Case summary
Dharini Amin
(Querist) 14 September 2011
This query is : Resolved
Can anyone please give the case summary of
INDIRA NEHRU GANDHI v RAJ NARIAN ( 1975 Supp SCC 1)
waiting for the reply
thank you
Raj Kumar Makkad
(Expert) 14 September 2011
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Indira Nehru Gandhi
Vs
Shri Raj Narain
Raj Narain and Another
Vs
Smt. Indira Nehru Gandhi Respondents
CASE NUMBER
Civil Appeals Nos. 887 and 909 of 1975
EQUIVALENT CITATION
1975-(002)-SCC-0159-SC
1975-AIR-1590-SC
CORAM
A. N. Ray
H. R. Khanna
K. K. Mathew
M. H. Beg
Y. V. Chandrachud
DATE OF JUDGMENT
07.11.1975
JUDGMENT
RAY, C.J.-
1. In Civil Appeal No. 887 of 1975 the appellant is Indira Nehru Gandhi and the respondent is
Raj Narain. Civil Appeal No. 909 of 1975 is the cross objection of the respondent. On July 14,
1975 it was directed that both the appeals would be heard together. The appeals arise out of the
judgment of the High Court of Allahabad dated June 12, 1975. The High Court held that the
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appellant held that the appellant held herself out as a candidate from December 29, 1970 and was
guilty of having committed corrupt practice by having obtained the assistance of gazetted officers
in furtherance of her election prospects. The High Court further found the appellant guilty of
corrupt practice committed under section 123(7) of the Representation of the People Act, 1951
hereinafter referred to as the 1951 Act by having obtained the assistance of Yashpal Kapur a
gazetted officer for the furtherance of her election prospects. The High Court held the appellant
to be disqualified for a period of six years from the date of
2. It should be stated here that this judgment disposes of both the appeals. Under directions of
this Court the original record of the High Court was called for. The appeal filed by the respondent
with regard to issues Nos. 2, 4, 6, 7 and 9 formed the subject-matter of cross objections in Civil
Appeal No. 909 of 1975. The cross objections are the same which form grounds of appeal filed by
the respondent in the High Court at Allahabad against an order of dismissal of Civil Misc. Writ.
No. 3761 of 1975 filed in the High Court at Allahabad.
3. The Constitution (Thirty-ninth Amendment) Act, 1975 contains three principal features.
First, Article 71 has been substituted by a new Article 71. The new Article 71 states that subject
to the provisions of the Constitution, Parliament may by law regulate any matter relating to or
connected with the election of a President or Vice-President including the grounds on which such
election may be questioned.
4. The second feature is insertion of Article 329A in the Constitution. Clause 4 of Article
329A is challenged in the present appeals. There are six clauses in Article 329A.
5. The first clause states that subject to the provisions of Chapter II of Part V [except
sub-clause (e) of clause (1) of Article 102] no election to either House of Parliament of a person
who holds the office of Prime Minister at the time of such election or is appointed as Prime
Minister after such election; and to the House of the People of a person who holds the office of
Speaker of that House at the time of such election or who is chosen as the Speaker for that House
after such election; shall be called in question, except before such authority [not being any such
authority as is referred to in clause (b) of Article 329] or body and in such manner as may be
provided for by or under any law made by Parliament and any such law may provide for all other
matter relating to doubts and disputes in relation to such election including the grounds on which
such election may be questioned.
6. Under the second clause the validity of any such law as is referred to in clause (1) and the
decision of any authority or body under such law shall not be called in question in any court.
7. The third clause states that where any person is appointed as Prime Minister or, as the case
may be, chosen to the office of the Speaker of the House of the People, while an election petition
referred to in Article 329 (b) in respect of his election to either House of Parliament or, as the
case may be, to the House of the People is pending, such election petition shall abate upon such
person being appointed as Prime Minister or, as the case may be, being chosen to the office of the
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Speaker of the House of the People, but such election may be called in question under any such
law as is referred to in clause (1).
8. The fourth clause which directly concern the present appeals states that no law made by
Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in
so far as it relates to election petitions and matters connected therewith, shall apply or shall be
deemed ever to have applied to or in relation to the election of any such person as is referred to in
clause (1), to either House of Parliament and such election shall not be deemed to be void or ever
to have become void on any ground on which such election could be declared to be void under
any such law and notwithstanding any order made by any court, before such commencement,
declaring such election to be void, such election to be void, such election continue to be valid in
all respect and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of no effect.
9. The fifth clause states that any appeal or cross appeal against any such order of any court as
is referred to in clause (4) pending immediately before the commencement of the Constitution
(Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in
conformity with the provisions of clause (4).
10. The sixth clause states that the provisions of this article shall have effect notwithstanding
anything contained in the Constitution.
11. The third feature in the Constitution (Thirty-ninth Amendment) Act is that in the Ninth
Schedule to the Constitution after Entry 86 and before the explanation several Entries Nos. 87 to
124 inclusive are inserted. The Representation of the People Act, 1951, the Representation of the
People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are mentioned in
Entry 87.
12. The respondent contends that the Representation of the People (Amendment) Act, 1974
and the Election Laws (Amendment) Act, 1975 referred to as the Amendment Acts, 1974 and
1975 do not enjoy constitutional immunity because these Acts destroy or damage basic structure
or basic features.
13. In view of the challenge by the respondent to the constitutional validity of the Amendment
Acts, 1974 and 1975, notice was given to the Attorney General.
14. The appeals were to be heard on August 11, 1975. In view of the Constitutional
(Thirty-ninth Amendment) Act, 1975 which came into existence on August 10, 1975 the hearing
was adjourned till August 25, 1975.
15. The constitutional validity of clause (4) of Article 329A falls for consideration. Clause (4)
of Article 329A is challenged on two grounds. First, it destroys or damages the basic features or
basic structure of the Constitution. Reliance is placed in support of the contention on the majority
view of seven learned Judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of
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Kerala.
16. It should be stated here that the hearing has proceeded on the assumption that it is not
necessary to challenge the majority view in Kesavananda Bharati's case (supra). The contentions
of the respondent are these : First, under Article 368 only general principles governing the organs
of the State and the basic principles can be laid down. An amendment of the Constitution does not
contemplate any decision in respect of individual cases. Clause (4) of Article 329A is said to be
exercise of a purely judicial power which is not included in the constituent power conferred by
Article 368.
17. Second, the control over the result of the elections and on the question whether the
election of any person is valid or invalid is vested in the Judiciary under the provisions of Article
329 and Article 136. The jurisdiction of judicial determination is taken away, and, therefore, the
democratic character of the Constitution is destroyed.
18. Third, the amendment destroys and abrogates the principle of equality. It is said that there
is no rational basis for differentiation between persons holding high offices and other persons
elected to Parliament.
19. Fourth, the rule of law is the basis for democracy and judicial review. The fourth clause
makes the provisions of Part VI of the Representation of the People Act inapplicable to the
election of the Prime Minister and the Speaker.
20. Fifth, clause (4) destroys not only judicial review but also separation of power. The order
of the High Court declaring the election to be void is declared valid (sie void). The cancellation of
the judgment is denial of political justice which is the basic structure of the Constitution.
21. The second ground is that the condition of the House which passed the Constitution
(Thirty-ninth amendment) Act is illegal. It is said that a number of members of Parliament of the
two Houses were detained by executive order after June 26, 1975. These persons were not
supplied any grounds of detention or given any opportunity of making a representation against
their detention. Unless the President convenes a session of the full Parliament by giving to all
members thereof an opportunity to attend the session and exercise their right of speech and vote,
the convening of the session will suffer from illegality and unconstitutionality and cannot be
regarded as a session of the two Houses of Parliament. The mere fact that a person may be
deprived of his right to move any court to secure his release from such illegal detention by means
of a Presidential order under Article 359 does not render the detention itself either legal or
constitutional. The important leaders of the House have been prevented from partic
22. Under the first ground these are the contentions. The Constitution Amendment affects the
basic structure of institutional pattern adopted by the Constitution. The basic feature of separation
of powers with the role of independence of Judiciary is changed by denying jurisdiction of this
Court to test the validity of the election. The essential feature of democreacy will be destroyed if
power is conceded to Parliament to declare the elections void according to law under which it has
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been held to be valid. This is illustrated by saying that Parliament can be law declare the election
of persons against the predominant ruling party to be void. If the majority party controls the
Legislature and the Executive, the Legislature could not have any say as to whether the Executive
was properly elected. Free and fair elections are part of democratic structure and an election
which has been held to be invalid for violation of the principles of free and fair elections and by
commission of corrupt practices is validated
23. The nature of the constituent power is legislative. The constituent power cannot exercise
judicial power. Exercise of judicial power or of a purely executive power is not power of
amendment of the Constitution. The Constitution may be amended to change constitutional
provisions but the constituent power cannot enact that a person is declared to be elected. The
consequence of change of law may be that the decision given by a court under the law as it stood
will not stand.
24. The respondent contends that judicial review is an essential feature of basic structure
because of the doctrine of separation of powers for these reasons : Judicial review is basic
structure in the matter of election to ensure free, fair and pure election. In the American and the
Australian Constitutions the judicial power of the State is located in the Judiciary. There is no
such provision in our Constitution. The Executive, the Legislature and the Judiciary are all treated
under our Constitution with respective spheres. The Judiciary are all treated under our
Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our
Constitution is dealt with by articles under the heads of the Union Judiciary and the State
Judiciary. Under Article 136 any tribunal or court is amenable to the jurisdiction of this Court.
The corollary drawn from this is that if under clause (4) of Article 329A of the Thirty-ninth
Amendment the power of judicial review is taken away it amounts to de
25. In England formerly Parliament used to hear election disputes. In 1870 Parliament found
that because of political factions it would be better to leave the task of deciding controverted
elections to judges. Parliament delegated its power of deciding controverted elections to courts.
Under the English law the courts hear and make a report to Parliament. In America each House
shall be the judge of the elections, returns and qualifications of its own members. That is Article 1,
Section 5 of the American Constitution. In Australia any question of a disputed election to either
House shall be determined by the House in which the question arises. Under the German Federal
Republic Constitution the Legislature decides whether a person has lost his seat. Against the
decision of the Bundestag an appeal shall lie to the Federal Constitutional Court.
26. The view of Story on the American Constitution is that the power to judge elections,
returns and qualification of the members of each House composing the Legislature is to be lodged
in the Legislature. Story says that no other body can be so perpetually watchful to guard its own
rights and privileges from infringement. (See Story, page 585).
27. In Corpus Juris Vol. 16 (1956) it is said that the Judiciary cannot exercise powers which
are to be found in the other two departments of Government which are normally legislative or
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powers which are generally executive in their nature. All matters relating to or affecting elections
are political question and, as such, are not questions for the Judiciary. All matters relating to or
affecting elections are, in the absence of controlling constitutional or statutory provisions to the
contrary, political questions and, as such, are not questions for the Judiciary. So, subject to
express constitutional restrictions, all matters relating to the holding of elections and determining
their results, including contests are political question (pp. 691, 692, 710).
28. In Corpus Juris Vol. 29 (1965) it is stated that under constitutional provision conferring
on the Legislature the power to determine by law, before what authority, and in what manner the
trial of contested elections shall be conducted, the Legislature is given broad power. A
constitutional provisions authorising the Legislature to provide for the mode of contesting
elections in all cases not otherwise specifically provided for in the Constitution itself confers on
the Legislature adequate authority to provide for all election contests and to determine where and
by what means election contests shall be conducted. The right to contest an election is not a
common law right. Election belong to the political branch of the Government, and, in the absence
of the special constitutional or statutory provisions, are beyond the control of the judicial power
(Sections 245, 246). A contested election case is a proceeding in which the public is interested,
since it is for the public good. An election contest is not me
29. In America disputed elections are decided by the Legislature. In Taylor v. Beckham the
American Supreme Court held that a determination of an election contest for the office of the
Governor is a political question and is not justifiable. In Truman H. Newberry v. United States of
America the American Supreme Court held that the manner of elections can be controlled. In
David S. Barry v. United States of America Ex. Rel. Thomas W. Cunninggham the decision of the
American Supreme Court in Charles W. Baker v. Joe C. Carr was referred to in order to find out
as to what aspects of elections would be justiciable and not a political question. In Baker v. Carr
(supra) the delimitation of constituencies was held to be a justiciable issue. In Julian Bond v.
James 'Sloppy' Floyd the exclusion of an elected representative because of his statement attacking
the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction
of the Legislature to find out whether a member was sincere in
30. The American decisions show that if the House claims additional power to disqualify a
member on the ground other than those stated in the Constitution judicial review against
disqualification would be available. In Bond's case (supra) disqualification was on an
unconstitutional ground that his statement on Vietnam policy was a matter of free speech and
expression. The court did not decide an election dispute but as a custodian of judicial power
judged whether the House was acting within its power.
31. Parliament itself can also hear election disputes. That was the English practice until the
Grenville Act, 1868 when Parliament conferred power on courts. Before 1770, controverted
elections were tried by the whole House of Commons as party questions. The House found that
the exercise of its privilege could be submitted to a tribunal constituted by law to secure
impartiality in the administration of justice according to the laws of the land. In 1868 the
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jurisdiction of the House in the trial of controverted elections was transferred by statute to the
courts of law. The present procedure is contained in the English Representation of the People
Act, 1949. The trial is confided to judges selected from the Judiciary. Provision is made in each
case for constituting a rota from whom these judges are selected. The House has no cognizance of
these proceedings until their determination when the judges are to make a purpose. Trial is not a
proceeding of the House. The judges certify theor determination, in writing,
32. Judicial review in many matters under statute may be excluded. In many cases special
jurisdiction is created to deal with matters assigned to such authorities. A special forum is even
created to hear election disputes. A right of appeal may be conferred against such decision. If
Parliament acts as the forum for determination of election disputes it may be a question of
parliamentary privilege and the courts may not entertain any review from such decisions. That is
because the exercise of power by the Legislature in determining disputed elections may be called
legislative power. A distinction arises between what can be called legislative power. A distinction
arises between what can be called the traditional judicial determination by courts and tribunals on
the one hand and the peculiar jurisdiction by the Legislature in determining controverted elections
on the other.
33. The legal order is a system of general and individual norms connected with each other
according to the principle that law regulates its own creation. Each norm of this order is created
according to the provisions of another norm and ultimately according to the provisions of the
basic norm constituting the unity of this system, the legal order. A norm belongs to a certain legal
order, because it is created by an organ of the legal community constituted by this order. Creation
of law is application of law. The creation of a legal norm is normally an application of the higher
norm, regulating its creation. The application of higher norm is the creation of lower norm
determined by the higher norm. A judicial decision is an act by which a general norm, a statute, is
applied but at the same time an individual norm is created binding one or both parties to the
conflict. Legislation is creation of law. Taking it into account is applicable of law. The higher
norm may determine the organ and the procedure by which
34. The general norm which attaches abstractly determined consequences, has to be applied to
concrete cases in order that the sanction determined in abstract may be ordered and executed in
concrete. The two essential elements of judicial functions are to apply a pre-existing general norm
in which a certain consequence is attached to certain conditions. The existence of the concrete
conditions in connection with the concrete consequence are what may be called individualization
of the general and abstract norm to the individual norm of the judicial decision.
35. The contention is that constitutent power is an exercise in legislative process. The
constituent power, it is said, can exercise legislative as well as judicial and executive powers. It is
said that if a legislation can validate a matter declared invalid by a judgement the constituent
power may equally do so. Special emphasis is laid on Article 102(1) (e) of the Constitution which
is amended by the Constitution (Thirty-ninth Amendment) Act. Article 102(1) (e) speaks of
disqualification by certain laws. The constitutional amendment seeks to amended Article 102 and
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remove the disqualification in the case of the Prime Minister and the Speaker. Reliance was placed
on the decisions in Abeyesekera v. Jayabilake and Piare Dusadh v. King Emperor, that an
amendment is supportable to invalidate a judgment.
36. Abeyesekera's case (supra) is an authority for the proposition that the legal infirmity can
be removed and active indemnity can be passed to relieve from penalties incurred.
37. In Piare Dusadh's case (supra) the Special Criminal Courts (Repeal) Ordinance, 1943
which conferred validity and full effectiveness on sentences passed by special courts which
functioned under the Special Criminal Courts Ordinance, 1942 was challenged. It was argued in
Piare Dusadh's case that the 1943 Ordinance attempted to exercise judicial power. The Federal
Court did not accept the contention on the ground that in India the Legislature has enacted laws
providing that suits which had been dismissed on a particular view of the law must be restored
and retried. Our Federal Court said that Parliament simply takes up certain determinations which
exist in fact, though made without authority, and prescribes not that they shall be acts done by a
board of review, but that they shall be treated as they would be treated if they were such acts. The
sections do not constitute an exercise of the judicial power. The Legislature had not attempted to
decide the question of the guilt or innocence of any of the accused
38. The power of the Legislature to validate matters which have been found by judgments or
orders of competent courts and tribunals to be invalid or illegal is a well-known pattern. The
Legislature validates acts and things done by which the basis of judgments or orders of competent
courts and tribunals is changed and the judgments and orders are made ineffective. All the sales
tax validation cases, the election validation cases are illustrations of that proposition. The present
appeals are not of the type of providing indemnity against penalties or determining existing facts
to be treated in accordance with change of law.
39. The effect of validation is to change the law so as to alter the basis of any judgment, which
might have been given on the basis of old law and thus make the judgment ineffective. A formal
declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is
pending in appeal, the appellate Court has to give effect to the altered law and reverse the
judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is
not an encroachment on judicial power but a legislation within the competence of the Legislature
rendering the basis of the judgment non est. If a competent court has found that a particular tax or
levy has been imposed by a law, which is void because the Legislature passing the law was not
competent to pass the law, then the competent Legislature has validated the tax or levy by a
validation Act involving a re-enactment of the invalid law. Where the competent Legislature has
passed a law which is contrary to any of the fundamenta
40. Where invalid elections declared by reason of corrupt practices have been validated by
changing the definition of corrupt practices in the Representation of the People Act, 1951
retrospectively the original judgment is rendered ineffective. (See Kanta Kathuria v. Manak Chand
Surana).
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41. Our Federal Court in Basanta Chandra Ghose v. King Emperor, dealt with the validity and
effect of Ordinance No. 3 of 1944. One of the objects of that ordinance was to enact a
presumption in the ordinance itself in favour of detention orders to preclude their being
questioned in courts of law and to take away or limit the power of the High Court to make orders
under Section 491 of the Criminal Procedure Code. The third object of the ordinance was
challenged on the ground that Section 10(2) of the ordinance which provided that if at the
commencement there is pending in any court any proceeding by which the validity of an order
having effect by virtue of Section 6 as if it had been made under this ordinance is called in
question, that proceeding is hereby discharged. Section 10(2) of the ordinance was challenged on
the ground that this was in abrogation of judicial power by legislative authority. It was said that
the legislative authority only passed the law and the disposal of the particular case could rem
42. Counsel on behalf of the respondent contended that the constituent power could deal with
amendments of the Constitution, but could not exercise constituent power in relation to validating
an election.
43. Judicial review is one of the distinctive features of the American Constitutional Law. In
America equal protection of the laws is based on the concept of due process of law. These
features are not in our Constitution.
44. In Bond's case (supra) the House claimed additional power to disqualify a member on
grounds other than those stated in the Constitution. It was conceded there as it will appear at
page 244 of the report that judicial review against the disqualification decreed by the House
would be available if a member was excluded on racial ground or other unconstitutional grounds.
The House claimed that the ground on which Bond was disqualified was not an unconstitutional
ground. The court held that there was no distinction between a disqualification decreed by the
House on racial grounds and one alleged to violate the right of free speech. The court concluded
that Bond was deprived of his constitutional rights guaranteed by the First Amendment by the
disqualification decreed by the House. This was not a case of deciding an election dispute by the
House and the court sitting on appeal on the decision of the House. This is a case where a
disqualification was imposed on unconstitutional grounds, thereby affecting the fu
45. The case of Powell v. McCormack (supra) is also one of disqualification by the House of a
Congressman on the basis of qualification which the House added to those specified in the
Constitution. In other words, the House purported to unseat a member by disqualifying him on a
ground not given in the Constitution. This was not a case of deciding an election dispute. Under
the statute in question the Federal District Court had jurisdiction over all civil actions where
controversy arises under the Constitution. This was a case entertained on the ground that
exclusion of a member of the House was unconstitutional. This case is an authority for the
proposition that if a power is committed to a particular organ, the court cannot adjudicate upon it.
Where a power is exercised by one organ, which is not committed to that particular organ of the
State and such exercise of power is violative of a constitutional provision the mater becomes
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cognizable by courts. The Court held that a question of unconstitutional exclu
46. Judicial review is not to be founded on any article similar to the American Constitution. In
the Australian Constitution also the judicial power is located in the court. The doctrine of
separation of powers is carried into effect in countries like America, Australia. In our Constitution
there is separation of powers in a broad sense. But the larger question is whether there is any
doctrine of separation of powers when it comes to exercise of constituent power. The doctrine of
separation of powers as recognised in America is not applicable to our country. (See In re Delhi
Laws Act; Jayantilal Shodhan v. F. N. Rana; Chandra Mohan v. State of U. P.; and Udai Ram
Sharma v. Union of India.)
47. The rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to our country. Many powers which are strictly judicial have been
excluded from the purview of the courts. The whole subject of election has been left to courts
traditionally under the Common Law and election disputes and matters are governed by the
Legislature. The question of the determination of election disputes has particularly been regarded
as a special privilege of Parliament in England. It is political question in the United States. Under
our Constitution Parliament has inherited all the privileges, powers and immunities of the British
House of Commons. In the case of election disputes Parliament has defined the procedure by law.
It can at any time change that procedure and take over itself the whole question. There is,
therefore, no question of any separation of powers being involved in matters concerning elections
and election petitions.
48. When the constituent power exercises powers the constituent power comprises legislative,
executive and judicial powers. All powers flow from the constituent power through the
Constitution to the various departments or heads. In the hands of the constituent authority there is
no demarcation of powers. It is only when the constituent authority defines the authorities or
demarcates the areas that separation of power is discussed. The constituent power is independent
of the doctrine of separation of powers. The constituent power is sovereign. It is the power which
creates the organs and distributes the powers.
49. The constituent power is sui generis. It is different from legislative power. The position of
unlimited law-making power is the criterion of legal sovereignty. The constituent power is
sovereign because the Constitution flows from the constituent power.
50. In Article 329A an exercise of judicial power is the question for determination. In
legislative processes there may be judicial process. If the Legislature has to fix the amount or lay
down the principle for fixation of amount the question will arise as to whether this is exercise of
judicial power. The determination of the amount will involve judicial procedure. When the
Legislature determines the amount the fixation of amount is purely by legislative process. But in
doing so the Legislature takes into account factors relevant to individual properties.
51. Every organ of the State has to ascertain facts which make the foundation of its own
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decision. The Executive usually collects its materials through its departments. The Judiciary acts
in a field where there are two or more parties before it and upon evidence placed before it
pronounces its verdict according to principles of natural justice. The Legislature is entitled to
obtain information from any source. The Legislature may call witnesses. The rule of audi alteram
partem is not applicable in a legislative process. Legislation is usually general. It may sometimes
be for special reasons an individual case. There is no doubt that the constituent power is not the
same as legislative power. The distinction between constituent power and legislative power is
always to be borne in mind because the constituent power is higher in norm.
52. Judicial review in election disputes is not a compulsion. Judicial review of decisions in
election disputes may be entrusted by law to a judicial tribunal. If it is to a tribunal or to the High
Court the judicial review will be attracted either under the relevant law providing for appeal to
this Court or Article 136 may be attracted. Under Article 329 (b) the contemplated law may vest
the power to entertain election petitions in the House itself which may determine the dispute by a
resolution after receiving a report from a special committee. In such cases judicial review may be
eliminated without involving amendment of the Constitution. The Constitution permits by
amendment exclusion of judicial review of a matter if it is necessary to give effect to the directive
principles of State policy. A similar power may be available when such exclusion is needed in the
larger interest of the security of the State. In either case the exclusion of judicial review does not
mean that principles of equality are viola
53. Equality of status as well as equality of opportunity is a fundamental right in Articles 14
and 16 of the Constitution. It also means equality before law and equal protection of the laws.
Equality is spoken in the Preamble. There is liberty to Legislature to classify to establish equality.
When Articles 31A and 31B eliminated judicial review the meaning was not that the Legislature
would go on discriminating. The task of classification can be left to the Legislature. It is the very
nature of legislation that classification must be in public interest. The amending body has excluded
judicial review in Articles 31A, 31B and 31C.
54. Exclusion of the operation of the equality principle from some fields is constitutionally
possible. Article 33 excludes judicial review in matters relating to the armed forces. Article 262(2)
excludes jurisdiction of courts in water disputes.
55. Decision in election disputes may be made by the Legislature itself or may be made by
courts or tribunals on behalf of the Legislature or may be made by courts and tribunals on their
own exercising judicial functions. The concept of free and fair election is worked out by the
Representation of the People Act. The Act provides a definition of "corrupt practice" for the
guidance of the court. In making the law the Legislature acts on the concept of free and fair
election. In any legislation relating to the validity of elections the concept of free and fair elections
is an important consideration. In the process of election the concept of free and fair election is
worked out by formulating the principles of franchise, and the free exercise of franchise. In cases
of disputes as to election, the concept of free and fair election means that disputes are fairly and
justly decided. Electoral offenses are statutory ones. It is not possible to hold that the concept of
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free and fair election is a basic structure, a
56. Clause (4) in Article 329A has done four things. First, it has wiped out not merely the
judgment but also the election petition and the law relating thereto. Secondly, it has deprived the
right to raise a dispute about the validity of the election by not having provided another forum.
Third, there is no judgment to deal with and no right or dispute to adjudicate upon. Fourth, the
constituent power of its own legislative judgment has validated the election.
57. At the outset it has to be noticed that constituent power is not the same as ordinary
law-making power. On behalf of the appellant it was rightly contended that if any amendment of
Article 102(1) (e) of the Constitution had to be made, it had to be made by amendment of the
Constitution. The matter does not rest there.
58. If no law prior to the Constitution (Thirty-ninth Amendment) Act will apply to election
petitions or matters connected therewith the result is that there is not only no forum for
adjudication of election disputes but that there is also no election petition in the eye of law. The
insurmountable difficulty is in regard to the process and result of validating the election by clause
(4). Two answers were given on behalf of the appellant. One was that the validation of the
election is itself the law. The other was that the constituent power applied its own norms to the
election petition. Both the answers are unacceptable. If the election petition itself did not have any
existence in law there was no petition which could be looked into by the constituent power. If
there was no petition to look into it is difficult to comprehend as to what norms were applied to
the election dispute. The dispute has to be seen. The dispute has to be adjudicated upon.
59. Clause (4) suffers from these infirmities. First, the forum might be changed but another
forum has to be created. If the constituent power became itself the forum to decide the disputes
the constituent power by repealing the law in relation to election petitions and matters connected
therewith did not have any petition to seize upon to deal with the same. Secondly, any decision is
to be made in accordance with law. Parliament has power to create law and apply the same. In the
present case, the constitutent power did not have any law to apply to the case, because the
previous law did not apply and no other law was applied by clause (4). The validation of the
election in the present case is, therefore, not by applying any law and it, therefore, offends rule of
law.
60. It is true that no express mention is made in our Constitution of vesting the Judiciary the
judicial power as is to be found in the American Constitution. But a division of the three main
functions of Government is recognised in our Constitution. Judicial power in the sense of the
judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature
are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior
to the Constitution and also since the Constitution. It is not the intention that the powers of the
Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers
of the Legislature or the Executive should pass to or be shared by the Judiciary.
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61. The constituent power is sovereign. Law-making power is subject to the Constitution.
Parliament may create forum to hear election disputes. Parliament may itself hear election
disputes. Whichever body will hear election disputes will have to apply norms. Norms are legal
standards. There is no discrimination if classification on rational basis is made for determination of
disputes relating to persons holding the office of Prime Minister or the Speaker. The changes
effected by the Amendment Acts, 1974 and 1975 apply to all and there is no discrimination.
Retrospective legislation is not by itself discrimination. The changes introduced to the 1951 Act
apply to all.
62. Clause (4) of Article 329A in the present case in validating the election has passed a
declaratory judgment and not a law. The legislative judgment in Clause (4) is an exercise of
judicial power. The constituent power can exercise judicial power but it has to apply law.
63. The validation of the election is not by applying legal norms. Nor can it be said that the
validation of election in Clause (4) is by norms set up by the constituent power.
64. Clause (5) in Article 329A states that an appeal against any order of any court referred to
in Clause (4) pending, before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court, shall be disposed of in conformity with the provisions of
Clause (4). The appeal cannot be disposed of in conformity with the provisions of Clause 4
inasmuch as the validation of the election cannot rest on Clause (4).
65. In view of the conclusion that the appeal cannot be disposed of in conformity with Clause
(4), it is necessary to hear the appeals on other grounds in accordance with the provisions of the
1951 Act and the Amendment Acts, 1974 and 1975.
66. The second contention of the respondent is that the session of the Lok Sabha and the
Rajya Sabha is invalid for these reasons. If the Executive illegally and unconstitutionally detains
any person the detention affects the validity of the proceedings. A number of members of
Parliament of the two Houses, namely, the Lok Sabha and the Rajya Sabha were detained by
executive orders after June 26, 1975 and before the summoning of a session of the two Houses of
Parliament. Parliament commenced the session on July 21, 1975. None of the members of
Parliament were either supplied any grounds of detention or given any opportunity to make any
representation against their detention. The President who was the authority to summon a session
of Parliament issued the Presidential Order under Article 359 of the Constitution on June 27,
1975. The right of the detained members of Parliament to move any court for the enforcement of
their fundamental right under Article 22 of the Constitution was taken away by the executive or
67. The constitutional position of the two Houses of Parliament is governed by the provisions
of Articles 79 and 81 of the Constitution. The respondent contends that unless the President
convenes a session of the full Parliament by giving to all members thereof an opportunity to attend
the session and exercise their right of speech and vote, the convening of the session will suffer
from illegality and unconstitutionality and cannot be regarded as a session of the two Houses of
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Parliament. Any business transacted in a session of such truncated House cannot, therefore, be
regarded in law as a session of a House.
68. The mere fact that a person who is under unconstitutional and illegal detention may be
deprived of his right to move a court to secure his release from such illegal detention by means of
a Parliament Order under Article 359 is said by the respondent not to render the detention of a
person either legal or constitutional, and, therefore, such a detenu must be provided an
opportunity to participate in the proceedings of the House. It is emphasised by the respondent that
when important leaders of different parties are unconstitutionally prevented from participating in
the session of the House, a session cannot be held for deliberations in which different members
influence the view of others by their own participation. If in the holding of a session and in
transacting business therein, the provisions of the Constitution are not complied with, this is said
to amount to illegality or unconstitutionality and not a mere procedural irregularity within the
meaning of Article 122(1) of the Constitution.
69. The essence of the respondent's contention is that the right of participation of some
members of the House of Parliament in the proceedings of Parliament in the proceedings of
Parliament under Article 105(3) of the Constitution has been interfered with. When a member is
excluded from participating in the proceedings of the House, that is a matter concerning
Parliament and the grievance of exclusion is in regard to proceedings within the walls of
Parliament. In regard to rights to be exercised within the walls of the House the House itself is the
judges. (See : May's Parliamentary Practice, 18th Ed., pp. 82-83, 12 QBD 271, 285-286).
70. In Bradlaugh v. Gossett Bradlaugh claimed to make affirmation instead of taking the oath.
He was permitted to make the affirmation "subject to any liability by statute", and took his seat.
Upon an action for penalties it was decided, finally by the House of Lords, that Bradlaugh had not
qualified himself to sit by making the affirmation. On re-election, he attempted to take the oath,
but was prevented by order of the House which eventually directed the Sergeant to exclude him
from the House until he undertook to create no further disturbance. Bradlaugh then brought an
action against the Sergeant in order to obtain a "declaration that the order of the House was
beyond the power and jurisdiction of the House and void, and an order restraining the Sergeant at
Arms from preventing Bradlaugh by force from entering the House". It was held that the Court
had no power to restrain the executive officer of the House from carrying out the order of the
House. The reason is that the House is not subject to the contro
71. If an outside agency illegally prevents a member's participation the House has the power
to secure his presence. In 1543 Ferrers a member was arrested in London. The House, on hearing
of his arrest, ordered the Sergeant to go to the Computer and demand his delivery. The Sergeant
was resisted by the city officers, who were protected by the sheriffs. The commons laid their case
before the Lords. They ordered the Sergeant to repair to the sheriffs, and to require the delivery
of Ferrers without any writ or warrant. The Lord Chancellor had offered them a writ of privilege
but they refused it. The sheriffs in the meantime had surrendered the prisoner. This practice of
releasing members by a writ of privilege continued but no writ was to be obtained.
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72. The present mode of releasing arrested members goes back to Shirley's case. In 1603
Shirley was imprisoned in the Fleet, in execution, before the meeting of Parliament. The
Commons first tried to bring him into the House by habeas corpus, and then sent the Sergeant to
demand his release. The warden refused to give up his prisoner. At length the warden delivered up
the prisoner.
73. An Act 1 James 1, c. 13 was passed, which while it recognised the privilege of freedom
from arrest, the right of either House of Parliament to set a privileged person at liberty, and the
right to punish those who make or procure arrests, enacted that after such time as the privilege of
that session in which privilege is granted shall cease, parties may sue and execute a new writ. In
1700 an Act was passed which while it maintained the privilege of freedom from arrest with more
distinctness than the Act I James 1 c. 13, made the goods of privileged persons liable to distress
infinite and sequestration, between a dissolution or prorogation and the next meeting of
Parliament, and during adjournments for more than fourteen days.
74. The composition of Parliament is not dependent on inability of a member to attend for
whatsoever reason. The purpose of Article 85 is to give effect to the collective right of the House
which represents the nation to be called as often as the situation demands, and in any case the
interval between two sessions must not exceed six months. Assuming a conflict were to arise
between the privileges of a member under Article 105(3) and the functions of the House to
assemble under Article 85 the privilege of the member will not prevail. The detention of members
of Parliament is by a statutory authority in the exercise of his statutory powers.
75. The suspension under Article 359 of the remedy for the enforcement of fundamental rights
is dependent on a Proclamation of Emergency under Article 352. Parliament has the power not to
approve of the Proclamation, and thereafter the emergency shall cease to operate. The contention
of the respondent means that Parliament cannot meet even so as to withhold approval of the
emergency and thus terminate the suspension of the members' right of moving the court. The
Constitution provides for proclamation of emergency, the suspension of the remedy under Article
359 for enforcement of fundamental rights enabling even detention of members of Parliament
when necessary. Article 85 is not suspended. The six months rule is obligatory. It follows that the
members' right under Article 105 are not available under a detention in these circumstances. For
the purposes of Article 105(3) a conviction under penal laws or detention under emergency laws
must be deemed to be valid till it is set aside.
76. When under Article 359 the President during the operation of a Proclamation of
Emergency by order declares that the right to move any court for the enforcement of rights
conferred by Part III shall remain suspended and persons who are members of House of
Parliament are in detention under orders made under the Maintenance of Internal Security Act,
the detention cannot be challenged by collateral attack on the ground of deprivation of their
participation in the parliamentary proceedings. The challenge will be questioning the detention on
the ground that the detention is in violation of Article 19, 21 and 22.
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77. Article 85 provides that not more than six months shall intervene between the two sessions
of Parliament. Article 85 is not a provision regarding the constitution of Parliament but of holding
of sessions. The powers, privileges and immunities of Parliament and its members as provided in
Article 105 are that they shall be such as may be defined by Parliament by law, and, until so
defined, shall be those of the House of Commons of the Parliament of the United Kingdom.
78. In Special Reference No. 1 of 1964, it was held that the court could entertain a petition
under Article 226 on the ground that the imposition of penalty by the Legislature on a person who
is not a member of the Legislature or issuing process against such person for its contempt
committed outside the four walls of the House.
79. The scope of the Parliamentary privilege of freedom from arrest has been defined
positively and negatively. The positive aspect of the privilege is expressed in the claim of the
Commons to freedom from arrest in all civil actions or suits during the time of Parliament and
during the period when a member was journeying or returning from Parliament. The privilege has
been defined negatively in the claim of the Commons which specifically excepted treason, felony
and breach or surety of the peace.
80. The privilege of freedom from arrest is limited to civil cause, and has not been allowed to
interfere with the administration of criminal justice or emergency legislation. (See May's
Parliamentary Practice, 18th Ed., at p. 100). In early times the distinction between "civil" and
"Criminal" was not clearly expressed. The development of the privilege has shown a tendency to
confine it more narrowly to cases of a civil character and to exclude not only every kind of
criminal case, but also cases which, while not strictly criminal, partake more of a criminal than of
a civil character. This development is in conformity with he principle laid down by the Commons
in a conference with the Lords in 1641 : "Privilege of Parliament is granted in regard of service of
the Commonwealth and is not to be used to the danger of the Commonwealth."
81. In Wilkes' case, it was resolved by both Houses on November 29, 1763 that the privilege
of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to
be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of
so heinous and dangerous an offence."Since that time", the Committee of Privileges said in 1831,
"it has been considered as established generally, that privilege is not claimable for any indictable
offence."
82. These being the general declarations of the law of Parliament, the House will not allow
even the sanctuary of its walls to protect a member from the process of criminal law, although a
service of a criminal process on a member within the precincts of Parliament, whilst the House is
sitting without obtaining the leave of the House, would be a breach of privilege.
83. The committal of a member in England for high treason or any criminal offence is brought
before the House by a letter addressed to the Speaker by the committing judge or magistrate.
Where a member is convicted but released on bail pending an appeal, the duty of the Magistrate to
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communicate with the Speaker does not arise. No duty of informing the Speaker arises in the case
of a person who while in prison under sentence of a court is elected as a member of Parliament. In
the case of detention of members under Regulation 14B of the Defence of Realm Regulations in
England, the communication was made to the Speaker by a letter from the Chief Secretary to the
Lord Lieutenant of Ireland which was read to the House by the Speaker. The detention of a
member under Regulation 18B of the Defence (General) Regulations, 1939, made under the
Emergency Powers (Defence) Acts, 1939 and 1940, led to the Committee of Privileges being
directed to consider whether such detention constituted a breach of the privileges of the
84. In K. Anandan Nambiar v. Chief Secretary, Government of Madras, the petitioner who
were members of Parliament and detained by orders passed by the State Government under Rule
30 (1) (b) of the Defence of India Rules, 1962 challenged the validity of the orders of detention
on the ground that Rule 30(1) (b) was not valid because "a legislator cannot be detained so as to
prevent him from exercising his constitutional rights as such legislator while the legislative
chamber to which he belongs is in session". The State raised a preliminary objection that the
petitions were incompetent in view of the order issued by the President under Article 359(1)
suspending the rights of any person to move any court for the enforcement of rights conferred by
Articles 14, 21 and 22. This Court held that the validity of the Act, rule or order made under the
Presidential Order could not be questioned on the ground that they contravene Articles 14, 21 and
22.
85. The petitioners also contended in Nambiar's case (supra) that Rule 30(1) (b) under which
the orders of detention had been passed was invalid on grounds other than those based on Articles
14, 19, 21 and 22. This Court held that if that plea was well-founded, the last clause of the
Presidential Order was not satisfied, and, therefore, the bar created by it suspending the citizen's
fundamental rights under Articles 14, 21 and 22 could not be pressed into service by the
respondents.
86. Articles 79, 85, 86, 100(1) and 105(3) were considered in Nambiar's case (Supra) in
relation to rights of members of Parliament, and it was held that the totality of rights cannot claim
the status of fundamental rights and freedom of speech on which reliance was placed is a part of
the privileges falling under Article 105. The reason is that freedom from arrest under a detention
order is not recognised as a privilege which can be claimed by members of House of Commons in
England. This Court then posed the question that if a claim for freedom from arrest by a detention
order could not be sustained under the privileges of the members of Parliament whether it could
be sustained on the ground that it is a constitutional right which could not be sustained on the
ground that it is constitutional right which could not be contravened. The statement in May's
Parliamentary Practice 7th Ed. at p. 78 which is to be found in the 18th Edition at p. 100 that the
privilege of freedom from arrest is limited to civil caus
87. The second ground of challenge that there was no valid session of the House cannot be
accepted for the reasons given above. It has also to be stated that it is not open to the respondent
to challenge the orders of detention collaterally. The principle is that what is directly forbidden
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cannot be indirectly achieved.
88. The High Court found first that the appellant has to be regarded as a candidate from
December 29, 1970 as she held herself out on that date as a candidate. The second finding is that
the appellant obtained and procured the assistance of Yashpal Kapur for the furtherance of her
election prospects when Yashpal Kapur was serving as a gazetted officer with the Government of
India. The High Court found that Yashpal Kapur's resignation from his service though submitted
on January 13, 1971 did not become effective until January 25, 1971 when it was notified. The
further finding by the High Court is that Yashpal Kapur under the instructions of the appellant
delivered election speech on January 7, 1971 at Munshi Ganj and another speech at Kalan on
January 19, 1971. The third finding by the High Court is that the appellant and her election agent
Yashpal Kapur procured and obtained the assistance of the officers of the State Government,
particularly, the District Magistrate, the Superintendent of Police, the Execut
89. The definition of "candidate" in Section 79(b) of the 1951 Act until the amendment
thereof by the Election Laws (Amendment) Act, 1975 was as follow :
'Candidate' means 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.
90. This definition has now been substituted by Section 7 of the Amendment Act, 1975, as
follows :
'Candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election.
91. Section 10 of the Amendment Act, 1975 further enacted that the amendments shall have
retrospective operation so as to apply to and in relation to any election held before the
commencement of the Amendment Act, 1975 on August 6, 1975 to either House of Parliament or
to either House or the House of the Legislature of a State, inter alia, (iv) in respect of which
appeal from any order of any High Court made in any election petition under Section 98 or
Section 99 of the 1951 Act is pending before the Supreme Court immediately before such
commencement.
92. Section 9 of the Amendment Act, 1975 has substituted clause (a) in Section 171 A of the
Indian Penal Code and a "candidate" means for the purpose of Section 171A of the Indian Penal
Code a person who has been nominated as a candidate at any election. Previously the definition of
"candidate" in Section 171A of the Indian Penal Code was the same as in Section 79(b) of the
1951 Act prior to the amendment thereof by the Amendment Act, 1975. In Section 171A of the
Indian Penal Code there was a proviso to the effect that candidate would mean a person who
holds himself out as a prospective candidate provided he is subsequently nominated as a
candidate.
