is clear that where a person was under a disqualification at the time of his
election, the provisions of Articles 101(3)(a) and 103 will not apply. He/She will continue as
a Member unless the High Court in an election petition filed on that ground, declares that on
the date of election, he/she was disqualified and consequently, declares his/her election to be
void. It follows therefore that if an elected candidate was under a disqualification when he
was elected, but no one challenges his/her election, he/she would continue as a Member
irrespective of the fact that he/she was under a disqualification when elected.
23. We now consider the third aspect of the first question. Article 102(1)(a) provides that
a person shall be disqualified for being a Member of either House of Parliament if he holds
any office of profit under the Government of India or Government of any State other than an
office declared by Parliament by law not to disqualify its holder. Article 101(3)(a) provides
that if a Member of either House of Parliament becomes subject to any of the disqualifications
mentioned in clause (1) of Article 102, his seat shall thereupon become vacant. Article 103
provides that if any question arises as to whether a Member of either House of Parliament has
become subject to any of the disqualifications mentioned in clause (1) of Article 102, the
question shall be referred for the decision of the President and his decision shall be final.
Article 104 provides that if a person sits or holds as a Member of either House of Parliament
164

when he knows that he is disqualified for membership thereof, he shall be liable in respect of
each day on which he so sits or votes, to a penalty of five hundred rupees to be recovered as a
debt due to the Union.
24. The constitutional scheme therefore is that a person shall be disqualified from
continuing as a Member of Parliament if he/she holds any disqualifying office of profit. Such
a disqualification can result in the vacation of his/her seat when the Member admits or
declares that he/she is holding the disqualifying office of profit. However, If he/she does not
make a voluntary declaration about the same, the question of whether he/she is disqualified or
not, if raised, shall have to be referred for a decision by the President of India the same will be
made after obtaining the opinion of the Election Commission of India. The question of
whether a particular member has incurred a disqualification can be referred for the decision of
the President by any citizen by means of making an application to the President. It is only
after the President decides that the Member has incurred an alleged disqualification that the
particular member's seat would become vacant. The words "if any question arises as to
whether a Member of either House of Parliament has become subject to any disqualifications"
conclusively shows that the question of whether a Member has become subject to any
disqualification under clause (1) of Article 102 has to be decided only by the President. Such
a question would of course be a mixed question of fact and law. The Constitution provides the
manner in which that question is to be decided. We are of the view that it is only after such a
decision is rendered by the President, that the seat occupied by an incumbent MP becomes
vacant. The question of a person being disqualified under Article 102(1) and the question of
his seat becoming vacant under Article 101(3)(a) though closely interlinked, are distinct and
separate issues.
25. The constitutional scheme in Articles 101 to 104 contains several irrefutable
indications that the vacancy of the seat would occur only when a decision is rendered by the
President under Article 103 which declares that a Member has incurred a disqualification
under Article 102(1) and not at the point of time when the Member is alleged to have incurred
the disqualification.
26. We may first refer to the different circumstances in which a seat of a Member
becomes vacant:
(i) Clause (2) of Article 101 provides that where a person is chosen as a Member both of
the Parliament and of a House of Legislature of a State then at the expiry of such period as
may be specified in the rules made by the President, that person's seat in Parliament shall
become vacant unless he/she has previously resigned from his/her seat in the legislature of the
State.
(ii) Clause 3(a) of Article 101 provides that if a Member of either House of Parliament
becomes subject to any disqualification mentioned in clause (1) of Article 102, his/her seat
shall thereupon become vacant. Clause (1) of Article 102 refers to five circumstances in
which a person shall be disqualified for being chosen and for being a Member of Parliament,
(one of which is if he/she holds any office of profit under the government of India or
government of any State other than an office declared by the Parliament by law not to
disqualify its holder). Article 103 provides that if any question arises as to whether a Member
 165

of either House of Parliament has become subject to any of the disqualifications mentioned in
clause (1) of Article 102, the question shall be referred for the decision of the President whose
decision shall be final.
(iii) Clause 3(a) of Article 101 also provides that if a Member of either House of
Parliament becomes subject to any of the disqualifications mentioned in clause (2) of Article
102, his/her seat shall thereupon become vacant. Clause (2) of Article 102 refers to a person
being disqualified for being a Member of either House of Parliament on ground of defection
under the Tenth Schedule to the Constitution. Paragraph (6) of Tenth Schedule provides that
if any question arises about whether a Member of a House has become subject to
disqualification under the Tenth Schedule, the question shall be referred for the decision of
the Chairman, or as the case may be, the Speaker of such House and his/her decision shall be
final.
(iv) Clause 3(b) of Article 101 provides that if a Member of either House of Parliament
resigns his/her seat and his/her resignation is accepted by the Chairman or the Speaker, as the
case may be, his/her seat shall thereupon become vacant.
(v) Clause (4) of Article 101 provides that if for a period of 60 days a Member of either
House of Parliament is without permission of the House absent from all meetings thereof, the
House may declare his/her seat vacant.
27. It can be seen from the above-mentioned permutations that there are several
possibilities may lead to a seat becoming vacant. It is also clear that a seat becomes vacant
only on after an adjudication in cases falling under Article 101(3)(a), whereas, the seats
become vacant without any adjudication on the happening of specified events in respect of
vacancies arising under Article 101(2), 101(3)(b) and 101(4). A vacancy under Article
101(3)(a) would occur in the case of disqualifications enumerated under Article 102(1) only
after there has been a decision on the subject of such disqualification by the President. The
exception to this proposition would of course arise when there is a voluntary admission of the
disqualification by a particular Member to the Speaker/Chairman of the House, as the case
may be. The vacancy under Article 101(3)(a) will occur in the case of the disqualification
mentioned under Article 102(2), only after a decision has been made on the subject of such
disqualification by the Chairman or the Speaker of such House as the case may be. Thus,
Para. 6(1) of Tenth Schedule of the Constitution is analogous to Article 103(1) of the
Constitution and both contemplate adjudication by an authority on the subject of
disqualification, albeit with respect to distinct grounds. On the other hand, in case of a person
who resigns, the vacancy occurs [as per Art. 101(3)(b)] when the resignation is accepted by
the Chairman or the Speaker and in such case, the Constitution does not contemplate any
adjudication on the subject of disqualification. Similarly, in the case of a Member being
absent without permission for a period of 60 days the vacancy arises when the House declares
his seat vacant and there is no provision for adjudication about such disqualification. In the
case of a person having a dual membership of Parliament and a State Legislature, on the
expiration of 15 days (provided by the Prohibition of Simultaneous Membership Rules 1950),
the person's seat in Parliament becomes vacant without any further adjudication.
166

28. Thus we find that for a vacancy to occur under Article 101(4), there should be a
declaration by the House, for a vacancy to occur under Article 101(3)(b) there should be
acceptance of resignation by the Chairman or the Speaker of the House and under Article
101(2) the vacancy arises automatically on the expiry of 15 days after the point of time that
the particular MP became a Member of the State Legislature. However, the vacancies
contemplated in Article 101(3)(a) will arise only when the disqualification is decided upon
and declared by the President under Article 103(1) or declared by the Chairman or the
Speaker of the House under Para. 6(1) of Tenth Schedule. Therefore in the case of vacancy
under Article 101(3)(a), the vacancy of the seat is not automatic consequent upon incurring
the disqualification but would occur only upon a declaration of the disqualification by the
designated authority. For example, if a Member gives up membership of a political party or
votes or abstains from voting in the House in a manner that is contrary to the directions issued
by his/her political party, Para. 2 of Tenth Schedule provides that the said Member of the
House shall be disqualified. However, the vacancy of his/her seat does not become operative
on the day he/she gives up membership of the political party or when he/she votes or abstains
from voting in a manner that is contrary to the directions issued by his/her political party.
With regard to disqualification on the ground of defection, the vacancy of the seat would
become operative only when a decision is rendered by the Chairman or the Speaker of the
House as the case may be declaring his disqualification. Similarly in respect of the
disqualification on the ground of holding an office of profit, the vacancy of the seat would
become operative only when the President decides the issue on the subject of the alleged
disqualification and declares that a particular Member has incurred the same. Such a decision
may be made either on the basis of an adjudication where the question is disputed, or on the
basis of an admission by the Member concerned.
29. We also find support for this view from a reading of Sections 147, 149 and 151A of
the RP Act. Section 147 deals with a casual vacancy in the Council of States and Section 149
deals with casual vacancies in the House of People, on account of the seat of a Member
becoming vacant or being declared vacant or his election being declared void. Section 151A
provides that when such casual vacancy arises, the Election Commission shall have to fill up
the vacancy by holding bye-elections within a period of six months from the date of
occurrence of the vacancy. There is no difficulty in calculating this six month period where a
Member's seat becomes vacant on account of his/her seat being declared vacant under Article
101(4) or when it becomes vacant on account of his/her resignation being accepted by the
Chairman or the Speaker under Article 101(3)(b). However, the position will be different
when the vacancy to be filled up arises on account of any of the disqualifications mentioned
in clause (1) or clause (2) of Article 102.
For example if a person gives up his membership of a political party or if he votes or
abstains from voting in a manner that is contrary to the directions issued by his/her political
party, the election cannot be held within six months from that date. Similarly when a Member
accepts an office of profit on a particular day, it is not possible to hold election within six
months from the date of such acceptance of office of profit on the ground that he/she was
disqualified on that day. In such cases if the vacancy of the seat is automatic, the bye-
elections will have to be held within six months from such date of incurring disqualification.
 167

However in many cases, the Election Commission may not even know about the occurrence
of the disqualification. Furthermore, the very occurrence of disqualification is likely to be
disputed in most cases. Therefore, even though the occurrence of a vacancy is an automatic
consequence of incurring a disqualification, the same would arise only after the
disqualification is declared by the decision of the appropriate authority (President, Speaker, or
Chairman of the House as the case may be).
30. Therefore, upon a proper construction of the provisions of Articles 101 to 103, it is
evident that a declaration by the President under Article 103(1) in the case of a
disqualification under Article 102(1) and a declaration by the Speaker or the Chairman under
Para 6 of Tenth Schedule in the case of a disqualification under Article 102(2) is a condition
precedent for the vacancy of the seat. If Article 101(3)(a) is interpreted otherwise, it will lead
to absurd results thereby making it impossible to implement or enforce the relevant provisions
of the Constitution or the RP Act. Let us visualize some of these possibilities. Assume a
scenario where a political party states that one of its Members gave up his/her membership,
and on the other hand the concerned member denies the same fact. The six month period
prescribed for conducting a bye-election cannot obviously be computed from the alleged date
of surrender of membership. The said period should be properly computed from the date on
which a decision on the subject of disqualification is given by the Chairman or Speaker of the
House. Similarly when somebody alleges that a sitting MP had accepted an office of profit,
there would be no automatic vacancy of the seat, as the question whether the Member
accepted any office of profit or not, may be a disputed issue. Therefore under the
constitutional scheme, the vacancy would occur only when the dispute is resolved by a
decision of the President which could then result in a declaration of disqualification. Hence, it
is tenable to hold that when Article 101(3)(a) states that when a Member of House of
Parliament becomes subject to any of the disqualifications mentioned in clause (1) or clause
(2) of Article 102, it means when the President or the Speaker/Chairman as the case may be,
by his decision declares that Member had incurred the disqualification and not earlier. There
is however no doubt that the decision of the President or Chairman/Speaker of the House, is
merely an adjudication and confirmation of a pre-existing fact. Therefore the disqualification
is not created by the decision of the President. However, the vacancy of the seat is a
consequence of the decision arrived at by the designated authority.
31. In this context, we may refer to the following observations of the Constitution Bench
in Brundaban Nayak in respect of Article 192 (which equally apply to Article 103) which
makes it clear that a decision/declaration by the Governor/President is not optional, but a
necessity in cases under 191(1) and 101(1). It was held that, [(1965) 3 SCR 53,
Gajendragadkar, J. at Para. 14]:
"It is true that Article 192(2) requires that whenever a question arises as to the
subsequent disqualification of a member of the Legislative Assembly, it has to be
forwarded by the Governor to the Election Commission for its opinion. It is
conceivable that in some cases, complaints made to the Governor may be frivolous
or fantastic; but if they are of such a character, the Election Commission will find
no difficulty in expressing its opinion that they should be rejected straightaway. The
object of Article 192 is plain. No person who has incurred any of the
168

disqualifications specified by Article 191(1), is entitled to continue to be a member

of the Legislative Assembly of a State, and since the obligation to vacate his seat as
a result of his subsequent disqualification has been imposed by the Constitution
itself by Article 190(3)(a), there should be no difficulty in holding that any citizen is
entitled to make a complaint to the Governor alleging that any member of the
Legislative Assembly has incurred one of the disqualifications mentioned in Article
191(1) and should, therefore, vacate his seat. The whole object of democratic
elections is to constitute legislative chambers composed of members who are
entitled to that status, and if any member forfeits that status by reason of a
subsequent disqualification, it is in the interest of the constituency which such a
member represents that the matter should be brought to the notice of the Governor
and decided by him in accordance with the provisions of Article 192(2)." (emphasis
supplied)
Kanta Kathuria also clearly held that when a Member accepts an office of profit and
incurs a disqualification, and such disqualification is retrospectively removed, the Member
would continue to be a Member.
32. However, the petitioners have contended that Kanta Kathuria had failed to notice
the two earlier Constitution Bench judgments on this aspect in Saka Venkata Subba Rao and
Brundaban Nayak and therefore, may not be good law. On a careful examination of these
precedents, we find no merit in this contention. The petitioners contended that Saka Venkata
Subba Rao had held that the seat became vacant automatically when the Member accepted
the office of profit and therefore, retrospective removal of disqualification will not revive the
membership. The issue in Saka Venkata Subba Rao was whether Articles 190(3) and 192(1)
applied to a Member who had already incurred a disqualification at the time of being elected.
The issue as to when a Member's seat would become vacant, if he accepts an office of profit
during his tenure as a legislator did not arise in that case. The observations relied on
(extracted in para 21 above) was made in the context of distinguishing between a person who
had already incurred under a disqualification at the time of being elected and a person who
allegedly incurred a disqualification after having becoming a Member. What this Court stated
was that a person under disqualification when elected does not vacate his seat under Article
190(3)(a), but will continue until his/her election is set aside under Section 100 of RP Act.
The question of when the seat of a sitting member (who incurs disqualification by accepting
an office of profit during the tenure of his membership) would become vacant, neither arose
for consideration and nor was it decided in the said case.
Therefore, Saka Venkata Subba Rao is of no assistance to contend that there is an
automatic vacation of seat when a Member accepts an office of profit and incurs a
disqualification during his tenure.
34. In Brundaban Nayak, a private citizen (second respondent) complained to the
Governor that the appellant had incurred disqualification under Article 191(e), subsequent to
his election as a Member of the Orissa Legislative Assembly. The Governor forwarded the
said complaint of the second respondent to the Election Commission which issued a notice to
the appellant for an enquiry into the complaint. The appellant challenged the jurisdiction of
the Election Commission to hold an enquiry into such complaint. This court while examining
 169

the said issue observed that no person who has incurred any of the disqualifications specified
by Article 191(1), is entitled to continue to be a Member of the Legislative Assembly of a
State, and since the obligation to vacate his seat as a result of his subsequent disqualification
has been imposed by the Constitution itself by Article 190(3)(a) there should be no difficulty
in holding that any citizen is entitled to make a complaint to the Governor alleging that any
Member of the Legislative Assembly has incurred one of the disqualifications mentioned in
Article 191(1) and should, therefore, vacate his seat. The observation was thus in the context
of considering the jurisdiction of the Election Commission and the right of a citizen to make a
complaint under Article 191(1). In fact, the observations lend support to the view that it is
only after the decision by the Governor under Article 192 (corresponding to the decision by
the President under Article 103) declaring that a Member has incurred a disqualification, that
such a Member's seat would become vacant.
35. The petitioners next placed reliance on observations in another Constitution Bench
decision in P.V. Narasimha Rao v. State [(CBI/SPE), (1998) 4 SCC 626]. S.P. Bharucha, J.
noted as follows:
The question for our purposes is whether having regard to the terms of Articles
101, 102 and 103, the President can be said to be an authority competent to remove
a member of Parliament. It is clear from Article 101, that the seat of the member of
the Parliament becomes vacant immediately upon his becoming subject to the
disqualifications mentioned in Article 102, without more. The removal of a member
of Parliament is occasioned by operation of law and is self operative. Reference to
the President under Article 103 is required only if a question arises as to whether a
Member of Parliament has earned such disqualification; that is to say, if it is
disputed. The President would then have to decide whether the Member of
Parliament had become subject to the automatic disqualification contemplated by
Article 101. His order would not remove the Member of Parliament from his seat or
office but would declare that he stood disqualified. It would operate not with effect
from the date upon which it was made but would relate back to the date upon which
the disqualification was earned.
The aforesaid observations are made, as noticed above, in the context of examining
whether the President can be said to be an authority competent to remove a Member. The
question was answered by holding that he/she merely adjudicates whether a Member had
incurred disqualification and he/she does not disqualify a Member. The observations relied on
by the petitioner that "the removal of a Member is occasioned by operation of law and is self
operative" and that "the seat of the Member of Parliament becomes vacant immediately upon
his becoming subject to the disqualifications mentioned in Article 102, without more" are
therefore to be understood in relation to the nature of powers vested with the President under
Article 103. The question which was being considered and the context in which these
observations were made was completely different. It is also of some interest to note that the
said observations were made by Bharucha and Rajendra Babu, JJ. (as they then were). S.C.
Agrawal, J. [for himself and Dr. Anand J. (as he then was)] explained the position differently:
“The said function of the President is in the nature of an adjudicatory function
which is to be exercised in the event of a dispute giving rise to the question whether
170

a Member of either House of Parliament has become subject to any of the

disqualifications mentioned in clause (1) of Article 102 being raised. If the
President holds that the Member has become subject to a disqualification mentioned
in clause (1) of Article 102, the Member would be treated to have ceased to be a
Member on the date when he became subject to such disqualification. If it is not
disputed that a Member has incurred a disqualification mentioned in clause (1) of
Article 102, the matter does not go to the President and the Member ceases to be a
Member on the date when he incurred the disqualification. The power conferred
under Article 103(1) cannot, therefore, be regarded as a power of removal of a
Member of Parliament. ...”
The fifth Member of the Bench (G.N. Ray, J.) in his separate opinion agreed with S.C.
Agrawal and Dr. Anand, JJ. with respect to one issue and with S.P. Bharucha and Rajendra
Babu, JJ., in respect of another issue. The learned judge did not express any view with regard
to Article 101. Therefore reliance on the observations of Bharucha and Rajendra Babu, JJ (as
they then were) to contend that the seat of a sitting MP stands vacated on the date on which
he/she accepts the disqualifying office of profit and not on the date when the President
declares him/her to be disqualified, would be contrary to the provisions of Article 101 to 104
as well as the Constitution Bench decisions of this Court in Kanta Kathuria, Brundaban
Nayak and Indira Gandhi. It is evident from the said decision in P.V. Narasimha Rao that
when the President adjudicates on the subject of whether a Member was disqualified or not
and gives a finding that he/she is disqualified, he/she is merely deemed to have ceased being a
Member from the date that he/she had incurred the disqualification. It follows that a member
continues to be one until the decision of the President and when the outcome of the decision is
that he/she is disqualified it relates back to the date when the said disqualification was
incurred. If the President holds that the Member has not incurred the disqualification, the
person continues as a Member.
36. There is no doubt that the disqualification, when declared by the President will
become operative from the date the Member accepted the `office of profit'. It is also not in
doubt that the vacation of the seat is consequential. However, the question is whether the seat
of the Member become vacant without anything more when a person accepts an `office of
profit'? The obvious answer is `no'. If the Member does not make a voluntary declaration that
he/she has incurred a disqualification and if no one raises a dispute about the same, the
Member would continue in spite of accepting an office of profit. There is nothing strange
about this position. We have already noted that when a person who has incurred a
disqualification offers himself /herself as a candidate and is subsequently elected and if no
one objects and if the Returning Officer accepts the nomination and if no election petition is
filed challenging the election, then he/she would continue as a Member in spite of the
disqualification. Therefore, our considered opinion is that while a disqualification results in
the vacation of the seat of a Member, the vacancy occurs only when the President decides and
declares the disqualification under Article 103.
37. When the Amending Act retrospectively removed the disqualification with regard to
certain enumerated offices, any Member who was holding such office of profit, was freed
from the disqualification retrospectively. As of the date of the passage of the Amendment Act,
 171

none of the Members who were holding such offices had been declared to be disqualified by
the President, Section 4(2) was not attracted and consequently they continued as Members.

Re : Question (ii)
38. Which 'offices' should be excluded for the purpose of disqualification, is a question
that properly lies in the legislative domain. In this case, what kind of office would amount to
an 'office of profit' under the Government and whether such an office of profit is to be
exempted is a matter to be considered by the Parliament. The key concern that certain offices
or places held by a MP may be either incompatible with his/her duty as an elected
representative of the people or affect his/her independence and thus weaken his/her loyalty to
his/her constituency and, therefore, should disqualify the holder thereof, is a matter to be
addressed by the Parliament. It is also not possible to classify and include the offices
exempted from the said disqualification in a generic sense. While making the legislation
exempting any office, the question whether such office is incompatible with his/her position
as a MP and whether his/her independence would be compromised and whether his/her
loyalty to his/her constituency will be affected, should no doubt be kept in mind to safeguard
the independence of the Members of the legislature and to ensure that they are free from any
kind of undue influence from the executive.
The learned counsel for the petitioners have not advanced any contention that any of the
newly exempted 'offices' suffer from any such impropriety or will be prejudicial to the
constituency or affect the independence of the member. The plea regarding violation of
Article 14 merely because several other similar offices of profit are not included in the
exempted category, has no basis. As each office of profit may have different effects and
consequences on the Member, there is no viable basis for the assumption that all offices of
profit are equal and that all offices of profit should be excluded. The argument based on
Article 14 of the Constitution is highly illogical and without any force.
39. This brings us to the last question. It is not in serious dispute that ever since
Bhargava Committee submitted its report in November, 1955, whenever an office of profit
had to be exempted the matter used to be referred to a Joint Committee and its opinion
whether the office should be exempted or not, was being taken and only when there was a
recommendation that a particular office should be exempted, the Act was being amended to
add that office to the list of exemptions. However, this was merely a parliamentary procedure
and not a constitutional convention. Once the Parliament is recognized as having the power to
exempt from disqualification and to do so with retrospective effect, any alleged violation of
any norm or traditional procedure cannot denude the power of Parliament to make a law. Nor
can such law which is otherwise valid be described as unconstitutional merely because a
procedure which was followed on a few occasions was not followed for the particular
amendment.
40. For the aforesaid reasons, we are of the opinion that the impugned legislation is
constitutionally valid and the writ petitions are without any merits and are dismissed.
*****
172

Konappa Rudrappa Nadgouda v. Vishwanath Reddy

AIR 1969 SC 447

HIDAYATULLAH, C.J. - This is an appeal from the judgment and order of the High
Court of Mysore, September 15, 1967, in an election matter in which the present appellant
was the election petitioner. The election concerned the Yadagiri constituency and was held in
February 1967 during the last general elections. To begin with, there were seven candidates.
Of these five withdrew leaving the seat to be contested by the appellant and the first
respondent here. The first respondent was returned as the successful candidate having
obtained 4,000 and odd votes in excess of his rival. On March 30, 1967 the defeated candidate
preferred an election petition which has given rise to the present appeal. The election petition
was dismissed by the High Court and in this appeal, the election petitioner claims that the
decision of the High Court was erroneous and that the election of the first respondent was
void for reasons to be stated hereafter.
2. The first respondent was a partner in a firm known as that Yadagiri Construction
Company, Yadagiri. This firm held several contracts from the Mysore Government. In this
appeal, we are concerned with two contracts only which were the construction of (1) a road
known as "Nalwar Sonthi Road" in Gulbarga Division for a distance of four miles and (2) a
dispensary building for the Primary Health Centre at Wadagara. The contention of the
election petitioner was that these contracts were subsisting on January 20, 1967 when the
nominations were filed and the subsistence of the contracts with the Government rendered the
election of the first respondent void. The election petitioner claimed that he was entitled to be
declared elected after considering that the votes cast in favour of the 1st respondent as thrown
away. The High Court in its judgment held that the contracts were not subsisting and that the
election was therefore not affected.
3. The matter is one of fact, but it is necessary, before we enter into an examination of the
facts, to set out the law relating to disqualification of candidates on this ground. Under
Section 9A of the Representation of the People Act, 1951 it is provided as follows:
A person shall be disqualified if, and for so long as there subsists a contract
entered into by him in course of his trade or business with the appropriate
Government for the supply of goods to, or for the execution of any works undertaken
by, that Government.
Explanation: For the purpose of this section where a contract has been fully
performed by the person by whom it has been entered into with the appropriate
Government, the contract shall be deemed not to subsist by reason only of the fact
that the Government has not performed its part of the contract either wholly or in part.
4. It may be mentioned here that previously the section did not contain the Explanation. In
Chatturbhuj Vithaldas Jasani v. Moreshwar Parashram [(1954) SCR 817] the existence of
liability on part of the Government to pay for a fully executed contract was held to be a
disqualification. It appears that Parliament thought that since Government moves slowly and
many bills remain outstanding for a long time, this part of the disability may be removed. The
amendment, therefore, takes away from the ban of the section the subsistence of one side of
 173

the contract, viz., the performance thereof by Government by paying for the goods supplied or
the work executed. In other respects, the law remains very much the same as it was when the
ruling referred to above was given. We shall have to refer to certain observations in the ruling
which, in our opinion, must be taken into account before reaching the conclusion whether the
contract or contracts continued to subsist on the date on which the candidate offered himself
for election. We shall now continue our narration of the facts.
5. As has been stated already, there were two contracts-one for the construction of a road
for a distance of four miles and the other for the construction of a dispensary building. Two
separate agreements have been produced which were entered into by the Yadagiri
Construction Company with the Government for the execution and performance of these
contracts. It was urged in the High Court by the election petitioner that both these contracts
remained incomplete and, therefore, they subsisted and that the candidate was under a
disqualification and could not stand for the election. The contract for the construction of the
road entered into by Yadagiri Construction Company included twelve items which the firm
had to complete. They are conveniently described as items 1 to 7 and 8 to 12. The case of the
election petitioner was that, although item 1 to 7 had been completed, items 8 to 12 remained
to be completed. In the Schedule to the contract for the building of the dispensary, a number
of items were included in the Schedule. Of these, 8 items were found to be incomplete and,
therefore, the same position ensued as in the case of the road. The evidence led in the case
consisted of documents from the Public Works Department and oral testimony of the
engineers who were in charge of these constructions and others. After appraising the
evidence, the High Court came to the conclusion that although some of the items from these
two contracts might not have been completed, still the contracts as a whole were substantially
performed and, therefore, there was no bar to the candidature of the 1st respondent. The High
Court also held that although these agreements contained a clause for maintenance and repairs
over a period of time after the completion of the work of construction, that did not make the
contracts to subsist and therefore, that too was not a disability.
6. Mr. Chagla in arguing the appeal tries to establish that both the conclusions of the High
Court are erroneous. The evidence in the case, as is usual, is widely discrepant between the
parties. They both held certificates issued by the Public Works Department, one set showing
that the work had been completed and a subsequently issued set showing that something
remained to be done and that the contracts were still subsisting. We shall refer to these
documents now.
7. The contract in relation to the road was entered into on December 17, 1962 and is
evidenced by Ex. P-10. The Schedule to the contract showed that the construction had to be
completed according to it. The contract went on to provide by clause 20 as follows:
The contractor is to maintain the reconstructed portion of the road for a period of
three months after the Executive Engineer has certified the same to be completed to
his satisfaction.
The Schedule to this contract provided for surfacing of the road, collection of Shahabad
soling stones, collection of muram for earth work, spreading muram over soling, and metal
etc. In addition to the proper construction of the road, it was the duty of the contractor to
174

supply and fix mile and hectometer stones and to fix the road boundaries and demarcation
stones etc. This work represents items 8 to 12. Those relating to the road proper are items 1-7
to which also reference has been made earlier.
8. Now it is agreed on both sides that items 1-7 were duly completed. The dispute is with
regard to items 8-12. Nomination to the Assembly had to be filed on 20th January, 1967 at the
latest. 21st January was fixed for scrutiny of the nomination papers and the election was to
follow in the month of February. On 18th January, 1967, the first respondent obtained a
certificate that his contracts had been fully performed. He approached the Executive Engineer
on the 19th. The Executive Engineer was busy throughout the day. The respondent therefore
asked his Personal Assistant (who incidentally is a gazetted officer of the rank of an Assistant
Engineer) to give him the necessary certificate. The Personal Assistant telephoned to the
Assistant Engineers in-charge and on their statement that the work had been physically
completed, he granted the certificates to that effect. It appears that the election petitioner was
also busy in his turn. He obtained cancellation of these certificates from the Executive
Engineer on the following day. The Executive Engineer asked the Assistant Engineers to state
whether the work had been completed and the Assistant Engineer thereupon gave the
certificate that items 8-12 of the first contract were not complete. We have so far described
the contract dealing with the road.
9. The contract for the construction of the dispensary was executed on February 23, 1966.
The schedule to that contract contained a description of 27 items which had to be completed.
In addition, there was the requirement that the entire premises would be cleaned and put in
habitable state and then handed over. Here also, the dispute is whether the entire contract had
been completed or not. It is the case of the election petitioner that 9 items were left
incomplete including the construction of a compound wall 30 ft. long for the quadrangular
open yard, supplying welded mesh for the front waiting room and to the rear opening,
whitewashing of one room, paint work, floors etc. This also was certified at first to be
completed but later the certificate was revised and it was stated that the work was not
complete. It is between these two rival certificates and the evidence relating to them that the
matter has to be decided.
10. In respect of the road, the Assistant Engineer in-charge of the work gave a notice on
December 20, 1966 saying that certain work was not complete. Items 8-12 were, however, not
mentioned there. The High Court was of the opinion that this omission completely
demonstrated that portion of the work which is now stated to be incomplete must have been
completed. In answer to this, Mr. Chagla has contended that he had asked for the issue of a
Commission in the High Court for the inspection of the spot (which petition he has repeated
here) and he stated that even today this part of the work has not been completed. However we
do not go by such petitions nor are we inclined to issue a Commission which has been asked
for in this Court. We consider the evidence, such as it is, and we find the correct situation to
be this. P.W. 3, the Assistant Engineer no doubt stated in his notice that the "balance items"
were only three, he had really mentioned 4 items, but had struck out item no. 2. That,
however, did not show that no other work remained to be done. The certificates that are there
in favour of the completion of the work were given by the Personal Assistant to the Executive
Engineer on the day the Executive Engineer was absent. No doubt, the Personal Assistant
 175

worked as the head of the office in the absence of the Executive Engineer, but it is on record
and duly proved that he had no authority to issue the completion certificates which he did.
The Personal Assistant explained that he had issued the certificates because they were
urgently required for election purposes and because the Assistant Engineer under whose
supervision the construction of the road was taking place had reported completion of the
work. The Executive Engineer, however, verified this again from the Assistant Engineer and
found that items 8-12 remained to be completed. Mr. Narasaraju complains of the conduct of
the Executive Engineer by saying that he did not visit the spot to see for himself whether the
completion had been made or not. He states that in Ex. P-11 in which the completion was
reported on 18-1-1967 there is no mention of items 8-12 and it is different in language from
Ex. C-1 in which items 8- 12 are shown not to have been completed. We do not think that
anything turns on that. The Officers of the Public Works Department have come to the
witness box and have maintained that these items were infact not completed before the
election took place. We are satisfied that although the construction of the road was complete
the additional items which are described as "miscellaneous" in the contract still remained to
be completed. What bearing this will have upon the election of the first respondent is
something which we shall consider after we have analysed the evidence with regard to the
hospital.
11. In respect of the hospital also, the first respondent obtained the certificate from the
Personal Assistant to the Executive Engineer that the work had been completed. This is Ex. P-
1. Here again, the Assistant Engineer was consulted and the certificate showed that there was
physical completion of the work. Later this certificate was also contradicted by the issuance
of another certificate by the Executive Engineer that the work remained incomplete. This
information was given by the Executive Engineer to the Returning Officer by Ex. P. 13
because it was an important matter connected with the election. Mr. Narasaraju hinted that
some outside influence was at work in the cancellation of the earlier certificate in as much as
the Minister for the Public Works Department was present at Yadagiri and had also camped at
Gulbarga on the following day. He pointed out that the Chief Engineer and the Executive
Engineer were also present. The insinuation is that this was done under the pressure of the
Minister, because the Congress had been consistently losing the seat at Yadagiri and it was
intended that the first respondent should be knocked out to ensure Congress victory. We do
not find any evidence which shows that the Minister took any interest in this matter although
his presence may give rise to some suspicion. We cannot go on suspicion alone. It is obvious
that both sides were straining every nerve to get some documentary evidence in their hands to
prove, one that the work was incomplete and the other, that the work was completed. The
later certificates clearly show that certain parts of the work remained to be completed and
they certainly were overlooked when the first certificate was given. That they were minor
items is not much to the purpose. The contracts as such were not fully performed. Although
we were hesitating whether to apply the de minimis rule to this case we think that there are
other considerations why we should refrain from applying that rule. We make our position
clear. If the work is completed, it would not mean that the contract is subsisting, if, say, a
glass pane is found broken or a tower bolt or a drop bolt or a handle has not been fixed where
it should have been. The law is not so strict as all that and a sensible view of the section will
have to be taken. The right of a person to stand for an election is a valuable right just as a
176

right of a person to vote was considered a valuable right in the leading case of Ashby v.White
[(1703) 2 Ld. Raym. 938]. But if the contract subsists in such manner that it cannot be said to
have been substantially completed, the law must take its own course. It is of the essence of the
law of Elections that candidates must be free to perform their duties without any personal
motives being attributed to them. A contractor who is still holding a contract with the
Government is considered disqualified, because he is in a position after successful election to
get concession for himself in the performance of his contract. That he may not do so is not
relevant. The possibility being there, the law regards it necessary to keep him out of the
elections altogether. But as we stated, this will be only where the contract has not been fully
performed, although what is full performance of a contract or completion, is a matter on
which we do not wish to express a final opinion in this case, because it depends on the
circumstances of each case and more particularly because there is here another condition to
which we have referred.
12. In both the contracts, there was a condition that for a period of three months in one
and for a period of one year in the other, the contractor would make due repairs to all the
defective parts in the execution of the contract. The question is whether the contract can be
said to be subsisting in view of this clause. Both sides referred us to Hudson's Building and
Engineering Contracts. In one passage, Hudson regarded such a clause as in the nature of a
‘repair clause’. But Hudson was not dealing with the law of election when he was discussing
a clause, such as we have in this case. We have to interpret this clause in the context of
election law. Now the contract must be said to subsist if a portion of it is required to be
performed at any time, because so long as the contract has not been discharged, by full
performance, it must be taken to subsist. Mr. Narasaraju contends that the phrase "contract for
the execution of the work" shows that it is the execution of the original work which is
contemplated and not any condition of guarantee for repair. In our opinion, this argument,
however, ingenious, is not acceptable because a similar point arose in the case to which we
referred earlier. In Chatturbhuj Vithaldas Jasani case [(1954) SCR 817] Bose, J. dealt with a
similar point in the following words:
It was argued that assuming that to be the case, then there were no longer any
contracts for the "supply of goods" in existence, but only an obligation arising under
the guarantee clause. We are unable to accept such a narrow construction. This term
of the contract, whatever the parties may have chosen to call it, was a term in a
contract for the supply of goods. When a contract consists of a number of terms and
conditions, each condition does not form a separate contract but is an item in the one
contract of which it is a part. The consideration for each condition in a case like this is
the consideration for the contract taken as a whole. It is not split up into several
considerations apportioned between each term separately. But quite apart from that,
the obligation, even under this term, was to supply fresh stocks for these three depots
in exchange for the stocks which were returned and so even when regarded from that
narrow angle it would be a contract for the supply of goods. It is true that they are
replacements but a contract to replace goods is still one for supply of the goods which
are sent as replacements.
 177

Applying these observations in the context of construction of buildings and roads, it is

obvious that if some part is found defective and has to be done again, the contract of
execution as such is still to be fully performed. It is possible to describe the action taken as
one to repair the defect, but in essence, it is a part of the contract of execution, because no
execution can be said to be proper or complete till it is properly executed. Taking the fact that
some portion of the original contracts remained to be performed with the fact that under the
contracts the contractor was required not only to complete the original work but to repair
defects or re-do something which he had not properly done, we think this matter must fall
within Section 9A of the Representation of the People Act. This is not a case like the supply
of a refrigerator, which after giving service for some time goes out of order and something
has to be done to replace a part which is defective. The analogy is not quite apposite. Here the
building was completed very recently and the flooring had to be re-done and various other
things were left unfinished and these had to be completed by the contractor. Similarly in
relation to the road, although the surface was prepared and the road was in actual use, under
the contract, mile and hectometer stones had to be fixed and certain other stones fixed at
curves and boundaries. This was not done. The two contracts therefore, were not fully
performed and under clause 20 of the agreement, it was incumbent upon the contractor to
complete this part of his obligation. In our opinion, the High Court was in error in holding
that the contracts had been fully performed and therefore Section 9A did not apply.
13. Mr. Narasaraju raises three legal points. The first is that under Article 299, the
contract had to be signed by the Secretary to the Government whereas the contract was signed
by the Executive Engineer. This point was also considered in Jasani case [(1954) SCR 817]
and it was held that it did not go to save the bar of the election law to the candidature. Next, it
is argued that the section is applicable to a person whereas the contract was with a firm and
therefore the first respondent was not barred from standing for the election. In our opinion,
the High Court has taken the right view of the matter. The law requires that a candidate
should not have any interest in any contract with Government and even a partner has an
interest sufficient to attract the provisions of Section 9A. Lastly it is argued that the
partnership itself had been dissolved. That would have no effect upon the relations between
the first respondent and the Government. The first respondent could not by a private
dissolution of the partnership escape his liability under the contract to the Government, and
there was here notation, because notice of the dissolution was not given to Government and
the Government had not accepted Hampanna, to whom the business was transferred in place
of the firm. We view the transfer of the entire contracts to Hampanna with some suspicion. It
appears that on the eve of the election, the first respondent who wished to contest the seat
from Yadagiri, hurried through his contracts, managed to get a completion certificate which
was not quite accurate, dissolved the partnership with a view to clear himself from all
connections with the contracts so that he could stand for the election. In this effort, he has
distinctly failed.
14. We are satisfied that this appeal must succeed and the appeal is therefore allowed, the
election of the first respondent is declared void. In this view of the matter, the votes cast in
favour of the first respondent must be treated as thrown away. As there was no other
contesting candidate we declare the appellant (election petitioner) elected to the seat from the
Yadagiri constituency.
178

K. Prabhakaran v. P.Jayarajan
(2005) 1 SCC 754

R.C. LAHOTI, C.J. –

Facts in C.A. No. 8213/2001:
1. Election to the 14, Kuthuparamba Assembly Constituency was held in the months of
April-May, 2001. There were three candidates, including the appellant, K. Prabhakaran and
the respondent, P. Jayarajan contesting the election. Nominations were filed on 24.4.2001.
The poll was held on 10.5.2001. The result of the election was declared on 13.5.2001. The
respondent was declared as elected.
2. In connection with an incident dated 9.12.1991, the respondent was facing trial, charged
with several offences. On 9.4.1997, the Judicial Magistrate First Class, Kuthuparamba held
the respondent guilty of the offences and sentenced him to undergo imprisonment as under:
Offences Sentence
Under Section 143 read with Section 149 IPC R.I. for a period of one month
Under Section 148 read with Section 149 IPC R.I. for six months
Under Section 447 read with Section 149 IPC R.I. for one month
Under Section 353 read with Section 149 IPC R.I. for six months
Under Section 427 read with Section 149 IPC R.I. for three months
Under Section 3(2) (e) under the P.D.P.P. Act
read with Section 149 IPC R.I. for one year
3. The sentences were directed to run consecutively (and not concurrently). Thus, the
respondent was sentenced to undergo imprisonment for a total period of 2 years and 5
months. On 24.4.1997, the respondent filed Criminal Appeal No. 118/1997 before the
Sessions Court, Thalassery. In exercise of the power conferred by Section 389 of the Code of
Criminal Procedure, 1973 ('the Code') the Sessions Court directed the execution of the
sentence of imprisonment to be suspended and the respondent to be released on bail during
the hearing of the appeal.
4. The nomination paper filed by the respondent was objected to by the appellant on the
ground that the respondent having been convicted and sentenced to imprisonment for a term
exceeding 2 years was disqualified from contesting the election. However, the objection was
overruled by the returning officer and the nomination of the respondent was accepted. The
returning officer formed an opinion that the respondent was convicted for many offences and
any of the terms of imprisonment for which he was sentenced was not 2 years, and therefore,
the disqualification within the meaning of Section 8(3) of the Representation of the People
Act, 1951 (hereinafter 'RPA', for short) was not attracted.
5. On 15.6.2001, the appellant filed an election petition under Chapter II of RPA mainly
on the ground that the respondent was disqualified, and therefore, neither his nomination was
valid nor could he have been declared elected.
6. On 25.7.2001, the Court of Sessions partly allowed the appeal filed by the respondent.
The conviction of the accused and the sentences passed on him were maintained, subject to
 179

the modification that the substantive sentences of imprisonment for the several offences for
which the respondent was found guilty were made to run concurrently.
7. On 5.10.2001, a learned Designated Election Judge of the High Court decided the
election petition by directing it to be dismissed. The learned Judge did not find any fault with
the view taken by the returning officer that Section 8(3) of RPA was not attracted. The
learned Judge also held that during the pendency of the election petition, the sentence passed
by the trial court had stood modified by the appellate court which, while maintaining the
conviction and different terms of imprisonment to which the respondent was sentenced, had
directed the sentences to run concurrently. In the opinion of the High Court, the sentence, as
modified by the appellate court, operated retrospectively from the date of the judgment of the
trial court, and, therefore also the disqualification had in any case ceased to exist. The High
Court placed reliance on two decisions of this Court namely Shri Manni Lal v. Shri Parmai
Lal [(1970) 2 SCC 462] and Vidya Charan Shukla v. Purshottam Lal Kaushik [(1981) 2
SCC 84].

Facts in C.A.6691/2002:
8. On 18.9.1993, FIR No.386 for offences under Sections 148, 307, 323, 325, 326/149 of
the Indian Penal Code and Sections 25 and 27 of the Arms Act 1959 was registered against
Nafe Singh, respondent 1. One of the injured persons in the incident, died after the
registration of the F.I.R. On 20.9.1993 the offence was converted into one of murder under
Section 302 I.P.C. and other accused persons were arrested. Later on, Nafe Singh was
released on bail. On 10.5.1996 while the charges against Nafe Singh and other accused
persons were being tried, elections took place in the State of Haryana. Nafe Singh contested
elections and on 10.5.1996 he was declared elected as a Member of Legislative Assembly
from 37, Bahadurgarh Constituency.
9. On 17.5.1999, the Sessions Court trying the accused and others, held Nafe Singh guilty
of an offence punishable under Section 302 I.P.C. and other offences. On 19.5.1999 he was
sentenced to undergo imprisonment for life. On 25.5.1999 he filed an appeal in the High
Court against his conviction. On 8.10.1999 the High Court directed the execution of sentence
of imprisonment passed against Nafe Singh to be suspended and also directed him to be
released on bail. Nafe Singh furnished bail bonds and was released on bail. By that time he
had undergone imprisonment for four months and twenty one days.
10. On 14.12.1999, the Governor of the State of Haryana dissolved Haryana Assembly for
mid term poll. In the first week of January 2000 the Election Commission notified the
election programme for 37,Bahadurgarh Assembly Constituency, the last date for filing
nominations was appointed as 3.2.2000. On 29.1.2000 Indian National Lok Dal, to which
Nafe Singh belonged, released the first list of its official candidates wherein the name of Smt.
Shiela Devi wife of Nafe Singh, respondent 1, was included. On 1.2.2000 Smt. Shiela Devi
filed her nomination paper on Indian National Lok Dal ticket. On 2.2.2000 Nafe Singh also
filed his nomination paper as a dummy candidate or an alternative to his wife Smt. Shiela. On
the date of the scrutiny of nomination papers the appellant objected to the nomination of Nafe
Singh submitting that the latter, in view of his conviction and sentence of life imprisonment
passed under Section 302 I.P.C., was disqualified for being chosen as a member of Haryana
180

Assembly under Article 191 of the Constitution read with Section 8(3) of the RPA. The
objection was overruled by the Returning Officer who accepted as valid the nomination paper
filed by Nafe Singh. However, the nomination paper of Smt. Shiela, wife of Nafe Singh was
not found to be in order and hence rejected. Indian National Lok Dal then nominated Nafe
Singh as its candidate from Bahadurgarh Assembly Constituency. Polling was held on
22.2.2000. Results were declared on 25.2.2000 wherein Nafe Singh was declared elected over
the appellant, the nearest rival, by a margin of 1,648 votes. There were, in all, eleven
candidates in the election fray.
11. On 8.4.2000, the appellant filed an election petition under Chapter II of the RPA. One
of the grounds taken in the election petition was of improper acceptance of the nomination
paper of Nafe Singh by the Returning Officer. Nafe Singh contested the election petition. The
learned Designated Election Judge of the High Court of Punjab and Haryana framed 13 issues
arising from the pleadings of the parties. Issues no.1 to 7 were heard as preliminary issues not
requiring any evidence.
12. Before we may proceed to notice the result of the election petition as determined by
the High Court, a few more dates need to be noticed, as they are relevant. The hearing of the
preliminary issues commenced on 12.2.2001 and continued for several dates of hearing. On
19.3.2001 Nafe Singh, in spite of the hearing on all the issues having been already concluded,
made request to the High Court that the High Court may first decide his criminal appeal so
that in the event of his being exonerated of the charges and being acquitted, he could gain the
benefit of the decisions of this Court in Shri Manni Lal v. Shri Parmai Lal and Vidya
Charan Shukla v. Purshottam Lal Kaushik. The prayer made by the respondent - Nafe
Singh was opposed on behalf of the appellant. However, the learned Designated Election
Judge adjourned the hearing to 27.4.2001 and then to 3.5.2001 on which date the judgment
was reserved. When the judgment in the election petition was still awaited, on 1.8.2001, a
Division Bench of the High Court decided the criminal appeal preferred by Nafe Singh,
respondent 1. The appeal was allowed and respondent 1 was directed to be acquitted.
Although the judgment of the Division Bench proceeds on its own merits but one thing which
is noticeable from the judgment of the Division Bench of the High Court dated 1.8.2001 is
that the complainant and the other injured persons had come to terms with the accused
(respondent 1), settled their differences and compromised. 15 persons, who had as witnesses
supported the prosecution case at trial, had now filed their affidavits before the Appellate
Court disowning their statements earlier given by them in the trial court and stated (as the
High Court has recorded in its decision), "that the parties had compromised their disputes and
that the F.I.R. had been lodged on account of suspicion and at the instigation of certain
persons and that no such occurrence had taken place."
13. On 21.8.2001 Nafe Singh, respondent 1, placed the appellate judgment of acquittal on
record of the election petition by moving an application in that regard. On 20.12.2001 the
appellant herein made a request to the Hon’ble Chief Justice of High Court requesting for his
indulgence in getting the judgment in the election petition being pronounced. On 25.2.2002
the appellant moved an application before the learned Designated Election Judge praying for
pronouncement of judgment at an early date. The judgment was pronounced on 5.7.2002. The
 181

election petition was directed to be dismissed. Out of several findings recorded by the High
Court the two which are relevant for the purpose of this appeal, are as under:
(i) in view of the appeal preferred by the respondent having been allowed, his
conviction and sentence passed thereon respectively dated 17.5.1999 and 19.5.1999
stood wiped out as if no conviction had taken place as is the view taken by this Court
in the cases of Manni Lal and Vidya Charan Shukla.
(ii) that on the date of his conviction Nafe Singh was a Member of Legislative
Assembly and, therefore, in view of the provisions contained in sub-section (4) of
Section 8 of the RPA, the conviction did not take effect for a period of three months,
and as within that period an appeal was preferred which was pending and not
disposed of on the date of nomination and election of Nafe Singh, he was protected
by the said provision and the disqualification did not take effect.
Proceedings in the appeals
14. The election petitioners in both the cases have preferred these two statutory appeals
under Section 116A of the RPA.
15. On 1.10.2002, C.A. no. 8213/2001 came up for hearing before a three-Judge Bench of
this Court which expressed doubt about the correctness of the view taken in the cases of
Vidya Charan Shukla and Manni Lal, the former being a three-Judge Bench decision, and,
therefore, directed the matter to be placed for consideration by a Constitution Bench. The
Bench also felt that the other issue arising for decision in the case as to whether the
applicability of Section 8(3) of RPA would be attracted only when a person is sentenced to
imprisonment for not less than 2 years for a single offence was also a question having far
reaching implications and there being no decided case of this Court available on the issue, it
would be in public interest to have an authoritative pronouncement by a Constitution Bench
so as to settle the law, and hence directed such other question also to be placed for
consideration by the Constitution Bench. The order of reference is reported as K.
Prabhakaran v. P. Jayarajan [(2002) 8 SCC 79].
17. Three questions arise for decision:
(1) Whether an appellate judgment of a date subsequent to the date of election, and having
a bearing on conviction of a candidate and sentence of imprisonment passed on him, would
have the effect of wiping out disqualification from a back date if a person, consequent upon
his conviction for any offence and sentenced to imprisonment for not less than 2 years, was
disqualified from filing nomination and contesting the election on the dates of nomination and
election ?
(2) What is the meaning to be assigned to the expression "A person convicted of any
offence and sentenced to imprisonment for not less than 2 years" as employed in sub-section
(3) of Section 8 of the Representation of the People Act, 1951? Is it necessary that the term of
imprisonment for not less than 2 years must be in respect of one single offence to attract the
disqualification?
(3) What is the purport of sub-section (4) of Section 8 of RPA? Whether the protection
against disqualification conferred by sub-section (4) on a member of a House would continue
182

to apply, though the candidate had ceased to be a member of Parliament or Legislature of a

State on the date of nomination or election?
Relevant Provisions
18. The relevant provisions of law may be set out as under:
Constitution of India
Article 191: Disqualification for membership (1) A person shall be disqualified for
being chosen as, and for being, a member of the Legislative Assembly or Legislative
Council of a State-
xxx
(e) if he is so disqualified by or under any law made by Parliament.
xxx
The Representation of the People Act, 1951
8. Disqualification on conviction for certain offences- x x x
(3) A person convicted of any offence and sentenced to imprisonment for not less
than two years, other than any offence referred to in sub-section (1) or sub-section
(2), shall be disqualified from the date of such conviction and shall continue to be
disqualified for a further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3)
a disqualification under either sub-section shall not, in the case of a person who on
the date of the conviction is a member of Parliament or the Legislature of a State, take
effect until three months have elapsed from that date or, if within that period an
appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court.
100. Grounds for declaring election to be void-(1) Subject to the provisions of
sub- section (2) if the High Court is of opinion-
(a) that on the date of his election a returned candidate was not qualified, or was
disqualified, to be chosen to fill the seat under the Constitution or this Act; or
xxx
(d) that the result of the election, in so far as it concerns a returned candidate, has
been materially affected-
(i) by the improper acceptance of any nomination, or
(ii) by any corrupt practice committed in the interests of the returned candidate by
an agent other than his election agent, or
(iii) by the improper reception, refusal or rejection of any vote or the reception of
any vote which is void, or
(iv) by any non-compliance with the provisions of the Constitution or of this Act
or of any rules or orders made under this Act, the High Court shall declare the
election of the returned candidate to be void.
19. We have briefly stated in the earlier part of the judgment such facts relating to both the
cases which are not in dispute. Before dealing with the submissions made by the learned
 183

counsel for the parties, it would be appropriate to set out briefly the relevant facts and the law
laid down in the cases of Manni Lal and Vidya Charan Shukla.
Manni Lal case
20. Manni Lal case is a two-Judge Bench decision of this Court. Parmai Lal, respondent 1
therein, filed his nomination on 9.1.1969. Two days later, on 11.1.1969, he was convicted for
an offence under Section 304 I.P.C. and sentenced to 10 years R.I. On 16.1.1969 he filed an
appeal against his conviction in the High Court. Polling took place on 9.2.1969. Parmai Lal
was declared elected on 11.2.1969. On 30.9.1969 the appeal filed by Parmai Lal was allowed
by the High Court and his conviction and sentence was set aside. At that point of time, an
election petition laying challenge to the election of Parmai Lal was pending which was
decided by the judgment delivered on 27.10.1969. The High Court refused to hold Parmai Lal
as disqualified under Section 8(2) of RPA. Manni Lal filed an appeal in this Court. This Court
held that in a criminal case, acquittal in appeal does not take effect merely from the date of
the appellate order setting aside the conviction; it has the effect of retrospectively wiping out
the conviction and the sentence awarded by the lower court.
21. Bhargava, J., speaking for the Bench, observed:
It is true that the opinion has to be formed as to whether the successful candidate
was disqualified on the date of his election; but this opinion is to be formed by the
High Court at the time of pronouncing the judgment in the election petition. In this
case, the High Court proceeded to pronounce the judgment on 27th October, 1969.
The High Court had before it the order of acquittal which had taken effect
retrospectively from 11th January, 1969. It was, therefore, impossible for the High
Court to arrive at the opinion that on 9th or 11th February, 1969, respondent 1 was
disqualified. The conviction and sentence had been retrospectively wiped out, so that
the opinion required to be formed by the High Court to declare the election void
could not be formed.
In the opinion of Bhargava, J. the effect of acquittal by the appellate court was similar to the
effect of repeal of an enactment. To quote His Lordship:
The situation is similar to one that could have come into existence if Parliament
itself had chosen to repeal Section 8(2) of the Act retrospectively with effect from
11th January, 1969 (the day of conviction of Parmai Lal). Learned counsel conceded
that, if a law had been passed repealing Section 8(2) of the Act and the law had been
deemed to come into effect from 11th January, 1969, he could not have possibly
urged thereafter, when the point came up before the High Court, that respondent 1
was disqualified on 9th or 11th February, 1969. The setting aside of the conviction
and sentence in appeal has a similar effect of wiping out retrospectively the
disqualification. The High Court was, therefore, right in holding that respondent 1
was not disqualified and that his election was not void on that ground.
On this reasoning this Court upheld the judgment of the High Court that the election of
Parmai Lal was not void on the ground of his conviction on the date of the poll and the
declaration of the result.
184

Vidya Charan Shukla case

22. Vidya Charan Shukla case is a three-Judge Bench decision of this Court. Vidya
Charan Shukla was convicted and sentenced to imprisonment exceeding two years by the
Sessions Court on the date of filing of nomination. Such conviction and sentence were
effective on the date of election as also on the date of declaration of result. However, the
execution of sentence was stayed by the High Court. The unsuccessful candidate filed an
election petition and by the time the election petition came to be decided, the criminal appeal
filed by Vidya Charan Shukla was allowed by the High Court and his conviction and sentence
were set aside. Reliance was placed on Manni Lal case and the narrow question which arose
for decision before this Court was whether the case fell within the ratio of Manni Lal case if
the challenge was considered to be one under clause (d)(i) and (iv) of Section 100.
The Court noticed the principle laid down in Dilip Kumar Sharma v. State of M.P.,
[(1976) 1 SCC 560] to hold that an order of acquittal, particularly one passed on merits, wipes
off the conviction and sentence for all purposes and as effectively as it had never been passed
and an order of acquittal annulling or voiding a conviction operates from nativity. The
conviction for the offence having been quashed by the High Court in appeal it "killed the
conviction not then, but performed the formal obsequies of the order which had died at birth."
23. Thereafter, this Court referred to the case of Manni Lal and expressed agreement
with the view taken therein, that, once the disqualification of the returned candidate incurred
on account of his conviction and sentence exceeding two years’ imprisonment which existed
as a fact at the date of the election, is subsequently set aside by the High Court prior to the
date of decision in the election petition laying challenge to the validity of election under
Section 100(1)(a) of RPA, the election petition must fail because the acquittal had the effect
of retrospectively wiping out the disqualification as completely and effectively as if it never
had existed. It did not make much difference that the candidate stood convicted on the date of
filing nomination as also on the date of election and earned acquittal after the election so long
as it was before the date of pronouncement of judgment in the election petition by the High
Court.
24. The emphasis in Manni Lal case, that the opinion on the question of disqualification
had to be formed by the High Court at the time it proceeds to pronounce the judgment in the
election petition and, therefore, it was by reference to the date of judgment in election petition
by the High Court that the factum of disqualification was to be decided, was reiterated in
Vidya Charan Shukla case. The acquittal had retrospective effect of making the
disqualification non-existent even at the time of scrutiny of the nominations.
25. However, it is pertinent to notice the dilemma which the Court faced while dealing
with an argument advanced before it and dealt in paragraphs 39 and 40 of the judgment. A
submission was made-what would happen if nomination of a candidate was rejected on
account of his disqualification incurred by his conviction and sentence exceeding two years’
imprisonment and existing as a fact on the date of scrutiny of nomination and he brought an
election petition to challenge the election of the returned candidate on the ground that his
nomination was improperly rejected and if by the time the election petition came to be heard
and decided, the conviction of the election petitioner was set aside in criminal appeal then, as
 185

a result of his subsequent acquittal, his conviction and sentence would stand annulled and
obliterated with retrospective force and he would be justified in submitting that his
nomination was illegally rejected and, therefore, the result of the election was materially
affected and was liable to be set aside. The Court branded the said submission as
'hypothetical' requiring an academic exercise which was not necessary to indulge in. It would
be note-worthy, as recorded vide para 40 of the judgment in Vidya Charan Shukla case, that
correctness of the decision in Manni Lal case was not disputed and there was no prayer made
for reconsideration of the ratio of Manni Lal case by a larger bench. The only submission
made before the Court in Vidya Charan Shukla case was that the ratio in Manni Lal case
was distinguishable and hence inapplicable to the facts of Vidya Charan Shukla case. In such
circumstances, the Court held "we would abide by the principle of stare decisis and follow the
ratio of Manni Lal’s case."
26. It is writ large that the position of law may have been different and the three-Judge
bench which decided Vidya Charan Shukla case could have gone into the question of
examining the correctness of the view taken in Manni Lal case, if only that submission would
have been made. Now we proceed to deal with the three issues posed for resolution before us.
QUESTION (1):
28. Under clause (a) of sub-section (1) of Section 100 of the RPA, the High Court is
called upon to decide whether on the date of his election a returned candidate was not
qualified or was disqualified to be chosen to fill the seat under the Constitution or the RPA. If
the answer be in the affirmative, the High Court is mandated to declare the election of the
returned candidate to be void. The focal point by reference to which the question of
disqualification shall be determined is the date of election.
29. It is trite that the right to contest an election is a statutory right. In order to be eligible
for exercising such right the person should be qualified in terms of the statute. He should also
not be subject to any disqualification as may be imposed by the statute making provision for
the elective office. Thus, the Legislature creating the office is well within its power to
prescribe qualifications and disqualifications subject to which the eligibility of any candidate
for contesting for or holding the office shall be determined. Article 191 of the Constitution
itself lays down certain disqualifications prescribed by clauses (a) to (d) of sub-Article (1)
thereof. In addition, it permits, vide clause (e), any other disqualifications being provided for
by or under any law made by Parliament. The Representation of the People Act, 1951 is one
such legislation. It provides for the conduct of elections to the Houses of Parliament and to
the House or Houses of the Legislature of each State and the qualifications and the
disqualifications for membership of those Houses.
30. Under sub-clause (i) of clause (d) of sub-section (1) of Section 100 of the RPA, the
improper acceptance of any nomination is a ground for declaring the election of the returned
candidate to be void. This provision is to be read with Section 36(2)(a) which casts an
obligation on the returning officer to examine the nomination papers and decide all objections
to any nomination made, or on his own motion, by reference to the date fixed for the scrutiny
of the nominations. Whether a candidate is qualified or not qualified or is disqualified for
being chosen to fill the seat, has to be determined by reference to the date fixed for the
186

scrutiny of nomination. That is the focal point. The names and number of candidates who will
be in the fray is determined on the date of the scrutiny of the nomination papers and the
constituency goes to polls. Obviously, the decision by the returning officer has to be taken on
the facts as they exist on that day. The decision must be accompanied by certainty. The
returning officer cannot postpone his decision nor make it conditional upon what may happen
subsequent to that date. Under Section 100(1)(d)(i) of the Act the High Court has to test the
correctness of the decision taken by the returning officer and the fact whether any nomination
was improperly accepted by reference to the date of scrutiny of the nomination as defined in
Section 36(2)(a). An election petition is heard and tried by a court of law. The proceedings in
election petition are independent of the election proceedings which are held by the Executive.
By no stretch of imagination the proceedings in election petition can be called or termed as
continuation of election proceedings. The High Court trying an election petition is not hearing
an appeal against the decision of the returning officer or declaration of result of a candidate.
31. With respect to the learned judges who decided Manni Lal case, the fallacy with
which the judgment suffers is presumably an assumption as if the election petition
proceedings are the continuation of the election proceedings. Yet, another fallacy with which
the judgment, in our humble opinion, suffers is as if the High Court has to form opinion on
the disqualification of a candidate at the time of pronouncing the judgment in the election
petition. That is not correct. Undoubtedly, the High Court is forming an opinion on the date of
judgment in election petition but that opinion has to be formed by reference to the date of
scrutiny, based not on such facts as can be fictionally deemed to have existed on a back date
dictated by some subsequent event, but based on the facts as they had actually existed then, so
as to find out whether the returning officer was right or wrong in his decision on scrutiny of
nomination on that date, i.e., the date of scrutiny. The correctness or otherwise of such
decision by the returning officer cannot be left to be determined by any event which may have
happened between the date of scrutiny and the date of pronouncement of the judgment by the
High Court.
32. It is rather unfortunate that the correctness of the view taken in Manni Lal case was
not questioned in Vidya Charan Shukla case and an attempt was made only to distinguish the
case of Manni Lal. While interpreting a provision of law and pronouncing upon the
construction of a statutory provision, the Court has to keep in mind that the view of the law
taken by it would be applied to myriad situations which are likely to arise. It is also well-
settled that such interpretation has to be avoided as would result in creating confusion,
anomaly, uncertainty and practical difficulties in the working of any system. A submission
based on this principle was advanced before the three-Judge Bench in Vidya Charan Shukla
case, but unfortunately did not receive the attention of the Court forming an opinion that
dealing with that submission (though forceful) would amount to indulging in a 'hypothetical
and academic exercise'.
33. We may just illustrate what anomalies and absurdities would result if the view of the
law taken in Manni Lal case and Vidya Charan Shukla case were to hold the field. One such
situation is to be found noted in para 39 of Vidya Charan Shukla case. A candidate's
nomination may be rejected on account of his having been convicted and sentenced to
imprisonment for a term exceeding two years prior to the date of scrutiny of nomination.
 187