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93. Relying on the provisions introduced by the Amendment Act, 1975, it is contended on
behalf of the appellant that she will be regarded as a candidate only from February 1, 1971,
namely, the date when she has been duly nominated as a candidate at her election, and, therefore,
the finding of the High Court cannot be sustained. It is also contended by the appellant that the
finding of the High Court that Yashpal Kapur delivered election speeches on January 7, 1971 and
January 19, 1971 under instructions of the appellant cannot be supported because the appellant
was not a candidate either on January 7, 1971 or on January 19, 1971.
94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not
to be effective until January 25, 1971 is contended to be displaced by legislative change by the
Amendment Act, 1975. Section 8(b) of the Amendment Act, 1975 has introduced Explanation (3)
at the end of Section 123(7) of the 1951 Act. This amendment has retrospective operation.
95. The Explanation is as follows :
" (3) For the purposes of clause (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, resignation, termination of service,
dismissal or removal from service of a person in the service of the Central Government (including
a person serving in connection with the administration of a Union territory) or of a State
Government shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismissal or removal from service, as the case may be, is stated in such publication, also of the fact
that such person was appointed with effect from the said date, or in the case of resignation,
termination of service, dismissal or removal from service, such person ceased to be in such service
with effect from the said date."
96. The effect of Explanation (3) at the end of Section 123(7) of the 1951 Act incorporated
by the notification dated January 25, 1971 in the Gazette dated February 6, 1971 makes the fact
of the resignation of Yashpal Kapur from his service fully effective from January 14, 1971. It is,
therefore, contended that from January 14, 1971 Yashpal Kapur was not a government servant.
97. To constitute a corrupt practice within the meaning of Section 123 (7) of the 1951 Act the
act complained of must be an act of obtaining or procuring os assistance of the categories of
government servants mentioned therein by the candidate or his election agent or by any other
person with the consent of the candidate or his election agent. Section 100(1) (b) of the 1951 Act
enacts that if the High Court is of opinion that any corrupt practice has been committed by a
returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent, the High Court shall declare the election of the returned candidate
to be void. A returned candidate is defined in Section 79(f) of the 1951 Act to mean a candidate
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whose name has been published under Section 67 of the 1951 Act as duly elected. A returned
candidate in order to be guilty of a corrupt practice within the meaning of Section 123(7) of the
1951 Act must be guilty of any of the acts mentioned in the differ
98. The third finding by the High Court that the appellant and her election agent Yashpal
Kapur procured and obtained the assistance of the officers of the State Government, particularly,
the District Magistrate, the Superintendent of Police, the Executive Engineer, P. W. D. and the
Engineer to Hydel Department for construction of rostrums and arrangement for supply of power
for construction of rostrums and arrangement for supply of power for loudspeakers and for their
assistance for furtherance of the prospects of the election of the appellant has to be tested in the
light of the provisions contained in Section 123(7) of the 1951 Act. Under the said provision
obtaining or procuring by candidate or his agent any assistance for the furtherance of the prospect
of that candidate from gazetted officers is corrupt practice. The Amendment Act, 1975 by Section
8 thereof has added a proviso to Section 123(7) of the 1951 Act. The proviso is as follows :
"Provided that where any person, in the service of the Government and belonging to any of
the classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
99. The proviso aforesaid shows that where persons in the service of the Government in the
discharge of official duty make any arrangement or provide any facility or do any act or thing in
relation to a candidate, such arrangements and facilities shall not be deemed to be assistance for
furtherance of the prospect of the candidate's election. Therefore, the service rendered by
government servants for construction of rostrums and arrangements for supply of power for
loudspeakers according to the contention of the appellant could not be considered as assistance
for the furtherance of the prospects of the election of the appellant.
100. The contentions of the appellant can succeed if the Amendment Acts of 1974 and 1975
are valid. The respondent has challenged the constitutional validity of these Acts. Therefore, that
question has to be examined before the appellant's contentions can be answered.
101. The respondent in cross-appeal challenged the findings of the High Court on issue No. 9
and contended that the High Court should have held that the election expenses of the appellant
exceeded the limit. The respondent also challenged the finding of the High Court with regard to
issue No. 6 and contended that the high Court should have held that the symbol of cow and calf
was a religious symbol and the appellant committed corrupt practice as defined in Section 123(3)
of the 1951 Act. The respondent did not press issues No. 4 and 5 which related to distribution of
quilts, blankets, dhotis and liquor. The respondent also abandoned issue No. 7 which related to
voters being conveyed to the polling stations free of charge on vehicles hired and procured by
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Yashpal Kapur.
102. The issue pressed by the respondent was that the appellant and her election agent
Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by Section
77 of the 1951 Act read with Rule 90. The respondent alleged that the election expenses of the
appellant, inter alia, were Rs. 1,28,700 on account of hiring charges of vehicles, Rs. 43,230 on
account of cost of petrol and diesel; Rs. 9,900 on account payments made to the drivers of the
vehicles. The respondent further alleged that the appellant spent Rs. 1,32,000 on account of
construction of rostrums for public meetings on February 1, 1971 and February 25, 1971. The
respondent contended that the findings of the High Court should be reversed.
103. The High Court found that the election expenses furnished by the appellant were Rs.
12,892.97. The High Court added another sum of Rs. 18,183.50. The three items which were
added by the High Court were cost of erection of rostrums amounting to Rs. 16,000, cost
incurred in installation of loudspeakers amounting to Rs. 1,951 and cost for providing car
transport to respondent No. 1 amounting to Rs. 232.50. The total election expenses found by the
High Court came to Rs. 31,976.47 which was below the prescribed limit of Rs. 35,000.
104. With regard to hiring charges of vehicles the High Court found that the respondent did
not examine any witness to indicate as to whether the vehicles were used only for party
propaganda or they were used in connection with the election of the appellant. The High Court
further found that the documents which were relied on by the respondent did not establish that the
vehicles had been engaged or used in connection with the election work of the appellant.
105. The respondent repeated the following contentions which had been advanced before the
High Court. Dal Bahadur Singh, President, District Congress Committee wrote a letter to the
District Election Officer intimating that 23 vehicles had been engaged by the District Congress
Committee for election work in Rae Bareli, Amethi and Ram Sanehi Ghat constituencies, and,
therefore, the vehicles should be derequisitioned. Dal Bahadur Singh thereafter wrote a note to
Yashpal Kapur and requested that the letter be sent to the District Election Officer to that effect.
Yashpal Kapur wrote a letter to the District Election Officer and repeated the prayer contained in
Dal Bahadur Singh's letter. It was, therefore, contended that because Yashpal Kapur was the
election agent of the appellant and he moved for the derequisition of the vehicles it should be
inferred that the vehicles were engaged for the election of the appellant. Yaspal Kapur said that
the vehicles were used in the three parliamentary constituencies. The Hi
106. With regard to the expenses for the election of rostrums the respondent contended that
the appellant's election expenses should include Rs. 1,32,000 as the costs for erection of rostrums
for the meetings on February 1, 1971 and the meeting on February 25, 1971. The High Court held
that Rs. 16,000 could only be added to the election expenses of the appellant consisting of Rs.
6,400 for four rostrums and Rs. 9,600 for six rostrums.
107. The amount of Rs. 16,000 which was added by the High Court on account of cost of
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erection of rostrums cannot be included in the election expenses of the appellant by reason of
amendment to Section 77 of the 1951 Act by the Amendment Act, 1975. Explanation 3 has been
added as follows :
"For the removal of doubts, it is hereby declared that any expenditure incurred in respect of
any arrangements made, facilities provided or any other act or thing done by any person in the
service of the Government and belonging to any of the classes mentioned in clause (7) of Section
123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that
clause shall not be deemed to be expenditure in connection with the election incurred or
authorised by a candidate or by his election agent for the purposes of this sub-section."
108. By the Amendment Act, 1975 a proviso has been added to Section 123(7) of the 1951
Act to the effect that arrangements made or facilities provided or any act done by a government
servant belonging to the class mentioned there in the discharge of official duty shall not be
deemed to be assistance for furtherance of the prospects of that candidate's election. All these
amendments have retrospective operation. Therefore, the cost of rostrums cannot be added to the
election expenses of the appellant. Services rendered by government servants for the erection of
rostrums and for supply of power for loudspeakers cannot be deemed to be assistance for the
furtherance of the prospects of that candidate's election.
109. The respondent contended that Exhibit 118 which was the bank account of the District
Congress Committee showed on the one hand that there was deposit of Rs. 69,930 on March 4,
1971 and on the other there was a withdrawal of Rs. 40,000 on March 4, 1971 and of Rs. 25,000
on March 6, 1971, and, therefore, the sum of Rs. 65,000 should be added to the election expenses
of the appellant. When it was put to Yashpal Kapur that the sums of Rs. 40,000 and Rs. 25,000
were withdrawn by Dal Bahadur Singh, Yashpal Kapur said that he was not aware of it. There is
no pleading in the election petition that the appellant authorised incurring expenditure by a
political party. There is no pleading that any amount has been paid by the political party. There is
no complaint in the petition about the sum of Rs. 65,000 or the sum of Rs. 69,930. Yashpal
Kapur denied knowledge of Rs. 70,000. The appellant was not asked a single question. There is
no evidence to identify any of these payments with the election of the appellant.
110. It is appropriate at this stage to refer to the amendment which was introduced by the
Amendment Act, 1974. The appellant relies on the provision to show that expenses incurred or
authorised by a political party cannot be included in election expenses. Explanation 1 which was
inserted at the end of Section 77 of the 1951 Act by Amendment Act, 1974 is that any
expenditure incurred or authorised in connection with the election of a candidate by a political
party or by any other association or body of persons or by an individual other than the candidate
or his election agent shall not be deemed to be and shall not ever be deemed to have been
expenditure in connection with the election incurred or authorised by the candidate or by his
election agent.
111. A proviso was also added to the aforesaid Explanation 1 by the Amendment Act, 1974.
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The proviso stated that nothing contained in the Explanation shall effect (a) any Judgment, order
or decision of the Supreme Court whereby the election of a candidate to the House of the People
or to the Legislative Assembly of a State has been declared void or set aside before the
commencement of the Representation of the People (Amendment) Ordinance, 1974; (b) any
Judgment, order or decision of High Court whereby the election of any such candidate has been
declared void or set aside before the commencement of the said Ordinance if no appeal has been
preferred to the Supreme Court against such judgment, order or decision of the High court before
such commencement and the period of limitation for filing such appeal has expired before such
commencement.
112. Explanation 2 which was added to Section 77 of the 1951 act by the Amendment Act,
1974 is as follows :
For the purposes of Explanation 1 "political party" shall have the same meaning as in the
Election Symbols (Reservation and Allotment) order, 1968, as for the time being in force.
113. Counsel for the respondent relied on the recent decision of this Court in Kanwar Lal
Gupta v. Amaranth Chawla in support of the proposition that there has been no change in law and
if expenses incurred by a political party can be identified with the election of a candidate then that
expenditure is to be added to the election expenses of a candidate as being authorised by him.
There are no findings by the High Court in the present appeals that any expenses by a political
party were authorised by the appellant. There is also no finding in the present appeals that any
expenses incurred by a political party can be identified with the election of the appellant. The
changes in law affected by the Amendment Acts, 1974 and 1975 totally repel the submissions on
behalf of the respondent. Expenses incurred or authorised in connection with the election of a
candidate by a political party shall not be deemed to be and shall not ever be deemed to have been
expenditure in connection with the election incurred or autho
114. Counsel for the respondent contended that the judgment of the High court should be
reversed with regard to election expenses of the appellant on three counts. First, Exhibit 118
shows that the sum of Rs. 65,000 which was drawn by Congress Committee should have been
held by the High Court on a reasonable inference to have been spent by the District Congress
Committee as having been authorised by the election agent of the appellant. Second, the High
Court has not taken into account expenses of the election agent at 12 meetings other than the
meetings addressed by the appellant and has also not taken into account the telephone expense of
the election agent. The telephone expenses amounted to Rs. 836.85 between January 11, 1971
and February 10, 1971 and a further sum of Rs. 2,514 for the period February 11, 1971 to March
15, 1971. Third, it is said that there were 5000 polling booths and if 20 workers were required per
booth then 10,000 workers would be required and the only inference is that an amount in e
115. In issue No. 9 there was no amount alleged with regard to telephones bills or election
meetings under the heading of alleged election expenses. There was no allegation to that effect in
the petition. With regard to expenses for the alleged 12 meetings addressed by the election agent
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the evidence of Yashpal Kapur is that he addressed about a dozen meetings and he did not include
in the election return the expenses incurred for installation of loudspeakers because the
expenditure was incurred by him. He also said that he did not include in the election return the
expenses incurred over the construction of platforms because the meetings were arranged by the
District Congress Committee. No allegations were made in the petition with regard to any alleged
sum of money on account of election meetings where the election agent spoke. The High Court
rightly said that the telephone expenses and expenses for meetings could not be taken into
consideration because no suggestion of the case was made until the stage of
116. The respondent's submission is that the appellant was the Prime Minister at the time of
the election, and, therefore, there was a big campaign and the expenses were enormous. That will
mean little. Expenses incurred or authorised by a political party are under the Amendment Act,
1974 not to be deemed to be expenditure in connection with the election incurred or authorised by
the candidate or by his election agent for the purposes of Section 77 of the 1951 Act. The part
played by a political party in connection with candidates of the party at the election particularly in
relation to expenditure incurred by the political party with regard to candidates of the party has
been the subject of some decisions of this Court. This Court has observed that expenditure must
be by the candidate himself and any expenditure in his interest by others (not his agent within the
meaning of the term of the Election Laws) is not be taken note of. Where vehicles were engaged
by the Congress Committee and used by the candidate
117. Expenses incurred by a political party in support of its candidates have been held by this
Court not to fall within the mischief of Section 123 (6) of the 1951 Act (see Shah Jayantilal
Ambalal v. Kasturilal Nagindas Doshi). In Rananjaya Singh v. Baijnath Singh this Court pointed
out that expenses must be incurred or authorised by the candidate or his agent. In that case the
manager, the assistant manager, 20 ziladars and their peons were alleged to have worked for the
election of the appellant. This Court held that the employment of extra persons and the incurring
or authorising of extra expenditure was not by the candidate or his election agent. The extra men
employed and paid were in the employment of the father of the appellant. This Court said that the
position in law could not be at all different if the father had given those employees a holiday on
full pay and they voluntarily worked in connection with the election of the appellant. Persons who
volunteer to work cannot be said to be employed or pa
118. In Ram Dayal v. Brijraj Singh the appellant challenged the election of the respondent on
the ground that the Maharaja and the Rajmata of Gwalior had helped the respondent's election in
a number of ways and acted as his agents and the respondent incurred considerable expenditure
which exceeded the limit. This Court found that assuming the expenditure was incurred by the
Maharaja and the Rajmata of Gwalior for the purpose of canvassing votes, in the absence of any
evidence to show that the Maharaja and the Rajmata acted as election agents or that the
expenditure was authorised by the respondent, it was not liable to be included in the election
expenses.
119. On the behalf of the respondent it was said relying on the decision of this Court in
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Kanwar Lal Gupta's case (supra) that if the candidate takes advantage of expenditure incurred by
the political party in connection with the election of the candidate or participates in the
programme of activity or fails to disavow the expenditure the candidate cannot escape the rigour
of the ceiling by saying that he has not incurred the expenditure but his political party has done so.
Expenditure incurred by a political party in connection with the election of the candidates of the
party is not a part of the election expenses of the candidate. Similarly, participation in the
programme of activity organised by a political party will not fall within the election expenses of
the candidate of the party. A candidate is not required to disavow or denounce the expenditure
incurred or authorised by the political party because the expenditure is neither incurred nor
authorised by the candidate. One can disavow what would be asc
120. The decision in Kanwar Lal Gupta's case (supra) was based on observation extracted
from the decision of this Court in Maghraj Patodia v. R. K. Birla. In Maghraj Patodia's case
(supra) the allegations were that the respondent had been put up by one of the wealthiest business
houses in the country which owned or controlled a large number of companies and during the
election campaign vast material and human resources of these companies were drawn upon by the
respondent. This Court dismissed the appeal on the ground that the appellant had failed to
establish that expenditure in excess of the prescribed limit was incurred by the respondent. In
Maghraj Patodia's case there is an observation that expenses incurred by a political party to
advance to the prospects of the candidates put up by it without more do not fall within Section 77
of the 1951 Act. The words "something more" were constructed by Counsel for the respondent to
mean that if a candidate takes advantage of the expenditure incurred or authorised b
121. Allegations that election expenses are incurred or authorised by a candidate or his agent
will have to be proved. Authorisation means acceptance of the responsibility. Authorisation must
precede the expenditure. Authorisation means reimbursement by the candidate or election agent
of the person who has been authorised by the candidate or by the election agent of the candidate
to spend or incur. In order to constitute authorisation the effect must be that the authority must
carry with it the right of reimbursement.
122. For the foregoing reasons the contentions of the respondent that the the appellant
exceeded the limit of election expenses fail.
123. The respondent contended that the amendments by the Amendment Acts of 1974 and
1975 are constitutionally invalid. It may be stated here that the Constitution (Thirty-ninth
Amendment) Act, 1975 in Section 5 thereof enacts that in the Ninth Schedule to the Constitution
after Entry 86, inter alia, the following entries shall be inserted, namely :
87. The Representation of the People Act, 1951 (Central Act 43 of 1951). The Representation
of the People (Amendment) Act, 1974 (Central Act 58 of 1974); and the Election Laws
(Amendment) Act, 1975 (Central Act 40 of 1975).
124. The contention of the respondent is that when the power of amending the Constitution
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cannot be exercised to damage or destroy the basic features of the Constitution or the essential
elements of the basic structure or framework thereof, the limitation on the exercise of legislative
power will arise not only from the express limitations contained in the Constitution, but also from
necessary implication either under articles or even in the preamble of the Constitution. This
contention on behalf of the respondent is expanded to mean that if the democratic way of life
through parliamentary institutions based on free and fair elections is a basic feature which cannot
be destroyed or damaged by amendment of the Constitution, it cannot similarly be destroyed or
damaged by any legislative measure.
125. These reasons were submitted by the respondent. First, the power to resolve doubts and
disputes about the validity of elections of Parliament and State Legislatures has been vested by the
Constitution in the judicial organ competent to decide election petitions and, therefore, it is not
open to the legislature to take away and interfere with these exclusive functions of the Judiciary
by any legislation amending the law governing the election adjudicated by the Judiciary. Second,
the insertion of these Acts in the Ninth Schedule will not confer any immunity on the legislative
measure if basic features of the Constitution are damaged or destroyed on the ground that the
provisions contravene Part III of the Constitution. Third, any provision in the legislative measures
which has the effect of bringing about unfairness between different rival candidates in the matter
of election is discriminatory and it not only contravene Article 14 but also violates the implied
limitation on legislative power relating to
126. The definition of "candidate" is amended by the Amendment Act, 1975, the contention of
the respondent on the amendment of the definition of "candidate" are these. The expression
"returned candidate" is descriptive of the person and the corrupt practices mentioned in Section
123 of the 1951 Act in relation to a candidate will not be confined to corrupt practices committed
with reference to the definition of "candidate". Corrupt practices alleged in relation to candidates
will be relatable to any period and will not to be confined to corrupt practices alleged between the
date of nomination and the date of election. If corrupt practices are committed by candidates who
eventually become returned candidates such corrupt practices will be offenses within the meaning
of Section 123 of the 1951 Act without any reference to the time of commission.
127. Counsel on behalf of the respondent also contended as follows. The basis of fair and free
elections is that the election of a candidate will be avoided if any corrupt practice has been
committed by the candidate by or with the knowledge and consent of that candidate. The acts of a
candidate may be either anterior to the date of nomination or it may be subsequent to the date of
nomination. Therefore, the Amendment Act, 1975 destroys and damages free and fair election by
allowing candidates to commit corrupt practices prior to the date of nomination.
128. The Amendment Act, 1975 is also challenged as falling within the vice of delegated
legislation by the amendments inserted as Explanation 3 of Section 77 of the 1951 Act and the
insertion of the proviso to Section 123(7) of the 1951 Act. These provisions have already been
noticed. Broadly stated expenditure incurred by persons in government service will not be deemed
to be for furtherance of the candidate's election. The contentions are these. No guidelines have
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been laid down as to what expenditure can be incurred or what facilities can be made, what acts
or things can be done. Delegation cannot include the change of policy. Policy must be clearly laid
down in the Act for carrying into effect the objectives of the legislation. The Legislature must
declare the policy. Any duty can be assigned, any facility in connection with the election can be
asked for by the party in power to be done for the candidate. The official duty opens a wide
power of instructions to government servants who may be asked to assi
129. The device of conclusive proof which is introduced to add Explanation 3 of Section
123(7) of the 1951 Act with regard to the date with effect from which the person ceased to be in
service is said to be an encroachment on judicial power.
130. Section 8(a) of the Amendment Act, 1975 which adds a proviso to Section 123 of the
1951 Act to the effect 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 is attacked as legalising
religious symbols and thus offending secularism.
131. Section 10 of the Amendment Act, 1975 which enacts that the amendments shall have
retrospective effect is challenged as retrospectively legalising a void election. These submissions
are made. If this power is upheld there can be a legislative measure to avoid valid elections. The
distinction between law-abiding persons and lawless persons is eliminated. One person has not
been given the opportunity of spending money at the time of election but the other is
retrospectively given the advantages of spending in excess and thereafter of avoiding the effect of
excess expenses by validation.
132. The contentions on behalf of the respondent that ordinary legislative measures are subject
like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or
basic features are utterly unsound. It has to be appreciated at the threshold that the contention
that legislative measures are subject to restrictions of the theory of basic structures or basic
features is to equate legislative measures with Constitution Amendment. The hierarchical
structure of the legal order of a State is that the Constitution is the highest level within national
law. The Constitution in the formal sense is a solemn document containing a set of legal norms
which may be changed only when special prescriptions are observed. The purpose of special
prescriptions is to render the changes of these norms more difficult by regulating the manner and
form of these amendments. The Constitution consists of those rules which regulate the creation of
the general legal norms, in particular, the creation of statu
133. Articles 245 and 246 give plenary powers to Legislature to legislate. The only question is
whether any provision of the Constitution is violated. The power of plenary body is not to be
construed like the power of a delegate. The largest kind of power will be attributed to Legislature.
The only prohibition is with reference to the provisions of the Constitution. The Constitution is
the conclusive instrument by which powers are affirmatively created or negatively restricted. The
only relevant test for the validity of a statue made under Article 245 is whether the legislation is
within the scope of the affirmative grant of power or is forbidden by some provision of the
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Constitution.
134. To accept the basic features or basic structures theory with regard to ordinary legislation
would mean that there would be two kinds of limitations for legislative measures. One will pertain
to legislative power under Article 245 and 246 and the legislative entries and the provision in
Article 13. The other would be that no legislation can be made as to damage or destroy basic
features or basic structures. This will mean rewriting the Constitution and robbing the Legislature
of acting within the framework of the Constitution. No legislation can be free from challenge on
this ground even though the legislative measure is within the plenary powers of the Legislature.
135. The theory of implied limitations on the power of amendment of the Constitution has
been rejected by seven Judges in Kesavananda Bharati's case (supra). Our Constitution has not
adopted the due process clause of the American Constitution. Reasonableness of legislative
measures is unknown to our Constitution. The crucial point is that unlike the American
Constitution where rights are couched in wide general terms leaving it to the courts to evolve
necessary limitations our Constitution has denied due process as a test of invalidity of law. In A.
K. Gopalan v. State of Madras, due process was rejected by clearly limiting the rights acquired
and by eliminating the indefinite due process. Our Constitution contemplates that considerations
of justice or general welfare might require restriction on enjoyment of fundamental rights.
136. The theory of basic structures or basic features is an exercise in imponderables. Basic
structures or basic features are indefinable. The legislative entries are the fields of legislation. The
pith and substance doctrine has been applied in order to find out legislative competency, and
eliminate encroachment on legislative entries. If the theory of basic structures or basic features
will be applied to legislative measures it will denude Parliament and State Legislature of the
power of legislation and deprive them of laying down legislative policies. This will be
encroachment on the separation of powers.
137. The constitutional validity of a statue depends entirely on the existence of the legislative
power and the express provision in Article 13. Apart from the limitation the Legislature is not
subject to any other prohibition. The amendments made to the 1951 Act by the Amendment Acts,
1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain
views departed from or otherwise to clarify the original intention. It is within the powers of
Parliament to frame laws with regard to elections. Parliament has power to enumerate and define
election expenses. Parliament has power to lay down limits on election expenses. Parliament has
power to state whether certain expenses can be included or may be excluded from election
expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment,
resignation or termination of service. Parliament has power to state what can be considered to be
office of profit. Parliament has power to state as to what will and
138. The conclusive evidence or conclusive proof clause is an accepted legislative measure.
Similarly, giving retrospective effect to legislative amendment is accepted to be valid exercise of
legislative power. The well-known pattern of all validation Acts by which the basis of judgments
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or orders of competent courts and tribunals is changed and the judgments and orders are made
ineffective is to be found in M. P. Sundararamier & Co. v. State of A. P. 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
Kanta Kathuria's case (supra). Kanta Kathuria was disqualified by reason of holding an office of
profit. First, the ordinance and later the Act was passed to nullify the decision of the High Court.
The ordinance as well as the Act stated that notwithstanding any judgment or order of any court
or tribunal, the officer shall not be disqualified or shall
139. 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 recognises 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
the 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 recognised that Parliament and State
Legislature can make their laws operate retrospectively. Any law that can be made prospectively
can be made with retrospective operation. It is said that certain kinds of laws cannot operate
retrospectively. That is ex post facto legislation. The
140. This Court in Jumuna Prasad Mukhariya v. Lachhi Ram rejected the contention advanced
there that Sections 123 (5) and 124 (5) of the 1951 Act interfered with a citizen's fundamental
right to freedom of speech. This Court said that these laws do not stop a man from speaking.
They merely prescribe conditions which must be observed if one wants to enter Parliament. The
right to stand as a candidate and to contest an election is not a common law right. It is a special
right created by a statue which can only be exercised on the conditions laid down by the statue.
The Fundamental Rights chapter has no bearing on a right like this created by a statue relating to
election.
141. The contention on behalf of the respondent that the amendment of the definition of
"candidate" has damaged or destroyed basic structure is untenable. There is no basic structure or
basic feature or basic framework with regard to the time when under the election laws a person is
a candidate at the election. The contention of the respondent that the expression "returned
candidate" is descriptive of the expression "candidate" will rob Section 100 of its content. The
word "candidate" in relation to various electoral offences shows that he must be a candidate at the
time of the offence. Time is necessary for fixing the offences. A significant distinction arises
between the electoral offences under the 1951 Act and the offences under Sections 171-A to
171-I of the Indian Penal Code, namely, that the 1951 Act uses the word "candidate" or his
election agent with reference to various offences whereas the Indian Penal Code does not use the
word "candidate" in relation to commission of any offence. Any person may
142. The English Representation of the People Act, 1949 called the English Act was relied on
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by the respondent to show that the word "candidate" in the 1951 Act should have the same
meaning as in the English Act and there should be no limitation as to time in relation to a
candidate."Candidate" is defined in Section 103 of the English Act in relation to parliamentary
election to mean a person who is elected to serve in Parliament or a person who is nominated as a
candidate at the election or is declared by himself or by others to be a candidate on or after the
day of the issue of the writ for the election, or after the dissolution or vacancy in consequence of
which the writ was issued. The electoral offences under the English Act speak of a person to be
guilty of corrupt practices of bribery as mentioned in Section 99, of treating as mentioned in
Section 100 and of undue influence as mentioned in Section 101 of the English Act. These
sections in the English Act speak of a person and do not use the expression
143. Where a candidate is elected the English definition gives no commencing date as from
which his candidature has commenced; whereas, if he be not elected, he is not a candidate until he
has been nominated, or is declared to be a candidate on or after the dissolution or vacancy. A
candidate who is elected is accordingly a "candidate" as soon as he has entered upon his election
campaign, and has made it known that he intends to present himself as a candidate at the ensuing
election, he may thus become a candidate before the dissolution of Parliament, and may be
unseated for bribery or treating committed months or even years before the vacancy or election,
for such acts are offences at common law. With respect to illegal practices, which are purely
statutory offences, it would seem that a narrower construction will prevail, and that a candidate
will not be held responsible for payments etc., made before he is a candidate in point of fact, and
which payments only become illegal practices by reason of his subs
144. It has been held in England that a candidate may be unseated for bribery of treating
committed months or even years before the vacancy or election (Youghal; Bodwin). The present
position under the English Act is stated in Parker's Conduct of Parliamentary Elections 1970 Ed.
at p. 330 to be that since the corrupt practice under consideration is purely a statutory offence,
which only becomes a corrupt practice by reason of the person in whose support the prohibited
expenses were incurred subsequently becoming a candidate, the candidate may not be held
responsible. In Norwich the question was considered in relation to the responsibility of a
candidate for payments which only became illegal practices by reason of his subsequently
becoming a "candidate" as defined by statute, and it was held that he was not liable. The liability
of a candidate under the English Act, particularly, with regard to election expenses as laid down in
Section 63 of the English Act is regarded as open to doubt until the point is set
145. Sections 171-A to 171-I of the Indian Penal Code and the provisions contained in
Sections 125 to 136 of the 1951 Act follow the pattern of English Acts, namely, Statutes 17 & 18
Victoria, Chapter CII (1853-54); Statutes 21 & 22 Victoria, Chapter LXXXVII (1858) and
Statutes 46 & 47 Victoria, Chapter LI (1882). These English Statutes make certain acts
punishable as corrupt practice when they relate to persons other than candidates or voters.
Section II of 17 & 18 Victoria Chapter CII enacts that the persons mentioned therein shall be
deemed guilty of bribery and punishable in accordance with the provisions of the Act. The words
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used there are "every person" who shall do the acts mentioned therein shall be punishable. In these
sections dealing with the acts of persons other than candidates and voters no time is mentioned.
On the other hand, Section IV of Statutes 17 & 18 Victoria Chapter CII makes certain acts of
voters and candidates corrupt practice. Section IV of the aforesaid English Statute enacts tha
146. The 1951 Act uses the expression "candidate" in relation to several offences for the
purpose of affixing liability with reference to a person being a candidate. If no time be fixed with
regard to a person being a candidate it can be said that from the moment a person is elected he
can be said to hold himself out as a candidate for the next election. The definition in the English
Act cannot be of any aid to the construction of the 1951 Act.
147. The contention of the respondent is that if a candidate is free to spend as much as a
candidate likes before the date of nomination a great premium would be placed on free use of
money before the date of nomination. The 1951 Act specifies what election expenses are of a
candidate. The statute specifies time in regard to a candidate. That time cannot be enlarged or
reduced. The holding out by a person of (sic of) candidature was a flexible and elastic idea. The
date of nomination is definite and doubtless. Different views may be taken as to the time of
holding out. The Legislature has now set the matter at rest.
148. The word "incur" according to the dictionary meaning means to become liable to. The
word "incur" means to undertake the liability even if the actual payments may not be made
immediately. The undertaking of the responsibility for the expenditure concerned may be either by
the candidate or his election agent. Again, a candidate is also to be deemed responsible for the
expenditure if he has authorised a particular expenditure to be made by someone else on his
behalf.
149. The contention on behalf of the respondent is that the Amendment Acts of 1974 and
1975 fall within the vice of delegated legislation because there are no guiding principles with
regard to official duty or nature of expenditure in Explanation 3 to Section 77 of the 1951 Act
and in the proviso to Section 123 (7) of the 1951 Act. Official duty will be a duty in law. Official
duty will be duty under administrative directions of the Executive. Official duty will be for
security, law and order, and matters in aid of public purpose. These duties will be in connection
with election. To illustrate, Section 197 of the Criminal Procedure Code speaks of official duty.
150. This Court in Matajog Dobey v. H. C. Bhari interpreted the words "official duty" to have
reasonable connection between the act and the discharge of duty. The act must bear such relation
to the duty that the person could lay a reasonable claim, but not a pretended fanciful claim, that he
did it in the course of the performance of his duty. Where a power is conferred or a duty imposed
by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or
the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries
with it the power of doing all such acts or employing such means as are reasonably necessary for
such execution, because it is a rule that when the law commands a thing to be done, it authorises
the performance of whatever may be necessary for executing its command.
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151. There is no vice of delegation in the statutes.
"Delegation is not the complete handing over or transference of a power from one person or
body of persons to another. Delegation may be defined as the entrusting, by a person or body of
persons, of the exercise of a power residing in that person or body of persons to another person
or body of persons, with complete power of revocation or amendment remaining in the grantor or
delegator. It is important to grasp the implications of this, for, much confusion of thought has
unfortunately resulted from assuming that delegation involves or may involve, the complete
abdication or abrogation of a power. This is precluded by the definition. Delegation often involves
the granting of discretionary authority to another, but such authority is purely derivative. The
ultimate power always remains in the delegator and is never renounced. " (See Gwalior Rayon
Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax.)
152. The Constitution Twenty-ninth Amendment Act was considered by this Court in
Kesvananda Bharati's case (supra). The Twenty-ninth Amendment Act inserted in the Ninth
Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the
Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the Twenty-ninth
Amendment Act. The unanimous view of this Court in Kesvananada Bharati's case is that Article
31-B is not open to challenge. Six Judges held that the Twenty-ninth Amendment Act would be
ineffective to protect the impugned Act if they took away the fundamental rights. Six Judges took
the view that the Twenty-ninth Amendment Act is valid and further that Article 31-B has been
held by this Court to be independent of Article 31-A and that Article 31-B protects scheduled
Acts and Regulations and none of the scheduled Acts and Regulations is deemed to be void or
ever to have become void on the ground of contravention of any fundamental rights. Article 31-B
gives
153. The contentions of the respondent that the Amendment Acts of 1974 and 1975 are
subject to basic features or basic structure or basic framework fails on two grounds. First,
legislative measures are not subject to the theory of basic features or basic structure or basic
framework. Second, the majority view in Kesvananda Bharati's case (supra) is that the
Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is
not open to challenge on the ground of either damage to or destruction of basic features, basic
structure or basic framework or on the ground of violation of fundamental rights.
154. The symbol allotted to the party of the appellant was characterised by the respondent as
a religious symbol. Under Article 324 the superintendence, direction and control of elections to
Parliament, is vested in the Election Commission. Rule 5 of the Conduct of Elections Rules, 1961
states that the Election Commission shall, by notification in the Gazette of India and in the Official
Gazette of each State, specify the symbols that may be chosen by candidates at elections in
parliamentary or assembly constituencies and the restrictions to which their choice shall be
subject. Rule 10(4) of the 1961 Rules aforesaid states that at an election in a parliamentary or
assembly constituency, where a poll becomes necessary, the returning officer shall consider the
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choice of symbols, expressed by the contesting candidates in their nomination papers and shall,
subject to any general or special direction issued in this behalf by the Election Commission allot a
different symbol to each contesting candidate in conformi
155. Clause 17 of the Election Symbols (Reservation and Allotment) Order, 1968 provides
that the commission shall by notification in the Gazette of India publish lists specifying national
parties and the symbols respectively reserved for them etc. There can, therefore, be no doubt that
the power of evolving permissible symbols is exclusively vested in the Election Commission. It is
under their directions that the Returning Officer has to make allotments and allotments are made
in terms of Clause 5, 6 and 8. Therefore, in the matter of evolving of the permissible symbols, the
jurisdictions is vested in the Election Commission. If a candidate displays in addition to the
allotted symbol which may have a special appeal on grounds of religion to a particular community,
then the Court will be entitled to go into this question.
156. With regard to the symbol of cow and calf being a religious symbol it was said on behalf
of the respondent that the Akhil Bharatiya Ram Rajya Parishad asked for cow, calf and milkmaid
symbol and were refused. They were given the symbol of a "Rising Sun". It is impossible to hold
that because one party has not been given the symbol of cow, calf and milkmaid, therefore, the
symbol of cow and calf becomes a religious symbol. The High Court on the evidence adduced by
the respondent rightly came to the conclusion that there was no evidence to prove that the cow
and calf is a religious symbol. The High Court rightly held that cow and calf is not a religious
symbol.
157. The finding of the High Court that the appellant held herself out to be a candidate from
December 29, 1970 is set aside because the law is that the appellant became a candidate only with
effect from the date of nomination which was February 1, 1971. The finding of the High Court
that the resignation of Yashpal Kapur did not become effective until it was notified in the Gazette
is also set aside because under the law the resignation became effective from January 14, 1971.
The finding of the High Court that the appellant committed corrupt practice in breach of Section
123 (7) of the 1951 Act is also repelled by the legislative changes and is, therefore, set aside. The
order of the disqualification of the appellant is also set aside.
158. For the foregoing reasons the contentions of the appellant succeed and the contentions of
the respondent fail. The appeal is accepted. The judgment of the High Court appealed against is
set aside the cross objections of the respondent is dismissed. There will be no order as to costs.
KHANNA, J.
(concurring)- Civil Appeal No. 887 of 1975 has been filed by Smt. Indira Nehru Gandhi
(hereinafter referred to as the appellant) against the judgment of the Allahabad High Court
whereby election petition filed by Shri Raj Narain respondent No. 1 (hereinafter referred to as the
respondent) to question the election of the appellant to the Lok Sabha from Rae Bareli
parliamentary constituency was allowed and the election of the appellant was declared void. The
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appellant was found guilty of having committed corrupt practices under Section 123 (7) of
Representation of the People Act, 1951 (hereinafter referred to as the R. P. Act) and as such was
stated to be disqualified for a period of six years in accordance with Section 8A of the R. P. Act.
Cross Appeal No. 909 of 1975 has been filed by Shri Raj Narain against the judgment of the High
Court in so far as it decided certain issues against the respondent.
160. The President of India called upon different constituencies in the country to elect
members to the Lok Sabha by notification dated January 27, 1971 under Section 14(2) of the R.
P. Act. Last date for filling nomination papers was fixed as February 3, 1971 for Rae Bareli
constituency by the Election Commission. The appellant filed her nomination paper on February
1, 1971. The appellant was for a number of years before the election Prime Minister of India and
is since then continuing to hold that office. Yaspal Kapur, who was previously a gazetted officer
in the Government of India holding the post of Officer on Special Duty in the Prime Minister
Secretariat and who subsequently submitted his resignation, was appointed the election agent of
the appellant. The signed form about the appointment of Yashpal Kapur an election agent was
submitted to the Returning Officer on February 4, 1971, the date of scrutiny. The date on the
which Yashpal Kapur submitted his resignation and the same became effective is, how
(1) The appellant held herself out as a prospective candidate from the Rae Bareli constituency
immediately after the dissolution of the Lok Sabha on December 27, 1970, and for furtherance of
her election prospects, she obtained and procured the assistance of Yashpal Kapur who was at
that time holding the post of Officer on Special Duty. The appellant thus committed corrupt
practice under Section 123(7) of the R. P. Act.
(2) The appellant and her election agent procured the assistance of members of armed forces
of the Union for furtherance of her election prospects inasmuch as the members of the armed
forces arranged planes and helicopters of the Air Force at her instance for her flights to enable her
to address meetings in her constituency. The appellant thereby committed corrupt practice under
Section 123(7) of the R. P. Act.
(3) The appellant and her election agent obtained the assistance of a number of gazetted
officers and members of the police force for the furtherance of her election prospects inasmuch as
the services of the District Magistrate, Superinterendent of Police, Rae Bareli and the Home
Secretary, Uttar Pradesh Government were utilised for the purposes of the construction of
rostrums and installation of loudspeakers at various places within the constituency where the
appellant addressed her election meetings as also for the purpose of making arrangement of
barricading and posting of police personnel on the routes by which the appellant was to travel in
her constituency and at the places where she was to address meetings, in order to give publicity to
her visits and thus attract large crowds. The appellant was thereby stated to have committed
corrupt practice under Section 123(7) of the R. P. Act.
(4) Yashpal Kapur, election agent of the appellant and her other agents with the consent of
Yashpal Kapur, freely distributed quilts, blankets, dhotis and liquor among the voters to induce
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them to vote for her and thereby the appellant committed corrupt practice of bribery under
Section 123(1) of the R. P. Act.
(5) The appellant and her election agent made extensive appeals to the religious symbol of
cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P. Act.
(6) Yashpal Kapur and some other persons with his consent hired and procured a number of
vehicles for the free conveyance of electors to the polling stations and thereby committed corrupt
practice under Section 123(5) of the R. P. Act.
(7) The appellant and her election agent incurred or authorised expenditure in contravention
of Section 77 of the R. P. Act and thereby committed corrupt practice under Section 123(6) of
the R. P. Act.
161. The appellant in her written statement denied the various allegations levelled against her
and pleaded that Yashpal Kapur resigned from his post on January 13, 1971 and his resignation
was accepted with effect from January 14, 1971. Notification dated January 25, 1971 was issued
by the Prime Minister's Secretariat in that connection. It was added that P. N. Haksar, then
Secretary to the Prime Minister, told Yashpal Kapur on the same day on which the resignation
was tendered that it was accepted and that formal orders would follow. Yashpal Kapur became
the election agent of the appellant on February 4, 1971. During the period he was a gazetted
officer in the Government of India, he did not do any work in furtherance of the appellant's
election prospects. Regarding the use of planes and helicopters of the Air Force, the appellant
admitted that on February 1, 1971 she went by an Indian Air Force plane from Delhi to Lucknow
from where she went by car to Rae Bareli, addressing meetings en route. It was furth
162. Following issues were framed in the case :
" (1) Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
Government of India? If so, from what date?
(2) Whether at the instance of respondent No. 1 members of the armed forces of the Union
arranged Air Force planes and helicopters for her, flown by members of the armed forces, to
enable her to address election meetings on February 1, 1971 and February 25, 1971, and if so,
whether this constituted a corrupt practice under Section 123(7) of the Representation of the
People Act?
(3) Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the
District Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home
Secretary of U. P. Government arranged for rostrums, loudspeakers and barricades to be set up
and for members of the police force to be posted in connection with her election tour on February
1, 1971 and February 25, 1971; and if so, whether this amounts to a corrupt practice under
Section 123(7) of the Representation of the People Act?
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(4) Whether quilts, blankets, dhotis and liquor were distributed by agents and workers of
respondent No. 1, with the consent of her election agent Yaspal Kapur, at the places and on the
dates mentioned in Schedule A the petition in order to induce electors to vote for her?
(5) Whether the particulars given in paragraph 10 and Schedule A of the petition are too
vague and general to afford a basis for allegation for bribery under Section 123(1) of the
Representation of the People Act?
(6) Whether by using the symbol of the cow and calf, which had been allotted to her party by
the Election Commission in her campaign the respondent No. 1 was guilty of making an appeal to
a religious symbol and committed a corrupt practice as defined in Section 123(3) of the
Representation of the People Act?
(7) Whether on the dates fixed for the poll voters were conveyed to the polling stations free of
charge on vehicles hired and procured for the purpose by respondent No. 1's election agent
Yashpal Kapur, or other persons with the consent, as detailed in Schedule B to the petition?
(8) Whether the particulars given in paragraph 12 and Schedule B of the petition are too
vague and general to form a basis for allegations regarding a corrupt practice under Section
123(5) of the Representation of the People Act?
(9) Whether respondent No. 1 and her election agents Yashpal Kapur incurred or authorised
expenditure in excess of the amount prescribed by Section 77 of the Representation of the People
Act, read with Rule 90 as detailed in para 13 of the petition?
(10) Whether the petitioner had made a security deposit in accordance with the rules of the
High Court as required by Section 117 of the Representation of the People Act?
(11) To what relief, if any, is the petitioner entitled?" Subsequent to the framing of the above
issues, the following three additional issues were framed in pursuance of the judgment of this
Court in an appeal against an interlocutory order of the High Court :
" (1) Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
the Government of India? If, so from what date ?
(2) Whether respondent No. 1 held herself out as a candidate from any date prior to February
1, 1971 and, if so, from what date?
(3) Whether Yashpal Kapur continued to be in the service of Government of India from and
after February 14, 1971 or till which date?"
163. During the pendency of the election petition in the High Court, Section 77 of the R. P.
Act was amended by an Ordinance which was subsequently replaced by Act 58 of 1974
(hereinafter referred to as the 1974 amending Act or Act 58 of 1974). The said amending Act
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inserted two explanation at the end of sub-section (1) of Section 77 of the R. P. Act. The material
part of the explanations reads as under :
"Explanation 1.- Notwithstanding any judgment, order or decision of any court to the
contrary, any expenditure incurred or authorised in connection with the election of a candidate by
a political party or by any other association or body of persons or by any individual (other than
the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to
have been, expenditure in connection with the election incurred or authorised by the candidate or
by his election agent for the purposes of this sub-section :
#Provided * * * *##
Explanation 2.- For the purposes of Explanation 1, "political party" shall have the same
meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time
being in force."
The above amendment in Section 77 had a bearing on the allegation which was the
subject-matter of issue No. 9. The respondent filed writ petition challenging the validity of the
amending Act.
164. The High Court decided issues Nos. 2, 4, 6 and 7 in favour of the appellant and against
the respondent. Issues Nos. 5, 8 and 10 were found in favour of respondent and against the
appellant. On issue No. 9 the finding of the High Court was that the total amount of expenditure
incurred or authorised by the appellant or her election together with the expenditure proved to
have been incurred by the party or by the State Government in connection with the appellant's
election amounted to Rs. 31,976.47 which was sufficiently below the prescribed limit of Rs.
35,000. The appellant as such was held not guilty of any corrupt practice under Section 123(6) of
the R. P. Act. As the respondent was found to have failed to prove that the expenses of the
appellant or her election agent, together with the expenses found to have been incurred by the
political party and the State Government in connection with the appellant's election exceeded the
prescribed limit, the High Court held that no ground had been made out for in
165. On additional issue No. 2, the finding of the High Court was that the appellant held
herself out as a candidate from the Rae Bareli parliamentary constituency on December 29, 1970.
Issue No. 3 was decided by the High Court against the appellant. It was held that the appellant
obtained the assistance of the officers of the U. P. Government, particularly the District
Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel
Department for construction of rostrums and arrangement of supply of power for loudspeakers in
the meeting addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her
election prospects. The appellant, as such was found guilty of corrupt practice under Section
123(7) of the R. P. Act. On additional issue No. 3, the High Court found that Yashpal Kapur
continued to be in the service of the Government of India till January 25, 1971, which was the
date of the notification regarding the acceptance of Yashpal Kapur's resignation. The
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166. As a result of its findings on issue No. 3, issue No. 1 read with additional issue No. 1,
additional issue No. 2 and additional issue No. 3, the High Court allowed the petition and
declared the election of the appellant to the Lok Sabha to be void. The appellant was found guilty
of having committed corrupt practice under Section 123(7) of the R. P. Act by having obtained
the assistance of gazetted officers of the U. P. Government, viz., the District Magistrate and the
superintendent of Police, Rae Bareli, the Executive Engineer, PWD, Rae Bareli and Engineer,
Hydel Department, Rae Bareli in furtherance of her election prospects. The appellant was further
found guilty of having committed another corrupt practice under Section 123(7) of the R. P. Act
by having obtained the assistance of Yashpal Kapur, a gazetted officer in the Government of India
holding the post of officer on the Special Duty in Prime Minister's Secretariats, for the furtherance
of her election prospects. The appellant, it was accordingly
167. An appeal against the judgment of the learned Single Judge of the High Court dismissing
the writ petition is pending before the High Court.
168. During the pendency of these appeals, Parliament passed the Election Laws
(Amendments) Act, 1975 (Act 40 of 1975) (hereinafter referred to as 1975 amending Act or Act
40 of 1975) and the same was published in the Gazette of India Extraordinary dated August 6,
1975. Section 2 of the 1975 Amending Act substituted a new section for Section 8A in the Act.
According to the new section, the case of every person found guilty of a corrupt practice by an
order under Section 99 shall be submitted as soon as may be, after such order takes effect to the
President for determination of the question as to whether such person shall be disqualified and if
so, for what period, not exceeding six years. It is also provided that the person who stands
disqualified may before the expiry of the period of disqualification submit a petition to the
President for the removal of such disqualification for the unexpired portion of the said period. The
President shall then give his decision on such petition after obtaining the opinion
"6. In Section 77 of the Principal Act, in sub-section (1),-
(a) for the words 'the date of publication of the notification calling the election', the words 'the
date on which he has been nominated' shall be substituted;
(b) after Explanation 2, the following Explanation shall be inserted, namely :
'Explanation 3.- For the removal of doubt, it is hereby declared that any expenditure in respect
of any arrangements made, facilities provided or any other act or thing done by any person in the
service of the Government and belonging to any of the classes mentioned in clause (7) of Section
123 in the discharge or purported discharge of his official duty as mentioned in the provision to
that clause shall not be deemed to be expenditure in connection with the election incurred or
authorized by a candidate or by his election agent for the purposes of this subsection.'
7. In Section 79 of the principal Act, for clause (b), the following clause shall be substituted,
namely :
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' (b) 'candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election.'
8. In Section 123 of the principal Act,-
(a) in clause (3), the following proviso shall be inserted at the end, namely :
'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.';
(b) in clause (7), the following proviso shall be inserted at the end, namely :
'Provided that where any person, in the service of the Government and belonging to any of the
classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election.';
(c) in the Explanation at the end, the following shall be added, namely :
' (3) For the purposes of clauses (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, resignation, termination of service,
dismissal or removal from service of a person in the service of the Central Government (including
a person serving in connection with the administration of a Union territory) or a state Government
shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) whether the date of taking effect of such appointment, resignation, termination of service,
as the case may be, is stated in such publication, also of the case may be, is stated in such
publication, also of the fact that such person was appointed with effect from the said date, or in
the case of resignation, termination of service, dismissal or removal from service, such person
ceased to be in such service with effect from the said date.'
(9). In the Indian Penal Code, in Section 171A, for clause (a), the following clause shall be
substituted, namely :
' (a) 'candidate' means a person who has been nominated as a candidate at any election.'
10. The amendments made by Sections 6, 7 and 8 of this Act in the principal Act shall also
have retrospective operation so as to apply to and in relation to any election held before the
commencement of this Act to either House of parliament or to either House or the House of the
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Legislature of a State-
(i) in respect of which any election petition may be presented after the commencement of this
Act; or
(ii) in respect of which any election petition is pending in any High Court immediately before
such commencement; or
(iii) in respect of which any election petition has been decided by any High Court before such
commencement but no appeal has been preferred to the Supreme Court against the decision of the
High Court before such commencement and the period of limitation for filing such appeal has not
expired before such commencement; or
(iv) in respect of which appeal from any order of any High Court made in any election petition
under Section 98 or section 99 of the principal Act is pending before the Supreme Court
immediately before such commencement."
169. It is submitted by Mr. Shanti Bhushan on behalf of the respondent that the amendments
made in the R. P. Act have an impact upon five out of the seven grounds which were set up by the
respondent to assail the election of the appellant.
170. On August 10, 1975 the Constitution (Thirty-ninth Amendment) Act, 1975 was
published. A number of constitutional changes were made by the Constitution Amendment Act.
We are, however, concerned with Section 4 of the Constitutional Amendment Act which inserted
Article 329A in the Constitution after Article 329. Article 329A reads as under :
"329A. Special provision as to elections to parliament in the case of Prime Minister and
Speaker.- (1) Subject to the provisions of Chapter II of Part V [Except sub-clause (e) of clause
(1) of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of Prime Minister at the
time of such election or is appointed as Prime minister after such election;
(b) to the House of the People of a person who holds the office of speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question, except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provided for by or
under any law made by parliament and any such law may provide for all other matters relating to
doubts and disputes in relation to such election include the grounds on which such election may
be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
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office of the Speaker of the House of People, while an election petition referred to in clause (b) of
Article 329 in respect of his election to either House of Parliament or, as the case may be, to the
House of the People is pending, such election petition shall abate upon such person being
appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of
the House of the People, but such election may be called in question under any such law as is
referred to in clause (1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith, shall apply or shall be deemed ever to applied to or in relation to the election of any
such person as is referred to in clause (1) to either House of Parliament and such election shall not
be deemed to be void or ever to have become void on any ground on which such election could
be declared to be void or has, before such commencement, been declared to be void under any
such commencement, been declared to be void under any such law and notwithstanding any order
made by any court, before such commencement, declaring such election to be void, such election
shall continue to be valid in all respects and any such order and any finding on which such order is
based shall be and shall be deemed always to have been void and of no effect.
(5) Any appeal or cross appeal against any such order of any court as is referred to in clause
(4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
171. Section 5 of the above Constitution Amendment Act inserted in the Ninth Schedule to
the Constitution a number of enactments including the R. P. Act as also Acts 58 of 1974 and 40
of 1975.
172. At the hearing of the appeal Mr. Sen on behalf of the appellant has relied upon clause (4)
of the new Article 329A and has contended that that clause clearly applies to the present case. It
is urged that in view of that clause no law made by Parliament before the coming into force of the
Constitution (Thirty-ninth Amendment) Act, 1975, i.e., before August 10, 1975, in so far as it
relates to the election petitions and matters connected therewith shall apply or shall be deemed
ever to have applied to or in relation to the election to the Lok Sabha of the appellant who being
Prime Minister is one of the persons referred to in clause (1) of that article. It is further submitted
that in view of that clause, the election of the appellant shall not be deemed to be void or ever to
have become void on any ground on which such election could be declared to be void or has
before such commencement been declared to be void under any such law. Mr. Sen also adds that
notwithstanding the order made by the High Court b
173. In reply Mr. Shanti Bhushan on behalf of the respondent has not controverted, and in our
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opinion rightly, the stand taken by Mr. Sen that clause (4) of the article applies to the facts of the
present case. He, however, contends that Section 4 of the Constitution Amendment Act which has
inserted Article 329A in the Constitution is invalid. The validity of the above constitutional
amendment has been challenged by Mr. Shanti Bhushan on the following two grounds :
(1) The above constitutional amendment affects the basic structure or framework of the
Constitution and is, therefore, beyond the amending power under Article 368.
(2) The Constitution Amendment Act was passed in a session of Parliament after some
members of Parliament had been unconstitutionally detained and thus illegally prevented from
influencing the views of other members present at the time the above Act was passed. This
ground, it is urged, also affects the validity of the amending Act 40 of 1975.
174. Article 329A deals with election to either House of Parliament of a person who holds the
office of Prime Minister at the time of such election or is appointed as Prime Minister after such
election and to the House of the People of a person who holds the office of Speaker of that House
at the time of such election or who is chosen as the Speaker for that House after such election.
According to clause (1) of Article 329A, no election of persons mentioned above shall be called in
question, except before such authority or body and in such manner as may be provided for by or
under any law made by Parliament. It is made clear that the authority before which such election
shall be called in question would not be the one as is referred to in clause (b) of Article 329. The
law to be made by Parliament under clause (1) may provide for all other matters relating to doubts
and disputes in relation to such election including the grounds on which such election may be
questioned. The above law shall be subject to the
175. The proposition that the power of amendment under Article 368 does not enable
Parliament to alter the basic structure of framework of the Constitution was laid down by this
Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharati v. State of Kerala.
Apart from other reasons which were given in some of the judgments of the learned Judges who
constituted the majority, the majority dealt with the connotation of the word "amendment". It was
held that the words "amendment of the Constitution" in Article 368 could not have the effect of
destroying or abrogating the basic structure of the Constitution. Some of us who were parties to
that case took a different view and came to the conclusion that the words "amendment of the
Constitution" in Article 368 did not admit of any limitation. Those of us who were in the minority
in Kesavananda's case (supra) may still hold the same view as was given expression to in that
case. For the purpose of the present case, we shall have to proceed in accorda
176. Before dealing with the question as to whether the impugned amendment affects in the
basic structure of the Constitution, I may make it clear that this Court is not concerned with the
wisdom behind or the propriety of the impugned constitutional amendment. These are matters
essentially for those who are vested with the authority to make the constitutional amendment. All
that this Court is concerned with is the constitutional validity of the impugned amendment.
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177. I may first deal with the second contention advanced by Mr. Shanti Bhushan. According
to him, the impugned constitutional amendment and the amending Act of 1975 were passed in
session of Parliament wherein some members, including the respondent, could not be present
because they had been illegally detained. The fact that those measures were passed by the
requisite majority has not been questioned by the learned Counsel but he submits that if the above
mentioned members had not been detained and not been prevented from attending the sitting of
Parliament, they could have influenced the other members and as such it is possible that the
impugned Constitution Amendment Act and the 1975 R. P. Amending Act might not have been
passed. Mr. Shanti Bhushan accordingly asserts that the sittings of the Houses of Parliament in
which the above mentioned two measures were passed were not legal sittings. Any measures
passed in such sittings, according to the learned Counsel, cannot be considered to be a valid piece
of
178. There is, in my opinion, no force in the above submission. The proposition that a member
of Parliament cannot claim immunity from being detained under a law relating to preventive
detention does not now admit of much doubt. The privileges, powers and the immunities of the
members of the two Houses of Indian Parliament as well as of the Indian Legislature are the same
as those of the members of the House of Commons as they existed at the time of the
commencement of the Constitution. The position about the privileges of the members of the
House of Commons as it obtained in the United Kingdom at the relevant time has been stated in
Erskine May's Parliamentary Practice. 18th Ed. (p. 100) as under :
"The privilege of freedom from arrest is limited to civil causes, and has not been allowed to
interfere with the administration of criminal justice or emergency legislation."
The above observations were relied upon by this Court in the case of K. Anandan Nambiar v.
Chief Secretary, Government of Madras. The petitioners in that case were members of Parliament.
They were detained by orders passed by the State Government under Rule 30(1) (b) of the
Defence of India Rules, 1962. They challenged the validity of the orders of detention, inter alia,
on the ground that Rule 30(1) (b) was invalid because a legislator cannot be detained so as to
prevent him from exercising his constitutional rights as legislator while the legislative chamber to
which he belongs is in session. This Court rejected that contention and held that the true
constitutional position is that so far as a valid order of detention is concerned, a member of
Parliament can claim no special status higher than that of an ordinary citizen and that he is as
much liable to be arrested as detained under it as any other citizen. It was also held that if an order
of detention validly prevents a member from attending a session of
179. Question as to whether a member of Parliament has been validly detained under a law
relating to preventive detention can, in my opinion, be appropriately gone into in proceedings for
a writ of habeas corpus. Such question cannot be collaterally raised in proceedings like the present
wherein the court in concerned with the validity of a Constitution Amendment Act and an Act to
amend the Representation of the People Act. In deciding a case before it the court should decide
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matters which arise directly in the case. A court should resist the attempt of a party to induce it to
decide a matter which though canvassed during arguments is only incidental and collateral and can
appropriately be dealt with separate proceedings.
180. The contention advanced by Mr. Shanti Bhushan that the sittings of the two Houses of
the Parliament in which the impugned Acts were passed were not valid essentially relates to the
validity of the proceedings of the two Houses of Parliament. These are matters which are not
justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into
the question as to whether the measures passed by Parliament are constitutionally valid. The court
cannot, however, go into the question as to whether the sittings of the Houses of Parliament were
not constitutionally valid because some of those Houses were prevented from attending and
participating in the discussions in those Houses. It has not been disputed before us, as already
mentioned, that the impugned Constitution Amendment Act and the statutory amendment Act
were passed by the requisite majority. It is not the case of the respondent that the number of the
detained members of Parliament was so large, that if they had voted again
181. According to clause (3) of Article 105 of the Constitution, to which a short reference has
been made earlier, the powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, shall be those of the House of Commons of the
Parliament of the United Kingdom, and of its members and committees, at the commencement of
this Constitution. No law contemplated by clause (3) has been made by the Parliament in India
and as such we have to find out the powers, privileges and immunities of the House of Commons
in United Kingdom at the relevant time. In the case of Bradlaugh v. Gossett the plaintiff, having
been returned as member for the borough of Northampton, required the speaker of the House of
Commons to call him to the table for the purpose of taking oath. In consequence of something
which had transpired on a former occasion the Speaker declined to do so. The House
". . . for the purpose of determining on a right to be exercised within the House itself, and in
particular the right of sitting and voting, the House and the House alone could interpret the
statute but. . . as regard rights to be exercised out of and independently of the House, such as the
right of suing for a penalty for having sat and voted, the statute must be interpreted by this Court
independently of the House."
The above passage has been cited on page 83 in Erskine May's Parliament Practice, 18th Ed.
with a view to show that it is a right of each House of Parliament to be the sole judge of the
lawfulness of its own proceedings. It would follow from the above that the courts cannot go into
the lawfulness of the proceedings of the Houses of Parliament.
182. The act of detaining a person is normally that of an outside agency and not that of the
House of Parliament. It would certainly look anomalous if the act of an outside agency which
might ultimately turn out to be not legal could affect the validity of the proceedings of the House
of Parliament or could prevent that House from assembling and functioning.
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183. The matter can also be looked at from another angle. Gazette copies of the Election
Laws Amendment Act, 1975 (Act 40 of 1975) and the Constitution (Thirty-ninth Amendment)
Act, 1975 have been produced before us. In the face of the publication in the Gazette of the above
mentioned two Acts this Court must assume that those two Acts were duly passed. It may be
pertinent in this context to refer to the position in the United States where it was laid down in the
case of Marshall Field & Co. v. John M. Clark as under :
"The signing by the Speaker of the House of Representatives, and by the President of the
Senate, in open session, of an enrolled bill, is an official attestation by the two houses that such
bill has passed by Congress; and when the bill, thus attested receives the approval of the
President, and is deposited in the public archives, its authentication as a bill that has passed
Congress is complete and unimpeachable. An enrolled Act thus authenticated is sufficient
evidence of itself that it passed Congress."
In the case of a constitutional amendment which requires ratification by the States, the
position was stated by Brandeis, J. in the case of Oscar Leser v. J. Mercer Garnett as follows :
"The proclamation by the Secretary certified that, from official documents on file in the
Department of State, it appeared that the proposed Amendment was ratified by the Legislature of
thirty-six States, and that it "has become valid to all intents and purposes as a part of the
Constitution of the United States". As the Legislatures of Tennessee and West Virginia had power
to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that
they had done so, was conclusive upon him, and, being certified to by his proclamation, is
conclusive upon the courts."
184. I am, therefore, of the view that the constitutional validity of the Constitution
Amendment Act and the 1975 Act amendment the Representation of the People Act cannot be
assailed on the ground that some members of Parliament were prevented because of their
detention from attending and participating in the proceedings of the respective Houses of
Parliament.
185. We may now deal with clause (4) of Article 329A which has been added by the
Constitution (Thirty-ninth Amendment) Act, 1975. It is necessary to clarify at the outset that we
are concerned in the present case only with the constitutional validity of clause (4) and not with
that of the other clauses of that article. I, therefore, express no opinion about the validity of the
other clauses of Article 329A. Clause (4) consists of four parts :
(i) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975 in so far as it relates to the election petitions of matters connected
therewith shall apply or shall be deemed ever to have applied to or in relation to the election of
any such person as is referred to in clause (1) to either House of Parliament;
(ii) and such election shall not be deemed to be void or ever to have become void on any
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ground on which such election could be declared to be void or has before such commencement
been declared to be void under any such law;
(iii) and notwithstanding any order made by any court before such commencement declaring
such election to be void, such election shall continue to be valid in all respects;
(iv) and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of no effect.
186. In so far as part (i) is concerned, I find that it relates to a matter which can be the subject
of an ordinary legislation or a constitutional amendment. According to this part, no law made by
Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in
so far as it relates to the election petitions and matters connected therewith shall apply and shall
be deemed ever to have applied to or in relation to the election of any such person as is referred to
in clause (1) to either House of Parliament. A law in the above terms can validly be made by a
Legislature as well as by a constituent authority. The fact that the above law would have
retrospective effect would not detract from the competence of the Legislature or constituent
authority to make such a law. It is well-settled that it is permissible for a Legislature to make a
law with retrospective effect. The power of a Legislature to make a law with retrospective effect
is not curtailed or circumscribed by the fact that th
187. Part (ii) of clause (4) spells out the consequence which flows from part (i) of the clause.
If the previous law in so far as it relates to the election petitions and matters connected therewith
was not to apply to the election of the Prime Minister and the Speaker, it would necessarily follow
that the election of the appellant who was the Prime Minister would not be deemed to be void or
ever to have become void on the ground on which such election could be declared to be void or
has before such commencement been declared to be void under any such law.
188. The same, to some extent, appears to be true of part (iv) of clause (4). If the previous
law in so far as it relates to the election petitions and matters connected therewith was not to
apply to the election of the appellant, the High Court shall be deemed to have had no jurisdiction
to decide the election petition challenging the election of the appellant. The effect of part (i) of
clause (4) is that the High Court was divested of the jurisdiction to decide the dispute relating to
the election of the appellant with a retrospective effect. The law under which the election of the
appellant was declared to be void as a result of the amendment was also made inapplicable with
retrospective effect to the dispute relating to the election of the appellant. The resultant effect of
the amendment thus was that the order by which the election of the appellant was declared to be
void and the finding on which such order was based were rendered to be void and no effect.
189. Another aspect of part (iv) of clause (4) relates to the question as to whether it is open to
the constituent authority to declare an order and a finding of the High Court to be void and of no
effect or whether such a declaration can be made only either in separate judicial proceedings
before a higher court.
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190. A declaration that an order made by a court of law is void is normally part of the judicial
function and is not a legislative function. Although there is in the Constitution of India no rigid
separation of powers, by and large the spheres of judicial function and legislative function have
been demarcated and it is not permissible for the Legislature to encroach upon the judicial sphere.
It has accordingly been held that a Legislature while it is entitled to change with retrospective
effect the law which formed the basis of the judicial decision, it is not permissible to the
Legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton
Mills Ltd. v. Broach Borough Municipality, Janapada Sabha, Chhindwara v. The Central
Provinces Syndicate Ltd., Municipal Corporation of the City of Ahmedabad v. New Shorock Spg.
& Wvg. Co. Ltd. and State of Tamil Nadu v. M. Rayappa Gounder).
191. The position as it prevails in the Unites States, where guarantee of due process of law is
in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d as under :
"The general rule is that the Legislature may not destroy, annul, set aside, vacate, reverse,
modify, or impair the final judgment of a court of competent jurisdiction, so as to take away
private rights which have become vested by the judgment. A statute attempting to do so has been
held unconstitutional as an attempt on the part of the Legislature to exercise judicial power, and
as a violation of the constitutional guarantee of due process of law. The Legislature is not only
prohibited from reopening cases previously decided by the courts, but is also forbidden to affect
the inherent attributes of a judgment. That the statute is under the guise of an act affecting
remedies does not alter the rule. It is worthy of notice, however, that there are cases in which
judgments requiring acts to be done in the future may validly be affected by subsequent legislation
making illegal that which the judgment found to be legal, or making legal that which the judgment
found to be illegal.
10. Judgment as to public right.
With respect to legislative interference with the judgment, a distinction has been made
between public and private rights under which distinction a statute may be valid even though it
renders ineffective a judgment concerning a public right. Even after a public right has been
established by the judgment of the court, it may be annulled by subsequent legislation."
192. Question arises whether the above limitation imposed upon the Legislature about its
competence to declare a judgment of the court to be void would also operate upon the constituent
authority?
193. View has been canvassed before us that the answer to the above question should be in
the negative. Although normally a declaration that the judgment of a court is void can be made
either in separate proceedings or in proceedings before the higher court, there is, according to this
view, no bar to the constituent authority making a declaration in the constitutional law that such
an order would be void especially when it relates to a matter of public importance like the dispute
relating to the election of a person holding the office of Prime Minister. The declaration of the
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voidness of the High Court judgment is something which can ultimately be traced to part (i).
Whether such a declaration should be made by the court or by the constituent authority is more, it
is urged, a matter of the mechanics of making the declaration and would not ultimately affect the
substance of the matter that the judgment is declared void. According to Article 31B, without
prejudice to the generality of the provisions contained
"There was speculation during the argument as to what the position would be if Parliament
sought to procure such a result by first amending the Constitution by a two-thirds majority. But
such a situation does not arise here. In so far as any Act passed without recourse to Section 29
(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires."
The above observations, it is urged, show that the restriction upon the Legislature in
encroaching upon judicial sphere may not necessarily hold good in the case of constituent
authority.
194. The above contention has been controverted by Mr. Shanti Bhushan and he submits that
the limitations on the power of the Legislature that it cannot declare void a judgment of the court
equally operates upon the constituent authority. It is urged that the constituent authority can only
enact a law in general terms, even though it be a constitutional law. The constituent authority may
also, if it so deems proper change the law which is the basis of a decision and make such change
with retrospective effect, but it cannot, according to the learned Counsel, declare void the
judgment of the court. Declaration of voidness of a judgment, it is stated, is a judicial act and
cannot be taken over by the constituent authority. Although Legislatures or the constituent
authority can make laws, including for creation of courts, they cannot, according to the
submission, exercise judicial functions by assuming the powers of a super court in the same way
as the courts cannot act as a super Legislature. It is, in my opini
195. We may now come to part (iii) of clause (4). By part (iii) it is declared that the election
of the appellant shall continue to be valid in all respects. Such a declaration would not follow from
part (i) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as
mentioned earlier, in effect represented the consequences flowing from part (i). The election to
the Lok Sabha of the appellant, who was the Prime Minister, was challenged on the ground that
she or her election agents had been guilty of some malpractices. The declaration that her election
was to be valid in all respects necessarily involved the process of going into the grounds on which
her election had been assailed and holding those grounds to be either factually incorrect or to be
of such a nature as in law did not warrant the declaration of her election to be void. The case of
the appellant is that some of the grounds mentioned against her were factually incorrect and in
respect of those grounds the findings
196. The dispute relating to the election of the appellant is also not to be governed by law is
to be enacted under clause (1) of Article 329A. Such a law would apply only to future elections.
The result is that so far as the dispute relating to the election of the appellant is concerned, a legal
vacuum came into existence. It was open to the constituent authority to fill that vacuum by
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prescribing a law which was to govern the dispute arising out of the petition filed by the
respondent to challenge the election of the appellant. The constituent authority, however, did not
do so and straightaway proceeded to declare the election of the appellant to be valid. There is
nothing in clause (4) to indicate that the constituent authority applied any law in declaring the
election of the appellant to be valid and if so, what was that law.
197. I am unable to accede to the argument that the constituent authority kept in view the
provisions of the R. P. Act as amended by Acts 58 of 1974 and 40 of 1975 and their impact on
the challenge to the election of the appellant in declaring the election of the appellant to be valid.
The difficulty in accepting this argument is that in part (i) of clause (4) the constituent authority
expressly stated that the previous law, namely the R. P. Act as amended in so far as it related to
election petitions and matters connected therewith was not to apply so far as the challenge to the
election of the appellant was concerned. It is also difficult to agree that the constituent authority
took into account some other unspecified law or norm in declaring the election of the appellant to
be valid. As mentioned earlier, there is nothing in clause (4) to indicate that the constituent
authority took into account some other law or norm and if so, what that law or norms was. The
position which thus emerges is that according
198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of
amendment of the Constitution contained in Article 368 does not permit altering the basic
structure of the Constitution. All the seven Judges who constituted the majority were also agreed
that democratic set-up was part of the basic structure of the Constitution. Democracy postulates
that there should be periodical election, so that people may be in a position either to re-elect the
old representatives or, if they so choose, to change the representatives and elect in their place
other representative. Democracy further contemplates that the elections should be free and fair, so
that the voters may be in a position to vote for candidates of their choice. Democracy can indeed
function only upon the faith that election are free and fair and not rigged and manipulated, that
they are effective instruments of ascertaining popular will both in reality and form and are not
mere rituals calculated to generate illusion of defe ion arises whether a member of a House of
Parliament has become disqualified for membership, the decision of that House shall be taken and
shall be final.
199. Not much argument is needed to show that unless there be a machinery for resolving an
election dispute and for going into the allegations that elections were not free and fair being
vitiated by malpractices, the provision that a candidate should not resort to malpractices would be
in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity
of the election of a candidate is challenged on some grounds, the said election can be declared to
be valid only if we provide a forum for going into those grounds and prescribe a law for
adjudicating upon those grounds. If the said forum finds that the grounds advanced to challenge
the election are not well-founded or are not sufficient to invalidate the election in accordance with
the prescribed law or dismisses the petition to challenge the election on some other ground, in
such an event it can be said that the election of the returned candidate is valid.
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200. Besides other things, election laws lay down a code of conduct in election matters and
prescribe, what may be called, rules of electoral morality. Election laws also contain a provision
for resolving disputes and determination of controversies which must inevitably arise in election
matters as they arise in other spheres of human activity. The object of such a provision is to
enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in
election matters. It is manifest that but for such a provision, there would be no sanction for the
above code of conduct and rules of electoral morality. It is also plain that nothing would bring the
code of conduct into greater contempt and make a greater mockery of it than the absence of a
provision to punish its violation. The position would become all the more glaring that even though
a provision exists on the statute book for punishing violation of the code of conduct in election
matters, a particular election is made immune and g
201. The vice of clause (4) of Article 329A is not merely that it makes the previous law
contained in the R. P. Act as amended by Act 58 of 1974 and 40 of 1975 inapplicable to the
challenge to the election of the appellant, it also makes no other election law applicable for
resolving that dispute. The further vice from which the said clause suffers is that it not merely
divests the previous authority, namely, the High Court of its jurisdiction to decide the dispute
relating to the election of the appellant, it confers no jurisdiction on some other authority to
decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon
the grounds advanced by the respondent to challenge the election of the appellant, the constituent
authority has declared the election of the appellant to be valid.
202. To confer an absolute validity upon the election of one particular candidate and to
prescribe that the validity of that election shall not be questioned before any forum or under any
law would necessarily have the effect of saying that howsoever gross may be the improprieties
which might have vitiated that election, howsoever flagrant may be the malpractices which might
have been committed on behalf of the returned candidate during the course of the election and
howsoever foul and violative of the principles of free and fair elections may be the means which
might have been employed for securing success in that election, the said election would be
nonetheless valid and it would not be permissible to complain of those improprieties, malpractices
and unfair means before any forum or under any law with a view to assail the validity of that
election. Not much argument is needed to show that any provision which brings about that result
is subversive of the principle of free and fair election in a democracy. T
203. The vice of declaration contained in part (iii) of clause (4) regarding the validity of the
election of the appellant is aggravated by the fact that such a declaration is made after the High
Court which was then seized of jurisdiction had found substance in some of the grounds advanced
by the respondent and had consequently declared the election of the appellant to be void. To put a
stamp of validity on the election of candidate by saying that the challenge to such an election
would not be governed by any election law and that the said election in any case would be valid
and immune from any challenge runs counter to accepted norms of free and fair elections in all
democratic countries. In the case of Marbury v. Madison Marshall, C. J. said that "the
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government of the United States has been emphatically termed a government of laws and not of
men". In United States v. Lee Samuel Miller, J. observed that "no man is so high that he is above
the law... All... officers are creatures of the law and are bound t
204. It has been argued on behalf of the appellant that the grounds on account of which the
election of the appellant has been held to be void by the High Court were of a technical nature. I
need not express any opinion about this aspect of the matter at this stage but, assuming it to be so,
I find that clause (4) of Article 329A is so worded that however serious may be the malpractices
vitiating the election of the Speaker or the Prime Minister, the effect of clause (4) is that the said
election would have to be treated as valid. I cannot accede to the submission that in construing
clause (4) we should take into account the facts of the appellant's case. This is contrary to all
accepted norms of construction. If a clause of a Constitution or a statutory provision is widely
worded, the width of its ambit cannot be circumscribed by taking into account the facts of an
individual case to which it applies. As already mentioned, clause (4) deals with the past election
not merely of the Prime Minister but also of
205. Another argument advanced in support of the validity of the amendment is that we
should take it that the constituent authority constituted itself to be the forum for deciding the
dispute relating to the validity of the election of the appellant, and after considering the facts of
the case, declared the election of the appellant to be valid. There is, however, nothing before us as
to indicate that the constituent authority went into the material which had been adduced before
the High Court relating to the validity of the election of the appellant and after considering that
material held the election of the appellant to be valid. Indeed, the statement of objects and reasons
appended to the Constitution (Thirty-ninth Amendment) Bill makes no mention of this thing. In
any case, the vice of clause (4) would still lie in the fact that the election of the appellant was
declared to be valid on the basis that it was not to be governed by any law for settlement of
election disputes. Although the provisions of a c
206. The matter can also be looked at from another angle. The effect of impugned clause (4)
is to take away both the right and the remedy to challenge the election of the appellant. Such
extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is
incompatible with the process of free and fair elections. Free and fair elections necessarily
postulate that if the success of a candidate is secured in elections by means which violate the
principle of free and fair elections, the election should on that account be liable to be set aside and
be declared to be void. To extinguish the right and the remedy to challenge the validity of an
election would necessarily be tantamount to laying down that even if the election of a candidate is
vitiated by the fact that it was secured by flagrant violation of the principles of free and fair
election, the same would still enjoy immunity from challenge and would be nonetheless valid.
Clause (4) of Article 329A can, therefore, be held to st
207. I agree that it is not necessary in a democratic set-up that disputes relating to the validity
of the elections must be settled by courts of law. There are many countries like France, Japan, and
the United States of America where consistently with the democratic set-up the determination of
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such controversies is by Legislature or by authorities other than the courts. The question with
which we are concerned, however, is whether it is permissible in a democratic set-up that a
dispute with regard to the validity of a particular election shall not be raised before any forum and
shall not be governed by law and whether such an election can be declared, despite the existence
of a dispute relating to its validity, to be valid by making the existing law relating to election
disputes not applicable to it and also by not applying any other election law to such a dispute. The
answer to such a question, for the reasons given earlier by me, should be in the negative.
208. Reference to the election of the US President made by Mr. Sen is also not helpful to him.
It is clear from observations on pages 47-50 of the American Commonwealth by Bryce, 1912 Ed.
and Sections 5, 6, and 15 of the United States Code (1970 Ed.) that there is ample provision for
the determination of such disputes after the poll. The fact that such determination of the dispute is
before the declaration of the result would not detract from the proposition that it is essential for
free and fair elections that there should be a forum and law for the settlement of such disputes
relating to the validity of the election.
209. Argument has also been advanced that the offices of the Prime Minister and Speaker are
of great importance and as such they constitute a class by themselves. This argument, in my
opinion, would have relevance if instead of the law governing disputes relating to the election of
other persons, another law had been prescribed to govern the dispute relating to the election of a
person who holds the office of the Prime Minister or Speaker. As it is, what we find is that so far
as the dispute relating to the election of the appellant is concerned, neither the previous law
governing the election of persons holding the office of the Prime Minister is to apply to it nor the
future law to be framed under clause (1) of Article 329A governing the election of persons
holding the office of Prime Minister is to apply to this dispute. Likewise, the previous forum for
adjudicating upon the election dispute which went into the matter, has been divested of its
jurisdiction with retrospective effect and, at the same time,
210. It has been argued in support of the constitutional validity of clause (4) that as a result of
this amendment, the validity of one election has been preserved. Since the basic structure of the
Constitution, according to the submission, continues to be the same, clause (4) cannot be said to
be an impermissible piece of constitutional amendment. The argument has a seeming plausibility
about it, but a deeper reflection would show that it is vitiated by a basic fallacy. Law normally
connotes a rule or norm which is of general application. It may apply to all the persons or class of
persons or even individuals of a particular description. Law prescribes the abstract principles by
the application of which individual cases are decided. Law, however, is not what Blackstone
called "a sentence". According to Roscoe Pound, law, as distinguished from laws, is the system of
authoritative materials for grounding or guiding judicial and administrative action recognized or
established in a politically organized society o be decided is that if the impugned amendment of
the Constitution violates a principle which is part of the basic structure of the Constitution, can it
enjoy immunity from an attack on its validity because of the fact that for the future the basic
structure of the Constitution remains unaffected. The answer to the above question, in my
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opinion, should be in the negative. What has to be seen in such a matter is whether the
amendment contravenes or runs counter to an imperative rule or postulate which is an integral
part of the basic structure of the Constitution. If so, it would be an impermissible amendment and
it would make no difference whether it relates to one case or a large number of cases. If an
amendment striking at the basic structure of the Constitution is not permissible, it would not
acquire validity by being related only to one case. To accede to the amendment advanced in
support of the validity of the amendment would be tantamount to holding that even though it is
permissible to change the bas
211. Lastly, question arises whether we should strike down clause (4) in its entirety or in part.
So far as this aspect is concerned, I am of the view that the different parts of clause (4) are so
integrally connected and linked with each other that it is not possible to sever them and uphold the
validity of part of it after striking down the rest of it. It would indeed be unfair to the appellant if
we were to uphold the first part of clause (4) and strike down other parts or even part (iii). As
would be apparent from what follows hereafter, the election of the appellant is being upheld by
applying the provisions of the R. P. Act as amended by Act 40 of 1975. Such a course would not
be permissible if we were to uphold the validity of the first part of clause (4) and strike down the
other parts. We would also in that event be creating a vacuum which is the very vice for which we
are striking down clause (4). I am, therefore, of the view that clause (4) should be struck down in
its entirety.
212. In view of my finding that clause (4) strikes at the basic structure of the Constitution, it is
not necessary to go into the question as to whether, assuming that the constituent authority took
it upon itself to decide the dispute relating to the validity of the election of the appellant, it was
necessary for the constituent authority to hear the parties concerned before it declared the election
of the appellant to be valid and thus in effect repelled the challenge of the respondent to the
validity of the appellant's election.
213. As a result of the above, I strike down clause (4) of Article 329A on the ground that it
violates the principle of free and fair elections which is an essential postulate of democracy and
which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the
forum without providing for another forum for going into the dispute relating to the validity of the
election of the appellant and further prescribes that the said dispute shall not be governed by any
election law and the validity of the said election shall be absolute and not consequently be liable to
be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the
aforesaid election.
214. We may now deal with Appeal No. 887 of 1975 filed by the appellant. So far as this
appeal is concerned, it has been argued by Mr. Sen on behalf of the appellant that the grounds on
which the election of the appellant has been declared by the High Court to be void no longer hold
good in view of the amendment in the R. P. Act by Act 40 of 1975. As against that, Mr. Shanti
Bhushan on behalf of the respondent has assailed the validity of Act 40 of 1975. In the alternative,
Mr. Shanti Bhushan contends that even if the validity of Act 40 of 1975 were to be upheld, the
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grounds on which the election of the appellant has been declared to be void would still hold good.
215. The question as to whether Act 40 of 1975 is not vitiated by the constitutional infirmity
would be dealt with by me subsequently. For the time being I would proceed upon the basis that
the statutory amendment in the R. P. Act by Act 40 of 1957 is constitutionally valid.
216. Section 10 of Act 40 of 1975, which has been reproduced earlier makes it clear, inter
alia, that the provisions of Section 6, 7 and 8 of the Act shall have retrospective operation, so as
to apply to or in relation to any election held before the commencement of this Act, to either
House of Parliament in respect of which appeal from any order of any High Court made in any
election petition under the R. P. Act is pending before the Supreme Court immediately before
such commencement. It is, therefore, obvious that the provision of Section 6, 7 and 8 of Act 40 of
1975 would be attracted to this case. One of the question which actually arose for determination
before the High Court was as to what was the date on which the appellant held herself out as a
candidate. According to the written statement filed on behalf of the appellant, she held herself out
as a candidate from the Rae Bareli constituency on February 1, 1971 when she filed her
nomination paper. As against that, the case of the respondent was that t
"unless the context otherwise requires 'candidate' means 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."
The new definition states that "unless the context otherwise requires, 'candidate' means a
person who has been or claims to have been duly nominated as a candidate at any election". The
question as to when a person holds himself out as candidate, therefore, loses its importance in the
context of the new definition.
217. One of the grounds which weighed with the High Court in declaring the election of the
appellant to be void was that the appellant committed corrupt practice under the Section 123 (7)
of the R. P. Act inasmuch as she obtained and procured the assistance, for the furtherance of her
election prospects, of Yaspal Kapur during the period from January 7 to 24, 1971 when Yashpal
Kapur was still a gazetted officer in the service of the Government of India.
218. According to clause (7) of Section 123 of the R. P. Act, the following act shall constitute
corrupt practice under that clause :
"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or
his agent or, by any other person with the consent of a candidate or his election agent, any
assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's
election, from any person in the service of the Government and belonging to any of the following
classes, namely :-
(a) gazetted officers;
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(b) stipendiary judges and magistrates;
(c) members of the armed forces of the union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officer other than village revenue officers known as Lambardars, Malguzars,
Deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated
by a share of, or commission on, the amount of land revenue collected by them but who do not
discharge any police function; and
(g) such other class of persons in the service of the Government as may be prescribed.
Explanation.- (1) In this section the expression 'agent' includes an election agent, polling agent
and any person who is held to have acted as an agent in connection with the consent of the
candidate.