During the hearing of election petition if such candidate is exonerated in appeal and earns
acquittal, his nomination would be deemed to have been improperly rejected and the election
would be liable to be set aside without regard to the fact whether the result of the election was
materially affected or not. Take another case. Two out of the several candidates in the election
fray may have been convicted before the date of nomination. By the time the election petition
comes to be decided, one may have been acquitted in appeal and the conviction of other may
have been upheld and by the time an appeal under Section 116A of the RPA preferred in this
Court comes to be decided, the conviction of one may have been set aside and, at the same
time, the acquittal of the other may also have been set aside. Then the decision of the High
Court in election petition would be liable to be reversed not because it was incorrect, but
because something has happened thereafter. Thus, the result of election would be liable to be
avoided or upheld not because a particular candidate was qualified or disqualified on the date
of scrutiny of nominations or on the date of his election, but because of acquittal or conviction
much after those dates. Such could not have been the intendment of the law.
34. We are also of the opinion that the learned judges deciding Manni Lal case were not
right in equating the case of appellate acquittal with the retrospective repeal of a
disqualification by statutory amendment.
35. In Vidya Charan Shukla case, Dilip Kumar Sharma case has been relied upon which,
in our opinion, cannot be applied to a case of election and election petition.
36. Dilip Kumar Sharma case is a case of conviction under Section 303 I.P.C. One P was
murdered on 24.10.1971. The accused was sentenced to life imprisonment on 18.5.1972. On
20.6.1973 the accused committed the murder of A and was convicted for such murder on
24.1.1974 and sentenced to death under Section 303 I.P.C. In appeal against conviction for
the murder of P, the accused was acquitted on 27.2.1974. On the same day the High Court
confirmed the death sentence of the accused under Section 303 I.P.C. holding that on the date
on which the accused had committed the murder of A he was undergoing sentence of life
imprisonment for the murder of P. In appeal preferred before this Court, it was held that the
death sentence could not be upheld inasmuch as the accused had stood acquitted from the
offence of the first murder and the acquittal in an appeal had the effect of wiping out the
conviction in the first murder. The mandatory sentence of death by reference to Section 303
I.P.C. for the second offence could not be maintained.
37. Four factors are relevant. Firstly, the sentence of death was passed in judicial
proceedings and the appeal against the judgment of the trial court being a continuation of
those judicial proceedings, the court was not powerless to take note of subsequent events. The
sentence of death was passed based on an event which had ceased to exist during the
pendency of the appeal. The court was, not only, not powerless but was rather obliged to take
note of such subsequent event, failing which a grave injustice would have been done to the
accused. Secondly, the court interpreted Section 303 I.P.C. which speaks of a person "under
sentence of imprisonment for life" as meaning a person under an operative, executable
sentence of imprisonment for life. A sentence once imposed but later set aside is not
executable and, therefore, ceases to be relevant for the purpose of Section 303 I.P.C. Thirdly,
the focal point was the date of conviction when the court is called upon to pronounce the
sentence. Fourthly, it is pertinent to note that the well established proposition which the court
188

pressed into service was that "a court seized of a proceeding must take note of events
subsequent to the inception of that proceeding", which position, the court held, is applicable
to civil as well as criminal proceedings with appropriate modifications. The emphasis is on
the events happening subsequent to the inception of that proceeding. In the cases at hand, the
principle laid down in Dilip Kumar Sharma case will have no application inasmuch as the
validity of nomination paper is to be tested by deciding qualification or disqualification of the
candidate on the date of scrutiny and not by reference to any event subsequent thereto.
38. The decision of this Court in Amrit Lal Ambalal Patel v. Himathbhai Gomanbhai
Patel [AIR 1968 SC 1455] lends support to the principle that the crucial date for determining
whether a candidate is not qualified or is disqualified is the date of scrutiny of nominations
and a subsequent event which has the effect of wiping out the disqualification has to be
ignored.
39. That an appellate judgment in a criminal case, exonerating the accused-appellant, has
the effect of wiping out the conviction as recorded by the Trial Court and the sentence passed
thereon is a legal fiction. While pressing into service a legal fiction it should not be forgotten
that legal fictions are created only for some definite purpose and the fiction is to be limited to
the purpose for which it was created and should not be extended beyond that legitimate field.
A legal fiction pre-supposes the existence of the state of facts which may not exist and then
works out the consequences which flow from that state of facts. Such consequences have got
to be worked out only to their logical extent having due regard to the purpose for which the
legal fiction has been created. Stretching the consequences beyond what logically flows
amounts to an illegitimate extension of the purpose of the legal fiction. [See, the majority
opinion in Bengal Immunity Co. v. State of Bihar, AIR 1955 SC 661]. P.N. Bhagwati, J., as
his Lordship then was, in his separate opinion concurring with the majority and dealing with
the legal fiction contained in the Explanation to Article 286 (1) (a) of the Constitution (as it
stood prior to Sixth Amendment) observed:
Due regard must be had in this behalf to the purpose for which the legal fiction
has been created. If the purpose of this legal fiction contained in the Explanation to
Article 286 (1) (a) is solely for the purpose of sub- clause (a) as expressly stated it
would not be legitimate to travel beyond the scope of that purpose and read into the
provision any other purpose howsoever attractive it may be. The legal fiction which
was created here was only for the purpose of determining whether a particular sale
was an outside sale or one which could be deemed to have taken place inside the State
and that was the only scope of the provision. It would be an illegitimate extension of
the purpose of the legal fiction to say that it was also created for the purpose of
converting the inter-state character of the transaction into an intra-state one.
His Lordship opined that this type of conversion would be contrary to the express purpose for
which the legal fiction was created. These observations are useful for the purpose of dealing
the issue in our hands. Fictionally, an appellate acquittal wipes out the trial court conviction;
yet, to hold on the strength of such legal fiction that a candidate though convicted and
sentenced to imprisonment for two years or more was not disqualified on the date of scrutiny
of the nomination, consequent upon his acquittal on a much later date, would be an
illegitimate extension of the purpose of the legal fiction. However, we hasten to add that in
 189

the present case the issue is not so much as to the applicability of the legal fiction; the issue
concerns more about the power of the Designated Election Judge to take note of a subsequent
event and apply it to an event which had happened much before the commencement of that
proceeding in which the subsequent event is brought to the notice of the Court. An election
petition is not a continuation of election proceedings.
40. We are clearly of the opinion that Manni Lal case and Vidya Charan Shukla case do
not lay down the correct law. Both the decisions are, therefore, overruled.
41. The correct position of law is that nomination of a person disqualified within the
meaning of sub-section (3) of Section 8 of the RPA on the date of scrutiny of nominations
under Section 36(2)(a) shall be liable to be rejected as invalid and such decision of the
returning officer cannot be held to be illegal or ignored merely because the conviction is set
aside or so altered as to go out of the ambit of Section 8(3) of the RPA consequent upon a
decision of a subsequent date in a criminal appeal or revision.
42. What is relevant for the purpose of Section 8(3) is the actual period of imprisonment
which any person convicted shall have to undergo or would have undergone consequent upon
the sentence of imprisonment pronounced by the Court and that has to be seen by reference to
the date of scrutiny of nominations or date of election. All other factors are irrelevant. A
person convicted may have filed an appeal. He may also have secured an order suspending
execution of the sentence or the order appealed against under Section 389 of the Code of
Criminal Procedure 1973. But that again would be of no consequence. A court of appeal is
empowered under Section 389 to order that pending an appeal by a convicted person the
execution of the sentence or order appealed against be suspended and also, if he is in
confinement, that he be released on bail or bond. What is suspended is not the conviction or
sentence; it is only the execution of the sentence or order which is suspended. It is suspended
and not obliterated. It will be useful to refer in this context to a Constitution Bench judgment
of this Court in Sarat Chandra Rabha v. Khagendranath Nath [(1961)2 SCR 133]. The
convict had earned a remission and the period of imprisonment reduced by the period of
remission would have had the effect of removing disqualification as the period of actual
imprisonment would have been reduced to a period of less than two years. The Constitution
Bench held that
The remission of sentence under Section 401 of the Criminal Procedure Code (old)
and his release from jail before two years of actual imprisonment would not reduce the
sentence into one of a period of less than two years and save him from incurring the
disqualification. An order of remission does not in any way interfere with the order of
the court; it affects only the execution of the sentence passed by the court and frees the
convicted person from his liability to undergo the full term of imprisonment inflicted
by the court, though the order of conviction and sentence passed by the court still
stands as it was. The power to grant remission is executive power and cannot have the
effect which the order of an appellate or revisional court would have of reducing the
sentence passed by the trial court and substituting in its place the reduced sentence
adjudged by the appellate or revisional court.
190

43. In B.R. Kapur v. State of T.N. [(2001) 7 SCC 231] a similar question, though in a
little different context, had arisen for the consideration of the Constitution Bench. Vide para
44, the Court did make a reference to Vidya Charan Shukla case but observed that it was a
case of an election petition and, therefore, did not have a bearing on the construction of
Article 164 of the Constitution which was in issue before the Constitution Bench. Obviously
the consideration of the correctness of the law laid down in Vidya Charan Shukla case was
not called for. However, still the Constitution Bench has made a significant observation which
is very relevant for our purpose. The Constitution Bench observes (vide SCC p. 298 para 44):
There can be no doubt that in a criminal case acquittal in appeal takes effect
retrospectively and wipes out the sentence awarded by the lower court. This implies
that the stigma attached to the conviction and the rigour of the sentence are
completely obliterated, but that does not mean that the fact of the conviction and
sentence by the lower court is obliterated until the conviction and sentence are set
aside by an appellate court. The conviction and sentence stand pending the decision in
the appeal and for the purposes of a provision such as Section 8 of the Representation
of the People Act are determinative of the disqualifications provided for therein.
To the same effect are observations contain in para 40 also.
44. We are, therefore, of the opinion that an appellate judgment of a date subsequent to
the date of nomination or election (as the case may be) and having a bearing on conviction of
a candidate or sentence of imprisonment passed on him would not have the effect of wiping
out disqualification from a back date if a person consequent upon his conviction for any
offence and sentenced to imprisonment for not less than two years was actually and as a fact
disqualified from filing nomination and contesting the election on the date of nomination or
election (as the case may be).
Question (2):
45. What is the meaning to be assigned to the expression “sentenced to imprisonment for
not less than 2 years” as occurring in Section 8(3) of the RPA? In a trial a person may be
charged for several offences and held guilty. He may be sentenced to different terms of
imprisonment for such different offences. Individually the term of imprisonment may be less
than 2 years for each of the offences, but collectively or taken together or added to each other
the total term of imprisonment may exceed 2 years. Whether the applicability of Section 8(3)
above said would be attracted to such a situation.
46. Section 31 of the Code of Criminal Procedure, 1973 is relevant to find an answer for
this. It provides as under:
31. Sentence in cases of conviction of several offences at one trial:
(1) When a person is convicted at one trial of two or more offences, the Court
may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860),
sentence him for such offences, to the several punishments, prescribed therefor which
such Court is competent to inflict; such punishments when consisting of
imprisonment to commence the one after the expiration of the other in such order as
the Court may direct, unless the Court directs that such punishments shall run
concurrently.
 191

(2) In the case of consecutive sentences, it shall not be necessary for the Court by
reason only of the aggregate punishment for the several offences being in excess of
the punishment which it is competent to inflict on conviction of a single offence, to
send the offender for trial before a higher Court:
Provided that-(a) in no case shall such person be sentenced to imprisonment for a
longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment
which the Court is competent to inflict for a single offence.
(4) For the purpose of appeal by a convicted person, the aggregate of the
consecutive sentences passed against him under this section shall be deemed to be a
single sentence.
47. It is competent for a criminal court to pass several punishments for the several
offences of which the accused has been held guilty. The several terms of imprisonment to
which the accused has been sentenced commence one after the other and in such order as the
court may direct, unless the court directs that such punishments shall run concurrently. Each
of the terms of imprisonment to which the accused has been sentenced for the several
offences has to be within the power of the court and the term of imprisonment is not rendered
illegal or beyond the power of the court merely because the total term of imprisonment in the
case of consecutive sentences is in excess of the punishment within the competency of the
court. For the purpose of appeal by a convicted person it is the aggregate of the consecutive
sentences passed against him which shall be deemed to be a single sentence. The same
principle can be held good and applied to determining disqualification. Under sub-section (3)
of Section 8 of the RPA the period of disqualification commences from the date of such
conviction. The disqualification continues to operate for a further period of six years
calculated from the date of his release from imprisonment. Thus, the disqualification
commences from the date of conviction whether or not the person has been taken into custody
to undergo the sentence of imprisonment. He cannot escape the effect of disqualification
merely because he has not been taken into custody because he was on bail or was absconding.
Once taken into custody he shall remain disqualified during the period of imprisonment. On
the date of his release would commence the period of continued disqualification for a further
period of six years. It is clear from a bare reading of sub-section (3) of Section 8 of the RPA
that the actual period of imprisonment is relevant. The provisions of Section 8 of the
Representation of People Act, 1951 have to be construed in harmony with the provisions of
the Code of Criminal Procedure, 1973 and in such manner as to give effect to the provisions
contained in both the legislations. In the case of consecutive sentences the aggregate period of
imprisonment awarded as punishment for the several offences and in the case of punishments
consisting of several terms of imprisonment made to run concurrently, the longest of the
several terms of imprisonment would be relevant to be taken into consideration for the
purpose of deciding whether the sentence of imprisonment is for less than 2 years or not.
48. It was submitted by Shri K.K. Venugopal, the learned Senior Counsel for the
respondent in C.A. no. 8213/2001, that the phrase "any offence" as occurring in Section 8(3)
of the RPA should be interpreted to mean a single offence and unless and until the term of
imprisonment for any one of the offences, out of the several offences for which the accused
192

has been convicted and sentenced is 2 years or more, the disqualification enacted under
Section 8(3) would not be attracted. We are not impressed.
49. In Shri Balaganesan Metals v. M.N. Shanmugham Chetty [(1987) 2 SCC 707] the
word "any" came up for consideration of this Court. It was held that the word "any" indicates
"all" or "every" as well as "some" or "one" depending on the context and the subject matter of
the statue. Black's Law Dictionary was cited with approval. In Black's Law Dictionary (sixth
edition) the word 'any' is defined (at p.94) as under:
Any- Some; one out of many; an indefinite number. One indiscriminately of
whatever kind or quantity one or some (indefinitely).
"Any" does not necessarily mean only one person, but may have reference to
more than one or to many.
Word "any" has a diversity of meaning and may be employed to indicate "all" or
"every" as well as "some" or "one" and its meaning in a given statute depends upon
the context and the subject matter of the statute.
It is often synonymous with "either", "every", or "all". Its generality may be restricted by
the context; thus, the giving of a right to do some act "at any time" is commonly construed as
meaning within a reasonable time; and the words "any other" following the enumeration of
particular classes are to be read as "other such like," and include only others of like kind or
character.
51. The word 'any' may have one of the several meanings, according to the context and the
circumstances. It may mean 'all'; 'each'; 'every'; 'some'; or 'one or many out of several'. The
word 'any' may be used to indicate the quantity such as 'some', 'out of many', 'an infinite
number'. It may also be used to indicate quality or nature of the noun which it qualifies as an
adjective such as 'all' or 'every'. Principles of Statutory Interpretation by Justice G.P. Singh
(9th Edition, 2004) states (at p.302)
When a word is not defined in the Act itself, it is permissible to refer to
dictionaries to find out the general sense in which that word is understood in common
parlance. However, in selecting one out of the various meanings of a word, regard
must always be had to the context as it is a fundamental rule that "the meanings of
words and expressions used in an Act must take their colour from the context in
which they appear.
Therefore, "when the context makes the meaning of a word quite clear, it becomes
unnecessary to search for and select a particular meaning out of the diverse meanings a word
is capable of, according to lexicographers".
52. In Section 8(3) of the RPA, the word 'any' has been used as an adjective qualifying the
word 'offence' to suggest not the number of offences but the nature of the offence. A bare
reading of sub-section (3) shows that the nature of the offence included in sub-section (3) is
'any offence other than any offence referred to in sub-section (1) or sub-section (2) of Section
8'. The use of adjective 'any' qualifying the noun 'offence' cannot be pressed in service to
countenance the submission that the sentence of imprisonment for not less than two years
must be in respect of a single offence.
 193

53. Sub-section (3) in its present form was introduced in the body of the RPA by Act no.1
of 1989 w.e.f. 15.3.1989. The same Act made a few changes in the text of sub-Section (4)
also. The Statement of Objects and Reasons accompanying Bill no.128 of 1988 stated, inter
alia, “Section 8 of the Representation of the People Act, 1951 deals with disqualification on
the ground of conviction for certain offences. It is proposed to include more offences in this
section so as to prevent persons having criminal record enter into public life”.(See the Gazette
of India Extraordinary, Part II, Section 2, pp.105, 114). The intention of Parliament is writ
large; it is to widen the arena of Section 8 in the interest of purity and probity in public life.
54. The purpose of enacting disqualification under Section 8(3) of the RPA is to prevent
criminalization of politics. Those who break the law should not make the law. Generally
speaking, the purpose sought to be achieved by enacting disqualification on conviction for
certain offences is to prevent persons with criminal background from entering into politics,
and the House, a powerful wing of governance. Persons with criminal background do pollute
the process of election as they do not have many a holds barred and have no reservation from
indulging into criminality to win success at an election. Thus, Section 8 seeks to promote
freedom and fairness at elections, as also law and order being maintained while the elections
are being held. The provision has to be so meaningfully construed as to effectively prevent the
mischief sought to be prevented. The expression "a person convicted of any offence" has to be
construed as all offences of which a person has been charged and held guilty at one trial. The
applicability of the expression "sentenced to imprisonment for not less than 2 years" would be
decided by calculating the total term of imprisonment for which the person has been
sentenced.
55. Shri K.K. Venugopal, learned senior counsel appearing for respondent in one of the
appeals, submitted that Section 8 of the RPA is a penal provision and, therefore, should be
construed strictly. We find it difficult to countenance the submission. Contesting an election
is a statutory right and qualifications and disqualifications for holding the office can be
statutorily prescribed. A provision for disqualification cannot be termed a penal provision and
certainly cannot be equated with a penal provision contained in a criminal law. If any
authority is needed for the proposition the same is to be found in Jalan v. Bombay Gas Co.
Ltd. [(2003) 6 SCC 107] which has held Section 630 of the Companies Act, 1956 not to be a
penal provision. The Court has gone on to say, "the principle that statute enacting an offence
or imposing a penalty is to be strictly construed is not of universal application which must
necessarily be observed in every case."
56. In the case of respondent P. Jayarajan the sentences of imprisonment were to run
consecutively in terms of the judgment of the trial court. The periods of sentences of
imprisonment for different offences shall have to be totalled up. On such totalling, the total
term for which P. Jayarajan would have remained in jail did exceed a period of 2 years and
consequently attracted the applicability of Section 8(3) of the RPA which cast a
disqualification upon P. Jayarajan on the date of scrutiny of the nomination papers. His
nomination could not have been accepted by the returning officer and he was not right in
holding him not disqualified. In the light of the view of the law taken by us on Question-1
above, the subsequent event of the several terms of imprisonment having been directed by the
194

appellate court to run concurrently on a date subsequent to the date of scrutiny is irrelevant
and liable to be ignored.
Question (3):
57. A comparative reading of sub-sections (3) and (4) of Section 8 of the RPA shows that
Parliament has chosen to classify candidates at an election into two classes for the purpose of
enacting disqualification. These two classes are: (i) a person who on the date of conviction is
a member of Parliament or Legislature of a State, and (ii) a person who is not such a member.
The persons falling in the two groups are well defined and determinable groups and,
therefore, form two definite classes. Such classification cannot be said to be unreasonable as it
is based on a well laid down differentia and has nexus with a public purpose sought to be
achieved.
58. Once the elections have been held and a House has come into existence, it may be that
a member of the House is convicted and sentenced. Such a situation needs to be dealt with on
a different footing. Here the stress is not merely on the right of an individual to contest an
election or to continue as a member of a House, but the very existence and continuity of a
House democratically constituted. If a member of the House was debarred from sitting in the
House and participating in the proceedings, no sooner the conviction was pronounced
followed by sentence of imprisonment, entailing forfeiture of his membership, then two
consequences would follow. First, the strength of membership of the House shall stand
reduced, so also the strength of the political party to which such convicted member may
belong. The Government in power may be surviving on a razor edge thin majority where each
member counts significantly and disqualification of even one member may have a deleterious
effect on the functioning of the Government. Secondly, bye-election shall have to be held
which exercise may prove to be futile, also resulting in complications in the event of the
convicted member being acquitted by a superior criminal court. Such reasons seem to have
persuaded the Parliament to classify the sitting members of a House into a separate category.
Sub-section (4) of Section 8, therefore, provides that if on the date of incurring
disqualification a person is a member of a House, such disqualification shall not take effect
for a period of 3 months from the date of such disqualification. The period of 3 months is
provided for the purpose of enabling the convicted member to file an appeal or revision. If an
appeal or revision has been filed putting in issue the conviction and/or the sentence which is
the foundation of disqualification, then the applicability of the disqualification shall stand
deferred until such appeal or application is disposed of by the court in appeal or revision.
59. In Shibu Soren v. Dayanand Sahay [(2001)7 SCC 425] a three-Judge Bench of this
Court was seized of the question of examining a disqualification on account of the person at
that time holding an office of profit. The Court held that such a provision is required to be
interpreted in a realistic manner having regard to the facts and circumstances of each case and
the relevant statutory provisions. While "a strict and narrow construction" may not be adopted
which may have the effect of "shutting of many prominent and other eligible persons to
contest elections" but at the same time "in dealing with a statutory provision which imposes a
disqualification on a citizen, it would not be unreasonable to take merely a broad and general
view and ignore the essential points". What is at stake is the right to contest an election and
 195

hold office. "A practical view, not pedantic basket of tests" must, therefore, guide courts to
arrive at appropriate conclusion. The disqualification provision must have a substantial and
reasonable nexus with the object sought to be achieved and the provision should be
interpreted with the flavour of reality bearing in mind the object for enactment.
60. Sub-section (4) operates as an exception carved out from sub-sections (1), (2) and (3)
of Section 8 of the RPA. Clearly the saving from the operation of sub-sections (1), (2) and (3)
is founded on the factum of membership of a House. The purpose of carving out such an
exception is not to confer an advantage on any person; the purpose is to protect the House.
Therefore, sub-section (4) would cease to apply no sooner the House is dissolved or the
person has ceased to be a member of that House. Any other interpretation would render sub-
section (4) liable to be annulled as unconstitutional. Once a House has been dissolved and the
person has ceased to be a member, on the date of filing the nomination there is no difference
between him and any other candidate who was not such a member. Treating such two persons
differently would be arbitrary and discriminatory and incur the wrath of Article 14. A
departure from the view so taken by us would also result in anomalous consequences not
intended by the Parliament.
Conclusion
61. To sum up, our findings on the questions arising for decision in these appeals are as
under:-
1. The question of qualification or disqualification of a returned candidate within the
meaning of Section 100(1)(a) of the Representation of the People Act, 1951 (RPA, for
short) has to be determined by reference to the date of his election which date, as defined
in Section 67A of the Act, shall be the date on which the candidate is declared by the
returning officer to be elected. Whether a nomination was improperly accepted shall have
to be determined for the purpose of Section 100(1)(d)(i) by reference to the date fixed for
the scrutiny of nomination, the expression, as occurring in Section 36(2)(a) of the Act.
Such dates are the focal point for the purpose of determining whether the candidate is not
qualified or is disqualified for being chosen to fill the seat in a House. It is by reference to
such focal point dates that the question of disqualification under sub-sections (1), (2) and
(3) of Section 8 shall have to be determined. The factum of pendency of an appeal against
conviction is irrelevant and inconsequential. So also a subsequent decision in appeal or
revision setting aside the conviction or sentence or reduction in sentence would not have
the effect of wiping out the disqualification which did exist on the focal point dates
referred to hereinabove. The decisive dates are the date of election and the date of scrutiny
of nomination and not the date of judgment in an election petition or in an appeal there
against.
2. For the purpose of attracting applicability of disqualification within the meaning of
"a person convicted of any offence and sentenced to imprisonment for not less than two
years" - the expression as occurring in Section 8(3) of the RPA, what has to be seen is the
total length of time for which a person has been ordered to remain in prison consequent
upon the conviction and sentence pronounced at a trial. The word 'any' qualifying the word
196

'offence' should be understood as meaning the nature of offence and not the number of
offence/offences.
3. Sub-section(4) of Section 8 of the RPA is an exception carved out from sub-
sections (1), (2) and (3). The saving from disqualification is preconditioned by the person
convicted being a Member of a House on the date of the conviction. The benefit of such
saving is available only so long as the House continues to exist and the person continues to
be a Member of a House. The saving ceases to apply if the House is dissolved or the
person ceases to be a Member of the House.
Result
62. For the foregoing reasons, Civil Appeal No. 8213 of 2001, K. Prabhakaran v. P.
Jayarajan is allowed. The judgment of the High Court dated 5.10.2001 is set aside. The
election petition filed by the appellant is allowed. The election of the respondent P. Jayarajan
from 14, Kuthuparamba Assembly Constituency to the Kerala State Legislative Assembly,
which was declared on 13.5.2001, is set aside. The respondent no.1 shall bear the costs of the
appellant throughout.
63. Civil Appeal No.6691 of 2002 is also allowed. The judgment of the High Court dated
5.7.2002 is set aside. The election petition filed by the appellant shall stand allowed. The
election of the respondent Nafe Singh from 37, Bahadurgarh Assembly Constituency is
declared void as he was disqualified from being a candidate under Section 8(3) of the
Representation of the People Act, 1951.

*****
 197

Lily Thomas v. Union of India

(2013) 7 SCC 653

A.K. PATNAIK, J.— These two writ petitions have been filed as public interest litigations for
mainly declaring sub-section (4) of Section 8 of the Representation of the People Act, 1951 as
ultra vires the Constitution.

The background facts

2. The background facts relevant for appreciating the challenge to sub-section (4) of Section 8
of the Act are that the Constituent Assembly while drafting the Constitution intended to lay
down some disqualifications for persons being chosen as, and for being, a Member of either
House of Parliament as well as a Member of the Legislative Assembly or Legislative Council
of the State. Accordingly, in the Constitution which was finally adopted by the Constituent
Assembly, Article 102(1) laid down the disqualifications for membership of either House of
Parliament and Article 191(1) laid down the disqualifications for membership of the
Legislative Assembly or Legislative Council of the State. These two articles are extracted
hereinbelow:

“102.Disqualifications for membership.—(1) A person shall be disqualified for being

chosen as, and for being, a Member of either House of Parliament—
(a) if he holds any office of profit under the Government of India or the Government of
any State, other than an office declared by Parliament by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
***

191.Disqualifications for membership.—(1) A person shall be disqualified for being

chosen as, and for being, a Member of the Legislative Assembly or Legislative Council of
a State—
(a) if he holds any office of profit under the Government of India or the Government of
any State specified in the First Schedule, other than an office declared by the legislature of
the State by law not to disqualify its holder;
(b) if he is of unsound mind and stands so declared by a competent court;
(c) if he is an undischarged insolvent;
198

(d) if he is not a citizen of India, or has voluntarily acquired the citizenship of a foreign
State, or is under any acknowledgment of allegiance or adherence to a foreign State;
(e) if he is so disqualified by or under any law made by Parliament.
Explanation.—For the purposes of this clause, a person shall not be deemed to hold an
office of profit under the Government of India or the Government of any State specified in
the First Schedule by reason only that he is a Minister either for the Union or for such
State.”

3. A reading of the aforesaid constitutional provisions will show that besides the
disqualifications laid down in clauses (a), (b), (c) and (d), Parliament could lay down by law
other disqualifications for membership of either House of Parliament or of Legislative
Assembly or Legislative Council of the State. In exercise of this power conferred under
Article 102(1)(e) and under Article 191(1)(e) of the Constitution, Parliament provided in
Chapter III of the Representation of the People Act, 1951 (for short “the Act”), the
disqualifications for membership of Parliament and State Legislatures. Sections 7 and 8 in
Chapter III of the Act, with which we are concerned in these writ petitions, are extracted
hereinbelow:

“7.Definitions.—In this Chapter—

(a) ‘appropriate Government’ means in relation to any disqualification for being chosen
as or for being a Member of either House of Parliament, the Central Government, and in
relation to any disqualification for being chosen as or for being a Member of the
Legislative Assembly or Legislative Council of a State, the State Government;
(b) ‘disqualified’ means disqualified for being chosen as, and for being, a Member of
either House of Parliament or of the Legislative Assembly or Legislative Council of a
State.

8.Disqualification on conviction for certain offences—(1) A person convicted of an

offence punishable under—
(a) Section 153-A (offence of promoting enmity between different groups on ground of
religion, race, place of birth, residence, language, etc. and doing acts prejudicial to
maintenance of harmony) or Section 171-E (offence of bribery) or Section 171-F (offence
of undue influence or personation at an election) or sub-section (1) or sub-section (2) of
Section 376 or Section 376-A or Section 376-B or Section 376-C or Section 376-D
(offences relating to rape) or Section 498-A (offence of cruelty towards a woman by
husband or relative of a husband) or sub-section (2) or sub-section (3) of Section 505
(offence of making statement creating or promoting enmity, hatred or ill-will between
classes or offence relating to such statement in any place of worship or in any assembly
 199

engaged in the performance of religious worship or religious ceremonies) of the Indian

Penal Code (45 of 1860); or
(b) the Protection of Civil Rights Act, 1955 (22 of 1955), which provides for punishment
for the preaching and practice of ‘untouchability’, and for the enforcement of any
disability arising therefrom; or
(c) Section 11 (offence of importing or exporting prohibited goods) of the Customs Act,
1962 (52 of 1962); or
(d) Sections 10 to 12 (offence of being a Member of an association declared unlawful,
offence relating to dealing with funds of an unlawful association or offence relating to
contravention of an order made in respect of a notified place) of the Unlawful Activities
(Prevention) Act, 1967 (37 of 1967); or
(e) the Foreign Exchange (Regulation) Act, 1973 (46 of 1973); or
(f) the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985); or
(g) Section 3 (offence of committing terrorist acts) or Section 4 (offence of committing
disruptive activities) of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (28
of 1987); or
(h) Section 7 (offence of contravention of the provisions of Sections 3 to 6) of the
Religious Institutions (Prevention of Misuse) Act, 1988 (41 of 1988); or
(i) Section 125 (offence of promoting enmity between classes in connection with the
election) or Section 135 (offence of removal of ballot papers from polling stations) or
Section 135-A (offence of booth capturing) or clause (a) of sub-section (2) of Section 136
(offence of fraudulently defacing or fraudulently destroying any nomination paper) of this
Act; or
(j) Section 6 (offence of conversion of a place of worship) of the Places of Worship
(Special Provisions) Act, 1991, or
(k) Section 2 (offence of insulting the Indian National Flag or the Constitution of India) or
Section 3 (offence of preventing singing of National Anthem) of the Prevention of Insults
to National Honour Act, 1971 (69 of 1971), or
(l) the Commission of Sati (Prevention) Act, 1987 (3 of 1988); or
(m) the Prevention of Corruption Act, 1988 (49 of 1988); or
(n) the Prevention of Terrorism Act, 2002 (15 of 2002),
shall be disqualified, where the convicted person is sentenced to—
(i) only fine, for a period of six years from the date of such conviction;
(ii) imprisonment, from the date of such conviction and shall continue to be disqualified
for a further period of six years since his release.
(2) A person convicted for the contravention of—
(a) any law providing for the prevention of hoarding or profiteering; or
(b) any law relating to the adulteration of food or drugs; or
200

(c) any provisions of the Dowry Prohibition Act, 1961 (28 of 1961),
and sentenced to imprisonment for not less than six months shall be disqualified from the
date of such conviction and shall continue to be disqualified for a further period of six
years since his release.
(3) A person convicted of any offence and sentenced to imprisonment for not less than two
years other than any offence referred to in sub-section (1) or sub-section (2) shall be
disqualified from the date of such conviction and shall continue to be disqualified for a
further period of six years since his release.
(4) Notwithstanding anything in sub-section (1), sub-section (2) or sub-section (3) a
disqualification under either sub-section shall not, in the case of a person who on the date
of the conviction is a Member of Parliament or the legislature of a State, take effect until
three months have elapsed from that date or, if within that period an appeal or application
for revision is brought in respect of the conviction or the sentence, until that appeal or
application is disposed of by the court.
Explanation.—In this section—
(a) ‘law providing for the prevention of hoarding or profiteering’ means any law, or any
order, rule or notification having the force of law, providing for—
(i) the regulation of production or manufacture of any essential commodity;
(ii) the control of price at which any essential commodity may be bought or sold;
(iii) the regulation of acquisition, possession, storage, transport, distribution, disposal, use
or consumption of any essential commodity;
(iv) the prohibition of the withholding from sale of any essential commodity ordinarily
kept for sale;
(b) ‘drug’ has the meaning assigned to it in the Drugs and Cosmetics Act, 1940 (23 of
1940);
(c) ‘essential commodity’ has the meaning assigned to it in the Essential Commodity Act,
1955 (10 of 1955);
(d) ‘food’ has the meaning assigned to it in the Prevention of Food Adulteration Act, 1954
(37 of 1954).”

4. Clause (b) of Section 7 of the Act quoted above defines the word “disqualified” to mean
disqualified for being chosen as, and for being, a Member of either House of Parliament or of
the Legislative Assembly or of Legislative Council of a State. Sub-sections (1), (2) and (3) of
Section 8 of the Act provide that a person convicted of an offence mentioned in any of these
sub-sections shall stand disqualified from the date of conviction and the disqualification was
to continue for the specific period mentioned in the sub-section. However, sub-section (4) of
Section 8 of the Act provides that notwithstanding anything in sub-section (1), sub-section (2)
or sub-section (3) in Section 8 of the Act, a disqualification under either sub-section shall not,
 201

in the case of a person who on the date of the conviction is a Member of Parliament or the
Legislature of a State, take effect until three months have elapsed from that date or, if within
that period an appeal or application for revision is brought in respect of the conviction or the
sentence, until that appeal or application is disposed of by the court. It is this saving or
protection provided in sub-section (4) of Section 8 of the Act for a Member of Parliament or
the Legislature of a State which is challenged in these writ petitions as ultra vires the
Constitution.

Contentions on behalf of the petitioners

5. Mr Fali S. Nariman, learned Senior Counsel appearing for the petitioner in Writ Petition
No. 490 of 2005 and Mr S.N. Shukla, the General Secretary of the petitioner in Writ Petition
No. 231 of 2005, submitted that the opening words of clause (1) of Articles 102 and 191 of
the Constitution make it clear that the same disqualifications are provided for a person being
chosen as a Member of either House of Parliament, or the State Assembly or Legislative
Council of the State and for a person being a Member of either House of Parliament or of the
Legislative Assembly or Legislative Council of a State and therefore the disqualifications for
a person to be elected as a Member of either House of Parliament or of the Legislative
Assembly or Legislative Council of the State and for a person to continue as a Member of
either House of Parliament or of the Legislative Assembly or Legislative Council of the State
cannot be different. In support of this submission, Mr Nariman cited a Constitution Bench
judgment of this Court in Election Commission v. Saka Venkata Rao [AIR 1953 SC 210] in
which it has been held that Article 191 lays down the same set of disqualifications for election
as well as for continuing as a Member.

6. Mr Nariman and Mr Shukla submitted that sub-section (4) of Section 8 of the Act, insofar
as it provides that the disqualification under sub-sections (1), (2) and (3) of Section 8 for
being elected as a Member of either House of Parliament or the Legislative Assembly or
Legislative Council of State shall not take effect in the case of a person who is already a
Member of Parliament or Legislature of a State on the date of the conviction if he files an
appeal or a revision in respect of the conviction or the sentence within three months till the
appeal or revision is disposed of by the court, is in contravention of the provisions of clause
(1) of Articles 102 and 191 of the Constitution.

7. Mr Shukla referred to the debates of the Constituent Assembly on Article 83 of the Draft
Constitution, which corresponds to Article 102 of the Constitution. In these debates, Mr
Shibban Lal Saksena, a Member of the Constituent Assembly moved Amendment No. 1590
on 19-5-1949 to provide that when a person who, by virtue of conviction becomes
disqualified and is on the date of disqualification a Member of Parliament, his seat shall,
202

notwithstanding anything in this article, not become vacant by reason of the disqualification
until three months have elapsed from the date thereof or, if within those three months an
appeal or petition for revision is brought in respect of the conviction or the sentence, until that
appeal or petition is disposed of, but during any period during which his membership is
preserved by this provision, he shall not sit or vote. Mr Shukla submitted that this amendment
to Article 83 of the Draft Constitution was not adopted in the Constituent Assembly. Instead,
in sub-clause (e) of clause (1) of Articles 102 and 191 of the Constitution, it was provided that
Parliament may make a law providing disqualifications besides those mentioned in sub-
clauses (a), (b), (c) and (d) for a person being chosen as, and for being, a Member of either
House of Parliament and of the Legislative Assembly or Legislative Council of a State. Mr
Shukla submitted that despite the fact that a provision similar to sub-section (4) of Section 8
of the Act was not incorporated in the Constitution by the Constituent Assembly, Parliament
has enacted sub-section (4) of Section 8 of the Act.

8. According to Mr Nariman and Mr Shukla, in the absence of a provision in Articles 102 and
191 of the Constitution conferring power on Parliament to make a provision protecting sitting
Members of either House of Parliament or the Legislative Assembly or the Legislative
Council of a State, from the disqualifications it lays down for a person being chosen as a
Member of Parliament or a State Legislature, Parliament lacks legislative powers to enact
sub-section (4) of Section 8 of the Act and sub-section (4) of Section 8 of the Act is therefore
ultra vires the Constitution.

9. Mr Nariman next submitted that the legal basis of sub-section (4) of Section 8 of the Act is
based on an earlier judicial view in the judgment of a Division Bench of this Court in Manni
Lal v. Parmai Lal [(1970) 2 SCC 462] that when a conviction is set aside by an appellate
order of acquittal, the acquittal takes effect retrospectively and the conviction and the
sentence are deemed to be set aside from the date they are recorded. He submitted that in B.R.
Kapur v. State of T.N. [(2001) 7 SCC 231] a Constitution Bench of this Court reversed the
aforesaid judicial view and held: (SCC p. 297, para 40)

“40. … That conviction and the sentence it carries operate against the accused in all their
rigour until set aside in appeal, and a disqualification that attaches to the conviction and
sentence applies as well.”

He submitted that this latter view has been reiterated by a Constitution Bench of this Court
in K. Prabhakaran v. P. Jayarajan [(2005) 1 SCC 754].

10. Mr Nariman argued that thus as soon as a person is convicted of any of the offences
mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act, he becomes disqualified
 203

from continuing as a Member of Parliament or of a State Legislature notwithstanding the fact

that he has filed an appeal or a revision against the conviction and there is no legal basis for
providing in sub-section (4) of Section 8 of the Act that his disqualification will not take
effect if he files an appeal or revision within three months against the order of conviction. He
submitted that in case a sitting Member of Parliament or State Legislature feels aggrieved by
the conviction and wants to continue as a Member notwithstanding the conviction, his remedy
is to move the appellate court for stay of the order of conviction.

11. Mr Nariman cited the decision in Navjot Singh Sidhu v. State of Punjab [(2007) 2 SCC
574] in which this Court has clarified that under sub-section (1) of Section 389 of the Code of
Criminal Procedure, 1973 power has been conferred on the appellate court not only to
suspend the execution of the sentence and to grant bail, but also to suspend the operation of
the order appealed against, which means the order of conviction. He submitted that in
appropriate cases, the appellate court may stay the order of conviction of a sitting Member of
Parliament or State Legislature and allow him to continue as a Member notwithstanding the
conviction by the trial court, but a blanket provision like sub-section (4) of Section 8 of the
Act cannot be made to keep the disqualification pursuant to conviction in abeyance till the
appeal or revision is decided by the appellate or revisional court.

12. Mr Nariman and Mr Shukla submitted that in K. Prabhakaran v. P. Jayarajan [(2005) 1

SCC 754] the validity of sub-section (4) of Section 8 of the Act was not under challenge and
only a reference was made to the Constitution Bench of this Court on certain questions which
arose in the civil appeals against the judgments delivered by the High Court in election cases
under the Act. They submitted that the Constitution Bench of this Court framed three
questions with regard to disqualification of a candidate under Section 8 of the Act and while
answering Question 3, the Constitution Bench indicated reasons which seem to have
persuaded Parliament to classify sitting Members of the House into a separate category and to
provide in sub-section (4) of Section 8 of the Act that if such sitting Members file appeal or
revision against the conviction within three months, then the disqualification on account of
their conviction will not take effect until the appeal or revision is decided by the appropriate
court. They submitted that the opinion expressed by the Constitution Bench of this Court in K.
Prabhakaran v. P. Jayarajan [(2005) 1 SCC 754] regarding the purpose for which
Parliament classified sitting Members of Parliament and State Legislatures into a separate
category and protected them from the disqualifications by the saving provision in sub-section
(4) of Section 8 of the Act are obiter dicta and are not binding ratio on the issue of the validity
of sub-section (4) of Section 8 of the Act.

13. Mr Nariman and Mr Shukla submitted that sub-section (4) of Section 8 of the Act, insofar
as it does not provide a rationale for making an exception in the case of Members of
204

Parliament or a Legislature of a State is arbitrary and discriminatory and is violative of Article

14 of the Constitution. They submitted that persons to be elected as Members of Parliament or
a State Legislature stand on the same footing as sitting Members of Parliament and State
Legislatures so far as disqualifications are concerned and sitting Members of Parliament and
State Legislatures cannot enjoy the special privilege of continuing as Members even though
they are convicted of the offences mentioned in sub-sections (1), (2) and (3) of Section 8 of
the Act.

Contentions on behalf of the respondents

14. Mr Sidharth Luthra, learned ASG appearing for the Union of India in Writ Petition (C)
No. 231 of 2005, submitted that the validity of sub-section (4) of Section 8 of the Act has
been upheld by the Constitution Bench of this Court in K. Prabhakaran v. P. Jayarajan [
(2005) 1 SCC 754] . He submitted that while answering Question 3, the Constitution Bench
has held in Prabhakaran case that the purpose of carving out a saving in sub-section (4) of
Section 8 of the Act is not to confer an advantage on sitting Members of Parliament or of a
State Legislature but to protect the House. He submitted that in para 58 of the judgment the
Constitution Bench has explained that if a Member of the House was debarred from sitting in
the House and participating in the proceedings, no sooner the conviction was pronounced
followed by sentence of imprisonment, entailing forfeiture of his membership, then two
consequences would follow: first, the strength of membership of the House shall stand
reduced, so also the strength of the political party to which such convicted Member may
belong and the Government in power may be surviving on a razor-edge thin majority where
each Member counts significantly and disqualification of even one Member may have a
deleterious effect on the functioning of the Government; second, a by-election shall have to
be held which exercise may prove to be futile, also resulting in complications in the event of
the convicted Member being acquitted by a superior criminal court.

15. Mr Luthra submitted that for the aforesaid two reasons, Parliament has classified the
sitting Members of Parliament or a State Legislature in a separate category and provided in
sub-section (4) of Section 8 of the Act that if on the date of incurring disqualification, a
person is a Member of Parliament or of a State Legislature, such disqualification shall not
take effect for a period of three months from the date of such disqualification to enable the
sitting Member to file appeal or revision challenging his conviction, and sentence and if such
an appeal or revision is filed, then applicability of the disqualification shall stand deferred
until such appeal or revision is disposed of by the appropriate court.

16. Mr Luthra next submitted that the reality of the Indian judicial system is that acquittals in
the levels of the appellate court such as the High Court are very high and it is for this reason
 205

that Parliament has provided in sub-section (4) of Section 8 of the Act that disqualification
pursuant to conviction or sentence in the case of sitting Members should stand deferred till the
appeal or revision is decided by the appellate or the revisional court. He submitted that the
power to legislate on disqualification of Members of Parliament and the State Legislature
conferred on Parliament carries with it the incidental power to say when the disqualification
will take effect. He submitted that the source of legislative power for enacting sub-section (4)
of Section 8 of the Act is, therefore, very much there in Articles 101(1)(e) and 191(1)(e) of
the Constitution and if not in these articles of the Constitution, in Article 246(1) read with
Schedule VII List I Entry 97 of the Constitution and Article 248 of the Constitution, which
confer powers on Parliament to legislate on any matter not enumerated in List II and List III
of the Seventh Schedule to the Constitution.

17. Mr Paras Kuhad, learned ASG, appearing for the Union of India in Writ Petition (C) No.
490 of 2005 also relied on the judgment of the Constitution Bench of this Court in K.
Prabhakaran v. P. Jayarajan [(2005) 1 SCC 754] on the validity of sub-section (4) of
Section 8 of the Act and the reasoning given in the answer to Question 3 in the aforesaid
judgment of this Court. He further submitted that sub-section (4) of Section 8 of the Act does
not lay down disqualifications for Members of Parliament and the State Legislatures different
from the disqualifications laid down for persons to be chosen as Members of Parliament and
the State Legislatures in sub-sections (1), (2) and (3) of Section 8 of the Act. He submitted
that sub-section (4) of Section 8 of the Act merely provides that the very same
disqualifications laid down in sub-sections (1), (2) and (3) of Section 8 of the Act shall in the
case of sitting Members of Parliament and State Legislatures take effect only after the appeal
or revision is disposed of by the appellate or revisional court as the case may be if an appeal
or revision is filed against the conviction.

18. Mr Paras Kuhad submitted that Parliament has power under Article 102(1)(e) and Article
191(1)(e) of the Constitution to prescribe when exactly the disqualification will become
effective in the case of sitting Members of Parliament or the State Legislature with a view to
protect the House. He also referred to the provisions of Articles 101(3)(a) and 190(3)(a) of
the Constitution to argue that a Member of Parliament or a State Legislature will vacate a seat
only when he becomes subject to any disqualification mentioned in clause (1) of Article 102
or clause (1) of Article 191, as the case may be, and this will happen only after a decision is
taken by the President or the Governor that the Member has become disqualified in
accordance with the mechanism provided in Article 103 or Article 192 of the Constitution.

19. Mr Kuhad further submitted that Mr Nariman is not right in his submission that the
remedy of a sitting Member who is convicted or sentenced and gets disqualified under sub-
sections (1), (2) or (3) of Section 8 of the Act is to move the appellate court under Section 389
206

of the Code of Criminal Procedure for stay of his conviction. He submitted that the appellate
court does not have any power under Section 389 CrPC to stay the disqualification which
would take effect from the date of conviction and therefore a safeguard had to be provided in
sub-section (4) of Section 8 of the Act that the disqualification, despite the conviction or
sentence, will not have effect until the appeal or revision is decided by the appellate or the
revisional court. He submitted that there is, therefore, a rationale for enacting sub-section (4)
of Section 8 of the Act.

Findings of the Court

20. We will first decide the issue raised before us in these writ petitions that Parliament
lacked the legislative power to enact sub-section (4) of Section 8 of the Act as this issue was
not at all considered by the Constitution Bench of this Court in the aforesaid case of K.
Prabhakaran.

21. In R. v. Burah [(1877-78) 5 IA 178 : (1878) 3 AC 889] the Privy Council speaking
through Selborne, J. laid down the following fundamental principles for interpretation of a
written Constitution laying down the powers of the Indian Legislature: (IA pp. 193-94)

“… The Indian Legislature has powers expressly limited by the Act of the Imperial
Parliament which created it, and it can, of course, do nothing beyond the limits which
circumscribe these powers. But, when acting within those limits, it is not in any sense an
agent or delegate of the Imperial Parliament, but has, and was intended to have, plenary
powers of legislation, as large, and of the same nature, as those of Parliament itself. The
established courts of justice, when a question arises whether the prescribed limits have
been exceeded, must of necessity determine that question; and the only way in which they
can properly do so, is by looking to the terms of the instrument by which, affirmatively,
the legislative powers were created, and by which, negatively, they are restricted. If what
has been done is legislation, within the general scope of the affirmative words which give
the power, and if it violates no express condition or restriction by which that power is
limited (in which category would, of course, be included any Act of the Imperial
Parliament at variance with it), it is not for any court of justice to inquire further, or to
enlarge constructively those conditions and restrictions.”

22. The correctness of the aforesaid principles with regard to interpretation of a written
Constitution has been reaffirmed by the majority of Judges in Kesavananda Bharati v. State
of Kerala [(1973) 4 SCC 225] (see the Constitutional Law of India, H.M. Seervai, 4th Edn.,
Vol. 1, Para 2.4 at p. 174). Hence, when a question is raised whether Parliament has exceeded
the limits of its powers, courts have to decide the question by looking to the terms of the
 207

instrument by which affirmatively, the legislative powers were created, and by which
negatively, they are restricted.

23. We must first consider the argument of Mr Luthra, learned Additional Solicitor General,
that the legislative power to enact sub-section (4) of Section 8 of the Act is located in Article
246(1) read with Schedule VII List I Entry 97 and Article 248 of the Constitution, if not in
Articles 102(1)(e) and 191(1)(e) of the Constitution.

24. Articles 246 and 248 of the Constitution are placed in Chapter I of Part XI of the
Constitution of India. Part XI is titled “Relations between the Union and the States” and
Chapter I of Part XI is titled “Legislative Relations”. In Chapter I of Part XI, under the
heading “Distribution of Legislative Powers” Articles 245 to 255 have been placed. A reading
of Articles 245 to 255 would show that these relate to distribution of legislative powers
between the Union and the Legislatures of the States. Article 246(1) provides that Parliament
has exclusive power to make laws with respect to any of the matters enumerated in List I in
the Seventh Schedule of the Constitution and under Schedule VII List I Entry 97 of the
Constitution, Parliament has exclusive power to make law with respect to any other matter not
enumerated in List II or List III. Article 248 similarly provides that Parliament has exclusive
power to make any law with respect to any matter not enumerated in the Concurrent List (List
III) or State List (List II) of the Seventh Schedule to the Constitution. Therefore, Article
246(1) read with Entry 97 and Article 248 only provide that in residuary matters (other than
matters enumerated in List II and List III) Parliament will have power to make law.

25. To quote from Commentary on the Constitution of India by Durga Das Basu (8th Edn.)
Vol. 8 at p. 8988:

“In short, the principle underlying Article 248, read with Entry 97 of List I, is that a
written Constitution, which divides legislative power as between two legislatures in a
federation, cannot intend that neither of such legislatures shall go without power to
legislate with respect of any subject simply because that subject has not been specifically
mentioned nor can be reasonably comprehended by judicial interpretation to be included in
any of the entries in the Legislative Lists. To meet such a situation, a residuary power is
provided, and in the Indian Constitution, this residuary power is vested in the Union
Legislature. Once, therefore, it is found that a particular subject-matter has not been
assigned to the competence of the State Legislature, ‘it leads to the irresistible inference
that (the Union) Parliament would have legislative competence to deal with the subject-
matter in question.’”
208

26. Articles 102(1)(e) and 191(1)(e) of the Constitution, on the other hand, have conferred
specific powers on Parliament to make law providing disqualifications for membership of
either House of Parliament or Legislative Assembly or Legislative Council of the State other
than those specified in sub-clauses (a), (b), (c) and (d) of clause (1) of Articles 102 and 191 of
the Constitution. We may note that no power is vested in the State Legislature to make law
laying down disqualifications of membership of the Legislative Assembly or Legislative
Council of the State and power is vested in Parliament to make law laying down
disqualifications also in respect of Members of the Legislative Assembly or Legislative
Council of the State. For these reasons, we are of the considered opinion that the legislative
power of Parliament to enact any law relating to disqualification for membership of either
House of Parliament or Legislative Assembly or Legislative Council of the State can be
located only in Articles 102(1)(e) and 191(1)(e) of the Constitution and not in Article 246(1)
read with Schedule VII List I Entry 97 and Article 248 of the Constitution. We do not,
therefore, accept the contention of Mr. Luthra that the power to enact sub-section (4) of
Section 8 of the Act is vested in Parliament under Article 246(1) read with Schedule VII List I
Entry 97 and Article 248 of the Constitution, if not in Articles 102(1)(e) and 191(1)(e) of the
Constitution.

27. Articles 102(1)(e) and 191(1)(e) of the Constitution, which contain the only source of
legislative power to lay down disqualifications for membership of either House of Parliament
and Legislative Assembly or Legislative Council of a State, provide as follows:

“102.Disqualifications for membership.—(1) A person shall be disqualified for being

chosen as, and for being, a Member of either House of Parliament—
***
(e) if he is so disqualified by or under any law made by Parliament.
***
191.Disqualifications for membership.—(1) A person shall be disqualified for being
chosen as, and for being, a Member of the Legislative Assembly or Legislative Council of
a State—
***
(e) if he is so disqualified by or under any law made by Parliament.”
28. A reading of the aforesaid two provisions in Articles 102(1)(e) and 191(1)(e) of the
Constitution would make it abundantly clear that Parliament is to make one law for a person
to be disqualified for being chosen as, and for being, a Member of either House of Parliament
or Legislative Assembly or Legislative Council of the State. In the language of the
Constitution Bench of this Court in Election Commission v. Saka Venkata Rao [AIR 1953
SC 210] Article 191(1) [which is identically worded as Article 102(1)] lays down “the same
set of disqualifications for election as well as for continuing as a Member”. Parliament thus
 209

does not have the power under Articles 102(1)(e) and 191(1)(e) of the Constitution to make
different laws for a person to be disqualified for being chosen as a Member and for a person
to be disqualified for continuing as a Member of Parliament or the State Legislature. To put it
differently, if because of a disqualification a person cannot be chosen as a Member of
Parliament or State Legislature, for the same disqualification, he cannot continue as a
Member of Parliament or the State Legislature. This is so because the language of Articles
102(1)(e) and 191(1)(e) of the Constitution is such that the disqualification for both a person
to be chosen as a Member of a House of Parliament or the State Legislature or for a person to
continue as a Member of Parliament or the State Legislature has to be the same.

29. Mr Luthra and Mr Kuhad, however, contended that the disqualifications laid down in sub-
sections (1), (2) and (3) of Section 8 of the Act are the same for persons who are to continue
as Members of Parliament or a State Legislature and sub-section (4) of Section 8 of the Act
does not lay down a different set of disqualifications for sitting Members but merely states
that the same disqualifications will have effect only after the appeal or revision, as the case
may be, against the conviction is decided by the appellate or the revisional court if such
appeal or revision is filed within three months from the date of conviction. We cannot accept
this contention also because of the provisions of Articles 101(3)(a) and 190(3)(a) of the
Constitution which are quoted hereinbelow:

“101.Vacation of seats.—(1)-(2) ***

(3) If a Member of either House of Parliament—
(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of
Article 102;
***
his seat shall thereupon become vacant:
***
190. Vacation of seats.—(1)-(2) ***
(3) If a Member of a House of the legislature of a State—
(a) becomes subject to any of the disqualifications mentioned in clause (1) or clause (2) of
Article 191;
***
his seat shall thereupon become vacant:”
30. Thus, Article 101(3)(a) provides that if a Member of either House of Parliament becomes
subject to any of the disqualifications mentioned in clause (1), his seat shall thereupon
become vacant and similarly Article 190(3)(a) provides that if a Member of a House of the
Legislature of a State becomes subject to any of the disqualifications mentioned in clause (1),
his seat shall thereupon become vacant. This is the effect of a disqualification under Articles
102(1) and 190(1) incurred by a Member of either House of Parliament or a House of the
State Legislature. Accordingly, once a person who was a Member of either House of
210

Parliament or House of the State Legislature becomes disqualified by or under any law made
by Parliament under Articles 102(1)(e) and 191(1)(e) of the Constitution, his seat
automatically falls vacant by virtue of Articles 101(3)(a) and 190(3)(a) of the Constitution
and Parliament cannot make a provision as in sub-section (4) of Section 8 of the Act to defer
the date on which the disqualification of a sitting Member will have effect and prevent his
seat becoming vacant on account of the disqualification under Article 102(1)(e) or Article
191(1)(e) of the Constitution.

31. We cannot also accept the submission of Mr Kuhad that until the decision is taken by the
President or Governor on whether a Member of Parliament or State Legislature has become
subject to any of the disqualifications mentioned in clause (1) of Article 102 and Article 191
of the Constitution, the seat of the Member alleged to have been disqualified will not become
vacant under Articles 101(3)(a) and 190(3)(a) of the Constitution. Articles 101(3)(a) and
190(3)(a) of the Constitution provide that if a Member of the House becomes subject to any
of the disqualifications mentioned in clause (1), “his seat shall thereupon become vacant”.
Hence, the seat of a Member who becomes subject to any of the disqualifications mentioned
in clause (1) will fall vacant on the date on which the Member incurs the disqualification and
cannot await the decision of the President or the Governor, as the case may be, under Articles
103 and 192 respectively of the Constitution. The filling of the seat which falls vacant,
however, may await the decision of the President or the Governor under Articles 103 and 192
respectively of the Constitution and if the President or the Governor takes a view that the
Member has not become subject to any of the disqualifications mentioned in clause (1) of
Articles 102 and 191 respectively of the Constitution, it has to be held that the seat of the
Member so held not to be disqualified did not become vacant on the date on which the
Member was alleged to have been subject to the disqualification.

32. The result of our aforesaid discussion is that the affirmative words used in Articles
102(1)(e) and 191(1)(e) confer power on Parliament to make one law laying down the same
disqualifications for a person who is to be chosen as Member of either House of Parliament or
as a Member of the Legislative Assembly or Legislative Council of a State and for a person
who is a sitting Member of a House of Parliament or a House of the State Legislature and the
words in Articles 101(3)(a) and 190(3)(a) of the Constitution put express limitations on such
powers of Parliament to defer the date on which the disqualifications would have effect.
Accordingly, sub-section (4) of Section 8 of the Act which carves out a saving in the case of
sitting Members of Parliament or State Legislature from the disqualifications under sub-
sections (1), (2) and (3) of Section 8 of the Act or which defers the date on which the
disqualification will take effect in the case of a sitting Member of Parliament or a State
Legislature is beyond the powers conferred on Parliament by the Constitution.
 211

33. Looking at the affirmative terms of Articles 102(1)(e) and 191(1)(e) of the Constitution,
we hold that Parliament has been vested with the powers to make law laying down the same
disqualifications for person to be chosen as a Member of Parliament or a State Legislature and
for a sitting Member of a House of Parliament or a House of a State Legislature. We also hold
that the provisions of Article 101(3)(a) and 190(3)(a) of the Constitution expressly prohibit
Parliament to defer the date from which the disqualification will come into effect in case of a
sitting Member of Parliament or a State Legislature. Parliament, therefore, has exceeded its
powers conferred by the Constitution in enacting sub-section (4) of Section 8 of the Act and
accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution.

34. We do not also find merit in the submission of Mr Luthra and Mr Kuhad that if a sitting
Member of Parliament or the State Legislature suffers from a frivolous conviction by the trial
court for an offence given under sub-sections (1), (2) or (3) of Section 8 of the Act, he will be
remediless and he will suffer immense hardship as he would stand disqualified on account of
such conviction in the absence of sub-section (4) of Section 8 of the Act. A three-Judge
Bench of this Court in Rama Narang v. Ramesh Narang [(1995) 2 SCC 513] has held that
when an appeal is preferred under Section 374 of the Code of Criminal Procedure (for short
“the Code”) the appeal is against both the conviction and sentence and, therefore, the
appellate court in exercise of its power under Section 389(1) of the Code can also stay the
order of conviction and the High Court in exercise of its inherent jurisdiction under Section
482 of the Code can also stay the conviction if the power was not to be found in Section
389(1) of the Code.

35. In Ravikant S. Patil v. Sarvabhouma S. Bagali [(2007) 1 SCC 673] a three-Judge Bench
of this Court, however, observed: (SCC p. 679, para 15)

“15. It deserves to be clarified that an order granting stay of conviction is not the rule but
is an exception to be resorted to in rare cases depending upon the facts of a case. Where
the execution of the sentence is stayed, the conviction continues to operate. But where the
conviction itself is stayed, the effect is that the conviction will not be operative from the
date of stay. An order of stay, of course, does not render the conviction non-existent, but
only non-operative. Be that as it may. Insofar as the present case is concerned, an
application was filed specifically seeking stay of the order of conviction specifying the
consequences if conviction was not stayed, that is, the appellant would incur
disqualification to contest the election. The High Court after considering the special
reason, granted the order staying the conviction. As the conviction itself is stayed in
contrast to a stay of execution of the sentence, it is not possible to accept the contention of
the respondent that the disqualification arising out of conviction continues to operate even
after stay of conviction.”
212

In the aforesaid case, a contention was raised by the respondents that the appellant was
disqualified from contesting the election to the Legislative Assembly under sub-section (3) of
Section 8 of the Act as he had been convicted for an offence punishable under Sections 366
and 376 of the Penal Code and it was held by the three-Judge Bench that as the High Court
for special reasons had passed an order staying the conviction, the disqualification arising out
of the conviction ceased to operate after the stay of conviction. Therefore, the disqualification
under sub-sections (1), (2) or (3) of Section 8 of the Act will not operate from the date of
order of stay of conviction passed by the appellate court under Section 389 of the Code or the
High Court under Section 482 of the Code.

36. As we have held that Parliament had no power to enact sub-section (4) of Section 8 of the
Act and accordingly sub-section (4) of Section 8 of the Act is ultra vires the Constitution, it is
not necessary for us to go into the other issue raised in these writ petitions that sub-section (4)
of Section 8 of the Act is violative of Article 14 of the Constitution. It would have been
necessary for us to go into this question only if sub-section (4) of Section 8 of the Act was
held to be within the powers of Parliament. In other words, as we can declare sub-section (4)
of Section 8 of the Act as ultra vires the Constitution without going into the question as to
whether sub-section (4) of Section 8 of the Act is violative of Article 14 of the Constitution,
we do not think it is necessary to decide the question as to whether sub-section (4) of Section
8 of the Act is violative of Article 14 of the Constitution.

37. The only question that remains to be decided is whether our declaration in this judgment
that sub-section (4) of Section 8 of the Act is ultra vires the Constitution should affect
disqualifications already incurred under sub-sections (1), (2) and (3) of Section 8 of the Act
by sitting Members of Parliament and State Legislatures who have filed appeals or revisions
against their conviction within a period of three months and their appeals and revisions are
still pending before the court concerned.

38. Under sub-sections (1), (2) and (3) of Section 8 of the Act, the disqualification takes effect
from the date of conviction for any of the offences mentioned in the sub-sections and remains
in force for the periods mentioned in the sub-sections. Thus, there may be several sitting
Members of Parliament and State Legislatures who have already incurred disqualification by
virtue of a conviction covered under sub-section (1), or sub-section (2) or sub-section (3) of
Section 8 of the Act. In Golak Nath v. State of Punjab [AIR 1967 SC 1643] , Subba Rao,
C.J. speaking on behalf of himself, Shah, Sikri, Shelat and Vaidialingam, JJ. has held that
Articles 32, 141, 142 of the Constitution are couched in such a wide and elastic terms as to
enable this Court to formulate legal doctrines to meet the ends of justice and has further held
that this Court has the power not only to declare the law but also to restrict the operation of
the law as declared to future and save the transactions, whether statutory or otherwise, that
 213

were effected on the basis of the earlier law. The sitting Members of Parliament and State
Legislature who have already been convicted for any of the offences mentioned in sub-
sections (1), (2) and (3) of Section 8 of the Act and who have filed appeals or revisions which
are pending and are accordingly saved from the disqualifications by virtue of sub-section (4)
of Section 8 of the Act should not, in our considered opinion, be affected by the declaration
now made by us in this judgment. This is because the knowledge that sitting Members of
Parliament or State Legislatures will no longer be protected by sub-section (4) of Section 8 of
the Act will be acquired by all concerned only on the date this judgment is pronounced by this
Court. As has been observed by this Court in Harla v. State of Rajasthan [AIR 1951 SC 467,
p. 468, para 8)

“8. … it would be against the principles of natural justice to permit the subjects of a State
to be punished or penalised by laws of which they had no knowledge and of which they
could not even with the exercise of reasonable diligence have acquired any knowledge.”