(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the
prospects of a candidate's election if he acts as an election agent."
Perusal of the above clause shows that what constitutes corrupt practice under the above
clause is the obtaining or procuring or abetting or attempting to obtain or procure by a candidate
or his agent or by any person with the consent of a candidate or his election agent any assistance
(other than giving of vote) for the furtherance of the prospects of the candidate's election from
any person in the person in the service of the Government and belonging to any of the classes
specified therein. It is, in my opinion, essential that at the time the impugned act, namely, the
obtaining or procuring or abetting or attempting to obtain or procure the assistance of the
government servant is done, the person doing the act must be a candidate or his agent or any
other person with the consent of a candidate or his election agent. Candidate in this clause would
mean a person who has been or who claims to have been duly nominated as a candidate at the
election. I am unable to accede to the submission of Mr. Shanti Bhushan
219. Mr. Shanti Bhushan has invited our attention to clause (b) of Section 100 (1) of the R. P.
Act wherein it is stated that subject to the provisions of sub-section (2) of the section if the High
Court is of the opinion that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of a returned candidate or his election
agent, the High Court shall declare the election of the returned candidate to be void."Returned
candidate" has been defined in clause (f) of Section 79 to mean, unless the context otherwise
requires, a candidate whose name has been published under Section 67 as duly elected. It is urged
that as the corrupt practice referred to in clause (b) of Section 100(1) of the R. P. Act would in
the very nature of things have to be committed by the returned candidate before his name was
published under the Section 67 as duly elected, the words "returned candidate" in clause (b) of
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Section 100(1) must be taken to have been used with a
220. Reference has also been made by Mr. Shanti Bhushan to observation on pages 222-3 of
Vol. 14 of Halsbury's Laws of England, Third Edition, according to which a candidate at a general
election may be guilty of treating even though the treating took place before the dissolution of
Parliament and consequently before he came within the statutory definition of a candidate. These
observations have been made in the context of the statutory provisions in the United Kingdom.
Those provisions were couched in the language substantially different from that in which the
provision of the R. P. Act in India are couched and as such, in my opinion, not much assistance
can be derived from those observations.
221. As the appellant filed her nomination paper on February 1, 1971, in view of the amended
definition of the word "candidate", it would have to be taken that the appellant became a
candidate only on February 1, 1971. The result is that even if the finding of the High Court that
the appellant obtained and procured the assistance of Yashpal Kapur during the period from
January 7 to 24, 1971 were assumed to be correct, the appellant shall not be deemed to have
committed corrupt practice under Section 123(7) of the R. P. Act. As regards the assistance of
Yashpal Kapur which the appellant is alleged to have obtained and procured after January 14,
1971, the controversy stands resolved also by another amendment. According to the case of the
appellant, Yashpal Kapur, tendered his resignation by letter, dated January 13, 1971, with effect
from January 14, 1971. The High Court found that Yashpal Kapur continued to be in the service
of the Government of India till January 25, 1971 which was the date of the notificati ette of the
resignation and termination of the service of a person in the service of the Central Government
shall be conclusive proof of his resignation and termination of service and where the date of
taking effect of this resignation or termination of service is stated in such publication, also of the
fact that such person ceased to be in such service with effect from the said date. Yashpal Kapur in
view if the newly added explanation, shall be taken to have ceased to be in government service
with effect from January 14, 1971. Any assistance of Yashpal Kapur which the appellant was
alleged to have obtained or procured on or after January 14, 1971 would not, therefore, make her
guilty of corrupt practice under Section 123(7) of the R. P. Act.
222. Another ground on which the High Court declared the election of the appellant to be
void was that she committed corrupt practice under Section 123(7) of the R. P. Act inasmuch as
she obtained the assistance of the officers of the U. P. Government, particularly the District
Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel
Department for construction of rostrums and arrangement of supply of power for loudspeakers in
the meetings addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her
election prospects. It is not disputed that what was done by the above mentioned officers was in
pursuance of official directions and in the discharge or purported discharge of the official duties.
This is indeed clear from letter dated November 19, 1969 from the Government of India, Ministry
of Home Affairs to all State Governments wherein there is reference to rule (6) of the Rules and
Instructions for the Protection of the Prime Minister and it is state
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"As the security of the Prime Minister is the concern of the State all arrangements for putting
up the rostrums, the barricades, etc. at the meeting place, including that of an election meeting
will have to be made by the State Government concerned. . . .
started checking (Mrs.Joshi) In the case of election meetings, all expenditure on police, setting
up of barricades and taking lighting arrangements will be borne by the State Government while
expenditure on the public address system and any decorative arrangements will be the
responsibility of the political party concerned. (The expenditure on all these items, may in the first
instance be borne by the State Government and then recovered from the political parties
concerned.) In regard to the rostrum only 25% of the cost of the rostrum or Rs. 2500.00
whichever is less, shall be contributed by the party as the rostrum has to be of certain
specifications because of security considerations."
Assuming that the finding of fact recorded by the High Court in this respect is correct, the
appellant can still be not guilty of the commission of corrupt practice under Section 123(7) of the
R. P. Act in view of the new proviso which has been inserted at the end of clause (7) of the
Section 123 and which reads as under :
"Provided that where any person, in the service of the Government and belonging to any of
classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to or in relation to any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
The above proviso has also a direct bearing on the allegation of the respondent that the
appellant committed corrupt practice under Section 123(7) of the R. P. Act inasmuch as she or
her election agent procured the assistance of members of armed forces of the Union for
furtherance of her election prospects because of the fact that the members of the armed forces
arranged planes and helicopters of the Air Force for her flights to enable her to address meetings
in her constituency.
223. It has been argued by Mr. Shanti Bhushan that the words "in the discharge or purported
discharge of his official duty" in the above mentioned proviso have reference only to statutory
duty and not to other duty performance of which takes place in pursuance of administrative
instructions. I find it difficult to accede to the above submission as there is nothing in the above
proviso to confine the words "official duty" to duty imposed by statute. Official duty would
include not merely duties imposed by statutes but also those which have to be carried out in
pursuance of administrative instructions.
224. Mr. Shanti Bhushan during the course of arguments made it plain the apart from his
submission with regard to the validity of Act 40 of 1975, his objection relating to the applicability
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of Act 40 of 1975 was confined to two matters, namely, the connotation of the word "candidate"
and the meaning to be the attached to official duty. Both these objections have been found by me
to be not tenable. I would, therefore, hold that subject to the question as to whether the
provisions of Act 40 of 1975 are valid, the grounds on which the High Court has declared the
election of the appellant to be void no longer hold good for declaring the said election to be void.
225. We may also before dealing with the validity of Act 40 of 1975 refer to one other change
brought about by that Act which has a bearing upon the present case. It was the case of the
respondent that the appellant and her election agent made extensive appeals to the religious
symbol of cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P.
Act. Corrupt practice has been defined in that provision as unde :
" (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 case 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."
It is common case of the parties that the symbol of cow and calf was allotted to the Congress
party by the Election Commission. The learned Counsel for the respondent stated during the
course of arguments in the High Court that he confined his case only to the use of the symbol of
cow and calf. The learned Counsel gave up that part of the case of the respondent wherein it had
been alleged that appeals were made to the religious symbol of cow and calf by the appellant. The
following proviso has now been inserted in clause (3) of Section 123 by Section 8 of Act 40 of
1975 :
"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."
It is, therefore, apparent in view of the above proviso that the symbol of cow and calf which
was allotted to the appellant shall no be deemed to be a religious symbol or a notional symbol for
the purpose of Section 123(3) of the R. P. Act. The appellant as such cannot be deemed to have
committed a corrupt practice under Section 123(3) of the R. P. Act by use of the symbol of cow
and calf.
226. In assailing the validity of Act 40 of 1975 Mr. Shanti Bhushan has referred to Section 10
of that Act, according to which the amendments made by Sections 6, 7 and 8 of the Act in the R.
P. Act shall have retrospective operation, so as to apply to any election held before the
commencement of the Act in respect of which an election petition is pending or in respect of
which appeal from any order of the High Court is pending immediately before the commencement
of Act 40 of 1975. It is urged that a change in the election law with retrospective effect strikes at
the principle of free and fair elections. Retrospective operation of the amending Act, according to
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the learned Counsel, has the effect of condoning what was at the time it was committed a corrupt
practice.
227. I have given the matter my earnest consideration, and am of the opinion that there is no
substance in the above contention. A Legislature has, except in a matter for which there is
prohibition like the one contained in Article 20(1) of the Constitution, the power to make laws
which are prospective in operation as well as laws which have retrospective operation. There is no
limitation on the power of the Legislature in this respect. Essentially it is a matter relating to the
capacity and competence of the Legislature. Although most of the laws made by the Legislature
have prospective operation, occasions arise quite often when necessity is felt of giving
retrospective effect to a law. This holds good both in respect of a principle Act as well as in
respect of an amending Act. If the provisions of an Act passed by the Legislature are not violative
of the provisions of the Act passed by the provisions shall have to be given effect to and the fact
that the operation of the Act is prospective or retrospectiv
228. The first such case was State of Orissa v. Bhupendra Kumar Bose (supra). It arose out of
elections to the Cuttack Municipality held in December, 1957 to March, 1958 as a result of which
27 appellants were declared elected as councillors. The respondent, who was defeated at the
elections, filed a writ petition before the High court challenging the elections. The High Court
held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa
Municipalities Act, 1950, as the age qualification had been published too late thereby curtailing
the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed.
The High court consequently set aside the elections. The State took the view that the judgment
affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the
Governor promulgated an Ordinance validating the elections to the Cuttack Municipality and
validating the electoral rolls prepared in respect of various munici
"The Cuttack municipal elections had been set aside by the High Court and if the governor
thought that in the public interest, having regard to the factors enumerated in the preamble to the
Ordinance, it was necessarily follow that the Ordinance suffers from the vice of contravening
Article 14."
It was further observed :
"Therefore, if the infirmity in the electoral rolls on which the decision of the High court in the
earlier writ petition was based, had not been applicable to the electoral rolls in regard to other
municipalities in the State of Orissa, then it may have been open to the Governor to issue an
ordinance only in respect of the Cuttack municipal elections, and if, on account of special
circumstances or reasons applicable to the Cuttack municipal elections, a law was passed in
respect of the said elections alone, it could not have been challenged as unconstitutional under
Article 14. Similar, if Mr. Bose was the only litigant affected by the decision and as such formed a
class by himself, it would have been open to the Legislature to make a law only in respect of his
case. But as we have already pointed out, the Ordinance does not purport to limit its operation
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only to the Cuttack Municipality; it purports to validate the Cuttack municipal elections and the
electoral rolls in respect of other municipalities as wel
229. In Knata Kathuria v. Manak Chand Surana (supra) the dispute related tot he election of
the appellant to the Rajasthan Legislative Assembly. The appellant in that case had been appointed
as a Special Government Pleader to represent the State of Rajasthan in an arbitration case. The
appellant then stood for election to the State Legislative Assembly and was declared elected. The
election of the appellant was challenged inter alia on the ground that the appellant held an office
of profit within the meaning of Article 19(1) of the Constitution. The High Court set aside the
election of the appellant. The appellant then came up in appeal to this Court. During the pendency
of the appeal, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the
office of Special Government Pleader was not disqualified from being chosen or for being a
member of the State Legislative Assembly. The Act was made retrospective and removed the
appellant's disqualification retrospectively. On the question as to g that the appellant held an office
of profit. All the five Judges constituting the Constitution Bench were, however, unanimous on
the point that the Act of 1969 had removed the disqualification of the appellant retrospectively.
Hidayatullah, C.J. speaking for himself and Mitter, J. observed :
"It is also well-recognised that Parliament and 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.
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 of
make the declaration. There is nothing in the words of the article to indicate that this declaration
cannot be made with retrospective effect."
It was further observed :
"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."
SIKRI, J.
(as he then was) speaking for himself, Ray, J. (as he then was) and was Jaganmohan Reddy, J.
dealt with the matter in the following words :
"Mr. Chagla. learned Counsel for the respondent, contends that the Rajasthan State
Legislature was not competent 'to declare retrospectively' under Article 191(1) (a) of the
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Constitution. It seems to us that there is no force in this contention. 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. Practice of the British Parliament does not oblige us to place
any implied restriction. We notice that the British Parliament in one case validate the election :
[Erskine May's Treatise on the Law, Privileges Proceedings & Usage of Parliament- Seventeenth
Edition (1964)]-
'After the general election of 1945 it was found that the persons elected for the Coatbridge
Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of
their election because they were members of tribunals appointed by the Minister under the Rent of
Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of
attendance at a tribunal. A Select Committee reported that the disqualification was incurred
inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn
Elections (Validation) Bill was introduced to validate the irregular elections (H. C. Deb.
(1945-46) 414, c. 564-6). See also H. C. 3 (1945-46); ibid. 71 (1945-46) and ibid. 92 (1945-46).'
We have also noticed two earlier instances of retrospective legislation, e.g. the House of
Commons (Disqualification) Act, 1813 (Halsburry's Statutes of England p. 467) and Section 2 of
the Re-election of Ministers Act, 1919 (ibid p. 515)
Great stress was laid on the word 'declare' in Article 19(1) (a), but we are unable to imply any
limitation on the powers of the Legislature from this world. Declaration can be made effective as
from an earlier date"
230. The above two authorities of this Court clearly lend support for the view that it is
permissible to amend a lawn relating to elections with retrospective operation. Mr. Shanti
Bhushan has criticised the observations of Sikri, J. reproduced above on the score that in the
United Kingdom amendments in election law have not been made to affect pending proceedings in
courts. This is essentially a matter for the Legislature to decide, this does not affect the
competence of the Legislature to make a change in election law with retrospective effect. In any
case, the proposition of law laid down in the case of Kanta Kathuria (supra) is binding upon us
and I do not find any reason to detract either from the soundness of the view expressed therein or
its binding effect.
231. The Privy Council also upheld in the case of Areyesekera v. Jayalilake an Order in
Council giving retrospective effect to an election law in Ceylon. This question arose in the
following circumstances. An order in Council of 1923 made provision as to the Legislative
Council in Ceylon but reserved to His Majesty power to revoke, alter or amend the Order. The
appellant, as common informer, brought an action to recover penalties under the Order from the
respondent, who he alleged had sat and voted after his seat had become vacant under its
provisions by reason of his having pecuniary interest in a contract with the Government. In 1928,
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after the action had been brought, but before its trial, an amending Order in Council was made
providing that the action should be dismissed; it also amended the Order of 1923 so as to except
the office held by the respondent from its operation. It was held that the Order of 1928 was valid,
having regard to the power reserved by the Order of 1923, and was an effective defense
"It was argued that the Order in Council of November 1, 1928, was ultra vires as affecting to
take away rights already in existence, thus having a retrospective action. The effect, however, of
the Order of 1928, as expressed on the face of it, was no more than an act of indemnity and relief
in respect of penalties incurred. It may be true that not Jove himself upon the past hath power, but
legislators have certain the right to prevent, alter or reverse the consequence of their own decrees.
There is no necessity to give instances to prove that they have frequently done so; even going so
far as to restore the heritable quality to blood which had been deprived of its virtue by acts of
attainder."
232. I am not impressed by the argument that retrospective operation of the relevant
provisions of Act 40 of 1975 affects free and fair elections. The said provisions of Act 40 of 1975
are general in terms and would apply to all election disputes which may be pending either in the
High Court or in appeal before the Supreme Court or which may arise in future. It is no doubt
true that the retrospective operation of an amending Act has the effect of placing one of the
parties to the dispute in a more advantageous position compared to others but that is inevitable in
most of the amendments with retrospective operation. This Court in the case of Harbhajan Singh
v. Mohan Singh dealt with the provisions of Section 3 of the Punjab Pre-emption (Repeal) Act,
1973, according to which on and from the date of commencement of that Act, no court shall pass
a decree in any suit for pre-emption. This Court held that the above provision was also applicable
to appeals which were pending at the commencement of that Act as an ap
"It is true that it gave 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 legislation but not of
the capacity to make such laws."
Likewise, Sikri, J. expressly rejected the contention that retrospective amendment in election
law was bad because it was not a healthy practice and because such a course was liable to be
abused in the following words :
"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."
233. The above observations also provide an answer to the contention of Mr. Shanti Bhushan
that the provisions of the amendment made by Act 40 of 1975 can be abused. I may stated that in
case the provisions of the amended law are abused, and some of the instances of abuse were
visualized by Mr. Shanti Bhushan during the course of arguments, this Court would not be
helpless in the matter. The proper course in such an event would be to strike down the action
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taken under the amended law and not the law itself.
234. Reference was also made by Mr. Shanti Bhushan to the effect of retrospective
amendment in cases which may arise under Section 123(1) of the R. P. Act. We are in the present
case not concerned with Section 123(1) of the R. P. Act and consequently it is not necessary to
express any opinion with regard to the impact of the amendment upon Section 123(1) of the R. P.
Act. Nor is it necessary to express opinion on the point as to whether it is permissible to make a
law which has the effect of creating a corrupt practice or disqualification retrospectively and thus
unseating a returned candidate as such a question does not arise in this case.
235. The change in the definition of the word "candidate" to which our attention has been
invited by Mr. Shanti Bhushan does not impinge upon the process of free and fair elections. The
fact that as a result of the above change, we have to take into account only the prejudicial activity
of the candidate or his election agent from the date of nomination of the candidate and not from
the date he holds himself out as a candidate does not affect the process of free and fair elections.
It is necessary while dealing with corrupt practice relating to elections to specify the period within
which the impugned act, alleged to constitute corrupt practice should have been done. As a result
of the amendment, the Legislature has fixed the said period to be as from the date of nomination
instead of the period as from the date on which the candidate with the election in prospect began
to hold himself out as a prospective candidate. It is common experience that the date from which
a candidate holds himself out as a prospecti
236. One of the objects of the change effected by Act 40 of 1975 is to remove the uncertainty
and set at rest the controversy as to what would be the precise date of a person in the service of
the Central Government ceasing to be in such service in case he tenders his resignation. The
amended law makes it clear that where the date of taking effect of the resignation is stated in the
publication in the Official Gazette, it shall be that date. Similarly, in the case of appointment of a
person, the date of taking effect of such appointment shall be the date mentioned in the
publication in the Official Gazette in case such a date is stated in such publication. The fact that
the new provision creates a conclusive presumption with regards to the date of taking effect of
appointment or resignation does not mean, as is sought to be argued on behalf of the respondent,
that there has been an encroachment by the Legislature upon the Judicial sphere. Laying down a
rule of conclusive presumption in a statute with a view I find it difficult to hold that the impugned
provisions impinge upon the principle of free and fair elections.
237. So far as the newly added proviso to Section 123(7) is concerned, it may be stated that
the act in the discharge or purported discharge of official duty of the government employees
referred to above would in the very nature of things have to be of a kind which is Germans to
their official duties. It may include steps taken by the government employees for maintenance of
law and order or in connection with the security of a candidate or other persons. It would not,
however, include canvassing or doing such acts which may properly be considered to be part of
the election propaganda for furtherance of the prospects of a candidate's election. In taking action
under the above provision, it must be borne in mind as stated on page 152 of Free Elections by W.
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J. M. Mackenzie that in the last resort.
"the system of free elections depends on a certain separation of powers between
administrators (or policemen) and politicians : there must be some public sense that police and
administration serve the public, not the party leaders."
What would be permissible under the above provision would be that which is conceived to be
done in public interest and not something conceived to be done in the personal interest of a
candidate. In spite of some difficulty which may arise in borderline cases, this distinction must be
borne in mind. If, however, because of doing something conceived in public interest e.g., as in the
present case the security arrangement for the person holding the office of the Prime Minister,
some advantage may also possibly accrue to a candidate, it will have to be regarded as incidental
and would not detract from action taken under the above provision being in public interest. As
against that, any action taken with a view to further the personal interest of a candidate should not
be allowed to be camouflaged as an action taken in public interest. Care must be taken to ensure
that public interest is not allowed to degenerate into a cloak for furtherance of the personal
interests of a candidate in an election. The discharge o
238. One other change brought about by Act 40 of 1975 is the addition of an explanation in
Section 77 of the R. P. Act. According to the new explanation, any expenditure incurred in
respect of any arrangements made, facilities provided or any other act or thing done by any person
in the service of the Government and belonging to any of the classes mentioned in clause (7) of
Section 123 in the discharge or purported discharge of his official duty as mentioned in the
proviso to that clause shall not be deemed to be expenditure in connection with the election
incurred or authorised by a candidate or by his election agent for the purposes of Section 77(1).
The validity of the above explanation in a great measure is linked with the validity of the new
proviso to Section 123(7) of the R. P. Act, and for the reasons stated for upholding the proviso to
Section 123(7), the new explanation to Section 77, it seems, may have also to be upheld. It is not
necessary to dilate upon this aspect because even without invoking
239. Argument has also been advanced that validity of Act 40 of 1975 cannot be assailed on
the ground that it strikes at the basis structure of the Constitution. Such a limitation it is
submitted, operates upon an amendment of the Constitution under Article 368 but it does not hold
good when Parliament enacts a statute in exercise of powers under Article 245 of the
Constitution. In view of my finding that the provisions of Act 40 of 1975 with which we are
concerned have not been shown to impinge upon the process of free and fair elections and thereby
to strike at the basic structure of the Constitution, it is not necessary to deal with the above
argument. I would, therefore, hold that the provisions of Act 40 of 1975 with which we are
concerned are valid and do not suffer from any constitutional infirmity.
240. We may now deal with Cross Appeal No. 909 of 1975. Mr. Shanti Bhushan has not
pressed the challenge to the findings of the High Court on issues Nos. 4 and 7. He has, however,
assailed the finding of the High Court on issue No., 9 whereby the High Court held that the
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appellant incurred an expenditure of Rs. 31,976.47 on her election as against the prescribed limit
of Rs. 35,000. In Ex. 5, return of her election expenses, the appellant showed her total election
expenses to be Rs. 12,892.97. The respondent in para 113 of the election petition alleged that the
appellant and her election agent had incurred expenditure much beyond the prescribed limit of Rs.
35,000 and thereby committed corrupt practice under Section 123(6) of the R. P. Act. The
respondent gave some items of the expenditure which were alleged to have been incurred by the
appellant and her election agent but were not shown in the return of the election expenses. The
material items with which we are now concerned were as under :
# (i) The hiring charges of the vehicles specified in para 13(1) .. ... over Rs. 1,28,700 (ii) Cost
of petrol and diesel for the vehicles specified in para 13(1) .. ... over Rs. 43,230(iii) Payments
made to the drivers of vehicles specified in para 13(1) .. ... over Rs. 9,900 (iv) Repairing and
servicing charges of vehicles specified in para 13(1) .. ... over Rs. 5,000 (v) Payments made to the
workers engaged for the purpose of election propaganda .. ... over Rs. 6,600 (vi) Expenses on the
erection of rostrums for the public meetings addressed by the appellant in the constituency on
February 1 and 25, 1971 .. ... over Rs. 1,32,000(vii) Expenses on arrangement of loudspeakers for
the various election meetings of the appellant addressed on February 1 and 25, 1971 .. ... over Rs.
7,000(viii) Expenses on motor transport for the conveyance of the appellant and her party to the
place of her election meetings on February 1 and 25, 1971 .. ... over Rs. 2,000##
The High Court held that the respondent had failed to prove the first five times. As regards
the expenses for the erection of rostrums for the public meetings addressed by the appellant on
February 1 and 25, 1971, the High Court found that four meetings were addressed by the
appellant in the constituency on February 1 and six meetings on February 25, 1971. The cost of a
rostrum in each meeting came to Rs. 1,600. The total expenses of the ten rostrums thus came to
Rs. 16,000 and the same, it was held, was liable to be added to the amount shown in the return of
election expenses of the appellant. The amount of Rs. 16,000 included the money paid by the
District Congress Committee as its share of the cost of rostrums. Regarding the expenses of
loudspeakers, the High Court found that the total expenses of Rs. 800 had been incurred on the
installation of loudspeakers in the meetings addressed by the appellant on February 1 and 25,
1971. In addition to that, the High Court added Rs. 1,151 as cost of energy supplied
241. In appeal before us Mr. Shanti Bhushan has assailed the finding of the High Court in so
far as the High Court has not accepted the case of the respondent that the appellant incurred
expenses on the cost of hiring, petrol, petrol and the salary of the drivers for 23 vehicles. It may
be mentioned that the respondent in para 13 of the election petition referred to 32 vehicles which
were alleged to have been hired by the appellant, but both before the High Court and in appeal
before us, learned Counsel for the respondent had confined his argument to 23 vehicles.
242. To appreciate the point of controversy between the parties, it may be necessary to set out
some material facts. Section 160 of the R. P. Act provides inter alia that if it appears to the State
Government that in connection with an election held within the State, any vehicle is needed or is
likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or
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transport of members of the police force for maintaining order during the conduct of such
election, or transport of any officer or other person for performance of any duties in connection
with such election, the Government may be order in writing requisition such vehicle, provided that
no vehicle which is being lawfully used by a candidate or his agent for any purpose connected
with the election of such candidate shall be requisitioned until the completion of the poll at such
election. It appears that 23 vehicles, described at some places as cars and at other places as jeeps,
were requisitioned by the district authoriti
"You are requested to kindly write a letter with your recommendation to the Election Officer
so that the cars taken by the District Congress Committee may be released. I have tried to find out
Shri Vidyadhar Vajpayee who is contesting the election from Amethi parliamentary constituency
and Shri Baiznath Kureel who is contesting the election from Ram Sanehi parliamentary
constituency, but they are not available. You are, therefore, requested to write the above letter to
the District Election Officer positively so that the election work of all the three parliamentary
constituencies which is going on, on behalf of District Congress Committee, may not suffer."
On February 25, 1971 Yashpal Kapur addressed a letter to the District Officer, Rae Bareli,
stating that the 23 vehicles in question had been taken by the District Congress committee, Rae
Bareli, for the three parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat.
The District Officer was requested to release the 23 vehicles without delay. Yashpal Kapur also
enclosed with that letter the note of Dal Bahadur Singh. The 23 vehicles, it would appear, were
thereafter released by the District Election Officer. The appellant, in para 17(b) of her written
statement, admitted that those 23 vehicles were used by the District Congress Committee, Rae
Bareli, for election work in the three parliamentary constituencies of Rae Bareli, Amethi and Ram
Sanehi Ghat. The High Court, in not accepting the case of the respondent in respect of the 23
vehicles, observed that there was nothing to show that the above mentioned vehicles had been
obtained on hire or were obtained gratis. There was also, according to the
243. Mr. Shanti Bhushan, while assailing the finding of the High Court, has submitted that, as
five out of the seven assembly constituencies in Rae Bareli district were in Rae Bareli
parliamentary constituency, five-seventh of the expenses incurred on the said 23 vehicles should
be added to the election expenses of the appellant. I find it difficult to accede to the above
submission because of the paucity of the material on record. There is no cogent evidence to show
that the 23 vehicles in question were used for the election of the appellant. It is no doubt true that
the said 23 vehicles were used by the District Congress Committee, Rea Bareli for election work
in the three parliamentary constituencies, viz., Rae Bareli, Amethi and Ram Sanehi Ghat. The
record is, however silent on the point as to what extent they were used in Rae Bareli
parliamentary constituency. One can in the above context visualise three possibilities :
(i) As the appellant, who was the Prime Minister of the country, was contesting from Rae
Bareli constituency, the District Congress Committe concentrated its attention o that costituency
and used the 23 vehicles mostly for the election work in that constituency.
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(ii) As the appellant had a mass appeal the District Congress Committee office bearers thought
that the Rae Bareli constituency was very safe and used the 23 vehicles mostly for those two
constituencies.
(iii) Equal attention was paid to all the three costituecies and there was proportionate use of
the vehicles for the three constituencies.
Mr. Shanti Bhushan would have us to accept the first or the third possibility and would rule
out the second. If so, it was, in my opinion, essential for the respondent to lead some evidence
regardig the use of the 23 vehicles. He did nothing of the kind. Neither the owners nor the drivers
of those vehicles were examined as witnesses. There was also, as mentioned earlier, no other
cogent evidence to show that those vehicles or any them were used for the appellant's election in
the Rae Bareli constituency, and if so, to what extent. The respondent himself did not come into
the witness box to substantiate the charge against the appellant regarding the use of the 23
vehicles. The fact that Dal Bahadur Singh was not examined as a witness on behalf of the
appellant would not warrant the filling in of the gaps and lacunae in the evidence adduced by the
respondent by a process akin to guess work. It is no doubt true that by using a vehicle for the
furtherance of the prospects of candidates in more than one constitue s was used in more than one
constituency, including that of the returned candidate who was a Congress nominee. Question
arose as to whether the expense incurred in connection with that jeep could be included in the
election expenses of the returned candidate. While answering the question in the negative,
Hidayatullah, C.J. observed :
"The bill stands in the name of the Congress Committee and was presumably paid by the
Congress Committee also. The evidence, however, is that this jeep was used on behalf of the
returned candidate and to that extent we subscribe to the finding given by the learned Judge. Even
if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must
be included in his account, the difficulty is that this jeep was used also for the general Congress
propaganda in other constituencies. As we stated, the jeep remained in Chalet and at Mubarakpur.
No doubt Chalet is the home town of the returned candidate and his office was situated at
Mubarakpur but that does not indicate that the jeep was used exclusively on his account. The
petrol chart shows that petrol was bought at several pumps, both inside the constituency and
outside. This shows, as does the evidence, that the jeep was used not only in this constituency but
also in the other constituencies. If this be true, then, it is almost imp
244. Reference has also been made during the course of arguments by Mr. Shanti Bhushan to
some entries in a register of the Congress Committee. The High Court declined to place any
reliance on those entries as those entries had not been proved. I see no cogent ground to take a
different view. Our attention has been invited by Mr. Shanti Bhushan to a report in issue dated
January 22, 1971 of Swatantra Bharat wherein there was a reference to the Personal Secretary of
the Prime Minister having reached Rae Bareli with a caravan of 70 motor vehicles. No reliance
can be placed upon that report as the correspondent who sent that report was not examined as a
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witness.
245. The other difficulty which I find in accepting the submission of Mr. Shanti Bhushan in
respect of 23 vehicles is that there is no evidence to show that any payment was made for the use
of the above mentioned vehicles. There is also nothing to show that those vehicles were engaged
on hire. As mentioned earlier, the owners and drivers of those vehicles were not examined as
witnesses. I, therefore, find no sufficient ground to interfere with the finding of the High Court in
respect of the above mentioned 23 vehicles.
246. Mr. Shanti Bhushan has next assailed the finding of the High Court in so far as it has held
that the respondent has failed to prove that the appellant incurred an expense of Rs. 6,600 on
workers engaged for the purposes of election propaganda. I, however, find no infirmity in the
finding of the High Court in this respect as there is no cogent evidence whatsoever that any
expense was incurred for engaging workers for the election work of the appellant. The case of the
appellant is that her workers did the work voluntarily and without receipt of any remuneration.
247. Apart from challenging the findings of the High Court in respect of 23 vehicles and the
alleged payment to workers, Mr. Shanti Bhushan has also referred to some other circumstances
with a view to show that the election expenses of the appellant exceeded the prescribed amount of
Rs. 35,000. It has been pointed out that a cheque for Rs. 70,000 was sent by the Provincial
Congress Committee to Dal Bahadur Singh, President of the District Congress Committee, Rae
Bareli, and the same was credited in Dal Bahadur Singh's account after deducting of the bank
charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount Rs. 40,000 and Rs.
25,000 on March 4 and 6, 1971, respectively nearabout the days of polling. It is urged that the
said amount must have been spent for the purpose of the elections. There was no reference to the
said amount of Rs. 70,000 in the petition. There is also no reference to the amount of Rs. 70,000
in the judgment of the High Court or in the grounds of appeal. As such, I am of t
"Learned Counsel for the petitioner urged that from the evidence on record, it transpires that
expenditure was also incurred on the telephone connection and telephone charges; on the
meetings addressed by Sri Yashpal Kapur within the constituency during the period of election; on
the election material viz., pamphlets, posters, etc. and on the lighting arrangements made for some
meetings addressed by the respondent No. 1. None of these expenses were, however, pleaded in
the petition. In fact, till the commencement of the arguments in the case, the respondent No. 1
could not even anticipate that the petitioner shall rely on these expenses for the purpose of his
case. It will, therefore, be prejudicial to the interest of respondent No. 1 if the aforesaid expenses
are taken into consideration. The submission made by learned Counsel for the petitioner is
accordingly negatived".
I am in full agreement with the above observations of the High Court and find no cogent
ground to take a different view.
248. It may be stated that in view of the new explanation added to Section 77 of the R. P. Act
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by Act 40 of 1975, the amount of Rs. 12,000 which represented 75 per cent of the expenditure
incurred on the construction of 10 rostrums borne by the Government cannot be included in the
total election expenses of the appellant. The High Court, however, included the total amount of
Rs. 16,000 in the election expenses of the appellant upon the assumption that the appellant had
not disavowed that expenditure. Be that as it may, the fact remains that the High Court has found
on issue No. 9 that the total expenses incurred by the appellant on here election have not been
shown to exceed the prescribed limit. I find no cogent reason to interfere with that finding.
249. I also agree with the High Court that as the election expenses of the appellant have not
been shown to exceed the prescribed limit of Rs. 35,000, the question of invoking and going into
the validity of Act 58 of 1974 does not arise. Nor is it necessary to express an opinion about the
view taken in Kanwarlal v. Amarnath Chawla in view of the fact that even after applying the rule
laid down in that case, the total election expense of the appellant has not been shown to exceed
the prescribed limit.
250. So far as the finding of the High Court on issue No. 6 regarding the use of the symbol of
cow and calf is concerned, the matter, as already discussed earlier, is now covered by the
amendment made in Section 123(3) of the R. P. Act by Section 8 of Act 40 of 1975.
251. There was a controversy during the course of arguments on the point as to whether I
have laid down in my judgment in Kesavananda Bharati's case (supra) that fundamental rights are
not a part of the basic structure of the Constitution. As this controversy cropped up a number of
times, it seems apposite that before I conclude I should deal with the contention advanced by
learned Solicitor General that according to my judgment in that case no fundamental right is part
of the basic structure of the Constitution. I find it difficult to read anything in that judgment to
justify such a conclusion. What has been laid down in that judgment is that no article of the
Constitution is immune from the amendatory process because of the fact that it relates to a
fundamental right and is contained in Part III of the Constitution. It was also held that a
constitution amendment under Article 368 does not constitute "law" as mentioned in Article 13. I
also did not agree with the view taken in the case of Golaknath that the
"I am further of the opinion that amendment of the Constitution necessarily contemplates that
the Constitution has not to be abrogated but only changes have to be made in it. The word
'amendment' postulates that the old Constitution survives without loss of identity despite the
change and continues even though it has been subjected to alterations. As a result of the
amendment, the old Constitution cannot be destroyed and done away with; it is retained though in
the amended form. What then is meant by the retention of the old Constitution ? It means the
retention of the basic structure or framework of the old Constitution. A mere retention of some
provisions of the old Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the retention of the old Constitution.
Although it is permissible under the power of amendment to effect changes, howsover important,
and to adapt the system to the requirements of changing conditions, it is not permissible to to
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It was further observed by me : (SCC p. 770, para 1435)
"The word 'amendment' in Article 368 must carry the same meaning whether the amendment
relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it
pertains to some other provision outside Part III of the Constitution. No serious objection is taken
to repeal, addition or alteration of provisions of the Constitution other than those in Part III under
the power of amendment conferred by Article 368. The same approach, in my opinion, should
hold good when we deal with amendment relating to fundamental rights contained in Part III of
the Constitution. It would be impermissible to differentiate between scope and width of power of
amendment when it deals with fundamental rights and the scope and width of that power when it
deals with provisions not concerned with fundamental rights.
It would appear from the above that no distinction was made by me so far as the ambit and
scope of the power of amendment is concerned between a provision relating to fundamental rights
and provisions dealing with matters other than fundamental rights. The limitation inherent in the
word "amendment" according to which it is not permissible by amendment of the Constitution to
change the basic structure of the Constitution was to operate equally on articles pertaining to
fundamental rights as on other articles not pertaining to those rights. This was further made clear
by the following observations on page 688 : (SCC p. 769, para 1434)
"Subject to the retention of the basic structure or framework of the Constitution, I have no
doubt that the power of amendment is plenary and would include within itself the power to add,
alter or repeal the various articles including those relating to fundamental rights".
Proposition (vii) of the summary of my conclusions on page 758 of the judgment also bears it
out and the same reads as under : (SCC p. 824, para 1537)
" (vii) The power of amendment under Article 368 does not include power to abrogate the
Constitution nor does it include the power to alter the basic structure or framework of the
Constitution. Subject to the retention of the basic structure or framework of the Constitution, the
power of amendment is plenary and includes within itself the power to amend the various articles
of the Constitution, including those relating to fundamental rights as well as those which may be
said to relate to essential features. No part of a fundamental right can claim immunity from
amendatory process by being described as the essence or core of that right. The power of
amendment would also include within itself the power to add, alter or repeal the various articles".
252. It has been stated by me on page 685 (SCC p. 767) of the judgment (already reproduced
above) that the secular character of the State, according to which the State shall not discriminate
against any citizen on the ground of religion only cannot likewise be done away with. The above
observations show that the secular character of the Constitution and the rights guaranteed by
Article 15 pertain to the basic structure of the Constitution. The above observations clearly
militate against the contention that according to my judgment fundamental rights are not a part of
the basic structure of the Constitution. I also dealt with the matter at length to show that the right
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to property was not a part of the basic structure of the Constitution. This would have been wholly
unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution.
253. Before parting with this case I must acknowledge the assistance we received from the
learned Counsel for the parties as also from learned Attorney General and Solicitor General in
resolving the points of controversy. In spite of the political overtones, the case was argued
forcefully yet without generating any heat and in an atmosphere of befitting calmness. It has been
said by Holmes, J. that great cases like hard cases make bad law. For great cases are called great,
not by reason of their real importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest, which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of hydraulic pressure (National Securities Co.
v. U. S.). It, therefore, became essential to rid the case of all the embellishments resulting from the
political overtones and to bring it to a level which is strictly judicial, so that the various
constitutional and legal aspects of the matter may be examined
"That all constitutional interpretations have political consequences should not obliterate the
fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court
room, that judges in order to give legitimacy to their decision have to keep aloof from the din and
controversy of politics and that the fluctuating fortunes of rival political parties can have for them
only academic interest. Their primary duty is to uphold the Constitution and the laws without fear
or favour and in doing so, they cannot allow any political ideology or economic theory, which
may have caught their fancy, to colour the decision".
254. As a result of the above, I accept Appeal No. 887 of 1975 filed by Shrimati Indira Nehru
Gandhi, set aside the judgment of the High Court in so far as it has found the appellant guilty of
corrupt practice under Section 123(7) of the R. P. Act and has declared her election to the Lok
Sabha to be void. The order that the appellant shall accordingly stand disqualified for a period of
six years as provided in Section 8A would also consequently be set aside. The election petition
filed by the respondent shall stand dismissed. Appeal No. 909 of 1975 filed by Shri Raj Narain is
dismissed. Looking to all the circumstances, more particularly the fact that the election petition
filed by the respondent is being dismissed because of changes made in law during the pendency of
the appeal, the parties are directed to bear their own costs throughout.
MATHEW, J.
(concurring)- In the election petition filed by the respondent in Civil Appeal No. 887 of 1975
(hereinafter referred to as 'respondent'), seven charges of corrupt practice were made against the
appellant therein (hereinafter called the 'appellant') and it was prayed that the election of the
appellant be set aside. The learned Judge who tried the petition found that two of the charges had
been made out but that the rest of the charges were not substantiated. He set aside the election of
the appellant with the result that the appellant incurred the disqualification for a period of six
years as visualized in Section 8A of the Representation of the People Act, 1951. It is against this
judgment that Civil Appeal No. 887 of 1975 has been filed.
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256. The respondent has filed a cross appeal (Civil Appeal No. 909 of 1975) challenging the
findings of the High Court in respect of the other charges of corrupt practice.
257. During the pendency of these appeals, the Parliament passed the Election Laws
(Amendment) Act, 1975 on August 6, 1975 by which certain amendments were made in the
provisions of the Representation of the People Act, 1951, and the Indian Penal Code.
258. On August 10, 1975, the Parliament, in the exercise of its constituent power, passed the
Constitution (Thirty-ninth Amendment) Act, 1975 (hereinafter referred to as the 'Amendment').
By the amendment, Article 71 of the Constitution was substituted by a new article and that article
provided by clause (1) that, subject to the provisions of the Constitution, Parliament may, by law,
regulate any matter relating to or connected with the election of a President or Vice-President,
including the grounds on which such election may be questioned. By clause (2) of the article it
was provided that all doubts or Vice-President shall be inquired into and decided by such
authority or body in such manner as may be provided for by or under any law referred to in clause
(1). Clause (3) stated that the validity of any such law referred to in clause (1) and the decision of
any authority or body under such law shall not be called in question in any court.
259. By clause (4) of the amendment, Article 329-A was inserted reading as follows :
"329-A. Special provision as to elections to Parliament in the case of Prime Minister and
Speaker.- (1) Subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause (1)
of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of the Prime Minister at the
time of such election or is appointed as Prime Minister after such election;
(b) to the House of the People of a person who holds the office of a Speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provide for all
other matters relating to doubts and disputes in relation to such election including the grounds on
which such election may be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
office of the Speaker of the House of the People, while an election petition referred to in clause
(b) of Article 329 in respect of his election petition referred to in clause (b) of Article 329 in
respect of his election to either House of Parliament or, as the case may be, to the House of the
People is pending, such election petition shall abate upon such person being appointed as Prime
Minister or, as the case may be, being chosen to the office of the Speaker of the House of the
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People, but such election may be called in question under any such law as is referred to in clause
(1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith shall apply or shall be deemed ever to have applied to or in relation to the election of
any such person as is referred to in clause (1) to either House of Parliament and such election
shall not be deemed to be void or ever to have become or has, before such commencement, been
declared to be void under any such law and notwithstanding any order made by any court, before
such commencement, declaring such election to be void, such election shall continue to be valid in
all respects and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of not effect.
(5) Any appeal or cross appeal against any such order of any court as is referred to in clause
(4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975 before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
260. The respondent contended that clause (4) of Article 329A [hereinafter referred to as
'clause (4)'] is invalid for the reason that some of the basic structures of the Constitution have
been damaged by its enactment.