However, if any sitting Member of Parliament or a State Legislature is convicted of any of the
offences mentioned in sub-sections (1), (2) and (3) of Section 8 of the Act and by virtue of
such conviction and/or sentence suffers the disqualifications mentioned in sub-sections (1),
(2) and (3) of Section 8 of the Act after the pronouncement of this judgment, his membership
of Parliament or the State Legislature, as the case may be, will not be saved by sub-section (4)
of Section 8 of the Act which we have by this judgment declared as ultra vires the
Constitution notwithstanding that he files the appeal or revision against the conviction and/or
sentence.

39. With the aforesaid declaration, the writ petitions are allowed. No costs.

WP (C) No. 694 of 2004

40. The petitioner is a practising advocate in the Patna High Court and has filed this writ
petition as a public interest litigation challenging sub-section (4) of Section 8 of the
Representation of the People Act, 1951 (for short “the Act”), as ultra vires the Constitution.
41. This writ petition was heard along with WP (C) No. 490 of 2005 and WP (C) No. 231 of
2005 in which sub-section (4) of Section 8 of the Act is also challenged as ultra vires the
Constitution. We have today delivered the judgment in Lily Thomas v. Union of India, WP
(C) No. 490 of 2005 [Ed.: I.e. the judgment contained in paras 1 to 39, above.] . Hence, this
writ petition is disposed of in terms of the aforesaid judgment in WP (C) No. 490 of 2005 and
WP (C) No. 231 of 2005. No costs.
214

Ravi S. Naik v. Union of India

AIR 1994 SC 1558

S.C. AGRAWAL, J. - These appeals are directed against the judgment of the High Court
of Bombay, Panaji Bench dated May 14, 1993 in Writ Petition Nos. 48 of 1991 and 321 of
1990. They raise questions relating to disqualification of a Member of the State Legislature
under Article 191(2) read with Tenth Schedule to the Constitution.
2. Elections for the Goa Legislative Assembly were held in November 1989. The
Assembly is composed of 40 members. After the elections the position of the parties was as
under: Congress (I) – 20; Maharashtrawadi Gomantak Party (MGP) – 18; Independents – 2.
3. With the support of one independent member, the Congress (I) formed the Government.
After a short time seven members left the Congress (I) and formed the Goan People's Party
(GPP). GPP and MGP formed a coalition Government under the banner of Progressive
Democratic Front (PDF). At first Churchill Alemao became the Chief Minister but later on Dr
Luis Proto Barbosa was sworn in as the Chief Minister. On December 4, 1990, MGP
withdrew its support to the PDF Government and thereupon on December 6, 1990, a
notification was issued summoning the Assembly on December 10, 1990 and the Chief
Minister Dr Barbosa, was required to seek a vote of confidence. Before the Assembly could
meet Dr Barbosa tendered his resignation as the Chief Minister on December 10, 1990 and the
same was accepted. On December 10, 1990, Dr. Wilfred D'Souza, leader of the Congress (I)
Legislature Party staked his claim to form the Government. He claimed the support of 20
members consisting of 13 members of the Congress (I), 4 members of GPP and 2 members of
MGP, who would form a common front known as the Congress Democratic Front (CDF).
Two members of MGP, who were included in the CDF, were Sanjay Bandekar and Ratnakar
Chopdekar, appellants in CA No. 3309 of 1993. Ramakant Khalap, who was the leader of the
PDF claimed support of 16 members of MGP and three members who were formerly with
GPP. The Governor submitted his report dated December 11, 1990 and taking into
consideration the said report as well as other information received by him, the President of
India issued a Proclamation dated December 14, 1990 under Article 356 of the Constitution
whereby President's rule was imposed in the State and the Legislative Assembly was
suspended.
4. In the meanwhile, on December 10, 1990, Ramakant Khalap filed two separate
petitions under Article 191(2) of the Constitution before the Speaker of the State Legislative
Assembly whereby he sought that both Bandekar and Chopdekar be disqualified as members
of the State Legislature on the ground of defection under Article 191(2) read with paragraph
2(1)(a) and 2(1)(b) of the Tenth Schedule to the Constitution. By order dated December 13,
1990, the Speaker Shri Surendra Vir Sirsat, declared both these appellants as disqualified
from being members of the Goa Legislative Assembly under Article 191(2) of the
Constitution on the ground of defection as set out in paragraph 2(1)(a) and 2(1)(b) of the
Tenth Schedule to the Constitution. Both these members filed a writ petition (Writ Petition
No. 321 of 1990) in the High Court on December 13, 1990. The said writ petition was
amended on December 14, 1990 to incorporate a challenge to the order dated December 13,
1990 passed by the Speaker. In the said petition an interim order was passed by the High
 215

Court staying the operation of the order dated December 13, 1990 with regard to
disqualification of the said members.
5. On January 25, 1991, the Proclamation with regard to the President's rule was revoked
and Ravi S. Naik, appellant in CA No. 2904 of 1993, was sworn in as the Chief Minister. On
January 25, 1991 one Dr Kashinath G. Jhalmi belonging to the MGP filed a petition before
the Speaker for disqualification of Naik on the ground of defection under Article 191(2) read
with para 2(1)(a) of the Tenth Schedule to the Constitution. On the said petition the Speaker,
Shri Sirsat, passed an order dated February 15, 1991 declaring Naik as disqualified from
being a member of the Goa Legislative Assembly under Article 191(2) of the Constitution on
the ground of defection as set out in paragraph 2(1)(a) of the Tenth Schedule to the
Constitution. Naik filed a writ petition (Writ Petition No. 48 of 1991) in the Bombay High
Court, Panaji Bench to challenge the said order of disqualification dated February 15, 1991.
6. While the aforesaid writ petitions were pending in the High Court, Shri Sirsat was
removed from the office of Speaker and the Dy. Speaker began functioning as the Speaker in
his place. Bandekar and Chopdekar filed applications for review of the order dated December
13, 1990 with regard to their disqualification and the said review applications were allowed
by the Dy. Speaker functioning as Speaker by his order dated March 7, 1991 and order dated
December 13, 1990 disqualifying Bandekar and Chopdekar was set aside. Ramakant D.
Khalap filed a writ petition (Writ Petition No. 8 of 1992) before the High Court of Bombay,
Panaji Bench, Goa challenging the said order of review dated March 7, 1991. The said writ
petition was dismissed on the ground of laches by the High Court on February 4, 1992. CA
No. 1095 of 1991 was filed in this Court against the said judgment of the High Court.
Similarly Naik filed an application for review of the order dated February 15, 1991 which was
allowed by the Dy. Speaker functioning as Speaker by order dated March 8, 1991. Writ
Petition No. 11 of 1992 was filed by Dr Jhalmi and Ramakant Khalap in the High Court
challenging the said order of review dated March 8, 1991 passed by the Acting Speaker and
the said writ petition was dismissed by the High Court on the ground of laches by order dated
February 4, 1992. CA No. 1094 of 1992 was filed in this Court against the said order of the
High Court. Another Writ Petition (No. 70 of 1992) was filed by Churchill Alemao against
the said order of the Acting Speaker dated March 8, 1991 which was also dismissed by the
High Court by order dated February 15, 1991 on the ground of laches and CA No. 1096 of
1992 was filed by Churchill Alemao in this Court against the said order of the High Court. All
the three appeals (CA No. 1094-96 of 1992) were allowed by this Court by judgment dated
March 31, 1993 [Dr Kashinath G. Jhalmi v. Speaker (1993) 2 SCC 703]. By the said
judgment, this Court set aside the impugned orders of the High Court dated February 4, 1992,
dismissing Writ Petition Nos. 11 and 8 of 1992 and the order of the High Court dated
February 24, 1992, dismissing Writ Petition no. 70 of 1992 and allowing the said writ
petitions this Court has declared that orders dated March 7, 1992 and March 8, 1992 made by
the Acting Speaker in purported exercise of the power of review are a nullity and liable to be
ignored. It was held that the orders dated December 13, 1990 passed by the Speaker
disqualifying Chopdekar and Bandekar and the order dated February 15, 1991 passed by the
Speaker disqualifying Naik continue to operate and that Writ Petition no. 321 of 1990 filed by
Bandekar and Chopdekar and Writ Petition no. 48 of 1991 filed by Naik would stand revived
216

and the same would be disposed of by the High Court on merits. Thereafter the High Court
heard the two writ petitions on merits and by judgment dated May 14, 1993 both the writ
petitions have been dismissed.
7. We propose to deal with the appeals separately because the questions involved are not
identical, but before we do so, we will briefly refer to the provisions of the Tenth Schedule to
the Constitution and the decision of this Court in Kihoto Hollohan v. Zachillhu [1992 Supp
(2) SCC 651]. The Tenth Schedule was introduced in the Constitution by the Constitution
(Fifty-second Amendment) Act, 1985. As stated in the Statement of Objects and Reasons, the
said amendment was introduced to combat the evil of political defections. It has been stated:
The evil of political defections has been a matter of national concern. If it is not
combated, it is likely to undermine the very foundations of our democracy and the
principles which sustain it. With this object, an assurance was given in the Address by
the President to Parliament that the Government intended to introduce in the current
session of Parliament an anti-defection Bill. This Bill is meant for outlawing
defection and fulfilling the above assurance.
8. The provisions of the Tenth Schedule apply to members of either House of Parliament
or the State Legislative Assembly or, as the case may be, either House of the Legislature of a
State. Paragraph 2 of the Tenth Schedule makes provision for disqualification on the ground
of defection. Sub-paragraph (1) deals with a member belonging to a political party. It provides
for disqualification in two situations, viz., (i) if he has voluntarily given up his membership of
such political party; and (ii) if he votes or abstains from voting in such House contrary to any
direction issued by the political party to which he belongs or by any person or authority
authorised by it in this behalf, without obtaining, in either case, the prior permission of such
political party, person or authority, and such voting or abstention has not been condoned by
such political party, person or authority within fifteen days from the date of such voting or
abstention. Paragraph 3 removes the bar of disqualification in case of a split in a political
party provided the group representing a faction which has arisen as a result of split consists of
not less than one-third of the members of such legislature party. Paragraph 4 removes the bar
of disqualification on the ground of defection in case of merger of a political party with
another political party. In sub-paragraph (1) of paragraph 6 the question as to whether a
member of a House has become subject to disqualification under the Schedule is required to
be referred for the decision of the Chairman or, as the case may be, the Speaker of such House
and his decision shall be final. Under sub-paragraph (2) of paragraph 6, all proceedings under
sub-paragraph (1) of paragraph 6 in relation to any question as to disqualification of a
member of a House under the Schedule are to be deemed to be proceedings in Parliament
within the meaning of Article 122 or, as the case may be, proceedings in the Legislature of a
State within the meaning of Article 212. Paragraph 7 bars the jurisdiction of all courts in
respect of any matter connected with the disqualification of a member of a House under the
Schedule. Paragraph 8 empowers the Chairman or the Speaker of a House to make rules for
giving effect to the provisions of the Schedule and such rules may provide for matters
specified in clauses (a) to (d) of sub-para(1).
9. The constitutional validity of the provisions contained in the Tenth Schedule came up
for consideration before a Constitution Bench of this Court in Kihoto Hollohan v. Zachillhu.
 217

The Court was unanimous in holding that paragraph 7 completely excludes jurisdiction of all
courts including the Supreme Court under Article 136 and High Courts under Articles 226
and 227 in respect of any matter connected with the disqualification of the member of a
House and the Bill introducing the said amendment required ratification by the State
Legislatures under the proviso to Article 368(2) of the Constitution and that no such
ratification was obtained for the Bill. There was, however, difference of opinion on the effect
of such non-ratification of the Bill. The majority view was that paragraph 7 alone attracts the
proviso to Article 368 and the rest of the provisions of the Bill do not require such ratification
and since paragraph 7 is severable from the rest of the provisions, paragraph 7 only was
unconstitutional and that the rest of the provisions of the Tenth Schedule cannot be struck
down as unconstitutional on the ground that the Bill had not been ratified by one-half of the
State Legislatures before it was presented to the President for his assent. The minority view,
however, was that the entire Bill required prior ratification by State Legislatures without
which the assent of the President became non est and that the question of severability of
paragraph 7 from the rest of the provisions does not arise and further that paragraph 7 was not
severable from the rest of the provisions of the Bill. Since the validity of the rest of the
provisions, excluding paragraph 7, have been upheld by the majority, the provisions of
paragraph 6 have been construed in the majority judgment and it has been held: (SCC pp.
711-712, para 111)
That the Tenth Schedule does not, in providing for an additional grant (sic
ground) for disqualification and for adjudication of disputed disqualifications, seek to
create a non-justiciable constitutional area. The power to resolve such disputes vested
in the Speaker or Chairman is a judicial power.
That paragraph 6(1) of the Tenth Schedule, to the extent it seeks to impart finality
to the decision of the Speakers/Chairmen is valid. But the concept of statutory finality
embodied in paragraph 6(1) does not detract from or abrogate judicial review under
Articles 136, 226 and 227 of the Constitution insofar as infirmities based on
violations of constitutional mandates, mala fides, non-compliance with rules of
natural justice and perversity, are concerned.
That the deeming provision in paragraph 6(2) of the Tenth Schedule attracts an
immunity analogous to that in Articles 122(1) and 212(1) of the Constitution as
understood and explained in Keshav Singh case [Special Reference No. 1 of 1964,
(1965) 1 SCR 413: AIR 1965 SC 745] to protect the validity of proceedings from
mere irregularities of procedure. The deeming provision, having regard to the words
'be deemed to be proceedings in Parliament' or 'proceedings in the Legislature of a
State' confines the scope of the fiction accordingly.
The Speakers/Chairmen while exercising powers and discharging functions under
the Tenth Schedule act as Tribunal adjudicating rights and obligations under the
Tenth Schedule and their decisions in that capacity are amenable to judicial review.
However, having regard to the Constitutional Schedule in the Tenth Schedule,
judicial- review should not cover any stage prior to the making of a decision by the
Speakers/Chairmen. Having regard to the constitutional intendment `and the status of
the repository of the adjudicatory power, no quia timet actions are permissible, the
218

only exception for any interlocutory interference being cases of interlocutory

disqualifications or suspensions which may have grave, immediate and irreversible
repercussions and consequence.
CA No. 3309 of 1993
11. This appeal has been filed by Bandekar and Chopdekar who were elected to the Goa
Legislative Assembly under the ticket of MGP. They have been disqualified from
membership of the Assembly under order of the Speaker dated December 13, 1992 on the
ground of defection under paragraph 2(1)(a) and 2(1)(b) of the Tenth Schedule. From the
judgment of the High Court it appears that disqualification on the ground of paragraph 2(1)(b)
was not pressed on behalf of the contesting respondent and disqualification was sought on the
ground of paragraph 2(1)(a) only. The said paragraph provides for disqualification of a
member of a House belonging to a political party "if he has voluntarily given up his
membership of such political party". The words voluntarily given up his membership" are not
synonymous with "resignation and have a wider connotation. A person may voluntarily give
up his membership of a political party even though he has not tendered his resignation from
the membership of that party. Even in the absence of a formal resignation from membership
an inference can be drawn from the conduct of a member that he has voluntarily given up his
membership of the political party to which he belongs.
12. The petitions that were filed by Ramakant D. Khalap for disqualification of both these
appellants are identical. The following averments were made with regard to disqualification
on ground of defection under paragraph 2(1)(a) of the Tenth Schedule as contained in
paragraph 11 of the said petitions:
The petitioner says and submits that both before the Assembly session and also
after the Assembly session, the respondent has voluntarily accompanied Dr Luis
Proto Barbosa to the Governor and has told the Governor that he does not support the
MGP any longer. He had also made it known to the public that he has voluntarily
resigned from the membership of the MGP. The respondent has thereby voluntarily
given up the membership of the MGP. He has in the circumstances for that reason
also incurred disqualification under Article 191(2) read with para 2(1)(a) of the Tenth
Schedule of the Constitution of India.
13. The replies that were filed by both the appellants were also identical. In the said
replies it was stated:
Factually I have not given up the membership of the MGP voluntarily or
otherwise. I still continue to be a member of the said party and in fact no document
has been produced by the complainant and nothing has been disclosed to show that I
have resigned from the membership of the party.
The reply to para 11 is as follows:
The mere fact that I am accompanying Mr Barbosa does not entail my
disqualification, which I do not accept that I told His Excellency the Governor that I
do not support the Maharashtrawadi Gomantak Party and perhaps much more devoted
than Mr Khalap. I also deny emphatically that I made it known to anybody that I had
 219

voluntarily resigned from the membership of the Maharashtrawadi Gomantak Party.

You know very well Sir, that I have been allotted a seating as a member of the
Maharashtrawadi Gomantak Party and I have not asked for any change in the seating
on account of the fact that I have resigned from the party.
In fact the complainant has not produced as he could not produce any documents
to establish the facts that I have resigned, resignation from the membership could
only be evidenced by a written document. The burden is on the part of the
complainant to establish this fact. In the absence of it the complaint should be
summarily dismissed. Contents of para 11 which are not specifically admitted are
denied.
14. The Speaker, in his order dated December 13, 1990, has observed:
Dr Jhalmi produced before me copies of several newspapers showing photos of
the two MLAs with Congress (1) MLA and Dr Barbosa etc. when they had met the
Governor, with Dr Wilfred D'Souza who had taken them to show that he had the
support of 20 MLAs. This fact is well known in Goa and the Governor himself has
admitted it. Dr Jhalmi said that both the MLAs have given up the membership of their
political party and have said so openly to him and others.
The reply filed by the two MLAs does not deny the fact that they went to the
Governor against the Maharashtrawadi Gomantak Party. The advocate appearing for
the MLAs said that he wanted to lead evidence. But, although both the MLAs were
present before me, their advocate did not make them give evidence. They did not
deny that they supported Dr Wilfred D'Souza in his effort to form Congress (1) Govt.
and went with him to the Governor as part of the 20 MLAs. They could not do so
because it is a fact of common knowledge all over Goa that these two MLAs have left
their political party.
I am satisfied that by their conduct, actions and speech they have voluntarily
given up the membership of the MGP.
15. The High Court was of the view that in view of their conduct the appellants were not
entitled to invoke the discretionary remedy of writ of certiorari. In this regard the High Court
has pointed out that the assertion by the appellants in the writ petition that they were in
Bombay on December 9, 1990 is a brazen lie since the report of the Governor dated
December 11, 1990 made to the President of India (which has been placed on record by
Khalap with his affidavit) refers to the formation of the Congress Democratic Front by a
resolution adopted at Panaji on December 9, 1990 and the said resolution which was
Annexure 1 to the said report contained the signatures of the appellants. The High Court has
also observed that the statement in the petition that the appellants are still members of the
parent party is false and suppression of truth in as much as they allowed this assertion to
continue when, in effect, as from January 1991, they joined the faction of Naik and became
Ministers in his Cabinet and they continue to be Ministers.
16. The High Court has also examined the matter on merits and has found that the order
dated December 13, 1990 passed by the Speaker does not suffer from any infirmity which
may justify limited judicial review in accordance with the decision in Kihoto Hollohan case.
The High Court has rejected the contention that the said order was passed in breach of the
220

constitutional mandate for the reason that there was contravention of the Goa Legislative
Assembly (Disqualification on Grounds of Defection) Rules, 1986, hereinafter referred to as
'the Disqualification Rules', made by the Speaker under paragraph 8 of the Tenth Schedule.
The High Court was also of the view that the Disqualification Rules made by the Speaker
could not be held to be a part of constitutional mandate and that they are only to regulate the
procedure and that the substantive power or authority is given in paragraph 6 of the Tenth
Schedule. According to the High Court violation of Disqualification Rules would only
constitute an irregularity in procedure which is protected by paragraph 6(2) of the Tenth
Schedule. The High Court also rejected the contention that there was violation of the
principles of natural justice on account of extraneous materials or circumstances, namely, the
newspapers showing photographs of the appellants with Congress (1) MLAs and Dr Barbosa
when they had met the Governor with Dr. Wilfred D'Souza who had taken them to show that
he had the support of 20 MLAs and the observation in the order passed by the Speaker that
the Governor had told the Speaker that the appellants belonging to the MGP had approached
him under the leadership of Dr Wilfred D'Souza for staking claim to form Government on
December 10, 1990, being considered by the Speaker in the impugned order. The High Court
has observed that the Speaker has only relied upon the photos of the MLAs published in the
newspaper reports which fact was undeniable inasmuch as the appellants have nowhere in
their replies and even in the writ petition denied that they had met the Governor in the
company of 18 other MLAs under the leadership of Dr Wilfred D'Souza representing the
Congress (1) and splinter group of GPP led by Dr Barbosa. According to the High Court,
when, as a fact, the appellants have admitted of having gone to the Governor to stake the
claim in the afternoon of December 10, 1990, it was impossible to hold that the order be held
as suffering from the vice of the order being based upon extraneous material and
circumstances. Dealing with the grievance of the appellants that no opportunity was given to
them to lead evidence, the High Court has held that the said submission was baseless since the
Speaker in his order had recorded that although both the appellants were present before him
their advocate did not make them give evidence. The High Court has observed that nothing
prevented the appellants from leading their own evidence when it was their case that they
wanted to lead evidence. In this context the High Court also pointed out that neither in their
reply nor in the arguments before the Speaker the appellants had indicated whose evidence
they wanted to lead and record or what sort of evidence they wanted to bring. The High Court
has also mentioned that when Dr Jhalmi made a statement before the Speaker that the
appellants had given up their membership of their political party and had said so openly to
him and to others, neither the appellants nor their advocate sought to cross-examine Dr Jhalmi
on this statement.
17. Shri A.K. Sen, the learned Senior Counsel appearing for the appellants in support of
the appeal, has assailed the order of the Speaker dated December 13, 1990 on the same
grounds which were urged on behalf of the appellants before the High Court. He has invited
our attention to sub-rules (5) and (6) of Rule 6 and sub-rules (2) and (3) of Rule 7 of the
Disqualification Rules which provide as under:
6. Reference to be by petitions - (5) Every petition -
 221

(a) shall contain a concise statement of the material facts on which the petitioner
relies; and
(b) shall be accompanied by copies of the documentary evidence, if any, on which
the petitioner relies and where the petitioner relies on any information furnished to
him by any person, a statement containing the names and addresses of such persons
and the list of such information as furnished by each such person.
(6)Every petition shall be signed by the petitioner and verified in the manner laid
down in the Code of Civil Procedure, 1908 for the verification of pleadings.
7. Procedure - (2) If the petition does not comply with the requirements of Rule 6, the
Speaker shall dismiss the petition and intimate the petitioner accordingly.
(3) If the petition complies with the requirements of Rule 6, the Speaker shall
cause copies of the petition and of the annexures thereto to be forwarded,-
(a) to the member in. relation to whom the petition has been made; and
(b) where such member belongs to any legislature party and such petition has
not been made by the leader thereof, also to such leader, and such member or
leader shall within seven days of the receipt of such copies, or within such further
period as the Speaker may for sufficient cause allow, forward his comments in
writing thereon to the Speaker.
18. The submission of Shri Sen is that the petitions that were filed by Khalap before the
Speaker did not fulfill the requirements of clause (a) of subrule (5) of Rule 6 inasmuch as the
said petition did not contain a concise statement of the material facts on which the petitioner
(Khalap) was relying and further that the provisions of clause (b) of sub-rule (5) of Rule 6
were also not complied with inasmuch as the petitions were not accompanied by copies of the
documentary evidence on which the petitioner was relying and the names and addresses of the
persons and the list of such information as furnished by each such person. It was also
submitted that the petitions were also not verified in the manner laid down in the Code of
Civil Procedure for the verification of pleadings and thus there was non-compliance of sub-
rule (6) of Rule 6 also and that in view of the said infirmities the petitions were liable to be
dismissed in view of sub-rule (2) of Rule 7. We are unable to accept the said contention of
Shri Sen. The Disqualification Rules have been framed to regulate the procedure that is to be
followed by the Speaker for exercising the power conferred on him under sub-paragraph (1)
of paragraph 6 of the Tenth Schedule to the Constitution. The Disqualification Rules are,
therefore, procedural in nature and any violation of the same would amount to an irregularity
in procedure which is immune from judicial scrutiny in view of sub-paragraph (2) of
paragraph 6 as construed by this Court in Kihoto Hollohan case. Moreover, the field of
judicial review in respect of the orders passed by the Speaker under sub-paragraph (1) of
paragraph 6 as construed by this Court in Kihoto Hollohan case is confined to breaches of the
constitutional mandates, malafides, non-compliance with rules of natural justice and
perversity. We are unable to uphold the contention of Shri Sen that the violation of the
Disqualification Rules amounts to violation of constitutional mandates. By doing so we would
be elevating the rules to the status of the provisions of the Constitution which is
impermissible. Since the Disqualification Rules have been framed by the Speaker in exercise
of the power conferred under paragraph 8 of the Tenth Schedule they have a status
222

subordinate to the Constitution and cannot be equated with the provisions of the Constitution.
They cannot, therefore, be regarded as constitutional mandates and any violation of the
Disqualification Rules does not afford a ground for judicial review of the order of the Speaker
in view of the finality clause contained in sub-paragraph (1) of paragraph 6 of the Tenth
Schedule as construed by this Court in Kihoto Hollohan case.
19. Shri Sen has next contended that there has been violation of principles of natural
justice inasmuch as, in disregard of the provisions of Rule 7(3)(b) of the Disqualification
Rules, which provides for the comments being forwarded by the member concerned to the
Speaker within a period of seven days of the receipt of the copy of the petition and annexures
thereto, the appellants were given only two days' time to file their reply to the petition. Shri
Sen has urged that there has been violation of the principles of natural justice also for the
reason that in the impugned order the Speaker has referred to certain extraneous materials and
circumstances, namely, the copies of the newspapers that were produced by Dr Jhalmi at the
time of hearing and the talks which the Speaker had with the Governor. Another grievance
raised by Shri Sen was that the appellants were denied the opportunity to adduce their
evidence before the Speaker passed the impugned order.
20. Principles of natural justice have an important place in modern Administrative Law.
They have been defined to mean "fair play in action". As laid down by this Court “they
constitute the basic elements of a fair hearing, having their roots in the innate sense of man for
fair play and justice which is not the preserve of any particular race or country but is shared in
common by all men. An order of an authority exercising judicial or quasi-judicial functions
passed in violation of the principles of natural justice is procedurally ultra vires and,
therefore, suffers from a jurisdictional error. That is the reason why in spite of the finality
imparted to the decision of the Speakers/Chairmen by paragraph 6(1) of the Tenth Schedule
such a decision is subject to judicial review on the ground of non-compliance with rules of
natural justice. But while applying the principles of natural justice, it must be borne in mind
that "they are not immutable but flexible" and they are not cast in a rigid mould and they
cannot be put in a legal strait-jacket. Whether the requirements of natural justice have been
complied with or not has to be considered in the context of the facts and circumstances of a
particular case.
21. The approach of the English courts has been thus summed up by Prof. Wade:
The judges, anxious as always to preserve some freedom of manoeuvre,
emphasise that 'it is not possible to lay down rigid rules as to when the principles of
natural justice are to apply,nor as to their scope and extent. Everything depends on the
subject-matter'. The so-called rules of natural justice are not engraved on tablets of
stone. Their application, resting as it does upon statutory implication, must always be
in conformity with the scheme of the Act and with the subject- matter of the case. In
the application of the concept of fair play there must be real flexibility. There must
also have been some real prejudice to the complainant: there is no such thing as a
merely technical infringement of natural justice.(H.W.R. Wade: Administrative Law,
6th Edn., p. 530)
22. Similarly Clive Lewis has stated:
 223

The fact that the applicant has suffered no prejudice as a result of the error
complained of may be a reason for refusing him relief. It is necessary to keep in mind
the purpose of the public law principle that has technically been violated, and ask
whether that underlying purpose has in any event been achieved in the circumstances
of the case. If so, the courts may decide that the breach has caused no injustice or
prejudice and there is no need to grant relief. The courts may, for example, refuse
relief if there has been a breach of natural justice but where the breach has in fact not
prevented the individual from having a fair hearing. [Clive Lewis: Judicial Remedies
in Public Law (1992) p. 290]
23. In the words of Lord Wilberforce:
A breach of procedure, whether called a failure of natural justice, or an essential
administrative fault, cannot give him a remedy in the courts, unless behind it there is
something of substance which has been lost by the failure. The court does not act in
vain. [Malloch v. Aberdeen Corpn.(1971) 2 All ER 1278 ]
24. The approach of the courts in India is no different. In A.M. Allison v. B.L Sen
[AIR 1957 SC 227] it has been laid down that while exercising the jurisdiction under Article
226 of the Constitution the High Court has the power to refuse the writs if it was satisfied that
there has been no failure of justice.
25. The grievance of the appellants regarding violation of the principles of natural justice
has to be considered in this light.
26. It is no doubt true that under Rule 7(3)(b) of the Disqualification Rules, it has been
provided that the members concerned can forward their comments in writing on the petitions
within seven days of the receipt of the copies of the petition and the annexures thereto and in
the instant case the appellants were given only two days' time for submitting their replies. The
appellants, however, did submit their replies to the petitions within the said period and the
said replies were quite detailed. Having regard to the fact that there was no denial by the
appellants of the allegation in paragraph 11 of the petitions about their having met the
Governor on December 10, 1990 in the company of Dr Barbosa and Dr Wilfred D'Souza and
other Congress (1) MLAs and the only dispute was whether from the said conduct of the
appellants an inference could be drawn that the appellants had voluntarily given up their
membership of the MGP, it cannot be said that the insufficient time given for submitting the
reply has resulted in denial of adequate opportunity to the appellants to controvert the
allegations contained in the petitions seeking disqualification of the appellants.
27. As regards the reference to the newspapers in the impugned order passed by the
Speaker it appears that the Speaker, in his order, has only referred to the photographs as
printed in the newspapers showing the appellants with the Congress (1) MLAs and Dr
Barbosa, etc. when they had met the Governor with Dr Wilfred D'Souza who had taken them
to show that he had the support of 20 MLAs. The High Court has rightly pointed out that the
Speaker, in referring to the photographs, was drawing an inference about a fact which had not
been denied by the appellants themselves, viz., that they had met the Governor along with Dr
Wilfred D'Souza and Dr Barbosa on December 10, 1990 in the company of Congress (1)
MLAs, etc. The talk between the Speaker and the Governor also refers to the same fact. In
224

view of the absence of a denial by the appellants of the averment that they had met the
Governor on December 10, 1990 accompanied by Dr Barbosa and Dr Wilfred D'Souza and
Congress MLAs the controversy was confined to the question whether from the said conduct
of the appellants an inference could be drawn that they had voluntarily given up the
membership of the MGP. The reference to the newspaper reports and to the talk which the
Speaker had with the Governor in the impugned order of disqualification does not, in these
circumstances, introduce an infirmity which would vitiate the said order as being passed in
violation of the principles of natural justice.
28. The grievance that the appellants have been denied the opportunity to adduce the
evidence is also without substance. The appellants were the best persons who could refute the
allegations made in the petitions. In the impugned order the Speaker has mentioned that the
appellants were present before him but they did not come forward to give evidence.
Moreover, they could have sought permission to cross-examine Dr Jhalmi in respect of the
statement made by him before the Speaker that the appellants had given up their membership
of their political party and had said so openly to him and to others, in order to refute the
correctness of the said statement. They, however, failed to do so.
29. In the light of the aforesaid facts and circumstances we are unable to hold that the
impugned order of disqualification was passed by the Speaker in violation of the principles of
natural justice. Since we are of the view that the appellants have failed to make out a case for
interference with the order dated December 13, 1990 passed by the Speaker disqualifying the
appellants, we do not consider it necessary to go into the question about the appellants having
disentitled themselves from invoking the jurisdiction of the High Court under Article 226 of
the Constitution. The judgment of the High Court dismissing the writ petition of the
appellants must be upheld and CA No. 3309 of 1993 filed by the said appellants must be
dismissed.
C. A. No. 2904 of 1993
30. This appeal relates to the disqualification of Ravi Naik under order of the Speaker
dated February 15, 1991. As mentioned earlier, Naik was sworn in as Chief Minister of Goa
on January 25, 1991. On the same day Dr Kashinath Jhalmi filed a petition before the Speaker
of the Goa Legislative Assembly under Article 191(2) read with para 2(a) of the Tenth
Schedule to the Constitution wherein it was stated that Naik was elected to the Goa
Legislative Assembly on the ticket and symbol of the MGP at the last assembly election and
he had also given a declaration in accordance with the Disqualification Rules that he belongs
to the MGP. In the said petition, it was further stated that Naik had sworn himself as Chief
Minister of Goa by voluntarily giving up the membership of the MGP and that he has claimed
that he has given up membership of his original party, the MGP, and that by his said action
Naik has incurred disqualification for being a member of the House under the provision of
Article 191(2) of the Constitution of India read with paragraph 2(a) of the Tenth Schedule of
the Constitution. After receipt of the said petition, the Speaker issued a notice on January 29,
1991, which was received by Naik on the same day, whereby Naik was required to submit his
reply to the said petition by February 5, 1991. After receipt of the said notice Naik submitted
an application dated February 5, 1991 whereby he sought time of one month to file his reply
to the petition on the ground that he has been advised bed-rest in hospital for fifteen days and
 225

he was unable to apply his mind to give instructions to his lawyers. In the said application
Naik further indicated that his case was going to be that he and several others members of
Legislative Assembly belonging to the MGP along with him constitute a group which has
arisen on account of the split in the original political party. The Speaker, by his letter dated
February 6, 1991, granted extension of time till February 11, 1991 for Naik to forward his
comments. On February 11, 1991, Naik sent another letter requesting for further time of three
weeks to forward his comments. The said request of Naik was refused by the Speaker and on
February 11, 1991 he sent a letter informing Naik to appear before him for personal hearing
on February 13, 1991 at 4.00 p.m. On February 13, 1991, Naik did not appear but an advocate
appeared on his behalf and submitted his reply in writing. In the said reply Naik stated:
(i) On the 24th of December, 1990, in the meeting held at Ponda, Goa, there was a
split in the original Maharashtrawadi Gomantak Party. The meeting was attended,
among others, by office-bearers namely Executive President, Shri Gurudas Malik,
Joint Secretary, Shri Avinash Bhonsla, various executive members and workers of
Maharashtrawadi Gomantak Party. It was decided that MGP (Ravi Naik Group) under
my leadership be constituted. A resolution to that effect was passed.
(ii) Consequent upon the split, the following members of the Legislative
Assembly of the original MG Party have joined the group representing the MGP
(Ravi Naik Group) and constitute the group representing the faction which has arisen
as a result of the said split in the original MGP and there are signatures to the
declaration to that effect:
1. Shri Ravi S. Naik 2. Shri Ashok T.N. Salgaonkar
3. Shri Shankar Salgaonkar 4. Shri Pandurang Raut
5. Shri Vinaykumar Usagaonkar 6. Shri Ratnakar Chopdekar
7. Shri Sanjoy Bendekar 8. Shri Dharma Chodankar
31. Along with the said reply, Naik submitted Xerox copies of the resolution referred to
above as well as the declaration bearing signatures of eight MLAs. In the said reply Naik
stated that given time, he would procure the necessary evidence to be adduced to substantiate
the averments contained in the reply. He prayed for fifteen days' time to produce his affidavit
and witnesses. In the writ petition filed in the High Court, it has been stated by Naik that the
original resolution as well as the declaration bearing signatures of eight MLAs were shown to
the Speaker at the time of hearing by the advocate for Naik on February 13, 1991.
32. The Speaker, in his order dated February 15, 1991, has posed two questions-(1)
Whether the alleged split is proved; and (2) Whether the group of MLAs who have
disassociated from the party constitute one-third of MLAs of original party. Both the
questions were answered in the negative. The Speaker has observed that if there was really a
split in the party and a separate group of MLAs of old MGP was formed, it was incumbent
upon the leader of the group to give information of the split to the Speaker as required by
Rule 3 of the Disqualification Rules in Form 1 but no such information had been furnished till
the date of the order and that under Rule 4 of the Disqualification Rules each of the members
of the group had to give a certificate to that effect by filling Form III and this also had not
been done till the date of the order. The Speaker, in his order, has also mentioned that two
MLAs of the alleged group had already been disqualified by him. Referring to the contention
226

urged by the advocate appearing for Naik that there was a stay by the High Court against the
disqualification of these two MLAs, the Speaker has observed:
This argument cannot help the disqualified MLAs, as stay from the court came
after the order of disqualification was issued by me. Besides recently Parliament has
held that the Speaker's order cannot be a subject-matter of court proceedings and his
decision is final as far as Tenth Schedule of Constitution of India is concerned.
33. The Speaker has also mentioned that Dharma Chodankar had intimated to him on
January 14, 1991 that Naik and others had obtained his signatures forcibly without his consent
and against his will on a paper and that even on February 13, 1991 he had addressed a letter to
the Speaker regarding seating arrangements that he had no connection whatsoever with the
Naik group and that he continues to be with the original political party. As regards the
resolution and the declaration on which reliance was placed by Naik, the Speaker has
observed that on the reverse of the typed sheet of paper which purports to be a resolution
passed on December 24, 1990 there are some signatures and that in the typed portion there are
six names of which four are of MLAs including Naik and two are disqualified MLAs and that
the name of Dharma Chodankar is not there. The Speaker has also observed that if he had
been shown the notice calling the meeting at Ponda showing its exact venue and the time, and
the signatures of the persons who attended that meeting and minutes of that meeting, there
could be some evidence to show that such meeting had been actually held and that in the
absence of any such proof the holding of the meeting cannot be accepted. The Speaker was
also of the view that not only the split has to be proved but it has to be proved by conforming
to the rules and in the face of the doubtful evidence represented by a typed sheet resolution it
could not be accepted and as no information as prescribed by the rules was given, the split in
the party was not proved. In his order the Speaker has further stated that he had suggested that
Naik should produce the affidavits or the members in person to support his case and he could
have brought the six members in person or six affidavits of the erstwhile MGP MLAs who
had joined his group after the so-called split but he did not produce a single affidavit nor the
persons and that out of eight signatures supposed to have been taken by Naik at Ponda on
December 24, 1990, two were already disqualified and one Dharma Chodankar has stated in
clear terms that he does not belong to the group. The Speaker, therefore, held that there was
no group of one-third erstwhile MGP MLAs including Naik, and he declared Naik as
disqualified from being a member of Goa Legislative Assembly under Article 191(2) read
with para 2(a) of the Tenth Schedule to the Constitution.
34. Before the High Court it was urged on behalf of Naik that in view of the stay order
passed by the High Court on December 14, 1990 in Writ Petition No. 321 of 1990 filed by
Bandekar and Chopdekar whereby the operation of the order dated December 13, 1990
regarding disqualification of Bandekar and Chopdekar had been stayed, the Speaker was not
right in excluding the said two members from the group of Naik on the ground that they were
disqualified members of Goa Legislative Assembly. Rejecting the said contention, the High
Court has observed:
It is true that the Speaker in the impugned order held that he is not bound by the
stay order granted by the High Court as he had already made the disqualification
orders earlier to the stay order granted by the High Court. The Speaker indeed further
 227

mentioned that recently Parliament has held that the Speaker's orders cannot be
subject-matter of Court proceedings and his decision is final so far as the Tenth
Schedule of the Constitution of India is concerned. The fact remains that when the
Speaker made the orders of disqualification on 13th December, 1990 the Division
Bench had stayed the same on 14th December, 1990 in the petition filed by Bandekar
and Chopdekar. The conclusions in Kihoto case were pronounced by the Supreme
Court in November 1992 whereby para 7 of the Tenth Schedule ousting the
jurisdiction of the courts were held to be invalid and ultra vires the Constitution. The
Speaker clearly mentioned that the decision rendered by the Speaker under the Tenth
Schedule disqualifying a Member cannot be a subject-matter of Court proceedings.
Admittedly on the date on which he made the present impugned order, para 7 of the
Tenth Schedule was not held invalid by the Apex Court and the invalidity came much
later. On his interpretation of paras 6 and 7 of the Tenth Schedule, the Speaker held
that the stay order granted by a Division Bench of this Court is not binding upon him.
In such circumstances, it cannot be held that the action of the Speaker was perverse or
malafide. Had it been a fact that the Speaker was to make such order after the
pronouncement of the conclusion in Kihoto case i.e., after November 1991, the story
would have been different. We do agree with Shri Ashok Desai, learned counsel, that
propriety demanded that the Speaker should have respected the order of the High
Court but nothing turns on the same as by this judgment the disqualification of
Bandekar and Chopdekar is upheld which takes effect as from November 1990.
35. Another contention that was urged before the High Court on behalf of Naik was that
the Speaker in his order dated February 15, 1991, has referred to letters dated January 14,
1991 and February 13, 1991 received by him from Dharma Chodankar and that the said letters
were not disclosed to Naik earlier and Naik had no opportunity of producing evidence in
rebuttal. The High Court has rejected the said contention with the observation:
It must be seen that when for the first time the Legislative Assembly met on
February 13, 1991 Dharma Chodankar admittedly sat in the Assembly at the seating
arrangement allotted to the original Maharashtrawadi Gomantak Party and Chodankar
was not allotted a seat in the House with the so-called breakaway group under the
leadership of Ravi Naik. Though Ravi Naik, at some stage, had informed the Speaker
of allotment of seating arrangement for his group separately from the original
Maharashtrawadi Gomantak Party, the Speaker did not accede to that request insofar
as MLA Dharma Chodankar is concerned. Ravi Naik remained content with such
seating arrangement with Dharma Chodankar sitting with the original party and it is
not possible to accept that Ravi Naik had not noticed it when the Assembly session
had taken place in the morning of that day. The inference that can be drawn from this
is that Ravi Naik knew that Chodankar was not with him much before the hearing
took place before the Speaker. In the circumstances, in our view, even the non-
disclosure of letters of Chodankar cannot be said to have made any difference and in
that way caused any prejudice to the petitioner Ravi Naik. Upon reading the
impugned order it also does not give an impression to this Court that the order of
disqualification had been based solely upon this so-called extraneous material. On the
contrary, the order of disqualification is solely and mainly based upon the failure of
228

Ravi Naik to adduce evidence to prove the split as required under para 3 of Tenth
Schedule.
36. The High Court has laid emphasis on the point that in para 3 of the Tenth Schedule the
burden of proof is on the member who claims that he and other members of his Legislature
Party constitute a group representing a faction which has arisen as a result of a split in his
original political party and such a group consists not less than one-third of the members of
such Legislature Party. According to the High Court since Naik had made a claim that there
had been a split, the burden of proof to establish that there was a split was on Naik.
37. Shri Soli Sorabjee, learned Senior Counsel appearing for Naik, assailing the findings
recorded by the High Court, has, in the first place, contended that in view of the stay order
passed by the High Court on December 14, 1990 in Writ Petition No. 321 of 1990 filed by
Bandekar and Chopdekar the Speaker could not have proceeded on the basis that Bandekar
and Chopdekar stood disqualified as members of the Legislative Assembly on December 24,
1990, when there was a split, as claimed by Naik. As regards letters dated January 14, 1991
and February 13, 1991 received by the Speaker from Dharma Chodankar, Shri Sorabjee has
urged that the said letters were never disclosed to Naik earlier and that the said documents
could not be relied upon by the Speaker without affording an opportunity to Naik to adduce
evidence in rebuttal and, moreover, in these letters Dharma Chodankar has not denied his
signatures on the declaration dated December 24, 1990 which has been produced by the
appellant and has only claimed that the signatures had been obtained forcibly which means
that he had actually signed the said declaration. Shri Sorabjee has urged that the question
whether the signatures of Dharma Chodankar had been obtained forcibly on the said
declaration could be proved only by evidence produced in the presence of the parties and that
no evidence was adduced in support of the said allegation and in that view of the matter the
Speaker could not ignore the signatures of Dharma Chodankar on the declaration dated
December 24, 1990 and it could not be held that the members in the group formed by Naik
were less than one-third of the members of the Legislature Party of Naik, namely, MGP.
38. As noticed earlier, paragraph 2 of the Tenth Schedule provides for disqualification on
the ground of defection if the conditions laid down therein are fulfilled and paragraph 3 of the
said Schedule avoids such disqualification in case of split. Paragraph 3 proceeds on the
assumption that but for the applicability of the said provision the disqualification under
paragraph 2 would be attracted. The burden to prove the requirements of paragraph 2 is on the
person who claims that a member has incurred the disqualification and the burden to prove
the requirements of paragraph 3 is on the member who claims that there has been a split in his
original political party and by virtue of the said split the disqualification under paragraph 2 is
not attracted. In the present case Naik has not disputed that he has given up his membership of
his original political party but he has claimed that there has been a split in the said party. The
burden, therefore, lay on Naik to prove that the alleged split satisfies the requirements of
paragraph 3. The said requirements are:
(i) The member of a House should make a claim that he and other members of his
legislature party constitute the group representing a faction which has arisen as a result of
a split in his original party; and
 229

(ii)Such group must consist of not less than one-third of the members of such
legislature party.
39. In the present case the first requirement was satisfied because Naik has made such a
claim. The only question is, whether the second requirement was fulfilled. The total number
of members in the legislature party of the MGP (the original political party) was eighteen. In
order to fulfill the requirements of paragraph 3 Naik's group should consist of not less than 6
members of the legislature party of the MGP. Naik has claimed that at the time of split on
December 24, 1990 his group consisted of eight members whose signatures are contained in
the declaration, a copy of which was filed with the reply dated February 13, 1991.
40. The Speaker has held that the split had not been proved because no intimation about
the split has been given to him in accordance with Rules 3 and 4 of the Disqualification
Rules. We find it difficult to endorse this view. Rule 3 requires the information in respect of
matters specified in clauses (a), (b) and (c) of sub-rule (1) to be furnished in the prescribed
Form (Form 1) to the Speaker by the leader of the legislature party within 30 days after the
first sitting of the House or where such legislature is formed after the first sitting, within 30
days after its formation. Rule 4 relates to information to be furnished by every member to the
Secretary of the Assembly in the prescribed form (Form III). In respect of a member who has
taken his seat in the House before the date of commencement of the Disqualification Rules,
the information is required to be furnished within 30 days from such date. In respect of a
member who takes his seat in the House after the commencement of the Disqualification
Rules such information has to be furnished before making and subscribing an oath or
affirmation under Article 188 of the Constitution and taking his seat in the House. Rule 4 has
no application in the present case because the stage for furnishing the required information
had passed long back when the members made and subscribed to oath and affirmation after
their election in 1989. Rule 3 also comes into play after the split and the failure on the part of
the leader of the group that has been constituted as a result of the split does not mean that
there has been no split. As to whether there was a split or not has to be determined by the
Speaker on the basis of the material placed before him. In the present case the split was
sought to be proved by the declaration dated December 24, 1990 whereby eight MLAs
belonging to the MGP declared that they had constituted themselves into a group known as
Maharashtrawadi Gomantak Party (Ravi Naik Group). A Xerox copy of the said declaration
was submitted along with the reply filed by Naik on February 13, 1991 and the original
declaration bearing the signatures of the eight MLAs was produced by the advocate for Naik
during the course of the hearing before the Speaker on February 13, 1991. The genuineness of
the signatures on the said declaration was not disputed before the Speaker. One of the
signatories of the declaration, namely, Dharma Chodankar, had written to the Speaker that his
signatures were obtained forcibly. That may have a bearing on the number of members
constituting the group. But the fact that a group was constituted is established by the said
declaration.
41. The question that requires consideration is whether as a result of the said group being
constituted there was a split in the MGP as contemplated by paragraph 3 of the Tenth
Schedule. The Speaker has held that the requirements of paragraph 3 were not fulfilled for the
reason that the number of members of the group was less than one-third of the members of the
230

legislature party of the MGP. For coming to the conclusion the Speaker has excluded
Bandekar and Chopdekar on the ground that they stood disqualified under order dated
December 13, 1990 passed by him and Dharma Chodankar was excluded on the ground that
he had disowned his signatures on the declaration. The said view of the Speaker has been
assailed before us.
42. We will first examine whether Bandekar and Chopdekar could be excluded from the
group on the basis of order dated December 13, 1990 holding that they stood disqualified as
members of the Goa Legislative Assembly. The said two members had filed Writ Petition no.
321 of 1990 in the Bombay High Court wherein they challenged the validity of the said order
of disqualification and by order dated December 14, 1990 passed in the said writ petition the
High Court had stayed the operation of the said order of disqualification dated December 13,
1990 passed by the Speaker. The effect of the stay of the operation of the order of
disqualification dated December 13, 1990 was that, with effect from December 14, 1990 the
declaration that Bandekar and Chopdekar were disqualified from being members of Goa
Legislative Assembly under order dated December 13, 1991 was not operative and on
December 24, 1990, the date of the alleged split, it could not be said that they were not
members of Goa Legislative Assembly. One of the reasons given by the Speaker for not
giving effect to the stay order passed by the High Court on December 14, 1990, was that the
said order came after the order of disqualification was issued by him. We are unable to
appreciate this reason. Since the said order was passed in a writ petition challenging the
validity of the order dated December 13, 1990 passed by the Speaker it, obviously, had to
come after the order of disqualification was issued by the Speaker. The other reason given by
the Speaker was that Parliament had held that the Speaker's order cannot be a subject-matter
of court proceedings and his decision is final as far as Tenth Schedule of the Constitution is
concerned. The said reason is also unsustainable in law. As to whether the order of the
Speaker could be a subject-matter of court proceedings and whether his decision was final
were questions involving the interpretation of the provisions contained in Tenth Schedule to
the Constitution. On the date of the passing of the stay order dated December 14, 1990, the
said questions were pending consideration before this Court. In the absence of an authoritative
pronouncement by this Court the stay order passed by the High Court could not be ignored by
the Speaker on the view that his order could not be a subject-matter of court proceedings and
his decision was final. It is settled law that an order, even though interim in nature, is binding
till it is set aside by a competent court and it cannot be ignored on the ground that the court
which passed the order had no jurisdiction to pass the same. Moreover the stay order was
passed by the High Court which is a superior Court of Record and "in the case of a superior
Court of Record, it is for the court to consider whether any matter falls within its jurisdiction
or not. Unlike a court of limited jurisdiction, the superior Court is entitled to determine for
itself questions about its own jurisdiction." [See: Special Reference No. 1 of 1964, AIR 1965
SC 745 at p. 789]
43. The said question relating to the jurisdiction of the High Court to entertain the writ
petitions challenging the order of the Speaker now stands concluded by the judgment of this
Court in Kihoto Hollohan case wherein the provisions of para 7 of the Tenth Schedule have
been held to be unconstitutional and para 6 has been construed and it has been held that the
 231

Speaker, while passing an order in exercise of his powers under sub-para (1) of para 6 of the
Tenth Schedule functions as a tribunal and the order passed by him is subject to judicial
review under Articles 32, 136, 226 and 227 of the Constitution.
44. In Mulraj v. Murti Raghonathji Maharaj [AIR 1967 SC 1386], this Court has dealt
with effect of a stay order passed by a court and has laid down:
In effect therefore a stay order is more or less in the same position as an order of
injunction with one difference. An order of injunction is generally issued to a party
and it is forbidden from doing certain acts. It is well-settled that in such a case the
party must have knowledge of the injunction order before it could be penalised for
disobeying it. Further it is equally well-settled that the injunction order not being
addressed to the court, if the court proceeds in contravention of the injunction order,
the proceedings are not a nullity. In the case of a stay order, as it is addressed to the
court and prohibits it from proceeding further, as soon as the court has knowledge of
the order, it is bound to obey it and if it does not, it acts illegally, and all proceedings
taken after the knowledge of the order would be a nullity. That in our opinion is the
only difference between an order of injunction to a party and an order of stay to a
court.
This would mean that the Speaker was bound by the stay order passed by the High Court on
December 14, 1990 and any action taken by him in disregard of the said stay order was a
nullity. In the instant case the Speaker, in passing the order dated February 15, 1991 relating
to disqualification, treated Bandekar and Chopdekar as disqualified members. This action of
the Speaker was in disregard of the stay order dated December 14, 1990 passed by the
Bombay High Court.
45. The High Court has upheld the order of the Speaker, even though he had disregarded
the stay order passed by the High Court, on the basis that on the date on which the Speaker
had made the impugned order, paragraph 7 of the Tenth Schedule had not been held to be
invalid by this Court and the invalidity came much later. The High Court has observed that on
his interpretation of paragraphs 6 and 7 of the Tenth Schedule, the Speaker held that the stay
order by the Division Bench was (not?) binding upon him and in such circumstances it could
not be held that the action taken by the Speaker was perverse or mala fide. According to the
High Court, the position would have been different if the Speaker was to make the order after
the decision of the court. We are unable to agree with this view of the High Court. The
decision of this Court in Kihoto Hollohan case declares the law as it was on the date of the
coming into force of the Constitution (Fifty-second) Amendment Act, 1985. The action of the
Speaker in ignoring the stay order passed by the High Court while passing the order dated
February 15, 1991 cannot be condoned on the view that in the absence of the decision of this
Court, it was open for the Speaker to proceed on his own interpretation of paragraphs 6 and 7
of the Tenth Schedule and ignore the stay order passed by the High Court.
46. Relying upon the decision in State of Orissa v. Madan Gopal Rungta [1952 SCR 28:
AIR 1952 SC 12] Shri R.K. Garg, learned Senior Counsel appearing for Respondent 5, has
submitted that the interim order could only be issued in aid of and as ancillary to the main
relief which may be available to the party on final determination of his rights in a suit or
232

proceeding and not in derogation of the main relief and that it was open to the High Court, to
pass an appropriate order while finally disposing of the writ petition. Shri Garg has contended
that the High Court while finally disposing of Writ Petition No. 321 of 1990 filed by
Bandekar and Chopdekar upheld the order dated January 13, 1990 passed by the Speaker
regarding disqualification of Bandekar and Chopdekar and in these circumstances it cannot be
said that disregard of the interim order passed by the High Court on December 14, 1990 by
the Speaker had the effect of rendering the subsequent order dated February 15, 1991 illegal.
We are unable to agree with this contention. It is true that an interim order is issued in aid of
or ancillary to the main relief and not in derogation of the main relief. The stay order passed
by the High Court on December 14, 1990 staying the operation of the order dated December
13, 1990 passed by the Speaker had been issued in aid of and ancillary to the main relief in
Writ Petition No. 321 of 1990 which was for quashing of the said order dated December 13,
1990. The fact that the writ petition was ultimately dismissed and the impugned order dated
December 13, 1990 passed by the Speaker was upheld by the High Court does not mean that
the High Court had committed any error in passing the interim order for stay of operation of
the order under challenge in the writ petition on December 14, 1990. The dismissal of the writ
petition at the final stage does not, in our view, confer validity on the action which was taken
by the Speaker on February 15, 1991 in passing the order disqualifying Naik in disregard of
the stay order passed by the High Court on December 14, 1990. In the circumstances, it must
be held that in view of the stay order passed by the High Court on December 14, 1990 in Writ
Petition No. 321 of 1990, the Speaker while passing the order dated February 15, 1991, could
not have proceeded on the basis that Bandekar and Chopdekar stood disqualified under his
order dated December 13, 1990 and they could not be included in the group of Naik for the
purpose of ascertaining whether the said group consisted of one-third members of the
legislature party of MGP, the original political party. If the above two members are included
within the group of Naik then it is not disputed that the number of members in the group was
more than one-third of the legislature party of MGP. This would be so even if Dharma
Chodankar was excluded because the total number of members in the group of Naik would be
seven and the number of members of the legislature party of MGP required for the purpose of
a split under paragraph 3 of the Tenth Schedule was six. The order dated February 15, 1991,
passed by the Speaker was, therefore, in violation of the constitutional mandate contained in
paragraph 3 of the Tenth Schedule to the Constitution and is liable to be quashed on the basis
of the law laid down by this Court in Kihoto Hollohan case.
47. In that view of the matter we do not consider it necessary to deal with the submission
of Shri Sorabjee that the action of the Speaker in excluding Dharma Chodankar from the
group of Naik was in violation of the principles of natural justice.
48. In the result, while CA No. 3309 of 1993 filed by Bandekar and Chopdekar is
dismissed, CA No. 2904 of 1993 filed by Naik is allowed. The order dated May 14, 1993
passed by the High Court in Writ Petition No. 48 of 1991 is set aside and the said writ petition
is allowed and the order dated February 15, 1991 passed by the Speaker, Goa Legislative
Assembly declaring Naik as disqualified for being a member of the Goa Legislative Assembly
is quashed.
*****
 233

Rangilal Choudhury v. Dahu Sao

AIR 1962 SC 1248

WANCHOO, J. - This is an appeal by special leave against the judgment of the Patna High
Court in an election matter. The brief facts necessary for present purposes are these: There
was a bye-election held on December 21 and 22, 1958, to fill up a vacancy in the Bihar
Legislative Assembly from Dhanbad constituency. Nomination papers for the same were to
be filed on or before November 8, 1958. A large number of persons filed their nomination
papers on or before that date and among them were the appellant Rangilal Choudhury and the
respondent Dahu Sao. In the present appeal we are only concerned with these two. The
nomination paper of the respondent was rejected by the returning officer after scrutiny on
November 11, 1958. The bye-election was duly held and the appellant was declared elected
by a majority of votes. Thereafter the respondent filed an election petition challenging the
election of the appellant on a large number of grounds. In the present appeal we are only
concerned with one of the grounds that the nomination paper of the respondent was
improperly rejected. The appellant's contention in this connection was that the nomination
paper was rightly rejected. The election tribunal held that the nomination paper was rightly
rejected and thereafter dismissed the petition. The respondent went in appeal to the High
Court, and the main point pressed in appeal was that the election tribunal was wrong in
holding that the nomination paper of the respondent was rightly rejected. The High Court
agreed with the contention of the respondent that his nomination paper was improperly
rejected and therefore allowed the appeal and set aside the election of the appellant. The
appellant's application for leave to appeal to this Court having been rejected by the High
Court, he applied for and obtained special leave from this Court; and that is how the matter
has come up before us.
2. The only ground on which the nomination paper was rejected by the returning officer
was that the proposer had nominated the candidate for election from Bihar and not Dhanbad
assembly constituency. The nomination was made on a Hindi form printed for the purpose by
the Government. Unfortunately, the printed form did not exactly conform to the Hindi printed
form in the Rules framed under the Representation of the People Act, 1951 (‘the Act’). The
heading in the specimen printed form in the Rules requires the name of the State in which the
election is held, to be filled in the blank space there; but in the printed form supplied to the
respondent the name of the State was already printed in the heading and therefore the blank
space had to be filled in with the name of the constituency. The candidate therefore filled in
the name of the constituency in the blank space in the heading of the specimen printed form.
Thereafter, the proposer filled in the next part of the form which has five columns, after the
main part which says that the proposer nominates so and so for such and such constituency. In
this main part, the name of the candidate and the name of the constituency have to be filled in
by the proposer. In the particular form with which we are concerned now the name of the
candidate was rightly filled in but the proposer instead of putting down the name of the
constituency, namely Dhanbad, put down the name Bihar there. So the proposal read as if the
candidate was being nominated for the Bihar Assembly constituency. The only objection
taken before the returning officer was that the proposer had not mentioned the constituency
for which he was proposing the candidate for election and therefore the nomination form was
234

defective and should be rejected. This found favour with the returning officer, who rejected
the nomination paper as already said, on the ground that the proposer had nominated the
candidate for election for Bihar assembly constituency and not Dhanbad assembly
constituency. It may be mentioned that it is no one's case that there is any constituency like
Bihar assembly constituency. It may also be mentioned that this was a bye-election and not a
general election; and the question whether the nomination paper was rightly rejected will have
to be considered in this background.
3. Now Section 33(1) of the Act requires that a nomination paper completed in the
prescribed form and signed by the candidate and by an elector of the constituency as proposer
shall be filed on or before the date appointed for the nomination. Section 33(4) lays down that
on the presentation of a nomination paper, the returning officer shall satisfy himself that the
names and electoral roll numbers of the candidate and his proposer as entered in the
nomination paper are the same as those entered in the electoral rolls; provided that the
returning officer shall permit any clerical or technical error in the nomination paper in regard
to the said names or numbers to be corrected in order to bring them into conformity with the
corresponding entries in the electoral roll; and where necessary, direct that any clerical or
printing error in the said entries shall be overlooked. Section 36 then prescribes for the
scrutiny of nomination papers and sub-section (2) (b) thereof lays down that the nomination
paper shall be rejected if there has been a failure to comply with any of the provisions of
Section 33. But sub-section (4) lays down that the returning officer shall not reject any
nomination paper on the ground of any defect which is not of a substantial character. The
result of these provisions is that the proposer and the candidate are expected to file the
nomination papers complete in all respects in accordance with the prescribed form; but even if
there is some defect in the nomination paper in regard to either the names or the electoral roll
numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation
of the nomination paper about them and if necessary to allow them to be corrected, in order to
bring them into conformity with the corresponding entries in the electoral roll. Thereafter on
scrutiny the returning officer has the power to reject the nomination paper on the ground of
failure to comply with any of the provisions of Section 33 subject however to this that no
nomination paper shall be rejected on the ground of any defect which is not of a substantial
character.
4. The main dispute in the High Court centered on the question whether the defect in this
case on the ground of which the returning officer rejected the nomination paper was of a
substantial character or not. Generally speaking if the nomination paper does not disclose at
all the name of the constituency for which the nomination has been made, the defect would be
of a substantial character, for there would then be no way of knowing the constituency for
which a candidate is being nominated. But there may be cases where the nomination form
shows the constituency for which the nomination is being made though there may be some
defect in filling up the form. In such a case it seems to us that if the nomination form
discloses the constituency for which the nomination is being made even though the form may
not have been properly filled in that respect, the defect in filling the form would not be of a
substantial character. It is true that in this case there was a defect in filling up the blank by the
proposer inasmuch as he wrote the word "Bihar" before the words "assembly constituency"
instead of the word "Dhanbad", which he should have done; and if there were nothing else in
 235

the form to disclose the constituency for which the nomination was being made there would
have been a substantial defect in the nomination form which would justify the returning
officer in rejecting the same. But the circumstances of the present case are rather peculiar. We
have already mentioned that the printed Hindi form which was used in this case printed the
heading wrongly inasmuch as the heading was not in accordance with the heading prescribed
under the Rules. In the specimen form in the Rules, the blank space is meant for the State in
which the election is being held; but because of the mistake in printing the heading in this
case, the blank space could only be filled up with the name of the constituency, and that was
what was done. This name was filled in apparently by the candidate himself and not by the
proposer. But equally clearly the name of the constituency was there when the proposer in his
turn came to fill up that part of the form which he had to fill. It seems that the proposer was
thus misled, as the name of the constituency was already there in the heading, to write the
word "Bihar" in the second blank space in his proposal instead of the word "Dhanbad" to
indicate the constituency. That was undoubtedly a defect in the form as filled in by the
proposer. The question however is whether in these circumstances it can be called a defect of
a substantial character which would justify the rejection of the nomination paper. It seems to
us that the defect appeared partly because of the mistake in the printing of the Hindi form
which was supplied to the candidates for the purposes of the nomination to this bye election.
The form however as put in clearly shows in the heading the particular assembly constituency
for which the election was being held. Then follows the part which has to be filled in by the
proposer and there the proposer made a mistake in filling the word "Bihar" instead of the
word "Dhanbad" in the blank space relating to the constituency. Considering however that the
name of the constituency was already there in the heading, it would in our opinion be not
improper in the circumstances of this case to say that the proposer was nominating the
candidate for the constituency which was already mentioned in the heading. It seems to us
therefore that in view of the mistake that occurred in the printing of the form and in view of
the fact that the name of the constituency for which the election was being held was already in
the heading, the mistake of the proposer in putting in the word "Bihar" instead of the
"Dhanbad", which resulted in a defect in the filling up of the form was not of a substantial
character and that it was quite clear on the form in this case that the nomination was for the
Dhanbad assembly constituency. The returning officer does not seem to have attached any
importance to the name of the constituency in the heading in this case and also seems to have
ignored the fact that this was a bye election to one constituency, when he came to consider the
defect which undoubtedly was there in this respect in the nomination paper. We therefore
agree with the High Court that in the peculiar circumstances created by the mistake in printing
the Hindi nomination form by the Government, the defect which has occurred in this case is
not of a substantial character and it was quite clear that the nomination paper was for the
Dhanbad assembly constituency and was in consequence improperly rejected by the returning
officer.
5. As we have already said, this was the only ground on which the nomination paper was
challenged as defective before the returning officer; but before the election tribunal the
appellant also contended that the nomination paper was defective as columns 2 and 5 of the
part which has to be filled in by the proposer were not properly filled in and were defective;
and it was urged that the defect there was substantial and therefore even if the reason for the
236

rejection of the nomination paper as given by the returning officer was not substantial, these
defects were substantial and the rejection should be upheld on the ground of these defects.
Column 2 requires the electoral roll number of the proposer and column 5 of the candidate to
be filled in there. Further according to the directions given in the form columns 2 and 5
should contain the name of the constituency, the part of the electoral roll and the serial
number in that part. The purpose of this provision is that the returning officer should be able
readily to check that the proposer and the candidate are voters on the electoral roll. In the
present case only the serial number and the house number are mentioned in columns 2 and 5
and not the name of the constituency and the number of the part. Undoubtedly therefore there
was a defect in these two columns. Apparently the constituency was the same, viz., Dhanbad,
as will appear from the address given in column 4. No part number could be given as the
electoral roll in this particular case was not numbered by Parts. The question is whether in
these circumstances this defect can be called a defect of a substantial character. In this
connection we cannot ignore the provisions of Section 33(4) of the Act, which casts a duty on
the returning officer to satisfy himself that the names and electoral roll numbers of the
candidate and his proposer as entered in the nomination paper are the same as those entered in
the electoral roll and gives him the power to permit the removal of any defect in this
connection. The returning officer does not seem to have noted this defect in the form for if he
had done so he would have given an opportunity to the proposer to make the corrections. It is
true that the failure of the returning officer to give this opportunity for correction does not
mean that the defect can be ignored, if it is of a substantial character. But considering the
purpose for which the electoral roll numbers are given, it seems that the returning-officer
found no difficulty in checking that the proposer as well as the candidate was a voter on the
electoral rolls. The High Court in this connection referred to the evidence of the respondent
who stated that when his nomination paper was taken up for scrutiny, the returning officer
compared the names in the nomination paper with those in the electoral rolls. It seems
therefore that in this case the returning officer found no difficulty in tracing the names of the
proposer and the candidate in the electoral rolls and that is why no objection was raised before
him as to the defect in columns 2 and 5. In the circumstances it must be held that the defect
was of an unsubstantial character and would not result in the rejection of the nomination
paper. We may in this connection refer to Karnail Singh v. Election Tribunal, Hissar
[(1951)10 ELR 189] where this Court observed that it was quite clear on the evidence that
there was no difficulty in identifying the candidate and the candidate himself pointed out to
the returning officer his own name in the electoral rolls. Therefore the defect in columns 2
and 5 was in the circumstances held to be a technical one and not of a substantial character.
The principle of that case in our opinion applies to the present case also, for there is no doubt
here that the returning officer found no difficulty in identifying the proposer as well as the
candidate and as a matter of fact the evidence is that the candidate himself pointed out the
place in the electoral rolls where his name was entered. We therefore agree with the High
Court that in the circumstances of this case the defects in columns 2 and 5 were of an
unsubstantial character and the rejection of the nomination paper cannot be upheld on this
further ground, which was not even urged before the returning officer.
6. We, therefore, dismiss the appeal.
 237

N. T. Veluswami Thevar v. G. Raja Nainar

AIR 1959 SC 422

VENKATARAMA AIYER, J. - These appeals raise a question of considerable

importance as to the scope of an enquiry in an election petition wherein election is called in
question under Section 100(1)(c) of the Representation of the People Act, 1951, on the
ground that a nomination paper had been improperly rejected.
2. The facts are that during the general elections which were held in 1957 six persons
including the, appellant, Veluswami Thevar, the second respondent Chellapandian, and the
fourth respondent, Arunachalam, were nominated for election to the Legislative Assembly of
the State of Madras from Alangulam Constituency in the District of Tirunelveli. At the time
of the scrutiny which was on February 1, 1957, Chellapandian raised an objection to the
nomination of Arunachalam on the ground that he was the Head Master of the National
Training School, Tiruchendur, which was a Government-aided school, and that he was
therefore disqualified under Section 7, clauses. (d) and (e) of the Representation of the People
Act, 1951 (hereinafter referred to as the Act), as holding an office of profit under the
Government. In upholding this objection, the returning officer observed:
Sri S. Arunachalam is not present at the time of scrutiny of nominations nor any
authorised agent of his could take notice of the objection and file a reply. In view of
the objection which has not been cleared by Sri S. Arunachalam by satisfying me that
he is not holding an office of profit in a concern in which the State Government has
financial interest, the objection is upheld and Sri S. Arunachalam is disqualified under
Sections 7(d) and (e) of Act 43 of 1951.Accordingly his nomination is rejected.
3. The five nomination papers were accepted; two of the candidates subsequently
withdrew from the election; the other three went to the polls, and on March 10, 1957, the
appellant who secured the largest number of votes was declared elected.
4. On April 18, 1957, Raja Nainar, the first respondent, who was not a candidate but a
voter filed E. P. No. 109 of 1957 praying that the election of the appellant be declared void on
the ground that the rejection of the nomination paper of Arunachalam was improper, because
he had ceased to be a Head Master at the time of his nomination, and that further the
institution was a private one. The appellant filed a written statement in which he pleaded that
Arunachalam was not qualified to be chosen not merely on the ground put forward by
Chellapandian before the returning officer but also on the grounds that he was interested as a
partner in contracts for the execution of works for the Government, and that further he had
entered into an agreement with the District Board, Chittoor, to serve as a teacher in that
Board, and that his nomination paper was therefore rightly rejected. Raja Nainar then came
out with the application, I. A. No. 5 of 1957, out of which the present proceedings arise, to
strike out the additional grounds of disqualification raised in the statement of the appellant on
the ground that the Tribunal had no jurisdiction to enquire into any ground of disqualification
which was not taken before the returning officer, and that accordingly the new grounds put
forward by the appellant should be struck out.
238

5. By its order dated August 17, 1957, the Tribunal held that the question to be decided by
it was whether there was a valid nomination paper, and that to decide that, it could go into
grounds other than those which were put forward before the returning officer, and, in that
view, dismissed the application. The correctness of this order was challenged by Raja Nainar
in two Writ Petitions Nos. 675 and 676 of 1957, preferred under Article 226. Therein, he
repeated his contention that it was not competent to the Tribunal to enquire into any but the
grounds which had been put forward before the returning officer, and prayed that a writ of
certiorari be issued to quash the order in I.A. No. 5 of 1957 and a writ of prohibition, to
restrain the Tribunal from enquiring into the new grounds raised by the appellant.
6. These applications were heard by a Bench of the Madras High Court consisting of
Rajagopalan and Rajagopals Ayyangar, JJ., who upheld the contention of the petitioner, and
stated their conclusion in these terms:
We are clearly of opinion that the enquiry before the Tribunal must be restricted
to the objections which the returning officer had to consider and decide, but not
necessarily to the material placed before the returning officer at the stage of the
summary enquiry. The Tribunal has jurisdiction to adjudicate upon the truth and
validity of those objections on relevant material, even if that material be other than
that placed before the returning officer. The Tribunal has no jurisdiction to investigate
the truth or validity of the objections which were not put forward before the returning
officer, and which he had therefore no occasion to consider. Once again we have to
point out that we are discussing only the position of a candidate whose nomination
was rejected, and not, for instance, that of a returned candidate.
A further objection was also taken before the learned judges that as the decision of the
Election Tribunal was open to appeal under Section 116-A of the Act, the court should, in
exercise of its discretion under Article 226, decline to entertain writ petitions against
interlocutory orders. But the learned judge held that as the Tribunal had no jurisdiction to
entertain grounds other than those which were put forward before the returning officer, writs
could issue under Article 226. In the result, they quashed the order of the Election Tribunal in
I.A. No. 5 of 1957, and issued a writ of mandamus directing it to dispose of the application
afresh in accordance with law as laid down in the judgment. It is against this judgment that
the present appeals have been preferred on leave granted by this Court under Article 136, and
the point that arises for decision is whether in an election petition questioning the propriety of
the rejection of a nomination paper under Section 100(1)(c) of the Act, it is open to the parties
to raise grounds of disqualification other than those put forward before the returning officer.
7. It will be convenient at this stage to refer to the provisions of the Act hearing on this
question. Section 32 of the Act provides that,
Any person maybe nominated as a candidate for election to fill a seat if he is
qualified to be chosen to fill that seat under the provisions of the Constitution and this
Act.
Under Section 33(1), the candidate is to deliver to the returning officer a nomination paper
completed in the prescribed form and signed by the candidate and by an elector of the
constituency as proposer. Section 33 (4) enacts that:
 239

On the presentation of a nomination paper, the returning officer shall satisfy

himself that the names and electoral roll numbers of the candidate and his proposer as
entered in the nomination paper are the same as those entered in the electoral rolls.
Provided that the returning officer shall permit any clerical or technical error in
the nomination paper in regard to the said names or numbers to be corrected in order
to bring them into conformity with the corresponding entries in the electoral rolls; and
where necessary, direct that any clerical or printing error in the said entries shall be
overlooked.
Section 35 provides inter alia that the returning officer shall cause to be affixed in some
conspicuous place in his office a notice of the nomination containing descriptions similar to
those contained in the nomination paper both of the candidate and of the proposer. Section 36,
omitting what is not material, is as follows:
36. (1) On the date fixed for the scrutiny of nominations under Section 30, the
candidates, their election agents, one proposer of each candidate, and one other
person duly authorized in writing by each candidate, but no other person, may attend
at such time and place as the returning officer may appoint; and the returning officer
shall give them all reasonable facilities for examining the nomination papers of all
candidates which have been delivered within the time and in the manner laid down in
Section 33.
(2) The returning officer shall then examine the nomination papers and shall
decide all objections which may be made to any nomination, and may, either on such
objection or on his own motion, after such summary inquiry, if any, as he thinks
necessary, reject any nomination on any of the following grounds:-
(a) that the candidate either is not qualified or is disqualified for being
chosen to fill the seat under any of the following provisions that may, be
applicable, namely Articles 84, 102, 173 and 191, Part II of this Act, or
(b) that there has been a failure to comply with any of the provisions of
Section 33 or Section 34; or
(c) that the signature of the candidate or the proposer on the nomination
paper is not genuine.
(5) The returning officer shall hold the scrutiny on the date appointed in this
behalf under clause (b) of Section 30 and shall not allow any adjournment of the
proceedings except when such proceedings are interrupted or obstructed by riot or
open violence or by causes beyond his control:
Provided that in case an objection is made the candidate concerned may be
allowed time to rebut it not later than the next day but one following the date fixed for
scrutiny, and the returning officer shall record his decision on the date to which the
proceedings have been adjourned.
(6) The returning officer shall endorse on each nomination paper his decision
accepting or rejecting the same and, if the nomination paper is rejected, shall record
in writing a brief statement of his reasons for such rejection.
240

Then, we have Section 100(1)(c), the construction of which is the main point for
determination. It is as follows:
100. (1) Subject to the provisions of sub-Section (2), if the Tribunal is of opinion-
(c) that any nomination has been improperly rejected;…
the Tribunal shall declare the election of the returned candidate to be void.
8. Now, the whole controversy between the parties is as to what the expression
"improperly rejected" in Section 100(1)(c) means. According to the appellant, when the
nomination paper of a candidate who is under no such disqualification as is mentioned in
Section 36(2) has been rejected, that is improper rejection within Section 100(1)(c).
According to the respondent, when the nomination paper of a candidate is rejected by the
returning officer on the ground that he is subject to a specified disqualification, the rejection is
improper, if it is found that that disqualification does not exist. If the former view is correct,
then the scope of an enquiry before the Tribunal must extend to all matters which are
mentioned in Section 36(2), and if the latter, then it must be limited to determining whether
the ground on which the returning officer has rejected the nomination is well-founded. Now,
to decide what the expression "improperly rejected" in Section 100(1)(c) precisely imports, it
is necessary to examine the relevant provisions of the Act bearing on the question and the
setting of the above Section therein. Under Section 32 of the Act, any person may be
nominated as a candidate for election if he is duly qualified under the provisions of the
Constitution and the Act. Section 36(2) authorises the returning officer to reject any
nomination paper on the ground that he is either not qualified, that is, under Sections 3 to 7 of
the Act, or is disqualified under the provisions referred to therein. If there are no grounds for
rejecting a nomination paper under Section 36(2), then it has to be accepted, and the name of
the candidate is to be included in a list vide Section 36(8). Then, we come to Section
100(1)(c) and Section 100(1)(d)(i), which provide a remedy to persons who are aggrieved by
an order improperly rejecting or improperly accepting any nomination. In the context, it
appears to us that the improper rejection or acceptance must have reference to Section 36(2),
and that the rejection of a nomination paper of a candidate who is qualified to be chosen for
election and who does not suffer from any of the disqualifications mentioned in Section 36(2)
would be improper within Section 100(1)(c), and that, likewise, acceptance of a nomination
paper of a candidate who is not qualified or who is disqualified will equally be improper
under Section 100(1)(d)(i). Section 32 confers a substantive right on a candidate to be chosen
to the legislature subject only to the limitations enacted in Articles 84, 102, 173 and 191 of
the Constitution and Sections 3 to 7 of the Act, and Sections 36 and 100 provide the
machinery for the exercise and enforcement of that right. It is a sound rule of construction that
procedural enactments should be construed liberally and in such manner as to render the
enforcement of substantive rights effective. Reading Section 100(1)(c) in the context of the
whole enactment, we think that an enquiry before the Tribunal must embrace all the matters
as to qualification and disqualification mentioned in Section 36(2), and that it cannot be
limited to the particular ground of disqualification which was taken before the Returning
Officer.
9. It was contended for the respondent that the proceedings before the Tribunal are really
by way of appeal against the decision of the returning officer, and that, therefore, the scope of
 241

the enquiry in the election petition must be co-extensive with that before the returning officer,
and must be limited to the ground taken before him. It was argued that a decision could be
said to be improper only with reference to a ground which was put forward and decided in a
particular manner by the returning officer, and that therefore the expression " improperly
rejected" would, in its true connotation, restrict the scope of the enquiry before the Tribunal to
the ground taken before the returning officer. We are unable to agree with this contention.
The jurisdiction which a Tribunal exercises in hearing an election petition even when it raises
a question under Section 100(1)(c) is not in the nature of an appeal against the decision of the
returning officer. An election petition is an original proceeding instituted by the presentation
of a petition under Section 81 of the Act. The respondents have a right to file written
statements by way of reply to it; issues have to be framed, and subject to the provisions of the
Act, the provisions of the Code of Civil Procedure regulate the trial of the petition. All the
parties have the right to adduce evidence, and that is of the essence of an original proceeding
as contrasted with a proceeding by way of appeal. That being the character of the
proceedings, the rule applicable is that which governs the trial of all original proceedings; that
is, it is open to a party to put forward all grounds in support of or negation of the claim,
subject only to such limitations as may be found in the Act.
10. It should be noted in this connection that if a petition to set aside an election on the
ground of improper rejection of a nomination paper is in the nature of an appeal against the
decision, of the returning officer, then logically speaking, the decision of the Tribunal must be
based only on the materials placed before the returning officer given with respect to the
ground which was urged before him, and no fresh evidence could be admitted before the
Tribunal except in accordance with Order 41, Rule 27. The learned judges in the court below,
however, observe that though the enquiry before the Tribunal is restricted to the particular
ground put forward before the returning officer, it is not restricted to the material placed
before him, and that all evidence bearing on that ground could be adduced before the
Tribunal. This, in our view, is quite correct. The enquiry which a returning officer has to
make under Section 36 is summary in character. He may make "such summary enquiry, if
any, as he thinks necessary "; he can act suo motu. Such being the nature of the enquiry, the
right which is given to a party under Section 100(1)(c) and Section 100(1)(d)(i) to challenge
the propriety of an order of rejection or acceptance of a nomination paper would become
illusory, if the Tribunal is to base its decision only on the materials placed before the
returning officer.
11. It was contended for the respondent that even with reference to the ground taken
before the returning officer, no evidence other than what was placed before him could be
brought before the Tribunal, and he relied on the following observations of the learned judges
in Charanjit Lal v. Lehri Singh [AIR 1958 Punj. 433 at 435]:
Whether a nomination has been improperly rejected or not, has to be considered
in relation to the state of evidence before the returning officer at the time of the
scrutiny. The testimony of the returning officer shows that he rejected the nomination,
because it did not appear to him that on the question of age the candidate Shri Pirthi
was qualified to stand for election.
242

There, a nomination paper had been rejected by the returning officer on the ground that the
candidate did not appear to possess the age qualification required by Article 173. The
correctness of this order was challenged in an election petition. Evidence was taken as to the
age of the candidate in this petition, and eventually it was held that the order of the returning
officer was right. In the order of rejection, the returning officer also stated:
The nomination is rejected as the age is not mentioned in the nomination paper.
Neither the candidate nor the proposer or any person duly authorised on his behalf is
present to testify to his age.
Now, the argument before the High Court was that the failure to mention the age in the
nomination paper was a formal defect which should have been condoned under Section 36(4)
of the Act. The learned judges held that the defect was not merely one of failure to mention
the age but of want of the requisite qualification in age, and that that could not be cured under
Section 36(4). In this context, the observations relied on could not be read as meaning that no
evidence could be adduced even in respect of a ground which was urged before the returning
officer, as, in fact, evidence was taken before the Tribunal and a finding given, and if they
meant what the respondent suggests they do, we do not agree with them. It is to be noted that
in many of the cases which came before this Court, as for example, Durga Shankar v.
Raghuraj Singh [(1955)1 SCR 267] the finding of the Tribunal was based on fresh evidence
admitted before it, and the propriety of such admission was never questioned. And if the true
position is, as we have held it is, that it is open to the parties to adduce fresh evidence on the
matter in issue, it is difficult to imagine how the proceedings before the Tribunal can be
regarded as in the nature of appeal against the decision of the Returning Officer.
12. In support of his contention that it is only the ground that is urged before the returning
officer that can be raised before the Tribunal, Mr. Sinha, learned counsel for the respondent,
relies on the provision in Section 36(6) that when a nomination paper is rejected, the returning
officer should record his reasons therefor. The object of this provision, it is argued, is to
enable the Tribunal to decide whether the order of the returning officer is right or not, and by
implication it confines the scope of the enquiry before the Tribunal to the ground put forward
before the returning officer. This contention is, in our opinion, unsound. Now, when a
nomination paper is accepted, Section 36(6) does not require that any reason should be
recorded therefor. If the contention of the respondent is right, it would follow that acceptance
of a nomination paper can never be questioned. But that would be against Section
100(1)(d)(i), and it must therefore be held that an acceptance can be questioned on all the
grounds available under Section 36(2). Section 100(1)(d)(i) deals with improper acceptance of
a nomination paper, and if the word "improper" in that provision has reference to the matters
mentioned in Section 36(2), it must have the same connotation in Section100(1)(c) as well.
The word "improper" which occurs in both Section 100(1)(c) and Section 100(1)(d)(i) must
bear the same meaning in both the provisions, unless there is something in the context to the
contrary, and none such has been shown.
13. There is another difficulty in the way of accepting this argument of the respondent. A
candidate may be subject to more than one disqualification, and his nomination paper may be
questioned on all those grounds. Supposing that the returning officer upholds one objection
and rejects the nomination paper on the basis of that objection without going into other
 243

objections, notwithstanding that under Section 36(2) he has to decide all the objections, is it
open to the respondents in the election petition to adduce evidence on those objections?
According to the respondent, it is not so that if the decision of the returning officer on the
objection on which he rejected the nomination paper is held to be bad, the Tribunal has no
option but to set aside the election under Section 100(1)(c), even though the candidate was, in
fact disqualified and his nomination paper was rightly rejected. Mr. Sinha for the respondent
concedes that the result would be anomalous, but he says that the Law of Election is full of
anomalies, and this is one of them, and that is no reason for not interpreting the law on its
own terms. It is no doubt true that if on its true construction, a statute leads to anomalous
results, the Courts have no option but to give effect to it and leave it to the legislature to
amend and alter the law. But when on a construction of a statute, two views are possible, one
which results in an anomaly and the other not, it is our duty to adopt the latter and not the
former, seeking consolation in the thought that the law bristles with anomalies. Anomalies
will disappear, and the law will be found to be simple and logical, if it is understood that
when a question is raised in an election petition as to the propriety of the rejection of a
nomination paper, the point to be decided is about the propriety of the nomination and not the
decision of the returning officer on the materials placed before him, and that decision must
depend on whether the candidate is duly qualified and is not subject to any disqualifications
as provided in Section 36(2).
14. It remains to deal with one more contention advanced on behalf of the respondent, and
that is based on the following observations in Hari Vishnu Kamath v. Syed Ahmad Ishaque
[(1955)1 SCR 1104, 1132]:
Under this provision Rule 47(4), the Tribunal is constituted as a court of appeal
against the decision of the returning officer, and as such its jurisdiction must be co-
extensive with that of the returning officer and cannot extend further.
The argument is that if the jurisdiction of the Tribunal is co-extensive with that of the
returning officer, then the enquiry before it must be confined to the grounds which were urged
before the returning officer. Now, the observations quoted above were made statedly with
reference to Rule 47, and assuming that they apply to an enquiry under Section 100(1)(c), the
question still remains, what is the jurisdiction of the returning officer in hearing objections to
nomination papers? His jurisdiction is defined in Section 36(2), and the Tribunal must
therefore have jurisdiction to decide all the questions which can be raised under that Section.
The fact that a particular ground which could have been raised was not, in fact, raised before
the returning officer does not put an end to his jurisdiction to decide it, and what he could
have decided if it had been raised, could be decided by the Tribunal, when raised.
15. Mr. Ganapathy Iyer, learned counsel for the appellant, invited our attention to the
decisions of the Election Tribunals on the question whether grounds other than those raised
before the returning officer could be put forward in an enquiry in an election petition. They
held, with one solitary exception, that it is permissible, and indeed, it is stated in Megh Raj v.
Bhimandas [(1952) 2 ELR 301, 310] as settled law that the rejection of a nomination paper
can be sustained on grounds not raised before the returning officer. If the legislature which
must be taken to have knowledge of the law as interpreted in those decisions wanted to make
a departure from it, it would have said so in clear terms, and in the absence of such an
244

expression, it would be right to interpret Section 100(1)(c) as not intended to alter the law as
laid down in those decisions.
16. It is now necessary to refer to the decisions which have been cited before us. In Durga
Shankar Mehta case [(1955)1 SCR 267] the election was to a double-member constituency.
The appellant who obtained the largest number of votes was declared elected to the general
seat and one Vasantarao, to the reserved seat. The validity of the election was challenged on
the ground that Vasantarao was below the age of 25 years, and was, therefore, disqualified to
stand. The Election Tribunal upheld that objection, and set aside the entire election. The
decision was taken in appeal to this Court, and the point for determination was whether the
election of the appellant was liable to be set aside on account of the disqualification of
Vasantarao. It was held that the matter fell within Section 100(2)(c) as it then stood and not
under Section 100(1)(c), and that the election of the appellant could not be declared void. This
is not a direct pronouncement on the point now in controversy, and that is conceded. In
Vashist Narain Sharma v. Dev Chandra [(1955) 1 SCR 509] a question was raised as to
what would be "improper acceptance" within the meaning of Section 100; but in the view
taken by this Court, no opinion was expressed thereon.
17. The question now under consideration came up directly for decision before the High
Court of Rajasthan in Tej Singh v. Election Tribunal, Jaipur [(1954) 9 ELR 193] and it was
held that the respondent to an election petition was entitled to raise a plea that the nomination
of the petitioner rejected on one ground by the returning officer was defective on one or more
of the other grounds mentioned in Section 36(2) of the Act, and that such a plea, if taken,
must be enquired into by the Election Tribunal. In Dhanraj Deshlehara v. Vishwanath Y.
Tamaskar [(1958) 15 ELR 260] it was observed by a Bench of the Madhya Pradesh High
Court that in determining whether a nomination was improperly rejected, the Election
Tribunal was not bound to confine its enquiry to the ground on which the returning officer
rejected it, and that even if the ground on which the returning officer rejected the nomination
could not be sustained, the rejection could not, be held to be improper if the Tribunal found
other fatal defects in the nomination. An unreported judgment of the Andhra Pradesh High
Court in Badrivishal Pitti v. J. V. Narsing Rao [Special Appeal No. 1 of 1957] has been cited
before us, and that also takes the view that in an enquiry before the Election Tribunal, it is
open to the parties to support an order of rejection of a nomination paper on grounds other
than those which were put forward before the returning officer. We are in agreement with
these decisions.
19. In the result, we allow the appeals, set aside the orders of the court below, and dismiss
the writ petitions filed by the respondent, with costs here and in the court below.

*****
 245

Vashist Narain Sharma v. Dev Chandra

AIR 1954 SC 513

GHULAM HASAN, J. - This appeal preferred under Article 136 of the Constitution
against the order, dated May 4, 1951, of the Election Tribunal, Allahabad, setting aside the
election of Sri Vashist Narain Sharma to the Uttar Pradesh Legislative Assembly, raises two
questions for consideration. The first question is whether the nomination of one of the rival
candidates, Dudh Nath, was improperly accepted by the Returning Officer and the second,
whether the result of the election was thereby materially affected.
2. Eight candidates filed nominations to the Uttar Pradesh Legislative Assembly from
Ghazipur (South East) Constituency No. 345, three withdrew their candidature and the contest
was confined to the remaining five. The votes secured by these candidates were as follows
1. Vashist Narain Sharma 12868
2. Vireshwar Nath Rai 10996
3. Mahadeo 3950
4. Dudh Nath 1983
5. Gulab Chand 1768
They were arrayed in the election petition as respondents Nos. I to 5 respectively. The first
respondent having secured the highest number of votes was declared duly elected. Three
electors filed a petition under Section 81 of the Representation of the People Act, 1951
praying that the election of the returned candidate be declared void and that respondent no. 2
be declared to have been duly elected; in the alternative, that the election be declared wholly
void. The election was sought to be set aside on the grounds, inter alia, that the nomination of
respondent no. 4 was improperly accepted by the Election Officer and that the result of the
election was thereby materially affected.
The Tribunal found that respondent no.4, whose name was entered on the electoral roll of
Gahmar Constituency Ghazipur (South East) 'personated' (meaning passed himself off as)
Dudh Nath Kahar and used the entries of his electoral roll of Baruin Constituency Ghazipur
(South West), that the Returning Officer had improperly accepted his nomination, and that the
result of the election was thereby materially affected. Allegations of major and minor corrupt
practices and non-compliance with certain statutory rules were made but the Tribunal found
in favour of the returned candidate on those points.
3. Dudh Nath, respondent no. 4, is Rajput by caste. His permanent or ancestral home is
Gahmar but since 1943 he had been employed as a teacher in the Hindu Higher Secondary
School at Zamania-a town 10 or 12 miles away-and he had been actually residing at village
Baruin which is quite close to Zamania. The person for whom Dudh Nath 'personated' is
Dudh Nath Kahar whose permanent house is at Jamuan, but his father lives at Baruin. Dudh
Nath Kahar used to visit Baruin off and on but he was employed at Calcutta. The nomination
paper filed by Dudh Nath gave his parentage and age which more properly applied to Dudh
Nath Kahar.
He gave his father's name as Shiv Deni alias Ram Krit. Ram Krit is the name of Dudh
Nath Kahar's father. The electoral roll (Exhibit-K) of Gahmar gives Dudh Nath's father's
246

name as Shio Deni with no alias and his age as 39, while the electoral roll of Pargana
Zamania Monza Baruin (Exhibit C) gives Dudh Nath's father's name as Ram Krit and his age
as 31. In the electoral roll of Jamuan Dudh Nath's age is entered as 34 but in the
supplementary list it is mentioned as 30. When the nomination paper was filed on November
24, 1951, at 2.20 p.m. it was challenged by Vireshwar Nath Rai on the ground that Dudh
Nath's father's name was Shivadeni and not Ram Krit but no proof was given in support of the
objection and it was overruled on November 27. This order was passed at 1 p.m. One of the
candidates, who later withdrew, filed an application at 3.25 p.m. before the Returning Officer
offering to substantiate the objection which the objector had not pressed. This application was
rejected on the ground that the nomination had already been declared as valid.
In point of fact no evidence was adduced. This acceptance of the nomination on the part
of the Returning Officer is challenged as being improper under Section 36(6) of the
Representation of the People Act and as the result of the election according to the objector has
been materially affected by the improper acceptance of this nomination, the Tribunal is bound
to declare the election to be wholly void under Section 100(1) (c) of the Act.
Mr. Daphtary on behalf of the appellant has argued before us with reference to the
provisions of Sections 33 and 36 that this is not a case of improper acceptance of the
nomination paper, because prima facie the nomination paper was valid and an objection
having been raised but not pressed or substantiated, the Returning Officer had no option but
to accept it. There was, as he says, nothing improper in the action of the, Returning Officer.
On the contrary, it may, according to him, be more appropriately described as a case of an
acceptance of an improper nomination paper by the Returning Officer, in as much as the
nomination paper contained an inherent defect which was not discernible ex facie and could
be disclosed only upon an enquiry and upon the taking of evidence as to the identity which
was not then forthcoming. Such a case, it is argued, is not covered by Section 100(1)(c) but
by Section 100(2)(c) in which case the election of the returned candidate is alone to be
declared void, whereas in the former case the election is wholly void. We do not propose to
express any opinion upon this aspect of the matter, as in our view the appeal can be disposed
of on the second question.
4. Section 33 of the Representation of the People Act, 1951, deals with the presentation of
nomination paper and lays down the requirements for a valid nomination, On the date fixed
for scrutiny of the nominations the Returning Officer is required to examine the nomination
paper and decide all objections which may be made to any nomination, and after a summary
enquiry, if any, as he thinks necessary, he is entitled to refuse nomination on certain grounds
mentioned in sub-section (2) of Section 36.
Sub-section (6) lays down that the Returning Officer shall endorse on each nomination
paper his decision accepting or rejecting the same and, if the nomination paper is rejected,
shall record in writing a brief statement of his reasons for such rejection. This sub-section
shows that where the nomination paper is accepted, no reasons are required to be given.
Section 100 gives the grounds for declaring an election to be void. The material portion is as
follows:-
(1) If the Tribunal is of opinion- (a) xxx (b) xxx
 247

(c) that the result of the election has been materially affected by the improper
acceptance or rejection of any nomination, the Tribunal shall declare the election to
be wholly void.
It is under this sub-section that the election was sought to be set aside.
5. Before an election can be declared to be wholly void under Section 100(1) (c), the
Tribunal must find that "the result of the election has been materially affected". These words
have been the subject of much controversy before the Election Tribunals and it is agreed that
the opinions expressed have not always been uniform or consistent.
These words seem to us to indicate that the result should not be judged by the mere
increase or decrease in the total number of votes secured by the returned candidate but by
proof of the fact that the wasted votes would have been distributed in such a manner between
the contesting candidates as would have brought about the defeat of the returned candidate.
The next question that arises is whether the burden of proving this lies upon the petitioner
who objects to the validity of the election. It appears to us that the volume of opinion
preponderates in favour of the view that the burden lies upon the objector. It would be useful
to refer to the corresponding provision in the English Ballot Act, 1872, Section 13 of which is
as follows:-
No election shall be declared invalid by reason of a non-compliance with the
rules contained in the first schedule to this Act, or any mistake in the use of the forms
in the second schedule to this Act, if it appears to the Tribunal having cognizance of
the question that the election was conducted in accordance with the principles laid
down in the body of this Act, and that such non-compliance or mistake did not affect
the result of the election.
This section indicates that an election is not to be declared invalid if it appears to the Tribunal
that non- compliance with statutory rules or any mistake in the use of such forms did not
affect the result of the election. This throws the onus on the person who seeks to uphold the
election. The language of Section 100(1)(c), however, clearly places a burden upon the
objector to substantiate the objection that the result of the election has been materially
affected. On the contrary under the English Act the burden is placed upon the respondent to
show the negative, viz., that the result of the decision has not been affected.
This view was expressed in Rai Bahadur Surendra Narayan Sinha v. Amulyadhone Roy
[Indian Election cases by Sen and Poddar, p. 188] by a Tribunal presided over by Mr. (later
Mr. Justice) Roxburgh. The contention advanced in that case was that the petitioner having
established an irregularity it was the duty of the respondent to show that the result of the
election had not been materially affected thereby. The Tribunal referred to the provisions of
Section 13 of the Ballot Act and drew a distinction between that section and the provisions of
paragraph 7(1)(c) of Corrupt Practices Order which was more or less on the same lines as
Section 100(1)(c).
They held that the onus is differently placed by the two provisions. While under the
English Act the Tribunal hearing an election petition is enjoined not to interfere with an
election if it appears to it that non- compliance with the rules or mistake in the use of forms
248

did not affect the result of the election, the provision of paragraph 7(1)(e) placed the burden
on the petitioner. The Tribunal recognized the difficulty of offering positive proof in such
circumstances but expressed the view that they had to interpret and follow the rule as it stood.
9. The learned counsel for the respondents concedes that the burden of proving that the
improper acceptance of a nomination has materially affected the result of the election lies
upon the petitioner but he argues that the question can arise in one of three ways:
(1) where the candidate whose nomination was improperly accepted had secured less
votes than the difference between the returned candidate and the candidate securing the
next highest number of votes,
(2) where the person referred to above secured more votes, and
(3) where the person whose nomination has been improperly accepted is the returned
candidate himself.
It is agreed that in the first case the result of the election is not materially affected because if
all the wasted votes are added to the votes of the candidate securing the (next) highest votes, it
will make no difference to the result and the returned candidate will retain the seat. In the
other two cases it is contended that the result is materially affected. So far as the third case is
concerned it may be readily conceded that such would be the conclusion.
But we are not prepared to hold that the mere fact that the wasted votes are greater than
the margin of votes between the returned candidate and the candidate securing the next
highest number of votes must lead to the necessary inference that the result of the election has
been materially affected. That is a matter which has to be proved and the onus of proving it
lies upon the petitioner. It will not do merely to say that all or a majority of the wasted votes
might have gone to the next highest candidate.
The casting of votes at an election depends upon a variety of factors and it is not possible
for any one to predicate how many or which proportion of the votes will go to one or the other
of the candidates. While it must be recognised that the petitioner in such a case is confronted
with a difficult situation, it is not possible to relieve him of the duty imposed upon him by
Section 100(1) (c) and hold without evidence that the duty has been discharged. Should the
petitioner fail to adduce satisfactory evidence to enable the Court to find in his favour on this
point, the inevitable result would be that the Tribunal would not interfere, in his favour and
would allow the election to stand.
10. In two cases [Lakhan Lal Mishra v. Tribeni Kumar. (Gazette of India (Extry.) Feb. 2,
1953) and Mandal Sumitra Devi v. Sri Surajnarain Singh (Gazette of India (Extry.)
February 26, 1953)] the Election Tribunal, Bhagalpur, had to consider the question of
improper acceptance of the nomination paper. They agreed that the question whether the
result of election had been materially affected must be proved by affirmative evidence. They
laid down the following test:
If the number of votes secured by the candidate, whose nomination paper has
been improperly accepted, is lower than the difference between the number of votes
secured by the successful candidate and the candidate who has secured the next
highest number of votes, it is easy to find that the result has not been materially
affected. If, however, the number of votes secured by such a candidate is higher than
 249

the difference just mentioned, it is impossible to foresee what the result would have
been if that candidate had not been in the field. It will neither be possible to say that
the result would actually have been the same or different nor that it would have been
in all probability the same or different.
In both the cases the margin of votes between the successful candidates and the next highest
candidate was less than the number of votes secured by the candidate whose nomination was
improperly accepted. They held that the result was materially affected. We are unable to
accept the soundness of this view. It seems to us that where the margin of votes is greater than
the votes secured by the candidate whose nomination paper had been improperly accepted, the
result is not only materially not affected but not affected at all; but where it is not possible to
anticipate the result as in the above mentioned cases, we think that the petitioner must
discharge the burden of proving that fact and on his failure to do so, the election must be
allowed to stand.
11. The Tribunal in the present case rightly took the view that they were not impressed
with the oral evidence about the probable fate of votes wasted on Dudh Nath Singh, but they
went on to observe:
Considering that Dudh Nath respondent no. 4 received more votes than the
margin of votes by which respondent no. 1 was returned we are constrained to hold
that there was reasonable possibility of respondent no. 2 being elected in place of
respondent no. 1, had Dudh Nath not been in the field.
We are of opinion that the language of Section 100(1) (c) is too clear too any speculation
about possibilities. The section clearly lays down that improper acceptance is not to be
regarded as fatal to the election unless the Tribunal is of opinion that the result has been
materially affected. The number of wasted votes was 111. It is impossible to accept the ipse
dixit of witnesses coming from one side or the other to say that all or some of the votes would
have gone to one or the other on some supposed or imaginary ground. The question is one of
fact and has to be proved by positive evidence. If the petitioner is unable to adduce evidence
in a case such as the present, the only inescapable conclusion to which the Tribunal can come
is that the burden is not discharged and that the election must stand. Such result may operate
harshly upon the petitioner seeking to set aside the election on the ground of improper
acceptance of a nomination paper, but neither the Tribunal, nor this Court is concerned with
the inconvenience resulting from the operation of the law. How this state of things can be
remedied is a matter entirely for the Legislature to consider.
13. The Tribunal misdirected itself in not comprehending what they had to find and
proceeded merely upon a mere possibility. Their finding upon the matter is speculative and
conjectural. The result is that we set aside the order of the Tribunal and hold that it is not
proved that the result of the election has been materially affected by an improper acceptance
of the nomination, assuming that the case falls within the purview of Section 36(6) and that
finding is correct.

*****
250

Chhedi Ram v. Jhilmit Ram

(1984) 2 SCC 281

CHINNAPPA REDDY, J. - At the General Election to the Uttar Pradesh Vidhan Sabha
held in 1979, Jhilmit Ram was elected from the Jakhsuie Constituency reserved for the
Scheduled Castes. He secured 17,822 votes, Chhedi Ram, the runner-up secured 17,449 votes.
Thus, the difference between the successful candidate and the candidate who secured the next
highest number of votes was 373 votes. There were four other candidates of whom Moti Ram
secured 6710 votes. Chhedi Ram challenged the election of Jhilmit Ram on the ground that
Moti Ram was a Kahar by caste, not entitled to seek election from the reserved constituency,
that his nomination had been improperly accepted and that the result of the election was
materially affected. The Election Tribunal found that Moti Ram was a Kahar by caste and not
a member of the Scheduled Castes. It rejected the evidence offered on behalf of Moti Ram
that he was a Gond and not a Kahar and recorded a finding that deliberate attempts had been
made to manufacture evidence to show that Moti Ram was a Gond. The Tribunal also noticed
that Moti Ram himself was not prepared to enter the witness box to give evidence. Having
arrived at the finding that Moti Ram's nomination had been improperly accepted, however,
the Tribunal was not prepared to set aside the election of Jhilmit Ram as it took the view that
the result of the election had not been shown to have been materially affected as a result of the
improper acceptance of the nomination. The election petition was, therefore, dismissed.
Chhedi Ram has preferred this appeal.
2. We are afraid the appeal has to be allowed. Under Section 100(1)(d) of the
Representation of the People Act, 1951, the election of a returned candidate shall be declared
to be void if the High Court is of opinion that the result of the election, in so far as it concerns
the returned candidate, has been materially affected by the improper acceptance of any
nomination. True, the burden of establishing that the result of the election has been materially
affected as a result of the improper acceptance of a nomination is on the person impeaching
the election. The burden is readily discharged if the nomination which has been improperly
accepted was that of the successful candidate himself. On the other hand, the burden is wholly
incapable of being discharged if the candidate whose nomination was improperly accepted
obtained a less number of votes than the difference between the number of votes secured by
the successful candidate and the number of votes secured by the candidate who got the next
highest number of votes. In both these situations, the answers are obvious. The complication
arises only in cases where the candidate, whose nomination was improperly accepted, has
secured a larger number of votes than the difference between the number of votes secured by
the successful candidate and the number of votes got by the candidate securing the next
highest number of votes. The complication is because of the possibility that a sufficient
number of votes actually cast for the candidate whose nomination was improperly accepted
might have been cast for the candidate who secured the highest number of votes next to the
successful candidate, so as to upset the result of the election, but whether a sufficient number
of voters would have so done, would ordinarily remain a speculative possibility only. In this
situation, the answer to the question whether the result of the election could be said to have
been materially affected must depend on the facts, circumstances and reasonable probabilities
 251

of the case, particularly on the difference between the number of votes secured by the
successful candidate and the candidate securing the next highest number of votes, as
compared with the number of votes secured by the candidate whose nomination was
improperly accepted and the proportion which the number of wasted votes (the votes secured
by the candidate whose nomination was improperly accepted) bears to the number of votes
secured by the successful candidate. If the number of votes secured by the candidate whose
nomination was accepted is not disproportionately large as compared with the difference
between the number of votes secured by the successful candidate and the candidate securing
the next highest number of votes, it would be next to impossibility to conclude that the result
of the election has been materially affected. But, on the other hand, if the number of votes
secured by the candidate whose nomination was improperly accepted is disproportionately
large as compared with the difference between the votes secured by the successful candidate
and the candidate securing the next highest number of votes and if the votes secured by the
candidate whose nomination was improperly accepted bears a fairly high proportion to the
votes secured by the successful candidate, the reasonable probability is that the result of the
election has been materially affected and one may venture to hold the fact as proved. Under
the Indian Evidence Act, a fact is said to be proved when after considering the matters before
it, the Court either believes it to exist or considers its existence so probable that a prudent man
ought, under the circumstances of the particular case, to act upon the supposition that it exists.
If having regard to the facts and circumstances of a case, the reasonable probability is all one
way, a court must not lay down an impossible standard of proof and hold a fact as not proved.
In the present case, the candidate whose nomination was improperly accepted had obtained
6,710 votes, that is, almost 20 times the difference between the number of votes secured by
the successful candidate and the candidate securing the next highest number of votes. Not
merely that. The number of votes secured by the candidate whose nomination was improperly
accepted bore a fairly high proportion to the number of votes secured by the successful
candidate-it was a little over one-third. Surely, in that situation, the result of the election may
safely be said to have been affected.
3. The learned counsel for the respondents invited our attention to the decisions of this
court in Vashist Narain Sharma v. Dev Chandra [AIR 1954 SC 513] and Samant N.
Balakrishna v. George Fernandez [AIR 1969 SC 1201]. In Vashist Narain case, the
difference between the number of votes secured by the successful candidate and the number
of votes secured by the candidate who got the next largest number of votes was very nearly
the same as the number of votes secured by the candidate whose nomination was improperly
accepted. Unless it was possible to say that all the wasted votes would have gone to the
candidate who secured the highest number of votes next to the successful candidate, it was not
possible to hold that the result of the election had been materially affected. It was in those
circumstances that Ghulam Hasan, J. observed:
But we are not prepared to hold that the mere fact that the wasted votes are
greater than the margin of votes between the returned candidate and the candidate
securing the next highest number of votes must lead to the necessary inference that
the result of the election has been materially affected. That is a matter which has to be
proved and the onus of proving it lies upon the petitioner. It will not do merely to say
252

that all or a majority of the wasted votes might have gone to the next highest
candidate. The casting of votes at an election depends upon a variety of factors and it
is not possible for any one to predicate how many of which proportion of the votes
will go to one or the other of the candidates. While it must be recognised that the
petitioner in such a case is confronted with a difficult situation, it is not possible to
relieve him of the duty imposed upon him by Section 100(1) (c) and hold without
evidence that the duty has been discharged. Should the petitioner fail to adduce
satisfactory evidence to enable the Court to find in his favour on this point, the
inevitable result would be that the Tribunal would not interfere in his favour and
would allow the election to stand.
4. We do agree with the observations of Ghulam Hasan, J. in the context of the facts of
that case. It does not, however, mean that whatever the number of wasted votes and whatever
the margin of difference between the number of votes secured by the successful candidate and
the number of votes secured by the next highest candidate, the court would invariably hold
that the result of the election had not been materially affected. In an appropriate case having
regard to the margin of difference between the votes secured by the successful candidate and
the candidate securing the next highest number of votes and the proportion which such margin
bears to the wasted votes, it is permissible for the court to hold that the burden of proving that
the result of the election has been materially affected has been discharged.
5. In Samant Balakrishna case, the court observed:
In our opinion the matter cannot be considered on possibility. Vashist Narain
case insists on proof. If the margin of votes were small something might be made of
the points mentioned by Mr. Jethamalani. But the margin is large and the number of
votes earned by the remaining candidates also sufficiently huge. There is no room,
therefore, for a reasonable judicial guess. The law requires proof. How far that proof
should go or what it should contain is not provided by the Legislature. In Vashist case
and in Inayatullah v. Divanchand Mahajan (15 ELR 210) the provision was held to
prescribe an impossible burden. The law has however remained as before. We are
bound by the rulings of this Court and must say that the burden has not been
successfully discharged….
We do not think that this case lays down any different principle than what we have already
said. On the other hand, the sentence underlined by us indicates that where the difference
between the number of votes secured by the successful candidate and the number of votes
secured by the second highest candidate is marginal, it may be possible in the circumstances
of a case to hold that the burden has been discharged. We have already indicated our view that
in this case, the burden has certainly been discharged.
6. In the circumstances, the appeal has to be allowed.

*****
 253

Santosh Yadav v. Narender Singh

AIR 2002 SC 241

R.C. LAHOTI, J. - Pursuant to a notification issued by the Election Commission of India

under Section 30 of the Representation of the People Act, 1951 (hereinafter the Act) in the
month of January 2000, several constituencies, including 80-Ateli Assembly Constituency, in
the State of Haryana, were called upon to elect members for the Haryana Legislative
Assembly. Several nomination papers were filed on the dates appointed for filing nomination
papers. After scrutiny held on 4th February and withdrawal of candidature by a few
candidates on 7th February there were 17 candidates, including the appellant and respondent,
who remained in the fray for 80-Ateli Constituency. It may be stated that Smt. Om Kala, wife
of a candidate Shri Naresh Yadav, had also filed her nomination. She is alleged to be a cover
candidate for her husband. Once the nomination of Shri Naresh Yadav was found to be in
order and accepted Smt. Om Kala withdrew her candidature. The constituency went to polls
on 25.2.2000. On counting, the contesting candidates were found to have secured the
following numbers of votes:-

Sr.No. Name of the candidate Party affiliation No. of valid votes polled
1. Rao Om Parkash Engineer BSP 5819
2. Sh. Jagat Singh JD[U] 113
3. Sh. Narender Singh INC 31755
4. Sh. J.D. Yadav HVP 500
5. Smt. Santosh D/o Sh. Bhagwan Singh INLD 31421
6. Sh. Yogesh Kumar RJD 205
7. Sh. Laxmi Narain SP 785
8. Sh. Vinod Kumar SJP[R] 212
9. Sh. Om Parkash Yadav IND 18
10. Sh. Om Parkash IND 178
11. Sh. Naresh Yadav IND 19855
12. Comrade Balbir Singh IND 476
13. Sh. Ram Singh IND 111
14. Sh. Rama Nand Sharma IND 194
15. Smt. Santosh w/o Yudhvir IND 40
16. Sh. Satbir IND 92
17. Sh. Surender IND 18
3. The respondent Shri Narender Singh who was a candidate sponsored by Indian
National Congress having secured 31755 votes, the highest number of votes, was declared
elected. Smt. Santosh, the appellant, who was a candidate sponsored by Indian National Lok
Dal (INLD) secured 31421 votes i.e. next below the highest number of votes. Thus, there was
a margin of 334 votes between the votes secured by the respondent and the appellant.
4. The appellant filed an election petition putting in issue the election of the respondent.
One of the grounds taken in the election petition was that the nomination of Shri Naresh
Yadav was improperly accepted as he had been convicted under Section 304-B and Section
498-A of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for
254

seven years and one year respectively, besides the fine, under the judgment and order of
sentence pronounced by the Court of Sessions at Gurgaon on 31/3/1990. Though an appeal
was filed by him before the High Court and the High Court had suspended the execution of
the sentence of imprisonment, nevertheless he remained a person convicted of offences falling
under clause (a) of sub-section (1) and sub-section (3) of Section 8 of the Act and hence
disqualified. The plea as to disqualification of Shri Naresh Yadav has been upheld by the
High Court. Neither the factum of conviction of Shri Naresh Yadav nor the disqualification
flowing therefrom is in issue in this appeal. However, in spite of holding that the election held
in Ateli Assembly Constituency was vitiated on account of nomination of Shri Naresh Yadav
having been improperly accepted, the learned designated Election Judge of the High Court of
Punjab and Haryana has refused to set aside the election of the respondent as, in his opinion,
the election-petitioner/appellant has failed in discharging the onus of proving that the result of
the election, in so far as it concerns the respondent (the returned candidate), had been
materially affected. The election petition having been dismissed, the judgment of the High
Court has been put in issue by this appeal preferred under Section 116-A of the Act. The
question arising for decision in this appeal is: whether the High Court was right in forming
the opinion that on the established facts and circumstances of the case the appellant had failed
in proving that the election of the respondent was materially affected by improper acceptance
of the nomination paper of Shri Naresh Yadav.
5. The appellant’s case in this regard is that Shri Naresh Yadav was an active
worker/leader of INLD and was closely associated and well acquainted with the cadre,
workers, supporters and well-wishers of INLD. He was earlier a member of Bahujan Samaj
Party (BSP) and had contested 1996 Assembly Elections on the BSP ticket. In August 1998,
he joined INLD and actively participated in all the programmes, functions and activities of
INLD carried by Shri Om Prakash Chautala, president of INLD and Shri Ajay Singh
Chautala, president of the youth wing of INLD. The respondent had extensively toured the
constituency accompanying Shri Om Prakash and Shri Ajay Singh. He was an aspirant of
INLD ticket for contesting as an official candidate of INLD from 80-Ateli constituency.
However, the choice of INLD fell on the appellant. Shri Naresh Yadav, having failed in
getting the ticket of INLD, revolted and filed his nomination as an independent candidate. On
account of his close association with the INLD cadre he secured a high number of votes
cutting into pro-INLD and anti-Congress votes which would have otherwise been polled in
favour of the petitioner. Shri Naresh Yadav secured 19855 votes, which is more than 59 times
the margin of votes between the votes secured by the respondent and the appellant. If only the
nomination paper of Shri Naresh Yadav would have been rejected and his candidature would
have been excluded the votes polled by him would have definitely been polled by the
appellant. There was a pro-INLD wave in the entire State of Haryana in the Assembly
Elections of the year 2000. It was in effect an anti-Congress wave. The respondent could not
have secured more votes than what he had secured and in as much as the votes secured by
Shri Naresh Yadav were otherwise pro INLD votes, they would all have been diverted to the
appellant. These averments have been denied by the respondent in his written statement as
already stated. The learned designated Election Judge has formed an opinion, on appreciation
of evidence, that the appellant had failed in substantiating the plea raised in the election
petition. Almost similar arguments, as were advanced in the High Court, have been advanced
 255

before this Court, of course with added vigour by the learned senior counsel for the appellant.
Before we deal with the merits of the submission so made and enter into appreciation of
evidence in the light of the submissions made, it will be useful to set out the relevant law.
7. The Parliament has drawn a clear distinction between an improper rejection of any
nomination and the improper acceptance of any nomination. In the former case, to avoid an
election, it is not necessary to further prove that the result of the election has been materially
affected. The underlining reasoning for this was well set out by a Constitution Bench of this
Court in Surender Nath Khosla v. S. Dalip Singh [AIR 1957 SC 242]. There is a
presumption in the case of improper rejection of a nomination paper that it has materially
affected the result of the election. The fact that one of several candidates for an election was
kept out of the arena is by itself a very material consideration. The officer rejecting the
nomination paper of a candidate may have kept out the most desirable candidate, the most
desirable from the point of view of electors and the most formidable candidate from the point
of view of the other candidates, from seeking election and therefore the Parliament felt that an
improper rejection of any nomination paper is conclusive proof of the election being void and
therefore dispensed with the need of evidence being tendered in proof of the result of the
election having been materially affected. On the other hand, in the case of an improper
acceptance of a nomination paper, proof is required by way of evidence demonstrating that
the coming into the arena of an additional candidate has had the effect on the election in such
a manner that the best choice of the electorate was excluded.
8. It is well settled by a catena of decisions that the success of a winning candidate at an
election should not be lightly interfered with. This is all the more so when the election of a
successful candidate is sought to be set aside for no fault of his but of someone else. That is
why the scheme of Section 100 of the Act, especially clause (d) of sub-section (1) thereof
clearly prescribes that in spite of the availability of grounds contemplated by sub-clauses (i) to
(iv) of clause (d), the election of a returned candidate shall not be avoided unless and until it
was proved that the result of the election, in so far as it concerns a returned candidate, was
materially affected.
9. A few decisions were cited at the Bar and it will be useful to look at them. In Vashist
Narain Sharma v. Dev Chandra [AIR 1954 SC 513] the candidate whose nomination was
improperly accepted had secured 1983 votes while the margin of votes between the winning
candidate and the next below candidate was 1872. This court held that having called upon to
record a finding that the result of the election has been materially affected, the result should
not be judged by the mere increase or decrease in the total number of votes secured by the
returned candidate but by proof of the fact that wasted votes would have been so distributed
between the contesting candidates as would have brought about the defeat of the returned
candidate. The Court emphasized the need of proof by affirmative evidence and discarded the
test of a mere possibility to say that the result could have been different in all probability. The
question is one of fact and has to be proved by positive evidence. The Court observed that the
improper acceptance of a nomination paper may have, in the result, operated harshly upon the
petitioner on account of his failure to adduce the requisite positive evidence but the Court is
not concerned with the inconvenience resulting from the operation of the law. The Court
termed it impossible to accept the ipse dixit of witnesses coming from one side or the other to
256

say that all or some of the votes would have gone to one or the other on some. In Samant M.
Balakrishna v. George Fernandez [AIR 1969 SC 1201] this Court recognized that proof of
material effect on the result of the election in so far as a returned candidate is concerned on
account of a miscarriage occasioned by improper acceptance of nomination paper at an
election may be a simple impossibility. The judge has to enquire how the election would have
gone if the miscarriage would not have happened and that enquiry would result virtually
placing the election not in the hands of the constituency but in the hands of the Election
Judge. The Court held that neither the matter could be considered on possibility nor there was
any room for a reasonable judicial guess. The law requires proof; how far that proof should go
or what it should contain is not provided by the legislature. In Shiv Charan Singh v.
Chandra Bhan Singh [AIR 1988 SC 237] this court pointed out that proof of material effect
on the result of the election in a case of improper acceptance of nomination paper involved
the harsh and difficult burden of proof being discharged by the election petitioner adducing
evidence to show the manner in which the wasted ballots would have been distributed
amongst the remaining validly nominated candidates and in the absence of positive proof in
that regard the election must be allowed to stand and the Court should not interfere with the
election on speculation and conjectures.
10. All the above said decisions were referred to, dealt with and followed in a recent
decision of this court in Tek Chand v. Dile Ram [(2001) 3 SCC 290]. This court held that the
mere fact that the number of votes secured by a candidate whose nomination paper was
improperly accepted, was greater (more than three times in that case) than the margin of the
difference between the votes secured by the returned candidate and the candidate securing the
next higher number of votes, was not by itself conclusive proof of material effect on the
election of the returned candidate.
11. It is common knowledge that voting and abstention from voting, as also the pattern of
voting, depend upon a complex variety of factors, which may defy reasoning and logic.
Depending on a particular combination of contesting candidates and the political parties
fielding them, the same set of voters may cast their ballots in a particular way and may
respond differently on a change in such combination. Voters have a short-lived memory and
not an inflexible allegiance to political parties and candidates. Election manifestos of political
parties and candidates in a given election, recent happenings, incidents and speeches delivered
before the time of voting may persuade the voters to change their mind and decision to vote
for a particular party or candidate giving up their previous commitment of belief. In Paokai
Haokip v. Rishang [AIR 1969 SC 663] this court has taken judicial notice of the fact that in
India all the voters do not always go to the polls and that the casting of votes at an election
depends upon a variety of factors and it is not possible for anyone to predicate how many or
which proportion of votes will go to one or the other of the candidates.
12. The learned senior counsel for the appellant placed heavy reliance on Chhedi Ram v.
Jhilmit Ram [AIR 1984 SC 146] and submitted that the ratio of the decision squarely applies
to the present case and should govern the decision thereof. It was submitted that in Chhedi
Ram case the candidate whose nomination was improperly accepted had obtained 6710 votes
which was almost 20 times the difference between the number of votes secured by the
successful candidate and the candidate securing the next highest number of votes. So also the
 257

number of votes secured by the candidate whose nomination was improperly accepted bore a
fairly high proportion to the number of votes secured by the successful candidate - a little over
1/3rd. The learned senior counsel submitted that on availability of these twin factors it was
held by this Court that the result of the election might safely be said to have been affected;
while the case of the present appellant stands on a much better footing in as much as the
number of votes secured by Shri Naresh Yadav is almost 59 times of the margin between the
votes secured by the appellant and the respondent.
13. At the first blush the submission appears to be attractive but is found to be devoid of
merit on closer scrutiny. Chhedi Ram case came up for the consideration of this Court at least
on three occasions. In Shiv Charan’s case and Tek Chand case, this Court has held that
Chhedi Ram case rested on its own facts and did not overrule the earlier decisions of this
Court namely the decisions in Vashisht Narain Sharma case and Samant N. Balakrishna
case. In Chhedi Ram case not only the proportion of wasted votes was 20 times of the
margin, there were six candidates in all in the election fray. The Court formed an opinion that
a reasonable probability was raised in favour of holding that the result of the election had
been materially affected. The decision in Chhedi Ram case does not set out detailed facts and
circumstances and the nature of the evidence adduced which may have persuaded the Court in
arriving at a finding in favour of the election petitioner. In view of the earlier decisions of this
Court existing before Chhedi Ram case was decided, it cannot be held that merely because
the number of wasted votes bears a high degree of proportion to the margin of votes between
the winning candidate and the next highest candidate, an inference must always be drawn that
the result of the election was materially affected in so far as the returned candidate is
concerned. There must be definite evidence available before the Court enabling an inference
being drawn as to how the wasted votes would have been distributed amongst the contesting
candidates. The Court cannot conjecturise or return findings on surmises.
14. Observations in Shiv Charan Singh case are pertinent and apposite. It is no doubt true
that the burden which is placed by law on the election petitioner is very strict; even if it is
strict it is for the courts to apply it. It is for the Legislature to consider whether it should be
altered. If there is another way of determining the burden, the law should say it and not the
courts. It is only in given instances that, taking the law as it is the courts can reach the
conclusion whether the burden of proof has been successfully discharged by the election
petitioner or not.
15. A word about the pleadings. Section 83 of the Act mandates an election petition to
contain a concise statement of the material facts on which the petitioner relies. The rules of
pleadings enable a civil dispute being adjudicated upon by a fair trial and reaching a just
decision. A civil trial, more so when it relates to an election dispute, where the fate not only
of the parties arrayed before the Court but also of the entire constituency is at a stake, the
game has to be played with open cards and not like a game of chess or hide and seek. An
election petition must set out all material facts wherefrom inferences vital to the success of
the election petitioner and enabling the Court to grant the relief prayed for by the petitioner
can be drawn subject to the averments being substantiated by cogent evidence. Concise and
specific pleadings setting out all relevant material facts, and then cogent affirmative evidence
being adduced in support of such averments, are indispensable to the success of an election
258

petition. An election petition, if allowed, results in avoiding an election and nullifying the
success of a returned candidate. It is a serious remedy. Therefore, an election petition seeking
relief on a ground under section 100 (1) (d) of the Act, must precisely allege all material facts
on which the petitioner relies in support of the plea that the result of the election has been
materially affected. Unfortunately in the present case all such material facts and
circumstances are conspicuous by their absence.
16. The law as regards the result of election having been materially affected in case of
improper acceptance of nomination may be summed up as under : -
(1) A case of result of the election, in so far as it concerns the returned candidate,
having been materially affected by the improper acceptance of any nomination, within the
meaning of Section 100(1)(d)(i) of the Representation of the People Act, 1951 has to be
made out by raising specific pleadings setting out all material facts and adducing cogent
evidence so as to enable a clear finding being arrived at on the distribution of wasted
votes, that is, the manner in which the votes would have been distributed if the candidate,
whose nomination paper was improperly accepted, was not in the fray.
(2) Merely because the wasted votes are more than the difference of votes secured by
the returned candidate and the candidate securing the next highest number of votes, an
inference as to the result of the election having been materially affected cannot necessarily
be drawn. The issue is one of fact and the onus of proving it lies upon the petitioner.
(3) The burden of proving such material effect has to be discharged by the election
petitioner by adducing positive, satisfactory and cogent evidence. If the petitioner is
unable to adduce such evidence the burden is not discharged and the election must stand.
This rule may operate harshly upon the petitioner seeking to set aside the election on the
ground of improper acceptance of a nomination paper, but the Court is not concerned with
the inconvenience resulting from the operation of the law. Difficulty of proof cannot
obviate the need of strict proof or relax the rigour of required proof.
(4) The burden of proof placed on the election petitioner is very strict and so difficult
to discharge as nearing almost an impossibility. There is no room for any guess work,
speculation, surmises or conjectures i.e. acting on a mere possibility. It will not suffice
merely to say that all or majority of wasted votes might have gone to the next highest
candidate. The law requires proof. How far that proof should go or what it should contain
is not provided by the legislature.
(5) The casting of votes at an election depends upon a variety of factors and it is not
possible for any one to predicate how many or which proportion of the votes will go to one
or the other of the candidates. It is not permissible to accept the ipse dixit of witnesses
coming from one side or the other to say that all or some of the votes would have gone to
one or the other on some supposed or imaginary ground.
17. Having so stated the law, we now proceed to assess and evaluate the evidence adduced
by the parties.
18. In all there are 10 witnesses examined on behalf of the election petitioner/appellant.
Balwant Singh, PW 1, the Returning Officer has deposed to only certain undisputed facts.
Sant Lal, PW 2, has produced result-sheets of Haryana State Legislative Assembly Elections
held in the years 1982, 1987, 1991, 1996 and 2000. Pawan Kumar, PW 3, is a photographer
 259

and Ashok Wadhwa, PW 4, and Rohtas Yadav, PW 5, are press-reporters, who have deposed
to Shri Naresh Ydadav having joined INLD publicly in early August, 1998 in the presence of
Shri Om Prakash Chautala and other leaders of INLD which is a fact not disputed by the
respondent at this stage. Ram Kumar, PW 6, District Office Secretary of INLD, has deposed
to Shri Naresh Yadav and the appellant - both having been aspirants for INLD party ticket but
in mid-September, 1998 the ticket having been denied to Shri Naresh Yadav and the appellant
having been given the party ticket where after Shri Naresh Yadav made a rebellion and chose
to contest as an independent candidate. Again, this is also a fact not seriously disputed at this
stage. The statements of remaining four witnesses are relevant and need to be scrutinized for
the purpose of deciding the main controversy in this appeal.
19. Bali Ram, PW 7, is a resident of village Silarpur while Sher Singh, PW 8, is a resident
of village Shyampura. Both of them have deposed to there having been two main groups in
their respective villages in the election. The two groups were of the Congress and the INLD.
None of them speaks of having any knowledge about the entire constituency. None of the two
has deposed to, he himself having been a voter and exercised his own franchise. Bali Ram,
PW 7, states Shri Naresh Yadav having made in-roads into the votes of the appellant.
Obviously, the statement is confined to his own village. Sher Singh, PW 8, too deposed that
Shri Naresh Yadav contesting as an independent candidate affected the votes of INLD and
those votes were not in favour of Congress. What has been stated by these two witnesses does
not go beyond being ipse dixit of the witnesses. There is nothing on record to show how many
voters were there in the two villages and which way the polling went as amongst the different
candidates.
20. Smt. Santosh Yadav, PW 9, the appellant herself, deposed about some party workers
having gone with Shri Naresh Yadav without disclosing the names of such party workers. She
further stated that the party votes were divided because Shri Naresh Yadav asked for the votes
in the name of Shri Om Prakash Chautala a fact not alleged in the election petition. This is
apart from the fact that who were such voters and at what point of time they were asked to
vote for Shri Naresh Yadav is neither averred in the pleadings nor stated in her statement.
According to her own admission Shri Om Prakash Chautala was touring the constituency and
had come to support her in the constituency. Satbir Singh, PW 10, is General Secretary of
INLD of District Mohindergarh and was in-charge of election campaigning in 80-Ateli
Constituency in February, 2000. He claims to have toured the 80-Ateli Constituency during
the elections and therefrom he deposed that on account of Shri Naresh Yadav having
contested as an independent candidate many of the workers and voters of INLD supported
him. The statement has remained as vague and general as is of the appellant herself. The
witnesses PW 7, PW 8 and PW 10, are all party workers and would naturally have some bias
in favour of their own party and would be obviously interested in the success of the appellant
in the election petition. There evidence also does not advance the case of the appellant.
21. The documents which have been brought on record by the election petitioner show the
State level results of Haryana. But what is relevant is the trend of voting and distribution of
votes amongst contesting candidates in 80-Ateli Constituency and not necessarily the entire
State. The election petitioner did not bring on record Form 20 document for the year 2000
elections or of the earlier elections so as to spell out what was the trend of voting in this
260

particular Constituency. Form 21-E tendered in evidence establish that in the past elections, it
was the Congress Party which had won election in 80-Ateli in 1982, 1991 and 1996. In 1982
elections Congress (J) candidate was returned to Legislative Assembly having secured 27298
votes and Shri Banshi Singh, father of Shri Naresh Yadav secured 27105 votes and lost. In
1991, Shri Banshi Singh secured 19343 votes as a Congress candidate and won the election.
In the year 1996 there were 47 candidates contesting from 80-Ateli constituency. INC
candidate won having secured 22114 votes. However, Om Prakash Engineer contesting on
Haryana Vikas Party ticket, Ajit Singh (Samajvadi Party), Naresh Yadav (BSP), Nihal Singh
(Samta Party) and Bharat Singh (Independent) secured 19270, 15686, 9846, 7534 and 3328
respectively. In the year 2000 itself one Shri Om Prakash Engineer, a BSP candidate secured
5819 votes, not a totally insignificant number and in the event of Shri Naresh Yadav being
excluded he would also have shared some of the wasted votes, apart from other candidates out
of 17 in all. No definite trend or mood of voters is, thus, projected from the statistics so made
available. In Paokai Haokip case, Chief Justice M. Hidayatullah said that statistics cannot be
called in aid to prove such facts, because it is notorious that statistics can prove anything and
made to lie for either case. It has also come in the evidence that father of Naresh Yadav has
been a Sarpanch and Smt. Om Kala, the wife of Shri Naresh Yadav is herself active in politics
and contested several elections. She had contested Zila Parishad Elections within the
constituency of Ateli on two occasions and on both occasions she was elected. In the year
1996, Shri Naresh Yadav had contested elections as the candidate of Bahujan Samaj Party and
had polled 9846 votes, almost half of the votes polled by him in the impugned elections.
Thus, Shri Naresh Yadav and his family members are active in politics and they have their
own political base. Shri Naresh Yadav does not have any fixed party affiliation; he has been
often changing his party membership. It can not therefore be said that the votes which he
secured were necessarily a cut into INLD vote bank. It is difficult to agree with the
submission of the learned senior counsel for the appellant that while as a candidate of BSP,
Shri Naresh Yadav polled 9846 votes in 1996 elections, his rise by 9885 votes in the year
2000 elections should be attributed to, and be treated as, a cut into INLD votes and these 9885
votes or a major chunk of them would have otherwise gone to the appellant. Shri Naresh
Yadav having been continuously in politics, he may have gradually strengthened his political
base and thereby secured a spurt in the number of his voters and supporters. It needs hardly
any evidence to hold, as one can safely assume that the appellant must have openly and
widely propagated herself as INLD candidate and made it known to the constituency that she
was the official candidate sponsored by INLD and Shri Naresh Yadav was not an INLD
sponsored candidate and was a defector. Therefore, it is difficult to subscribe to the suggested
probability that any voter committed to INLD ideology would have still voted for Shri Naresh
Yadav merely because he had for a period of two years before defection remained associated
with INLD.
22. In Vashist Narain Sharma case, the election petitioner made an attempt at
discharging the onus of proof by producing a number of electors before the Tribunal who had
stated that all or some of the votes would have gone to the candidate who had polled the next
highest number of votes and in the absence of the improperly nominated candidate he would
have polled majority of valid votes. It was held that the statement of the witnesses as to in
what manner votes would have been distributed among the remaining contesting candidates
 261

could not be relied upon in determining the question of material effect on the election of the
returned candidate. The Court observed that it was impossible to accept ipse dixit of witnesses
coming from one side or the other to say that all or some of the votes would have gone to one
or the other on some supposed or imaginary grounds. In Paokai Haokip case witnesses were
brought forward to state that a number of voters did not vote because of the change of venue
and certain other incidents. This Court held that this kind of evidence was merely an assertion
on the part of a witness who could not have spoken for 500 voters. The Court also refused to
accept the statement even of village Headman that the whole village would have voted in
favour of one candidate to the exclusion of the other.
23. The learned senior counsel for the appellant extensively read out a few passages from
the decision of this Court in Tek Chand case. The passages relate to marshalling of evidence.
During discussions this Court has made certain observations as to the missing pieces of the
facts and circumstances which by their absence had a debilitating effect on the evidence
adduced. The learned senior counsel submitted that the evidence which was missing in Tek
Chand case has been adduced and made available in the present case and therefore the
finding on the crucial issue should lean in favour of the appellant. We are afraid such a
submission can not be accepted. We see no acceptable logic behind the argument that if what
was missing in Tek Chand case, would have been available, the finding would necessarily
have been in favour of the election petitioner.
24. We also do not see force in the submission of the learned senior counsel for the
respondent that Smt. Om Kala had withdrawn her candidature because of her husband’s
nomination having been accepted and if the nomination of her husband Shri Naresh Yadav
would have been rejected than she being a cover candidate, would have contested the election
and therefore the result of the election can not be said to have been materially affected.
Suffice it to observe that we have to deal with what has happened and not with an imaginary
situation which could have happened but did not happen.
25. In our opinion, on the pleadings and the evidence adduced, the election
petitioner/appellant has utterly failed in demonstrating the pattern of voting in 80-Ateli
Constituency. There were 17 contesting candidates in the field. It is difficult to make a
reasonable guess, much less with any certainty, that if Shri Naresh Yadav was excluded then
such number of votes would have been taken out of the votes polled by him and fallen into
the box of appellant as to make her successful.
26. In as much as we have found, agreeing with the High Court that the election
petitioner/appellant has failed in discharging the heavy burden, which lay on her, of proving
that the result of election, in so far as it concerns the returned candidate i.e., the respondent,
has been materially affected by the improper acceptance of the nomination of Shri Naresh
Yadav, the judgment of the High Court cannot be faulted. The appeal and the cross
objections, are held liable to be dismissed and are dismissed accordingly, though without any
order as to the costs.