261. The argument was that although the amending body could declare that the election of the
appellant shall not be deemed to be void and the judgment of the High Court to be void on the
basis that no law relating to election petition and matters connected therewith would apply to the
election, yet the amending body could not have held the election to be valid as it did not ascertain
the facts relating to the election and apply the relevant law to them. Counsel submitted that by its
very nature, an election dispute in a democratic system of government raises questions which can
be decided only by the exercise of judicial power; that by retrospectively rendering the forum for
investigation into the complaints regarding the validity of the election of the appellant coram non
judice, and by the amending body judging its validity without ascertaining the facts and applying
the relevant law, the amendment has fundamentally damaged an essential feature of the
democratic structure of the Constitution, namely, free
262. Counsel also submitted that equality and rule of law are essential features of democracy;
that clause (4), by dispensing with the application of the law relating to election petition and
matters connected therewith to the appellant, made an unreasonable classification among persons
similarly situated with reference to the purpose of the law.
263. The further submission was, that separation of powers is a basic structure of the
Constitution and that if it be supposed that the amending body ascertained the facts regarding the
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election of the appellant and applied the relevant law, the exercise of that power by the amending
body would offend the doctrine of separation of powers and that, at any rate, this process would
not result in an amendment of the Constitution by enacting a law, but only in the passing of a
judgment or sentence which can never be characterized as a law, let alone a law relating to the
Constitution of India.
264. In His Holiness Kesawananda Bharati Sripadagalavaru v. State of Kerala (hereinafter
referred to as 'Bharati's case'), a majority of seven judges held that the power conferred under
Article 368 of the Constitution was not absolute. They took the view that, by an amendment, the
basic structure of the Constitution cannot be damaged or destroyed. And, as to what are the basic
structures of the Constitution, illustrations have been given by each of these judges. They include
supremacy of the Constitution, democratic republican form of government, secular character of
the Constitution, separation of powers among the Legislature, Executive and Judiciary, the federal
character of the Constitution, rule of law, equality of status and of opportunity; justice, social,
economic and political; unity and integrity of the nation and the dignity of the individual secured
by the various provisions of the Constitution. There was consensus among these judges that
democracy is a basic structure of the Constitution. I proce
265. Therefore, if by clause (4), any essential feature of the democratic republican structure of
our polity as visualized by the Constitution has been damaged or destroyed, the clause would be
ultra vires the Constitution.
266. One way of looking at the first part of clause (4) is that the amending body has, with
retrospective effect, repealed the law relating to election petition in respect of the persons
specified in clause (1) and hence the judgment rendered on the basis of the previous law relating
to election petition became automatically void, and the amending body was merely stating the
consequence of the retrospective repeal of the law and therefore the declaration that the judgment
was void was not an exercise of judicial function. On the other hand, it might be possible to view
the first part of clause (4) as an exercise of judicial power for the reason that, even assuming that
by virtue of the retrospective repeal of the law relating to election petition, there was no
jurisdiction in the High Court to entertain or try the election petition and pass the judgment, a
repeal simpliciter did not render the judgment ipso facto void and therefore, in making the
declaration that the judgment was void, the amending body was
267. Be that as it may, I feel no doubt that the amending body, when it declared the election
of the appellant to be valid, had to ascertain the adjudicative facts and apply the relevant norm for
adjudging its validity. If, however, the amending body did not ascertain the facts relating to the
election and apply the relevant norm, the declaration of the validity of the election was a fiat of a
sui generis character of the amending body.
268. The concept of democracy as visualized by the Constitution presupposes the
representation of the people in Parliament and State Legislatures by the method of election. And,
before an election machinery can be brought into operation, there are three requisites which
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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 (see
N. P. Ponnuswami v. Returning Officer, Namakkal Constituency).
269. Article 329(b) envisages the challenge to an election by a petition to be presented to such
authority as the Parliament may, by law, prescribe. A law relating to election should contain the
requisite qualifications for candidates, the method of voting, definition of corrupt practices by the
candidates and their election agents, the forum for adjudication of election disputes and other
cognate matters. It is on the basis of this law that the question whether there has been a valid
election has to be determined by the authority to which the petition is presented. And, when a
dispute is raised as regards the validity of the election of a particular candidate, the authority
entrusted with the task of resolving the dispute must necessarily exercise a judicial function, for,
the process consists of ascertaining the facts relating to the election and applying the law to the
facts so ascertained. In other words, it is obvious that a power must be lodged somewhere to
judge the validity of the election, for, othe
270. It was contended for the appellant that, in England, it was the House of Commons which
originally decided election disputes concerning its members, that it was only in 1770 that the
function was delegated to committees and, therefore, Parliament is the proper forum for deciding
election disputes of its was framed, the decision of an election dispute had ceased to be a privilege
of the House of Commons in England and therefore, under Article 105(3), it could not be a
privilege of Parliament in this country.
271. Before the year 1770, controverted elections were tried and determined by the whole
House of Commons as mere party questions upon which the strength of contending factions might
be tested.
"In order to prevent so notorious a perversion of justice, the House consented to submit the
exercise of its privilege to a tribunal constituted by law, which, though composed of its own
members, should be appointed so as to secure impartiality and the administration of justice
according to the laws of the land under the sanction of oaths."
The principle of the Grenville Act, and of others which were passed at different times since
1770, was the selection by lot of committees for the trial of election petitions. And, at present, by
Part III of the Representation of the People Act, 199, the trial of controverted elections is
confided to judges selected from the Judiciary in the appropriate part of the United Kingdom.
Provisions is made in each case for constituting a rota from whom these judges are selected. The
House has not cognizance of these proceedings until their determination, when the judges certify
their determination. The judges are to make a report in any case where a charge has been made in
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the petition of corrupt and illegal practice having been committed at an election; and they may
also make a special report on any matter arising which they think should be submitted to the
House.
272. Article 1, Section 5(1) of the Constitution of the United States of America provides that
each House shall be the judge of the elections, returns and qualifications of its own members.
273. In whichever body or authority the jurisdiction is vested, the exercise of the jurisdiction
must be judicial in character. This Court has held that in adjudicating an election dispute an
authority is performing a judicial function and a petition for leave to appeal under Article 136 of
the Constitution would lie to this Court against the decision notwithstanding the provisions of
Article 329(b) (see Durga Shankar Mehta v. Thakur Raghuraj Singh).
274. In Barry v. United States Ex. Rel. Cunningham, it was held that in exercising the power
to judge of the election returns and qualifications of members, the Senate acts as a judicial
tribunal.
275. It might be that if the adjudication of election disputes in respect of its members had been
vested in each of the Houses of Parliament by the Constitution, the decision of the House would
have been final. That would have been on the basis of the doctrine of the political question,
namely, that the function has been exclusively committed textually to another agency. I am aware
that the doctrine of political question has no hospitable quarter in this Court since the decision in
Madhav Rao Scindia v. Union. But I venture to think that the doctrine alone can explain why the
courts abstain from interfering with a verdict on an impeachment of the President for violation of
the Constitution, a function essentially judicial.
276. An election dispute has a public aspect in that it is concerned more with the right of a
constituency to be represented by a particular candidate. But it does not follow from the public
character of the controversy that there is no lis between the parties to the election contest, and
that the lis can be resolved otherwise than by ascertaining the facts relating to the election, and
applying the relevant law :
"A judicial inquiry investigates, declares and enforces liabilities as they stand on present or
past facts and under laws supposed already to exist. This is its purpose and end. Legislation, on
the other hand, looks to the future and changes existing conditions by making a new rule, to be
applied thereafter to all or some part of those subject to its power."
277. The Privy Council had occasion to consider this question in United Engineering Workers'
Union v. Devanayagam. The judgment of the majority was delivered by Lord Dilhorne. Lord
Guest and Lord Devlin dissented. The question in the case was whether the President of a labour
tribunal in Ceylon was the holder of a judicial office. If so, as the man in question has not been
appointed in the way the Constitution of Ceylon required for appointments of judicial officers,
whether the tribunal was without jurisdiction. It is clear from the judgment of their Lordships of
the minority that judicial power is the exercise of a power on the basis of pre-existing law. At pp.
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384-385, their Lordships said :
"Another characteristic of the judicial power is that it is concerned with existing rights, that is,
those which the parties actually have at the inception of the suit and not those which it may be
thought they ought to have; it is concerned with the past and the present and not with the future."
278. According to the historic analysis, the essence of the distinction between legislative
power and judicial power is that the Legislature makes new law which becomes binding on all
persons over whom the Legislature exercises legislative power : the Judicature applies already
existing law in the resolution of disputes between particular parties; and judges may not deviate
from this duty. This view of the distinction between the obligation to apply and enforce rules and
a discretion to modify rules or make new rules was at one time applied uncompromisingly in
describing functions as legislative or judicial. Thus De Lolme said that courts of equity as then
existing in England had a legislative function. They are, he said, a kind of inferior experimental
Legislature, continually employed in finding out and providing law remedies for those new species
of cases for which neither the courts of common law, nor the Legislature have as yet found it
convenient or establish any. Though this would show that neither fo
279. If, therefore, the decision of the amending body that the election of the appellant was
valid was the result of the exercise of judicial power or of despotic discretion governed solely by
considerations of political expediency, the question is, whether that decision, though couched in
the form of an enactment, can be characterized as an amendment of the Constitution.
280. The constituent power is the power to frame a Constitution. The people of India, in the
exercise of that power, framed the Constitution and it enacts the basic norms. By that instrument,
the people conferred on the amending body the power to amend by way of addition, variation or
repeal any of its provisions (Article 368). It is not necessary to go in detail into the question
whether the power to amend is coextensive with the constituent power of the people to frame a
Constitution. In Bharati's case, I said :
"...... under the Indian Constitution, the original sovereign- the people- created, by the
amending clause of the Constitution, a lesser sovereign, almost coextensive in power with itself.
The sovereign, the one established by the revolutionary act of the full or complete sovereign has
been called by Max Radin, the "pro-sovereign", the holder of the amending power under the
Constitution."
281. I fully appreciate that 'sovereign', if conceived of as an omnipotent being, has no
existence in the real world. Several thoughtful writers have deprecated the use of the expression
in legal discussion as it has theological and religious overtones. Nevertheless, as the practice has
become inveterate, it will only create confusion if any departure is made in this case from the
practice. If it is made clear that sovereign is not a 'mortal God' and can express himself or itself
only in the manner and form prescribed by law and can be sovereign only when in the manner and
form prescribed by law and can be sovereign only when he or it acts in a certain way also
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prescribed by law, then perhaps the use of the expression will have no harmful consequence.
"'Legal sovereignty' is a capacity to determine the actions of persons in certain intended ways
by means of a law... where the actions of those who exercise the authority, in those respects in
which they do exercise it, are not subject to any exercise by other persons of the kind of authority
which they are exercising."
282. The point to be kept in mind is that the amending body which exercises the constituent
power of the legal sovereign, though limited by virtue of the decision in Bharati's case (supra), can
express itself only by making laws.
283. The distinction between constitutional law and ordinary law in a rigid Constitution like
ours is that the validity of the constitutional law cannot be challenged whereas that of ordinary
law can be challenged on the touchstone of Constitution. But constitutional law is as much law as
ordinary law. A Constitution cannot consist of a string of isolated dooms. A judgment or sentence
which is the result of the exercise of judicial power or of despotic discretion is not a law as it has
not got the generality which is an essential characteristic of law. A despotic decision without
ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is
like a bill of attainder. It is a legislative judgment.
284. According to Blackstone, a law and a particular command are distinguished in the
following manner : a law obliges generally the members of a given community, or a law obliges
generally person of a given class. A particular command obliges a single person or persons, whom
it determines individually. Most of the laws established by political superiors are, therefore,
general in a two-fold manner : as enjoining or forbidding generally acts of kinds or sorts; and as
binding the whole community, or, at least, whole classes of its members. He then said :
"Therefore, a particular act of the Legislature to confiscate the goods of Titus, or to attaint
him of high treason, does not enter into the idea of a municipal law : for the operation of this act
is spent upon Titus only and has no relation to the community in general : it is rather a sentence
than a law."
This passage was cited with approval by the Privy Council in Liyanage v. Queen to show that
the end product of the exercise of judicial power is a judgment or sentence and not a law.
285. St. Thomas Aquinas (after considering the views of Aristotle, St. Augustine and the
opinions of jurists in pandects) has said that since the end of law is common good the law should
be framed not for private benefit but for the common good of all citizens.
286. Rousseau wrote :
"When I say that the object of laws is always general, I mean that the law considers subjects
collectively and actions as abstract; never a man as an individual, nor an action as particular....
neither is what the sovereign himself orders about a particular object a law but a decree; not an
act of sovereignty, but of magistracy."
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287. Austin draws an explicit distinction between 'laws' and 'particular commands.' Where a
command, he says, obliges generally to acts or forbearances of a class, a command is a law or
rule. But where it obliges to a specific act or forbearance, a command is occasional or particular.
288. Kelsen, after noting the distinction made by Austin has observed :
"We can of course recognize as law only general norms. But there is not doubt that law does
not consist of general norms only. Law includes individual norms, i.e., norms which determine the
behaviour of one individual in one non-recurring situation and which therefore are valid only for
one particular case and may be obeyed or applied only once."
According to him, such norms are valid law because they are parts of the legal order as a
whole in exactly the same sense as those general norms on the basis of which they have been
created. He said that particular norms are the decisions of courts as far as their binding force is
limited to the particular case at hand and that a judge who orders a debtor A to return $ 1000 to
his creditor B was passing a law.
289. It may be noted that Kelsen made no distinction between law-creation and
law-application. According to him, every act of applying the law involved the creation of norms.
In his view, there was not distinction between creation and application of law, a view I find
difficult to accept in the light of clear distinction made by the decisions of this Court between
legislative and judicial functions.
290. A statute is a general rule. A resolution by the Legislature that a town shall pay one
hundred dollars to Timothy Coggan is not a statute.
291. The mere fact that an Act to indemnify A or and Act sanctioning a pension to the
Speaker is passed by the House of Commons in England should not lead us to conclude that it is
law.
"The English Legislature was originally constituted, not for legislative, but for financial
purposes. Its primary function was, not to make laws, but to grant supplies."
292. J. C. Carter has said that statute books contains vast masses of matter which though in
the form of laws, are not laws in the proper sense, that these consist in the making of provisions
for the maintenance of public works of the State, for the building of asylums, hospitals, school
buses, and a great variety of similar matters, and that this is but the record of actions of the State
in relation to the business in which it is engaged. According to him, the State is a great public
corporation which conducts a vast mass of business, and the written provisions for this, though in
the form of laws, are not essentially different from the minutes of ordinary corporate bodies
recording their actions.
293. Walter Bagehot has said :
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"An immense mass, indeed of the legislation is not, in the proper language of jurisprudence,
legislation at all. A law is a general command applicable to many cases. The 'special acts' which
crowd the statute book and weary parliamentary committees are applicable to one case only. They
do not lay down rules according to which railways shall be made, but enact that such and such a
railway shall be made from this place to that place, and they have not bearing on any other
transaction."
"When the authors of books on jurisprudence write about law, when professional lawyers talk
about law, the kind of law about which they are mainly thinking is that which is found in
Justinian's Institutes, or in the Napoleonic Codes, or in the New Civil Code of the German
Empire, that is to say, the legal rule which relate to contracts and torts, to property, to family
relations and inheritance, or else to law of crimes as is to be found in a Penal Code."
294. John Locke was of the view that
'legislative authority is to act in a particular way..... (and) those who wield this authority
should make only general rules. They are to govern by promulgated established laws not to be
varied in particular cases'.
295. Perhaps the most exhaustive treatment of the question of the necessity for generality in
law is to be found in "Jurisprudence, Men and Ideas of the Law" by Patterson (see Chapter V).
According to him, the generality of a law depends upon its being applicable to an indefinite
number of human beings and that is the most significant aspect of law. He said that an ordinary
judgment of a court is not law as a judgment applies only to a limited number of individuals, the
parties to the case. He disagreed with Dr. Kelsen's statement that the judicial decision is an
individual legal norm as the expression 'individual legal norm' is a self-contradiction.
296. To Friedmann, the most essential element in the concept of law is a degree of generality :
"The first desideratum of a system for subjecting human conduct to the governance of rules is
an obvious one : there must be rules. This may be stated as a requirement of generality. Here as in
so many other fields, John Austin's distinction was basically right, but too rigidly drawn."
Friedmann was of the view that a community which had no general prescription at all, but only
an infinite multitude of individual commands, would not be regarded as having a legal order. It
would dissolve into millions of individual relationships.
297. For the purpose of this case I accept as correct the statement of Blackstone already
quoted and approved by the Privy Council in Liyanage v. Queen (supra). I cannot regard the
resolution of an election dispute by the amending body as law : It is either a judicial sentence or a
legislative judgment like a Bill of Attainder.
298. It is no doubt true that the House of Commons in England used to pass bills of attainder.
But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act
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of the Legislature, as inflict capital punishments upon persons supposed to be guilty of high
offences, such as treason and felony, without any conviction in the ordinary course of judicial
proceedings. The Legislature assumes judicial magistracy, pronouncing upon the guilt of the party
without any of the common forms and guards of trial, and satisfying itself with proofs, when such
proofs are within its reach, whether they are conformable to the rules of evidence or not. In short,
in all such cases, the Legislature exercises the highest power of sovereignty, and what may be
properly deemed an irresponsible despotic discretion, being governed solely by what it deems
political necessity or expediency, and too often under the influence of unreasonable fears, or
unfounded suspicions.
299. In U. S. v. Brown the Supreme Court of United States of America stated that the main
reason why the power to pass bill of attainder was taken away from the Congress was :
"Everyone must concede that a legislative body, from its numbers and organisation, and from
the very intimate dependence of its members upon the people, which renders them liable to be
peculiarly susceptible to popular clamour, is not properly constituted to try with coolness,
caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is
strongly excited- the very class of cases most likely to be prosecuted by this mode."
Much the same reason will apply to the resolution of an election dispute by an amending body
as it consists, in all democratic countries, of an assembly of persons like Parliament.
300. In Liyanage v. Queen (supra) the appellants had been charged with offences arising out
of an abortive coup d'etat on January 27, 1962. The story of the coup d'etat was set out in a
White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law (Special
Provisions) Act was passed and it was given retrospective effect from January 1, 1962. The Act
was limited in operation to those who were accused of offences against the State in or about
January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting
trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet
the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate
the three judges to try the appellants without a jury. The validity of the Act was challenged as well
as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon
Supreme Court upheld the objection about the vires of some of the provis
301. The Privy Council said in the course of their judgment that the pith and substance of the
law enactments was a legislative plan ex post facto to secure the conviction, that although
legislation ad hominem which is directed to the course of particular proceedings may not always
amount to an interference with the functions of the Judiciary, but in the present case they had no
doubt that there was such interference; that it was not only the likely but the intended effect of the
impugned enactments and that it was fatal to their validity. They further said that the true nature
and purpose of these enactments were revealed by their conjoint impact on the specific
proceedings in respect of which they were designed, and they took their colour, in particular from
the alterations they purported to make as to their ultimate objective- the punishment of those
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convicted- and that these alterations constituted a grave and deliberate incursion into the judicial
sphere and then, they quoted with approval the observa
302. At the time when the amendment was passed, the appeal filed by the appellant and the
cross appeal of the respondent were pending before the Supreme Court. Clause (4) was legislation
ad hominem directed against the course of the hearing of the appeals on merits as the appeal and
the cross appeal were to be disposed of in accordance with that clause and not by applying the
law to the facts as ascertained by the court. This was a direct interference with the decision of
these appeals by the Supreme Court on their merits by a legislative judgment.
303. If the amending body really exercised judicial power, that power was exercised in
violation of the principles of natural justice of audi alteram partem. Even if a power is given to a
body without specifying that the rules of natural justice should be observed in exercising it, the
nature of the power would call for its observance.
304. The Solicitor General contended that the amending body, in declaring that the election
was valid, was exercising its constituent legislative power; that legislative power does not
adjudicate but only creates validity, even retrospectively, by enacting a law with that effect; that
validation is law-making; that it alters the legal position by making new law and that validation
may take place before or after a judgment. He said that by the repeal of the provisions of the
Representation of the People Act, 1951, the amending body had wiped out not only the election
petition but also the judgment of the High Court and had deprived the respondent of the right to
raise any dispute as regards the validity of the election of the appellant and, therefore, there was
no dispute to be adjudicated upon by the amending body. He also said- I think, in the alternativethat
although the law relating to election petitions and other matters connected therewith was
dispensed with in respect of the appellant, the amending
305. It is difficult to understand, when the amending body expressly excluded the operation of
all laws relating to election petition and matters connected therewith by the first part of clause (4),
what ideal norms of free and fair election it had in view in adjudging the validity of the election of
the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the law
enacted by the appropriate Legislatures. If the amending body evolved new norms for adjudging
the validity of the particular election, it was the exercise of a despotic power and that would
damage the democratic structure of the Constitution.
306. Quite apart from it, there is nothing on the face of the amendment to show that the
amending body ascertained the facts of the case or applied any norms for determining the validity
of the election. I do not think that under Article 368 the amending body was competent to pass an
ordinary law with retrospective effect to validate the election. It can only amend the Constitution
by passing a law of the rank of which the Constitution is made of.
307. There is also nothing to show that the amending body validated the election with
reference to any change of the law which formed the foundation of the judgment. The cases cited
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by the Solicitor General to show that a competent Legislature has power to validate an invalid
election do not indicate that there can be a validation without changing the law which invalidated
the election. Nor do I think that a contested election can be validated without an authority
applying the new law to the facts as ascertained by judicial process. If the court which ascertained
the facts and applied the law was rendered coram non judice, the facts ascertained by it have
ceased to be facts. There are no absolute or immediately evident facts. Only by being first
ascertained through legal procedure are facts brought into the sphere of law or, we may say,
though it may sound paradoxical, that the competent organ legally created facts. The courts
perform a constitutive function in ascertaining facts. There is no fact 'in itself
308. If clause (4) was an exercise in legislative validation without changing the law which
made the election invalid, when there ought to have been an exercise of judicial power of
ascertaining the adjudicative facts and applying the law, the clause would damage the democratic
structure of the Constitution, as the Constitution visualizes the resolution of an election dispute by
a petition presented to an authority exercising judicial power. The contention that there was no
election dispute as clause (4) by repealing the law relating to election petition had rendered the
petition filed by the respondent non est, if allowed, will toll the death knell of the democratic
structure of the Constitution. If Article 329(b) envisages the resolution of an election dispute by
judicial process by a petition presented to an authority as the appropriate Legislature may by law
provide, a constitutional amendment cannot dispense with that requirement without damaging an
essential feature of democracy, viz., the mechanism fo
309. All the cases cited by the Solicitor General pertain either to legislative validation of a
void election by applying a new law to undisputed facts or to the removal of an admitted
disqualification by a law with retrospective effect.
310. In Abeyesekera v. Jayatilake, the facts were : An order in council of 1923 made
provision as to the Legislative Council in Ceylon, but reserved to His Majesty power to revoke,
alter or amend the order. The appellant, as common informer, brought an action to recover
penalties under the Order from the respondent, who he alleged had sat and voted after his seat had
become vacant under its provisions by reason of his having a pecuniary interest in a contract with
the Government. In 1928, after the action had been brought but before its trial, an amending
Order in Council was made which provided :
"If any such action or legal proceeding has been or shall be instituted, it shall be dismissed and
made void, subject to such order as to costs as the Court may think fit to make."
It also amended the Order of 1923 so as to except the officer held by the respondent from its
operation. The Privy Council held that the Order of 1928 was valid, having regard to the power
reserved by the Order of 1923, and was an effective defence to the action, although it was
retrospective in its operation and that this was no exercise of judicial power. The direction to
dismiss must be understood in the light of an earlier provision in the same Order in Council which
amended the law on which the proceeding was founded; the dismissal was thus the result of the
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change in the law and all that the later clause showed was that the change was to have
retrospective effect and govern the rights of parties even in pending proceedings. The decision
would be helpful here only if an in so far as the provision in clause (4) had followed from a change
in any rule of law.
311. The decision in Piare Dusadh v. King Emperor concerned the validation of a sentence
imposed by a special criminal court which was held to have no jurisdiction to try the case by an
order of a court. By a validation Act, the jurisdiction was conferred with retrospective effect on
the special criminal court and the sentence imposed by it was made lawful. It was held that there
was no exercise of any judicial power by the legislating authority.
312. In Kanta Kathuria v. Manak Chand Surana, the appellant, a government advocate stood
for election to the State Legislative Assembly of Rajasthan and was declared elected. The election
was challenged and the ground of challenge was that the appellant held an office of profit within
the meaning of Article 191 of the Constitution. The High Court set aside the election for that
reason. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring
among others that the holder of the office being a member of the State Legislative Assembly; and,
by Section 2(2), the Act was made retrospective removing the appellant's disqualification
retrospectively. It was held that Act 5 of 1969 had removed the disqualification retrospectively,
that Parliament and the State Legislatures can legislate retrospectively subject to the provisions of
the Constitution, that no limitation on the powers of the Legislature to make a declaration
validating an election could be put, and that, by enacting the im
313. In State of Orissa v. Bhupendra Kumar Bose, the facts were as follows : Elections were
held for the Cuttack municipality and 27 persons were declared elected as councillors. One B,
who defeated at the elections, filed a writ petition before the High Court challenging the elections.
The High Court held that the electoral rolls had not been prepared in accordance with the
provisions of the Orissa Municipalities Act, 1950, as the age qualification had been published too
late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21
days as prescribed; consequently, the High Court set aside the elections. The State took the view
that the judgment affected not merely the Cuttack municipality but other municipalities also.
Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack
municipality and validating the electoral rolls prepared in respect of other municipalities.
Thereupon, B filed a writ petition before the High Court contending
314. This Court held that Section 3(1) of the Ordinance effectively removed the defects in the
electoral rolls found by the High Court by its judgment and that it successfully cured the invalidity
of the electoral roll and of the elections to the Cuttack municipality.
315. The Solicitor General also cited other decisions to show that a Legislature can validate
proceedings rendered invalid by judgment of court. As I said, they all involved substitution of new
law with retrospective effect for the old one and the basic facts were all taken to have been
admitted or not controverted. If the facts are not admitted, the Legislature cannot determine them
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except by employing judicial process. Besides, those cases being cases of legislative validation,
need not pass the test of the theory of basic structure which, I think, will apply only to
constitutional amendment.
316. Counsel for the appellant also brought to the notice of the Court certain election
validation Acts passed by the House of Commons in England. These Acts removed with
retrospective effect disqualifications of members of Parliament. In none of these cases was an
election which was being contested validated by Parliament. Nor can these instances of legislative
removal of disqualification furnish any assistance to this Court for the reason that in England there
is no theory of basic structure operating as a fetter on the power of Parliament.
317. It was argued for the respondent that if the amending body exercised judicial power and
held the election of the appellant valid, its act was unconstitutional also on the ground it damaged
another basic structure of the Constitution, namely, the doctrine of separation of powers.
318. The major problem of human society is to combine that degree of liberty without which
law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty
has been to discover the practical means of achieving this grand objective and to find the
opportunity for applying these means in the ever-shifting tangle of human affairs. A large part of
the effort of man over centuries has been expended in seeking a solution of this great problem. A
region of law, in contrast to the tyranny of power, can be achieved only through separating
appropriately the several powers of government. If the law-makers should also be the constant
administrators and dispensers of law and justice, then, the people would be left without a remedy
in case of injustice since no appeal can lie under fiat against such a supremacy. And, in this
age-old search of political philosophers for the secret of sound government, combined with
individual liberty, it was Montesquieu who first saw the light. He was the f
319. There can be no liberty where the legislative and executive powers are united in the same
person or body of magistrates, or, if the power of judging be not separated from the legislative
and executive powers. Jefferson said :
All powers of government- legislative, executive and judicial- result in the legislative body.
The concentration of these powers in the same hands is precisely the definition of despotic
government. It will be no alleviation that these powers will be exercised by a plurality of hands
and not by a single person. One hundred and seventy-three despots would surely be as oppressive
as one.
And, Montesquieu's own words would show that where the whole power of one department is
exercised by the same hands which possess the whole power of another department, the
fundamental principles of a free Constitution are subverted. In Federalist No. 47, James Madison
suggests that Montesquieu's doctrine did not mean that separate departments might have "not
partial agency in or no control over the acts of each other. " His meaning was, according to
Madison, no more than that one department should not possess the whole power of another.
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320. The Judiciary, said the Federalist, is beyond comparison the weakest of the three
departments of power. It has no influence over either the sword or the purse; no direction either
of the strength or of the wealth of the society and can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely judgment. Of the three powers
Montesquieu said, the Judiciary is in some measure next to nothing. If he realised the relative
weakness of the Judiciary at the time he wrote, it is evidence of his vision that he appreciated the
supreme importance of its independence. There is no liberty, he said, if the judicial power to be
separated from the legislative and executive.
321. But this doctrine which is directed against the concentration of these powers in the same
hand has no application as such when the question is whether an amending body can exercise
judicial power. In other words, the doctrine is directed against the concentration of these
sovereign powers in one or other organ of Government. It was not designed to limit the power of
a constituent body.
322. Whereas in the United States of America and in Australia, the judicial power is vested
exclusively in courts, there is no such exclusive resting of judicial power in the Supreme Court of
India and the courts subordinate to it. And if the amending body exercised judicial power in
adjudging the validity of the election, it cannot be said that by that act, it has damaged a basic
structure of the Constitution embodied in the doctrine of separation of powers. Even so, the
question will remain whether it could exercise judicial power without passing a law enabling it to
do so. As I said, the exercise of judicial power can result only in a judgment or sentence. The
constituent power, no doubt, is all-embracing, comprising within its ambit the judicial, executive
and legislative powers. But if the constituent power is a power to frame or amend a Constitution,
it can be exercised only by making laws of a particular kind.
323. The possession of power is distinct from its exercise. The possession of legislative power
by the amending body would not entitle it to pass an ordinary law, unless the Constitution is first
amended by passing a constitutional law authorizing it to do so. In the same way, the possession
of judicial power by the amending body would not warrant the exercise of the it to do so. Until
that is done, its potential judicial power would not become actual. Nobody can deny that by
passing a law within its competence, Parliament can vest judicial power in any authority for
deciding a dispute or vest a part of that power in itself for resolving a controversy, as there is no
exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of
powers which is directed against the concentration of the whole or substantial part of the judicial
power in the Legislature or the Executive would not be a bar to the vesting of such a power in
itself. But, until a law is passed enabling it to do so
324. Lord Coke objected to the exercise of judicial power by James I for pragmatic reasons.
Much of what Lord Coke said can be applied to Parliament when it seeks to exercise that power
in its constituent capacity.
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325. A sovereign in any system of civilized jurisprudence is not like an oriental despot who
can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of
Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a
firman has no relevance when we are considering how a pro-sovereign- the holder of the
amending power- in a country governed by a Constitution should function. Such a sovereign can
express 'himself' only by passing a particular kind of law; and not through sporadic acts.'He'
cannot pick and choose cases according to his whim and dispose them of by administering
'cadi-justice'; nor can the amending body, as already noticed, pass an ordinary law, as Article 368
speaks of the constituent power of amending by way of addition, variation or repeal, any
provision of the Constitution in accordance with the procedure laid down in that article. An
ordinary law can be passed by it only after amending the provisions of the Constitution auth
326. If the basic postulate that a sovereign can act only by enacting laws is correct, then that is
a limitation upon his power to do anything he likes. If I may rephrase the classical statement of Sir
Owen Dixon : The law that a sovereign can act only by law is supreme but as to what may be
done by a law so made, the sovereign is supreme over that law. Of course, this is subject to the
theory of basic structure. In other words, even though a sovereign can act only by making law,
the law he so makes may vest the authority to exercise judicial power in himself; without such law
he cannot exercise judicial power.
327. The result of the discussion can be summed up as follows : Our constitution, by Article
329(b) visualizes the resolution of an election dispute on the basis of a petition presented to such
authority and in such manner as the appropriate Legislature may, by law, provide. The nature of
the dispute raised in an election petition is such that it cannot be resolved except by judicial
process, namely, by ascertaining the facts relating to the election and applying the pre-existing
law; when the amending body held that the election of the appellant was valid, it could not have
done so except by ascertaining the facts by judicial process and by applying the law. The result of
this process would not be the enactment of constitutional law but the passing of a judgment or
sentence. The amending body, though possessed of judicial power, had not competence to
exercise it, unless it passed a constitutional law enabling it to do so. If, however, the decision of
the amending body to hold the election of the appellant v
328. Then I come to the argument of Counsel that equality is a basic structure of the
Constitution and that that has been damaged or destroyed by clause (4).
329. The Solicitor General submitted that the majority in Bharati's case (supra) did not hold
that Article 14 pertains to the basic structure, that apart from Article 14, there is no principle of
equality which is a basic structure of the Constitution and that it is not a chameleon-like concept
which changes its colour with the nature of the subject-matter to which it is applied.
330. The majority in Bharati's case (supra) did not hold that Article 14 pertains to the basic
structure of the Constitution. The majority upheld the validity of the first part of Article 31-C; this
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would show that a constitutional amendment which takes away or abridges the right to challenge
the validity of an ordinary law for violating the fundamental right under that article would not
destroy or damage the basic structure. The only logical basis for supporting the validity of Articles
31-A, 31-B and the first part of 31-C is that Article 14 is not a basic structure.
331. Counsel for the respondent, however, submitted that even if Article 14 does not pertain
to basic structure, equality is an essential feature of democracy and rule of law and that clause (4),
by dispensing with the application of the law relating to election petition and matters connected
therewith to the appellant and another has made an unreasonable distinction between persons
similarly situated and has thereby damaged or destroyed that essential feature, and therefore, the
clause is bad. He said that in so far as laws are general instructions to act or refrain from acting in
certain ways in specified circumstances enjoined upon persons of a specified kind, they enjoin
uniform behaviour in identical cases; that to fall under a law is pro tanto to be assimilated to a
single pattern; and that a plea for rule of law in this sense is, in essence, a plea for life in
accordance with laws as opposed to other standards, namely, the ad hoc dispensation from its
operation. He argued that if some persons, for no
332. Democracy proceeds on two basic assumptions : (1) popular sovereignty in the sense
that the country should be governed by the representatives of the people; that all power came
from them; at their pleasure and under their watchful supervision it must be held; and (2) that
there should be equality among the citizens in arriving at the decisions affecting them.
333. Today, it is impossible to conceive of a democratic republican form of government
without equality of citizens. It is true that in the republics of Athens and Rome there were slaves
who were regarded as chattels. And, even in the United States of America, there was a republic
even before the Negroes were enfranchised. Our Constitution envisages the establishment of a
democratic republican form of government based on adult suffrage.
334. Equality is a multi-coloured concept incapable of a single definition. It is a notion of
many shades and connotations. The preamble of the Constitution guarantees equality of status and
of opportunity. They are nebulous concepts. And I am not sure whether they can provide a solid
foundation to rear a basic structure. I think the types of equality which our democratic republic
guarantees are all subsumed under specific articles of the Constitution like Articles 14, 15, 16, 17,
25 etc., and there is no other principle of equality which is an essential feature of our democratic
polity.
335. In the opinion of some of the judges constitution the majority in Bharati's case (supra),
rule of law is a basic structure of the Constitution apart from democracy.
336. The rule of law postulates the pervasiveness of the spirit of law throughout the whole
range of government in the sense of excluding arbitrary official action in any sphere.'Rule of law'
is an expression to giver reality to something which is not readily expressible. That is why Sir Ivor
Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual and
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has as its object, the harmonizing of the opposing notions of individual liberty and public order.
The notion of justice maintains the balance between the two; and justice has a variable content.
Dicey's formulation of the rule of law, namely,
"the absolute supremacy or predominance of regular law, as opposed to the influence of
arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide
discretionary authority on the part of the government"
has been discarded in the later editions of his book. That is because it was realized that it is
not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends,
discretion begins and the exercise of discretion may mean either beneficence or tyranny, either
justice or injustice, either reasonableness or arbitrariness. There has been no government or legal
system in world history which did not involve both rules and discretion. It is impossible to find a
government of laws alone and not of men in the sense of eliminating all discretionary powers. All
governments are governments of laws and of men. Jerome Frank has said :
"This much we can surely say : For Aristotle, from whom Harrington derived the notion of a
government of laws and not of men, that notion was not expressive of hostility to what today we
call administrative discretion. Nor did it have such a meaning for Harrington".
733. Another definition of rule of law has been given by Friedrich A. Hayek in his books :
"Road of Serfdom" and "Constitution of Liberty". It is much the same as that propounded by the
Franks Committee in England :
"The rule of law stands for the view that decisions should be made by the application of
known principles or laws. In general such decisions will be predictable, and the citizen will know
where he is. On the other hand there is what is arbitrary. A decision may be made without
principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in
accordance with the rule of law".
338. This Court said in Jaisinghani v. Union of India that the rule of law from one point of
view means that decisions should be made by the application of known principles and rules, and,
in general, such decisions should be predictable and the citizen should know where he is.
339. This exposition of the rule of law is only the aspiration for an ideal and it is not based on
any down-to-earth analysis of practical problems with which a modern Government is confronted.
In the world of action, this ideal cannot be worked out and that is the reason why this exposition
has been rejected by all practical men.
340. If it is contrary to the rule of law that discretionary authority should be given to
government departments or public officers, then there is no rule of law in any modern State. A
judge who passes a sentence has no other guidance except a statute which says that the person
may be sentenced to imprisonment for a term which may extend to, say, a period of ten years. He
must exercise considerable discretion. The High Courts and the Supreme court overrule their
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precedents. What previously announced rules guide them in laying down the new precedents ? A
court of law decides a case of first impression; no statute governs, no precedent is applicable. It is
precisely because a judge cannot find a previously announced rule that he becomes a legislator to
a limited extent. All these would show that it is impossible to enunciate the rule of law which has
as its basis that no decision can be made unless there is a certain rule to govern the decision.
341. Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule
of law and that concept implies equality before the law or equal subjection of all classes to the
ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find
specific provisions in the Constitution embodying the constituent elements of the concept. I
cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic
structure, it must be a terrestrial concept having its habitat within the four corners of the
constitution. The provisions of the Constitution were enacted with a view to ensure the rule of
law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the
constituent elements of the concept must be gathered from the enacting provisions of the
Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in
Article 14. May be, the other articles referred to do the same duty
342. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the
equal protection clause of the Fourteenth Amendment to the American Federal Constitution. In
State of Bengal v. Anwar Ali Sarkar, Patanjali Sastri, C.J. observed that the first part of the article
which has been adopted from the Irish Constitution, is a declaration of equality of the civil rights
of all persons within the territories of India and thus enshrines what American judges regard as the
"basic principle of republicanism" and that the second part which is a corollary of the first is based
on the last clause of the first section of the Fourteenth Amendment of the American Constitution.
So, the concept of equality which is basic to rule of law and that which is regarded as the most
fundamental postulate of republicanism are both embodied in Article 14. If, according to the
majority in Bharati's case (supra), Article 14 does not pertain to basic structure of the
Constitution, which is the other principle of equa
343. I think clause (4) is bad for the reasons which I have already summarized. Clause (1) to
(3) of Article 329-A are severable but I express no opinion on their validity as it is not necessary
for deciding this case.
344. Then the question is, whether the Representation of the People (Amendment) Act, 1974,
and the Election Laws (Amendment) Act, 1975, are liable to be challenged for the reason that
they damage or destroy a basic structure of the Constitution. Counsel for the respondent
submitted that, if, by a constitutional amendment, the basic structure of the Constitution cannot be
destroyed or damaged, it would be illogical to assume that an ordinary law passed under a power
conferred by that instrument can do so and since these Acts damage the concept of free and fair
election, the Acts were bad.
345. I think the inhibition to destroy or damage the basic structure by an amendment of the
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Constitution flows from the limitation on the power of amendment under Article 368 read into it
by the majority in Bharati's case (supra) because of their assumption that there are certain
fundamental features in the Constitution which its makers intended to remain there in perpetuity.
But I do not find any such inhibition so far as the power of Parliament or State Legislatures to
pass laws is concerned. Article 245 and 246 give the power and also provide the limitation upon
the power of these organs to pass laws. It is only the specific provisions enacted in the
Constitution which could operate as limitation upon that power. The preamble, though a part of
the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets
out the ideological aspirations of the people. The essential features of the great concepts set out in
the preamble are delineated in the various provisions of the Con
346. I do not think that an ordinary law can be declared invalid for the reason that it goes
against the vague concepts of democracy; justice, political, economic an social; liberty of thought,
belief and expression; or equality of status and opportunity, or some invisible radiation from them.
".... (N) o political terms have been so subjected to contradictory definitions as 'democracy'
and 'democratic' since it has become fashionable and profitable for every and any State to style
itself in this way. The Soviet Union and communist States of Eastern Europe, the Chinese
People's Republic, North Korea and North Vietnam all call themselves democracies. So does
Nasser's Egypt; so does General Stoessner's Paraguay; so did Sukarno's Indonesia. Yet, if
anything is clear, it is that these States do not all meet the same definition of democracy".
Definitions are important, for, they are responsible in the last analysis for our image of
democracy. The question is not only what does the word 'democracy' mean but also what is the
thing. And, when we try to answer this latter query, we discover that the thing does not
correspond to the word. So, although 'democracy' has a precise literal meaning, that does not
really help us to understand what an actual democracy is. In the real world, R. A. Dahl has
pointed out that, democracies are 'polyarchies'. The term democracy has not only a descriptive or
denotative function but also a normative and persuasive function. Therefore, the problem of
defining democracy is twofold, requiring both a descriptive and prescriptive function. To avoid
pitfalls, it is necessary to keep in mind two things- first, that a firm distinction should be made
between the is and the ought of democracy, and, second, that the prescriptive and the descriptive
definitions of democracy must not be confused, because the democratic ideal doe
347. Nor can it be tested on the touchstone of justice. The modern Pilate asks : What is
justice? and stays not for an answer. To Hans Kelsen, justice is an irrational ideal, and regarded
from the point of rational cognition, he thinks there are only interests and hence conflict of
interest. Their solution, according to him, can be brought about by an order that satisfies one
interest at the expense of the other or seeks to achieve a compromise between opposing interests.