*****
262

Ram Phal Kundu v. Kamal Sharma

AIR 2004 SC 1657

G.P. MATHUR, J. - This appeal under Section 116-A of the Representation of the People
Act, 1951 (hereinafter referred to as "the Act") has been preferred by the returned candidate
Ram Phal Kundu against the judgment and order dated 8.5.2003 of High Court of Punjab and
Haryana by which the election petition preferred by Kamal Sharma was allowed and the
election of the appellant from 50-Safidon Assembly Constituency to the Haryana Vidhan
Sabha was set aside and a direction was issued to the Election Commission of India to hold a
fresh election for the said constituency.
2. The Election Commission of India issued a notification on 24.1.2000 calling upon the
electors of Haryana to elect 90 members to the Haryana Vidhan Sabha including that from 50-
Safidon Assembly Constituency (Distt. Jind). The schedule for holding the elections was as
under:
Filing of nomination papers : 27.1.2000 to 3.2.2000
Scrutiny of nomination papers : 4.2.2000
Last date for withdrawal of candidature : 7.2.2000
Allotment of Symbols : 7.2.2000 after 3.00 p.m.
Date of polling, if necessary : 22.2.2000
Counting of votes : 25.2.2000
3. The appellant Ram Phal Kundu filed his nomination paper as a candidate of Indian
National Lok Dal Party ('Lok Dal Party'). The respondent Kamal Sharma and Bachan Singh,
both filed their nomination papers claiming to be candidates of Indian National Congress
Party ('Congress Party'). The Returning Officer accepted the nomination paper of Bachan
Singh as candidate of Congress Party and rejected that of Kamal Sharma. The election was
held on 22.2.2000 as scheduled and the appellant Ram Phal Kundu secured the highest
number of valid votes and was declared to have been elected. Kamal Sharma then filed an
election petition under Sections 80, 81 read with Section 100 of the Act for setting aside the
election of the appellant Ram Phal Kundu and for declaring his election as void. A further
prayer was made that the Election Commission be directed to hold a fresh election to the said
Assembly Constituency. After trial of the petition, the High Court allowed the election
petition on the ground that the nomination paper of Kamal Sharma was wrongly rejected.
Accordingly, the election of the appellant Ram Phal Kundu was set aside and the Election
Commission was directed to hold a fresh election.
4. The case set up by Kamal Sharma in the election petition is as follows:
The election petitioner applied to the Congress Committee for sponsoring his name for the
50-Safidon Assembly Constituency to contest the election as a candidate of the said party.
The Central Election Committee of the party vide Press release dated 2.2.2000 selected him as
its candidate for the said Constituency. Shri Motilal Vora, General Secretary of the party
issued Form A in the name of Shri Bhupinder Singh Hooda, President, Haryana Pradesh
Congress Committee as the authorised person to intimate the names of the candidates to be set
up by the party in the election. Shri Bhupinder Singh Hooda then communicated to the
 263

Returning Officer, 50-Safidon Assembly Constituency the name of the election petitioner
Kamal Sharma as an approved candidate of the Congress Party in Form B. The election
petitioner filed his nomination paper as a candidate of Congress Party at 12.20 p.m. on
3.2.2000 before the Returning Officer. During the course of scrutiny proceedings on 4.2.2000
it was revealed that another candidate, namely, Bachan Singh had also filed his nomination
paper at 2.50 p.m. on 3.2.2000 claiming himself as a candidate set up by the Congress Party.
The scrutiny proceedings were adjourned to 5.2.2000. Shri Bhupinder Singh Hooda filed an
affidavit dated 4.2.2000 before the Returning Officer that the election petitioner Kamal
Sharma was the only person nominated as a candidate of the Congress Party and any other
unsealed authorisation letter of the party submitted by someone else was not valid. Shri
Bhupinder Singh Hooda also wrote to the Chief Election Commissioner, New Delhi that
Kamal Sharma was the only officially approved candidate of the Congress Party. The scrutiny
proceedings were conducted by the Returning Officer on 5.2.2000, who after hearing counsel
for the parties, wrote out a hand written order dismissing the objection filed by the election
petitioner Kamal Sharma and rejecting his nomination paper. The nomination paper of
Bachan Singh as a candidate of the Congress Party was accepted. The election petitioner was
the only official candidate of the Congress Party as Forms A and B submitted by him along
with his nomination paper were duly signed and stamped by the seal of the party, whereas
Form B submitted by Bachan Singh did not bear the seal of the party and was consequently
invalid. The Returning Officer committed a grave illegality in overlooking another essential
requirement of law that Form B submitted by Bachan Singh had not reached the office of the
Chief Electoral Officer, Haryana within the prescribed time limit. The election petitioner then
filed a petition before the Chief Election Commissioner, New Delhi on 6.2.2000, who by
order dated 7.2.2000 set aside the order dated 5.2.2000 passed by the Returning Officer and
directed him to conduct a fresh scrutiny at 10.00 a.m. on 8.2.2000. The Returning Officer,
thereafter, gave notice to election petitioner Kamal Sharma, Bachan Singh and Shri
Bhupinder Singh Hooda, who appeared before him and stated that Form B furnished by
Bachan Singh was not issued by his approval and that the election petitioner was the only
authorised candidate of the party. However, the Returning Officer passed an order at 4.30
p.m. on 8.2.2000 dismissing the objection raised by the election petitioner and allotted the
Symbol of the Congress Party to Bachan Singh. The result of the election was declared on
25.2.2000 and out of 85,742 valid votes polled, the appellant Ram Phal Kundu secured 45,382
valid votes and was declared as elected. In para 25 of the petition it is pleaded that there was
no proper authorisation by the Congress Party in favour of Bachan Singh as the Form B
submitted by him did not contain the seal of the party and on account of wrongful rejection of
the nomination paper of the election petitioner Kamal Sharma, the election of Ram Phal
Kundu was vitiated.
5. The appellant Ram Phal Kundu contested the election petition on the ground, inter alia,
that though the election petitioner produced Forms A and B before the Returning Officer that
he is the nominee of the Congress Party, but subsequently Bachan Singh produced Forms A
and B that he had been nominated by the Congress Party as a candidate for 50-Safidon
Assembly Constituency. In Form B submitted by Bachan Singh the nomination of the election
petitioner Kamal Sharma was rescinded and it was specifically mentioned that the Congress
Party had changed its candidate and had nominated Bachan Singh as its official candidate.
264

The notice in Form B as per amended Clause 13 of Election Symbols (Reservation and
Allotment) Order, 1968 (hereinafter referred to as 'the Symbols Order') is required to be
produced before the Returning Officer before 3.00 p.m. and there is no requirement that the
same should also reach or produced before the Chief Electoral Officer. The nomination paper
of election petitioner was filed along with requisite forms at 12.20 p.m. on 3.2.2000 whereas
Bachan Singh had filed his nomination paper at 2.50 p.m. on 3.2.2000 and had submitted
Forms A and B. Thereafter, no further notice in Form B was received by the Returning
Officer. The Form B submitted by the election petitioner is dated 2.2.2000 whereas the Form
B submitted by Bachan Singh at 2.50 p.m. on 3.2.2000 wherein Shri Bhupinder Singh Hooda
had himself mentioned that the candidature of the election petitioner Kamal Sharma was
rescinded is dated 3.2.2000. It is further pleaded that the letter of Shri Bhupinder Singh
Hooda said to have been submitted on 4.2.2000 before the Returning Officer, is of no
consequence and could not be taken into consideration in view of paras 13 and 13A of the
Symbols Order which provide that the notice in writing in Form B regarding the declaration
of the official candidate has to be made and submitted before the Returning Officer up to 3.00
p.m. on the last date of filing nomination papers and not thereafter. Shri Bhupinder Singh
Hooda had not denied his signature on the authorisation Form B in favour of Bachan Singh in
the affidavits filed by him on 4th and 5th February, 2000 and the same having been filed
subsequent to 3.00 p.m.on the last date of filing of the nomination paper were of no
consequence. The fact that the seal of the party was not present in Form B of Bachan Singh
was of no consequence as it is not a defect of substantial character and under paras 13 and
13A of the Symbols Order only the signature of the authorised person is required and it is
nowhere provided that the Form must contain the seal of the party. It is also pleaded that the
Election Commission of India has no authority to set aside the order of the Returning Officer
rejecting a nomination paper and to direct him to reconsider the matter. No appeal or revision
lies to the Election Commission of India against an order rejecting a nomination paper. In
para 22 it is pleaded that Bachan Singh contested the election as a candidate of the Congress
Party and the appellant won the said election by a margin of 8,324 votes, having secured more
than 55% of the actual votes polled. The nominee of the Congress Party was very much there
in the election fray but the appellant was declared as elected. All the important leaders of
Congress Party at the State level and the national level, including Shri Motilal Vora and
others had campaigned for Bachan Singh. In the newspapers of 3.2.2000 it had been reported
that the Congress Party had changed its candidate from Kamal Sharma to Bachan Singh.
6. It may be mentioned at the very outset that the election petitioner Kamal Sharma
impleaded the returned candidate Ram Phal Kundu as the sole respondent and no other person
was joined as party to the election petition. Though there is not even a whisper against the
appellant Ram Phal Kundu and the entire allegations are against Bachan Singh but he was not
arrayed as a party to the election petition. Strictly speaking it is not a case of rejection of
nomination paper but of ascertaining who was the candidate of the Congress Party as two
persons had filed nomination papers claiming to be the candidate of the said party. Since only
one person can be a candidate of a political party and after acceptance of the candidature of
Bachan Singh, the nomination paper of the election petitioner Kamal Sharma could be treated
as that of an independent candidate. But as it was not subscribed by 10 proposers being
electors of the constituency, it had to be rejected in view of First Proviso to sub-section(1) of
 265

Section 33 of the Act. The non-joining of Bachan Singh may not result in dismissal of the
election petition in terms of Section 82 of the Act. However, in absence of Bachan Singh
having been joined as party to the election petition, an extremely difficult burden has been
placed upon the appellant Ram Phal Kundu, who belongs to rival party (Lok Dal), to lead
evidence regarding the internal affairs of Congress Party and to show that the nomination
made in favour of Kamal Sharma had been subsequently rescinded and the party had set up
Bachan Singh as its official candidate.
7. The main question which requires consideration is as to which of the two persons,
namely, Kamal Sharma or Bachan Singh had been set up by the Congress Party. Paras 13 and
13A of Election Symbols (Reservation and Allotment) Order, 1968, as amended by Clause 3
of Election Symbols (Reservation and Allotment) (Amendment) Order, 1999, which came
into force on 20.5.1999, which govern the situation read as under:
13. When a candidate shall be deemed to be set up by a political party - For the
purposes of an election from any parliamentary or assembly constituency to which
this Order applies, a candidate shall be deemed to be set up by a political party in any
such parliamentary or assembly constituency, if, and only if –
(a) the candidate has made the prescribed declaration to this effect in his
nomination paper;
(b) a notice by the political party in writing, in Form B, to that effect has, not later
than 3 p.m. on the last date of making nominations, been delivered to the Returning
Officer of the constituency;
(c) the said notice in Form B is signed by the President, the Secretary or any other
office bearer of the party, and the President, Secretary or such other office bearer
sending the notice has been authorised by the party to send the notice;
(d) the name and specimen signature of such authorised person are communicated
by the party, in Form A, to the Returning Officer of the constituency, and to the Chief
Electoral Officer of the State or Union Territory concerned, not later than 3 p.m. on
the last date for making nominations; and
(e) Forms A and B are signed, in ink only, by the said office bearer or person
authorised by the party:
Provided that no fascimile signature or signature by means of rubber stamp, etc.,
of any such office bearer or authorised person shall be accepted and no form
transmitted by fax shall be accepted.
13A. Substitution of a candidate by a political party - For the removal of any
doubt, it is hereby clarified that a political party which has given a notice in Form B
under paragraph 13 in favour of a candidate may rescind that notice and may give a
revised notice in Form B in favour of another candidate for the constituency.
Provided that the revised notice in From B, clearly indicating therein that the
earlier notice in From B has been rescinded, reaches the Returning Officer of the
constituency, not later than 3 p.m. on the last date for making nominations, and the
said revised notice in Form B is signed by the authorised person referred to in clause
(d) of paragraph 13.
266

Provided further that in case more than one notice in Form B is received by the
Returning Officer in respect of two or more candidates, and the political party fails to
indicate in such notices in Form B that the earlier notice or notices in Form B, has or
have been rescinded, the Returning Officer shall accept the notice in Form B in
respect of the candidate whose nomination paper was first delivered to him, and the
remaining candidate or candidates in respect of whom also notice or notices in Form
B has or have been received by him, shall not be treated as candidates set up by such
political party.
In terms of paras 13 and 13A of the Symbols Order, a candidate shall be deemed to be set
up by a political party if the following conditions are fulfilled:
(1) The candidate has made the prescribed declaration to that effect in his nomination
paper.
(2) A notice by the political party in Form B to that effect has been delivered to the
Returning Officer not later than 3.00 p.m. on the last date for making nomination.
(3) The notice in Form B is signed by the President, Secretary or any other office
bearer of the party and such person sending the notice has been authorised by the party to
send the notice.
(4) The name and specimen signature of such authorised person are communicated by
the party in Form A to (i) the Returning Officer; and (ii) the Chief Electoral Officer of the
State or Union Territory concerned not later than 3.00 p.m. on the last date for making
nomination.
(5) A political party which has given a notice in Form B in favour of candidate may
rescind that notice and may give a revised notice in Form B in favour of another
candidate, provided such revised notice in Form B clearly indicating therein that the
earlier notice in Form B has been rescinded, reaches the Returning Officer not later than
3.00 p.m. on the last date for making nomination and such revised notice in Form B is
signed by the authorised person referred to in Clause (d) of para 13.
(6) Forms A and B have to be signed in ink only by the office bearer or authorised
person. No fascimile signature or signature by means of rubber stamp and no form
transmitted by fax shall be accepted.
It may be noted that while Form A has to be submitted to both the Returning Officer of the
Constituency and to the Chief Electoral Officer of the State, but there is no such requirement
with regard to Form B. Form B has to be delivered only to the Returning Officer of the
Constituency. The Symbols Order has made a specific provision that Forms A and B have to
be signed in ink only and signature by means of rubber stamp, etc. shall not be accepted. In
terms of the language used in paras 13 and 13A of the Symbols Order there is no requirement
of putting the seal of the party in Forms A and B.
8. There is no dispute that Shri Motilal Vora, General Secretary of the Congress Party had
sent a communication in Form A that Shri Bhupinder Singh Hooda had been authorised by
the Indian National Congress to intimate the names of the candidates proposed to be set up by
the party at the election and the said document Ex. PW2/M is on the record. A notice in Form
B in favour of 'Kamal' dated 2.2.2000 signed in ink by Shri Bhupinder Singh Hooda was
given by the election petitioner to the Returning Officer at 12.20 p.m. and it is marked as
 267

Ex.PW2/L. Another notice in Form B dated 3.2.2000 in favour of Bachan Singh and signed in
ink by Shri Bhupinder Singh Hooda was given by Bachan Singh to the Returning Officer at
2.50 p.m. on 3.2.2000 and it is marked as Ex.PW4/A. At the bottom of this form it is
mentioned as under:
The notice in 'Form B' given earlier in favour of Shri Kamal s/o Janardhan as
party's approved candidate, Smt Kusum w/o Kamal as party's substitute candidate is
hereby rescinded.
Below this writing there is signature of Shri Bhupinder Singh Hooda. In his cross-
examination PW5 Shri Bhupinder Singh Hooda has admitted that Form B in favour of Bachan
Singh contains his signature. He stated as under:
…It is correct that document Ex.PW4/A which is Form B in favour of Shri
Bachan Singh Arya bears my signatures. Volunteered I am admitting only my
signatures and not the contents of the Form…
Towards the end of his cross-examination he stated as under:
On Form B issued to Shri Bachan Singh Arya I only own signature on this Form
but I do not own the contents given in it.
Thus, there is no dispute that Form B submitted by Bachan Singh contained a categorical
statement to the effect that the notice given in Form B earlier in favour of Kamal Sharma as
party's approved candidate and Smt. Kusum w/o Shri Kamal as party's substitute candidate is
rescinded and the said Form B had been signed in ink by Shri Bhupinder Singh Hooda, who
had been nominated as authorised person of the Congress Party. There is also no dispute that
the Form B submitted by Bachan Singh was later in point of time and had been given at 2.50
p.m. on 3.2.2000 when the last time and date for filing of the nomination paper was 3.00 p.m.
on 3.2.2000.
9. In his statement PW6 Kamal Sharma has stated that in the list released by All India
Congress Committee on 2.2.2000 his name was mentioned as a candidate for 50-Safidon
Assembly Constituency. In the night he collected Forms A and B from the Camp Office and
submitted his nomination paper along with Forms A and B to the Returning Officer. A letter
written by Shri Bhupinder Singh Hooda wherein it was mentioned that Kamal Sharma is the
candidate of Congress Party from 50-Safidon Constituency and no one else was a candidate,
was delivered to the Returning Officer on 4.2.2000. This letter is on the record as Ex.PW2/J
and it bears an endorsement by the Returning Officer that the same was received by him at
11.00 a.m. on 4.2.2000. He has also stated that the Returning Officer had a telephonic talk
with Shri Hooda and thereafter an affidavit duly sworn by him on 4.2.2000 that Kamal is the
only nominated candidate of the Congress Party, was also given. This affidavit also bears the
endorsement of the Returning Officer that the same was received by him at 11.00 a.m. on
4.2.2000. PW5 Shri Bhupinder Singh Hooda has deposed that the name of Bachan Singh was
under consideration as a Congress candidate but it was never finalised and, therefore, no Form
B was issued to him and that Kamal Sharma was the candidate of the party. At about 3.30
p.m. on the last date of filing nomination, he received information that two nomination forms
had been submitted on behalf of the Congress Party and thereafter he sent a letter through
special messenger to the Returning Officer that Kamal Sharma is the official candidate. After
268

receiving a telephonic call from the Returning Officer on 4.2.2000, he informed him that
Kamal Sharma is the official candidate and thereafter he sent an affidavit to that effect. He
has further deposed that he wrote a letter to the Chief Election Commissioner and Chief
Electoral Officer in this regard. Thus, the election petitioner Kamal Sharma has led evidence
to show that after it had been revealed that Bachan Singh had also filed his nomination paper
as a candidate of the Congress Party, he lodged a protest before the Returning Officer on the
next day i.e. 4.2.2000 and Shri Bhupinder Singh Hooda telephoned to him and also sent a
letter and an affidavit that only Kamal Sharma was the official candidate. But all these letters
and affidavits, etc. were received by the Returning Officer on 4.2.2000 and on subsequent
dates.
10. The question that arises is whether this evidence, which is all subsequent to the last
date of filing of the nomination paper, can be looked into in order to ascertain as to who had
been set up as a candidate by the Congress Party.
11. The Election Symbols (Reservation and Allotment) Order, 1968 has been made in
exercise of power conferred by Article 324 of the Constitution read with Section 29A of the
Representation of the People Act, 1951 and Rules 5 and 10 of the Conduct of Election Rules,
1961 and all other powers enabling it in this behalf by the Election Commission of India. In
Sadiq Ali v. Election Commission of India [AIR 1972 SC 187] the Court explained the
reasons which led to the introduction of the symbols and it was said that the object is to
ensure that the process of election is as general and fair as possible and that no elector should
suffer from any handicap in casting his vote in favour of a candidate of his choice. In Roop
Lal Sathi v. Nachhattar Singh [AIR 1982 SC 1559] it has been held that the Symbols Order
is an order made under the Act.
12. Paras 13 and 13A of the Symbols Order lay down the mechanism for ascertaining
when a candidate shall be deemed to be set up by a political party and also the procedure for
substitution of a candidate. The opening part of para 13 says in unequivocal terms that for the
purpose of an election for any Parliamentary or Assembly Constituency a candidate shall be
deemed to be set up by a political party if and only if the conditions mentioned in sub-
paragraphs (a) to (e) are satisfied. Para 13A lays down the procedure for substitution of a
candidate, and also the requirements of a revised notice in Form B. The second proviso to this
paragraph takes care of a situation where more than one notice in Form B is received by the
Returning Officer and the political party fails to indicate in such notices in Form B that the
earlier notice or notices have been rescinded. Thus, paras 13 and 13A are exhaustive and lay
down the complete procedure for determining whether a candidate has been set up by a
political party. The Rule laid down in Taylor v. Taylor [1876 (1) Ch.D. 426] that where a
power is given to do a certain thing in a certain way, the thing must be done in that way or not
at all and that other methods of performance are necessarily forbidden was adopted for the
first time in India by the Judicial Committee of the Privy Council in Nazir Ahmad v. King
Emperor [AIR 1936 PC 253]. The question for consideration was whether the oral evidence
of a Magistrate regarding the confession made by an accused, which had not been recorded in
accordance with the statutory provisions viz. Section 164 Cr.P.C. would be admissible. The
First Class Magistrate made rough notes of the confessional statements of the accused which
he made on the spot and thereafter he prepared a memo from the rough notes which was put
 269

in evidence. The Magistrate also gave oral evidence of the confession made to him by the
accused. The procedure of recording confession in accordance with Section 164 Cr.P.C. had
not been followed. It was held that Section 164 Cr.P.C. having made specific provision for
recording of the confession, oral evidence of the Magistrate and the memorandum made by
him could not be taken into consideration and had to be rejected. In State of U.P. v. Singhara
Singh [AIR 1964 SC 358] a Second Class Magistrate not specially empowered, had recorded
confessional statement of the accused under Section 164 Cr.P.C. The said confession being
inadmissible, the prosecution sought to prove the same by the oral evidence of the Magistrate,
who deposed about the statement given by the accused. Relying upon the rule laid down in
Taylor v. Taylor and Nazir Ahmad v. King Emperor it was held that Section 164 Cr.P.C.
which conferred on a Magistrate the power to record statements or confessions, by necessary
implication, prohibited a Magistrate from giving oral evidence of the statements or
confessions made to him. This principle has been approved by this Court in a series of
decisions and the latest being by a Constitution Bench in Commissioner of Income Tax v.
Anjum M.H. Ghaswala [(2002)1 SCC 633 (para 27)]. Applying the said principle, we are of
the opinion that the question as to who shall be deemed to have been set up by a political
party has to be determined strictly in accordance with paras 13 and 13A of the Symbols Order
and extrinsic evidence cannot be looked into for this purpose unless it is pleaded that the
signature of the authorised person on Form B had been obtained from him under threat or by
playing fraud upon him. Where signature is obtained under threat or by playing fraud, it will
be a nullity in the eyes of law and the document would be void.
13. The issue can be examined from another angle. In a case where more than one notice
in Form B has been received by the Returning Officer in respect of two or more candidates
and the political party fails to indicate in such notices that the earlier notice or notices in Form
B has or have been rescinded, the decision of controversy by extrinsic evidence would make
the second proviso to para 13A wholly redundant. It is well settled principle of interpretation
that the legislature is deemed not to waste its words or to say anything in vain. The Courts
always presume that the legislature inserted every part of the Statute for a purpose and the
legislative intention is that every part of the Statute should have effect.
14. If instead of deciding the matter in accordance with paras 13 and 13A of the Symbols
Order, it is decided on the basis of extrinsic evidence (oral or documentary) given subsequent
to the last date of filing of nomination paper, it is capable of good deal of misuse.
Governments are sometimes formed with razor thin majority or with the support of a small
splinter group or of independent candidates. A political party may adopt a device of filing
nomination papers of two candidates. If the candidate of the party wins well and good, but if
the candidate loses, the other candidate whose nomination paper would have been rejected
may file an election petition, lead extrinsic evidence to show that he was the real candidate of
the party and thereby get the election of the returned candidate set aside.
15. An election is not just a contest between two persons. The whole constituency is
involved in the election process which has to send its representative to the Assembly or
Parliament. The entire governmental machinery has to work for smooth holding of the
election and huge expenditure is incurred from the public exchequer. The date of polling is
declared a public holiday when all government offices, commercial establishments and
270

institutions are closed, resulting in loss of productivity. Public interest demands that there
should be no vagueness or uncertainty regarding the candidature of a person seeking to
contest the election as a candidate of a recognised political party. Therefore, this exercise
should be done strictly in accordance with paras 13 and 13A of the Symbols Order and
extrinsic evidence given in derogation thereof cannot be looked into.
16. There is no dispute that along with his nomination paper which was filed at 2.50 p.m.
on 3.2.2000 Bachan Singh had submitted Forms A and B and thereafter no further notice in
Form B was received by the Returning Officer. Shri Motilal Vora, General Secretary of the
Congress Party had issued Form A in the name of Shri Bhupinder Singh Hooda authorising
him to intimate the names of the candidates to be set up by the Congress Party in the election.
This Form contained the signature of Shri Motilal Vora and also three signatures of Shri
Bhupinder Singh Hooda. In Form B it was mentioned that the notice in Form B given earlier
in favour of Kamal Sharma is rescinded and this was signed in ink by Shri Bhupinder Singh
Hooda. Therefore, in terms of paras 13 and 13A of the Symbols Order Bachan Singh became
the candidate of the Congress Party. In his order dated 5.2.2000 passed by the Returning
Officer, he said that Bachan Singh had submitted Forms A and B at 2.50 p.m. on 3.2.2000 and
thereafter no other nomination paper or Form had been submitted by any person and neither
Kamal Sharma nor Shri Hooda had raised any objection regarding the signature on Form B
and the only objection was that the same did not contain the seal of the Congress Party. It
being not a defect of substantial character, the revised Forms A and B submitted by Bachan
Singh will have to be accepted and accordingly Bachan Singh shall be treated as the candidate
of the Congress Party. In pursuance of the Order passed by the Chief Election Commissioner
on 7.2.2000 the Returning Officer heard the matter again where both the parties appeared with
their respective counsel and Shri Hooda was also present. Shri Hooda admitted his signature
on Form B submitted by Bachan Singh but stated that he had instructed the person concerned
not to give the said Form to Bachan Singh till he gave his consent for the same on telephone
and that he never gave any such consent. He also said that as the said Form B did not bear the
seal of the Congress Party, it was liable to be rejected and Kamal was the official candidate of
the Congress Party. The Returning Officer held that the acceptance of signature on Form B by
Shri Hooda established that the same had been issued by him and the explanation offered by
him for treating Kamal as the official candidate, was an internal matter of the Congress Party.
He accordingly held that Form B submitted by Bachan Singh was perfectly valid and
accordingly he shall be treated as the official candidate of the Congress Party and
consequently the nomination paper of Kamal Sharma was rightly rejected. We are of the
opinion that the view taken by the Returning Officer in his orders dated 5.2.2000 and
8.2.2000 being in accordance with law was perfectly correct.
17. Learned counsel for the respondents has laid great stress upon the fact that there was
no seal of Congress Party on Form B which was submitted by Bachan Singh to the Returning
Officer and consequently his nomination paper was invalid. It may be noticed that para 13 of
the Symbols Order does not prescribe that Form B should also contain the seal of the party. In
fact, it lays emphasis upon the signature of the person authorised by the party and says that
the same should be in ink and that no fascimile signature or signature by means of rubber
stamp, etc. shall be accepted and no form transmitted by fax shall be accepted. In the
 271

proforma of Form B given in the Symbols Order a note has been appended at the end of the
Form which reads as under:

N.B.
1. This must be delivered to the Returning Officer not later than 3 p.m. on the last
date for making nominations.
2. Form must be signed in ink by the office bearer(s) mentioned above. No
fascimile signature or signature by means of rubber stamp, etc., of any office bearer
shall be accepted.
3. No form transmitted by fax shall be accepted.
4. Para 2 of the Form must be scored off, if not applicable, or must be properly
filled, if applicable.
The Form B which has been submitted by Kamal Sharma no doubt bears seal of the Congress
Party, which has been done by an ordinary rubber stamp with the commonly used blue ink
pad and there is nothing special about it. Such a seal can easily be prepared or procured by a
little effort. It is not a type of seal which may be difficult to emulate and is kept in a safe
custody under the charge of a responsible person, which may not be available to anyone.
What is important and decisive is the signature in ink of the authorised person and not the seal
of the party which can be made by an ordinary rubber stamp by any one. Section 36(4) of the
Act lays down that the Returning Officer shall not reject any nomination paper on the ground
of any defect which is not of a substantial character. The absence of the seal of the Congress
Party in the nomination paper of Bachan Singh cannot be said to be a defect of a substantial
character so as to render it invalid.
18. The learned counsel for the respondent has submitted that Form B of Bachan Singh
did not reach the office of Chief Electoral Officer and, therefore, there was no valid
nomination of his. The High Court has gone to the extent of saying that though Bachan Singh
had submitted Form A and Form B along with his nomination paper before the Returning
Officer but no Form A in respect of his candidature was submitted by him to the Chief
Electoral Officer and, therefore, the same would not have the effect of rescinding the
candidature of Kamal Sharma. Learned counsel for the respondent has also referred to the
amendment in Handbook for Returning Officers by which para 10.3(i) was substituted by the
following sub-para:
Nomination paper filed by a candidate in which he has claimed to have been set
up by a recognised National or State Party and which is subscribed by only one
elector as proposer will be rejected, if a notice in writing to that effect has not been
delivered to the Returning Officer of the Constituency and the Chief Electoral Officer
of the State by an authorised office- bearer of that political party by 3.00 P.M. on the
last date for making nominations (Notice in Form 'A' is required to be submitted to
the Chief Electoral Officer and the Returning Officer concerned and notice in Form
'B' is to be submitted to the Returning Officer).
272

On the basis of the above amendment of the Handbook it has been urged that Form B was
also required to be submitted to the Chief Electoral Officer and as the same had not been done
by Bachan Singh, his candidature could not be regarded as valid.
19. We are unable to accept the submission made. The requirement of paras 13 and 13A
of the Symbols Order is that Form B should be submitted to the Returning Officer. There is
no requirement of the submission of the said Form to the Chief Electoral Officer. The
Handbook for Returning Officers contains instructions which have been issued by the
Election Commission for the smooth holding of the election and being merely instructions
cannot override the provisions of the Statute, Rules or the Order. In fact in the very first para
of the first page of the Handbook in Chapter I titled as "PRELIMINARY" it is written as
under:
However, please note that this Handbook cannot be treated as exhaustive in all
respects and as a substitute for various provisions of election law governing the
conduct of election.
The language used in the bracket in the substituted sub-para 10.3(i) clearly mentions that
notice in Form B is to be submitted to the Returning Officer alone, which is also the mandate
of para 13(b) of the Symbols Order. The requirement of para 13(d) of the Symbols Order is
that the party has to communicate the name and specimen signature of the authorised person
in Form A to the Returning Officer of the Constituency and to the Chief Electoral Officer of
the State and admittedly this had been done.
20. In view of our finding that Form B submitted by Bachan singh was perfectly valid and
as the same was submitted in the last at 2.50 p.m. on 3.2.2000 and it contained a clear recital
that notice in Form B given earlier in favour Kamal Sharma is rescinded, he became the
candidate of the Congress Party. The nomination paper of Kamal Sharma was, therefore,
rightly rejected. The appeal consequently deserves to be allowed and the High Court
judgment is liable to be set aside. However, as the learned counsel have made submissions on
the merits of the case, we will also examine whether the election petitioner has been able to
establish the case set up by him.
21. Learned counsel for the respondent has submitted that Central Election Committee of
the Congress Party had selected the candidates for contesting the election and from 50-
Safidon Assembly Constituency, the name of Kamal Sharma had been decided. For this
reliance is placed on the testimony of PW4 Punnu Ram who claims to be working as clerk in
the office of Haryana Pradesh Congress Committee since 1970 and PW5 Shri Bhupinder
Singh Hooda. PW4 has deposed that the parliamentary body of All India Congress Committee
selects the candidates while PW5 has deposed that the candidature is finally decided by the
Central Election Committee of the Congress Party. PW4 has proved a list Ex.PW.4/C of
candidates dated 2.2.2000 which bears the signature of Shri Oscar Fernades, General
Secretary, AICC. At the top of the list it is mentioned - "AICC Press Release". It is not an
original copy but a photocopy. The case of the appellant is that the aforesaid list was not a
final list but was some kind of a tentative list and subsequently the Central Election
Committee of the Congress Party decided the candidature of Bachan Singh Arya. PW2 Ravi
Shankar, Election Kanungo, District Election Office, Jind has proved a list of the candidates
 273

which was submitted by Bachan Singh before the Returning Officer and is marked as
Ex.PW2/S. In this list the name of Bachan Singh Arya is shown as a candidate for 50-Safidon
Assembly Constituency. This list also bears the seal of Indian National Congress. It is
important to note here that in the list Ex.PW4/C, the names of the candidates for three
Constituencies, viz., Nos.2-Naraingarh, 53-Ballabhgarh and 54-Palwal were not mentioned
and for Constituency no.51 - Faridabad, the name of Gyan Chand was shown. However, the
list PW2/S, wherein the name of Bachan Singh Arya has been shown, is a complete list of all
the 90 Constituencies wherein the names of the candidates for Constituency Nos.2, 53 and 54
have also been mentioned. The name of A.C. Chaudhary is shown for Constituency no.51 -
Faridabad after deletion of the name of Gyan Chand. Both PW4 Punnu Ram and PW5 Shri
Bhupinder Singh Hooda have admitted in their statement that the candidature of Gyan Chand
was changed and finally A.C. Chaudhary had contested the election as an official candidate
for the Congress Party for 51-Faridabad Constituency. PW5 has further admitted that three
persons whose names are mentioned in the list Ex.PW2/S for Constituency Nos. 2, 53 and 54
actually contested the election as the official candidates for Congress Party. This conclusively
establishes that the list dated 2.2.2000 (Ex.PW4/C) wherein the name of Kamal Sharma is
mentioned as a candidate, was not the final list but was some sort of a tentative list and the list
was finalised later on. Both the lists, Ex.PW4/C and PW2/S prima facie appear to have been
prepared on the same computer as the letters and method of typing are exactly similar. At the
top of Ex.PW2/S it is mentioned –“The Central Election Committee has selected the
following candidates for the ensuing Assembly Elections from Haryana”. There appears to be
no reason to doubt the correctness of list Ex.PW2/S which shows the name of Bachan Singh
Arya and not that of Kamal Sharma. When Kamal Sharma was confronted with the situation
that in the lists submitted by him (Ex.PW4/C) names of only 87 candidates were mentioned,
he replied that he was not aware whether there were three constituencies regarding which
decision had not been taken. When further confronted, he stated that it is true that there were
90 constituencies in Haryana. Regarding 51-Faridabad Constituency, he mentioned the name
of Gyan Chand Ahuja as Congress candidate. When further cross-examined, he said that he
cannot say whether Shri A.C. Chaudhary had fought the election. This shows that he has scant
regard for truth and can go to any extent for supporting the list filed by him.
22. It is pleaded by Kamal Sharma in the election petition that after conclusion of the
scrutiny proceedings, the Returning Officer passed a detailed order on 5.2.2000 rejecting his
nomination paper and, thereafter he preferred a petition before the Chief Election
Commission, New Delhi on 6.2.2000. The Election Commission vide its order dated 7.2.2000
accepted his petition and set aside the order dated 5.2.2000 of the Returning Officer and
further directed him to hold fresh scrutiny on 8.2.2000 after giving notice and ensuring the
presence of Shri Bhupinder Singh Hooda. Learned counsel for the respondent has submitted
that when the re-scrutiny was done by the Returning Officer, Shri Bhupinder Singh Hooda
was present and he made a statement before him that though Form B submitted by Bachan
Singh contained his signature but the same was never validly issued by his office or by the
party and that Kamal Sharma was the official candidate of the Congress Party. It has been
urged that in view of this clear and categorical stand of Shri Bhupinder Singh Hooda, the
Returning Officer committed manifest error of law in maintaining his earlier order wherein
274

the candidature of Kamal Sharma had been rejected. The High Court while dealing with this
aspect of the case has observed that:
After the categorical stand adopted by Shri Hooda before the Returning Officer
and in view of the explicit directions issued by the Election Commission of India vide
order Ex.PW1/1 the Returning Officer had really no option but to accept the
statement of Shri Hooda and treat the petitioner as an official candidate of the
Congress Party.
After noticing the statement of Shri Bhupinder Singh Hooda, the High Court held as under:
The said function was apparently a quasi judicial function and once the rescrutiny
was ordered by the Election Commission of India and the same was conducted in the
presence of the various candidates and in the presence of the authorised person of the
Congress Party, namely, Shri Bhupinder Singh Hooda, then the Returning Officer
was expected to decide the matter keeping in view the various facts and
circumstances of the case and the documents on the record and the statement made by
Shri Hooda. Apparently, he has not done so. In this view of the matter the order dated
February 8, 2000 Ex.PW2/H passed by him, whereby the nomination papers of the
petitioner have been rejected, is clearly unsustainable in law and improper under the
circumstances of the case.
In order to appreciate the contention raised by the learned counsel and for judging the
correctness of the reasoning given by the High Court, it is necessary to refer to the order of
the Election Commission.
23. Kamal Sharma had presented a petition before the Chief Election Commissioner of
India on 6.2.2000 praying that the order of the Returning Officer dated 5.2.2000 may be set
aside, the objections raised by him be accepted and the candidature of Bachan Singh may be
set aside. It was further prayed that he may be declared as official candidate of the Congress
Party. The Election Commission passed a detailed order on the very next day i.e. on 7.2.2000
and after noticing the submissions made in the petition issued a direction to the Returning
Officer to conduct a re-scrutiny. The operative portion of the Order reads as under:
Now, therefore, the Election Commission hereby directs that the Returning
Officer for the said 50-Safidon Constituency shall cause a re-scrutiny of the
nomination papers of the aforesaid candidates, namely, Shri Kamal and Shri Bachan
Singh in accordance with the relevant provisions of the Constitution, Representation
of the People Act, 1951 and the Election Symbols (Reservation and Allotment) Order,
1968 and the pronouncements of the Hon'ble Supreme Court, particularly the
pronouncement in the case of Rakesh Kumar issue as to who should be treated as the
official candidate of the Indian National Congress. The Returning Officer on re-
scrutinising the nomination papers of the aforesaid candidates, shall also take further
consequential steps as may become necessary, by treating all earlier proceedings in
relation to said candidates, as ab initio void and redraw the list of validly nominated
candidates.
For passing the aforementioned order, the Election Commission basically relied upon a
decision of this Court in Rakesh Kumar v. Sunil Kumar [(1999) 2 SCC 489]. It is important
 275

to note that in this case the last date of filing nominations was 20.1.1997 and the date of
polling was 6.2.1997 and, therefore, the case related to a period prior to the amendment of
Symbols Order on 20.5.1999 by which para 13A has been added. Here, two persons, namely,
Sunil Kumar and Veer Abhimanyu had submitted Forms A and B claiming to be candidate of
Bhartiya Janta Party. At the time of scrutiny, the Returning Officer suo moto raised an
objection to the effect that since BJP had set up more than one candidate, therefore, none
could be treated as a candidate of said political party and rejected the nomination papers of
both Sunil Kumar and Veer Abhimanyu. Sunil Kumar made an application stating that he was
the official candidate of the party and he requested for 24 hours time to produce an official
confirmation of his candidature but the application was rejected and no time was given,
though no other candidate (including Veer Abhimanyu) had raised any objection. It was in
these circumstances that it was held by this Court that the Returning Officer ought to have
granted him time to meet the objection in the interest of justice and fair play. This authority
can have no application now on account of amendment to the Symbols Order which lays
down a complete procedure for acceptance of nomination paper of a candidate set up by a
recognised political party and substitution of a candidate. The factual situation here is also
different.
24. It may be noticed that the petition by Kamal Sharma was filed on 6.2.2000 and the
same was allowed by the Election Commission very next day i.e. on 7.2.2000 by which a
direction was issued to the Returning Officer to hold a fresh scrutiny. There is nothing on
record to indicate nor it appears probable that before passing the order, the Election
Commission issued any notice to Bachan Singh. Apparently the order was passed behind his
back. The order of the Election Commission to the effect that the Returning Officer shall take
further consequential steps as may become necessary, by treating all earlier proceedings in
relation to said candidates, as ab initio void and redraw the list of validly nominated
candidates could not have been passed without giving an opportunity of hearing to Bachan
Singh. That apart, it has been held by a catena of decisions of this Court that once the
nomination paper of a candidate is rejected, the Act provides for only one remedy, that
remedy being by an election petition to be presented after the election is over, and there is no
remedy provided at any intermediate stage. Therefore, the order passed by the Election
Commission on 7.2.2000 was not only illegal but was also without jurisdiction and the
respondent Kamal Sharma can get no advantage from the same. The inference drawn and the
findings recorded by the High Court on the basis of the order of the Election Commission,
therefore, cannot be sustained.
25. Shri Bhupinder Singh Hooda has admitted in his cross-examination that Bachan Singh
Arya had contested the election from 50-Safidon Assembly Constituency and had won. He
was a Minister when the Congress Party was in power. He had also contested in the year 1996
as a Congress candidate but had lost. The statements of PW4 and PW5 show that it is the
Central Election Committee of the Congress Party which is the final authority to select a
candidate to contest the election. Shri Bhupinder Singh Hooda, being President of the Party,
was a member of the Central Election Committee. He, no doubt, supported the candidature of
Kamal Sharma but no other member of the Central Election Committee was examined as a
witness to prove that he was the final choice of the party. Shri Hooda has admitted that the
276

name of Bachan Singh was under consideration. Before the Returning Officer he had stated
that though Form B of Bachan Singh contained his signature but he had instructed that the
same should not be issued to him till he gave instructions in that regard on telephone which he
never gave, which also shows that there was uncertainty about the candidature. The success or
defeat of a political party is good deal attributed to the President of the party. Shri Hooda
being the President of Haryana Pradesh Congress Party would certainly be interested in
having the election of the winning candidate of the rival party set aside, more so here when he
seems to be very much interested in Kamal Sharma. There can be differences amongst the
members regarding the choice of a candidate. In this background, Kamal Sharma should have
examined other members of the Central Election Committee of Congress Party to substantiate
his case that the Party had finally selected him as its candidate and his candidature was never
changed. The appellant being of a rival party Lok Dal and having defeated the Congress
candidate could not have led this kind of evidence.
26. The election petitioner has examined in all six witnesses, out of whom PW1 Bernard
John is Under-Secretary of the Election Commission of India, PW2 Ravi Shankar is the
Election Kanungo in the District Election Office, Jind and PW3 Som Nath Luthra is the
Assistant Chief Election Officer, Haryana and these witnesses have no personal knowledge of
the controversy raised but have merely proved some documents. Apart from himself, the
election petitioner has strongly relied upon the testimony of PW4 Punnu Ram and PW5 Shri
Bhupinder Singh Hooda. PW4 Punnu Ram, who claims to be Clerk in the office of Haryana
Pradesh Congress Committee since 1970, went to the extent of denying the signature of Shri
Bhupinder Singh Hooda in Form B which was submitted by Bachan Singh though Shri Hooda
himself admitted his signature on the said form at three different places during the course of
his cross-examination. When questioned, he stated in his cross-examination that he did not
know whether Bachan Singh had earlier contested election from 50-Safidon Constituency or
had ever fought election as a candidate of the Congress Party. He further stated that he did not
know whether Bachan Singh had ever remained a Minister. It is not possible to believe that a
person who had been serving as a Clerk in the Congress office at Chandigarh for 30 years
would not be knowing that Bachan Singh had earlier contested election as a Congress
candidate twice and had remained a Minister. This shows that he has scant regard for truth
and can go to any extent to help the election petitioner. It will, therefore, not be safe to rely
upon his testimony. Shri Bhupinder Singh Hooda being President of Haryana Congress Party
would not be favourably inclined towards the appellant who is of the rival Lok Dal Party and
would certainly be interested in the success of the Election Petition so that the election of the
appellant may be set aside. He is, therefore, not an independent witness. The election
petitioner has thus not led any independent evidence of unimpeachable character on which
implicit reliance may be placed.
28. The appeal is, therefore, allowed and the judgment and order dated 8.5.2003 of the
High Court is set aside. The election petition filed by Kamal Sharma is dismissed. The
appellant will be entitled to his costs both here and in the High Court.

*****
 277

Manubhai Nandlal Amersey v. Popatlal Manilal Joshi

AIR 1969 SC 734

BACHAWAT, J. - This appeal is directed against a judgment of single judge of the Gujarat
High Court setting aside the election of the appellant from the Banaskantha Parliamentary
constituency. At the last general election to the Lok Sabha from the Banaskantha constituency
in Gujarat there were three contesting candidates. The appellant, the Swatantra Party
candidate, secured 1,10,028 votes. Respondent 2, the Congress party candidate secured
1,05,621 votes. Respondent 3, an independent candidate secured 14,265 votes. The appellant
was declared elected.
2. The election petition was filed by respondent 1, an elector in the constituency.
Respondent 1 alleged a number of corrupt practices on the part of the appellant or his election
agents, but at the trial, he pressed only the charge of corrupt practice under section 123 (2)
proviso (a) (ii) of the Representation of the People Act, 1951. In the petition the charge was
that several persons with the consent of the appellant or his election agents induced or
attempted to induce the electors to believe that if they voted for the Congress Party candidate
they would become the objects of divine displeasure and spiritual censure. In the particulars
of this charge it was alleged that in the public meetings held at Amirgadh, Ikbalgadh, Wav,
Laxmipura, Tharad Bhabhar and other places one Shambhu Maharaj told the electors that if
they voted for the Congress candidate they would commit the sin of cow slaughter and urged
them in the name of mother cow to take a vow not to vote for the congress candidate with the
result that several members of the audience publicly took the vow.
3. At a late stage of the trial on March 7, 1968, the High Court gave leave to respondent
no. 1 to amend the petition by adding fresh particulars of the corrupt practice. The substance
of the new charge was that at those meetings Shambhu Maharaj induced or attempted to
induce the electors to believe that their religious head Jagadguru Shankracharya had
commanded them not to vote for the Congress and that contravention of his command would
be a sin and would be visited with spiritual censure and divine displeasure. The High Court
found that the aforesaid practice was committed by Shambhu Maharaj with the consent of one
Punambhai, the election agent of the appellant, and declared the appellant's election to be
void.
4. The appellant challenges the legality of the order passed by the High Court on March 7,
1968 allowing the amendment. The election petition was filed on April 10, 1967. The
appellant filed his written statement on June 1; on September 9, the High Court gave leave to
respondent 1 to amend the petition, by adding the charge that certain persons were threatened
that they would commit the sins of gohatya, brahmahatya and sadhuhatya, if they worked for
the Congress candidate. The order disallowed amendments seeking to introduce, charges of
appeal to voters in the name of religion under Section 123 (3). The appellant filed his
additional written statement on October 19. Issues were framed on November 30. Respondent
1 filed his list of witnesses on January 11, 1968. On February 21, the trial started and P.W. 1,
P.W. 2, P.W. 3 and P.W. 4 were examined. P.W. 4, Ram Swarup was a witness with regard to
the meeting at Amirgadh. The issues were amended on March 1, so as to make it clear that
there was no charge of any corrupt practice under Section 123(3). On the same date,
278

respondent 1 was examined as P.W. 5. On March 2, P.W. 6, P.W. 7, P.W. 8 and P.W. 9 were
examined. P.W. 7 and P.W. 8 spoke about the meetings at Palanpur and Bhabhar. P.W. 9
Bhogilal spoke about the meeting at Ikbalgadh. On March 4, P.W. 10 and P.W. 11 were
examined and spoke, about the meetings at Wav and Laxmipura. On the same day, P.W. 12,
S. P. Pandya, a sub-inspector of police at Palanpur, and P.W. 13, C.B. Barot, a short-hand
writer were examined. The examination of Barot was concluded on March 6. Barot proved
that he took shorthand notes of the speeches of Shambhu Maharaj at Ikbalgadh, Amirgadh,
Bhabhar, Laxmipura, Wav and Tharad and sent reports of the speeches to S. P. Pandya. On
March 6, P.W. 14 and P.W. 15 were examined. On March 5, respondent 1 filed, an
application for leave to amend the petition by adding portions of the speeches which referred
to the command of Shankracharya not to vote for the Congress and the consequences of not
obeying the command. The application was allowed on March 7, 1968. The trial was, then
adjourned and started again on April 8. Between April 8 and April 15, P.W. 17, P.W. 18,
D.W. 1 and D.W. 2 were examined. The judgment was delivered on April 22 and 23.
5. The first question is whether the trial judge should have allowed the amendment.
Section 83(1)(b) provides that:
An election petition shall set-forth full particulars of any corrupt practice that the
petitioner alleges, including as full a statement as possible of the names of the parties
alleged to have committed such corrupt practice and the date, and place of the
commission of each such practice.
The section is mandatory. Where a corrupt practice is charged against the returned candidate
the election petition must set-forth full particulars of the corrupt practice so as to give the
charge a definite character and to enable the court to understand what the charge is. The
charge must be substantially proved as laid and evidence cannot be allowed to be given in
respect of a charge not disclosed in the particulars. On a charge of telling the electors that by
giving their vote to the Congress candidate, they would commit the sin of gohatya, evidence
cannot be led to prove the charge of telling them that they would commit a sin of
brahmahatya or the sin of disobeying the command of their religious leader. Section 86(5)
allows amendment of the particulars. It provides that:
The High Court may, upon such terms as to costs and otherwise, as it may deem
fit, allow the particulars of any corrupt practice alleged in the petition to be amended
or amplified in such manner as may in its opinion be necessary for ensuring a fair and
effective trial of the petition, but shall not allow any amendment of the petition which
will have the effect of introducing particulars of a corrupt practice, not previously
alleged in the petition.
In Harish Chandra Bajpai v. Triloki Singh [(1957) SCR 371] the Court held that
though under the English law the petitioner was not obliged to give the particulars of the
corrupt practice in his petition the difference was a matter of form and not of substance and
that under Section 83(3) as it stood before 1955, the Court could allow an amendment
introducing fresh instances of the corrupt practice alleged in the petition. Referring to the
English practice the Court observed at page 382 :
 279

It is sufficient if the particulars are ordered to be furnished within a reasonable

time before the commencement of the trial.
Section 83(3) has been repealed and is now replaced by section 86(5) which forbids any
amendment introducing particulars of a corrupt practice not previously alleged in the petition.
Assuming that the amendment of March 7, 1967 was permissible under section 86(5), the
question is whether the High Court rightly allowed it. Normally an application for amendment
under section 86(5) should be made within a reasonable time before the commencement of the
trial. The Court has power to allow an amendment even after the commencement of the trial,
but as a rule leave to amend at a late stage should be given in exceptional cases where the
petitioner could not with reasonable diligence have discovered the new facts earlier.Leave to
amend will not be given if the petitioner is not acting in good faith or has kept back the facts
known to him before the trial started.
6. According to respondent 1 Shambhu Maharaj committed corrupt practice at election
meetings held at Ikbalgadh where P.W. 9 was present, Amirgadh where P.W. 4 was present
and at Wav where one Chotaji Bhattji was present and that he came to know of the corrupt
practices from those persons. All the meetings are referred to in the election petition. If
Shambhu Maharaj had told the electors that Sri Shankracharya had commanded them not to
vote for the Congress candidate and that disobedience of his command would be sinful, P.W.
4 and Chotaji Bhattji must have informed respondent 1 of this corrupt practice before April
10, 1967 when the election petition was filed. No explanation is given as to why respondent 1
withheld this information in the petition. Respondent 1 now says that on April 17, 1967 he
applied for certified copies of the reports of C. B. Barot to the Deputy Inspector-General of
Police, C.I.D., Ahmedabad but the application was rejected on May 14, 1967. Assuming that
he could not get certified copies of the reports, he could set-forth in the petition the substance
of the charge with regard to the command of Sri Shankracharya from the information supplied
by his informants. He knew of the reports of C. B. Barot before April 17, 1967. Immediately
after filing the election petition he could subpoena the reports and under orders of the Court
he could inspect them long before the trial started. He was aware that the charge of telling the
electors that they would commit the sin of gohatya was quite different from the charge of
telling them that they would commit the sin of brahmahatya or the sin of disobeying the
command of their religious leader Sri Shankracharya. On September 25, 1967, he obtained an
order giving him leave to amend the petition by adding the charge with regard to the sins of
brahmahatya and sadhuhatya, but he deliberately refrained from adding the charge with
regard to the sin of disobeying the command of Sri Shankracharya. The trial commenced on
February 29, 1968. On that date P.W. 4 said that at the Amirgadh meeting Shambhu Maharaj
told the electors that he had brought a mandate from Jagadguru Shankracharya. On an
objection being raised by the appellant's counsel Mr. Mehta, counsel for respondent 1, agreed
that the statement of P.W. 4 would not be treated as part of the evidence on the record.
Thereafter, the trial proceeded and 11 more witnesses were examined on the footing that
respondent 1 would not rely on the charge with regard to the command of Jagadguru
Shankracharya. On that footing the appellant's counsel adopted a definite line of cross-
examination. On March 4, he consented to the marking of the full reports of the speeches of
Shambhu Maharaj as exhibits and on March 5, he extracted an admission from Barot that the
280

witness had taken verbatim notes of the speeches of Shambhu Maharaj. Counsel adopted this
line of cross-examination because he took the stand that the speeches did not prove the
corrupt practice alleged in the petition. The application, for amendment was filed on March 5
and was allowed on March 7. The order allowing the amendment has resulted in manifest
injustice to the appellant. His counsel could not thereafter take the stand that the reports had
been fabricated at the instance of the Congress party, respondent 1 moved the application for
amendment in bad faith at a very late stage of the trial.
7. Under section 116-A an appeal lies to this Court on any question whether of law or fact
from the order of the High Court. The procedure in appeal is regulated by section 116 C. All
the provisions of the Code of Civil Procedure including section 105 apply to the appeal, and
any error in an order of the Trial court affecting the decision of the case may be taken as a
ground of objection in the appeal. In an appeal under section 116A the whole case is within
the jurisdiction of this Court. Normally the Court does not interfere with the Judge's discretion
in granting amendments except on grounds of law but where, as in this case, the order has
resulted in manifest injustice, the Court has the power and the duty to correct the error. We,
therefore, hold that the order of the trial judge allowing the amendment was erroneous and
must be set aside.
8. Respondent 1 proved six speeches of Shambhu Maharaj. He did not rely in the trial
court on the speeches at Laxmipura, Bhabhar and Tharad. Mr. Gokhale stated that he did not
rely on these speeches for any purpose whatsoever. Accordingly, those speeches were not
read in this Court. There is no charge against the appellant on the ground of appeal to the
electors, on the ground of religion. The only charge against him is that in his speeches at
lkbalgadh, Amirgadh and Wav, Shambhu Maharaj with the consent of his election agent
Punambhai told the electors that "if they voted for the Congress party candidates the voters
would commit the sin of cow slaughter (gaumata vadh)." Respondent 1 has not proved the
charge that the electors were urged in the name of mother cow to take a vow not to vote for
the Congress party candidates, with the result that several members of the audience publicly
took the vow. The Ikbalgadh speech (Ex. B1) and the Amirgadh speech (Ex. B3) were
delivered on February 8, 1967. The Wav speech (Ex. B4) was delivered on February 9, 1967.
There was then an acute political controversy with regard to the total ban on cow slaughter.
Section 5(1) of the Bombay Animal Preservation Act, 1954 (Bombay Act no. LXXII of 1954)
as amended by Gujarat Act No. XVI of 1961, there was a total ban on cow slaughter in
Gujarat. But there was no absolute ban on cow slaughter in several other states. The
Swatantra party was agitating for a total ban on cow slaughter throughout India. Public
criticism of the Congress party for not abolishing cow slaughter throughout the country was
permissible and legitimate. But the criticism ceases to be legitimate if the speaker commits
the corrupt practice of undue influence under section 123(2), that is, if he interferes or
attempts to interfere with the free exercise of electoral right. Under section 123(2) proviso (a)
clause(ii) there is such undue influence if any person with the consent of the candidate or his
election agent induces or attempts to induce a candidate or an elector to believe that he, or any
person in whom he is interested, will become or will be rendered an object of divine
displeasure or spiritual censure. The actual effect of the speech is not material. Corrupt
 281

practice, is committed if the speech is calculated to interfere with the free exercise of electoral
right and to leave no choice to the electors in the matter.
9. In considering the speeches the status of the speaker and the character of the audience
are relevant considerations. Shambhu Maharaj was a kirtankar of repute and well known and
respected for his lectures on Hindu religion. The audience consisted mostly of illiterate and
orthodox Hindus of the rural areas, adivasis and rabaris belonging to the scheduled tribes and
scheduled castes. In this background, let us now consider the speeches. Respondent 1 charges
corrupt practice in respect of 4 passages in the Ikbalgadh speech (Ex. B1), passages in the
Wav speech (Ex. B4) and 3 passages in the Amirgadh speech (Ex. B3). The learned trial
judge found that the corrupt practice was not committed by the 1st and 2nd passages in Ex.
B1, the 1st, 2nd and 3rd and 6th passages in Ex. B4 and the 1st passage in Ex. B3.
10. But the learned Judge held that 3rd and 4th passages in Ex. B1 and the 4th and 5th
passages in Ex. B4 amounted to corrupt practice as the electors were told that Sri
Shankracharya had commanded them not to vote for the Congress and that if they disobeyed
his command they would incur divine displeasure and spiritual censure. We have disallowed
the amendment introducing this charge and we must therefore set aside the finding of the
learned judge with regard to those passages. We find that the passages do not show any
corrupt practice as alleged in the petition.
11. In the 2nd passage, in the, Amirgadh speech (Ex. B3) the speaker referred to the ban
on cow slaughter in Pakistan, Afghanistan and Madhya Pradesh and said that the Swatantra
Party had promised to ban slaughter of cow progeny and exemption of land revenue. He also
said:
Sun rises and twenty two thousand cows are slaughtered. In Ahmedabad there is a
prohibition on cow slaughter but the slaughtering of calf and ox is continued. The
earth took the form of a cow and if the said 'Gaumata' or ox is slaughtered how earth
can be satisfied and so long as the earth is not satisfied how can there be fertility in
the earth.
In the third passage, the speaker said:
In the year 1942 sixteen lacs and in 1946 twenty four lacs and in 1947 after India
became separate and at present about 1 crore cows are slaughtered. You say whether
to vote for Congress is to become partner in sin or anything else. If you give co-
operation for good cause you may get good fruit and if you co-operate in committing
a sin you become a partner of sin. Why you become a partner of sin by giving votes
to Congress?
He then referred to the command of Sri Shankracharya that the electors should not vote for
the Congress party. But even apart from the command of Sri Shankracharya the electors are
distinctly told that though there was a ban on cow slaughter in Ahmedabad, the Congress was
permitting the slaughter of crores of cows elsewhere in India and was committing the sin of
gohatya and those who vote for the Congress would be partners in the sin. The dominant
theme of the speech was that those who commit the sin of gohatya would be visited with
divine displeasure. Having regard to the character of the audience, the speech was calculated
282

to interfere with the free exercise of electoral right. In Narbada Prasad v. Chhagan Lal [AIR
1969 SC 395], Hidayatullah, C.J., observed:
It is not necessary to enlarge upon the fact that cow is venerated in our country by
the vast majority of the people and that they believe not only in its utility but its
holiness. It is also believed that one of the cardinal sins is that of gohatya. Therefore,
it is quite obvious that to remind the voters that they would be committing the sin of
gohatya would be to remind them that they would be objects of divine displeasure or
spiritual censure.
In Encyclopaedia of Religion and Ethics, edited by James Hastings, vol. 4, pp. 225, 226, it is
stated:
A well known verse (Mahabharata, xiii. 74.4) says : 'All that kill, eat and permit
the slaughter of cows, rot in hell for as many years as there are hairs on the body of
the cow so slain.
Reverence for the cow has not diminished in modern times. It is well known that
the Hindus of the present day are filled with horror at the slaughter of the cow, which
is therefore prohibited in native States under treaties with the English.
According to B. N. Mehta's Modern Gujarati-English Dictionary, vol. 1, page 480, gohatya
(go, a cow + hatya, killing) means in Gujarat "slaughter of a cow; killing a cow, being one of
the five great sins according to Hindu scriptures which can be atoned for only with capital
punishment."
12. Accordingly, the offending passages in the Amirgadh speech fell within section
123(2) proviso (a)(ii). We are satisfied that Shambhu Maharaj spoke at the Amirgadh meeting
with the consent of Punambhai, the election agent of the appellant. Punambhai was present at
the Amirgadh meeting. He addressed the meeting before Shambhu Maharaj spoke. Shambhu
Maharaj addressed several other election meetings of the Swatantra Party. Punambhai issued
a pamphlet calling one of the meetings. P.W. 10 proved that he was asked by Punambhai to
call Shambhu Maharaj for addressing another meeting as the voters were uneducated and had
deep belief in religion. Punambhai accompanied Shambhu Maharaj from one place to another.
On February 8, 1967 he went with Shambhu Maharaj to the meeting at Ikbalgadh and
thereafter went to Amirgadh. On February 9, he went with Shambhu Maharaj to the meeting
at Wav. The offending passages of the speech at the Amirgadh meeting are integral parts of
the dominant theme of the sin of cow slaughter. They cannot be regarded as stray words
spoken by Shambhu Maharaj without Punambhai's consent. Punambhai did not raise any
objection to the impugned speeches at the meeting. He gave evidence in Court but did not say
that he was not a consenting party to the offending passages. We hold that the corrupt practice
under section 123(2) proviso (a)(ii) was committed at the Amirgadh meeting on February 8,
1967 with the consent of the election agent of the appellant.
13. In the result, the appeal is dismissed.
*****
 283

Ramesh Yeshwant Prabhoo (Dr.) v. Prabhakar Kashinath Kunte

(1996) 1 SCC 130

J.S. VERMA, J. - Both these appeals are under Section 116-A of the Representation of the
People Act, 1951 (hereinafter referred to as “the Act/R.P. Act”) against the judgment dated 7-
4-1989 of the Bombay High Court in Election Petition No. 1 of 1988 by which the election of
Dr Ramesh Yeshwant Prabhoo, the returned candidate from 38, Vile Parle Constituency to the
Maharashtra State Legislative Assembly, held on 13-12-1987, has been declared to be void on
the ground under Section 100(1)(b) of the Act. The appellant has been found guilty of the
corrupt practices prescribed by sub-sections (3) and (3-A) of Section 123 of the Act at the
election, in that he and his agent Bal Thackeray with his consent appealed for votes on the
ground of the returned candidate's religion and that they promoted or tended to promote
feelings of enmity and hatred between different classes of the citizens of India on the grounds
of religion and community. Consequently, Bal Thackeray, after a notice issued under Section
99 of the Act to him, has also been named for commission of these corrupt practices. Civil
Appeal No. 2836 of 1989 is by the returned candidate Dr. Ramesh Yeshwant Prabhoo and
Civil Appeal No. 2835 of 1989 is by Bal Thackeray against that judgment.
2. The said election was held on 13-12-1987 and the result was declared on 14-12-1987,
at which Dr Ramesh Yeshwant Prabhoo was declared to be duly elected. The charge of these
corrupt practices is based on three public speeches delivered by Bal Thackeray: on 29-11-
1987 at Parle (opposite Shiv Sena Shaka No. 84), on 9-12-1987 at Khar-Danda near Shankar
Temple, and on 10-12-1987 at Jaltaran Maidan, Vile Parle (East). The public speech given on
9-12-1987 has been held to amount to the corrupt practice under sub-section (3) of Section
123, while public speeches delivered on 29-11-1987 and 10-12-1987 have been held to be
corrupt practices under sub-sections (3) and (3-A) of Section 123 of the Act. The relevant
pleading relating to these corrupt practices is contained in paras 6 and 8 of the election
petition. Sub-paras (a) to (d) of para 6 relate to first speech, sub-para (e) of para 6 relates to
second speech and sub-para (f) of para 6 relates to third speech. Para 8 of the election petition
then says that returned candidate indulged in the corrupt practices provided by sub-sections
(3) and (3-A) of Section 123 of the Act and, therefore, his election is void.
3. After the election petitioner closed his evidence, the returned candidate Dr. Prabhoo
examined only himself in rebuttal. After close of the evidence of the parties and hearing
arguments of both sides, the High Court ordered issue of notice under Section 99 of the Act to
Bal Thackeray who filed an affidavit in reply to the notice. The election petitioner and his
three witnesses were recalled for cross-examination by counsel for the noticee, Bal
Thackeray. The noticee did not examine himself or any other witness in rebuttal. The decision
of the High Court is based on this material.
4. Dr. Prabhoo was set up as a candidate of the Shiv Sena which was then not a
recognised political party for purposes of the Legislative Assembly elections and, therefore,
Dr. Prabhoo's candidature was shown as “Shiv Sena — Independent”. Bal Thackeray is the
top leader of Shiv Sena and he participated in the election campaign of Dr. Prabhoo as the
main speaker in his capacity as the leader of Shiv Sena. The status of Bal Thackeray as the
top leader of Shiv Sena has never been disputed. The gist of election petitioner's case which
284

has been found proved by the High Court is that the three public speeches of Bal Thackeray in
the election campaign of Dr. Prabhoo were all in very intemperate language and incendiary in
nature, which were appeals to the voters to vote for Dr Prabhoo because of his religion, i.e.,
he being a Hindu, and the speeches also promoted or tended to promote enmity and hatred
between different classes of the citizens of India on the ground of religion. The High Court
has held this charge of the alleged corrupt practices proved against the returned candidate Dr
Prabhoo and Bal Thackeray. Accordingly, the election of the returned candidate has been
declared to be void on the ground contained in Section 100(1)(b) of the Act, and Bal
Thackeray has been named in accordance with Section 99 of the Act. Hence these appeals by
them.
5. The averments in para 6 of the election petition alleging the commission of corrupt
practices within the meaning of Section 123 of the Act are in sub-paras (a) to (f) which are as
under:
“(a) The petitioner states that Respondent 1 during his election campaign indulged in
corrupt practices by appealing himself, or by his election agents, or by his supporters with
his consent to vote for him and refrain from voting for other candidates on the grounds of
religion. The whole tenor of election propaganda of Respondent 1 was that he is a
candidate of Hindus and Hindus should vote for him alone. The details of this appeal are
given in the later part of this petition.
(b) Respondent 1, his election agents and his supporters with the consent of the
candidate Respondent 1 also indulged in corrupt practice by promoting and by attempting
to promote feelings of enmity and hatred between different classes of citizens of India on
grounds of religion, community and language. The examples of this corrupt practice are
also listed in the later part of this petition.
(c) The campaign for the election of Respondent 1 was headed by Shri Balasaheb
Thackeray, the leader of the Shiv Sena, who had put up Respondent 1 in this election.
Shri Thackeray addressed several meetings and also issued press statements during the
course of the election in question. Out of these meetings Shri Thackeray spoke on 29-11-
1987 at a meeting held at Shiv Sena Shaka No. 84 at Vile Parle, which took place from 9
p.m. to 12 midnight. In this meeting Shri Balasaheb Thackeray, Suryakant Mahadik,
Pramod Navalkar, Ramesh Mehta, Madhukar Sarpotdar and the candidate Respondent 1
Dr Ramesh Prabhoo himself were also present. Shri Thackeray uttered the following
words during this meeting. The words are quoted in Marathi and they are followed by the
English translation.
Translation: ‘We are fighting this election for the protection of Hinduism.
Therefore, we do not care for the votes of the Muslims. This country belongs to
Hindus and will remain so.’

Since the petitioner was all throughout in the constituency for his election campaign, he
came to know about the said meeting having been held and attended by Shri Bal
Thackeray. Subsequently, he also came to know about the speeches made in the meeting
from his friends and active workers of the Party. The petitioner has reliably learnt that the
police reporters also attended the meeting and they have taken down the report of the
 285

speeches made. The petitioner craves leave to call for the record of the speeches from the
Police Department and to prove the point by examining the police reporters who have
taken down the speeches. The petitioner craves leave to rely upon the said police report in
the custody of the Police. A report regarding the said meeting and the speeches appeared
in the newspaper Mumbai Sakal (a Marathi daily) dated 1-12-1987 with the photographs
under the title “Hindu Dev-Devtavareel Teeka Sahan Karnar Nahi — Thackeray” (We
will not tolerate the criticism of Hindu gods and goddesses — Thackeray). From the said
photograph it is clear that Respondent 1 was also present in the said meeting. Thus all the
utterances regarding the speeches made by Bal Thackeray to appeal to voters in the name
of Hindu religion are with the consent and connivance of the first respondent. The same
meeting was also reported in Sanj Tarun Bharat (an evening daily) dated 30-11-1987
with the photograph of Shri Thackeray, Respondent 1 and others on the dais. The said
photograph further shows that a banner was put up on the dais which reads as under:
Garva Say Kaho (OM) Ham Hindu Hai’
The said meeting was also reported in Sandhyakal, another Marathi daily, on 1-12-
1987. Hereto annexed and marked Exhibit ‘A’ and ‘A-1’ is a copy of the report appearing
in the Mumbai Sakal with English translation, hereto annexed and marked Exhibits ‘B’
and ‘B-1’ is the original report appearing in Sanj Tarun Bharat with English translation
and hereto annexed and marked Exhibits ‘C’ and ‘C-1’ is the said report appearing in
Sandhyakal with English translation.
(d) The petitioner says that a report regarding the said meeting also appeared in the
Urdu Times, an Urdu daily published from Bombay in its issue dated 1-12-1987. The
petitioner does not know how to read and write Urdu. However, he got the said report
translated. In the said Urdu Times the report appeared with the title ‘Shiv Sena ko
Musalmano ke voton ki zarurat nahin hai’ (Shiv Sena did not need the votes of Muslims).
A true English translation of the said news item is annexed hereto and marked Exhibits
‘D’ and ‘D-1’ with a zerox copy of the report in Urdu.
(e) Again on 9-12-1987 there was another election meeting which took place from 9
p.m. to about 12 midnight at Khar-Danda, near Shankar Temple. This meeting was
addressed by Shri Bal Thackeray, Respondent 1, Harishchandra Dattaji Salvi (a Shiv Sena
leader) and Shambhoo Maharaj, a religious leader from Gujarat. In the said meeting Shri
Bal Thackeray, while addressing the audience stated as under:
Translation: ‘Hinduism will triumph in this election and we must become hon'ble
recipients of this victory to ward off the danger on Hinduism, elect Ramesh Prabhoo
to join with Chhagan Bhujbal who is already there. You will find Hindu temples
underneath if all the mosques are dug out. Anybody who stands against the Hindus
should be showed or worshipped with shoes. A candidate by name Prabhoo should be
led to victory in the name of religion.’
The petitioner says that the proceedings of the said meeting were recorded by the police.
Newspaper reports regarding the meeting also appeared. The petitioner will crave leave to
and rely upon the records of the police and also the press report giving the version of the
said meeting appearing in various newspapers.
286

(f) The petitioner says that on 10-12-1987 a meeting was held from 9 p.m. to about 12
midnight at Vile Parle (East) at Shahaji Raje Marg. This was addressed by Shri Bal
Thackeray, Shambhoo Maharaj, Ramesh Mehta, Rishi Kapoor, Jitendra Madhukar Joshi
and Ramesh Prabhoo, Respondent 1. In this meeting Shri Thackeray uttered the following
words while addressing the meeting:
Translation: ‘We have come with the ideology of Hinduism. Shiv Sena will
implement this ideology. Though this country belongs to Hindus, Ram and Krishn are
insulted. (They) valued the Muslim votes more than your votes; we do not want the
Muslim votes. A snake like Shahabuddin is sitting in the Janata Party, a man like
Nihal Ahmed is also in Janata Party. So the residents of Vile Parle should bury this
party (Janata Party).’
The above utterances in these three meetings are the examples of promoting the feelings
of enmity between different classes of citizens of India. The sole purpose in doing so and
making the appeal was to canvass votes in favour of the first respondent on the ground of
religion and make it appear to the voters that Respondent 1 was the only person who
could represent the Hindu community. The effect of the said speeches was to promote the
feelings of enmity and hatred between Hindus and non-Hindus on the ground of religion,
race, caste, community etc. As such the petitioner and most of the respondents from 1 to
13 are Hindus, having full faith in the Hindu religion. The main ground of objection on
the way of canvassing for votes by Respondent 1 and his supporters was to bring the
element of religion into politics endangering the very foundation of the Constitution of
India, viz., secularism. The petitioner honestly believes that it is one thing to follow one's
own religion according to his own conviction and another thing to appeal to the voters to
vote in the name of the religion.”
6. Reliance was placed by the election petitioner on certain news items wherein the public
speeches were published and also on certain reports alleged to have been made by some
police officers who reported the making of the speeches raising some controversy relating to
sufficiency of pleadings and the use of material for proving the contents of the speeches in
excess of the exact words pleaded in the election petition. Details of this controversy would
be mentioned later while considering that point. However, it may be mentioned that the extent
to which there is specific pleading, and the returned candidate himself admitted the contents
of the public speeches, can safely be considered subject to the objection raised of the alleged
legal infirmities including want of a valid notice under Section 99 of the Act to the noticee
Bal Thackeray. More details of the evidence would be mentioned at the appropriate stage.
7. Broadly stated, the contentions of Shri Ram Jethmalani, learned counsel for the
appellants in these appeals are: (1) Sub-sections (3) and (3-A) of Section 123 of the Act are
constitutionally invalid being violative of guarantee of free speech in Article 19(1)(a) of the
Constitution; (2) To save both these provisions from constitutional invalidity, they must be
read as reasonable restrictions in the interest of public order to get the protection of Article
19(2) of the Constitution. In other words, unless the speech is prejudicial to the maintenance
of public order, it cannot fall within the net of either sub-section (3) or sub-section (3-A) of
Section 123 of the Act; (3) In sub-section (3) of Section 123, the emphasis is on the word
‘his’ preceding the word ‘religion’ and its significance must be understood in the light of the
 287

restricted scope of the provision indicated by the Union Law Minister during the
parliamentary debates to explain the object of introduction of the word ‘his’ in the provision.
In other words, only a direct appeal for votes on the ground of ‘his’ religion subject to its
tendency to prejudice the maintenance of public order is contended to be the limited scope of
sub-section (3) of Section 123; (4) A speech in which there be a reference to religion but no
direct appeal for votes on the ground of his religion, does not come within the net of sub-
section (3) of Section 123; (5) The public speeches in question did not amount to appeal for
votes on the ground of his religion and the substance and main thrust thereof was ‘Hindutva’
which means the Indian culture and not merely the Hindu religion; (6) The public speeches
criticised the anti-secular stance of the Congress Party in practising discrimination against
Hindus and giving undue favour to the minorities which is not an appeal for votes on the
ground of Hindu religion; (7) On behalf of the noticee Bal Thackeray, it was further
contended that there was no compliance of the requirements of Section 99 of the Act,
inasmuch as the notice contemplated by the provision was not given and the noticee was
never informed of the precise charge against him. It was submitted that the notice given was
not in conformity with the law and particulars required to be given by the court were never
given, the High Court having merely asked the petitioner to indicate the particulars of the
charge of the corrupt practice; and (8) that the pleadings in the election petition are deficient
being devoid of the material particulars and, therefore, the material brought in at the stage of
evidence and relied on to prove the charge of corrupt practice has to be excluded from
consideration. Learned counsel for the appellant also made the grievance that the High Court
had decided the election petition mainly on the basis of the general impressions and vague
assertions made by the election petitioner instead of confining the decision to the precise
pleadings and the legally admissible evidence examined in the light of the true meaning and
scope of sub-sections (3) and (3-A) of Section 123 of the Act.
8. In reply, Shri Ashok Desai, learned counsel for the respondent refuted these
contentions. He submitted that the question of constitutional validity of the provisions is no
longer res integra being concluded by the decision of the Constitution Bench in Jumuna
Prasad Mukhariya v. Lachhi Ram [(1955) 1 SCR 608 : AIR 1954 SC 60]. Alternatively, he
contended that the freedom of speech guaranteed in the Constitution does not extend to giving
speeches of the kind given by Bal Thackeray and, at any rate, these provisions impose
reasonable restrictions on the freedom of speech which are saved by Article 19(2) of the
Constitution. Shri Desai also submitted that the substance and main thrust of the speech, not
merely the form, has to be seen in its context to determine if it amounts to an appeal for votes
on the ground of ‘his’ religion, and such appeal need not necessarily be only direct. Learned
counsel submitted that each one of the speeches in question was highly incendiary containing
appeal to vote for Dr Ramesh Prabhoo because he is a Hindu; and it also tended to promote
enmity and hatred between Hindus and Muslims. According to him, each one of the speeches
amounted to the corrupt practice both under sub-sections (3) and (3-A) of Section 123 of the
Act.
Meaning of sub-sections (3) and (3-A) of Section 123 of the R.P. Act
9. Sub-sections (3) and (3-A) of Section 123 of the R.P. Act are as under:
288

“123. Corrupt practices.— The following shall be deemed to be corrupt practices for
the purposes of this Act:
* * *
(3) The appeal by a candidate or his agent or by any other person with the consent of
a candidate or his election agent to vote or refrain from voting for any person on the
ground of his religion, race, caste, community or language or the use of, or appeal to
religious symbols or the use of, or appeal to, national symbols, such as the national flag or
the national emblem, for the furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate:
Provided that no symbol allotted under this Act to a candidate shall be deemed to be a
religious symbol or a national symbol for the purposes of this clause.
(3-A) The promotion of, or attempt to promote, feelings of enmity or hatred between
different classes of the citizens of India on grounds of religion, race, caste, community, or
language, by a candidate or his agent or any other person with the consent of a candidate
or his election agent for the furtherance of the prospects of the election of that candidate
or for prejudicially affecting the election of any candidate.
* * *”
10. The submission of Shri Ram Jethmalani, learned counsel for the appellants, is that the
appeal to vote or refrain from voting for any person on the ground of ‘his’ religion etc. for the
furtherance of the prospects of the election of that candidate or for prejudicially affecting the
election of any candidate, means a direct appeal to vote or refrain from voting on the ground
of ‘his’ religion, etc.; and the appeal must also be provocative in nature to adversely affect
public order. The further element of adverse effect on public order, it is urged, is implicit in
the provision to save it from constitutional invalidity, which argument is considered
separately. Shri Jethmalani laid emphasis on the word ‘his’ which was inserted by Act 40 of
1961 w.e.f. 20-9-1961 when the existing sub-section (3) was substituted for the old sub-
section (3). Shri Jethmalani contended that the object of insertion of the word ‘his’ in the
newly substituted sub-section (3) was to restrict the meaning of the provision and confine it
only to a direct appeal based on ‘his’ religion. Learned counsel placed strong reliance on the
statement of the Law Minister during the debates in Parliament to support this submission. In
reply, Shri Ashok Desai, learned counsel for the respondent, contended that the word ‘his’ no
doubt has significance, but its use does not confine the meaning of sub-section (3) only to a
direct appeal on the ground of ‘his’ religion, etc. and extends to an appeal of which the main
thrust in the context is on the religion of the candidate. Shri Desai submitted that an unduly
restricted meaning cannot be given to sub-section (3) since the object of the provision is to
prohibit appeal for votes during the election on the ground of religion of the candidate.

11. There can be no doubt that the word ‘his’ used in sub-section (3) must have
significance and it cannot be ignored or equated with the word ‘any’ to bring within the net of
sub-section (3) any appeal in which there is any reference to religion. The religion forming
the basis of the appeal to vote or refrain from voting for any person, must be of that candidate
for whom the appeal to vote or refrain from voting is made. This is clear from the plain
language of sub-section (3) and this is the only manner in which the word ‘his’ used therein
 289

can be construed. The expressions “the appeal ... to vote or refrain from voting for any person
on the ground of his religion, ... for the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any candidate” lead clearly to this
conclusion. When the appeal is to vote on the ground of ‘his’ religion for the furtherance of
the prospects of the election of that candidate, that appeal is made on the basis of the religion
of the candidate for whom votes are solicited. On the other hand when the appeal is to refrain
from voting for any person on the ground of ‘his’ religion for prejudicially affecting the
election of any candidate, that appeal is based on the religion of the candidate whose election
is sought to be prejudicially affected. It is thus clear that for soliciting votes for a candidate,
the appeal prohibited is that which is made on the ground of religion of the candidate for
whom the votes are sought; and when the appeal is to refrain from voting for any candidate,
the prohibition is against an appeal on the ground of the religion of that other candidate. The
first is a positive appeal and the second a negative appeal. There is no ambiguity in sub-
section (3) and it clearly indicates the particular religion on the basis of which an appeal to
vote or refrain from voting for any person is prohibited under sub-section (3).
12. The argument that such an appeal must be a direct appeal, such as ‘Vote for A
because he is a Hindu’ or ‘Do not vote for B because he is a Christian’, and that no other
appeal leading to that conclusion is forbidden, does not appeal to reason. What is forbidden
by sub-section (3) is an appeal of this kind and, therefore, any appeal which amounts to or
leads to this inference must necessarily come within the prohibition in sub-section (3).
Whether a particular appeal is of this kind, is a question of fact in each case. Where the words
used in the appeal are clear and unambiguous amounting to a direct appeal, the exercise of
construing the speech is not needed. However, where a reasonable construction of the appeal
leads to that conclusion, the result must be the same. The substance of the speech and the
manner in which it is meant to be understood by the audience determines its nature, and not
the camouflage by an artistic use of the language. For understanding the meaning and effect
of the speech, the context has to be found in the speech itself and not outside it with reference
to any other background unless the speech itself imports any earlier fact in the context of that
speech. The speech has also not to be construed in the abstract or in the manner in which it
would be construed after an academic debate. Care must be taken to remember that the public
speeches during election campaign ordinarily are addressed to an audience comprised of
common men and, therefore, the manner in which it would be understood by such an audience
has to be kept in view.
13. We are unable to accept the submission of Shri Jethmalani that a further element of
prejudicial effect on public order, is implicit in sub-section (3). We do not find anything in the
language of the provision to read this further element into it. Sub-section (3) in substance
forbids appeal for votes for any candidate on the ground of ‘his’ religion and appeal to refrain
from voting for any other candidate on the ground of the religion of that other candidate.
Obviously the purpose of enacting the provision is to ensure that no candidate at an election
gets votes only because of his religion and no candidate is denied any votes on the ground of
his religion. This is in keeping with the secular character of the Indian polity and rejection of
the scheme of separate electorates based on religion in our constitutional scheme. An appeal
of the kind forbidden by sub-section (3) based on the religion of a candidate, need not
necessarily be prejudicial to public order and, therefore, the further element of likelihood of
290

prejudice to public order is unnecessary, on account of which it is not implicit in the

provision. This, according to us, is the meaning and the correct construction of sub-section
(3). The question of constitutional validity of the provision on this meaning is considered
later.
14. Reference may now be made to the Parliamentary debates in which the reason
ascribed by the Law Minister Shri A.K. Sen for adding the word ‘his’ in sub-section (3) and
its purpose was stated thus—
“Shri A.K. Sen: I added the word ‘his’ in the Select Committee in order to make quite
clear as to what was the mischief which was sought to be prevented under this provision.
* * *
The apprehension was expressed if one's right was going to be curbed by this section.
If such a right was going to be curbed by the section, I would have been against such an
amendment, because after all, it is the right of a person to propagate his own language,
his own particular culture and various other matters. But that does not mean vilifying
another language or creating enmity between communities.
* * *
... I am pained to hear Shri Hynniewta giving expression to an apprehension, which to
me seems entirely baseless. That apprehension is to the effect that clause 23 will deprive
him of his right to propagate his language or preserve his language, which cannot be
taken away from him as he himself has quoted the relevant article of the Constitution. If
that right is taken away by the Bill, it will be struck down as contravening Article 19 and
the section will not be given effect to by any court. Fortunately, this country is still
governed by the rule of law and the courts of law have the last say in these matters.
* * *
That is a different matter. With due respect to the hon. member, he has not really
appreciated the rationale of the Supreme Court's decision. With regard to election matters,
Parliament is free to enact such legislation as it thinks best and Chapter III does not come
in. That is the decision of the Supreme Court. But in the guise of framing an electoral
law, no fundamental right of the citizen can be taken away. That is what I am saying. The
right to preserve one's language cannot be taken away by an election law. That is as clear
as daylight.
* * *
You cannot make it an election issue if you say, ‘Do not vote for him. He is a
Bengali’ or ‘Do not vote for him. He is a Khasi.’ I made it unequivocally clear that it is
the purpose and design of this House and of the country to ensure that. No man shall
appeal only because he speaks a particular language and should get voted for that
reason; or no man shall appeal against a particular person to the electorate solely
because that opponent of his speaks a particular language.
* * *
They are entitled to do so. The Constitution gives them the right to do so. But we are
on a very narrow point, whether we shall extend the right to a person, to a voter, to say:
vote for me because I speak Hindi, I speak Garhwali, or I speak Nepali or I speak Khasi;
or in the alternative, do not vote for my opponent because he is a man who speaks this
 291

particular language, his own language. It is on that sole narrow point that the prohibition
is sought to be made.
... But we are not here on the aesthetics of language or the philosophy of language;
nor are we here to debate the fundamental rights of a citizen to preserve his own
language and culture. Fortunately, that is guaranteed to every man and woman in this
country as it is not elsewhere. ...”
* * *
... But the problem is, are we going to allow a man to go to the electorate and ask for
votes because he happens to speak a particular language or ask the electorate to refrain
from voting for a particular person merely on the ground of his speaking a particular
language or following a particular religion and so on? If not, we have to support this.
The preservation of the minorities' rights and so on is a different and a wider question.
* * *
... But, if you say that Bengali language in this area is being suppressed or the
schools are being closed, as Shri Hynniewta was saying, because they bore a particular
name, then, you are speaking not only to fight in an election but you are also really
seeking to protect your fundamental rights, to preserve your own language and culture.
That is a different matter.
But, if you say, ‘I am a Bengali, you are all Bengalis, vote for me’, or ‘I am an
Assamese and so vote for me because you are Assamese-speaking men’, I think, the entire
House will deplore that as a hopeless form of election propaganda. And, no progressive
party will run an election on that line. Similarly, on the ground of religion. In the olden
days, what speeches we used to hear in Muslim League gatherings! They were purely
appeals on the ground of religion. So, the issue is too narrow and not a wide issue in
which the life and death of minorities are involved as Shri Hynniewta sought to make out.
It is not at all in question. ...” (emphasis supplied)
15. The clarification given in the speech of the Law Minister clearly shows that a speech
for the protection of fundamental rights, preservation of own language, religion and culture,
etc. are not forbidden by sub-section (3) of Section 123, and the limit is narrow to the extent
indicated.
16. It cannot be doubted that a speech with a secular stance alleging discrimination
against any particular religion and promising removal of the imbalance cannot be treated as an
appeal on the ground of religion as its thrust is for promoting secularism. Instances given in
the speech of discrimination against any religion causing the imbalance in the professed goal
of secularism, the allegation being against any individual or any political party, cannot be
called an appeal on the ground of religion forbidden by sub-section (3). In other words,
mention of religion as such in an election speech is not forbidden by sub-section (3) so long
as it does not amount to an appeal to vote for a candidate on the ground of his religion or to
refrain from voting for any other candidate on the ground of his religion. When it is said that
politics and religion do not mix, it merely means that the religion of a candidate cannot be
used for gaining political mileage by seeking votes on the ground of the candidate's religion
or alienating the electorate against another candidate on the ground of the other candidate's
292

religion. It also means that the State has no religion and the State practises the policy of
neutrality in the matter of religion.
17. In M. Ismail Faruqui (Dr.) v. Union of India (Ayodhya case) [ (1994) 6 SCC 360]
the Constitution Bench, after a detailed discussion, summarised the true concept of secularism
under the Indian Constitution as under: (SCC p. 403, para 37)
“It is clear from the constitutional scheme that it guarantees equality in the matter of
religion to all individuals and groups irrespective of their faith emphasising that there is
no religion of the State itself. The Preamble of the Constitution read in particular with
Articles 25 to 28 emphasises this aspect and indicates that it is in this manner the concept
of secularism embodied in the constitutional scheme as a creed adopted by the Indian
people has to be understood while examining the constitutional validity of any legislation
on the touchstone of the Constitution. The concept of secularism is one facet of the right
to equality woven as the central golden thread in the fabric depicting the pattern of the
scheme in our Constitution.”
18. It cannot be doubted that an election speech made in conformity with the fundamental
right to freedom of religion guaranteed under Articles 25 to 30 of the Constitution, cannot be
treated as anti-secular to be prohibited by sub-section (3) of Section 123, unless it falls within
the narrow net of the prohibition indicated earlier. It is obvious that a speech referring to
religion during election campaign with a secular stance in conformity with the fundamental
right to freedom of religion can be made without being hit by the prohibition contained in
sub-section (3), if it does not contain an appeal to vote for any candidate because of his
religion or to refrain from voting for any candidate because of his religion. When it is said
that politics and religion do not mix, it obviously does not mean that even such permissible
political speeches are forbidden. This is the meaning and true scope of sub-section (3) of
Section 123 of the Act.
19. We would now consider the meaning of sub-section (3-A) of Section 123. This sub-
section also was inserted along with the substituted sub-section (3) by Act 40 of 1961 w.e.f.
20-9-1961. The meaning of this sub-section is not much in controversy. Sub-section (3-A) is
similar to Section 153-A of the Indian Penal Code. In sub-section (3-A), the expression used
is “the promotion of, or attempt to promote, feelings of enmity or hatred” as against the
expression “Whoever ... promotes or attempts to promote ... disharmony or feelings of
enmity, hatred or ill will ...” in Section 153-A IPC. The expression “feelings of enmity or
hatred” is common in both the provisions but the additional words in Section 153-A IPC are
“disharmony ... or ill will”. The difference in the plain language of the two provisions
indicates that mere promotion of disharmony or ill will between different groups of people is
an offence under Section 153-A IPC while under sub-section (3-A) of Section 123 of the R.P.
Act, it is only the promotion of or attempt to promote feelings of enmity or hatred, which are
stronger words, that is forbidden in the election campaign.
20. The provision is made with the object of curbing the tendency to promote or attempt
to promote communal, linguistic or any other factional enmity or hatred to prevent the
divisive tendencies. The provision in the IPC as well as in the R.P. Act for this purpose was
made by amendment at the same time. The amendment in the R.P. Act followed amendments
made in the Indian Penal Code to this effect in a bid to curb any tendency to resort to divisive
 293

means to achieve success at the polls on the ground of religion or narrow communal or
linguistic affiliations. Any such attempt during the election is viewed with disfavour under the
law and is made a corrupt practice under sub-section (3-A) of Section 123.
21. Shri Jethmalani is right that in sub-section (3-A), the element of prejudicial effect on
public order is implicit. Such divisive tendencies promoting enmity or hatred between
different classes of citizens of India tend to create public unrest and disturb public order. This
is a logical inference to draw on proof of the constituent parts of sub-section (3-A). The
meaning of sub-section (3-A) is not seriously disputed between the parties and, therefore, it
does not require any further discussion. However, whether the act complained of falls within
the net of sub-section (3-A) is a question of fact in each case to be decided on the basis of the
evidence led to prove the alleged act.
22. The decision in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra
[(1976) 2 SCC 17] lends assurance to the correctness of the construction made by us of these
provisions. The returned candidate Bukhari was the candidate of Muslim League while the
defeated candidate Shauket Chagla was the Congress candidate at the election. Both were
Muslims. The returned candidate Bukhari in his appeal to the voters said that Chagla was not
true to his religion while he himself was a true Muslim and that Chagla was neither a good
Hindu nor a true Muslim. The clear implication of the appeal was that Chagla was not true to
his religion whereas Bukhari was, and, therefore, the voters should prefer Bukhari. In short,
the appeal for votes was made on the ground that Bukhari was a staunch believer of the
Muslim religion as against Chagla who was not. It was this clear appeal based on the ground
of the candidate's religion which was held to constitute the corrupt practices defined by sub-
sections (3) and (3-A) of Section 123 of the R.P. Act. For this purpose, the true ambit and
scope of these provisions was considered and indicated as under: (SCC pp. 24-33, paras 10-
47)
“We propose to indicate, at this stage, what mischief the provisions were designed to
suppress because that seems to us to be the most illuminating and certain way of correctly
construing these statutory provisions. We cannot do so without adverting to the historical,
political, and constitutional background of our democratic set-up, such provisions are
necessary in our opinion, to sustain the spirit or climate in which the electoral machinery
of this set-up could work.
Our Constitution-makers certainly intended to set up a Secular Democratic Republic
the binding spirit of which is summed up by the objectives set forth in the preamble to the
Constitution. No democratic political and social order, in which the conditions of freedom
and their progressive expansion for all make some regulation of all activities imperative,
could endure without an agreement on the basic essentials which could unite and hold
citizens together despite all the differences of religion, race, caste, community, culture,
creed and language. Our political history made it particularly necessary that these
differences, which can generate powerful emotions, depriving people of their powers of
rational thought and action, should not be permitted to be exploited lest the imperative
conditions for the preservation of democratic freedoms are disturbed.
It seems to us that Section 123, sub-sections (2), (3) and (3-A) were enacted so as to
eliminate, from the electoral process, appeals to those divisive factors which arouse
294

irrational passions that run counter to the basic tenets of our Constitution, and, indeed, of
any civilised, political and social order. Due respect for the religious beliefs and
practices, race, creed, culture and language of other citizens is one of the basic postulates
of our democratic system. Under the guise of protecting your own religion, culture or
creed you cannot embark on personal attacks on those of others or whip up low herd
instincts and animosities or irrational fears between groups to secure electoral victories.
The line has to be drawn by the courts, between what is permissible and what is
prohibited, after taking into account the facts and circumstances of each case interpreted
in the context in which the statements or acts complained of were made.
* * *
We have to determine the effect of statements proved to have been made by a
candidate, or, on his behalf and with his consent, during his election, upon the minds and
feelings of the ordinary average voters of this country in every case of alleged corrupt
practice of undue influence by making statements. We will, therefore, proceed to consider
the particular facts of the case before us.
* * *
... In other words, Bukhari, apart from making a direct attack on the alleged religious
beliefs and practices of the Chagla family, clearly conveyed to the hearers that Chagla
was an unfit person, on the ground of his mixed religious faith and practices, to represent
Muslims. Bukhari had also called upon Muslims to unite against such a person if they
wanted their religion to survive. The High Court had very rightly held that these
statements contravened the provisions of Section 123(3) of the Act.
* * *
We do not think that any useful purpose is served by citing authorities, as the learned
counsel for the appellant tried to do, to interpret the facts of the case before us by
comparing them to the very different facts of other cases. In all such cases, the line has no
doubt to be drawn with care so as not to equate possible impersonal attacks on religious
bigotry and intolerance with personal ones actuated by bigotry and intolerance.
As already indicated by us, our democracy can only survive if those who aspire to
become people's representatives and leaders understand the spirit of secular democracy.
That spirit was characterised by Montesquieu long ago as one of ‘virtue’. It implies, as the
late Pandit Jawaharlal Nehru once said, ‘self-discipline’. For such a spirit to prevail,
candidates at elections have to try to persuade electors by showing them the light of
reason and not by inflaming their blind and disruptive passions. Heresy hunting
propaganda or professedly religious grounds directed against a candidate at an election
may be permitted in a theocratic State but not in a secular republic like ours. It is evident
that, if such propaganda was permitted here, it would injure the interests of members of
religious minority groups more than those of others. It is forbidden in this country in
order to preserve the spirit of equality, fraternity, and amity between rivals even during
elections. Indeed, such prohibitions are necessary in the interests of elementary public
peace and order.
* * *
According to his own professions, the appellant wanted votes for himself on the
ground that he staunchly adhered to what he believed to be Muslim religion as contrasted
 295

with Chagla who did not. There is no doubt whatsoever in our minds that the High Court
had rightly found the appellant guilty of the corrupt practices defined by the provisions of
Sections 123(2), 123(3) and 123(3-A) of the Act by making the various speeches closely
examined by us also.”(emphasis supplied)
The meaning of sub-sections (3) and (3-A) of Section 123 was understood and indicated in
this decision, in the above manner.
Constitutional Validity of sub-sections (3) and (3-A) of Section 123
23. The next question now relates to the constitutional validity of these provisions on the
meaning ascribed to them.
24. Sub-section (3-A) of Section 123 is undoubtedly a provision made in the interests of
public order or incitement to an offence because the promotion or attempt to promote feelings
of enmity or hatred between different classes of the citizens of India on any of the grounds
specified therein, apart from creating divisive tendency, would also be prejudicial to the
maintenance of public order and may amount to incitement to commission of offences. The
freedom of speech and expression guaranteed to all citizens under Article 19(1)(a), which is
the basis of the constitutional challenge to this provision, is subject to clause (2) of Article 19
which permits the making of any law imposing reasonable restrictions on the exercise of this
right in the interests of public order or incitement to an offence. For this reason, no further
attempt was made to press the argument of challenge to the constitutional validity of sub-
section (3-A) on the construction we have made of that provision.
25. The question now is of the constitutional validity of sub-section (3) of Section 123.
We have already rejected the argument that the element of prejudicial effect on public order is
implicit also in sub-section (3) as it is in sub-section (3-A). According to Shri Ram
Jethmalani, unless this element also is read into sub-section (3), it is violative of Article
19(1)(a) inasmuch as clause (2) of Article 19 does not save its validity under any of the other
heads specified therein.
26. We have construed sub-section (3) of Section 123 as a restriction only to the extent
that votes cannot be sought for a candidate on the ground of his religion, etc. and similarly
there can be no appeal to refrain from voting for any person on the same ground. In other
words, an appeal to vote for a candidate or not to vote for him on the ground of his religion,
etc. is the restriction imposed by sub-section (3). This restriction is in the law enacted to
provide for the conduct of elections, the qualifications and disqualifications for membership
of the Houses, the corrupt practices and other offences at or in connection with such elections.
The right to contest the election is given by the statute subject to the conditions prescribed
therein. The restriction is limited only to the appeal for votes to a candidate during the
election period and not to the freedom of speech and expression in general or the freedom to
profess, practise and propagate religion unconnected with the election campaign.
27. It is true, as argued by Shri Jethmalani, that the freedom of speech and expression
guaranteed to all citizens under Article 19(1)(a) is absolute subject to the reasonable
restrictions imposed by any law saved by clause (2) of Article 19, under one of the heads
specified therein. The heads specified in clause (2) of Article 19 are, therefore, several and
they are intended to cover the entire area within which the absolute freedom to say anything
which the speaker may like would not extend, in keeping with the standards of a civilized
296

society, the corresponding rights in others in an orderly society, and the constitutional
scheme.
28. The expression “in the interests of” used in clause (2) of Article 19 indicates a wide
amplitude of the permissible law which can be enacted to provide for reasonable restrictions
on the exercise of this right under one of the heads specified therein, in conformity with the
constitutional scheme. Two of the heads mentioned are: decency or morality. Thus any law
which imposes reasonable restrictions on the exercise of this right in the interests of decency
or morality is also saved by clause (2) of Article 19. Shri Jethmalani contended that the words
“decency or morality” relate to sexual morality alone. In view of the expression “in the
interests of” and the context of election campaign for a free and fair poll, the right to contest
the election being statutory and subject to the provisions of the statute, the words “decency or
morality” do not require a narrow or pedantic meaning to be given to these words. The
dictionary meaning of ‘decency’ is “correct and tasteful standards of behaviour as generally
accepted; conformity with current standards of behaviour or propriety; avoidance of
obscenity; and the requirements of correct behaviour” (The Oxford Encyclopaedic English
Dictionary); “conformity to the prevailing standards of propriety, morality, modesty, etc.: and
the quality of being decent” (Collins English Dictionary).
29. Thus, the ordinary dictionary meaning of ‘decency’ indicates that the action must be
in conformity with the current standards of behaviour or propriety, etc. In a secular polity, the
requirement of correct behaviour or propriety is that an appeal for votes should not be made
on the ground of the candidate's religion which by itself is no index of the suitability of a
candidate for membership of the House. In Knuller (Publishing, Printing and Promotions)
Ltd. v. Director of Public Prosecutions [(1972) 2 All ER 898] the meaning of ‘indecency’
was indicated as under: (All ER p. 905)
“... Indecency is not confined to sexual indecency; indeed it is difficult to find any
limit short of saying that it includes anything which an ordinary decent man or woman
would find to be shocking, disgusting and revolting....”
Thus, seeking votes at an election on the ground of the candidate's religion in a secular State,
is against the norms of decency and propriety of the society.
30. In our opinion, the saving in clause (2) of Article 19 permits the imposition of
reasonable restrictions on the exercise of the right conferred by Article 19(1)(a) by making
any law in the interests of decency or morality; and sub-section (3) of Section 123 of the R.P.
Act, as construed by us, has the protection of clause (2) of Article 19 under the head
‘decency’ therein. This conclusion is reached by us even if it is assumed that the provision is
not saved merely as a condition subject to which the statutory right of contesting an election
is available to the candidate. The fact that the scheme of separate electorates was rejected in
framing the Constitution and secularism is the creed adopted in the constitutional scheme, are
relevant considerations to treat this as a reasonable restriction on the freedom of speech and
expression, for maintaining the standard of behaviour required in conformity with the decency
and propriety of the societal norms. Viewed at in any manner, sub-section (3) of Section 123
cannot be held to be unconstitutional. This view is also in accord with the nature of right to
contest an election, as understood in Jumuna Prasad Mukhariya v. Lachhi Ram [(1955) 1
SCR 608 : AIR 1954 SC 608].
 297

31. The argument assailing the constitutional validity of sub-sections (3) and/or (3-A) of
Section 123 is rejected.
Meaning of ‘Hindutva’ and ‘Hinduism’
32. The next contention relates to the meaning of ‘Hindutva’ and ‘Hinduism’ and the
effect of the use of these expressions in the election speeches.
33. We have already indicated the meaning of sub-section (3) of Section 123 of the R.P.
Act and the limit of its operation. It may be said straightaway that any speech wherein these
expressions are used, irrespective of their meaning, cannot by itself fall within the ambit of
sub-section (3) of Section 123, unless the speech can be construed as an appeal to vote for a
candidate on the ground that he is a Hindu or to refrain from voting for a candidate on the
ground of his religion, i.e., he not being a Hindu. We have also indicated that mere reference
to any religion in an election speech does not bring it within the net of sub-section (3) and/or
sub-section (3-A) of Section 123, since reference can be made to any religion in the context of
secularism or to criticise any political party for practising discrimination against any religious
group or generally for preservation of the Indian culture. In short, mere use of the word
‘Hindutva’ or ‘Hinduism’ or mention of any other religion in an election speech does not
bring it within the net of sub-section (3) and/or sub-section (3-A) of Section 123, unless the
further elements indicated are also present in that speech. It is also necessary to see the
meaning and purport of the speech and the manner in which it was likely to be understood by
the audience to which the speech was addressed. These words are not to be construed in the
abstract, when used in an election speech.
34. Both sides referred copiously to the meaning of the words ‘Hindutva’ and ‘Hinduism’
with reference to several writings. Shri Jethmalani referred to them for the purpose of
indicating the several meanings of these words and to emphasise that the word ‘Hindutva’
relates to Indian culture based on the geographical division known as Hindustan, i.e., India.
On the other hand, Shri Ashok Desai emphasised that the term ‘Hindutva’ used in election
speeches is an emphasis on Hindu religion bearing no relation to the fact that India is also
known as Hindustan, and the term can relate to Indian culture.
35. The Constitution Bench in Sastri Yagnapurushdasji v. Muldas Bhudardas Vaishya
[(1966) 3 SCR 242] held thus: (SCR pp. 259-66)
“Who are Hindus and what are the broad features of Hindu religion, that must be the
first part of our enquiry in dealing with the present controversy between the parties. The
historical and etymological genesis of the word ‘Hindu’ has given rise to a controversy
amongst indologists; but the view generally accepted by scholars appears to be that the
word ‘Hindu’ is derived from the River Sindhu otherwise known as Indus which flows
from the Punjab. ‘That part of the great Aryan race’, says Monier Williams, ‘which
immigrated from Central Asia, through the mountain passes into India, settled first in the
districts near the River Sindhu (now called the Indus). The Persians pronounced this word
Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained their
first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus
‘Indoi’ (‘Hinduism’ by Monier Williams, p. 1).
298

The Encyclopaedia of Religion and Ethics, Vol. VI, has described ‘Hinduism’ as the
title applied to that form of religion which prevails among the vast majority of the present
population of the Indian Empire (p. 686). As Dr Radhakrishnan has observed: ‘The Hindu
civilization is so called, since its original founders or earliest followers occupied the
territory drained by the Sindhu (the Indus) river system corresponding to the North-West
Frontier Province and the Punjab. This is recorded in the Rig Veda, the oldest of the
Vedas, the Hindu scriptures which give their name to this period in Indian history. The
people on the Indian side of the Sindhu were called Hindu by the Persian and the later
western invaders’ (‘The Hindu View of Life’ by Dr Radhakrishnan, p. 12). That is the
genesis of the word ‘Hindu’.
When we think of the Hindu religion, we find it difficult, if not impossible, to define
Hindu religion or even adequately describe it. Unlike other religions in the world, the
Hindu religion does not claim any one prophet; it does not worship any one God; it does
not subscribe to any one dogma; it does not believe in any one philosophic concept; it
does not follow any one set of religious rites or performances; in fact, it does not appear
to satisfy the narrow traditional features of any religion or creed. It may broadly be
described as a way of life and nothing more.
... The term ‘Hindu’, according to Dr Radhakrishnan, had originally a territorial and
not a credal significance. It implied residence in a well-defined geographical area.
Aboriginal tribes, savage and half-civilized people, the cultured Dravidians and the Vedic
Aryans were all Hindus as they were the sons of the same mother. The Hindu thinkers
reckoned with the striking fact that the men and women dwelling in India belonged to
different communities, worshipped different gods, and practised different rites (Kurma
Purana) (Ibid. p. 12).
Monier Williams has observed that ‘it must be borne in mind that Hinduism is far
more than a mere form of theism resting on Brahmanism. It presents for our investigation
a complex congeries of creeds and doctrines which in its gradual accumulation may be
compared to the gathering together of the mighty volume of the Ganges, swollen by a
continual influx of tributary rivers and rivulets, spreading itself over an ever-increasing
area of country and finally resolving itself into an intricate Delta of tortuous streams and
jungly marshes.... The Hindu religion is a reflection of the composite character of the
Hindus, who are not one people but many. It is based on the idea of universal receptivity.
It has ever aimed at accommodating itself to circumstances, and has carried on the
process of adaptation through more than three thousand years. It has first borne with and
then, so to speak, swallowed, digested, and assimilated something from all creeds’.
(‘Religious Thought & Life in India’ by Monier Williams, p. 57).
We have already indicated that the usual tests which can be applied in relation to any
recognised religion or religious creed in the world turn out to be inadequate in dealing
with the problem of Hindu religion. Normally, any recognised religion or religious creed
subscribes to a body of set philosophic concepts and theological beliefs. Does this test
apply to the Hindu religion? In answering this question, we would base ourselves mainly
on the exposition of the problem by Dr Radhakrishnan in his work on Indian philosophy.
(‘Indian Philosophy’ by Dr Radhakrishnan, Vol. I, pp. 22-23). Unlike other countries,
 299

India can claim that philosophy in ancient India was not an auxiliary to any other science
or art, but always held a prominent position of independence. ... ‘In all the fleeting
centuries of history’, says Dr Radhakrishnan, ‘in all the vicissitudes through which India
has passed, a certain marked identity is visible. It has held fast to certain psychological
traits which constitute its special heritage, and they will be the characteristic marks of the
Indian people so long as they are privileged to have a separate existence’. The history of
Indian thought emphatically brings out the fact that the development of Hindu religion
has always been inspired by an endless quest of the mind for truth based on the
consciousness that truth has many facets. Truth is one, but wise men describe it
differently. The Indian mind has, consistently through the ages, been exercised over the
problem of the nature of godhead the problem that faces the spirit at the end of life, and
the interrelation between the individual and the universal soul. ‘If we can abstract from
the variety of opinion’, says Dr Radhakrishnan, ‘and observe the general spirit of Indian
thought, we shall find that it has a disposition to interpret life and nature in the way of
monistic idealism, though this tendency is so plastic, living and manifold that it takes
many forms and expresses itself in even mutually hostile teachings’. (Ibid, p. 32)
... Naturally enough, it was realised by Hindu religion from the very beginning of its
career that truth was many-sided and different views contained different aspects of truth
which no one could fully express. This knowledge inevitably bred a spirit of tolerance and
willingness to understand and appreciate the opponent's point of view. That is how ‘the
several views set forth in India in regard to the vital philosophic concepts are considered
to be the branches of the selfsame tree. The short cuts and blind alleys are somehow
reconciled with the main road of advance to the truth’. (Ibid, p. 48) When we consider this
broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu
philosophy, there is no scope for excommunicating any notion or principle as heretical
and rejecting it as such.
* * *
The development of Hindu religion and philosophy shows that from time to time
saints and religious reformers attempted to remove from the Hindu thought and practices
elements of corruption and superstition and that led to the formation of different sects.
Buddha started Buddhism; Mahavira founded Jainism; Basava became the founder of
Lingayat religion, Dhyaneshwar and Tukaram initiated the Varakari cult; Guru Nanak
inspired Sikhism; Dayananda founded Arya Samaj, and Chaitanya began Bhakti cult; and
as a result of the teachings of Ramakrishna and Vivekananda, Hindu religion flowered
into its most attractive, progressive and dynamic form. If we study the teachings of these
saints and religious reformers, we would notice an amount of divergence in their
respective views; but underneath that divergence, there is a kind of subtle indescribable
unity which keeps them within the sweep of the broad and progressive Hindu religion.
... It is somewhat remarkable that this broad sweep of Hindu religion has been
eloquently described by Toynbee. Says Toynbee: ‘When we pass from the plane of social
practice to the plane of intellectual outlook, Hinduism too comes out well by comparison
with the religions and ideologies of the South-West Asian group. In contrast to these
Hinduism has the same outlook as the pre-Christian and pre-Muslim religions and
300

philosophies of the Western half of the old world. Like them, Hinduism takes it for
granted that there is more than one valid approach to truth and to salvation and that
these different approaches are not only compatible with each other, but are
complementary’ (‘The Present-Day Experiment in Western Civilisation’ by Toynbee,
pp. 48-49).
The Constitution-makers were fully conscious of this broad and comprehensive
character of Hindu religion; and so, while guaranteeing the fundamental right to freedom
of religion, Explanation II to Article 25 has made it clear that in sub-clause (b) of clause
(2), the reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.”(emphasis supplied)
36. In a later Constitution Bench decision in CWT v. R. Sridharan [(1976) 4 SCC 489]
the meaning of the term ‘Hinduism’ as commonly understood is stated thus: (SCC pp. 493-94,
paras 10-16)
“... It is a matter of common knowledge that Hinduism embraces within itself so many
diverse forms of beliefs, faiths, practices and worship that it is difficult to define the term
‘Hindu’ with precision.
The historical and etymological genesis of the word ‘Hindu’ has been succinctly
explained by Gajendragadkar, C.J. in Shastri Yagnapurushdasji v. Muldas Bhudardas
Vaishya [(1966) 3 SCR 242 : AIR 1966 SC 1119].
In Unabridged Edition of Webster's Third New International Dictionary of the
English Language, the term ‘Hinduism’ has been defined as meaning
‘a complex body of social, cultural and religious beliefs and practices evolved in and
largely confined to the Indian subcontinent and marked by a caste system, an outlook
tending to view all forms and theories as aspects of one eternal being and truth, a
belief in ahimsa, karma, dharma, sanskara and moksha, and the practice of the way of
works, the way of knowledge, or the way of devotion as the means of release from the
bound of rebirths; the way of life and form of thought of a Hindu.’
In Encyclopaedia Britannica (15th Edition), the term ‘Hinduism’ has been defined as
meaning
‘the civilization of Hindus (originally, the inhabitants of the land of Indus River). It
properly denotes the Indian civilization ofapproximately the last 2000 years, which
gradually evolved from Vedism, the religion of the ancient Indo-European peoples
who settled in India in the last centuries of the 2nd millennium B.C. Because it
integrates a large variety of heterogeneous elements, Hinduism constitutes a very
complex but largely continuous whole, and since it covers the whole of life, it has
religious, social, economic, literary, and artistic aspects. As a religion, Hinduism is
an utterly diverse conglomerate of doctrines, cults, and way of life.... In principle,
Hinduism incorporates all forms of belief and worship without necessitating the
selection or elimination of any. The Hindu is inclined to revere the divine in every
manifestation, whatever it may be, and is doctrinally tolerant, leaving others —
 301

including both Hindus and non-Hindus — whatever creed and worship practices suit
them best. A Hindu may embrace a non-Hindu religion without ceasing to be a
Hindu, and since the Hindu is disposed to think synthetically and to regard other
forms of worship, strange gods, and divergent doctrines as inadequate rather than
wrong or objectionable, he tends to believe that the highest divine powers
complement each other for the well-being of the world and mankind. Few religious
ideas are considered to be finally irreconcilable. The core of religion does not even
depend on the existence or non-existence of God or on whether there is one god or
many. Since religious truth is said to transcend all verbal definition, it is not
conceived in dogmatic terms. Hinduism is, then both a civilization and a
conglomerate of religions, with neither a beginning, a founder, nor a central authority,
hierarchy, or organization. Every attempt at a specific definition of Hinduism has
proved unsatisfactory in one way or another, the more so because the finest Indian
scholars of Hinduism, including Hindus themselves, have emphasized different
aspects of the whole’.
In his celebrated treatise Gitarahasya, B.G. Tilak has given the following broad
description of the Hindu religion:
‘Acceptance of the Vedas with reverence; recognition of the fact that the means
or ways of salvation are diverse; and realisation of the truth that the number of gods
to be worshipped is large, that indeed is the distinguishing feature of Hindu religion’.
In Bhagwan Koer v. J.C. Bose [ILR (1904) 31 Cal 11 : 30 IA 249 : 7 CWN 895] it
was held that Hindu religion is marvellously catholic and elastic. Its theology is marked by
eclecticism and tolerance and almost unlimited freedom of private worship.
* * *
This being the scope and nature of the religion, it is not strange that it holds within its
fold men of divergent views and traditions which have very little in common except a
vague faith in what may be called the fundamentals of the Hindu religion.” (emphasis
supplied)
37. These Constitution Bench decisions, after a detailed discussion, indicate that no
precise meaning can be ascribed to the terms ‘Hindu’, ‘Hindutva’ and ‘Hinduism’; and no
meaning in the abstract can confine it to the narrow limits of religion alone, excluding the
content of Indian culture and heritage. It is also indicated that the term ‘Hindutva’ is related
more to the way of life of the people in the sub-continent. It is difficult to appreciate how in
the face of these decisions the term ‘Hindutva’ or ‘Hinduism’ per se, in the abstract, can be
assumed to mean and be equated with narrow fundamentalist Hindu religious bigotry, or be
construed to fall within the prohibition in sub-sections (3) and/or (3-A) of Section 123 of the
R.P. Act.
38. Bharucha, J. in M. Ismail Faruqui (Dr.) v. Union of India [(1994) 6 SCC 360],
(Ayodhya case), in the separate opinion for himself and Ahmadi, J. (as he then was), observed
as under: (SCC p. 442, para 156)
302

“... Hinduism is a tolerant faith. It is that tolerance that has enabled Islam,
Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and
support upon this land ....”
39. Ordinarily, Hindutva is understood as a way of life or a state of mind and it is not to
be equated with, or understood as religious Hindu fundamentalism. In Indian Muslims —
The Need For A Positive Outlook by Maulana Wahiduddin Khan, (1994), it is said (at p. 19):
“The strategy worked out to solve the minorities problem was, although differently
worded, that of Hindutva or Indianisation. This strategy, briefly stated, aims at developing
a uniform culture by obliterating the differences between all of the cultures coexisting in
the country. This was felt to be the way to communal harmony and national unity. It was
thought that this would put an end once and for all to the minorities' problem.”
The above opinion indicates that the word ‘Hindutva’ is used and understood as a synonym of
‘Indianisation’, i.e., development of uniform culture by obliterating the differences between
all the cultures coexisting in the country.
40. In Kultar Singh v. Mukhtiar Singh [(1964) 7 SCR 790 : AIR 1965 SC 141], the
Constitution Bench construed the meaning of sub-section (3) of Section 123 prior to its
amendment. The question there was whether a poster contained an appeal to voters to vote for
the candidate on the ground of his religion; and the meaning of the word ‘Panth’ in the poster
was significant for the purpose. It was held as under: (SCR pp. 793-95)
“It is true that a corrupt practice under Section 123(3) can be committed by a
candidate by appealing to the voters to vote for him on the ground of his religion even
though his rival candidate may belong to the same religion. If, for instance, a Sikh
candidate were to appeal to the voters to vote for him, because he was a Sikh and add that
his rival candidate, though a Sikh in name, was not true to the religious tenets of Sikhism
or was a heretic and as such, outside the pale of the Sikh religion, that would amount to a
corrupt practice under Section 123(3), and so, we cannot uphold the contention that
Section 123(3) is inapplicable because both the appellant and the respondent are Sikhs. ...
The corrupt practice as prescribed by Section 123(3) undoubtedly constitutes a very
healthy and salutary provision which is intended to serve the cause of secular democracy
in this country. In order that the democratic process should thrive and succeed, it is of
utmost importance that our elections to Parliament and the different legislative bodies
must be free from the unhealthy influence of appeals to religion, race, caste, community,
or language. If these considerations are allowed any sway in election campaigns, they
would vitiate the secular atmosphere of democratic life, and so, Section 123(3) wisely
provides a check on this undesirable development by providing that an appeal to any of
these factors made in furtherance of the candidature of any candidate as therein prescribed
would constitute a corrupt practice and would render the election of the said candidate
void.
In considering the question as to whether the distribution of the impugned poster by
the appellant constitutes corrupt practice under Section 123(3), there is one point which
has to be borne in mind. The appellant had been adopted as its candidate by the Akali Dal
Party. This Party is recognised as a political party by the Election Commission
 303

notwithstanding the fact that all of its members are only Sikhs. It is well-known that there
are several parties in this country which subscribe to different political and economic
ideologies, but the membership of them is either confined to, or predominantly held by,
members of particular communities or religions. So long as law does not prohibit the
formation of such parties and in fact recognises them for the purpose of election and
parliamentary life, it would be necessary to remember that an appeal made by candidates
of such parties for votes may, if successful, lead to their election and in an indirect way,
may conceivably be influenced by considerations of religion, race, caste, community or
language. This infirmity cannot perhaps be avoided so long as parties are allowed to
function and are recognised, though their composition may be predominantly based on
membership of particular communities or religion. That is why we think, in considering
the question as to whether a particular appeal made by a candidate falls within the
mischief of Section 123(3), courts should not be astute to read into the words used in the
appeal anything more than can be attributed to them on its fair and reasonable
construction.
That takes us to the question of construing the impugned poster. The principles which
have to be applied in construing such a document are well-settled. The document must be
read as a whole and its purport and effect determined in a fair, objective and reasonable
manner. In reading such documents, it would be unrealistic to ignore the fact that when
election meetings are held and appeals are made by candidates of opposing political
parties, the atmosphere is usually surcharged with partisan feelings and emotions and the
use of hyperboles or exaggerated language, or the adoption of metaphors, and the
extravagance of expression in attacking one another, are all a part of the game, and so,
when the question about the effect of speeches delivered or pamphlets distributed at
election meetings is argued in the cold atmosphere of a judicial chamber, some allowance
must be made and the impugned speeches or pamphlets must be construed in that light. In
doing so, however, it would be unreasonable to ignore the question as to what the effect
of the said speech or pamphlet would be on the mind of the ordinary voter who attends
such meetings and reads the pamphlets or hears the speeches. It is in the light of these
well-established principles that we must now turn to the impugned pamphlet.”(emphasis
supplied)
41. The test applied in the decision was to construe the meaning of the word ‘Panth’
not in the abstract but in the context of its use. The conclusion reached was that the word
‘Panth’ used in the poster did not mean Sikh religion and, therefore, the appeal to the voters
was not to vote for the candidate because of his religion. Referring to an earlier decision in
Jagdev Singh Sidhanti v. Pratap Singh Daulta [(1964) 6 SCR 750 : AIR 1965 SC 183], it
was reiterated as under: (SCR p. 799)
“... Political issues which form the subject-matter of controversies at election
meetings may indirectly and incidentally introduce considerations of language or religion,
but in deciding the question as to whether corrupt practice has been committed under
Section 123(3), care must be taken to consider the impugned speech or appeal carefully
and always in the light of the relevant political controversy. ...”
304