Mr. Allen has said that the concept of social justice is vague and indefinite. Liberty of thought,
expression, belief, faith and worship are not absolute concepts. They are emotive words. They
mean different things to different people. Equality of status and of opportunity are concepts laden
with emotional overtones. In their absoluteness they are incapable of actual realisation. The
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enacting provisions in the body of the Constitution alone give concrete shape to these ideas and it
is on the basis of these provisions that the validity of or
348. The democracy which our Constitution-makers established is based on the representation
of the people in the law-making organs. The method by which this representation has to be
effectuated has been provided in the Constitution. Part XV of the Constitution deals with the
topic of elections. Article 326 provides that elections to the House of the People and to the
legislative assemblies of States should be on the basis of adult suffrage. Articles 327 and 328
provide for making of laws with respect to all matters relating to, or in connection with, elections
to either House of Parliament or to the House or either House of the Legislature of a State
including the preparation of electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses. The validity of any law
relating to the delimitation of constituencies or the allotment of seats to the constituencies, made
or purporting to be made under Article 327 or Article 328 shall not
349. This would indicate that the constitution has entrusted the task of framing the law
relating to election to Parliament, and, subject to the law made by Parliament, to the State
Legislatures, An important branch of the law which sounds in the area of free and fair election,
namely, delimitation of constituencies and allotment of seats to such constituencies is put beyond
the cognizance of court. When it is found that the task of writing the legislation on the subject has
been committed to Parliament and State Legislatures by the Constitution, is it competent for a
court to test its validity on the basis of some vague norms of free and fair election? I think not. As
I said, like other laws made by Parliament or State Legislatures, the laws made under Articles 327
and 328 are liable to be tested by Part III of the Constitution or any other provision of the
Constitution; but it is difficult to see how these laws could be challenged on the ground that they
do not conform to some ideal notions of free and fai
350. The doctrine of the 'spirit' of the Constitution is a slippery slope. The courts are not at
liberty to declare an Act void, because, in their opinion, it is opposed to the spirit of democracy or
republicanism supposed to pervade the Constitution but not expressed in words. When the
fundamental law has not limited, either in terms or by necessary implication, the general powers
conferred upon the Legislature, we cannot declare a limitation under the notion of having
discovered some ideal norm : of free and fair election.
351. Cooley has observed that courts are not at liberty to declare statutes void because they
appear to the minds of the judges to violate fundamental principles of republican government,
unless it shall be found that those principles are placed beyond legislative encroachment by the
Constitution. The principles of democratic republican government are not a set of inflexible rules;
and unless they are specifically incorporated in the Constitution, no law can be declared bad
merely because the Court thinks that it is opposed to some implication drawn from the concept.
352. Counsel for the respondent relied upon the observations of Sikri, C.J. at p. 216 (SCC p.
405, para 475), Shelat and Grover, JJ. at p. 292 (SCC p. 463, para 608). Hegde and Mukherjea,
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JJ. at p. 335 (SCC p. 511, para 742) and Jaganmohan Reddy, J. at p. 556 (SCC p. 667, para
1212) in their judgments in Bharati's case (supra) in support of his contention that when these
Acts were put in the Ninth Schedule by the constitutional amendment, their provisions became
vulnerable to attack if they or any one of them damaged or destroyed the basic features of
democracy or republicanism.
353. Sikri, C.J. has said that the constitution Twenty-ninth Amendment Act, 1971, is
ineffective to protect the impugned Acts there if they abrogate or take away fundamental rights.
This would not show that the learned Chief Justice countenanced any challenge to an Act on the
ground that the basic structure of the Constitution has been damaged or destroyed by its
provisions not constituted by the fundamental rights abrogated or taken away. In other words, if
by taking away or abridging the fundamental rights, the basic structure of the Constitution is
damaged or destroyed, then, according to the learned Chief Justice, the legislation would be
vulnerable on that score, even though it is put in the Ninth Schedule by a constitutional
amendment. But it would not follow that an Act so put can be challenged for a reason not
resulting from the taking away or abrogation of the fundamental right. To put it differently, even
though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would
354. Shelat and Grover, JJ. have said in their judgment that the Twenty-ninth Amendment is
valid, but the question whether the Acts included in the Ninth Schedule by that amendment or any
provision of those Acts abrogates any of the basic elements of the constitutional structure or
denudes them of their identity will have to be examined when the validity of those Acts comes up
for consideration. Similar observations have been made by Hegde and Mukherjea, JJ. and by
Jaganmohan Reddy, J. Khanna, J. only said that the Twenty-ninth Amendment was valid.
355. It is rather strange that an Act which is put in the Ninth Schedule with a view to obtain
immunity from attack on the ground that the provisions thereof violate the fundamental rights
should suddenly become vulnerable on the score that they damage or destroy a basic structure of
the Constitution resulting not from the taking away or abridgment of the fundamental rights but
for some other reason.
356. There is no support from the majority in Bharati's case (supra) for the proposition
advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held
bad or for the proposition that a constitutional amendment putting an Act in the Ninth Schedule
would make the provisions of the Act vulnerable for the reason that they damage or destroy a
basic structure constituted not by the fundamental rights taken away or abridged but some other
basic structure. And, in principle, I see no reason for accepting the correctness of the proposition.
357. The Constitution-makers eschewed to incorporate the 'due process' clause in that
instrument apprehending that the vague contours of that concept will make the court a third
chamber. The concept of a basic structure as brooding ominpresence in the sky apart from the
specific provisions of the Constitution constituting it is too vague and indefinite to provide a
yardstick to determine the validity of an ordinary law.
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358. So if it be assumed that these election laws amendment Acts, even after they were put in
the Ninth Schedule by constitutional amendment remained open to attack for contravention, if
any, of the fundamental rights, these Acts would not be open to attack on the ground that their
provisions destroyed or damaged an essential feature of democracy, namely, free and fair election.
The Acts remain part of the ordinary law of the land. They did not attain the status of
constitutional law merely because they were put in the Ninth Schedule. The utmost that can be
said is, as I indicated, that even after putting them in the Ninth Schedule, their provisions would
be open to challenge on the ground that they took away or abrogated all or any of the
fundamental rights and therefore damaged or destroyed a basic structure if the fundamental rights
or right taken away or abrogated constitute or constitutes a basic structure.
359. Counsel for the respondent then contended that retrospective operation has been given to
the provisions of these Acts and that that would destroy or damage an essential feature of
democracy viz, free and fair elections. The argument was that if one set of laws existed when an
election was held and the result announced, you cannot thereafter substitute another set of laws
and say that those laws must be deemed to have been in operation at the time when the election
was held and the result announced, as that would lead to inequality, injustice and unfairness.
360. Retrospective operation of law in the field of election has been upheld by this Court [see
Kanta Kathuria v. Manak Chand (supra)]. Retrospective operation of any law would cause
hardship to some persons or other. This is inevitable; but that is no reason to deny to the
Legislature the power to enact retrospective law. In the case of a law which has retrospective
effect, the theory is that the law was actually in operation in the past and if the provisions of the
Acts are general in their operation, there can be no challenge to them on the ground of
discrimination or unfairness merely because of their retrospective effect. In other words, if an Act
cannot be challenged on the ground that its provisions are discriminatory or unreasonable if it is
prospective in operation, those provisions cannot be attacked on these grounds merely because
the provisions were given retrospective effect, unless there are special circumstances. I see no
such special circumstances here.
361. I therefore hold that these Acts are not liable to be challenged on any of the grounds
argued by Counsel.
362. Counsel for the respondent submitted that the session of Parliament in which the Election
Laws Amendment Act, 1975 and the Thirty-ninth amendment to the Constitution were passed
was not properly convened and therefore the amendments were invalid.
363. The argument was that a number of members of the two Houses of Parliament were
illegally detained by executive orders before the summoning of the two Houses and that was made
possible by the President- the authority to summon the two Houses- making an order under
Article 359 of the Constitution on June 27, 1975, which precluded these members from moving
the court and obtaining release from illegal detention and attending the session. In effect, the
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contention of Counsel was that the authority to summon Parliament effectually prevented by its
order made under Article 359, those members who were illegally detained from attending the
session and, as the composition of the session was unconstitutional, any measure passed in the
session would be bad. Reliance was placed by Counsel upon the decision in A. Nambiar v. Chief
Secretary in support of this proposition.
364. The question which fell for consideration in that case was whether, when a member of
Parliament was convicted for a criminal offence and was undergoing a sentence in pursuance
thereof, he has an unconditional right to attend a Session of Parliament. This Court held that he
had no privilege which obliged the court to release him from custody in order to enable him to
attend the session. This decision has no relevance to the point in controversy here.
365. In England, a member of Parliament who is convicted of a criminal offence and is
undergoing sentence in pursuance to his conviction has no right or privilege to be released from
custody for attending parliament. The very same principle will apply in the case of a detention
under an emergency regulation.
366. In England, it was taken as settled that parliamentary roll is conclusive of the question
that a bill has been passed by both Houses of Parliament and has received royal assent and no
court can look behind the roll as such an inquiry would be an interference with the privilege of
Parliament. Lord Campbell said in Edinburgh & Dalkeith Ry. v. Wauchope :
"I think it right to say a work or two upon the point that has been raised with regard to an Act
of Parliament being held inoperative by a court of justice because the forms prescribed by the two
Houses to be observed in the passing of a Bill have not been exactly followed...... I cannot but
express my surprise that such a notion should have prevailed. There is no foundation for it. All
that a court of justice can do is to look to the Parliamentary Roll. If from that it should appear
that a Bill has passed both Houses and received the Royal Assent, no court of justice can inquire
into the mode in which it was introduced in Parliament, nor into what was done previous to its
introduction, or what passed in Parliament during its progress in its various stages through both
Houses".
367. It has since been said that parliamentary roll is not conclusive, that when the jurisdiction
of a court is invoked, it has power to determine whether everything necessary has been done for
the production of a valid statute, that rule of law requires that the court should determine legal
questions raised before it and if its jurisdiction is properly invoked, it has to answer the question
whether the document is a statute duly enacted by a Parliament. The view as propounded has been
summarized as follows :
" (1) Sovereignty is a legal concept : the rules which identify the sovereign and prescribe its
composition and functions are logically prior to it.
(2) there is a distinction between rules which govern, on the one hand, (a) the composition,
and (b) the procedure, and on the other hand (c) the area of power, of a Sovereign Legislature.
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(3) the courts have jurisdiction to question the validity of an alleged Act of Parliament on
grounds 2(a) and 2(b), but not on ground 2(c) ".
The reasons for the view are these : when the purported sovereign is anyone but a single
actual person, the designation of him must include the statement of rules for the ascertainment of
his will, and these rules, since their observance is a condition of the validity of his legislation, are
rules of law logically prior to him. The extraction of a precise expression of will from a
multiplicity of human beings is, despite all the realists say, an artificial process and one which
cannot be accomplished without arbitrary rules. It is therefore an incomplete statement to say that
in a State such and such an assembly of human beings is sovereign. It can only be sovereign when
acting in a certain way prescribed by law. At least some rudimentary manner and form is
demanded of it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it
is unintelligible.
368. Sir Frederick Pollock has said that supreme legal power is in one sense limited by the
rules which prescribe how it shall be exercised. Even if no constitutional rule places a limit or
boundary to what can be done by sovereign legal authority, the organs which are to exercise it
must be delimited and defined by rules.
369. So, the questions to be asked are : how is Parliament composed ? How does Parliament
express its will ?
370. The rules which identify the sovereign are as important as the institution so identified. If
this is so, it is open to the court to see whether a Parliament has been properly summoned in order
to decide the question whether a measure passed by it answers the description of a statute or an
Act and that parliamentary roll, if such a thing exists, is not conclusive.
371. As to parliamentary roll, Heuston has said :
"The 'Parliamentary Roll', whatever exactly it may have been, disappeared in England a
century ago, though even good authors sometimes write as if it still exists. Since 1849 there has
been no 'Roll', simply two prints of the Bill on durable vellum by Her Majesty's Stationery Office,
which are signed by the Clerk of the Parliaments and regarded as the final official copies. One is
preserved in the Public Record Office and one in the library of the House of Lords".
372. Article 122(1) provides that the validity of any proceedings in Parliament shall not be
called in question on the ground of any alleged irregularity of procedure. So, even if there is any
irregularity in the procedure in the passing of the statute, it is not open to a court to question its
validity. But this is distinct from the question whether the two Houses have been properly
summoned and the composition of the Session was proper.
373. The Solicitor General said that if a member is excluded from participating in the
proceedings of a House, that is a matter concerning the privilege of that House as the grievance is
one of exclusion from the proceedings within the walls of the House. And, in regard to the right
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to be exercised within the walls of the House, the House itself is the judge. He referred to May's
Parliamentary Practice (18th Ed., pp. 82-83) and also to Bradlaugh v. Gossett in this connection.
He further said that if an outside agency illegally prevents a member from participating in the
proceedings of the House, the House, the House has power to secure his presence in the House
and cited May's Parliamentary Practice (18th Ed., pp. 92-95) to support the proposition.
374. These passages throw no light on the question in issue here. Ever since the decision of
Holt, C.J. in Ashby v. White it has been settled that privilege is part of the common law and
cannot affect rights to be exercised outside or independently of the House. Regularity of internal
proceedings is one thing; the constitutional rights of the subject are another; and it is the latter
which are in issue in a case where the question is whether the document is a statute.
375. Article 85(1) provides that the President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six months shall not intervene
between its last sitting in one session and the date appointed for its first sitting in the next session.
376. The detention of these members of Parliament was by statutory authorities in the
purported exercise of their statutory power. It would be strange if a statutory authority, by an
order which turns out to be illegal, could prevent the Houses of Parliament from meeting as
enjoined by Article 85. If a statutory authority passes an illegal order of detention and thus
prevents a member of Parliament from attending the House, how can the proceedings of
Parliament become illegal for that reason ? It is the privilege of Parliament to secure the
attendance of persons illegally detained. But what would happen if the privilege is not exercised
by Parliament ? I do not think that the proceedings of Parliament would become illegal for that
reason.
377. The suspension of the remedy for the enforcement of fundamental rights by the order of
the President under Article 359 is dependent upon a valid proclamation of emergency under
Article 352. If a situation arose which authorized the President to issue a proclamation under
Article 352, he could also suspend, under Article 359, the remedy to move the court to enforce
the fundamental rights. These are the constitutional functions of the President and unless it is
established that the proclamation made by the President under Article 352 or the suspension under
Article 359 of the remedy for enforcement of fundamental rights is unconstitutional, it is
impossible to hold that the President has, in any way, illegally prevented the release of these
members from the supposed illegal detention so as to make a session of Parliament
unconstitutional in consequence of the inability of those members to attend the session. In other
words, the President, in performing his constitutional function under these articles has
378. Counsel for the respondent submitted that it is immaterial when a candidate committed a
corrupt practice- whether it was before or after he became a candidate- and that an election would
be set aside even if a person committed the corrupt practice before he became a candidate.
Section 79(b) of the Representation of the People Act, 1951, defined the word 'candidate' as
follows :
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"'candidate' means 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".
Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the present definition in
Section 79(b) which reads :
"'candidate' means a person who has been or claims to have been duly nominated as a
candidate at an election".
379. In support of the proposition that an election can be set aside even if a person has
committed corrupt practice of bribery before he became a candidate, Counsel Cited Halsbury's
Laws of England, 3rd Ed., Volume 14, pages 222 (paragraph 386) and 218 (paragraph 380).
380. These paragraphs state that in order to constitute the offence of bribery, it does not
matter how long before an election a bribe is given, provided that the bribe is operative at the time
of the election, and that, time is material only when considering the question of evidence.
381. Counsel further said that under Section 100 of the Representation of the People Act,
1951, an election is liable to be set aside if it is found under clause (b) of sub-section (1) of that
section that a returned candidate has committed corrupt practice; that ex hypothesi, a returned
candidate cannot commit a corrupt practice, and therefore, it is not the description of a person as
a returned candidate that is material. He argued that if in Section 100(1) (b) the word 'returned
candidate' is used not with the idea of indicating that a person should have committed corrupt
practice after he became a returned candidate, there is no reason to think that the word 'candidate'
in Section 123(7) has been used to show that the corrupt practice therein mentioned should have
been committed after a person has become a 'candidate' in order that the election of the candidate
might be set aside.
382. There can be no doubt that Section 100(1) (b), when it speaks of commission of corrupt
practice by a returned candidate, it can only mean commission of corrupt practice by a candidate
before he became a returned candidate. Any other reading of the sub-section would be absurd.
But there is no such compulsion to read the word 'candidate' in Section 123(7) in the same
manner. It is the context that gives colour to a word. A word is not crystal clear. Section 79 of
the Act indicates that the definitions therein have to be read subject to the context.
383. The Legislature must fix some point of time before which a person cannot be a
'candidate' in an election, and, a wide latitude must be given to the Legislature in fixing that point.
In Union of India v. M/s. Parameswaran March Works, this Court observed : (SCC p. 311, para
10)
"The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if
no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical
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in the circumstances. When it is seen that a line or point there must be, and there is no
mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate
must be accepted unless we can say that it is very wide of the reasonable mark. See Louisville Gas
Co. v. Alabama Power Co. per Justice Holmes".
384. The learned Chief Justice has, in his judgment, referred to the relevant English statutes
and the decisions of the English courts bearing on this point and has pointed out the difference
between the English law and the Indian law. I do not consider it necessary to cover the same
ground. I agree with his conclusion on the point.
385. I would therefore hold that even if it be assumed that the finding of the High Court that
the appellant obtained or procured the assistance of Shri Yashpal Kapur during the period from
January 7 to 24, 1971, is correct, the appellant shall not be deemed to have committed corrupt
practice under Section 123(7) of the Representation of the People Act, 1951, as she became a
candidate only on February 1, 1971. The learned chief Justice has also dealt with the contention
urged by Counsel for respondent that Section 8(b) of the Election Laws amendment Act, 1975
suffers from the vice of excessive delegation and is arbitrary. I agree with his reasoning for
repelling the same.
386. There can be no dispute that if the Election Laws Amendment Act, 1975, is valid, the
appeal has to be allowed. I would, therefore, set aside the findings of the High Court against the
appellant and allow the appeal without any order as to costs. In the cross appeal, the only
question raised was about the correctness of the finding of the High Court that the appellant has
not exceeded the prescribed limit of election expense. For the reasons given by Khanna, J. in his
judgment, I hold that the finding of the High Court on this issue was correct. In this view, I have
no occasion to reach the other question argued. I would dismiss the cross appeal without any
order as to costs.
387. BEG, J. (concurring).- There are two Election Appeals Nos. 887 and 909 of 1975,
before us under Section 116A of the Representation of the People Act of 1951 (hereinafter
referred to as 'the Act'). They are directed against decisions on different issues contained in the
same judgment of a learned Judge of the Allahabad High Court allowing an election petition filed
by Shri Raj Narain (hereinafter referred to as the 'Election-Petitioner'), a defeated candidate at the
election held in February, 1971, for the membership of the Lok Sabha or the House of the People,
against Shrimati Indira Nehru Gandhi, the Prima Minister of India (hereinafter referred to as 'the
Original Respondent'). The election-petitioner is the respondent in Appeal No. 887 of 1975 filed
by the original respondent. He is the appellant in Appeal No. 909 of 1975 where the original
respondent is the contesting respondent.
388. Before the election case, instituted on April 24, 1971, could be decided by the trial
Court, an explanation was added to Section 77(1) of the Act. It had some bearing on questions
relating to the expenses incurred on the original respondent's election, sought to be raised by the
election-petitioner, but, on findings of fact recorded by the trial Court, it became immaterial for
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the merits of the case and would continue to be that so long as the election-petitioner is unable to
dislodge the trial Court's findings on election expenses. Other amendments were made by the
Election Laws (amendment) Act No. 40 of 1975 (hereinafter referred to as the 'Act of 1975'),
notified on August 6, 1975, after the decision of the case by the learned Judge of the Allahabad
High Court on June 12, 1975 and after the filing of the appeals before us. These amendments deal
directly with several questions decided by the Allahabad High Court which were pending
consideration before this Court. Finally, came the Constitution (Thirty
389. It was submitted by the learned Counsel for the original respondent, in his opening
address, that Section 4 of the Thirty-ninth Amendment, adding clause (4) to Article 329-A of the
Constitution, meant that Parliament itself, acting in its constituent capacity, had taken the case in
hand and had, after applying its own standards, decided it in favour of the original respondent so
that the jurisdiction of this Court to go into the merits of the case was ousted by clause (4), read
with clauses (5) and (6), sought to be added to Article 329-A of the Constitution. It was
submitted by him that each one of the amendments of the Act was aimed at removing genuine
uncertainties or doubts about what the law was so that it may be brought into line with what it
had been previously understood to be as declared by this Court, or, in any case, with what
Parliament, correctly exercising its unquestionable law-making powers, thought that it should be.
390. The constantly recurring and vehemently pressed theme of the arguments of the learned
counsel for the election-petitioner was that the context and the contents of the Acts of 1974 and
1975, and, after that, of Section 4 of the Thirty-ninth Amendment, clearly indicated that the whole
object of the Acts of 1974 and 1975 and of the constitutional amendment was an oblique one : to
deprive the election-petitioner of the remedies he had under the law against an election vitiated by
corrupt practices, and of the benefits of a decision of the High Court in his favour by taking away
its grounds and then the jurisdiction of courts, which existed at the time of the Thirty-ninth
Amendment, to deal with the case so that this case may not, in any event, terminate in favour of
the election-petitioner. It was repeatedly suggested by the learned Counsel for the
election-petitioner, throughout his arguments, that the law-making powers had been really abused
by a majority in Parliament for the purposes of serving majority
391. In the circumstances indicated above, it seemed to me to be absolutely essential for us to
call upon the parties defending or assailing the Thirty-ninth Amendment and the Acts of 1974 and
1975, to take us, inter alia, into the merits of the cases of the two sides and the findings given by
the trying Judge so as to enable us to see how far these findings were justifiable under the law as
it stood even before the amendments by the Acts of 1974 and 1975, how they were affected by
these amendments, and how they were related to the validity of Section 4 of the Thirty-ninth
Amendment. Speaking for myself, I clearly indicated to learned Counsel for the parties that I
regard the nature and merits of the case decided to be of crucial importance not only in
considering the validity of the Thirty-ninth amendment and of the Acts of 1974 and 1975, but also
in the wider interests of justice which are bound to be served by the vindication of the case of the
party which should, on merits, win. Elementary considerations
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392. Citizens of our country take considerable pride in being able to challenge before superior
courts even an exercise of constituent power, resting on the combined strength and authority of
Parliament and the State Legislatures. This Court, when properly called upon by the humblest
citizen in a proceeding before it, to test the constitutional validity of either an ordinary statute or
of a constitutional amendment, has to do so by applying the criteria of basic constitutional
purpose and constitutionally prescribed procedure. The assumption underlying the theory of
judicial review of all law-making, including fundamental law-making is that courts, acting as
interpreters of what has been described by some political philosophers (see : Bosanquet's
"Philosophical Theory of the State" Chap. V, pp. 96, 115) as the "Real Will" of the people,
embodied in their Constitution and assumed to be more lasting and just and rational and less liable
to err than their "General Will", reflected by the opinions of the majorit
393. Issues raised before us relating to the validity of the Thirty-ninth amendment and the
Acts of 1974 and 1975, were : What are the constitutional purposes and ambit of the "constituent
power" found in Article 368 of our Constitution ? Were they, in any way, exceeded by the
constituent authorities in making the Thirty-ninth amendment in an unauthorised manner, or, for
objects which, however laudable, were outside the scope of Article 368 ? Was there any
procedural irregularity in the composition of Parliament which could enable this Court to hold
that there was a basic defect in the enactment of either the 1975 Act or of the Thirty-ninth
amendment ? Whether provisions of the Acts of 1974 and 1975 are immune from attack even on
the ground that they resulted in a departure from the "basic structure" of our Constitution as
explained by this Court in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala,
by having been included in the Ninth Schedule of our Constitution, which does protect them f
394. We do not, when such a case comes up before us, concern ourselves with the validity of
provisions other than those which affect the case before us. Nor do we consider the objects of any
provisions, in vacuo, divorced from the facts of the case to be decided. Therefore, parties had to
and did address us on the broad features of the findings given by the learned trial Judge and the
nature of the evidence given to support them so that we may be able to decide, inter alia, whether
any "validation" of the original respondent's election, which was the evident purpose of clause (4)
of Article 329A, sought to be added by Section 4 of the Thirty-ninth amendment, was at all
necessary. If that election was not really void an had been wrongly held by the trial Court to be
vitiated, it did not need to be validated at all. In that event, a purported validation would be an
exercise in futility before this Court had decided these appeals. Could it not be said that the
intended validation was premature inasmuch as it pr
395. If the existence of the judgment of the Allahabad High Court created the impression that
it must be assumed to be correct even before this Court had pronounced upon the correctness of
the judgment, the stay order given by this Court should have removed it. The legal effect of that
stay order was that the trial Court's order, to sue the language of Section 116A(4) of the Act,
"shall be deemed never to have taken effect". It did not matter if the stay order, out of deference
for existing precedents, had been framed in the form of a "conditioned" stay, that is to say, a stay
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in law and effect with certain conditions annexed. It was not a "conditional" stay. Indeed, having
regard to the nature of the order the operation of which was to be stayed, there could be no
"conditional" stay here. As to the legal effect of such a stay order, there is no doubt in my mind
that, considering the clear words of Section 116A(4) of the Act, it deprived the order of the High
Court of any operative force whatsoever during th
396. In a case where the bona fides of legislation and even of a constitutional amendment, is
questioned on the ground of a suggested frightfulness in the facts of the case which Parliament
and the ratifying State Legislatures are to be supposed, if we are to accept the suggestion, to have
been acting in concert to prevent this Court from examining on merits, it was, I think, the duty of
Counsel making any such suggestion to invite our attention to any fact not fully disclosed or
discussed in the judgment under appeal at least when he was asked, as I repeatedly asked him in
the course of his arguments extending over a period of about fifteen days out of a total period of
hearing of the case for thirty-two days, how the trial Court's conclusions on the two matters,
forming the subject-matter of Appeal No. 887 of 1975 of the original respondent, could possibly
be justified. However, I have also satisfied myself, by going through the whole evidence on record
on these two matters, which I shall presently deal wi
397. Shrimati Indira Nehru Gandhi was elected to the House of the People from the Rae
Bareli constituency in Uttar Pradesh by an overwhelming majority of 1,11,800 votes against Shri
Raj Narain. As is not unusual, the defeated candidate filed an election-petition under the Act
making all kinds of allegations, including some quite extravagant ones, which formed the
subject-matter of the first set of eleven issues framed on August 19, 1971. Thereafter, three
additional issues were framed on April 27, 1973, when the question whether an amendment of the
petition, sought after the period of limitation for filing a petition to challenge the election had
expired, should be permitted, had been finally decided by this Court in favour of Shri Raj Narain.
398. The issues framed give an idea of the cases set up on behalf of the two sides. They were :
#ISSUES##
"1. Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
Government of India. If so, from what date ?
2. Whether at the instance of respondent No. 1 members of the armed forces of the Union
arranged Air Force planes and helicopters for her, flown by members of the armed forces, to
enable her to address election meetings on February 1, 1971 and February 25, 1971, and if so,
whether this constituted a corrupt practice under Section 123(7) of the Representation of the
People Act ?
3. Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the
district Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home
Secretary of U. P. Government arranged for rostrums, loudspeakers and barricades to be set up
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and for members of the police force to be posted in connection with her election tour on February
1, 1971 and February 25, 1971; and, if so, whether this amounts to a corrupt practice under
Section 123(7) of the Representation of the People Act ?
4. Whether quilts, blankets, dhoties and liquor were distributed by agents and workers of
respondent No. 1 with the consent of her election agent Yashpal Kapur, at the places and on the
dates mentioned in Schedule A of the petition in order to induce electors to vote for her ?
5. Whether the particulars given in paragraph 10 and Schedule A of the petition are too vague
and general to afford a basis for allegations of bribery under Section 123(1) of the Representation
of the People Act ?
6. Whether by using the symbol cow and calf, which had been allotted to her party by the
election Commission in her election campaign the respondent No. 1 was guilty of making an
appeal to a religious symbol and committed a corrupt practice as defined in Section 123(3) of the
Representation of the People Act ?
7. Whether on the dates fixed for the poll voters were conveyed to the polling stations free of
charge on vehicles hired and procured for the purpose by respondent No. 1's election agent
Yashpal Kapur, or other persons with his consent, as detailed in Schedule B to the petition ?
8. Whether the particulars given in paragraph 12 and Schedule B of the petition are too vague
and general to form a basis for allegations regarding a corrupt practice under Section 123(5) of
the Representation of the People Act ?
9. Whether respondent No. 1 and her election agent Yashpal Kapur incurred or authorised
expenditure in excess of the amount prescribed by Section 77 of the Representation of the People
Act, read with Rule 90, as detailed in para 13 of the petition ?
10. Whether the petitioner had made a security deposit in accordance with the rules of the
High Court as required by Section 117 of the Representation of the People Act ?
11. To what relief, if any, is the petitioner entitled ?
ADDITIONAL ISSUES
1. Whether respondent No. 1, obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
the Government of India. If so, from what date ?
2. Whether respondent No. 1 held herself out as a candidate from any date prior to February
1, 1971 and if so, from what date ?
3. Whether Yashpal Kapur continued to be in the service of Government of India from and
after January 14, 1971 or till which date ?
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399. The High Court trying the case had, in the course of a lengthy judgment, rejected the
election-petitioner's case on issues Nos. 2, 4, 6, 7 and 9 of the first set of issues, after minutely
and meticulously scrutinizing every material allegation of the election-petitioner and the evidence
given in support of it on each of these issues. Out of these, the election-petitioner, in his Cross
Appeal No. 909 of 1975, has questioned the findings of the High Court only on issues Nos. 2, 4,
6, 7 and 9 set out above. Issues Nos. 5, 8 and 10, decided in favour of the election-petitioner,
were technical and are immaterial now. It will be noticed that the additional issue No. 1, due to
some error or oversight, is an exact and unnecessary repetition of the initial issue No. 1.
Additional issues numbered 2 and 3 are connected with and subsidiaries of the initially framed
issues numbered 1 and 3.
400. The learned trial Judge had accepted the election-petitioner's case of the material issues
numbered 1 and 3 of the initially framed issues, and on the overlapping and subsidiary additional
issues 1, 2 and 3. He was of opinion that Shri Yashpal Kapur, a Central Government servant and
a gazetted officer of the rank of an Under Secretary, deputed to serve in the Prime Minister's
Secretariat as an Officer on Special Duty, had held his post until January 25, 1971, when his
resignation, tendered on January 13, 1971, was accepted by the President of India with effect
from January 14, 1971, by means of a notification published on February 6, 1971. Consequently,
the learned Judge set aside the election of the original respondent after holding that she was guilty
of a "corrupt practice", as defined by Section 123(7) of the Act, on each of two grounds : firstly,
that she must be deemed to have obtained the help of Shri Yashpal Kapur, in the furtherance of
her election, before he had ceased to be a gazetted officer
401. The law, as found in the Act of 1951 did not, unlike the English Act of 1949, make a
distinction between corrupt practices and illegal practices. Section 123(7), as it has stood
unamended, enumerates, as the last of the 7 classes of corrupt practice, as follows :
"Section 123 (7) the obtaining or procuring or abetting or attempting to obtain or procure by
a candidate or his agent or, by any other person with the consent of a candidate or his election
agent, any assistance other than the giving of vote for the furtherance of the prospects of that
candidate's election, from any person in the service of the Government and belonging to any of the
following classes, namely :-
#(a) gazetted officers;(b) stipendiary judges and magistrates;(c) members of the armed forces
of the Union;(d) members of the police forces;(e) excise officers;(f)(g) * * *##
Explanation.- (1) In this section the expression 'agent' includes an election agent, a polling
agent and any person who is held to have acted as an agent in connection with the election with
the consent of the candidate.
(2) for the purposes of clause (7), a person shall be deemed to assist in the furtherance of the
prospects of a candidate's election of the acts as an election agent of that candidate".
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402. It is clear that "the obtaining or procuring or abetting or attempting to obtain or procure"
had to take place either by a candidate or by his agent or by somebody "with the consent of the
candidate or his election agent". Until the candidate had appointed an election agent, the action of
any other person could not constitute him automatically an agent so that he may, by doing
something voluntarily, succeed in making the candidate vicariously liable for his own actions
whether he was or was not a gazetted officer at the time when he committed the act complained
of. The question of obtaining assistance through "an agent" or "other person with the consent of a
candidate or his election agent" could only arise where such a case of obtaining assistance
indirectly through others is set up but not otherwise.
403. On issue No. 1, the case set up in paragraph 5 of the petition is :
"Smt. Indira Nehru Gandhi obtained and procured the assistance of the said Shri Yashpal
Kapur for the furtherance of prospects of her election from the constituency aforesaid inasmuch
as the said Shri Yashpal Kapur was a gazetted officer in the service of Government of India when
his assistance was obtained and procured......... The said Shri Yashpal Kapur on the direction of
Smt. Indira Nehru Gandhi organized the electioneering work for her in the constituency during
the period commencing from December 12, 1970.........."
It is a case of liability resulting from an alleged "direction" given by Smt. Indira Nehru Gandhi
herself to Shri Kapur. No case of procurement of assistance of Shri Kapur through a third person
is set up although the word "procured" is mechanically lifted from Section 123(7) and used. On
issue No. 3, the case set up in para 9 of the petition is that both Smt. Indira Gandhi and her
election agent, Shri Kapur, "obtained and procured" the assistance of government officers, but no
directions or orders given by anyone are mentioned there. Issue No. 1 shows that the case which
was put in issue here was whether the government officers mentioned there rendered the
assistance indicated there "at the instance" of the original respondent or her election agent. The
discussion of evidence and findings of the learned Judge, particularly on issue No. 1, show that
the learned Judge had almost made out a new case for the election-petitioner and accepted it. This
was, on issue No. 1, whether Shri Kapur had done some acts in
404. The law must lay down a duty to prevent, by taking some steps which are not taken,
before a person is held liable for an omission. And, there is a difference between omission to
prevent the doing of something and actual consent to the doing of it. I do not find, in the petition,
any case of a liability from omissions to do something set up, obviously because the law does not
impose upon the candidate the duty to prevent the giving of voluntary assistance by others
whether officials or not. Nor is there anywhere in the petition a case of procurement by
consenting to aid obtained through others. It has to be remembered that, on the language of
Section 123(7), a liability is not created by merely not rejecting voluntarily given aid. The
candidate may not often be aware of the voluntarily given assistance so as to be able to reject it. A
case of consent which can be legally set up is only one of consenting to active obtaining or
procurement by an agent or by some other person who becomes, for the purposes o
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405. On the terms of Section 123(7) the following three types of cases of actual obtaining of
assistance, as distinguished from abetment or attempting to obtain it, can be legally set up either
exclusively, or alternatively, against a candidate firstly, a direct obtaining of it by the act of the
candidate himself, secondly, an indirect or vicarious procurement of it by the acts of a duly
constituted agent, and, thirdly, an indirect or vicarious procurement of it by the acts of a person
who, though not a duly constituted agent, becomes constructively an agent, for the purpose of
some particular aid obtained because it was assented to by the candidate at a time which must,
ordinarily, be before the aid is given, so that the person through whom assistance is obtained is a
constructive agent for this particular aid at the time when it is given. The term procurement
should, strictly speaking, apply only in the last two types of cases. A reference to Section 100(1)
(b) further emphasises the position that a corrup
406. As I read the petition, I find only the first of the three types of cases mentioned above set
up exclusively on issue No. 1 because there are no particulars there which could apply to the
other two types of cases. Obviously, the case set up was not of a corrupt practice by some act of
a person to which the candidate became a party by merely giving consent in which case the
circumstances from which the consent was to be inferred had to be indicated. It was a case of a
direction given by the Prime Minister herself to Shri Kapur who, it had to be presumed for the
purposes of such a case, would not have given the aid if the direction or order was not there. This
deliberately given "direction" had to be proved on the case set up. On issue No. 3, the petition
mentions only what was obtained, that is to say, the aid of the particular officers and the form it
took, but, what caused that aid to be given or the means adopted to get it were not set up there. I
think these distinctions should have been borne in min
407. The definition given above in Section 123(7) meant, on an ordinary and natural
interpretation of words used, that the corrupt practice defined there could not be committed by
any person before there was a "candidate" for an election. Hence, it became necessary to examine
the definition of a "candidate" found in Section 79(b) which laid down :
"79. In this part and in Parts VII and VIII, unless the context otherwise requires,
(b) 'candidate' means a person who has been or claims to have been duly nominated 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."
408. Section 123, defining corrupt practices, is found in Part VII of the Act. Therefore, the
definition of candidate in Section 79, as it originally stood, was sought to be applied by the trial
Court to determine whether the original respondent could have committed a corrupt practice at
the time of the alleged commission of it. Before, however, I deal with that question, it is necessary
to examine what "obtaining, or procuring or abetting or attempting" meant in the light of the law
laid down repeatedly by this Court in cases of alleged corrupt practices.
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409. The logical consequence of placing a charge of corrupt practice on the same footing as a
criminal charge is obligation to interpret the words which define it strictly and narrowly. Indeed,
any natural and ordinary interpretation on the words "obtaining or procuring or abetting or
attempting" must carry with it the imperative requirement that the candidate concerned or his
agent must have intentionally done an act which has the effect contemplated by Section 123(7). In
other words, a "mens rea" or a guilty mind as well as an "actus reus" or a wrongful act must
concur to produce the result contemplated by law. So far as election expenses are concerned, it is
possible to conceive that even an unintentional result (i.e. expenses "incurred" exceeding the
prescribed limit may be enough so that a duty to prevent this result may be there in law. But,
Section 123(7) requires actual intended acts of "obtaining" or "procuring" or attempting or
abetting. For Section 123(7) results are immaterial.
410. In the case before us, the petition contains, as I have indicated above, the necessary
averment of a deliberate direction by the original respondent herself, so far as issue No. 1 is
concerned, and of "obtaining" and "procuring" as regards issue No. 3. These are enough to denote
the ingredients of a mens rea. But, one will search the evidence in vain for any indication of a
mens rea or guilty intent on the part of the original respondent or of her election agent when she
had appointed one. As regards both issues Nos. 1 and 3, the learned Judge seemed to think that
Section 123(7) creates what is called an "absolute statutory liability", which does not require a
mens rea although, in dealing with issue No. 2, he had himself, after citing the necessary
authorities, taken the view that a mens rea was also essential. He had himself, in dealing with issue
No. 2, distinguished Dr. Y. S. Parmar v. Hira Singh, a decision with whose ratio decidendi I have
never, with due respect, felt happy in so far as it meant
411. Let me here quote the exact language used by the trial Judge himself in giving his
findings on the first part (relating to December 27, 1970 to January 13, 1971) of issue No. 1 of
the "first set" of issues combined with the issue No. 1 of the additional issues, both issues, for
some inexplicable reason, being identically worded. The learned Judge said :
"Learned Counsel for the respondent then urged that even accepting that Shri Yashpal Kapur
delivered a speech at Munshiganj on January, 7, 1971 and that he canvassed support for the
respondent in that speech, he was not an election agent on that date, and there is no evidence of
the fact that he had been instructed to do so by the respondent No. 1 Learned Counsel stressed
that, consequently, it should not be held on that basis that the respondent No. 1 obtained or
procured the assistance of Shri Yashpal Kapur for the furtherance of her election prospects.
I have given my careful consideration to this argument as well, but I regret my inability to
accept the same. As also stated earlier, Shri Yashpal Kapur was occupying a position of trust and
confidence with the respondent No. 1 since quite a long time. During the period in question he
was Officer on Special Duty in the respondent No. 1's Secretariat. In 1967 he had resigned from
his post for the sake of respondent No. 1 to be able to do her election work in the constituency.
After that was done, he was taken back in the respondent's Secretariat as Officer on Special Duty.
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Respondent No. 1 held herself out as a candidate on December 29, 1971. On January 5, 1971
Raja Dinesh Singh was sent to the constituency. On January 7, 1971 Shri Yashpal Kapur visited
Rae Bareli, and on the own admission of respondent No. 1, he did so with previous notice to the
respondent No. 1. The subsequent events also appear to be material, for, according to Shri
Yashpal Kapur, immediately on return from Rae Bareli he held a talk with
To sum, therefore, it is satisfactorily proved that the respondent No. 1 during the period
ending on January 13, 1971, obtained/procured the assistance of Shri Yashpal Kapur, a gazetted
officer in the Government of India for the furtherance of her election prospects, inasmuch as Shri
Yashpal Kapur was made to go to Rae Bareli on January 7, 1971 and deliver a speech at Shaheed
Mela in Munshiganj canvassing support for her candidature."
412. Now, it is a well settled rule, repeatedly laid down by this Court, that allegations of
corrupt practice in the course of an election must be judged by the same standards as a criminal
charge. And, no rule of evidence, in judging guilt on a criminal charge, is more firmly rooted than
that no charge, resting on circumstantial evidence, could be held to be proved beyond reasonable
doubt unless the chain of circumstances is so complete and so connected with the charge that it
leaves no other reasonable hypothesis open for the Court to adopt except that the offender had
committed the offence alleged (See : e.g. Smt. Om Prabha Jain v. Charan Das).
413. The learned Judge dealt with evidence on issue No. 1 relating to the activities of Shri
Yashpal Kapur by dividing it into three periods : (1) from December 12, 1970 to January 13,
1971, when Shri Kapur had not resigned from government service; (2) from January 14, 1971 to
January 25, 1971, the period after Shri Kapur's resignation upto its acceptance by the President of
India evidenced by a notification dated January 25, 1971; (3) from January 26, 1971 to February
6, 1971, the period after the acceptance of Shri Kapur's resignation and upto the date of the
publication of it in the official gazette. The learned Judge considered only the first two periods
material as he held the activities in the third period to be above board because Shri Kapur was free
to do what he liked in this period. Hence, the fact that the original respondent appointed Shri
Kapur her election agent on February 1, 1971 made no difference to the result in the third period
to be above board because Shri Kapur was free to do what he l
414. Let us take the first period. What was required to be approved, beyond all reasonable
doubt, from the evidence on record on this part of the case, was that Shri Yashpal Kapur had been
instructed or directed by the original respondent to render the help, if any, that he did given by the
speech he was alleged to have made at a fair at Shaheed Mela (martyrs' fair) at Munshiganj in Rae
Bareli on January 7, 1971, canvassing support for the original respondent's election- an allegation
which Shri Yashpal Kapur had denied in so far as any mention of the original respondent's
candidature is concerned. Shri Kapur admitted that he had gone there with Shri Gulzarilal Nanda,
a former Minister of the Central Government, but said that he had only, when called upon to do
so, paid his tribute to the memory of the martyrs.