42. Thus, it cannot be doubted, particularly in view of the Constitution Bench decisions of
this Court that the words ‘Hinduism’ or ‘Hindutva’ are not necessarily to be understood and
construed narrowly, confined only to the strict Hindu religious practices unrelated to the
culture and ethos of the people of India, depicting the way of life of the Indian people. Unless
the context of a speech indicates a contrary meaning or use, in the abstract these terms are
indicative more of a way of life of the Indian people and are not confined merely to describe
persons practising the Hindu religion as a faith.
43. Considering the terms ‘Hinduism’ or ‘Hindutva’ per se as depicting hostility, enmity
or intolerance towards other religious faiths or professing communalism, proceeds from an
improper appreciation and perception of the true meaning of these expressions emerging from
the detailed discussion in earlier authorities of this Court. Misuse of these expressions to
promote communalism cannot alter the true meaning of these terms. The mischief resulting
from the misuse of the terms by anyone in his speech has to be checked and not its
permissible use. It is indeed very unfortunate, if in spite of the liberal and tolerant features of
‘Hinduism’ recognised in judicial decisions, these terms are misused by anyone during the
elections to gain any unfair political advantage. Fundamentalism of any colour or kind must
be curbed with a heavy hand to preserve and promote the secular creed of the nation. Any
misuse of these terms must, therefore, be dealt with strictly.
44. It is, therefore, a fallacy and an error of law to proceed on the assumption that any
reference to Hindutva or Hinduism in a speech makes it automatically a speech based on the
Hindu religion as opposed to the other religions or that the use of the words ‘Hindutva’ or
‘Hinduism’ per se depict an attitude hostile to all persons practising any religion other than
the Hindu religion. It is the kind of use made of these words and the meaning sought to be
conveyed in the speech which has to be seen and unless such a construction leads to the
conclusion that these words were used to appeal for votes for a Hindu candidate on the ground
that he is a Hindu or not to vote for a candidate because he is not a Hindu, the mere fact that
these words are used in the speech would not bring it within the prohibition of sub-section (3)
or (3-A) of Section 123. It may well be, that these words are used in a speech to promote
secularism or to emphasise the way of life of the Indian people and the Indian culture or
ethos, or to criticise the policy of any political party as discriminatory or intolerant. The
parliamentary debates, including the clarifications made by the Law Minister quoted earlier,
also bring out this difference between the prohibited and permissible speech in this context.
Whether a particular speech in which reference is made to Hindutva and/or Hinduism falls
within the prohibition under sub-section (3) or (3-A) of Section 123 is, therefore, a question
of fact in each case.
45. This is the correct premise in our view on which all such matters are to be examined.
The fallacy is in the assumption that a speech in which reference is made to Hindutva or
Hinduism must be a speech on the ground of Hindu religion so that if the candidate for whom
the speech is made happens to be a Hindu, it must necessarily amount to a corrupt practice
under sub-section (3) and/or sub-section (3-A) of Section 123 of the R.P. Act. As indicated,
there is no such presumption permissible in law contrary to the several Constitution Bench
decisions referred to herein.
Non-compliance of Section 99 of the R.P. Act
 305

46. The contention that the notice given to Bal Thackeray under Section 99 of the R.P.
Act was not in conformity with that provision and that there is non-compliance of the
requirements of Section 99, has no merit. The notice was given after the entire evidence had
been recorded and the learned trial Judge formed the prima facie opinion that the corrupt
practices alleged to have been committed under sub-sections (3) and (3-A) of Section 123
appeared to have been proved and Bal Thackeray was likely to be named along with the
returned candidate to be guilty of those corrupt practices. The notice given was accompanied
by copies of pleadings and the entire evidence adduced at the trial for proving those corrupt
practices. The notice clearly stated that the noticee had the opportunity to cross-examine such
witnesses as had already been examined and of calling evidence in his defence and of being
heard. The noticee raised objection to the notice alleging that it was vague, which was
rejected by the High Court. That order was challenged by a special leave petition in this Court
which was dismissed granting liberty to the noticee to apply in the High Court for the precise
particulars claimed by him. Ultimately certain portions from the material on record were
indicated by the petitioner on such a direction being given by the High Court. In view of the
direction of this Court in the special leave petition, it would have been more appropriate for
the High Court to indicate the precise portions. However, there is no prejudice caused,
inasmuch as the portions were indicated by the election petitioner on the High Court's
direction. The election petitioner Prabhakar Kashinath Kunte (PW 1) was called for cross-
examination on behalf of the noticee. The noticee was given full opportunity to cross-examine
the witnesses already examined and to adduce evidence in his defence and to argue his case in
the High Court. The noticee Bal Thackeray did not choose to enter the witness-box and,
therefore, the material present has to be examined without any denial by the noticee as a
witness in the case.
47. There is no dispute that no material which was not given to the noticee Bal Thackeray
was used against him. We have already indicated that the finding of proof of the corrupt
practices alleged in the election petition is based on the three speeches of Bal Thackeray
which are not denied either by Dr Ramesh Prabhoo or by Bal Thackeray. Copy of the text of
those speeches is also undisputed. All this was furnished to the noticee Bal Thackeray. It is
difficult to visualise what prejudice could be caused to the noticee on these facts and how
there could be any non-compliance of Section 99 of the R.P. Act in this situation.
48. In order to examine the contention of non-compliance of Section 99, it is necessary to
examine the requirements of that provision. Section 99 reads as under:
“99. Other orders to be made by the High Court.— (1) At the time of making an order
under Section 98 the High Court shall also make an order—
(a) where any charge is made in the petition of any corrupt practice having been
committed at the election, recording—
(i) a finding whether any corrupt practice has or has not been proved to have
been committed at the election, and the nature of that corrupt practice; and
(ii) the names of all persons, if any, who have been proved at the trial to have
been guilty of any corrupt practice and the nature of that practice; and
(b) fixing the total amount of costs payable and specifying the persons by and to
whom costs shall be paid:
306

Provided that a person who is not a party to the petition shall not be named in the
order under sub-clause (ii) of clause (a) unless—
(a) he has been given notice to appear before the High Court and to show cause
why he should not be so named; and
(b) if he appears in pursuance of the notice, he has been given an opportunity of
cross-examining any witness who has already been examined by the High Court and
has given evidence against him, of calling evidence in his defence and of being heard.
(2) In this section and in Section 100, the expression ‘agent’ has the same meaning as
in Section 123.”
49. Sub-section (1) requires that at the time of making an order under Section 98, the
High Court shall also make an order recording the names of all persons, if any, who have
been proved at the trial to have been guilty of any corrupt practice and the nature of that
practice. In other words, while deciding the election petition at the conclusion of the trial and
making an order under Section 98 disposing of the election petition in one of the ways
specified therein, the High Court is required to record the names of all persons guilty of any
corrupt practice which has been proved at the trial. Proviso to sub-section (1) then prescribes
that a person who is not a party to the petition shall not be so named unless the condition
specified in the proviso is fulfilled. The requirement of the proviso is only in respect of a
person who is not a party to the petition and is to be named so that he too has the same
opportunity which was available to a party to the petition. The requirement specified is of a
notice to appear and show cause why he should not be named and if he appears in pursuance
of the notice, he has to be given an opportunity of cross-examining any witness who has
already been examined by the High Court and has given evidence against him and also the
opportunity of calling evidence in his defence and of being heard. In short, the opportunity
which a party to the petition had at the trial to defend against the allegation of corrupt practice
is to be given by such a notice to that person of defending himself if he was not already a
party to the petition. In other words, the noticee has to be equated with a party to the petition
for this purpose and is to be given the same opportunity which he would get if he was made a
party to the petition.
50. This is the pragmatic test to be applied for deciding the question of compliance of
Section 99 of the R.P. Act. If the noticee had the opportunity which he would have got as a
party to the petition, then there can be no case of non-compliance of Section 99. The
opportunity required to be given by the proviso to sub-section (1) of Section 99 is the same
and not more than that available to a party to the petition to defend himself against the charge
of corrupt practice. Applying the above test, there can be no doubt that there is no non-
compliance of Section 99 in the present case. The noticee Bal Thackeray had the same
opportunity which the returned candidate Dr Ramesh Yeshwant Prabhoo got as a respondent
to the petition. The noticee was given the opportunity to cross-examine any witness who had
already been examined by the High Court and the witnesses who were considered to have
given evidence against him, were also enumerated in the notice; and he was given an
opportunity to call evidence in his defence and to be heard.
51. In this situation, the grievance made that specific portions of the material which
formed the record at the trial were not precisely indicated to the noticee has no merit. It was
 307

clear from the pleading that the allegation against the noticee was in respect of the three
speeches made by him, the particulars of which were given and the text of those speeches also
was available to the noticee which he did not even deny. On these facts, there is no ground to
allege non-compliance of Section 99 of the R.P. Act. This contention on behalf of the noticee
Bal Thackeray is, therefore, rejected and the objection raised in the appeal of Bal Thackeray
of non-compliance of Section 99 of the R.P. Act has no merit.
52. We would now proceed to examine the facts of this case.
Speeches
53. It is in the light of the above discussion and the meaning of sub-sections (3) and (3-A)
of Section 123 that the effect of the alleged offending speeches has to be examined. The three
speeches were made on 29-11-1987, 9-12-1987 and 10-12-1987. The High Court has held that
the speeches of 29-11-1987 and 10-12-1987 amount to corrupt practices under sub-sections
(3) and (3-A) of Section 123, while the speech of 9-12-1987 is a corrupt practice only under
sub-section (3) thereof. The returned candidate Dr Ramesh Yeshwant Prabhoo was present in
all the three meetings in which these speeches were given by Bal Thackeray. The consent of
Dr Prabhoo for these speeches is implied from his conduct including his personal presence in
all the three meetings.
54. Certain extracts from the alleged speeches of Bal Thackeray, translated in English, are
expressly pleaded in the election petition, as under:
From Speech of 29-11-1987
“We are fighting this election for the protection of Hinduism. Therefore, we do not
care for the votes of the Muslims. This country belongs to Hindus and will remain so.”
From Speech of 9-12-1987
“Hinduism will triumph in this election and we must become hon'ble recipients of this
victory to ward off the danger on Hinduism, elect Ramesh Prabhoo to join with Chhagan
Bhujbal who is already there. You will find Hindu temples underneath if all the mosques
are dug out. Anybody who stands against the Hindus should be showed or worshipped
with shoes. A candidate by name Prabhoo should be led to victory in the name of
religion.”
From Speech of 10-12-1987
“We have gone with the ideology of Hinduism. Shiv Sena will implement this
ideology. Though this country belongs to Hindus, Ram and Krishn are insulted. (They)
valued the Muslim votes more than your votes: we do not want the Muslim votes. A
snake like Shahabuddin is sitting in the Janata Party, a man like Nihal Ahmed is also in
Janata Party. So the residents of Vile Parle should bury this party (Janata Party).”
55. It has been pleaded in the election petition that the above utterances in the three
meetings are examples to show that the appeal to voters emphasised that Dr Ramesh Prabhoo
was the only person who could represent the Hindu community and, therefore, the voters
should vote for Ramesh Prabhoo in the name of religion. The full text of the speeches was
adduced in evidence and the contents thereof are not disputed. It may be mentioned that a
notice under Section 99 of the R.P. Act was issued to Bal Thackeray who merely filed an
affidavit but did not enter the witness-box. The true import and impact of these speeches has,
308

therefore, to be adjudged in the light of the evidence including the statement of Dr Ramesh
Yeshwant Prabhoo without the version in evidence of Bal Thackeray.
56. The case was argued even before us on a demurrer treating the contents of the
speeches as reproduced in the full text in evidence, of which the specific portions pleaded in
the election petition are extracts. The question is: Whether these speeches amount to corrupt
practices under sub-sections (3) and/or (3-A) of Section 123 as held by the High Court?
57. We may now quote certain extracts from the three speeches of Bal Thackeray on
which reliance has been placed in particular by Shri Ashok Desai to support the judgment of
the High Court that they constitute the said corrupt practices. These are:
First speech on 29-11-1987
“All my Hindu brothers, sisters and mothers gathered here. ... Today Dr Prabhoo has
been put up as candidate from your Parle. ... But here one cannot do anything at anytime
about the snake in the form of Khalistan and Muslim. ... The entire country has been
ruined and therefore we took the stand of Hindutva and by taking the said stand we will
step in the Legislative Assembly. ... Unless we step forward strongly it would be difficult
for us to live because there would be war of religion. ... Muslims will come. What will
you Hindu (people) do? Are you going to throw ‘Bhasma’ (i.e. ashes) on them? ... We
won't mind if we do not get votes from a single Muslim and we are not at all desirous to
win an election with such votes. ... therefore, there is a dire need of the voice of Hindutva
and therefore please send Shiv Sena to Legislative Assembly. ... who are (these)
Muslims? Who are these ‘lande’? Once Vasant Dada had called me when he was a Chief
Minister. He told me that rest is O.K. But asked me as to why I was calling them Lande.
But is it correct if they call us ‘Kafer’ (i.e. traitor) then we will certainly call them
‘Lande’. ... They should bear in mind that this country is of Hindus, the same shall remain
of Hindus. ... if Shiv Sena comes to power and if the morchas come ---- first of all (we)
shall make them come. Everybody will have to take ‘diksha’ (i.e. initiation) of Hindu
religion. ...”
Second speech of 9-12-1987
“... The victory will not be mine or of Dr Prabhoo or of Shiv Sena but the victory will
be that of Hinduism. You will be instrumental in victory and you should become
instrument for the same. At last you have the right to get rid of the difficulties faced by
your caste, creed, gods, deities and Hindu religion. ... Therefore, I want to say that today
we are standing for Hinduism. ... Whatever Masjids are there, if one starts digging the
same, one will find Hindu temples under the same. ... If any body stands against
Hindustan you should show courage by performing pooja (i.e. worship) with shoes. ...
And a person by name Prabhoo who is contesting the election in the name of religion sent
ahead (in the assembly). A ‘Jawan’ — like Prabhoo should go there (in the assembly). ...”
Third speech of 10-12-1987
“... It will do, if we do not get a vote from any Muslim. If anybody from them is
present at this place he should think for himself. I am not in need of their votes. But I
want your vote. ... You must send only Dr Ramesh Prabhoo of Shiv Sena, otherwise
Hindus will be finished. It will not take much take (sic) for Hindustan to be green (i.e.
Pakistan?). ...”
 309

58. As earlier stated, the three speeches of Bal Thackeray from which the above extracts
have been quoted are admitted. Similarly the interview of Dr Ramesh Yeshwant Prabhoo and
its text published in Janmabhoomi Prawasi is admitted. Dr Prabhoo was the Mayor of
Bombay. Dr Prabhoo (RW 1) admitted his presence in the meetings held on 29-11-1987, 9-
12-1987 and 10-12-1987 in which the above speeches were given by Bal Thackeray. He
admitted speaking himself also in these meetings. He has said nothing in his statement to
suggest that he did not consent to the contents of the speeches of Bal Thackeray. In his
deposition, he has expressly admitted that the speeches of Bal Thackeray were according to
his election campaign. The element of the candidate's consent for the appeal to the voters
made by Bal Thackeray in his speeches is, therefore, adequately proved. About his interview
published in the Janmabhoomi Prawasi, issue of 9-12-1987, he said that the report is
substantially correct, even though the first paragraph of that news item is incorrect. Omitting
the first paragraph of the news item which he denied, certain portions, translated into English,
from the remaining news item publishing the interview are as under:
“... Dr Prabhoo told me that there was a Hindu wave in Parle. The battle is between
Hindus and Muslims i.e. to say between nationalist and anti-nationalist. ...
* * *
Supremely confident about his victory in the Vile Parle bye-election, Dr Prabhoo
discounted any possibility of his defeats but he added that if he loses, it will mean that
Hinduism has lost, ...”
59. The appeal made to the voters by Bal Thackeray in his aforesaid speech was a clear
appeal to the Hindu voters to vote for Dr Ramesh Prabhoo because he is a Hindu. The clear
import of the above extracts in each of the three speeches is to this effect. The first speech
also makes derogatory reference to Muslims by calling them ‘snake’ and referring to them as
‘lande’ (derogatory term used for those practising circumcision). The language used in the
context, amounted to an attempt to promote feelings of enmity or hatred between the Hindus
and the Muslims on the ground of religion. The first speech, therefore, also constitutes the
corrupt practice under sub-section (3-A).
60. The High Court has held the second speech to fall only under sub-section (3) and not
sub-section (3-A), but the third speech has been held to fall both under sub-sections (3) and
(3-A). We have already held the third speech also to constitute the corrupt practice under sub-
section (3). The correctness of the English translation of a part of the third speech was found
to be defective at the hearing and, therefore, an agreed fresh translation thereof was taken on
record. Reading the speech in the light of the fresh agreed translation of the defective portion,
it appears to us that the High Court's finding that the third speech amounts also to the corrupt
practice under sub-section (3-A) cannot be affirmed, even though this variation is of no
consequence to the ultimate result.
61. Our conclusion is that all the three speeches of Bal Thackeray amount to corrupt
practice under sub-section (3), while the first speech is a corrupt practice also under sub-
section (3-A) of Section 123 of the R.P. Act. Since the appeal made to the voters in these
speeches was to vote for Dr Ramesh Prabhoo on the ground of his religion as a Hindu and the
appeal was made with the consent of the candidate Dr Ramesh Prabhoo, he is guilty of these
corrupt practices. For the same reason, Bal Thackeray also is guilty of these corrupt practices
310

and, therefore, liable to be named in accordance with Section 99 of the R.P. Act of which due
compliance has been made in the present case.
62. We cannot help recording our distress at this kind of speeches given by a top leader of
a political party. The lack of restraint in the language used and the derogatory terms used
therein to refer to a group of people in an election speech is indeed to be condemned. The
likely impact of such language used by a political leader is greater. It is, therefore, a greater
need for the leaders to be more circumspect and careful in the kind of language they use in the
election campaign. This is essential not only for maintaining decency and propriety in the
election campaign but also for the preservation of the proper and time-honoured values
forming part of our cultural heritage and for a free and fair poll in a secular democracy. The
offending speeches in the present case discarded the cherished values of our rich cultural
heritage and tended to erode the secular polity. We say this, with the fervent hope that our
observation has some chastening effect in the future election campaigns.
63. For the aforesaid reasons, both the appeals must fail. We may observe that
considerable irrelevant material was brought on record during the trial at the instance of both
the parties which, apart from needlessly enlarging the scope of the trial, has led to needless
extra expense and wastage of time even in the hearing of these appeals. In these
circumstances, it is appropriate to direct the parties to bear their own costs in this Court.
Accordingly, both the appeals are dismissed.

*****
 311

Dev Kanta Barooah v. Golok Chandra Baruah

AIR 1970 SC 1231

BHARGAVA, J. - The appellant, Dev Kanta Barooah, was declared elected at the last
general elections to the Legislative Assembly of Assam in 1967, defeating the four rival
candidates who are respondents 1 to 4 in this appeal. Respondent no. 1, Golok Chandra
Baruah, filed an election petition challenging the election of the appellant on various grounds,
including a charge that false statements as to the personal character of respondent no. 1 had
been published with the consent of the appellant, thus constituting a corrupt practice under
section 123(4) of the Representation of the People Act, 1951 (hereinafter referred to as "the
Act"). This is the only ground which has been accepted by the High Court of Assam and
Nagaland and the election of the appellant has been set aside on this ground. In this appeal,
consequently, the only question that falls for decision is whether the High Court was right in
setting aside the election of the appellant on the ground of corrupt practice having been
committed within the meaning of section 123(4) of the Act. This corrupt practice was alleged
by respondent no. 1 to have been committed by the appellant by publication of a leaflet which
is, for convenience, reproduced below:
Why Golok Barua was driven away from the Congress?
(Picture of a pair of bullock with yoke)
Humble submission: One leaflet bearing full of downright falsehood and false
allegation with the Caption "Why I have left the Congress" has been published and
distributed by Shri Golok Chandra Barua in the Samaguri Constituency. The patriot
voters of Samaguri have sufficient experience and political consciousness. They
would not believe the abominable and false publicity of Shri Golok Barua. Still for
the knowledge of the public a brief description of the activities of public life of Shri
Barua has been published. From that it will be understood that Sri Golok Barua is not
an actual Congressman. He is a driven-out Congressman wearing a mask.
1. Golok Barua after rolling from several Colleges failed to pass the I.A. and at
first became a copyist at the Katchery and thereafter became a Clerk. At the mass-
movement of 1942 he earned some money by doing Military Contracts.
2. In 1952 by entering in the Congress sought nomination from the Congress from
the Samaguri Constituency. The Congress did not give him nomination as in the 1942
movement he helped the British and revolted against the Country. After breach of
promise he was badly defeated by standing against Shrimati Usha Barthakur who was
a Congress nominee.
3. Again by entreaties he joined the Congress and on the sudden death of Late
Pratap Chandra Sarma, Shri Golok Barua became the Chairman of Nowgong
Municipality. Please note some of the instances of injustice and chaos during his
tenure of office:
(Ka) During his time several thousand rupees were taken away from the Treasury
unlawfully on signatures resembling to those of his signatures. The matter is now
pending for hearing.
312

(Kha) When a huge amount of money withdrawn from the National Savings was
misappropriated, the Govt. Examiner of Accounts declared Sri Golok Barua alone as
guilty.
(Ga) At that time also on account of corruption in the Municipality alone late
Dharmeswar Sarma the then Head Clerk of his time had to commit suicide.
(Gha) While Sri Golok Barua was the Chairman at night like drunkard went to the
Ex-Chairman Dr. Birendra Kishore Guha and not finding Dr. Guha behaved his wife
and daughter unmannerly. After that, assaulted Dr. Guha with shoes in presence of
many persons. On that offence Sri Golok Barua was compelled to resign his
Chairmanship by the Executive Committee of the District Congress Committee.
4. This time Sri Golok Barua sought for nomination from the Congress as a
candidate to the Parliament from Kaliabar Constituency and a candidate to the
Legislative Assembly from the Barhampur Constituency. But the Congress refused to
give nomination due to his conduct and character and due to his treachery towards the
country and the Congress. Out of that grudge he, again, by breaking his written
promise to the effect that he would not go against the Congress if he was not given
nomination by the Congress, has stood as a non-party candidate again from the
Samaguri Constituency and he has published untrue and false propaganda against the
Congress.
5. Due to the offence of the treachery he has been completely driven away from
the Congress for a period of six years by the Assam Provincial Congress Committee.
As a matter of fact Sri Golok Barua has been driven out from the Congress. These
facts have been published for the knowledge of the vigilant and patriot electors of
Samaguri.
Nowgong Nowgong District Congress Election Committee
5-2-67.
The original leaflet was in Assamese and the above version of it is in accordance with the
official translation prepared in the paper book. During the course of arguments, however, it
was brought to our notice that, at some places, the translation did not correctly represent the
meaning conveyed in Assamese, so that the Assamese words were read out to us. Further, our
attention was also drawn to the translation accepted by the learned Judge of the High Court
who tried the election petition and who had some knowledge of Assamese language. We shall
indicate later where we consider that the translation reproduced above cannot be accepted as
correctly representing the text in Assamese language.
2. The ground taken in the election petition was that this leaflet contained false statements
as to the personal character or conduct of respondent no. 1 which were reasonably calculated
to prejudice his prospects of being elected in this election. The learned trial Judge held that
some of the statements of fact made in the leaflet did relate to the personal character or
conduct of respondent no. 1 and that, except for two such statements which were proved to be
true, they were false to the knowledge of the appellant. It was also held that this leaflet had
been published and distributed with the consent of the appellant, so that the election of the
appellant was set aside. In this appeal, Mr. Daphtary, appearing on behalf of the appellant,
 313

challenged the decision of the High Court in two respects. The first contention raised by him
was that the statements in this leaflet, which have been held to be false, did not relate to the
personal character or conduct of respondent no. 1 and that the statements which did relate to
the personal character or conduct of respondent no. 1 were proved to be true, so that the
provisions of section 123(4) of the Act were not attracted. The second contention was that the
High Court was not right in holding that this leaflet had been published and distributed with
the consent of the appellant. Since, after hearing arguments of learned counsel for both
parties, we have come to the view that the first point raised by Mr. Daphtary must be
accepted, we did not consider it necessary to hear counsel on the second point relating to
proof of consent of the appellant to the publication of this leaflet.
3. The leaflet purports to have been published on behalf of the Nowgong District
Congress Election Committee. It is admitted that respondent no. 1 wanted to be sponsored as
the candidate for the Legislative Assembly by the Congress Party in this general election. The
Congress Party, however, sponsored the candidature of the appellant, whereupon respondent
no. 1 stood for election as an independent candidate. In this background, respondent no. 1
issued a leaflet explaining why he had left the Congress and it was in reply to that leaflet that
the Nowgong District Congress Election Committee issued the leaflet in question. The leaflet,
thus, begins with the caption:"Why Golok Barua was driven away from the Congress?" The
leaflet thereafter purports to give the reasons why he was expelled from the Congress, and the
facts stated in it are divided into five paragraphs.
4. The first paragraph mentions that respondent no. 1 after rolling from several colleges
failed to pass the Intermediate Examination and at first became a copyist at the Kachery and
thereafter became a Clerk. At the mass movement of 1942, he earned some money by doing
Military Contracts. The High Court has held that this paragraph amounts to publication of
false statement covered by Section 123(4) of the Act inasmuch as it is incorrect that
respondent no.1 rolled from several colleges and that at the mass movement of 1942 he
earned some money by doing military contracts. The evidence disclosed that respondent no. 1
studied for his Intermediate Examination in only two Colleges one after the other and did not
move from college to college. It was also found as a fact that he did not pass the Intermediate
Arts Examination and that the reason was that he could not appear at the Examination at all
due to the death of his father. He did not fail at that examination. The further finding was that
he himself was in government service at the time of the movement of 1942, so that he could
not have done any military contract work in that year. It was only later on that he resigned and
joined the military contract business which was being carried on by his two brothers. The
High Court was of the view that the publication of these statements was bound to lower
respondent no. 1 in the opinion of the voters and, consequently, this publication amounted to
a corrupt practice. As urged by Mr. Daphtary, we are unable to agree that the publication of
the facts in this paragraph can be held to amount to false statements as to the personal
character or conduct of respondent no. 1. In an election, it is always open to a candidate to
show that his rival candidate is lacking in knowledge in education and is not capable of
managing the affairs properly in any public body. The intention in the first part of paragraph 1
of the leaflet was to inform the voters of the educational qualifications of respondent no. 1. He
did move from one college to a second one during his period of study for the Intermediate
314

Arts Examination. May be, that there is a slight exaggeration when the leaflet mentions that
he rolled from several colleges; but such an exaggeration is quite natural on occasions when
canvassing is going on for an election. It is to be noted that the leaflet does not state that
respondent no. 1 failed at the Intermediate Arts Examination. All it says is that he failed to
pass that Examination which has been admitted as being perfectly true by respondent no. 1
himself. He failed to pass, because he did not appear at the examination. Such a statement
cannot, in our opinion, be held to be a false statement affecting the personal character or
conduct of respondent no. 1. The second part of this paragraph can be conveniently dealt with
while discussing the facts mentioned in paragraph 2.
5. In paragraph 2 of the leaflet, the reason why the Congress did not give him nomination
is given. It is stated, that in the 1942 movement, he helped the British and revolted against the
country. The expression "revolted against the country" is a translation for the Assamese word
"Deshdrohita". It is true that the High Court has come to the finding of fact that in 1942
respondent no. 1 was in government service working as a Clerk and it was only later on, after
1943, that he actively participated in the business of his brothers of taking military contracts
for the British. The trend of the evidence, however, shows that his brothers had been carrying
on the military contracts business even earlier than 1943. Even for the later period, respondent
no. 1 tried to deny that he actually participated in the military contract business with his
brothers; but, when cross-examined in detail and confronted with a power of attorney in his
favour, he had to make admissions which clearly show that he was taking part in that
business. It appears to be quite likely that, even before he actually resigned government
service and joined the business of his brothers, he may have been assisting them, so that the
allegation that he helped the British in 1942 movement by taking military contracts cannot be
said to be a false statement; at best, there may be a slight errors about the period during which
he did that work. Again, the aspect that he was helping the British by taking military contracts
relates to a reflection on his political conduct in siding with the British Government rather
than joining the Congress which was carrying on a movement against the British for
achieving independence of the country. It was in this background that his activities were
described by using the word "Deshdrohita" in this pamphlet. Whether it amounted to
"deshdrohita" or not may be a disputed question. Members of the Congress, who were
carrying on the agitation against the British for achieving independence of the country, could
very legitimately think that any one who helped the British at that time was guilty of
"deshdrohita" inasmuch as his activities were against the interests of our country. This
expression was also, therefore, used to describe the nature of his activities which, in fact,
related to the political situation at that time. It cannot be said that this paragraph reflects on
the personal character or conduct of respondent no. 1, as there is no imputation of any
depravity or immorality in this paragraph.
6. Paragraph 3 is the principal paragraph in which the conduct of respondent no. 1 has
been criticised. Admittedly, he was the Chairman to the Nowgong Municipality, and the
principal part of this paragraph asks the voters to note some of the instances of injustice and
chaos during his tenure of office. In Assamese, the two words which have been translated as
"injustice" and "chaos" were "Durniti" and "Arajakta" Our attention was drawn by learned
counsel for respondent no. 1 to the statement of Devendra Nath Bora, the writer of this leaflet,
 315

where he stated that he meant by these words "corruption" and "lack of administration". The
High Court took these words to mean "corruption" and "anarchism" as these are the English
words used in the judgment of the High Court. It may, however, be noted that, in this part, it
is not stated that respondent no. 1 himself was corrupt. The imputation only is that, during his
tenure of office, there were instances of corruption and chaos.Thereafter, the four instances
are given. It cannot, therefore, be held that the leaflet was intended to convey to the readers
that respondent no. 1 was himself corrupt. The impression that would be expected to be
created would be that be that his administration as Chairman of the Municipality was so
unsatisfactory that corruption and chaos prevailed in the affairs of the Municipality. The
imputation, therefore, was as to mismanagement of the affairs of the Municipality by
respondent no. 1, indicating that he was not a good administrator. The leaflet was not intended
to convey to the voters any reflection on the personal character of respondent no. 1.
7. In clause (Ka), the instance given is that, during his time, several thousand rupees were
taken away from the Treasury unlawfully on signatures resembling his signatures and that the
matter was still pending for hearing when the leaflet was issued. Mr. Daphtary drew our
attention to the admissions made by respondent no. 1 himself when he was in the witness-box
that several thousand rupees were, in fact, drawn from the Treasury in the municipal accounts
on the basis of some cheques containing signatures which resembled the signature of
respondent no. 1. In substance, therefore, the truth of the statement contained in this clause is
admitted. The only part of the statement in this clause, which is found to be incorrect, is that
the matter was pending for hearing even at the time of the election. It appears that the criminal
case relating to that incident had been decided earlier. The part of the statement, which was
not true, did not, by itself, contain any statement relating to the conduct or character of
respondent no. 1. The first sentence, which cast reflection on respondent no.1 by indicating
that the management of the affairs of the Municipality in his time was not good and
successful, has been admitted to be true. Consequently, this clause cannot be held to
constitute corrupt practice under Section 123(4) of the Act.
8. In clauses (Kha) and (Cha), there are, undoubtedly, statements which reflect on the
personal character and conduct of respondent no. 1. Clause (Kha) mentions that, when a huge
amount of money withdrawn from the National Savings was misappropriated, the
Government Examiner of Accounts declared Sri Golok Barua alone as guilty. The word
"guilty", in fact, is not the correct translation for the Assamese word which was "Daee". The
learned Judge of the High Court translated this word as “responsible” in his judgment, which
appears to us to be correct. The learned Judge also held that the allegation contained in this
clause has been proved to be true. The report of the Government Examiner of Accounts was
brought to our notice. In that report, the Auditor wrote:
The entire responsibility for their encashment and credit to the fund rests with
him and the fact that the accounts were maintained by the Head-Assistant does not
absolve the Chairman of his responsibility in this connection. The Chairman, Sri G.
C. Barua, stands fully liable for the loss, which should be recovered from him now.
The contents of clause (Kha) do not go beyond what was found by the Auditor in his report,
the relevant part of which has been reproduced by us above. It is true that this statement, to
some extent, reflects on the personal character of respondent no. 11 in as much as it states that
316

he was held responsible for the misappropriated money; but, that being a true fact, its
publication has rightly been held by the High Court not to amount to corrupt practice.
9. Similarly, in clause (Gha), there is mention of an incident when respondent no. 1, while
Chairman of the Municipality, is alleged to have gone at night like a drunkard to the house of
Ex-Chairman, Dr. Birendra Kishore Guha, and, not finding Dr.Guha, "behaved with his wife
and daughter unmannerly". It is further stated that, after that, he assaulted Dr. Guha with
shoes in the presence of many persons, and that, on that offence, he was compelled to resign
the Chairmanship by the Executive Committee of the District Congress Committee. The High
Court has held that the facts stated in this clause are also true. The only point that Mr.
Chatterjee, counsel for respondent no. 1, could urge was that, according to the evidence of the
daughter of Dr. Guha, there was no misbehaviour with the wife and the mention of the wife in
this clause was intended to convey an idea of some immoral behaviour on the part of
respondent no. 1 which is not supported by any statement of fact. We have examined the
evidence of the daughter, Miss Sipra Guha alias Miss Lily Guha, who related what happened
during that night. According to her, she and her mother were inside the house when some one
knocked at the door calling out "Dr. Guha, Dr. Guha". At the instance of her mother, she
opened the door and the gentleman who was there caught hold of her clothes just under the
neck and pulled her towards him. At this, she shouted for her mother who came to the scene
and recognised respondent no. 1. Respondent no.1 then angrily asked where Dr. Guha was
and whether he was inside the house. Her mother replied to him that her father had gone to
see the Jatra performance. She also got angry and protested against his being there at such a
time. She also found smell of alcohol coming from the mouth of respondent no. 1. The
version given by this witness seems to fully justify the statement contained in clause (Gha).
The mention of the wife is with reference to unmannerly behaviour towards her. It does not
say that any attempt was made by him to assault her. The High Court was, therefore, quite
correct in recording the finding that these allegations contained in this clause were true and,
not being false statements, they could not constitute corrupt practice under Section 123(4) of
the Act.
10. There remains clause (Ga) of paragraph 3 in which it is stated that, at that time also,
on account of corruption in the Municipality alone, late Dharmeswar Sarma, the then Head
Clerk of his time, had to commit suicide. Some of the ingredients of this clause have been
found by the High Court to be incorrect. The facts found show that, while respondent no. 1
was Chairman, he issued an order to the effect that the salaries of sweepers were to be paid by
the Head Clerk instead of the Accountant who was to hand over the money for that purpose of
the Head Clerk. Respondent no. 1 resigned the Chairmanship in November, 1964 and his
resignation was accepted on 21st November, 1964. It was subsequently in the month of
December, 1964 that the salary of the sweepers was not paid by the Head Clerk, Dharmeswar
Sarma, who had received the money for this purpose. Under the orders of respondent no. 1,
the payments had to be made by the Head Clerk in the presence of the Chairman or the Vice-
Chairman or some, other member nominated for the purpose by the Chairman. The Vice-
Chairman held Dharmeswar Sarma responsible for the money when he found that the
sweepers had not been paid and, thereupon, directed Dharmeswar Sarma to make good the
shortage and pay up all the sweepers by 1 p.m. on 10th December, 1964 positively, failing
 317

which legal action would be taken against him. This order was not carried out and, instead, on
10th December, 1964, Dharmeswar Sarma committed suicide. These facts, no doubt, indicate
that the statements made in clause (Ga) of paragraph 3 are not strictly correct. The main
allegation that Dharmeswar Sarma, the Head Clerk, committed suicide and that it was the
result of corruption which was going on in the Municipality are borne out by the facts found.
The expression used "at that time" in this clause, if interpreted literally, would mean that the
suicide was committed while respondent no. 1 was himself the Chairman which is not true
inasmuch as he had resigned earlier. It is, however, to be noted that the opportunity for
Dharmeswar Sarma to misappropriate the money occurred only because of an order which
had been passed earlier by respondent no. 1 while he was Chairman of the Municipality. In
these circumstances, it has to be held that the allegation made in this clause is also
substantially correct. The allegation was intended to convey that there was corruption in the
Municipality at the time when respondent no. 1 was the Chairman and that it was so has been
found to be true. There was no suggestion in this clause that respondent no. 1 himself was
corrupt and that the suicide was the result of his personal corruption. Thus, this part of the
leaflet also cannot constitute corrupt practice under Section 123(4) of the Act.
11. Then, we come to paragraphs 4 and 5 of the leaflet in which the main objection is to
the mention of his treachery towards the country and the Congress. In paragraph 4, it is stated
that the Congress refused to give nomination due to his conduct and character and due to his
treachery towards the country and the Congress, while paragraph 5 states that, due to the
offence of treachery, he had been completely driven away from the Congress for a period of
six years by the Assam Provincial Congress Committee. The word "treachery" is a translation
for the Assamese word "Vishwasghatakta" which probably can be more appropriately
translated as "breach of faith", though treachery may also be one of the translations for this
word. On the face of it, the treachery or breach of faith towards the country again refers to his
help to the British by taking military contracts at about the time of the movement of 1942,
while his treachery or breach of faith towards the Congress has reference to his standing as a
candidate against the Congress nominee in the earlier election as well as in this election.
Learned counsel for respondent no. 1 urged that the terms used in this leaflet,
viz."Deshdrohita" and "Vishwasghatakta" are very strong terms and are, bound to be taken by
voters in such a light that they would have a low opinion about the character of respondent no.
1. It is, however, to be noted that these words have been used in the context of facts on the
basis of which the writer of this leaflet thought that respondent no. 1 had been guilty of
"Deshdrohita" and "Vishwasghatakta". It is, therefore, really an expression of opinion about
respondent no. 1 based on facts. These words do not themselves connote any statement of fact
which can be, said to be false.
12. In this connection, learned counsel for respondent no. 1 relied on the decision of this
Court in Kumara Nand v. Brijmohan Lal Sharma [(1967) 2 SCR 127] where, in a poem, the
candidate was described as the "greatest of all thieves" The Court held that this description
was not a mere opinion and that, when the candidate was called the greatest of all thieves, a
statement of fact was being made as to his personal character or conduct. There are two
features which distinguish that case from the case before us. First, a statement that a person is
a thief clearly imputes to him moral depravity, while statements saying that he has committed
318

"Deshdrohita" or "Vishwasghatakta" only reflect on his conduct in the political field and do
not bring in any element of moral depravity. Secondly, in that case, no facts were given from
which an inference might have been sought to be drawn that the candidate was the greatest of
all thieves, while, in the case before us, objectionable words have been used after giving the
facts, on the basis of which it was held that the conduct of respondent no. 1 had been
undesirable so as to be described as "Deshdrohita" and "Vishwasghatakta". Counsel for the
appellant, in this connection, relied on a passage at page 91 of Parker's Election Agent and
Returning Officer, 6th Edition, which is to the following effect:
But the following have been held not to be within the provision: - a statement
which imputed that the candidate was a traitor, and was one of certain persons who
were in correspondence with the enemy shortly before the South African war broke
out in 1899.
This passage is based on the decision in Ellis v. The National Union of Conservative and
Constitutional Association [109 LT Jo. 493] which book has not been available to us. Based
on the same case, it is stated in note (a) at page 227 under paragraph 394 of Halsbury's Laws
of England, 3rd Edn., Volume 14, that:
The words 'Radical Traitors' were held to be not within the provision, as being a
statement of opinion rather than of fact.
Counsel for respondent no. 1, however, drew our attention to the fact that in the case of
Kumara Nand [(1967) 2 SCR 127] this Court did not rely on Parker's version of the decision
on the ground that in Rogers on Elections, Vol. II, 20th edn., at page 368, the facts given
indicated that there was no statement of fact with respect to the candidate himself that he was
a traitor and all that was said was that Radical members of the House of Commons were in
correspondence with the Boers and the candidate happened to be one of the Radical members.
On this ground, the Court did not choose to accept the dictum reproduced by Parker. It,
however, appears that, even in Rogers on Elections, it was mentioned, in addition to the facts
noted in that case by this Court, that "any false statements were of opinion only and not of
fact". This part of the sentence in Rogers on Elections does not seem to have been brought to
the notice of the Court. It appears that, apart from the allegation that Radical members of the
House of Commons were in correspondence with the enemy, there must have been an
inference drawn that the candidate was a traitor and it is with reference to this last statement
that Rogers mentions that the false statements were held to be matters of opinion only and not
of fact. In any case, even if we do not rely on the principle laid down in that case in England,
we are still of the view that, in the present case where the statements of fact are given and
only inferences are drawn, the words used at the time of putting down the inferences have to
be held to be expressions of opinion and not statements of fact.
13. Reliance was also placed on behalf of respondent no. 1 on the quotation from the
decision in T. K. Gangi Reddy v. M. C. Anjaneya Reddy reproduced in the case of Sheopat
Singh v. Ram Pratap[(1965) 1 SCR 175,179] which is to the following effect:
The words 'personal character or conduct' are so clear that they do not require
further elucidation or definition. The character of a person may ordinarily be equated
with his mental or moral nature. Conduct connotes a person's actions or behaviour......
 319

What is more damaging to a person's character and conduct than to state that he
instigated a murder and that he was guilty of violent acts in his political career?
This view expressed in that case is also not applicable to the case before us, because here the
objectionable words have been very clearly and obviously used as inferences drawn by the
writer from statements of fact given in the leaflet itself. Reference was also made by counsel
for respondent no. 1 to the decision of this Court in Mohan Singh v. Bhanwarlal [(1960) 22
E.L.R. 261] where it was held that the leaflets in question clearly implied that the candidate
had misappropriated the fund collected by him, and this was held to be a statement of fact
constituting a corrupt practice under Section 123(4) of the Act. In that case, again, the
imputation was of a nature that affected the personal character of the candidate indicating that
he had been dishonest in misappropriating money, while, in the case before us, no such facts
have been found.
14. It is quite clear that these words "Deshdrohita" and "Vishwasghatakta" have been used
in this leaflet only to bring into light the conduct of respondent no. 1 which was adverse to the
policies of the Congress and, at one stage, against the interests of the country. Possibly,
milder words could have been used to describe his conduct on those occasions, but even the
use of strong words is not very unnatural at the time of elections. In judging whether the use
of such words can be held to be a corrupt practice, we have to keep in view the principles
indicated by this Court, how such document should be read, in the case of Kultar Singh v.
Mukhtiar Singh [(1964) 5 SCR 12]. The Court held :
The principles which have to be applied in construing such a document are well-
settled. The document must be read as a whole and its purport and effect determined
in a fair, objective and reasonable manner. In reading such documents, it would be
unrealistic to ignore the fact that when election meetings are held and appeals are
made by candidates of opposing political parties, the atmosphere is usually
surcharged with partisan feelings and emotions and the use of hyperboles or
exaggerated language, or the adoption of metaphors, and the extravagance of
expression in attacking one another, are all a part of the game, and so, when the
question about the effect of speeches delivered or pamphlets distributed at election
meetings is argued in the cold atmosphere of a judicial chamber, some allowance
must be made and the impugned speeches or pamphlets must be construed in that
light. In doing so, however, it would be, unreasonable to ignore the question as to
what the effect of the said speech or pamphlet would be on the mind of the ordinary
voter who attends such meetings and reads the pamphlets or hears the speeches.
Examined on these principles, it would be clear that the words that were used, though harsh,
were not such as to lead the voters to think that respondent no. 1 had a low moral character.
Care was taken to give the facts from which inferences were being drawn and the voters could
very well perceive for themselves whether the inference, which was drawn and expressed in
these strong terms, was justified or not. Schofield in his book on Parliamentary Elections,
2nd Edition, at page 437, has reproduced a quotation from a decision of Darling, J.in
Cumberland Cockermouth Division case [(1901) 5 O. M. & H. 155] where he said:
320

You must not make or publish any false statement of fact in relation to the
personal character or conduct of a candidate; if you do, it is an illegal practice. It is
not an offence to say something which may be severe about another person nor which
may be unjustifiable nor which may be derogatory unless it amounts to a false
statement of fact in relation to the personal character or conduct of such candidate;
there is a great distinction to be drawn between a false statement of fact which affects
the personal character or conduct of a candidate and a false statement of fact which
deals with the political position or reputation or action of the candidate. If that were
not kept in mind, this statute would simply have prohibited at election times all sorts
of criticism which was not strictly true relating to the political behaviour and opinions
of the candidate. That is why it carefully provides that the false statements in order to
be an illegal practice, must relate to the personal character and personal conduct.
This passage was quoted with approval by this Court in Guruji Shrihari Baliram Jivatode v.
Vithalrao [(1969) 1 SCC 82). It is to be noted that Darling, J., held that a false statement of
fact, which deals with the political position or reputation or action of a candidate, cannot be
held to be a corrupt practice. The imputations that have been made in paragraphs 1, 2, 4 and 5
of the leaflet and which have been found to be false in the case before us clearly relate to the
political position, reputation or action of respondent no. 1. A similar distinction was also
drawn by this Court in the case of Inder Lal v. Lal Singh [(1962) 3 Supp. SCR 114]. All
these cases clearly indicate that imputations of the type which are in question in the leaflet
before us and which may, to some extent, be false or inaccurate cannot be held to be false
statements as to the personal character of respondent no. 1 and cannot, therefore, constitute
corrupt practice under Section 123(4) of the Act. The only statements, which did relate to the
personal character of respondent no. 1, have been found to be true.
15. In support of his argument, counsel for respondent no. 1 drew our attention to the
evidence of some of the witnesses examined on his behalf in order to show what was the
reaction of this leaflet on the various voters. P.W. 2, Shashi Nath Bardoloi, stated that his own
reaction was that this leaflet had very much scandalised respondent no. 1 and, when asked
what he remembered about the leaflet, he mentioned that respondent no. 1 could not pass the
Intermediate Examination, though he rolled from college to college, whereafter he joined as a
copyist and then became a clerk at Nowgong Court, that there was an allegation that
somebody withdrew some money from the treasury with the forged signature of respondent
no. 1 about which a case was pending, and that, for his fault, one Head-clerk of the
Municipality committed suicide. It is to be noticed that none of the facts given in the leaflet
casting reflection on the personal character of respondent no. 1 seem to have impressed him
or stuck in his mind. He also stated that some persons, who were going to vote for respondent
no. 1, decided not to do so after the issue of this leaflet; but, when asked to name even one of
those persons, he could not do so.
16. The evidence of the next witness P.W.3, Golok Chand Saikia, is even more
unsatisfactory, because he did not give his own reaction to the leaflet at all and only stated
that, after its publication, most of the people who were in favour of respondent no. 1 changed
their minds about respondent no. 1, but, again, he could not give the name of even one single
person who wanted to vote for respondent no. 1 and did not in fact do so.
 321

17. P.W. 4 is Bhola Ram Das. According to his evidence, he carried the impression that
this leaflet had stated that respondent no. 1 had misappropriated some money from the
Congress and, consequently, he changed his mind about giving vote to him on receipt of this
leaflet. On the face of it, there is nothing at all in the leaflet to justify his inference, as there
was no suggestion at all of any misappropriation of money by respondent no. 1, much less
money belonging to the Congress. He purported to state that he had read the leaflet himself,
though, when cross-examined and asked if he could read Assamese, he admitted that he was
almost illiterate.
18. The next witness P.W. 5, Hara Kanta Bora, also stated that, on reading the leaflet, he
got the impression that respondent no. 1 was a man of bad character, the main impression
which was carried by him being that respondent no. 1 had some bad relationship with the wife
of Dr. Guha. To test the veracity of this witness, he was asked which candidate he had worked
for in this election and he stated that he had worked for the appellant, having been appointed
as his polling agent. When further cross-examined, he was unable to state what the duties of a
polling agent were, while evidence has been led to prove that another person of the same
name had worked as polling agent of the appellant. This leads to the inference that this
witness falsely posed to be the polling agent of the appellant and no reliance can, therefore, be
placed on the evidence of such a witness.
19. The last witness, whose evidence was brought to our notice, is P.W. 6 Liladhar Barua
who stated that, on reading this leaflet, he gathered the impression that respondent no. 1 was a
man of bad character and that it was also stated in it that respondent no. 1 took the side of the
military and committed atrocities on the people in 1942 movement period. In his case, again,
the mention of commission of atrocities in 1942 movement could not have been inferred from
any statement at all contained in the leaflet. Counsel for respondent no. 1 stated that the
witness knew that atrocities were committed in 1942 and, consequently, he drew this
inference from the mention of respondent no. 1 in connection with that movement stating that
he had sided with the British. This witness was scarcely five years old in 1942 and he could
not have any recollection of atrocities committed about the year 1942, so that the suggestion
made by counsel for respondent no. 1 offers no explanation. It is clear that all these witnesses
have merely tried to favour the case of respondent no. 1 and their evidence relating to the
impression created by the leaflet is of no value at all. In the circumstances, the view we have
formed above on our own assessment of the material contained in this leaflet does not require
to be revised on the basis of this evidence. The publication of the leaflet cannot be held to
constitute corrupt practice under Section 123(4) of the Act.
20. The appeal is, consequently, allowed, the decision of the High Court is set aside and
the election petition is dismissed with costs in both Courts.

*****
322

People's Union for Civil Liberties v. Union of India

AIR 2003 SC 2363

P. VENKATARAMA REDDI, J. - 83. The width and amplitude of the right to

information about the candidates contesting elections to the Parliament or State Legislature in
the context of the citizens’ right to vote broadly falls for consideration in these writ petitions
under Article 32 of the Constitution. While I respectfully agree with the conclusion that
Section 33-B of the Representation of the People Act, 1951 does not pass the test of
constitutionality, I have come across a limited area of disagreement on certain aspects,
especially pertaining the extent of disclosures that could be insisted upon by the Court in the
light of legislation on the subject. Moreover, the importance and intricacies of the subject-
matter and the virgin ground trodden by this Court in Union of India v. Association for
Democratic Reforms [(2002) 5 SCC 294] to bring the right to information of the voter within
the sweep of Article 19(1)(a) has impelled me to elucidate and clarify certain crucial aspects.
Hence, this separate opinion.
1. (1) Freedom of expression and right to information
84. In the Constitution of our democratic Republic, among the fundamental freedoms,
freedom of speech and expression shines radiantly in the firmament of Part III. We must take
legitimate pride that this cherished freedom has grown from strength to strength in the post
independent era. It has been constantly nourished and shaped to new dimensions in tune with
the contemporary needs by the constitutional courts. Barring a few aberrations, the Executive
Government and the Political Parties too have not lagged behind in safeguarding this valuable
right which is the insignia of democratic culture of a nation. Nurtured by this right, Press and
electronic media have emerged as powerful instruments to mould the public opinion and to
educate, entertain and enlighten the public.
85. Freedom of speech and expression, just as equality clause and the guarantee of life and
liberty has been very broadly construed by this Court right from 1950s. It has been variously
described as a 'basic human right', 'a natural right' and the like. It embraces within its scope
the freedom of propagation and inter-change of ideas, dissemination of information which
would help formation of one's opinion and viewpoint and debates on matters of public
concern. The importance which our Constitution- makers wanted to attach to this freedom is
evident from the fact that reasonable restrictions on that right could be placed by law only on
the limited grounds specified in Article 19(2), not to speak of inherent limitations of the right.
86. In due course of time, several species of rights unenumerated in Article 19(1)(a) have
branched off from the genus of the Article through the process of interpretation by this apex
Court. One such right is the 'right to information'. Perhaps, the first decision which has
adverted to this right is State of U.P. v. Raj Narain [(1975) 4 SCC 428]. ‘The right to know’,
it was observed by Mathew, J."which is derived from the concept of freedom of speech,
though not absolute is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security". It was said very
aptly-
 323

In a Government of responsibility like ours, where all the agents of the public
must be responsible for their conduct, there can be but few secrets. The people of this
country have a right to know every public act, everything that is done in a public way,
by their public functionaries.
87. The next milestone which showed the way for concretizing this right is the decision in
S.P. Gupta v. Union of India [(1981)Supp l SCC 87] in which this Court dealt with the issue
of High Court Judges' transfer. Bhagwati, J. observed-
The concept of an open government is the direct emanation from the right to
know which seems to be implicit in the right of free speech and expression
guaranteed under Article 19(1)(a). Therefore, disclosure of information in regard to
the functioning of the Government must be the rule and secrecy an exception.
88. Peoples' right to know about governmental affairs was emphasized in the following
words:
No democratic Government can survive without accountability and the basic
postulate of accountability is that the people should have information about the
functioning of the Government. It is only when people know how Government is
functioning that they can fulfill the role which democracy assigns to them and make
democracy a really effective participatory democracy.
89. These two decisions have recognized that the right of the citizens to obtain
information on matters relating to public acts flows from the fundamental right enshrined in
Article 19(1)(a). The pertinent observations made by the learned Judges in these two cases
were in the context of the question whether the privilege under Section 123 of the Evidence
Act could be claimed by the State in respect of the Blue Book in the first case i.e., Raj Narain
case and the file throwing light on the consultation process with the Chief Justice, in the
second case. Though the scope and ambit of Article 19(1)(a) vis-a-vis the right to information
did not directly arise for consideration in those two landmark decisions, the observations
quoted supra have certain amount of relevance in evaluating the nature and character of the
right.
90. Then, we have the decision in Dinesh Trivedi v. Union of India [(1997) 4 SCC 306]
where this Court was confronted with the issue whether background papers and investigatory
reports which were referred to in Vohra Committee's Report could be compelled to be made
public. The following observations of Ahmadi, C.J. are quite pertinent:--
In modern Constitutional democracies, it is axiomatic that citizens have a right to
know about the affairs of the Government which, having been elected by them, seeks
to formulate sound policies of governance aimed at their welfare. However, like all
other rights, even this right has recognized limitations; it is, by no means, absolute.
91. The proposition expressed by Mathew, J. in Raj Narain case was quoted with
approval.
92. The next decision which deserves reference is the case of Secretary, Ministry of I & B
v. Cricket Association of Bengal [(1995) 2 SCC 161]. Has an organizer or producer of any
event a right to get the event telecast through an agency of his choice whether national or
324

foreign? That was the primary question decided in that case. It was highlighted that the right
to impart and receive information is a part of the fundamental right under Article 19(1)(a) of
the Constitution. On this point, Sawant, J. had this to say at paragraph 75-
The right to impart and receive information is a species of the right of freedom of
speech and expression guaranteed by Article 19(1)(a) of the Constitution. A citizen
has a fundamental right to use the best means of imparting and receiving information
and as such to have an access to telecasting for the purpose. However, this right to
have an access to telecasting has limitations on account of the use of the public
property.
93. Jeevan Reddy, J. spoke more or less in the same voice:
The right of free speech and expression includes the right to receive and impart
information. For ensuring the free speech right of the citizens of this country, it is
necessary that the citizens have the benefit of plurality of views and a range of
opinions on all public issues. A successful democracy posits an 'aware' citizenry.
Diversity of opinions, views, ideas and ideologies is essential to enable the citizens to
arrive at informed judgment on all issues touching them.
94. A conspectus of these cases would reveal that the right to receive and impart
information was considered in the context of privilege pleaded by the State in relation to
confidential documents relating to public affairs and the freedom of electronic media in
broadcasting/telecasting certain events.
I. (2) Right to information in the context of the voter's right to know the details of
contesting candidates and the right of the media and others to enlighten the voter
95. In Democratic Reforms’ case, which is the forerunner to the present controversy, the
right to know about the candidate standing for election has been brought within the sweep of
Article 19(1)(a). There can be no doubt that by doing so, a new dimension has been given to
the right embodied in Article 19(1)(a) through a creative approach dictated by the need to
improve and refine the political process of election. In carving out this right, the Court had not
traversed a beaten track but took a fresh path. It must be noted that the right to information
evolved by this Court in the said case is qualitatively different from the right to get
information about public affairs or the right to receive information through the Press and
electronic media, though to a certain extent, there may be overlapping. The right to
information of the voter/citizen is sought to be enforced against an individual who intends to
become a public figure and the information relates to his personal matters. Secondly, that
right cannot materialize without State's intervention. The State or its instrumentality has to
compel a subject to make the information available to public, by means of legislation or
orders having the force of law. With respect, I am unable to share the view that it stands on
the same footing as right to telecast and the right to view the sports and games or other items
of entertainment through television One more observation at Paragraph 30 to the effect that
"the decision making process of a voter would include his right to know about public
functionaries who are required to be elected by him" needs explanation. Till a candidate gets
elected and enters the House, it would not be appropriate to refer to him as a public
functionary. Therefore, the right to know about a public act done by a public functionary to
 325

which we find reference in Raj Narain case is not the same thing as the right to know about
the antecedents of the candidate contesting for the election. Nevertheless, the conclusion
reached by the Court that the voter has such a right and that the right falls within the realm of
freedom of speech and expression guaranteed by Article 19(1)(a) can be justified on good and
substantial grounds. To this aspect, I will advert a little later. Before that, I would like to say
that it would have been in the fitness of the things if the case [U.O.I. v. Association for
Democratic Reforms] was referred to the Constitution Bench as per the mandate of Article
145(3) for the reason that a new dimension has been added to the concept of freedom of
expression so as to bring within its ambit a new species of right to information. Apparently,
no such request was made at the hearing and all parties invited the decision of three Judge
Bench. The law has been laid down therein elevating the right to secure information about a
contesting candidate to the position of a fundamental right. That decision has been duly taken
note of by the Parliament and acted upon by the Election Commission. It has attained finality.
At this stage, it would not be appropriate to set the clock back and refer the matter to
Constitution Bench to test the correctness of the view taken in that case. I agree with my
learned brother Shah, J. in this respect. However, I would prefer to give reasons of my own-
may not be very different from what the learned Judge had expressed, to demonstrate that the
proposition laid down by this Court rests on a firm Constitutional basis.
96. I shall now proceed to elucidate as to how the right to know the details about the
contesting candidate should be regarded as a part of the freedom of expression guaranteed by
Article 19(1)(a). This issue has to be viewed from more than one angle-from the point of view
of the voter, the public viz., representatives of Press, organizations such as the petitioners
which are interested in taking up public issues and thirdly from the point of view of the
persons seeking election to the legislative bodies.
97. The trite saying that 'democracy is for the people, of the people and by the people' has
to be remembered forever. In a democratic republic, it is the will of the people that is
paramount and becomes the basis of the authority of the Government. The will is expressed in
periodic elections based on universal adult suffrage held by means of secret ballot. It is
through the ballot that the voter expresses his choice or preference for a candidate. "Voting is
formal expression of will or opinion by the person entitled to exercise the right on the subject
or issue", as [(1993) 4 SCC 234] quoting from Black's Law Dictionary. The citizens of the
country are enabled to take part in the Government through their chosen representatives. In a
Parliamentary democracy like ours, the Government of the day is responsible to the people
through their elected representatives. The elected representative acts or is supposed to act as a
live link between the people and the Government. The peoples' representatives fill the role of
law-makers and custodians of Government. People look to them for ventilation and redressal
of their grievances. They are the focal point of the will and authority of the people at large.
The moment they put in papers for contesting the election, they are subjected to public gaze
and public scrutiny. The character, strength and weakness of the candidate is widely debated.
Nothing is therefore more important for sustenance of democratic polity than the voter
making an intelligent and rational choice of his or her representative. For this, the voter
should be in a position to effectively formulate his/her opinion and to ultimately express that
opinion through ballot by casting the vote. The concomitant of the right to vote which is the
326

basic postulate of democracy is thus two fold: first, formulation of opinion about the
candidates and second, the expression of choice by casting the vote in favour of the preferred
candidate at the polling booth. The first step is complementary to the other. Many a voter will
be handicapped in formulating the opinion and making a proper choice of the candidate unless
the essential information regarding the candidate is available. The voter/citizen should have at
least the basic information about the contesting candidate, such as his involvement in serious
criminal offences. To scuttle the flow of information-relevant and essential would affect the
electorate's ability to evaluate the candidate. Not only that, the information relating to the
candidates will pave the way for public debate on the merits and demerits of the
candidates.When once there is public disclosure of the relevant details concerning the
candidates, the Press, as a media of mass communication and voluntary organizations vigilant
enough to channel the public opinion on right lines will be able to disseminate the information
and thereby enlighten and alert the public at large regarding the adverse antecedents of a
candidate. It will go a long way in promoting the freedom of speech and expression. That goal
would be accomplished in two ways. It will help the voter who is interested in seeking and
receiving information about the candidate to form an opinion according to his or her
conscience and best of judgment and secondly it will facilitate the Press and voluntary
organizations in imparting information on a matter of vital public concern. An informed
voter-whether he acquires information directly by keeping track of disclosures or through the
Press and other channels of communication, will be able to fulfil his responsibility in a more
satisfactory manner. An enlightened and informed citizenry would undoubtedly enhance
democratic values. Thus, the availability of proper and relevant information about the
candidate fosters and promotes the freedom of speech and expression both from the point of
view of imparting and receiving the information. In turn, it would lead to the preservation of
the integrity of electoral process which is so essential for the growth of democracy. Though I
do not go to the extent of remarking that the election will be a farce if the candidates'
antecedents are not known to the voters, I would say that such information will certainly be
conducive to fairness in election process and integrity in public life. The disclosure of
information would facilitate and augment the freedom of expression both from the point of
view of the voter as well as the media through which the information is publicised and openly
debated.
98. The problem can be approached from another angle. As observed by this Court in
Association for Democratic Reforms' case, ‘a voter speaks out or expresses by casting vote’.
Freedom of expression, as contemplated by Article 19(1)(a) which in many respects overlaps
and coincides with freedom of speech, has manifold meanings. It need not and ought not to be
confined to expressing something in words orally or in writing. The act of manifesting by
action or language is one of the meanings given in Ramanatha Iyer's Law Lexicon (edited
by Justice Y.V. Chandrachud). Even a manifestation of an emotion, feeling etc., without
words would amount to expression. The example given in Collin's Dictionary of English
Language (1983 reprint) is: "tears are an expression of grief", is quite apposite. Another
shade of meaning is: "a look on the face that indicates mood or emotion; eg: a joyful
expression". Communication of emotion and display of talent through music, painting etc., is
also a sort of expression. Having regard to the comprehensive meaning of phrase 'expression',
voting can be legitimately regarded as a form of expression. Ballot is the instrument by which
 327

the voter expresses his choice between candidates or in respect to propositions; and his 'vote'
is his choice or election, as expressed by his ballot. "Opinion expressed, resolution or decision
carried, by voting" is one of the meanings given to the expression 'vote' in the New Oxford
Illustrated Dictionary. It is well settled and it needs no emphasis that the fundamental right of
freedom of speech and expression should be broadly construed and it has been so construed
all these years. In the light of this, the dictum of the Court that the voter "speaks out or
expresses by casting a vote" is apt and well founded. I would only reiterate and say that
freedom of voting by expressing preference for a candidate is nothing but freedom of
expressing oneself in relation to a matter of prime concern to the country and the voter
himself.
I. (3) Right to vote is a Constitutional right though not a fundamental right but right to
make choice by means of ballot is part of freedom of expression
99. The right to vote for the candidate of one's choice is of the essence of democratic
polity. This right is recognized by our Constitution and it is given effect to in specific form by
the Representation of the People Act. The Constituent Assembly debates reveal that the idea
to treat the voting right as a fundamental right was dropped; nevertheless, it was decided to
provide for it elsewhere in the Constitution. This move found its expression in Article 326
which enjoins that The elections to the House of the People and to the Legislative Assembly
of every State shall be on the basis of adult suffrage; that is to say, every person who is a
citizen of India and who is not less than 21 years of age (now 18 years), and is not otherwise
disqualified under the Constitution or law on the ground of non-residence, unsoundness of
mind, crime, corrupt or illegal practice-shall be entitled to be registered as voter at such
election. However, case after case starting from Ponnuswami case [(1952) SCR 218]
characterized it as a statutory right. "The right to vote or stand as a candidate for election", it
was observed in Ponnuswami case "is not a civil right but is a creature of statute or special
law and must be subject to the limitations imposed by it." It was further elaborated in the
following words:
Strictly speaking, it is the sole right of the Legislature to examine and determine
all matters relating to the election of its own members, and if the legislature takes it
out of its own hands and vests in a special tribunal an entirely new and unknown
jurisdiction, that special jurisdiction should be exercised in accordance with the law
which creates it.
101. In Jyoti Basu v. Debi Ghoshal [(1982)3 SCR 318] this Court again pointed out in no
uncertain terms that: “a right to elect, fundamental though it is to democracy, is, anomalously
enough, neither a fundamental right nor a common law right. It is pure and simple a statutory
right.” With great reverence to the eminent Judges, I would like to clarify that the right to vote,
if not a fundamental right, is certainly a constitutional right. The right originates from the
Constitution and in accordance with the constitutional mandate contained in Article 326, the
right has been shaped by the statute, namely, R.P. Act. That, in my understanding, is the
correct legal position as regards the nature of the right to vote in elections to the House of
people and Legislative Assemblies. It is not very accurate to describe it as a statutory right,
pure and simple. Even with this clarification, the argument of the learned Solicitor General
that the right to vote not being a fundamental right, the information which at best facilitates
328

meaningful exercise of that right cannot be read as an integral part of any fundamental right,
remains to be squarely met. Here, a distinction has to be drawn between the conferment of the
right to vote on fulfillment of requisite criteria and the culmination of that right in the final act
of expressing choice towards a particular candidate by means of ballot. Though the initial right
cannot be placed on the pedestal of a fundamental right, but, at the stage when the voter goes
to the polling booth and casts his vote, his freedom to express arises. The casting of vote in
favour of one or the other candidate tantamounts to expression of his opinion and preference
and that final stage in the exercise of voting right marks the accomplishment of freedom of
expression of the voter. That is where Article 19(1)(a) is attracted. Freedom of voting as
distinct from right to vote is thus a species of freedom of expression and therefore carries with
it the auxiliary and complementary rights such as right to secure information about the
candidate which are conducive to the freedom. None of the decisions of this Court wherein the
proposition that the right to vote is a pure and simple statutory right was declared and
reiterated, considered the question whether the citizen's freedom of expression is or is not
involved when a citizen entitled to vote casts his vote in favour of one or the other candidate.
The issues that arose in Ponnuswami case and various cases cited by the learned Solicitor-
General fall broadly within the realm of procedural or remedial aspects of challenging the
election or the nomination of a candidate. None of these decisions, in my view, go counter to
the proposition accepted by us that the fundamental right of freedom of expression sets in
when a voter actually casts his vote. I, therefore, find no merit in the submission made by the
learned Solicitor General that these writ petitions have to be referred to a larger bench in view
of the apparent conflict. As already stated, the factual matrix and legal issues involved in those
cases were different and the view, we are taking, does not go counter to the actual ratio of the
said decisions rendered by the eminent Judges of this Court.
102. Reliance has been placed by the learned Solicitor General on the Constitution Bench
decision in Jamuna Prasad v. Lachhi Ram [(1955) 1 SCR 608]. That was a case of special
appeal to this Court against the decision of an Election Tribunal. Apart from assailing the
finding of the Tribunal on the aspect of 'corrupt practice', Sections 123(5) and 124(5) (as they
stood then) of the R.P. Act were challenged as ultra vires Article 19(1)(a). The former
provision declared the character assassination of a candidate as a major corrupt practice and
the latter provision made an appeal to vote on the ground of caste a minor corrupt practice.
The contention that these provisions impinged on the freedom of speech and expression was
unhesitatingly rejected. The Court observed that those provisions did not stop a man from
speaking. They merely prescribed conditions which must be observed if a citizen wanted to
enter the Parliament. It was further observed that the right to stand as a candidate and contest
an election is a special right created by the statute and can only be exercised on the conditions
laid down by the statute. In that context, the Court made an observation that the fundamental
right chapter had no bearing on the right to contest the election which is created by the statute
and the appellant had no fundamental right to be elected as a member of Parliament. If a
person wants to get elected, he must observe the rules laid down by law. So holding, those
sections were held to be intra vires. I do not think that this decision which dealt with the
contesting candidate's rights and obligations has any bearing on the freedom of expression of
the voter and the public in general in the context of elections. The remark that 'the
 329

fundamental right chapter has no bearing on a right like this created by statute' cannot be
divorced from the context in which it was made.
103. The learned senior counsel appearing for one of the interveners (B.J.P.) has advanced
the contention that if the right to information is culled out from Article 19(1) (a) and read as
an integral part of that right, it is fraught with dangerous consequences inasmuch as the
grounds of reasonable restrictions which could be imposed are by far limited and therefore,
the Government may be constrained to part with certain sensitive informations which would
not be in public interest to disclose. This raises the larger question whether apart from the
heads of restriction envisaged by sub-Article (2) of Article 19, certain inherent limitations
should not be read into the Article, if it becomes necessary to do so in national or societal
interest. The discussion on this aspect finds its echo in the separate opinion of Jeevan Reddy,
J. in Cricket Association case. The learned Judge was of the view that the freedom of speech
and expression cannot be so exercised as to endanger the interest of the nation or the interest
of the society, even if the expression 'national interest' or 'public interest' has not been used in
Article 19(2). It was pointed out that such implied limitation has been read into the first
amendment of the U.S. Constitution which guarantees the freedom of speech and expression
in unqualified terms.
104. The following observations of the U.S. Supreme Court in this context:
It is a fundamental principle, long established, that the freedom of speech and of
the Press which is secured by the Constitution does not confer an absolute right to
speak or publish, without responsibility, whatever one may choose, or an unrestricted
and unbridle license that gives immunity for every possible use of language, and
prevents the punishment of those who abuse this freedom.
105. Whenever the rare situations of the kind anticipated by the learned counsel arise, the
Constitution and the Courts are not helpless in checking the misuse and abuse of the freedom.
Such a check need not necessarily be found strictly within the confines of Article 19(2).
II. Sections 33-A and 33-B of the Representation of People (3rd Amendment) Act, 2002-
whether Section 33-A by itself effectively secures the voter's/citizen's right to information-
whether Section 33-B is unconstitutional?
II. (1). Sections 33-A and 33-B of the Representation of People (3rd Amendment) Act
106. Now I turn my attention to the discussion of core question, that is to say, whether the
impugned legislation falls foul of Article 19(1)(a) for limiting the area of disclosure and
whether the Parliament acted beyond its competence in deviating from the directives given by
this Court to the Election Commission in Democratic Reforms Association case. By virtue of
the Representation of the People (Amendment) Act, 2002 the only information which a
prospective contestant is required to furnish apart from the information which he is obliged to
disclose under the existing provisions is the information on two points: (i) Whether he is
accused of any offence punishable with imprisonment for two years or more in a pending case
in which a charge has been framed and; (ii) Whether he has been convicted of an offence
[other than the offence referred to in sub-Sections (1) to (3) of Section 8] and sentenced to
imprisonment for one year or more. On other points spelt out in this Court's judgment, the
330

candidate is not liable to furnish any information and that is so, notwithstanding anything
contained in any judgment or order of a Court or any direction, order or instruction issued by
the Election Commission. Omission to furnish the information as per the mandate of Section
33B and furnishing false information in that behalf is made punishable.That is the sum and
substance of the two provisions namely, Sections 33-A and 33-B.
107. The plain effect of the embargo contained in Section 33B is to nullify substantially
the directives issued by the Election Commission pursuant to the judgment of this Court. At
present, the instructions issued by the Election Commission could only operate in respect of
the items specified in Section 33A and nothing more. It is for this reason that Section 33B has
been challenged as ultra vires the Constitution both on the ground that it affects the
fundamental right of the voter/citizen to get adequate information about the candidate and that
the Parliament is incompetent to nullify the judgment of this Court. I shall briefly notice the
rival contentions on this crucial issue.
II. (2). Contentions
108. Petitioners' contention is that the legislation on the subject of disclosure of particulars
of candidates should adopt in entirety the directives issued by this Court to the Election
Commission in the pre-ordinance period. Any dilution or deviation of those norms or
directives would necessarily violate the fundamental right guaranteed by Article 19(1)(a) as
interpreted by this Court and therefore the law, as enacted by Parliament, infringes the said
guarantee. This contention has apparently been accepted by my learned brother M.B. Shah, J.
The other view point presented on behalf of Union of India and one of the interveners is that
the freedom of legislature in identifying and evolving the specific areas in which such
information should be made public cannot be curtailed by reference to the ad hoc directives
given by this Court in pre-ordinance period and the legislative wisdom of Parliament,
especially in election matters, cannot be questioned. This is the position even if the right to
know about the candidate is conceded to be part of Article 19(1)(a). It is for the Parliament to
decide to what extent and how far the information should be made available. In any case, it is
submitted that the Court's verdict has been duly taken note of by Parliament and certain
provisions have been made to promote the right to information vis-a-vis the contesting
candidates. Section 33-B is only a part of this exercise and it does not go counter to Article
19(1)(a) even though the scope of public disclosures has been limited to one important aspect
only.
II. (3). Broad points for consideration
109. A liberal but not a constricted approach in the matter of disclosure of information in
relation to candidates seeking election is no doubt a desideratum. The wholesale adoption of
the Court's diktats on the various items of information while enacting the legislation would
have received public approbation and would have been welcomed by public. It would have
been in tune with the recommendations of various Commissions and even the statements
made by eminent and responsible political personalities. However, the fact remains that the
Parliament in its discretion did not go the whole hog, but chose to limiting the scope of
mandated disclosures to one only of the important aspects highlighted in the judgment. The
question remains to be considered whether in doing so, the Parliament out-stepped its limits
 331

and enacted a law in violation of the guarantee enshrined in Article 19(1)(a) of the
Constitution. The allied question is whether the Parliament has no option but to scrupulously
adopt the directives given by this Court to the Election Commission. Is it open to the
Parliament to independently view the issue and formulate the parameters and contents of
disclosure, though it has the effect of diluting or diminishing the scope of disclosures which,
in the perception of the Court, were desirable? In considering these questions of far reaching
importance from the Constitutional angle, it is necessary to have a clear idea of the ratio and
implications of this Court's Judgment in the Association for Democratic Reforms’ case.

II. (4) Analysis of the judgment in Association for Democratic Reforms case - Whether and
how far the directives given therein have impact on the Parliamentary legislation- Approach
of Court in testing the legislation.
110. The first proposition laid down by this Court in the said case is that a citizen/voter
has the right to know about the antecedents of the contesting candidate and that right is a part
of the fundamental right under Article 19(1)(a). In this context, M.B. Shah, J. observed that-
Voter's speech or expression in case of election would include casting of votes,
that is to say, voter speaks out or expresses by casting vote.
It was then pointed out that the information about the candidate to be selected is essential
as it would be conducive to transparency and purity in the process of election. The next
question considered was how best to enforce that right. The Court having noticed that there
was void in the field in the sense that it was not covered by any legislative provision, gave
directions to the Election Commission to fill the vacuum by requiring the candidate to furnish
information on the specified aspects while filing the nomination paper. Five items of
information which the Election Commission should call for from the prospective candidates
were spelt out by the Court. Two of them relate to criminal background of the candidate and
pendency of criminal cases against him. Points 3 and 4 relate to assets and liabilities of the
candidate and his/her family. The last one is about the educational qualifications of the
candidate. The legal basis and the justification for issuing such directives to the Commission
has been stated thus (vide paragraphs 19 & 20) :
19. At the outset, we would say that it is not possible for this Court to give any
directions for amending the Act or the statutory Rules. It is for Parliament to amend
the Act and the Rules. It is also established law that no direction can be given, which
would be contrary to the Act and the Rules. * * * * *
20. However, it is equally settled that in case when the Act or Rules are silent on a
particular subject and the authority implementing the same has constitutional or
statutory power to implement it, the Court can necessarily issue directions or orders
on the said subject to fill the vacuum or void till the suitable law is enacted.
Again, at paragraph 49 it was emphasized-
It is to be stated that the Election Commission has from time to time issued
instructions/orders to meet with the situation where the field is unoccupied by the
legislation. Hence, the norms and modalities to carry out and give effect to the
332

aforesaid directions should be drawn up properly by the Election Commission as

early as possible.
111. Thus, the Court was conscious of the fact that the Election Commission could act in
the matter only so long as the field is not covered by legislation. The Court also felt that the
vacuum or void should be suitably filled so that the right to information concerning a
candidate would soon become a reality. In other words, till the Parliament applied its mind
and came forward with appropriate legislation to give effect to the right available to a voter-
citizen, the Court felt that the said goal has to be translated into action through the media of
Election Commission, which is endowed with 'residuary power' to regulate the election
process in the best interests of the electorate. Instead of leaving it to the Commission and with
a view to give quietus to the possible controversies that might arise, the Court considered it
expedient to spell out five points (broadly falling into three categories) on which the
information has to be called for from the contesting candidate. In the very nature of things, the
directives given by the Court were intended to operate only till the law was made by
legislature and in that sense 'pro-tempore' in nature. The five directives cannot be considered
to be rigid theorems-inflexible and immutable, but only reflect the perception and tentative
thinking of the Court at a point of time when the legislature did not address itself to the
question.
112. When the Parliament, in the aftermath of the verdict of this Court, deliberated and
thought it fit to secure the right to information to a citizen only to a limited extent (having a
bearing on criminal antecedents), a fresh look has to be necessarily taken by the Court and the
validity of the law made has to be tested on a clean slate. It must be remembered that the right
to get information which is a corollary to the fundamental right to free speech and expression
has no fixed connotation. Its contours and parameters cannot be precisely defined and the
Court in my understanding, never meant to do so. It is often a matter of perception and
approach. How far to go and where to stop? These are the questions to be pondered over by
the Legislature and the Constitutional Court called upon to decide the question of validity of
legislation. For instance, many voters/citizens may like to have more complete information-a
sort of bio-data of the candidate starting from his school days such as his academic career, the
properties which he had before and after entering into politics, the details of his income and
tax payments for the last one decade and sources of acquisition of his and his family's wealth.
Can it be said that all such information which will no doubt enable the voter and public to
have a comprehensive idea of the contesting candidate, should be disclosed by a prospective
candidate and that the failure to provide for it by law would infringe the fundamental right
under Article 19(1)(a)? The preponderance of view would be that it is not reasonable to
compel a candidate to make disclosures affecting his privacy to that extent in the guise of
effectuating the right to information. A line has to be drawn somewhere. While there cannot
be a lip service to the valuable right to information, it should not be stretched too far. At the
same time, the essence and substratum of the right has to be preserved and promoted, when
once it is brought within the fold of fundamental right. A balanced but not a rigid approach, is
needed in identifying and defining the parameters of the right which the voter/citizen has. The
standards to be applied to disclosures vis-a-vis public affairs and governance and the
disclosures relating to personal life and bio-data of a candidate cannot be the same. The
 333

measure or yardstick will be somewhat different. It should not be forgotten that the
candidates' right to privacy is one of the many factors that could be kept in view, though that
right is always subject to overriding public interest.
113. In my view, the points of disclosure spelt out by this Court in the Association for
Democratic Reforms’ case should serve as broad indicators or parameters in enacting the
legislation for the purpose of securing the right to information about the candidate. The
paradigms set by the Court, though pro-tempore in nature as clarified supra, are entitled to
due weight. If the legislature in utter disregard of the indicators enunciated by this Court
proceeds to make a legislation providing only for a semblance or pittance of information or
omits to provide for disclosure on certain essential points, the law would then fail to pass the
muster of Article 19(1) (a). Though certain amount of deviation from the aspects of disclosure
spelt out by this Court is not impermissible, a substantial departure cannot be countenanced.
The legislative provision should be such as to promote the right to information to a reasonable
extent, if not to the fullest extent on details of concern to the voters and citizens at large.
While enacting the legislation, the legislature has to ensure that the fundamental right to know
about the candidate is reasonably secured and information which is crucial, by any objective
standards, is not denied. It is for the Constitutional Court in exercise of its judicial review
power to judge whether the areas of disclosure carved out by the Legislature are reasonably
adequate to safeguard the citizens' right to information. The Court has to take a holistic view
and adopt a balanced approach, keeping in view the twin principles that the citizens' right to
information to know about the personal details of a candidate is not an unlimited right and
that at any rate, it has no fixed concept and the legislature has freedom to choose between two
reasonable alternatives. It is not a proper approach to test the validity of legislation only from
the stand-point whether the legislation implicitly and word to word gives effect to the
directives issued by the Court as an ad hoc measure when the field was unoccupied by
legislation. Once legislation is made, this Court has to make an independent assessment in the
process of evaluating whether the items of information statutorily ordained are reasonably
adequate to secure the right of information to the voter so as to facilitate him to form a fairly
clear opinion on the merits and demerits of the candidates. In embarking on this exercise, as
already stated, this Court's directives on the points of disclosure even if they be tentative or ad
hoc in nature, cannot be brushed aside, but should be given due weight. But, I reiterate that
the shape of legislation need not be solely controlled by the directives issued to the Election
Commission to meet an ad-hoc situation. As I said earlier, the right to information cannot be
placed in straight jacket formulae and the perceptions regarding the extent and amplitude of
this right are bound to vary.
III. Section 33-B is unconstitutional
III. (1). The right to information cannot be frozen and stagnated
114. In my view, the Constitutional validity of Section 33B has to be judged from the
above angle and perspective. Considered in that light, I agree with the conclusion of M.B.
Shah, J. that Section 33-B does not pass the test of constitutionality. The reasons are more
than one. Firstly, when the right to secure information about a contesting candidate is
recognized as an integral part of fundamental right as it ought to be, it follows that its ambit,
amplitude and parameters cannot be chained and circumscribed for all time to come by
334

declaring that no information, other than that specifically laid down in the Act, should be
required to be given. When the legislation delimiting the areas of disclosure was enacted, it
may be that the Parliament felt that the disclosure on other aspects was not necessary for the
time being. Assuming that the guarantee of right to information is not violated by making a
departure from the paradigms set by the Court, it is not open to the Parliament to stop all
further disclosures concerning the candidate in future. In other words, a blanket ban on
dissemination of information other than that spelt out in the enactment, irrespective of need of
the hour and the future exigencies and expedients is, in my view, impermissible. It must be
remembered that the concept of freedom of speech and expression does not remain static. The
felt necessities of the times coupled with experiences drawn from the past may give rise to the
need to insist on additional information on the aspects not provided for by law. New
situations and march of events may demand the flow of additional facets of information. The
right to information should be allowed to grow rather than being frozen and stagnated; but the
mandate of Section 33B prefaced by the non obstante clause impedes the flow of such
information conducive to the freedom of expression. In the face of the prohibition under
Section 33B, the Election Commission which is entrusted with the function of monitoring and
supervising the election process will have to sit back with a sense of helplessness inspite of
the pressing need for insisting on additional information. Even the Court may at times feel
handicapped in taking necessary remedial steps to enforce the right to information. In my
view, the legislative injunction curtailing the nature of information to be furnished by the
contesting candidates only to the specific matters provided for by the legislation and nothing
more would emasculate the fundamental right to freedom of expression of which the right to
information is a part. The very objective of recognizing the right to information as part of the
fundamental right under Article 19(1)(a) in order to ensure free and fair elections would be
frustrated if the ban prescribed by Section 33-B is taken to its logical effect.

III. (2) Impugned legislation fails to effectuate right to information on certain vital
115. The second reason why Section 33B should be condemned is that by blocking the
ambit of disclosures only to what has been specifically provided for by the amendment, the
Parliament failed to give effect to one of the vital aspects of information, viz., disclosure of
assets and liabilities and thus failed in substantial measure to give effect to the right to
information as a part of the freedom of expression. The right to information which is now
provided for by the legislature no doubt relates to one of the essential points but in ignoring
the other essential aspect relating to assets and liabilities as discussed hereinafter, the
Parliament has unduly restricted the ambit of information which the citizens should have and
thereby impinged on the guarantee enshrined in Article 19(1)(a).

III. (3) How far the principle that the Legislature cannot encroach upon the judicial sphere
applies?
116. It is a settled principle of constitutional jurisprudence that the only way to render a
judicial decision ineffective is to enact a valid law by way of amendment or otherwise
fundamentally altering the basis of the judgment either prospectively or retrospectively. The
legislature cannot overrule or supersede a judgment of the Court without lawfully removing
 335

the defect or infirmity pointed out by the Court because it is obvious that the legislature
cannot trench on the judicial power vested in the Courts. Relying on this principle, it is
contended that the decision of apex Constitutional Court cannot be set at naught in the manner
in which it has been done by the impugned legislation. As a sequel, it is further contended that
the question of altering the basis of judgment or curing the defect does not arise in the instant
case as the Parliament cannot pass a law in curtailment of fundamental right recognized,
amplified and enforced by this Court.
117. The contention that the fundamental basis of the decision in Association for
Democratic Reforms’ case has not at all been altered by the Parliament, does not appeal to
me. I have discussed at length the real scope and ratio of the judgment and the nature and
character of directives given by this Court to the Election Commission. As observed earlier,
those directions are pro tempore in nature when there was vaccum in the field. When once the
Parliament stepped in and passed the legislation providing for right of information, may be on
certain limited aspects, the void must be deemed to have been filled up and the judgment
works itself out, though the proposition laid down and observations made in the context of
Article 19(1)(a) on the need to secure information to the citizens will hold good. Now the new
legislation has to be tested on the touchstone of Article 19(1)(a).
Of course, in doing so, the decision of this Court should be given due weight and there
cannot be marked departure from the items of information considered essential by this Court
to effectuate the fundamental right to information. Viewed in this light, it must be held that
the Parliament did not by law provide for disclosure of information on certain crucial points
such as assets and liabilities and at the same time, placed an embargo on calling for further
informations by enacting Section 33-B. That is where Section 33-B of the impugned
amendment Act does not pass the muster of Article 19(1)(a), as interpreted by this Court.

IV. Right to information with reference to specific aspects:

118. I shall now discuss the specifics of the problem. With a view to promote the right to
information, this Court gave certain directives to the Election Commission which, as I have
already clarified, were ad hoc in nature. The Election Commission was directed to call for
details from the contesting candidates broadly on three points, namely, (i) criminal record (ii)
assets and liabilities and (iii) educational qualification. The third amendment to R.P. Act
which was preceded by an Ordinance provided for disclosure of information. How far the
third amendment to the Representation of the People Act, 2002 safeguards the right of
information which is a part of the guaranteed right under Article 19(1) (a), is the question to
be considered now with specific reference to each of the three points spelt out in the judgment
of this Court in Association for Democratic Reforms’ case.
IV. (1). Criminal background and pending criminal cases against candidates-Section 33-A
of the R.P. (3rd Amendment) Act.
119. As regards the first aspect, namely criminal record, the directives in Association for
Democratic Reforms’ case are two fold:
(i) whether the candidate is convicted/ acquitted/discharged of any criminal case
in the past,if any, whether he is punished with imprisonment or fine and
336

(ii) prior to six months of filing of nomination, whether the candidate is an

accused in any pending case of any offence punishable with imprisonment for two
years or more and in which charge is framed or cognizance is taken by the Court of
law.
As regards the second directive, the Parliament has substantially proceeded on the same lines
and made it obligatory to the candidate to furnish information as to whether he is accused of
any offence punishable with imprisonment for two years or more in a pending case in which a
charge has been framed by the competent Court. However, the case in which cognizance has
been taken but charge has not been framed is not covered by clause (i) of Section 33A(1). The
Parliament having taken the right step of compelling disclosure of the pendency of cases
relating to major offences, there is no good reason why it failed to provide for the disclosure
of the cases of the same nature of which cognizance has been taken by the Court. It is
common knowledge that on account of variety of reasons such as the delaying tactics of one
or the other accused and inadequacies of prosecuting machinery, framing of formal charges
get delayed considerably, especially in serious cases where committal procedure has to be
gone through. On that account, the voter/citizen shall not be denied information regarding
cognizance taken by the Court of an offence punishable with imprisonment for two years or
more. The citizen's right to information, when once it is recognized to be part of the
fundamental right under Article 19(1)(a), cannot be truncated in the manner in which it has
been done. Clause (i) of Section 33(A)(1) therefore falls short of the avowed goal to
effectuate the right of information on a vital aspect. Cases in which cognizance has been taken
should therefore be comprehended within the area of information accessible to the
voters/citizens, in addition to what is provided for in Clause (i) of Section 33-A.
120. Coming to clause (ii) of Section 33A(1), the Parliament broadly followed the pattern
shown by the Court itself. This Court thought it fit to draw a line between major/serious
offences and minor/non-serious offences while giving direction no. 2 (vide Para 48). If so, the
legislative thinking that this distinction should also hold good in regard to past cases cannot
be faulted on the ground that the said clause fails to provide adequate information about the
candidate. If the Parliament felt that the convictions and sentences of the long past related to
petty/non serious offences need not be made available to electorate, it cannot be definitely
said that the valuable right to information becomes a casuality. Very often, such offences by
and large may not involve moral turpitude. It is not uncommon, as one of the learned senior
counsel pointed out that the political personalities are prosecuted for politically related
activities such as holding demonstrations and visited with the punishment of fine or short
imprisonment. Information regarding such instances may not be of real importance to the
electorate in judging the worth of the relative merits of the candidates. At any rate, it is a
matter of perception and balancing of various factors, as observed supra. The legislative
judgment cannot be faulted merely for the reason that the pro tempore directions of this Court
have not been scrupulously followed. As regards acquittals, it is reasonable to take the view
that such information will not be of much relevance inasmuch as acquittal prima facie implies
that the accused is not connected with the crime or the prosecution has no legs to stand. It is
not reasonable to expect that from the factum of prosecution resulting in the acquittal, the
voters/citizens would be able to judge the candidate better. On the other hand, such
 337

information in general has the potential to send misleading signals about the honesty and
integrity of the candidate.
121. I am therefore, of the view that as regards past criminal record, what the Parliament
has provided for is fairly adequate.
122. One more aspect which needs a brief comment is the exclusion of offences referred
to in sub-sections (1) and (2) of section 8 of the R.P. Act, 1951. Section 8 deals with
disqualification on conviction for certain offences. Those offences are of serious nature from
the point of view of national and societal interest. Even the existing provisions, viz., Rule 4A
inserted by Conduct of Elections (Amendment) Rules, 2002 make a provision for disclosure
of such offences in the nomination form. Hence, such offences have been excluded from the
ambit of clause (ii) of Section 33A.

IV. (2). Assets and liabilities: Disclosure of assets and liabilities is another thorny issue.
123. If the right to information is to be meaningful and if it is to serve its avowed purpose,
I am of the considered view that the candidate entering the electoral contest should be
required to disclose the assets and liabilities (barring articles of household use). A member of
Parliament or State Legislature is an elected representative occupying high public office and
at the same time, he is a 'public servant' within the meaning of Prevention of Corruption Act
as ruled by this Court in the case of P.V. Narasimha Rao v. State [(1998) 4 SCC 626]. They
are the repositories of public trust. They have public duties to perform. It is borne out by
experience that by virtue of the office they hold there is a real potential for misuse. The public
awareness of financial position of the candidate will go a long way in forming an opinion
whether the candidate, after election to the office had amassed wealth either in his own name
or in the name of family members viz., spouse and dependent children. At the time when the
candidate seeks re-election, the citizens/voters can have a comparative idea of the assets
before and after the election so as to assess whether the high public office had possibly been
used for self-aggrandizement. Incidentally, the disclosure will serve as a check against misuse
of power for making quick money-a malady which nobody can deny, has been pervading the
political spectrum of our democratic nation. As regards liabilities, the disclosure will enable
the voter to know, inter alia, whether the candidate has outstanding dues payable to public
financial institutions or the Government. Such information has a relevant bearing on the
antecedents and the propensities of the candidate in his dealings with public money. 'Assets
and liabilities' is one of the important aspects to which extensive reference has been made in
Association for Democratic Reforms’ case. The Court did consider it, after an elaborate
discussion, as a vital piece of information as far as the voter is concerned. But, unfortunately,
the observations made by this Court in this regard have been given a short shrift by the
Parliament with little realization that they have significant bearing on the right to get
information from the contesting candidates and such information is necessary to give effect to
the freedom of expression.
124. As regards the purpose of disclosure of assets and liabilities, I would like to make it
clear that it is not meant to evaluate whether the candidate is financially sound or has
sufficient money to spend in the election. Poor or rich are alike entitled to contest the election.
Every citizen has equal accessibility in public arena. If the information is meant to mobilize
338

public opinion in favour of an affluent/financially sound candidate, the tenet of socialistic

democracy and the concept of equality so firmly embedded in our Constitution will be
distorted. I cannot also share the view that this information on assets would enable the public
to verify whether unaccounted money played a part in contesting the election. So long as the
Explanation-I to Section 77 of R.P. Act, 1951 stands and the contributions can legitimately
come from any source, it is not possible for a citizen/voter to cause a verification to be made
on those lines. In my opinion, the real purposes of seeking information in regard to assets and
liabilities are those which I adverted to in the preceding paragraph. It may serve other
purposes also, but, I have confined myself to the relevancy of such disclosure vis-a-vis right
to information only.
125. It has been contended with much force that the right to information made available to
the voters/citizens by judicial interpretation has to be balanced with the right of privacy of the
spouse of the contesting candidate and any insistence on the disclosure of assets and liabilities
of the spouse invades his/her right to privacy which is implied in Article 21. After giving
anxious consideration to this argument, I am unable to uphold the same. In this context, I
would like to recall the apt words of Mathew J., in Gobind v. State of M.P. [(1975) 2 SCC
148]. While analyzing the right to privacy as an ingredient of Article 21, it was observed:
There can be no doubt that privacy- dignity claims deserve to be examined with
care and to be denied only when an important countervailing interest is shown to be
superior.
126. It was then said succinctly:
If the Court does find that a claimed right is entitled to protection as a
fundamental privacy right, a law infringing it must satisfy the compelling State
interest test. Then the question would be whether a State interest is of such paramount
importance as would justify an infringement of the right.
127. It was further explained-
Privacy primarily concerns the individual. It therefore relates to and overlaps with
the concept of liberty. The most serious advocate of privacy must confess that there
are serious problems of defining the essence and scope of the right. Privacy interest in
autonomy must also be placed in the context of other rights and values.
By calling upon the contesting candidate to disclose the assets and liabilities of his/her
spouse, the fundamental right to information of a voter/citizen is thereby promoted. When
there is a competition between the right to privacy of an individual and the right to
information of the citizens, the former right has to be subordinated to the latter right as it
serves larger public interest. The right to know about the candidate who intends to become a
public figure and a representative of the people would not be effective and real if only
truncated information of the assets and liabilities is given. It cannot be denied that the family
relationship and social order in our country is such that the husband and wife look to the
properties held by them as belonging to the family for all practical purposes, though in the eye
of law the properties may distinctly belong to each of them. By and large, there exists a sort of
unity of interest in the properties held by spouses. The property being kept in the name of the
spouse benami is not unknown in our country. In this situation, it could be said that a
 339

countervailing or paramount interest is involved in requiring a candidate who chooses to

subject himself/herself to public gaze and scrutiny to furnish the details of assets and
liabilities of the spouse as well. That is one way of looking at the problem. More important, it
is to be noted that the Parliament itself accepted in principle that not only the assets of the
elected candidates but also his or her spouse and dependent children should be disclosed to
the constitutional authority and the right of privacy should not come in the way of such
disclosure; but, the hitch lies in the fact that the disclosure has to be made to the Speaker or
Chairman of the House after he or she is elected. No provision has been made for giving
access to the details filed with the presiding officer of the House. By doing so, the Parliament
has omitted to give effect to the principle, which it rightly accepted as a step in aid to promote
integrity in public life. Having accepted the need to insist on disclosure of assets and
liabilities of the elected candidate together with those of other family members, the
Parliament refrained from making a provision for furnishing the information at the time of
filing the nomination. This has resulted in jeopardizing the right to information implicitly
guaranteed by Article 19(1)(a). Therefore, the provision made in Section 75A regarding
declaration of assets and liabilities of the elected candidates to the presiding officer has failed
to effectuate the right to information and the freedom of expression of the voters/citizens.
IV. (3). Educational qualifications
128. The last item left for discussion is about educational qualifications. In my view, the
disclosure of information regarding educational qualifications of a candidate is not an
essential component of the right to information flowing from Article 19(1)(a). By not
providing for disclosure of educational qualifications, it cannot be said that the Parliament
violated the guarantee of Article 19(1)(a). Consistent with the principle of adult suffrage, the
Constitution has not prescribed any educational qualification for being Member of the House
of the People or Legislative Assembly. That apart, I am inclined to think that the information
relating to educational qualifications of contesting candidates does not serve any useful
purpose in the present context and scenario. It is a well known fact that barring a few
exceptions, most of the candidates elected to Parliament or the State Legislatures are fairly
educated even if they are not graduates or post-graduates. To think of illiterate candidates is
based on a factually incorrect assumption. To say that well educated persons such as those
having graduate and post-graduate qualifications will be able to serve the people better and
conduct themselves in a better way inside and outside the House is nothing but overlooking
the stark realities. The experience and events in public life and the Legislatures have
demonstrated that the dividing line between the well educated and less educated from the
point of view of his/her calibre and culture is rather thin. Much depends on the character of
the individual, the sense of devotion to duty and the sense of concern to the welfare of the
people. These characteristics are not the monopoly of well educated persons. I do not think
that it is necessary to supply information to the voter to facilitate him to indulge in an
infructuous exercise of comparing the educational qualifications of the candidates. It may be
that certain candidates having exceptionally high qualifications in specialized field may prove
useful to the society, but it is natural to expect that such candidates would voluntarily come
forward with an account of their own academic and other talents as a part of their election
programme. Viewed from any angle, the information regarding educational qualifications is
340

not a vital and useful piece of information to the voter, in ultimate analysis. At any rate, two
views are reasonably possible. Therefore, it is not possible to hold that the Parliament should
have necessarily made the provision for disclosure of information regarding educational
qualifications of the candidates.
V. Conclusions
Finally, the summary of my conclusions:
1. Securing information on the basic details concerning the candidates contesting for
elections to the Parliament or State Legislature promotes freedom of expression and therefore
the right to information forms an integral part of Article 19(1)(a). This right to information is,
however, qualitatively different from the right to get information about public affairs or the
right to receive information through the Press and electronic media, though, to a certain
extent, there may be overlapping.
2. The right to vote at the elections to the House of people or Legislative Assembly is a
constitutional right but not merely a statutory right; freedom of voting as distinct from right to
vote is a facet of the fundamental right enshrined in Article 19(1)(a). The casting of vote in
favour of one or the other candidate marks the accomplishment of freedom of expression of
the voter.
3. The directives given by this Court in Union of India v. Association for Democratic
Reforms [(2002) 5 SCC 294] were intended to operate only till the law was made by the
Legislature and in that sense ‘pro tempore’ in nature. Once legislation is made, the Court has
to make an independent assessment in order to evaluate whether the items of information
statutorily ordained are reasonably adequate to secure the right of information available to the
voter/citizen. In embarking on this exercise, the points of disclosure indicated by this Court,
even if they be tentative or ad-hoc in nature, should be given due weight and substantial
departure therefrom cannot be countenanced.
4. The Court has to take a holistic view and adopt a balanced approach in examining the
legislation providing for right to information and laying down the parameters of that right.
5. Section 33-B inserted by the Representation of People (3rd Amendment) Act, 2002 does
not pass the test of constitutionality. Firstly, for the reason that it imposes a blanket ban on
dissemination of information other than that spelt out in the enactment irrespective of the need
of the hour and the future exigencies and expedients and secondly for the reason that the ban
operates despite the fact that the disclosure of information now provided for is deficient and
inadequate.
6. The right to information provided for by the Parliament under Section 33-A in regard to
the pending criminal cases and past involvement in such cases is reasonably adequate to
safeguard the right to information vested in the voter/citizen. However, there is no good
reason for excluding the pending cases in which cognizance has been taken by Court from the
ambit of disclosure.
7. The provision made in section 75A regarding declaration of assets and liabilities of the
elected candidates to the Speaker or the Chairman of the House has failed to effectuate the
right to information and the freedom of expression of the voters/citizens. Having accepted the
need to insist on disclosure of assets and liabilities of the elected candidate together with
 341

those of spouse or dependent children, the Parliament ought to have made a provision for
furnishing this information at the time of filing the nomination. Failure to do so has resulted
in the violation of guarantee under Article 19(1)(a).
8. The failure to provide for disclosure of educational qualification does not, in practical
terms, infringe the freedom of expression.
9. The Election Commission has to issue revised instructions to ensure implementation of
Section 33-A subject to what is laid down in this judgment regarding the cases in which
cognizance has been taken. The Election Commission’s orders related to disclosure of assets
and liabilities will still hold good and continue to be operative. However, direction no. 4 of
para 14 in so far as verification of assets and liabilities by means of summary enquiry and
rejection of nomination paper on the ground of furnishing wrong information or suppressing
material information should not be enforced.
130. Accordingly, the writ petitions stand disposed of without costs.
342

Resurgence India v. Election Commission of India

2013 (11) SCALE 348

P. Sathasivam, CJI. : 1) This writ petition, under Article 32 of the Constitution of India, has
been filed to issue specific directions to effectuate meaningful implementation of the
judgments rendered by this Court in Union of India v. Association for Democratic
Reforms [(2002) 5 SCC 294] and People's Union for Civil Liberties (PUCL) v. Union of
India [(2003) 4 SCC 399] and also to direct the respondents herein to make it compulsory for
the Returning Officers to ensure that the affidavits filed by the contestants are complete in all
respects and to reject the affidavits having blank particulars.

Background:
2) In order to maintain purity of elections and to bring transparency in the process of election,
this Court, in Association for Democratic Reforms, directed the Election Commission of
India-Respondent No. 1 herein to issue necessary orders, in exercise of its power under
Article 324 of the Constitution, to call for information on affidavit from each candidate
seeking election to the Parliament or a State Legislature as a necessary part of his nomination
paper furnishing therein information relating to his conviction/acquittal/discharge in any
criminal offence in the past, any case pending against him of any offence punishable with
imprisonment for 2 years or more, information regarding assets (movable, immovable, bank
balance etc.) of the candidate as well as of his/her spouse and that of dependants, liability, if
any, and the educational qualification of the candidate.

3) Pursuant to the above order, the Election Commission, vide order dated 28.06.2002, issued
certain directions to the candidates to furnish full and complete information in the form of an
affidavit, duly sworn before a Magistrate of the First Class, with regard to the matters
specified in Association for Democratic Reforms. It was also directed that non-furnishing of
the affidavit by any candidate or furnishing of any wrong or incomplete information or
suppression of any material information will result in the rejection of the nomination paper,
apart from inviting penal consequences under the Indian Penal Code, 1860. It was further
clarified that only such information shall be considered to be wrong or incomplete or
suppression of material information which is found to be a defect of substantial character by
the Returning Officer in the summary inquiry conducted by him at the time of scrutiny of
nomination papers.

4) In People's Union for Civil Liberties (PUCL), though this Court reaffirmed the
aforementioned decision but also held that the direction to reject the nomination papers for
furnishing wrong information or concealing material information and verification of assets
and liabilities by means of a summary inquiry at the time of scrutiny of the nominations
cannot be justified.

5) Pursuant to the above, the Election Commission, vide order dated 27.03.2003, held its
earlier order dated 28.06.2002 non-enforceable with regard to verification of assets and
 343

liabilities by means of summary inquiry and rejection of nomination papers on the ground of
furnishing wrong information or suppression of material information.

6) Again, the Election Commission of India, vide letter dated 02.06.2004 directed the Chief
Electoral Officers of all the States and Union Territories that where any complaint regarding
furnishing of false information by any candidate is submitted by anyone, supported by some
documentary evidence, the Returning Officer concerned should initiate action to prosecute the
candidate concerned by filing formal complaint before the appropriate authority.

Brief facts:

7) In the above backdrop, the brief facts of the case in hand are as under:- Resurgence India-
the petitioner herein is a non-governmental organization (NGO) registered under the Societies
Registration Act, 1860 and is working for social awakening, social empowerment, human
rights and dignity. During Punjab Legislative Assembly Elections, 2007, the petitioner-
organization undertook a massive exercise under the banner “Punjab Election Watch’ and
affidavits pertaining to the candidates of six major political parties in the State were analyzed
in order to verify their completeness. During such campaign, large scale irregularities were
found in most of the affidavits filed by the candidates.

8) On 09.02.2007, the petitioner-organization made a representation to the Election

Commission of India regarding large number of non-disclosures in the affidavits filed by the
contestants in the State of Punjab and poor level of scrutiny by the Returning Officers. Vide
letter dated 20.02.2007, the Election Commission of India expressed its inability in rejecting
the nomination papers of the candidates solely due to furnishing of false/incomplete
information in the affidavits in view of the judgment in People's Union for Civil Liberties
(PUCL).

9) Being aggrieved of the same, the petitioner-organization has preferred this petition for the
issuance of a writ of mandamus to make it compulsory for the Returning Officers to ensure
that the affidavits filed by the contestants should be complete in all respects and to reject
those nomination papers which are accompanied by incomplete/blank affidavits. The
petitioner-organization also prayed for deterrent action against the Returning Officers in case
of acceptance of such incomplete affidavits in order to remove deficiencies in the format of
the prescribed affidavit.

10) Heard Mr. Prashant Bhushan, learned counsel for the petitioner-organization, Ms.
Meenakshi Arora, learned counsel for the Election Commission of India-Respondent No. 1
herein and Mr. A. Mariarputham, learned senior counsel for the Union of India. Prayer/Relief
Sought for:

Stand of the Petitioner-Organization:

344

11) The Petitioner-organization pleaded for issuance of appropriate writ/direction including

the writ of mandamus directing the respondents herein to make it compulsory for the
Returning Officers to ensure that the affidavits filed by the candidates are complete in all
respects and to reject those nomination papers, which are accompanied by blank affidavits.

Stand of the Election Commission of India:

It is the stand of the Election Commission of India that the judgment in People's Union for
Civil Liberties (PUCL) does not empower the Returning Officers to reject the nomination
papers solely due to furnishing of false/incomplete/blank information in the affidavits signed
by the candidates. In succinct, they put forth the argument that they do not have any latitude
for rejecting the nomination papers in view of the above mentioned judgment. However,
learned counsel for the Election Commission of India made an assertion that the Election
Commission too is of the opinion that incomplete nomination papers must be rejected. Hence,
the Election Commission of India sought for clarification in that regard.

Stand of the Union of India:

The Union of India also put forth the similar contention as raised by the Election
Commission. Interestingly, the Union of India also raised a query as to how this Court will be
justified in accepting the nomination paper with false information but rejecting the
nomination paper for filing affidavit with particulars left blank and hence prayed that both the
abovesaid situations must be treated at par.

Discussion:

12) Both the petitioner-organisation and the respondent/UOI sought divergent remedies
against the same situation viz., wherein the affidavit filed by the candidate stating the
information given as correct but the particulars of the same are left blank. The petitioner-
organisation is seeking for rejection of nomination paper in such a situation whereas the
Union of India is pleading for treating it at par with filing false affidavit and to prosecute the
candidate under Section 125A of the Representation of the People Act, 1951 (in short ‘the RP
Act’).

13) In order to appreciate the issue involved, it is desirable to refer the relevant provisions of
the RP Act. Sections 33A, 36 and 125A of the RP Act read as under:

“33A. Right to information.-(1) A candidate shall, apart from any information which he is
required to furnish, under this Act or the rules made thereunder, in his nomination paper
delivered under sub-section (1) of section 33, also furnish the information as to whether -
 345

(i) he is accused of any offence punishable with imprisonment for two years or more in a
pending case in which a charge has been framed by the court of competent jurisdiction;

(ii) he has been convicted of an offence [other than any offence referred to in sub-section
(1) or sub-section (2), or covered in sub-section (3), of section 8] and sentenced to
imprisonment for one year or more.

(2) The candidate or his proposer, as the case may be, shall, at the time of delivering to
the returning officer the nomination paper under sub-section (1) of section 33, also deliver to
him an affidavit sworn by the candidate in a prescribed form veryfying the information
specified in sub-section (1).

(3) The returning officer shall, as soon as may be after the furnishing of information to
him under sub-section (1), display the aforesaid information by affixing a copy of the
affidavit, delivered under sub-section (2), at a conspicuous place at his office for the
information of the electors relating to a constituency for which the nomination paper is
delivered.

36. Scrutiny of nomination.-(1) On the date fixed for the scrutiny of nominations under
section 30, the candidates, their election agents, one proposer of each candidate, and one other
person duly authorized in writing by each candidate, but no other person, may attend at such
time and place as the returning officer may appoint; and the returning officer shall give them
all reasonable facilities for examining the nomination papers of all candidates which have
been delivered within the time and in the manner laid down in section 33.

(2) The returning officer shall then examine the nomination papers and shall decide all
objections which may be made to any nomination and may, either on such objection or on his
own motion, after such summary inquiry, if any, as he thinks necessary, reject any nomination
on any of the following grounds:-

(a) that on the date fixed for the scrutiny of nominations the candidate either is not
qualified or is disqualified for being chosen to fill the seat under any of the following
provisions that may be applicable, namely: Articles 84, 102, 173 and 191,

Part II of this Act, and sections 4 and 14 of the Government of Union Territories Act,
1963 (20 of 1963); or

(b) that there has been a failure to comply with any of the provisions of section 33 or
section 34; or

(c) that the signature of the candidate or the proposer on the nomination paper is not
genuine.
346

(3) Nothing contained in clause (b) or clause (c) of sub-section (2) shall be deemed to
authorize the rejection of the nomination of any candidate on the ground of any irregularity in
respect of a nomination paper, if the candidate has been duly nominated by means of another
nomination paper in respect of which no irregularity has been committed.

(4) The returning officer shall not reject any nomination paper on the ground of any
defect which is not of a substantial character.

(5) The returning officer shall hold the scrutiny on the date appointed in this behalf under
clause (b) of section 30 and shall not allow any adjournment of the proceedings except when
such proceedings are interrupted or obstructed by riot or open violence or by causes beyond
his control:

Provided that in case an objection is raised by the returning officer or is made by any
other person the candidate concerned may be allowed time to rebut it not later than the next
day but one following the date fixed for scrutiny, and the returning officer shall record his
decision on the date to which the proceedings have been adjourned.

(6) The returning officer shall endorse on each nomination paper his decision accepting or
rejecting the same and, if the nomination paper is rejected, shall record in writing a brief
statement, of his reasons for such rejection.

(7) For the purposes of this section, a certified copy of an entry in the electoral roll for the
time being in force of a constituency shall be conclusive evidence of the fact that the person
referred to in that entry is an elector for that constituency, unless it is proved that he is subject
to a disqualification mentioned in section 16 of the Representation of the People Act, 1950
(43 of 1950).

(8) Immediately after all the nomination papers have been scrutinized and decisions
accepting or rejecting the same have been recorded, the returning officer shall prepare a list of
validly nominated candidates, that is to say, candidates whose nominations have been found
valid, and affix it to his notice board.

125A. Penalty for filing false affidavit, etc.-A candidate who himself or through his
proposer, with intent to be elected in an election,-

(i) fails to furnish information relating to sub-section (1) of section 33A; or

(ii) gives false information which he knows or has reason to believe to be false; or

(iii) conceals any information, in his nomination paper delivered under sub-section (1) of
section 33 or in his affidavit which is required to be delivered under sub-section (2) of section
 347

33A, as the case may be, shall, notwithstanding anything contained in any other law for the
time being in force, be punishable with imprisonment for a term which may extend to six
months, or with fine, or with both.”

14) In view of the above, the power to reject the nomination paper by the Returning Officer
on the instance of candidate filing the affidavit with particulars left blank can be derived from
the reasoning of a three-Judge Bench of this Court in Shaligram Shrivastava v. Naresh
Singh Patel [(2003) 2 SCC 176]. In the aforesaid case, the nomination paper of a candidate
got rejected at the time of scrutiny under Section 36(2) of the RP Act on the ground that he
had not filled up the proforma prescribed by the Election Commission wherein the candidate
was required to state whether he had been convicted or not for any offence mentioned in
Section 8 of the RP Act. In actual, the candidate therein had filed an affidavit stating that the
information given in the proforma was correct but the proforma itself was left blank. The
candidate therein coincidentally raised somewhat similar contention as pleaded by the Union
of India in the present case. The candidate pleaded that his nomination paper could not be
rejected on the ground that he had not filled up the proforma prescribed since no such
proforma was statutorily provided under the provisions of the Act or under the rules framed
thereunder. It was contended that the Commission could not legislate to prescribe a proforma;
at best it can only be an executive instruction of the Election Commission whereas the
petitioner had filled the proforma prescribed under the Rules, which did not suffer from any
defect.

15) Although, the grounds of contention may not be exactly similar to the case on hand but
the reasoning rendered in that verdict will come in aid for arriving at a decision in the given
case. In order to arrive at a conclusion in that case, this Court traversed through the objective
behind filing the proforma. The proforma mandated in that case was required to be filed as to
the necessary and relevant information with regard to the candidate in the light of Section 8 of
the RP Act. This Court further held that at the time of scrutiny, the Returning Officer is
entitled to satisfy himself whether the candidate is qualified and not disqualified, hence, the
Returning Officer was authorized to seek such information to be furnished at the time or
before scrutiny. It was further held that if the candidate fails to furnish such information and
also absents himself at the time of the scrutiny of the nomination papers, then he is obviously
avoiding a statutory inquiry being conducted by the Returning Officer under Section 36(2) of
the RP Act relating to his being not qualified or disqualified in the light of Section 8 of the RP
Act. It is bound to result in defect of a substantial character in the nomination. This Court
further held as under:-

“17. In the case in hand the candidate had failed to furnish such information as sought on
the pro forma given to him and had also failed to be present personally or through his
representative at the time of scrutiny. The statutory duty/power of Returning Officer for
holding proper scrutiny of nomination paper was rendered nugatory. No scrutiny of the
nomination paper could be made under Section 36(2) of the Act in the light of Section 8 of
348

the Act. It certainly rendered the nomination paper suffering from defect of substantial
character and the Returning Officer was within his rights in rejecting the same.”

16) It is clear that the Returning Officers derive the power to reject the nomination papers on
the ground that the contents to be filled in the affidavits are essential to effectuate the intent of
the provisions of the RP Act and as a consequence, leaving the affidavit blank will in fact
make it impossible for the Returning Officer to verify whether the candidate is qualified or
disqualified which indeed will frustrate the object behind filing the same. In concise, this
Court in Shaligram evaluated the purpose behind filing the proforma for advancing latitude to
the Returning Officers to reject the nomination papers.

17) In the light of the above reasoning, now let us assess the facts of the given case.
In Association for Democratic Reforms, this Court arrived at a decision that the members of
a democratic society should be sufficiently informed so that they may influence intelligently
the decisions which may affect themselves and it would include their decision of casting votes
in favour of a particular candidate. This Court further held that if there was a disclosure by a
candidate with regard to his criminal antecedents, assets and liabilities and educational
qualification, then it would strengthen the voters in taking appropriate decision of casting
their votes. This Court further stated as under:-

“38. If right to telecast and right to view to sport games and right to impart such
information is considered to be part and parcel of Article 19(1)(a), we fail to understand
why the right of a citizen/voter - a little man - to know about the antecedents of his
candidate cannot be held to be a fundamental right under Article 19(1)(a). In our view,
democracy cannot survive without free and fair election, without free and fairly informed
voters. Votes cast by uninformed voters in favour of X or Y candidate would be
meaningless. As stated in the aforesaid passage, one-sided information, disinformation,
misinformation and non-information, all equally create an uninformed citizenry, which
makes democracy a farce. Therefore, casting of vote by a misinformed and non-informed
voter or a voter having one-sided information only is bound to affect the democracy
seriously. Freedom of speech and expression includes right to impart and receive
information, which includes freedom to hold opinions. Entertainment is implied in
freedom of ‘speech and expression’ and there is no reason to hold that freedom of speech
and expression would not cover right to get material information with regard to a
candidate who is contesting election for a post which is of utmost importance in the
democracy.

46. …4. To maintain the purity of elections and in particular to bring transparency in the
process of election, the Commission can ask the candidates about the expenditure incurred
by the political parties and this transparency in the process of election would include
transparency of a candidate who seeks election or re-election. In a democracy, the electoral
process has a strategic role. The little man of this country would have basic elementary
 349

right to know full particulars of a candidate who is to represent him in Parliament where
laws to bind his liberty and property may be enacted.

…7. Under our Constitution, Article 19(1)(a) provides for freedom of speech and
expression. Voters's speech or expression in case of election would include casting of
votes, that is to say, voter speaks out or expresses by casting vote. For this purpose,
information about the candidate to be selected is a must. Voter's (little man-citizen's) right
to know antecedents including criminal past of his candidate contesting election for MP or
MLA is much more fundamental and basic for survival of democracy. The little man may
think over before making his choice of electing law-breakers as law-makers.”

18) Thus, this Court held that a voter has the elementary right to know full particulars of a
candidate who is to represent him in the Parliament and such right to get information is
universally recognized natural right flowing from the concept of democracy and is an integral
part of Article 19(1)(a) of the Constitution. It was further held that the voter's speech or
expression in case of election would include casting of votes, that is to say, voter speaks out
or expresses by casting vote. For this purpose, information about the candidate to be selected
is a must. Thus, in unequivocal terms, it is recognized that the citizen's right to know of the
candidate who represents him in the Parliament will constitute an integral part of Article
19(1)(a) of the Constitution of India and any act, which is derogative of the fundamental
rights is at the very outset ultra vires.

19) With this background, Section 33A of the RP Act was enacted by Act 72 of 2002 with
effect from 24.08.2002. Thus, the purpose of the Act 72 of 2002 was to effectuate the right
contemplated in Association for Democratic Reforms. However, the legislators did not
incorporate all the suggestions as directed by this Court in the above case but for mandating
all the candidates to disclose the criminal antecedents under Section 33A by filing an affidavit
as prescribed along with the nomination paper filed under Section 33(1) of the RP Act so that
the citizens must be aware of the criminal antecedents of the candidate before they can
exercise their freedom of choice by casting of votes as guaranteed under the Constitution of
India. As a result, at present, every candidate is obligated to file an affidavit with relevant
information with regard to their criminal antecedents, assets and liabilities and educational
qualifications.

20) Let us now test whether the filing of affidavit stating that the information given in the
affidavit is correct but leaving the contents blank would fulfill the objective behind filing the
same. The reply to this question is a clear denial. The ultimate purpose of filing of affidavit
along with the nomination paper is to effectuate the fundamental right of the citizen under
Article 19(1)(a) of the Constitution of India. The citizens are required to have the necessary
information at the time of filing of the nomination paper in order to make a choice of their
voting. When a candidate files an affidavit with blank particulars, it renders the affidavit itself
nugatory.
350

21) For that purpose, the Returning Officer can very well compel a candidate to furnish
information relevant on the date of scrutiny. We were appraised that the Election Commission
already has a standard draft format for reminding the candidates to file an affidavit as
stipulated. We are of the opinion that along with the above, another clause may be inserted for
reminding the candidates to fill the blanks with the relevant information thereby conveying
the message that no affidavit with blank particulars will be entertained. We reiterate that it is
the duty of the Returning Officer to check whatever the information required is fully
furnished at the time of filing of affidavit with the nomination paper since such information is
very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the
blanks even after the reminder by the Returning Officer, the nomination paper is fit to be
rejected. We do comprehend that the power of Returning Officer to reject the nomination
paper must be exercised very sparingly but the bar should not be laid so high that the justice
itself is prejudiced.

22) We also clarify to the extent that in our coherent opinion the above power of rejection by
the Returning Officer is not barred by Para 73 of People's Union for Civil Liberties
(PUCL) which reads as under:-

“73. While no exception can be taken to the insistence of affidavit with regard to the
matters specified in the judgment in Assn for Democratic Reforms case, the direction to reject
the nomination paper for furnishing wrong information or concealing material information
and providing for a summary enquiry at the time of scrutiny of the nominations, cannot be
justified. In the case of assets and liabilities, it would be very difficult for the Returning
Officer to consider the truth or otherwise of the details furnished with reference to the
‘documentary proof’. Very often, in such matters the documentary proof may not be clinching
and the candidate concerned may be handicapped to rebut the allegation then and there. If
sufficient time is provided, he may be able to produce proof to contradict the objector's
version. It is true that the aforesaid directions issued by the Election Commission are not
under challenge but at the same time prima facie it appears that the Election Commission is
required to revise its instructions in the light of directions issued in Assn for Democratic
Reforms case and as provided under the Representation of the People Act and its third
Amendment.”

23) The aforesaid paragraph, no doubt, stresses on the importance of filing of affidavit,
however, opines that the direction to reject the nomination paper for furnishing wrong
information or concealing material information and providing for a summary inquiry at the
time of scrutiny of the nominations cannot be justified since in such matters the documentary
proof may not be clinching and the candidate concerned may be handicapped to rebut the
allegation then and there. This Court was of the opinion that if sufficient time is provided, the
candidate may be in a position to produce proof to contradict the objector's version. The
object behind penning down the aforesaid reasoning is to accommodate genuine situation
where the candidate is trapped by false allegations and is unable to rebut the allegation within
a short time. Para 73 of the aforesaid judgment nowhere contemplates a situation where it bars
 351

the Returning Officer to reject the nomination paper on account of filing affidavit with
particulars left blank. Therefore, we hereby clarify that the above said paragraph will not
come in the way of the Returning Officer to reject the nomination paper if the said affidavit is
filed with blank columns. The candidate must take the minimum effort to explicitly remark as
‘NIL’ or ‘Not Applicable’ or ‘Not known’ in the columns and not to leave the particulars
blank, if he desires that his nomination paper be accepted by the Returning Officer.

24) At this juncture, it is vital to refer to Section 125A of the RP Act. As an outcome, the act
of failure on the part of the candidate to furnish relevant information, as mandated by Section
33A of the RP Act, will result in prosecution of the candidate. Hence, filing of affidavit with
blank space will be directly hit by Section 125A(i) of the RP Act. However, as the nomination
paper itself is rejected by the Returning officer, we find no reason why the candidate must
again be penalized for the same act by prosecuting him/her.

25) If we accept the contention raised by Union of India, viz., the candidate who has filed an
affidavit with false information as well as the candidate who has filed an affidavit with
particulars left blank should be treated at par, it will result in breach of fundamental right
guaranteed under Article 19(1)(a) of the Constitution, viz., ‘right to know’, which is inclusive
of freedom of speech and expression as interpreted in Association for Democratic Reforms.

26) In succinct, if the Election Commission accepts the nomination papers in spite of blank
particulars in the affidavits, it will directly violate the fundamental right of the citizen to know
the criminal antecedents, assets and liabilities and educational qualification of the candidate.
Therefore, accepting affidavit with blank particulars from the candidate will rescind the
verdict in Association for Democratic Reforms (supra). Further, the subsequent act of
prosecuting the candidate under Section 125A(i) will bear no significance as far as the breach
of fundamental right of the citizen is concerned. For the aforesaid reasons, we are unable to
accept the contention of the Union of India.

27) What emerges from the above discussion can be summarized in the form of following
directions:

(i) The voter has the elementary right to know full particulars of a candidate who is to
represent him in the Parliament/Assemblies and such right to get information is universally
recognized. Thus, it is held that right to know about the candidate is a natural right flowing
from the concept of democracy and is an integral part of Article 19(1)(a) of the Constitution.

(ii) The ultimate purpose of filing of affidavit along with the nomination paper is to effectuate
the fundamental right of the citizens under Article 19(1)(a) of the Constitution of India. The
citizens are supposed to have the necessary information at the time of filing of nomination
paper and for that purpose, the Returning Officer can very well compel a candidate to furnish
the relevant information.
352

(iii) Filing of affidavit with blank particulars will render the affidavit nugatory.

(iv) It is the duty of the Returning Officer to check whether the information required is fully
furnished at the time of filing of affidavit with the nomination paper since such information is
very vital for giving effect to the ‘right to know’ of the citizens. If a candidate fails to fill the
blanks even after the reminder by the Returning Officer, the nomination paper is fit to be
rejected. We do comprehend that the power of Returning Officer to reject the nomination
paper must be exercised very sparingly but the bar should not be laid so high that the justice
itself is prejudiced.

(v) We clarify to the extent that Para 73 of People's Union for Civil Liberties case will not
come in the way of the Returning Officer to reject the nomination paper when affidavit is
filed with blank particulars.

(vi) The candidate must take the minimum effort to explicitly remark as ‘NIL’ or ‘Not
Applicable’ or ‘Not known’ in the columns and not to leave the particulars blank.

(vii) Filing of affidavit with blanks will be directly hit by Section 125A(i) of the RP Act
However, as the nomination paper itself is rejected by the Returning Officer, we find no
reason why the candidate must be again penalized for the same act by prosecuting him/her.

28) The Writ Petition is disposed of with the above directions.

T H E E N D