415. The learned Judge held that the recollection of Shri Yashpal Kapur about what he said at
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the Shaheed Mela on January 7, 1971 was less reliable than the statement of Shri Vidya Shankar
Yadav (PW 43), an Advocate belonging to an opposition party, supported by his political
coworker, Nankau Yadav (PW 28)- a witness who, in his transparent anxiety to appeal truthful,
went so far as to make the absurd assertion that he had not told anyone, before he appeared in the
witness box, that he had attended the Shaheed Mela on January 7, 1971, and who could not
remember either the date of his marriage or the dates of births of his children, but asserted that he
had noted January 7, 1971 without even having ever talked on any previous occasion to anyone
about this date if he is to be believed- and, by Shri R. K. Dixit (PW 31), a joint editor of a
newspaper, who claimed to be present on the occasion and who, while reporting other facts and
reasons in his newspaper for believing that the original respondent will stand
416. The learned Judge disbelieved the evidence of the original respondent's witness Shri
Sarju Prasad (RW 12), the headmaster of a school, who had denied that he ever accompanied Shri
Nankau (PW 28) to the Shaheed Mela as claimed by Nankau. The ground for holding that Shri
Sarju Prasad must be deposing falsely appears to me to be every unfair both to Shri Sarju Prasad
and Shri Gaya Prasad Shukla, a Congressman, who was suspected, without the slightest
foundation in evidence, of having induced Shri Sarju Prasad to give perjured evidence simply
because Shri Gaya Prasad, who did not even appear as a witness, was a member of the Congress
(R) party and was once connected with the school in which Shri Sarju Prasad served. The learned
Judge said :
"It is quite likely that once Nankau had conceded in cross-examination that Sarju Prasad had
accompanied him to the Shaheed Mela, pressure was brought to bear on Sarju Prasad (RW 12) by
Gaya Prasad Shukla in order to make him appear as a witness in the case and give evidence to
contradict the testimony of Nankau. It is true that in his re-examination Sarju Prasad (RW 12)
admitted that on the date on which he was examined as a witness in the case the school was being
run by the Government under the control of the District Basic Education Officer. However, the
association that Gaya Prasad Shukla had with the Pathshala in his capacity as Adhyaksha, and
consequently with Sarju Prasad, who was a teacher in that Pathshala, could not have been wiped
off overnight merely because the school was taken over by the Government to be run under its
own officers.
417. The reasons given by the learned Judge for holding that it was "abundantly clear" that
Shri Ram Pal (RW 13), another witness of Smt. Gandhi, was "also not a truthful witness", were :
"Now, since Ramesh Chand Shukla Advocate is a resident of the same village where Ram Pal
resided, and since he was an important worker for the respondent No. 1 during the election and
was also her Pairokar at some stage, the possibility of Ram Pal having been pressurised by Shri
Ramesh Chand Shukla cannot be excluded. Together with it there is also the fact that Shri Gaya
Prasad Shukla, another important worker of the respondent No. 1, happened to be the Adhyaksha
of the Zila Parishad during the period the witness was examined in the case. It is a matter of
common knowledge that the Adhyaksha of the Zila Parishad during the period the witness was
examined in the case. It is a matter of common knowledge that the Adhyaksha of the Zila Parishad
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always wields influence in the rural areas. It will not be out of place to add that when it was put to
Ram Pal in cross-examination as to which party did Shri Ramesh Chand Shukla belong, he
pleaded ignorance about it. It cannot be accepted for any moment that even though
418. I do not know how, when workers of the Congress party were divided into two camps
and had been changing sides, from time to time, ignorance of a worker's precise party loyalties
meant that Ram Pal was untruthful. If mere possibilities of being "pressurised" or biased were
enough to tar a witness as untruthful, it is difficult to see how or why the witnesses of the
election-petitioner, on whom lay the primary burden of proof, could escape similar treatment. V.
S. Yadav, was, no doubt, an Advocate. But, he was not even paying Income-tax. He felt free, on
a working day in courts, to go to the Mela. He was enthusiastic enough as a member of an
opposition party to object, according to himself, to Shri Yashpal Kapur bringing in the
candidature of the original respondent even at a meeting which, according to him, consisted
mostly of Congress (R) sympathisers. Shri Yashpal Kapur was not so ignorant or inexperienced in
election matters and could not be assumed, without any evidence to support the assumption, to
419. Let us, for the sake of argument, assume that Shri Yashpal Kapur had been overpowered
by such a desire to exhibit an excessive zeal, which got the better of his prudence that he,
believing that a publicly made gesture of his loyalty was needed on this particular occasion, cast
all caution to the winds and, while paying the tribute he was called upon to pay to the memory of
the martyrs, suddenly decided to jump into the electoral fray by making an appeal at the martyrs'
mela to support Smt. Indira Gandhi, as though the speeches of all those local leaders who, in
addition to Shri Gulzarilal Nanda, a former Minister, are said to have spoken there to the same
effect, were not enough. What follows ? It is here that we find the weakest link in the misty and
fanciful chain of the learned Judge's logic. Where was the evidence that, whatever else Shri
Yashpal Kapur may or may not have been supposed to do on his visit to Rae Bareli, this particular
piece of "frolic", a term used by law relating to scope of author
420. The learned Judge, as is evident, from his summary of evidence and conclusions, relied
on circumstantial evidence only. But, in order that the circumstances should have a conclusive
effect, so as to exclude any reasonable hypothesis except that of guilt, they had to point in one
direction only and in no other. What is the position that emerges from a consideration of the
circumstances found and detailed by the learned Judge himself ? It was held that Shri Yashpal
Kapur was occupying a position of trust and confidence with the original respondent for quite a
long time. Indeed, his evidence shows that he was so attached to the family of the original
respondent and the political and national causes its members had represented that he was just the
type of person who could, even without the slightest suggestion on the part of the original
respondent have voluntarily take upon himself the duty to do whatever he could do in his private
capacity to help her return at the election. Indeed, his private capacity,
421. In the passage from the judgment, quoted above, the learned Judge draws an inference of
a previous instruction, from the Prime Minister to Shri Kapur, to say what he is alleged to have
said in a speech, because, inter alia, Shri Kapur met the Prime Minister on his return from Rae
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Bareli ! Again, the necessary inference of a previous intimation by Shri Kapur to the Prime
Minister of his intention to visit Rae Bareli, could not be that there was any authority or direction
given by the Prime Minister to Shri Kapur to do or to say anything on her behalf. All this would
lie in the realm of pure conjecture and suspicion. It left other possible and more reasonable
inferences wide open.
422. The learned Judge had himself held, so far as use of rostrums is concerned, that the
Prime Minister sheds her personality, as the holder of her office, and assumes the role of a mere
candidate as soon as she ascends a platform to make an election speech. But, when the learned
Judge deals with the action of Shri Kapur, in making a speech from a platform at a martyrs' mela,
because Shri Kapur is called upon to pay his tribute to the martyrs, he holds that not only must the
capacity of a government servant unshakably stick to him, but that Shri Kapur must have been
authorised by the Prime Minister herself knowing, as she did, that he was a government servant,
to go and make a public speech at the mela and canvass for votes for her ! I do not think that we
can indulge in a flight of fancy which could be described as "flamboyant".
423. The uncontroverted evidence of Shri Kapur which had been ignored by the trial Judge
was that it was the special business of this witness, as an Officer on Special Duty in the Prime
Minister's Secretariat, in his own words, "to deal with the representations received from public
and other works of semi-political nature". It is difficult to understand how the occupant of such a
difficult and responsible office as that of the Prime Minister of the numerically largest democracy
in the world can possibly discharge his or her duties towards the public satisfactorily without the
aid of such officers. Naturally, as the Prime Minister was contemplating standing for election from
the Rae Bareli constituency, it would not be outside the scope of the duties of such an officer to
attend especially to the complaints and representations from Rae Bareli. He stated that Shri
Gulzarilal Nanda, who was then the Railway Minister, had received some representations from
Rae Bareli. He also said that he had, from time to time,
424. Again, without any contradiction from any evidence whatsoever, his statement,
unquestioned also in cross-examination, was that the Prime Minister did not, at any time, ask him,
in his own words, "either directly or indirectly to do anything pertaining to her election. " The
Prime Minister's replies to interrogatories served upon her show that she had no personal
knowledge of what Shri Kapur did at Rae Bareli before he was appointed her election agent. It is
also apparent from the evidence of this witness and of the Prime Minister herself that, when he
expressed his desire on January 9 or 10, 1971, to the Prime Minister to resign from his post as
Officer on Special Duty, she asked him to think over the matter as this would mean that he could
not return to his post. He had earlier said that this decision was taken with a view to do work for
the public in general and the Congress party in particular as he wanted to enter public life. It is
clear that the Prime Minister had left the decision entirely to the
425. The statement of Shri Kapur, supported by those of the Prime Minister and Shri P. N.
Haksar, had been accepted by the trial Court as correct so far as tender of this resignation and its
acceptance, in all the stages, followed by the notification in the gazette, went. The learned Judge
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held that the President gave his assent on January 25, 1971. Shri Kapur's letter of resignation must
have been duly forwarded and was acted upon. This was the learned Judge's finding. Shri Kapur
did not work in the Prime Minister's Secretariat after January 13, 1971 and he drew no salary as
government servant after that date. The notification in the gazette could not, according to rules,
take place until Shri Kapur had handed over charge. He signed and completed the necessary
papers relating to relinquishment of the charge of his office on January 13, 1971, but he put the
date January 14, 1971 under his signature on the document evidencing a formal handing over of
charge as it was to take effect from that date. The trial C
426. On the facts stated above, there could be no doubt whatsoever that Shri Kapur was not
asked to do anything at all in connection with her election by the Prime Minister herself, but he
had decided to take interest in it voluntarily as he had some political ambitions; and, therefore, he
had asked the Prime Minister to be relieved of his office in her Secretariat with effect from
January 14, 1971. It is unfortunate that the learned Judge thought that there was something
almost siniter in Shri Kapur taking such interest in the election or in hoping to enter political life
through absolutely legitimate means. There is not the slightest reason for anyone who fairly
examines the evidence of Shri Kapur, supported by that of the Prime Minister and Shri P. N.
Haksar, to doubt the motives or the veracity of Shri Kapur on this point. He frankly stated that his
ambition was to enter political life. In any case, the motives of Shri Kapur were not on trial. If
such assistance as he may have rendered was entirely volun
427. Shri P. N. Haksar was aware of and cited the applicable rule for a resignation by a
temporary government servant, as Shri Kapur was, and stated also the practice followed, in his
experience, in such cases. He, presumably thought that the resignation was effective from January
14, 1971. Shri Kapur also acted upon that assumption and in that belief. The Prime Minister, who
could not be expected to examine suo moto the question whether Shri P. N. Haksar and Shri
Kapur were right in their beliefs about the effectiveness of the resignation, assumed that
everything was alright. In any case, there could not possibly, on these facts, be any mens rea on
her part.
428. The learned Judge having accepted, on the unimpeachable evidence of the date of
notification of January 25, 1971, published in the official gazette on February 6, 1971, that Shri
Kapur must have handed in his resignation in a letter of January 13, 1971, it is very difficult to see
how one could possibly doubt the correctness of the statement of Shri P. N. Haksar that, as the
Head of the Prime Minister's Secretariat, he had accepted the resignation orally and forwarded it
on for necessary action. The resignation had taken place with the consent of the Prime Minister. It
is inconceivable, in the circumstances, that Shri P. N. Haksar would not have as the Head of the
Department in which Shri Kapur was working, agreed to relieve him of his duties by telling him
that he was a free man, and, thereby, accepted his resignation. He, very honestly, stated that he
does not remember whether he wrote anything on the margin of that letter. He must have made so
many indorsements on so many letters and documents that i
429. The learned Judge had found Shri P. N. Haksar's Statement, that such an oral
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acceptance, followed by the necessary notification afterwards, was "rather interesting", and, that
the resignation could not be effective until January 25, 1971, the date of drafting the notification.
But, what the learned Judge completely overlooked was that the notification itself made the
resignation effective from January 14, 1971, the date from which Shri Kapur had neither worked
in the Prime Minister's Secretariat nor drawn any salary. There was no plea anywhere, and there is
no express finding on it, that the President's notification itself, which made the resignation
effective from January 14, 1971, was invalid to the extent that in purported to give any
retrospective effect to the resignation, in the sense that it made it effective from a date prior to its
actual acceptance. The fact that it is made effective from January 14, 1971 shows that the letter
must have reached the President's Secretariat with the request that
430. The learned Judge had relied on Rule 5 of the Central Civil Services (Temporary Service)
Rules, 1949, which runs as follows :
"5(a) The service of a temporary Government servant who is not in quasi-permanent service
shall be liable to termination at any time by notice in writing given either by the Government
servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the
Government and by the Government servant :
Provided that the service of any such Government servant may be terminated forthwith by
payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the
notice or as the case may be, for the period by which such notice falls short of one month or any
agreed longer period."
431. The learned Judge had referred to Halsbury's Laws of England, Vol. V (Simonds's Edn.)
p. 61, where it was laid down that in a "corporation created by Statute for the discharge of public
functions a member may not have an absolute right to resign at will, because the law may cast
a duty upon the person elected to a public office to act in that office in public interest". He
also referred to an American case, Edwards M. Edwards v. United States, to the effect that only
the appointing could have accepted the resignation of an occupant of a public office, and that,
under the special provisions of the law, the holder of such an office could be subjected to a
penalty for a wrongful refusal to perform the duties of his office. The desire or wish of the holder
of the office had to give place to public interest in such special cases. It is clear that the cases
cited could have no relevance whatsoever for an interpretation of Rule 5 set out above.
432. The learned Judge had then relied upon Raj Kumar v. Union of India, were this Court
held that "normally, and in the absence of any law or rule governing the conditions of his servuce
to the contrary, it will not be open to the public servant to withdraw his resignation after it is
accepted by the appropriate authority". In that case, there was a dispute between the government
servant and the Union of India on the question whether the government servant concerned could
withdraw his resignation after it was accepted. It was held that he could not. It was not a case of
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an agreement between the parties at all as to the date from which the resignation could effectively
terminate service. It is true that, in Raj Narain v. Smt. Indira Nehru Gandhi, when this very matter
came up to this Court, to decide whether an issue should be struck on it, this Court had sent back
the matter to the High Court after holding that an issue should be framed to decide when Shri
Kapur's resignation became effective and that this
433. Neither the Government nor the government servant is in a worse position than an
ordinary master or servant on a matter governed by contract. In fact, Article 310 makes it clear
that, in such a case, the tenure of office of a Central Government servant is "during the pleasure
of the President". In the instant case, the President's pleasure was contained in the notification
dated January 25, 1971 showing that the President had accepted the resignation of Shri Kapur
with effect from the forenoon of January 14, 1971. And, this is what Shri Kapur himself wanted.
Hence there is no difficulty at all in acceptiung the correctness of a resignation effective from the
date which both parties to the contract, on patent facts, had agreed by such an acceptance of the
resignation from the date immediately after the date on which Shri Kapur had tendered his
resignation. That, as already pointed out, was also the date after which he had ceased to work or
draw his salary. It is inconceivable that the law should thrust t
" (3) For the purposes of clause (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, termination of service, dismissal or removal
from service of a person in the service of the Central Government (including a person serving in
connection with the administration of a Union territory) or of a State Government shall be
conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismissal or removal from service, as the case may be, is stated in such publication, also of the fact
that such person was appointed with effect from the said date, or in the case of resignation,
termination of service, dismissal or removal from service, such person ceased to be in such service
with effect from the said date."
434. I find that this amendment, which was made retrospective, by Section 10 of Act 40 of
1975, makes the legal position still clearer. The learned Counsel for the election-petitioner had
assailed the validity of this amendment on the ground that powers conferred by it upon the
Government are bound to be abused by those who hold the reins of Government. I am afraid I am
unable to see any force in this contention. The presumption is that a bona fide use will be made of
this power lodged in such responsible hands. If such powers are ever exercised in a mala fide
manner, it is the particular exercise of the power that can be questioned and struck down. The
provision does not become invalid merely because it could be abused as practically any provision
of law can be by those who may want to do so.
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435. I will next take up the period from January 14, 1971 upto January 25, 1971, when Shri
Kapur is said to have gone and voluntarily worked at Rae Bareli, and to have done whatever he
could to organise the conduct of the Prime Minister's election after his talks with the Prime
Minister. The position with regard to allegations in this period is summarised as follows :
1. He is said to have either led or to have joined a procession of cars taken out on January 14,
1971 in the town of Rae Bareli as a part of the election campaign for the original respondent
although Shri U. S. Yadav (PW 41), an advocate, who was a staunch S. S. P. worker, produced
on behalf of the election-petitioner, clearly stated that he had not seen Shri Kapur in that
procession which he watched but he had seen him only on February 15, 1971. The learned Judge,
however, not only relied on the evidence of Shri R. K. Singh (PW 42) but also on that of Shri U.
S. Yadav to hold that Shri Kapur must have been "associated with" the procession of people seen
in cars and jeeps taken out on January 14, 1971 shouting Congress (R) party slogans to start off
the election campaign.
2. On January 17, 1971, Shri Kapur is said to have participated in an election meeting held at
the Clock Tower. On this allegation, the learned Judge accepted the evidence of Shri R. K. Dixit
(PW 31), and Shri R. K. Singh, (PW 42), although both these witnesses only stated that some
confusion took place at the meeting and Shri R. K. Dixit did not even remember whether any
speech was made at all by Shri Kapur. Shri R. K. Singh also did not state that Shri Kapur actually
made a speech but had said that "a disturbance took place when Shri Kapur wanted to deliver a
speech....... as a result of which he could not do so". The learned Judge rejected the evidence of
Shri V. C. Dwivedi (RW 18) supported by Shri Kapur (RW 32) himself, that Shri Kapur was not
present at all at this meeting. However, on the evidence of the election petitioner's witness
themselves, Shri Kapur could do nothing whatsoever in furtherance of the election of the original
respondent at this meeting.
3. On January 19, 1971, Shri Kapur is said to have addressed a meeting at village Nihasta
where he is said to have gone in the company of Prof. Sher Singh, a Minister of State in the
Government of India. Although the tour programme of the Minister concerned showed that the
Minister went to that village to inaugurate a telephone exchange on January 18, 1971, supported
by the evidence of Jagannath Prasad (RW 16), a resident of village Nihasta, and K. D. Pandey
(RW 17) Post Master, Sub-Post Office, yet, the learned Judge preferred the evidence of Shri R.
K. Singh (PW 42) for the election-petitioner despite the infirmity in this evidence that it was
neither consistent with the tour programme of the Central Government Minister sent in advance
for this function nor with the unshaken evidence of those who organised the function.
4. It was alleged that Shri Kapur on January 19, 1971, again in the company of Prof. Sher
Singh, the Central Government Minister, mentioned above, attended a meeting held in Lalganj. So
far as this particular allegation is concerned, the learned Judge thought that it could not be
accepted because it was supported only by one highly partisan witness, Shri G. N. Pandey, against
4 faultless witnesses : Abdul Jabbar (RW 25), Fatesh Bahadur Singh (RW 26), Ishwar Chand
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(RW 27) and Ranjit Singh (RW 28).
5. On January, 19, 1971, Shri Kapur was said to be present at the inaugural function of the
telephone exchange at Behta Kalan and is said to have delivered a speech there. The learned trial
Judge accepted the evidence of Pt. Shashank Misra (PW 32), admittedly a highly partisan witness,
who was believed because of a question put to him in cross-examination suggesting that there was
uproar when Shri Kapur started speaking so that nobody could hear what he said. The learned
Judge held that this amounted to an admission of Shri Kapur's presence and participation in this
evening.
6. Shri Kapur was alleged to have delivered a speech on January 18, 1971 at the foundation
laying ceremony of a new post office building at Rae Bareli in the company of Prof. Sher Singh,
the Central Government Minister, mentioned above. This allegation was not accepted on the
ground that it was not supported by any evidence whatsoever.
436. All that the witnesses could remember of Shri Kapur's speech, on each occasion, was that
he supported the original respondent's candidature. Out of allegations of acts said to have been
committed on 6 occasions by Shri Kapur in this period, the learned Judge found only 4 instances
proved. Out of these, it was clear that Shri Kapur could not have done anything in furtherance of
the original respondent's election on January 17, 1971, when, according to the
election-petitioner's witnesses, he was not even allowed to speak. Even if all the
election-petitioner's witnesses accepted by the learned Judge are to be implicitly believed for this
period the position is :
(a) On three occasions in this period, from January 14, 1971 to January 25, 1971, Shri Kapur
is shown to have made a speech supporting the original respondent's candidature.
(b) There is no evidence whatsoever from any source that Shri Kapur did so on any of these
three occasions either after having been requested by the original respondent to do so or with her
knowledge or consent or approval.
(c) The only evidence in the case, on the decisive question, coming from the side of the
original respondent, is that Shri Kapur did, whatever he did, entirely on his own initiative and in
his private and individual capacity, without the slightest solicitation, request, or suggestion from
the original respondent who did not even know what he was doing at Rae Bareli. And, this
evidence, being uncontroverted, could not be rejected. In fact, it was not rejected by the trial
Court. It was ignored by it presumably under erroneous belief that it was not material.
437. There is no evidence whatsoever that Shri Kapur was constructed a sort of general de
facto agent of the Prime Minister even before he became her election agent on January 2, 1971.
Indeed, such a case, that Shri Kapur was constituted a de facto agent of the Prime Minister, and,
if so, what was the scope of his authority, was not set up in the petition and was not put in issue.
Therefore, there is no finding on it by the learned Judge. Could the Court then, without any proof
of any specific request or solicitation or even knowledge of or consent to the doing of any
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particular acts Shri Kapur may have done in this period make the Prime Minister liable for them in
any way? I think not. The election-petitioner had to be confined to the case he had set up. This, as
already pointed out, could only be, on a fair reading of the petition on issue No. 1, one of the
specific authorisation of particular individual acts of Shri Kapur. Of this, there is not only no
evidence whatsoever on record but the evidence is to
438. Issue No. 1, as framed, and the form of findings given on it indicate that the learned
Judge realized that the election-petitioner's case must be confined to proof of specific acts or
statements of the original respondent herself which induced Shri Kapur, as a government servant,
to give some assistance in furtherance of her election, but the discussion of evidence and the
inferences which the learned Judge reached upon the circumstances found, indicated that the
learned Judge thought that Shri Kapur was constituted a sort of de facto agent even before Shri
Kapur was clothed with legal authority on February 1, 1971. This appears to me to be the
underlying current of thought and reasoning of the learned Judge. Thus, the result was that what
was really decided was the case of a de facto agency which was neither set up nor was the
subject-matter of an issue. I, therefore, think that the principle that no amount of evidence could
be looked into on a case not really set up was applicable here. It was quite u
439. In Rustom Satin V. Dr. Sampoornand it had been held by a Division Bench of the
Allahabad High Court (V. Bhargava and J. N. Takru, JJ.), inter alia (at p. 243)
"So far as the election law in this country is concerned it is a creation of statute and as such
has to be interpreted in accordance within the provisions of that statute. Section 100 of the Act
clearly refers to corrupt practices committed by four classes of persons only viz., the candidate,
his election agent, persons acting with the consent of the candidate or his election agent, and
those acting without such consent. The corrupt practices committed by the first three classes of
persons are covered by Section 100(1) (b), while those committed by persons falling in the fourth
class are provided against in Section 100(1) (d) (ii)."
The same Bench of the Allahabad High Court in J. P. Rawat v. K. D. Paliwal 135 had held (at
p. 456) :
"..... even in the case of admitted workers in whose case also general consent to work for the
candidate may be implied, the consent of the returned candidate to corrupt practice or practices
complained against have to be separately proved, and reliance upon general consent, express or
implied, to work legitimately for the candidate is not deemed sufficient."
440. After January 14, 1971, the Prime Minister, like everyone else concerned, obviously
believed that Shri Kapur was no longer a government servant. As I have already pointed out, this
was the legally correct assumption. Even if one were to assume, for the sake of argument, that
this was not so and that the learned Judge had correctly held that Shri Kapur's resignation became
effective from January 25, 1971, there could be no liability for a corrupt practice by merely
permitting Shri Kapur to resign. The uncontroverted evidence is that, after resigning, Shri Kapur
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went to Rae Bareli voluntarily, without any request or suggestion made to him by the original
respondent or by anybody else to go to Rae Bareli and work for her election. Even his
appointment as the original respondent's election agent on February 1, 1971, according to Shri
Kapur's evidence, was the result of suggestion of Shri Dal Bahadur Singh at Rae Bareli,
apparently during the Prime Minister's visit to her constituency.
441. Cases in which help rendered voluntarily by a government servant without any attempt
by the candidate concerned to "obtain" or "procure" it were held not to constitute a "corrupt
practice" of the candidate, whatever be the impropriety of it for the government sevant himself,
were completely overlooked by the learned Judge. In Hafiz Mohd. Ibrahim v. Election Tribunal a
Division Bench of Allahabad (Mootham, C.J. and Mukherji, J.) had pointed out that a government
servant has a "private personality" too. Similar observations of Dua, J. are found in a Division
Bench decision of the Punjab High Court (see : Ram Phal v. Brahm Prakash).
442. On the conclusions reached by the learned Judge himself, the acts of Shri Kapur between
the period January 25, 1971 and February 6, 1971, the date of the publication of the notification,
could not be taken into account as no corrupt practice could possibly exist in that period, due to
the participation of Shri Kapur in any election work. And, with regard to the two earlier periods,
beginning with January 7, 1971, I am unable to see, for the reasons given above, how any corrupt
practice could be committed by the original respondent vicariously due to anything done by Shri
Kapur, even if one were to apply the law as it existed before the amendments of the Act.
443. Another question, which I may now briefly consider, is the date from which the original
respondent could be said to have held herself out as a candidate. If she was not a "candidate" upto
January 25, 1971, as defined by law, that would, in itself, be a sufficient ground for wiping out the
effect of findings of the learned judge on the to periods dealt with above.
444. The learned Judge had inferred that the Prime Minister was a "candidate" from December
29, 1970 as she had held herself out as a candidate when she answered a question put to her on
December 29, 1970 at a press conference at New Delhi. The question and answer were as follows
:
"Q. A short while ago there was a meeting of the opposition leaders and there they said that
the Prime Minister is changing her constituency from Rae Bareli to Gurgaon?
#P.M. No.I am not."##
In the witness box, the Prime Minister disclosed that what she meant by the answer was that
she would not contest from the Gurgaon constitutency. On further cross-examination, she stated :
"It is wrong to assume that while giving the reply marked 'B' in the transcript (Ext. 132) I
conveyed that I was not changing my constituency from Rae Bareli at all and emphatically held
out that I would contest election again from Rae Bareli. In my opinion there is no basis for this
assumption."
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445. The learned Judge had, in preference to the statement of the Prime Minister herself as to
what she meant, together with the evidence given by her Secretariat that there were entreaties or
offers to her from other constitutencies that she should be their representative, relied on press
reports and what members of other parties thought and did as a result of the above-mentioned
statement of the Prime Minister on December 29, 1970. The learned Judge also referred to
paragraph (A) of the additional written statement which runs as follows :
"That in fact, there were offers, from other parliamentary constituencies in India, requesting
this respondent to stand as a candidate for the Lok Sabha from those constituencies and a final
decision in regard to the constituency was announced by the All India Concress Committee only
on January 29, 1971, and she only held herself out as a candidate on filing her nomination at Rae
Barli on 1st of February, 1971. " He had also referred to the visits made by Congress (R) leaders
to Rae Bareli, particularly, Shri Dinesh Singh and Shri Gulzarilal Nanda and by Prof. Sher Singh.
He had not accepted the explanation that they had gone there of their own accord.
446. The learned Judge had also considered several English authorities but had noted that the
law here was not the same as in England. It had been laid in Munuswami Gounder v. Khader
Shariff, where it was said :
"In this respect the law in this country makes a significant departure and that departure, in our
opinion, again emphasises the application of vital democratic principle, in the light of differing
conditions. We may here note, briefly, a feature of the political practice in the United Kingdom,
which repeatedly colours and influences the English cases, viz., the fact that there a person is
often adopted as a candidate by a political association, without any move on behalf, until a
particular stage when the adoption is formalised by his consent".
447. I an unable to see what bearing the activities of opposition leaders and statements issued
by them or press reports, with regards to the candidature of the original respondent. No. 1 from
the Rae Bareli constituency, had upon either and interpretation of her own statement of December
29, 1970, or the date on which she made a final decision to stand as a candidate from the Rae
Bareli constituency or the communication of that decision by her to her constituency. The material
relied upon by the learned Judge consisted of speculation and hearsay coming from persons who
were certainly interested in finding out which constituency the Prime Minister, who had a choice
of Gurgaon, a constituency much nearer to New Delhi, and, possibly of other constituency as well
if she only wanted to change it. Absence of proof of a desire to change the constituency is not
proof of a positive "holding out". It has been repeatedly laid down in decided cases on the point
that what is relevant is not what other people think or sa
448. The learned Judge referred to the contents of a speech made by the Prime Minister at
Coimbatore in South India, in the early part of January, 1971, castigating one of the tactics of the
opposition parties in choosing Shri Raj Narain to oppose her, for purposes of maximum "mud
slinging". The learned Judge pointed out that the Prime Minister admitted, in her evidence, that
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she could have said this in her speech at Coimbatore. She was not asked whether this amounted to
holding herself out as a candidate from Rae Bareli constituency. If such a question had been asked
there is little doubt that she could have explained the statement by the context in which it was
made, just as she had given the precise meaning of her statement of December 29, 1970, in the
context in which it was made. Apparently, the context of the statement made in early January in
Coimbatore was that the opposition parties had chosen a candidate, who, in the opinion of Prime
Minister, possessed certain capacity for "mud slinging" which oth of March, 1971. Similarly the
context of the question of December 29, 1970, put to the Prime Minister at a conference at New
Delhi, was that the members of the opposition parties thought that she may be contesting from
Gurgaon. In the light of the opposition tactics, which the Prime Minister herself had referred to in
her speech at Coimbatore, it was not unlikely that the Prime Minister would have preferred to
keep her own intentions about the constituency, from which she would ultimately stand, either a
closely guarded secret, or, at least, in a fluid state. In any case, it was not likely that she would
announce her own intention very clearly to stand from any particular constituency until it was
considered by her or by her political advisers to be politically expedient to do so. Again, it may be
that the prospect of such a leader standig from a particular constituency was likely to have a
politically exhilarating effect upon the workers or on party activities in that constituency. From
such a point of view
449. It seems to me that the learned Judge had given an exaggerated importance to what were
either not strictly relevant or insignificant matters in preference to what could be and was decisive
and unequivocal. I do not think that the answer of the Prime Minister at the Press Conference on
December 29, 1970 or the contents of her speech in Coimbatore, in early January 1971, or even a
declaration or announcement of the All India Congress Committee on January 29, 1971, assuming
that there was such an announcement, could mean that the Prime Minister had herself finally
decided to contest from the Rae Bareli constituency and had held herself out as a candidate for
this constituency. This holding out had to take place by the Prime Minister herself and not by the
Congress Committee. Even if the fact of a declaration made by the Congress Committee, on
January 29, 1971, which is all that the written statement admits, proves that the Prime Minister
was chosen by her party for this particular constituency on this date
450. The fact that the tour programmes were circulated in advance for the Rae Bareli district,
in which the Prime Minister made electioneering speeches, could also not determine what the final
declaration of intention by the Prime Minister was going to be in regard to the Rae Bareli
constituency. It is not enough that the candidate should have by then formed an intention to stand
from a particular constituency. There is a gap between intent and action which has to be filled by
proof of either statements or of conduct which amount to unequivocal declarations made to
voters in the constituency in order to amount to a "holding out" to them. This seems to me to be
the clear position in the law as laid down by courts in this country on the meaning of Section
79(b) of the Act.
451. It is significant that despite the large number of speeches and statements the Prime
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Minister must have made throughout the country, in this period, not a single statement made by
her could even be cited in which she had said before February 1, 1971, that she was standing as a
candidate from the Rae Bareli constituency. It is possible, as I have indicated above, that this may
be a part of the political game or permissible party tactics so as to keep opposition parties
guessing. It seems to me that the learned Judge was overlooking the context, the probabilities, the
natural course of events in such a case, the legal and logical relevance and effect of what he
thought was decisive, and finally, the importance of the statement of the Prime Minister herself on
this question, supported by complete absence of any evidence to show that she had herself made
any clear and decisive statement in any speech or conversation which could shake her stand, that
her final decision and unequivocal act was the filing of a
452. In S. Khader Sheriff v. Munnuswami Gounder, this Court said (at p. 473) :
"When, therefore a question arises under Section 79(b) whether a person had become a
candidate at a given point of time, what has to be seen is whether at that time he had clearly and
unambiguously declared his intention to stand as a candidate, so that it could be said of him that
he held himself out as a prospective candidate. That he has merely formed an intention to stand
for election is not sufficient to make him a prospective candidate, because it is of the essence of
the matter that he should hold himself out as a prospective candidate".
453. In F. P. Rawat v. Krishna Dutta Paliwal, a Division Bench of the Allahabad High Court
(V. Bhargava and J. N. Takru, JJ.) following the decision of this Court in S. Khader Sheriff's case
(supra) said (at p. 463) :
"The determining factor, therefore, is the decision of the candidate himself, not the act of
other persons or bodies adopting him as their candidate".
454. In Haji Abdul Wahid v. B. V. Keskar, it was held by a Division Bench of the Allahabad
High Court (R. N. Gurtu & S. N. Dwivedi, JJ.)
" (i) that the purchase of the nomination forms and voters lists, could not amount to holding
out as a candidate; (ii) the arranging of public meetings by the officials and the respondents's
moving about in the constituency on the 15th and 16th could not by themselves amount to a
holding out by the respondent as a prospective candidate on those days in the absence of evidence
to show that the respondent had utilised those meetings and tours for the purpose of making
utterances of an electioneering characters".
455. In K. K. Mishra v. Banamali Babu, the Orissa High Court, relying upon the following
observations of this Court in S. Khader Sheriff's case (supra), held that a holding out within the
meaning of section 79(b) must be by declaration of the candidate to an elector or to the electorate
in a particular constituency and not to others :
"It may be that the holding out which is contemplated by that section is to the constituency;
but if it is the Central Committee that has to decide who shall be adopted for election from the
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concerned constituency, any declaration made to the Committee is, in effect addressed to the
constituency through its accredited representative".
456. The view of the learned Judge appears to me to run counter to the weight of authorities
cited above. In any case, if there was any uncertainty at all in the law, it was been removed nu an
amendment by Section 7 of Act No. 40 of 1975 so that Section 79(b) reads as follows :
"'Candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election".
457. Learned Counsel for the election-petitioner contended that this amendment read with
Section 10 of the Act 40 of 1975, would retrospectively alter the "rules of the game" and would
be destructive of the concept of free and fair elections, if it means that a person is only a candidate
after he has been duly nominated and that he can indulge in any amount of corrupt practices until
the day previous to his nomination.
458. Even if the present definition is a new one, it cannot be said to be arbitrary. The concept
contained in it is found in the English definition which lays down (Halsbury's Laws of England-
3rd Edn., Vol. 14, p. 162) :
".... a candidate in relation to a parliamentary election means a person who is elected to serve
in Parliament at the election or a person who is nominated as a candidate at the election, or is
declared by himself or by others to be a candidate on or after the day of the issue of the writ of the
election......"
The English definition is wider but contains, as its first part, the very concept found in our
new definition of a "candidate".
459. Corrupt practices of a candidate cannot go unpunished, whether they are committed
before or after he becomes a candidate, when they amount to acts which come within the purview
of electoral offences dealt with by Chapter 3, Sections 125, 126, 127(A) or Chapter 9A of the
Indian Penal Code. Offences such as bribery, for purposes of either inducing persons to vote or
not to vote or to stand as candidates, undue influence, and personation, are all dealt with here.
These should be sufficient deterrents against preversion of the electoral process by a prospective
candidate who wants to adopt corrupt and objectionable means for gaining success at the polls.
460. The amendment appears to me to be within the unquestionable powers of Parliament to
legislate, either prospectively or retrospectively, with regard to election matters. I am unable to
see how it is capable of being interpreted as an attack on free and fair elections, which according
to the learned Counsel for the election-petitioner, is part of the basic structure of the Constitution.
I think it is important to bear in mind that courts cannot take upon themselves the task of laying
down what electoral laws should be. The law-makers, assembled in Parliament, are presumed to
know and understand their business of making laws for the welfare and well-being of the mass
people of this country, for the protection of democracy and of free and fair elections, in
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accordance with the needs of the democratic process, better than courts know and understand
these. It is only where a piece of legislation clearly infringes a constitutional provision or
indubitably overrides a constitutional purpose or mandate or prohib
461. I will now take up issue No. 3 of the first set of issues which, after rejecting the
contention that the erection of barricades and the provision of the police force for security
purposes by the Government of U. P., during the election tours of the Prime Minister on February
1, 1971 and February 25, 1971 in the Rae Bareli constituency, contravened Section 123(7), the
learned Judge held that, neverthless the arrangements made by the District Magistrate of Rae
Bareli, the Superintendent of Police, Rae Bareli, the Executive Engineer, P. W. D. and Engineer,
Hydel Department, for constructing rostrums and the supply of power for loudspeakers, on the
instructions given by the State Government, was a corrupt practice struck by the provisions of
Section 123(7) of the Act. As I have already indicated, by the only evidence relied upon by the
learned Judge for this extraordinary finding, after having rejected a similar allegation of a corrupt
practice under issue No. 2, on account of provision of the Air Force pla
"It has been noticed that the rostrum arrangements are not always properly made because the
hosts are sometimes unable to bear the cost. As the security of the Prime Minister is the concern
of the State, all arrangements for putting up the rostrum, the barricades etc. at the meeting place,
including that of an election meeting, will have to be made by State Government concerned."
462. The Government of India had also issued a letter (Ex. A. 21) dated November 19, 1969
inviting the attention of the State Governments to Rule 71(6), mentioned above, and directing
them to ensure that, whenever rostrums are constructed on such occasions, they should conform
to certain specifications laid down with due regard to security considerations. The letter also
directed the State Government to bill the political party concerned with expenses upto 25% of the
cost of the rostrums of Rs. 25000, whichever is less. The letter also directed that extravagance in
expenditure should be avoided.
463. It was proved by the evidence of Shri R. K. Kaul (PW 58) the Home Secretary in the
Government of Uttar Pradesh, that rostrums and arrangements for barricading are made by the
local officials employing contractors for the purpose, under instructions issued by the State
Government. The reasoning adopted by the learned Judge, however, was that, as the Prime
Minister's office had issued her tour programmes, with the approval of the Prime Minister, the
result must be, in the language of the learned Judge himself :
"... the tour programmes carried an implied direction that the State Government should also
get constructed rostrums and arrange for public address system for the election meetings to be
addressed by her on February 1, 1971 and February 25, 1971. It should be presumed that the
respondent No. 1, as Prime Minister of this country, and with five years experience of that office
behind her in 1971, also knew that the said work was to be done by the officers of the State
Government."
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464. This meant that the learned Judge was holding the Prime Minister herself responsible for
instructing the State Government knowing that it will make the necessary arrangements through
its servants. The case thus accepted, that the Prime Minister was employing the State Government
as her agency in procuring the aid of the officers concerned, was neither set up nor put in issue.
Apart from this objection, the learned Judge overlooked that the provisions of Section 123(7)
were intended to prevent solicitation for aid and not sending of information to the State
Government in the course of ordinary official business even if the candidate concerned knows that
the State Government is bound, under the rules, to make the necessary arrangements dictated by
the needs of security of the Prime Minister and convenience of the public.
465. The view of the learned Judge involves holding that the "persona" (a term derived from
the concept of the mask worn by Greek actors on the stage in a drama) of a candidate during an
election must not only be different from that of the Prime Minister, but also that, when the two
capacities are held by the same person, what is due to the occupant of the office of the Prime
Minister must be withdrawn when the same person acts as a candidate. On a similar argument,
with regard to use of helicopters and aeroplanes, the learned Judge himself had refused to
acknowledge what amounts to a separable legal personality of a candidate in the eyes of law. The
ground given for this difference between the use of aeroplanes and helicopters by the Prime
Minister and the use of rostrums by her was that the former was more connected with the office
or capacity of the Prime Minister and that the latter was exclusively meant for her use in the
capacity of a candidate. Even if we were to recognize this distinction between the
466. I also think that the learned Judge erred in holding that such a case could be one of
solicitation of official aid and assistance at all. It is a case in which certain precautions are taken
and arrangements made almost "automatically", if one may use this word here, by officers of the
State as a matter of duty towards the office held by a candidate who undoubtedly enjoys certain
advantages which an ordinary candidate cannot have. It is as futile to complain of such a
distinction made as it is to complain that a candidate possesses certain advantages at an election
because of the personal services rendered to the country distinctions achieved by the candidate.
Again, there are advantages which attach themselves to a candidate because of that candidate's
personal qualities qualification capacities or background. The appurtenances of office or
distinctions achieved are, in my opinion, comparable to such personal advantages in so far as they
are not enjoyed because they are "obtained" or "procured". If such
467. The learned Judge had mentioned a Division Bench decision of the Allahabad High Court
in Moti Lal v. Mangala Prasad, where it was laid down :
"We think that the word 'obtain' in Section 123(7) has been used in the essence of the meaning
which connotes purpose behind the action of the candidate. The word has not been used in the
sub-section in the sense of a mere passive receipt of assistance without the candidate even being
conscious of the fact that the assistance has been rendered. In order to bring the case under
sub-section (7), it must be shown that the candidate did make some efforts or perform some
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purposeful act in order to get the assistance."
468. He had also cited another Division Bench decision of the Allahabad High Court in Biresh
Mishra v. Ram Nath Sarma, that :
"The words 'obtain' or 'procure' or 'abetting or attempting to obtain or procure' any assistance
necessary imply some efforts on the part of candidate or his agent. Mere passive receipt of
assistance is not contemplated by the section."
469. I think that the import of such observations was clearly what has been laid down
repeatedly by this Court and emphasized by me already- that a means rea as well as an actus reus
must be shown, on the evidence on record, before a candidate can be held guilty of a corrupt
practice. In Sheopat Singh v. Ram Pratap, this Court held, in dealing with the allegation of
corrupt practice under Section 123(4) of the Act, that mens rea was a necessary ingredient of the
corrupt practice practice and that the doctrine of constructive knowledge was not applicable here.
470. In the case before us, the election-petitioner alleged a wrongfully "obtained and
procured" assistance due to acts of the original respondent as well as her election agent Shri
Yashpal Kapur. Hence, proof of actual mens rea as well as actus reus on the part of either the
candidate herself or her election agent had to be given. This was not done. The election petition
was, therefore, liable to be rejected on this ground alone.
471. If, however, there was any doubt or uncertainty on the matter, the view taken by the
learned Judge had, at any rate, directed the attention of Parliament to the need for a clarification
of the law which became necessary. It is not possible to object to the movies behind the legislation
on this ground. Parliament could certainly set right a defect in law which may have come to its
notice as a result of the learned Judge's interpretation of Section 123(7). The defect may be due to
a possible ambiguity. In order to clarify the law, Section 7 of the Act 40 of 1975 inserted a
proviso at the end of Section 123(7), which runs as follows :
"Provided that where any person, in the service of the Government and belonging to any of
the classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting with the consent of the candidate of his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
472. The learned Counsel for the election-petitioner has, very fairly, conceded that, if this
amendment, which is retrospective by reason of the operation of Section 10 of Act 40 of 1975, is
valid, the decision of the learned Judge on the above mentioned issue No. 3 would not
sustainable. Such a concession, incidentally, means that whatever facilities were given to the
Prime Minister by the construction of rostrums or provision of power for the loudspeakers, for
which the party was also billed, at least to the extent of one-fourth of the expenses of the rostrums
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and wholly as regards the expenses of loudspeakers, were given by the officers concerned in the
performance of their official duties. This is not the same thing as "obtaining" or "procuring" by
solicitation.
473. Learned Counsel for the election-petitioner has, however, put forward the same
objection this retrospective amendment as the one against a change in the definition of
"candidate". It appears to me that this amendment is merely clarificatory of the state of law as it
really was even before the amendment. On the view I take, there is no question here of altering
the "rules of the game" to the disadvantage of the election-petitioner. The disadvantage, if any,
was there already because of the consequences which, I think, legally and naturally flow from the
occupation of the high office of the Prime Minister of this country.
474. There is no attack on the validity of Section 123(7) of the Act as it existed before the
amendment. Hence, there could be no challenge to the validity of the amendment if it does not, as
I think it does not, change the law but merely clarifies it.
475. Learned Counsel for the election-petitioner contended that, as a candidate at an election,
Prime Minister and an ordinary candidate should enjoy equal protection of the laws and should be
afforded equal facilities irrespective of the office occupied by one of two or more candidates.
Such an attack upon the validity of this amendment seems to me to be possible only under the
provisions of Article 14 of the Constitution. But, as Act 40 of 1975 has been placed by Section 5
of the Thirty-ninth Amendment in the protected Ninth Schedule of the Constitution, it becomes
immune from such an attack. After the practically unanimous opinion of this Court in
Kesavananda Bharati's case (supra), that such an immunisation of an enactment from an attack
based upon an alleged violation of the chapter on fundamental rights is constitutionally valid, I do
not think that a similar attack can be brought in through the backdoor of a "basic structure" of the
Constitution. Moreover, I am unable to see how this particular amendm
476. Before I proceed further, I may mention that I have dealt with the findings of the learned
Judge, assailed by the original respondent's Appeal No. 887 of 1975, perhaps in greater length and
depth, after going through the evidence in the case, than I had set out to do. I have done so for
several reasons. Firstly, I think that the nature of the attack upon the bona fides of the
amendments made although ordinarily not even entertainable, having been permitted due to the
constitutional importance and gravity of the allegations made, this question could not, in my
opinion, be satisfactorily dealt with without considering the nature of the findings and the
evidence at some length so as to satisfy myself that no such question could possibly arise here.
Secondly, if the amendments were made necessary for reasons brought out fully only by dealing
with facts and findings in this case, they could not give rise to any grounds to suggest that there
was anything wrong in making amendments to remove such reasons. Ther
477. It appears to me, as already indicated by me, that the learned Judge was perhaps unduly
conscious of the fact that he was dealing with the case of the Prime Minister of this country. He,
therefore, as he indicated in his judgment, seemed anxious not to allow this fact to affect his
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judgment. Nevertheless, when it came to appraising evidence, it seems to me that, as I have
already pointed out, he applied unequal standards in assessing its worth so as to largely relieve the
election-petitioner of the very heavy onus of proof that lies on a party which challenges the
verdict of the electors by allegations of corrupt practices. He also appeared to be attempting to
achieve, by means of judicial interpretation, an equalisation of conditions under which in his
opinion, candidates should contest elections. I think that it is not the function of courts to embark
on attempts to achieve what is only in the power of Parliament to accomplish, that is to say, to
bring about equality of conditions where the law permit
478. As regards appraisal of evidence in such a case, I may point out that, in Rahim Khan v.
Khurshid Ahmed 146, Krishna Iyer, J., speaking for this Court, said : (p. 666)
"An election once held is not be treated in a lighthearted manner and defeated candidates or
disgruntled electors should not get away with it by filing election petitions on unsubstantial
grounds and irresponsible evidence, thereby, introducing a serious element of uncertainty in the
verdict already rendered by the electorate. An election is a politically scared public act, not of one
person or of one official, but of the collective will of the whole constituency. Courts naturally
must respect this public expression secretly written and show extreme reluctance to set aside or
declare void an election which has already been held unless clear and cogent testimony compelling
the Court to uphold the corrupt practice alleged against the returned candidate is adduced.
Indeed, election petitions were corrupt practices are imputed must be regarded as proceedings of
a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him
who assails an election which are concluded."
This Court also said there (at p. 672) :
"We regard it as extremely unsafe, in the present climate of Kilkennycat election competitions
and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely
because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. This
Court must look for serious assurance, unlying circumstances or unimpeachable documents to
uphold grave charges of corrupt practices which might not merely cancel the election result, but
extinguish many a man's public life".
479. I will now take up the election-petitioner's Cross Appeal No. 909/75. Learned Counsel
for the election-petitioner, very properly and frankly, conceded that he could not successfully
assail the findings of the learned Judge on issues Nos. 4 and 7 relating to alleged distribution of
quilts, blankets, dhotis, and liquor by workers of the original respondent or the alleged provision
of free conveyance by vehicles said to have been hired by Shri Kapur. The evidence on these
questions given the election-petitioner was too flimsy and extravagant and was met by
overwhelming evidence to the contrary given by respectable residents of localities in which the
alleged corrupt practices are said to have taken place. No driver of any conveyance was
produced. Nor was any person produced who had actually received any alleged gift or had
consumed anything provided on behalf of the successful candidate.
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480. As regards issue No. 2, relating to the use of aeroplanes and helicopters by the original
respondent, which was not separately pressed evidently because it was covered by the amendment
which was assailed by the election-petitioner, the reasons I have given on issue No. 3 for
upholding the validity of the amendment relating to the services rendered by government officials
and members of defence forces in due discharge of their duties are enough to cover the points
raised.
481. As regards issue No. 6, relating to the adoption of the drawing of a cow and calf as the
symbol of the Congress (R) party of the original respondent, the finding of the trial court, based
on a large number of authorities, was that this is not a religious symbol. This question was directly
decided in : Bhartendra Singh v. Ramsahai Pandey; Shital Prasad Misra v. Nitiraj Singh
Choudhary decided by M. P. High Court on July 21, 1971 and Sri. Prasanna Das Damodar Das
Palwar v. Indu Lal Kanhaiya Lal Yajnik 149, decided on August 27, 1971, by the High Court of
Gujarat. The learned Judge also cited the following cases where it was decided that a cow is not a
religious symbol : Shah Jayanthilal Ambalal v. Kasturilal Nagindas Doshi, Baijnath Singh Vaidya
v. R. P. Singh, Bishambhar Dayal v. Raj Rajeshwar, Dinesh Dangi v. Daulat Ram, Shyam Lal v.
Mansa Din, B. P. Mauriya v. Prakash Vir Shastri, Sahodra Rai v. Ram Singh Ahawar, Vishwanath
Pd. v. Salmatullah, Lachiram v. J. P. Mukhariya.
482. In addition, Section 8 of the Act 40 of 1975 has made the position on this point also very
clear by providing that, in Section 123 of the Act in clause (3), the following proviso shall be
inserted at the end :
"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."
483. As in the case of other amendments, the amendment was also challenged on behalf of the
election-petitioner on the ground that it could be misused. I am afraid that attacks made on such
sweeping suggestions of likelihood of misuse, in future, cannot possibly succeed. It has been
repeatedly laid down by this Court that the possibility of misuse of a power given by a statue
cannot invalidate the provision conferring the power. (See : Dr. B. N. Khare v. State of Delhi;
State of West Bengal v. Anwar Ali Sarkar; R. K. Dalmia v. Justice Tendolkar; T. K. Musaliar v.
Venkitachalam; Chitralekha v. State of Mysore; M. R. Deka v. N. E. F. Rly). The occasion to
complain can only arise when there is such alleged misuse. Even the possibility of such misuse of
this power by so responsible an official as the Election Commissioner cannot be easily conceived
of.
484. It was submitted that the Election Commissioner's decision on this question was
unreasonable. The best class of evidence as to what is and what is not to be reasonably regarded
as religious symbol, according to the customs, mores, traditions, and outlook of the people of a
country at a certain time consists of contemporaneous decisions of courts. It is useless to quote
passages from ancient text about the sacredness of the cow in support of the use of the cow as a
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religious symbol today. The use of pictures of this excellent and useful animal is so frequently
made today for commercial purposes or purposes other than religious that the representation of a
cow and a calf cannot, except in some special and purely religious contexts, be held to have
religious significance. I, therefore, see no force at all in this submission of the election-petitioner.
485. The only question argued with some seriousness in the election-petitioner's appeal was
that the election expenses, which form the subject-matter of issue No. 9, had exceeded the limit of
authorised expenditure imposed by Section 77 of the Act read with Rule 90. On this issue, the
learned Judge had considered every allegedly omitted item of expense very thoroughly and had
reached the conclusion that the following 3 items, totaling upto Rs. 18,183.50, had to be added to
the return of election expenses of the original respondent which mentioned items totaling upto Rs.
12,892.97. These were : (1) Cost of rostrums Rs. 16,000; (2) Cost of installation of loudspeakers
Rs. 1,951; (3) Cost of providing transport for one journey by car Rs. 232.50.
486. On this issue, the learned Judge's appreciation of evidence was not only very thorough
and correct, but the application of the governing law on the subject also appears to me to be
faultless. Ordinarily, we do not, sitting even in first appeals on question of law as well as of fact in
election cases, go into findings of fact arrived at without misapplication of law or errors of
approach to evidence. In the case before us, two main questions and one subsidiary question, each
of which is a mixed question of fact and law, which deserve consideration by the Court on this
issue, have been raised before us. I will deal with these questions briefly seriatim.
487. The first question is : If the party, which a candidate represents, spends or others also
spend some money on his or her election, is this expenditure one which can be or should be
properly included in the statement of election expenses submitted by the candidate? Arguments
before us have proceeded on the assumption made by both sides that some expenditure was
incurred by Congress (R) party and some expenditure must also have been incurred by those who
either voluntarily helped or even thrust their supposed assistance, whether it was helpful or not,
upon those managing the original respondent's election, which was not shown as part of her
election expenses. Is the successful candidate bound, under the law, to show this also as part of
election expenses?
488. The question assumed special importance after the decision of this Court in Kanwar Lal
Gupta v. Amarnath Chawla, where a Division Bench of this Court observed : (SCC p. 656, para
11)
"Now, if a candidate were to be subject to the limitation of the ceiling, but the political party
sponsoring him or his friends and supporters were to be free to spend as much as they like in
connection with his election, the object of imposing the ceiling would be completely frustrated
and the beneficent provision enacted in the interest of purity and genuineness of the democratic
process would be wholly emasculated. The mischeif sought to be remedied and the evil sought to
be suppressed would enter the political arena with redoubled force and vitiate the political life of
the country. The great democratic ideal of social, economic and political justice and equality of
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status and opportunity enshrined in the Preamble of our Constitution would remain merely a
distant dream eluding our grasp. The legislators could never have intended that what the
individual a candidate cannot do, the political party sponsoring him or his friends and supporters
should be free to do. That is why the legislators wisely interdic
489. After making the above-mentioned observations, the apparently broad sweep of the
observations was limited as follows : (SCC p. 656, para 11).
"It may be contended that this would considerably inhibit the electoral campaign of political
parties but we do not think so. In the first place, a political party is free to incur any expenditure it
likes on its general party propaganda though, of course, in this area also some limitative ceiling is
eminently desirable coupled with filing of return of expenses and an independent machinery to
investigate and take action. It is only where expenditure is incurred which can be identified with
the election of a given candidate that it would be liable to be added to the expenditure of that
candidate as being impliedly authorised by him. Secondly, if there is continuous community
involvement in political administration punctuated by activated phases of well-discussed choice of
candidates by popular participation in the process of nomination, much of unnecessary
expenditure which is incurred today could be avoided."
490. It is not necessary to quote further from the judgment which suggested taking of steps
for reform of electoral machinery so as to ensure "choice of candidates by popular participation in
the process of nomination", because that would take us into a territory beyond mere interpretation
of the law as it exists. It is clear from the passages cited and later parts of the judgment that the
earlier decision of this Court, requiring proof of authorisation by the candidate of the election
expenditure for which he could be held responsible, and, in particular, Rananjaya Singh v.
Baijnath Singh, which I shall refer to again a little later, are considered. It is enough to observe
that the passages quoted above rest on the assumption that, where there are special circumstances
in a case which constitute a political party an implied agent of the candidate himself, the candidate
will be responsible. It was also suggested there that a political party itself must exercise some
control over the expenses of the candidate
491. The difficulty which faces the election-petitioner at the outset in taking up a case of
implied authorisation, on the strength of anything observed or decided by this Court in Kanwarlal
Gupta's case (supra), is that no such case was set up here. The petition does not say that the local
Congress (R) party was really an express or implied agent of the original respondent or that it had
acted in a manner from which it could be inferred that the funds were really being supplied by the
original respondent and were merely being spent by the party or its workers for the election under
consideration. No facts or circumstances were at all indicated either in the petition or in evidence
from which such inference were possible. On the other hand, what is sought to be pointed out
now in the case before us is that a sum of Rs. 70,000 was shown to have been received from some
undisclosed sources by Shri Dal Bahadur Singh, the President of District Congress Committee at
Rae Bareli, and that a large part of it was show
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492. It is true that the case set up is that the prescribed limit of expenditure was exceeded and
the case is so stated that items beyond the list could conceivably be added. Nevertheless, unless
and until there is a plea that something was spent by the Congress (R) party, either as an express
or implied agent of the original respondent, this loophole left in the petition would not suffice.
Section 83(1) (b) of the Act contains the mandatory provisions that the 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 parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice."
493. The judgment of this Court in Kanwarlal Gupta's case (supra) discusses a number of
cases decided by this Court which show that it is not enough to prove expenditure of money by a
candidate's party or friends or relation. It must be also proved that this was expenditure
authorised by the candidate and incurred as the candidate's express or implied agent. These cases
were : Rananjaya Singh v. Baijnath Singh; Ram Dayal v. Brijraj Singh; Magraj Patodia v. R. K.
Birla and B. Rajagopala Rao v. N. G. Ranga.
494. After examining this catena of cases, I think, with great respect, that the decision of this
Court in Kanwarlal Gupta's case (supra) could be understood to point in a direction contrary to
that in which the previous cases were decided. Hence, it appears to me that the amendment made
by Act 58 of 1974, by adding the explanation (1) to Section 77(1) of the Act, could be justified as
merely an attempt to restore the law as it had been understood to be previous to decision of this
Court in Kanwarlal Gupta's case (supra).
"Explanation 1. Notwithstanding any judgment, order or decision of any court to the contrary,
any expenditure incurred or authorised in connection with the election of a candidate by a political
party or by any other association or body of persons or by any individual (other than the candidate
or his election agent) shall not be deemed to be, and shall not ever be deemed to have been,
expenditure in connection with the election incurred or authorized by the candidate or by his
election agent for the purposes of this sub-section :
Provided that nothing contained in this Explanation shall effect.
(a) any judgment, order or decision of the Supreme Court whereby the election of a candidate
to the House of the People or to the Legislative Assembly of a State has been declared void or set
aside before the commencement of the Representation of the People (Amendment) Ordinance,
1974;
(b) any judgment, order or decision of a High Court whereby the election of any such
candidate has been declared void or set aside before the commencement of the said Ordinance if
no appeal has been preferred to the Supreme Court against such judgment, order or decision of
the High Court before such commencement and the period of limitation for filing such appeal has
expired before such commencement".
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495. It appears to me that both parties to the case now before us were under the impression
that the expenses incurred by a political party over its candidate's election was outside the
prescribed limit which operated only against expenditure by a candidate himself. Hence, the
petitioner had not pleaded expenses incurred by the party of the original respondent as expenses
authorised by the original respondent. The test of authorisation would naturally be the creation of
a liability to reimburse whoever spends the money and not necessarily the provision of money
beforehand by the candidate on whose behalf it is spent. Nevertheless, the authorisation has to be
set up and proved. In the written statement filed on behalf on the original respondent, it was very
frankly admitted that some expenditure, incurred by the local Congress party itself, had not been
shown as election expenses of the candidate herself. This was the position because, on the side of
the original respondent also, the law was understood to be
496. The second question which arises for consideration is : if some expenses are shown or
admitted to have been incurred by the candidate's party or third persons over the election of the
successful candidate, is it possible to separate it from a total expenditure on more than one
constituency by some process of estimation and apportionment? Of course, this question can only
arise if it is first proved that whatever expenditure was incurred by candidate's party or by some
other person, who may be a friend, a relation, or a sympathiser, was incurred in circumstances
from which it can be inferred that the successful candidate would reimburse the party or person
who incurred it. As I have already held, it is only then that expenditure could be held to be
authorised by the candidate. It is not enough that some advantage accrued or expenditure was
incurred within the knowledge of the candidate. This was very clearly brought out in Rananjaya
Singh v. Baijnath Singh (supra). In this case, the Manager, Assistant Ma
497. An attempt was then made to pass the responsibility on to the original respondent for the
expenses of at least 23 vehicles whose numbers are mentioned in a letter dated February 25, 1971,
written by Shri Kapur, who was then the original respondent's election agent, and sent to the
District Officer, Rae Bareli, stating as follows :
"Sir, I beg to say that the District Congress Committee, Rae Bareli has taken the following
cars for election purposes in the three parliamentary constituencies, Rae Bareli, Amethi and Ram
Sanehi Ghat. You may, therefore kindly release them."
After giving numbers of the vehicles the letter proceeds :
"It is therefore requested that the abovesaid cars may kindly be released without delay. The
letter of the President of District Congress Committee about the abovesaid cars is enclosed
herewith".
The letter of the President of the committee, mentioned by Shri Kapur, was a rather urgent
request made to him by Shri Dal Bahadur Singh, on February 24, 1971 (Ex. A-43), after
informing him that he is in difficulties as he had tried to find out unsuccessfully the whereabouts
of Shri V. Vajpayee, who was contesting election from Amethi parliamentary constituency, and of
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Shri Baiznath Kureel, who was contesting the election from Ram Sanehi parliamentary
constituency. He, therefore asked Shri Kapur, the election agent of the original respondent, to
send a letter to the District Officer, who had refused to released the vehicles without the
endorsement of the candidate concerned or his her election agent.
498. It is clear from the above-mentioned correspondence that Shri Kapur was not speaking
on behalf of the other two candidates of adjoining parliamentary constituencies. He was not even
undertaking to pay anything for the use of the vehicles on behalf of the original respondent. Shri
Kapur also did not state that these vehicles were needed for work in the original respondent's
constituency. He merely forwarded the letter with a request for compliance with what Shri D. B.
Singh wanted. Shri Dal Bahadure Singh was concerned and entrusted with conducting
electioneering work in three adjoining parliamentary constituencies successfully. He had, therefore
made a frantic appeal to Shri Kapur to come to his help. Shri Kapur, without concealing any fact,
had sent this very letter with a request for the release of the vehicles to the District Officer
concerned. On this evidence, the learned Judge came to the conclusion that it was not possible to
say which constituency. The learned Judge after considering the evidenc
499. In Hans Raj v. Pt. Hari Ram this Court in a similar situation said :
"Whichever way one looks at the matter it is quite clear in view of the decision of this Court
reported in Rananjaya Singh v. Baijnath Singh (supra) that the expenditure must be by the
candidate himself and any expenditure in his interest by others (not his agents within the meaning
of the a term in the election law) is not to be taken note of. Here the hiring was by the Congress
Committee which was not such an agent and therefore the amount spent by the Congress
Committee cannot be taken as an amount which must compulsorily be included in the expenditure
over the election by a candidate. If this be the position, we have to decide whether this amount
spent on the jeeps must be taken to be an expenditure made by the candidate himself. Of that there
is no evidence. The bill stands in the name of the Congress Committee and was presumably paid
by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of
the returned candidate and to that extent we subscribe to the finding given
500. In Shah Jayantilal Ambalal v. Kastutilal Nagindas Doshi 172, this Court held :
"It is now well settled that expenses incurred by a political party in support of its candidates
do not come within the mischief of Section 123(6) read with Section 77 of the Act".
501. In Samant N. Balkrishna v. George Fernandez, this Court pointed out :
"In India all corrupt practices stand on the same footing. The only difference made is that
when consent is proved on the part of the candidate or his election agent to the commission of
corrupt practice, that itself is sufficient. When a corrupt practice is committed by an agent and
there is no such consent then the petitioner must go further and prove that the result of the
election in so far as the returned candidate is concerned was materially affected".
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502. However, as I have already held, there is no case or evidence before us that the Congress
party was the agent, express or implied, of the original respondent or acting as the channel
through which any money whatsoever was spent by the original respondent. The petition could
not possibly succeed on the ground of exceeding election expenses. On the other hand, on the
findings given by me above, the expenses on the construction of rostrums were also erroneously
added by the learned Judge. In fact, it seems that other two items mentioned there were also
wrongly added. Expenses of the installation and use of loudspeakers and the power supplied were
certainly shown to have been borne by the Congress party itself. It is true that when elections of
persons in the position of the Prime Minister or even of ministers, whether in the Central
Government or a State Government, take place, a number of people come forward to either give
or thrust their supposed aid in the election. It may be impossible for the candidat
503. The third and the last and a subsidiary submission on behalf of the election-petitioner, on
election expenses, was that, Shri Dal Bahadur Singh not having been produced by the original
respondent, some sort of presumption arises against the original respondent. I do not think that it
is possible to shift a burden of the petitioner on to the original respondent whose case never was
that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chenna Reddy v.
Ramchandra Rao was relied upon to submit that a presumption may arise against a successful
candidate from the non-production of available evidence to support his version. Such a
presumption, under Section 114 Evidence Act, it has to be remembered, is always optional and
one of fact, depending upon the whole set of facts. It is not obligatory.
504. In Chenna reddy's case (supra), the evidence seemed to have resulted in a prima facie
case whose effect the respondent had to get rid of. In the case before us, the election-petitioner
had summoned Shri M. L. Tripathi (PW 59), the Secretary of the District Congress Committee,
who appeared with account books of the party of Rae Bareli. The election-petitioner could get
nothing useful out of his evidence. Even if the election-petitioner did not, for some reason, desire
to summon Shri Dal Bahadur Singh similarly, his Counsel could have requested the court to
exercise its discretionary powers under Order XVI, Rule 14 C. P. C., but this was never done. A
presumption could not arise on the facts and circumstances of a case in which it could not be said
that Shri Dal Bahadur Singh's evidence was necessary to discharge some burden of the original
respondent. The original respondent and discharged whatever onus lay upon her by producing her
own election agent Shri Kapur, who had kept her accounts. And, she had h
505. I may now very shortly deal with the objection that, as a number of members of
Parliament belonging to the opposition parties were in detention, under the preventive detention
laws, which could not be questioned before courts of law, because of the declaration of the
emergency by the President, there was a procedural defect in making the amendments of the Act
of 1951 and the Thirty-ninth Constitutional Amendment.
506. Article 122 of the Constitution prevents this Court from going into any question relating
to irregularity of proceedings "in Parliament". It reads as follows :
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"122. (1) The validity of any proceedings in Parliament shall not be called in question on the
ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order in
Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of
those powers".
507. What is alleged by the election-petitioner is that the opposition members of Parliament,
who had been detained under the preventive detention laws, were entitled to get notice of the
proposed enactments and the Thirty-ninth Amendment, so as to be present "in Parliament", to
oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of
Article 122 which bears every court from examining the propriety of proceedings "in parliament".
If any privileges of members of Parliament were involved, it was open to them to have the
question raised "in Parliament". There is no provision of the Constitution which has been pointed
out to us providing for any notice to us providing for any notice to each member of Parliament.
That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this
Court can look into, in appropriate cases, is whether the procedure which amounts to legislation
or, in the case of a constitutional amendment, which is prescrib
508. Again, this Court has held, in Sharma v. Sri. Krishna, that a notice issued by the Speaker
of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of
procedure relating to proceedings for breach of privilege have not been observed. All these are
internal matters of procedure which the Houses of Parliament themselves regulate.
509. As regards the validity of the detentions of the members of Parliament, that cannot be
questioned automatically or on the bare statement by Counsel that certain members of Parliament
are illegally detained with some ulterior object. The enforcement of fundamental rights in
regulated by Articles 32 and 226 of the Constitution and the suspension of remedies under these
articles is also governed by appropriate constitutional provisions. Their legality and regularity
cannot be collateral assailed by mere assertions made by Counsel before us. I therefore, overrule
these objections to the validity of the amendments and the Thirty-ninth Amendment as we cannot
even entertain them in this manner in these proceedings.
510. I will now turn to the validity of clause (4) of Article 329A sought to be added by
Section 4 of the Thirty-ninth Amendment. I will quote the whole of Section 4 as some argument
was advanced on the context in which clause (4) of Article 329A occurs. Section 4 reads as
follows :
"4. In Part XV of the Constitution, after Article 329, the following article shall be inserted,
namely :-
"329A. (1) Subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause
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(1) of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of Prime Minister at the
time of such election or is appointed as Prime Minister at the time of such election or is appointed
as Prime Minister after such election;
(b) to the House of the people of a person who holds the office of speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question, except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provided for by or
under any law made by Parliament and any such law may provide for all other matters relating to
doubts and disputes in relation to such election including the grounds on which such election may
be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
office of the Speaker of the House of the People, while an election petition referred to in clause
(b) of Article 329 in respect of his election to either House of Parliament or, as the case may be,
to the House of the People is pending, such election petition shall abate upon such person being
appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of
the House of the People, but such election may be called in question under any such law as is
referred to in clause (1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith, as it relates to election petition and matters connected therewith, shall apply or shall be
deemed ever to have applied to or in relation to the election of any such person as is referred to in
clause (1) to either House of Parliament and such election shall not be deemed to be void or ever
to have become void on any ground on which such election could be declared to be void or has,
before such commencement, been declared to be void under any such law and notwithstanding
any order made by any court, before such commencement, declaring such election to be void,
such order and any finding on which such order is based shall be and shall be deemed always to
have been void and of no effect.
(5) Any appeal or cross appeal against any such order of any court as referred to in clause (4)
pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
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511. Counsel for both sides are agreed that, for the purpose of the case before us, we need not
consider the constitutional validity of clauses (1) to (3) of the newly introduced Article 329A of
the Constitution. I will therefore, concern myself only with the constitutional validity of a clause
(4) of Article 329A of the Constitution.
512. Learned Counsel for the election-petitioner contended that the constituent or amending
power contained in Article 368 of our Constitution had been misused to achieve some purpose
which was either outside the article or which struck at the roots of the "basic structure" or "the
essential features" of our Constitution. It was submitted that the amendment is invalid on an
application of tests laid down by a majority of the 13 Judges who indicated certain basic and
inviolable principles of our Constitution in Kesavananda Bharati's case (supra). It was contended
that the newly added Article 329A of the Constitution, far from constituting a constitutional law,
which alone could be made under Article 368, did not even satisfy the tests of a law, inasmuch as
it did not lay down any general rule applicable to all cases of a particular class but was really
designed to decide one particular election case, which is now before us for hearing, in a particular
way. According to learned Counsel, the amending bodies had
513. All the contentions of learned Counsel for the election-petitioners, apart from the alleged
procedural defect in amending the Act of 1951 and the Constitution when a number of opposition
members of Parliament are detained under the preventive detention was, already dealt with by me,
seemed directed towards producing two results either simultaneously or alternatively : firstly, to
persuade us to hold that the constituent power had been exceeded or sought to be utilised for
extraneous purposes falling outside the purview of Article 368 of the Constitution altogether; and,
secondly, to convince us that the effects of the fourth clause of Article 329A must be such that, if
this purported addition to our Constitution was upheld, the "basic structure" or the "basic
features" or "the underlying principles" of our Constitution will be irreparably damaged so that it
could not any longer be looked upon as the same Constitution. It was submitted that the majority
view in Kesavananda Bharati's case (supra), which w
514. We have heard the learned Attorney General and the learned Solicitor General of India,
in defence of the fourth clause of Article 329A sought to be added by the Thirty-ninth
Amendment, as well as Mr. A. K. Sen and Mr. Jagannath Kaushal, learned Counsel for the
original respondent, who also supported the validity of the impugned clause. The first contention
of the learned Counsel seemed directed towards inducing us not to look beyond the language to
discover the purposes or the nature of the function performed in passing clause (4) of Article 329
or its effects. This contention had necessarily to rest upon the assumption that provisions of
clauses (4) and (5) and (6) of Article 329 A, sought to be introduced by the Thirty-ninth
Amendment, were valid and had the effect of depriving this Court of jurisdiction to determine the
validity of clause (4) by exploring the purposes and objects which may lie behind the plain
meaning of clause (4). Our difficulty, however, is that even an attempt to give its natural
515. In the circumstances of this case, set out above, the findings on contested questions of
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fact and law and the order indicated by clause (4) could only be those contained in the he
judgment under appeal by both sides before us. The language of clause (4) was, according to the
submissions of learned Counsel supporting the amendment, itself meant to convey that, after
going into the disputed questions of fact, the constituent bodies had reached the conclusion that
the order and the findings must have no legal effect. Indeed the Solicitor-General went so far as to
submit that Parliament must be deemed to be aware of the contents of the whole record of the
proceedings in the High Court including the pleadings, the evidence, and the findings in the
judgment of the High Court, as these were all available to it. In other words, we must imagine and
suppose that, whatever may be the actual position Parliament had sat in judgment over the whole
case as a court of appeal would have done. But the impugned clause (4)
516. At the same time, it was contended, and this was especially emphasised by Mr. Jagannath
Kaushal, that Parliament and the ratifying Legislatures of the States- participating in the
Constitution-making process- had not applied any pre-existing norms but had merely declared and
registered, almost automatically, without any need to consider anything further or to apply any
law whatsoever to any facts, what followed from the abrogation of all pre-existing law, with its
procedure and norms, so far as the election-petition against the original respondent was
concerned. This meant that the constituent bodies, proceeding on the assumption that the High
Court had rightly held the original respondent's election to be invalid by applying the provisions of
the 1951 Act, had considered it necessary to validate what really was invalid according to the
1951 Act. In view of what I have already held on merits, such an assumption, if it was there at all,
could only be based on a misconception.
517. The conflicting points of view, advanced in support of the amendment, enabled the
election-petitioner's Counsel to find support for his contention that the impugned clause (4)
obviously meant that a considered judgment on, inter alia, disputed question of fact, however
erroneous, had been swept aside, quite unceremoniously mechanically, and, without a semblance
of a quasi-judicial procedure by a purported exercise of constituent power by the constituent
bodies, consisting of the two Houses of Parliament and the ratifying Legislatures of the various
States. He urged that the alternative contentions of Mr. Kaushal constituted an admission that no
procedure whatsoever, which could be considered either reasonable or appropriate for a judicial
or quasi-judicial determination of any question of fact or law was followed. He contended that
whichever of the two alternative contentions of counsel supporting the Thirty-ninth Amendment
was accepted by us, his submission, that the amendment was ultra vires, arbitrar
518. The essence of judicial or quasi-judicial function is the application of a law which is
already given by the law-making authority to the judicial or quasi-judicial authority to apply. This
law has to be applied to certain findings after determining the disputed question of fact in a
manner which must confirm to the canons of natural justice. Learned Counsel for the
election-petitioner contended that it was not necessary to go beyond clause (4) to reach the
conclusion that what was being done was to decide a dispute which could, under the law as it
existed till then, only be judicial determinated in the mode prescribed by Article 329(b) read with
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the Act of 1951 which could not be circumvented even before Article 329A engrafted exceptions
on it and the Act of 1951 had been repealed retrospectively in its application to the Prime
Minister. The result of a sort of consolidated legislative-cum-adjudicator function was sought to
embodied in Article 329A (4) by purported constitutional amendment. He contended
519. Learned Counsel supporting the Thirty-ninth Amendment, had, in defence of the
amendment, advanced arguments which go beyond the position which was adopted to support the
amendments considered by us in Kesavananda Bharati's case (supra). The new argument now
advanced to use the language of the Solicitor General in his last written submissions, is that the
power of amendment under Article 368 is "the very original power of the people which is
unbroken into the legislative and the executive and the judicial". He submitted that the implied
limitations, to which the majority decision in Kesavananda Bharati's case (supra) has committed
this Court for the time being, are no longer available when considering the "unbroken" power. Mr.
A. K. Sen, learned Counsel for the original respondent, puts this very argument in the following
words in his written submissions :
"In the hands of the constituent authority there is no demarcation of powers. But the
demarcation emerges only when it leaves the hands of the constituent authority through well
defined channels into demarcated pools. The constituent power is independent of the fetters or
limitations imposed by separation of powers in the hands of the organs of the Government
amongst whom the supreme authority of the State is allocated.
The constituent power is independent of the doctrine of separation of powers. Separation of
powers is when the Constitution is framed laying down the distribution of the powers in the
different organs such as the legislative, executive and the judicial power. The constituent power
springs as the fountainhead and partakes of sovereignty and is the power which creates the organ
and distributes the powers. Therefore, in a sense the constituent power is all-embracing and is at
once judicial, executive and legislative, or in a sense super power The constituent power can also
change the system of checks and balances upon which the separation of powers is based."
520. The theory advanced before us may have been designed to escape the logical
consequences of the majority view in Kesavananda Bharati's case (supra) which we cannot, sitting
as a bench of five Judges in this Court, overrule. The theory is, however, quite novel and has to
be, I think dealt with by us. It postulates an undifferentiated or amorphous amalgam of bare
power constituting the "constituent power". According to this theory, the power which
constitutes does not need to be either constituted or prevented from exercising a power assigned
by it already to a constituted authority. Hence, it is a power of a kind which is above the
Constitution itself. If I am not mistaken, the learned Solicitor General did say the constituent
power lies "outside" the Constitution. In other words, it is independent and above the
Constitution itself because it pirates on the Constitution and can displace it with, so to say, one
stroke of its exercise. I do not think that such an extreme theory could be supported by the cit
521. If we were to accept the theory indicated above, it would make it unnecessary to have a
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Constitution beyond one consisting of a single sentence laying down that every kind of power is
vested in the constituent bodies which may, by means of a single consolidated order or declaration
of law, exercise any or all of them themselves whenever they please whether such powers be
executive, legislative, or judicial. Could this be the ambit of "constituent power" in our
Constitution? Would such a view not defeat the whole purpose of a Constitution? Does the whole
Constitution so crumble and melt in the crucible of constituent power that its part cannot be made
out? Before we could accept a view which carries such drastic implications with it we will have to
overrule the majority view in Kesavananda Bharati's case (supra). The majority view in that case,
which is binding upon us, seemed to be that both the supremacy of the Constitution and
separation of powers are parts of the basic structure of the Constitution.
522. If "constituent power", by itself, is so transcendental and exceptional as to be above the
provisions of the Constitution itself, it should not, logically speaking, be bound even by the
procedure of amendment prescribed by Article 368(2). I have not found any opinion expressed so
far by any learned Judge of this Court to show that the constituent power is not bound by the
need to follow the procedure laid down in Article 368(2) of the Constitution. Indeed, rather
inconsistently with the theory of an absolute and unquestionable power in some undifferentiated
or raw and unfettered form, operating from above and outside the Constitution, learned Counsel,
supporting the impugned fourth clause in Article 329A, concede that the constituent power is
bound by the appropriate procedure laid down in Article 368 for the amendment of the
Constitution. What they urge is that, subject to this procedure, which has been followed here, the
constituent power cannot be questioned because it is a "sovereign power". The log
523. I think that the possibly theoretical question indicated above, whatever may be the object
of raising it, does deserve to be seriously considered and answered by us because it discloses a
basic misconception. Therefore, I propose to consider it at a length which seems to me to be
justified by our need to clarify our thinking on a basic or "key" concept without a final
commitment to a particular view on it. Clearer thinking, by examining a basic theoretical question
from every conceivable angle, leads, I believe, to that openmindness which is needed by lawyers
no less than by any other class today so that we may, contrary to our reputation, be responsive to
the inevitable challenges of change. Justice Holmes once said :
"Theory is the most important part of the dogma of law, as the architect is the most important
man who takes part in the building of a house. " [Holmes Collected Papers, (1921) p. 200].
524. It seems to me that the words "sovereignty" and "sovereign power", used repeatedly
learned Counsel defending the Thirty-ninth Amendment to describe the constituent power, should,
for several good reasons, be avoided, so far as possible, by lawyers who seek that clarity of
thought for which precision in language is the first requirement. One of these reasons was given
by Lord Bryce [Studies in "History and Jurisprudence" (1901) (pp. 503-504] :
"The frontier districts, if one may call them so, of Ethics, of Law and of political science have
been thus infested by a number of vague or ambiguous terms which have produced many barren
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discussions and caused much needless trouble to students....... No offender of this kind has given
more trouble than the so-called 'Doctrine of Sovereignty'".
Prof. Mellwain, however, opined :
"But this very fact is proof of its vital importance in our modern world, and the wide variety
of the views held concerning its essence, as well as the conflicting conclusions to which these
views still lead, may furnish sufficient excuse for another attempt to clarify some of our ideas
touching this central formula under which we try to rationalize the complicated facts of our
modern political life."
Another reason for eschewing such expressions, so far as possible, is that they are "emotive"
or of a kind about which Mr. Leonard Schapiro, (writing on "Key Concepts in Political Science"
Series, at p. 7) rightly observed.
"Emotive words such as 'equality', 'dictatorship', 'elite' or even 'power' can often, by the very
passions which they raise, obscure a proper understanding of the sense in which they are, or
should be, or should not be, or have been used. Confucius regarded the 'rectification of names' as
the first task of government.'If names are not correct, language will not be in accordance with the
truth of things', and this in time would lead to the end of justice, to anarchy and to war."
At any rate, in America, the concept of State sovereignty, ranged against that of national
sovereignty, did produce a civil was which is said to have been precipitated by the decision of the
American Supreme Court in Dred Scott v. Standford 179.
525. I must preface my observation here about the concept of "sovereignty" and exercise of
"sovereign power", between which I make a distinction, with two kinds of explanation. The first
kind involves an exposition of a functional or sociological point of view. I believe that every
social, political, economic, or legal concept or doctrine must answer the needs of the people of a
country at a particular time. I see the development of concepts, doctrines, and institutions as
responses to the changing needs of society in every country. They have a function to fulfill in
relation to national needs. The second type of explanation may be called historical or meant
merely to indicate and illustrate notions or concepts put forward by thinkers at various times in
various countries so as to appropriately relate them to what we may find today under our
Constitution. We have to appreciate the chronology or stages of their development if we are to
avoid trying to fit into our Constitution something which has no real rele
526. I certainly do not think that Judges of this Court have or should think that they have the
power to consciously alter, under the guise of judicial interpretation, what the Constitution
declares or necessarily implies even though our pronouncements, interpreting the Constitution,
may have the effect of contributing something to the growth or even change of Constitutional
Law by clearing doubts, removing uncertainties, or filling up of gaps to a limited extent. If the law
embodied in our Constitution, as declared by this Court, is not satisfactory, I do not think that we
can or should even attempt to stand in the way of a change of any kind sought through
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appropriate constitutional means by the constitutionally appointed organs and agencies of the
State. If, however, this Court is asked to declare as valid what seems to it to fall clearly outside
the ambit of the Constitution, and, indeed, what is even claimed to be operating from outside the
Constitution and described as a supra-constitutional power, the
527. The term "sovereign" is derived from the Latin word "Superanus" which was akin to
"Suzerian" suggesting a hierarchy of classes which characterised ancient and medieval societies. In
its origin, it is an attribute assigned to the highest living human superiors in the political hierarchy
and not some abstract quality of a principle or of a law contained in a document- a meaning, as
will be shown here, which emerges clearly later. In times of anarchic disorder or oppression, by
local satraps or chieftains or barons or even bullies and criminals, ordinary mortals have sought
the protection of those who could give it because of their superior physical might. No book or
document could provide them with the kind of help they needed. They looked up to their
"Sovereign liege and Lord", as the medieval monarch was addressed by his subjects, for
protection against every kind of tyranny and oppression.
528. The Greeks and Romans were not troubled by theories of "sovereignty" in a State. The
principle that Might was Right was recognised as the unquestioned legally operative principle at
least in the field of their constitutional laws. Greek philosophers had, however, formulated a
theory of a Law of Nature which was, morally, above the laws actually enforced. In later stages of
Roman law, Roman jurists also, saturated with Greek notions of an ethically superior law of
nature, said that the institution of slavery, which gave the owner of a slave theoretically absolute
powers of life and death over the slave, just like the powers of a pater-familia over his children,
was contrary to just natural although it was recognised by jus gentium, the laws of then civilised
world. Aristotle, in his analysis of forms of government, had emphasized the importance of the
Constitution of a State as a test or determinant of sovereign power in the State. And, Roman
jurists had, indirectly, cleared the path for the rise of mode
529. Romans not only clarified basic notions but developed a whole armoury of new forms in
which law could be declared or made : Lex; Plebiscitum; Magistratuum Edicta; Senatusconsulta;
Responsa Prudentium; Principum Placita. The last mentioned consisted of orders of Roman
Emperors which were of various kinds, some of general application to cases of particular kinds
and others for particular individual cases : Edicta, Decreta, Mandata, Rescripta. They had the
"force of law" or "Lex" which could be roughly equated with our statutory law."Decreta" were
issued as decisions on individual disputes, in exercise of the Emperor's power "under" the
authority of "Lex de Imperio", although "in the classical period it was firmly established that what
the Emperor ordained had the force of law" (See : R. W. Leage on Roman Law, 1961, p. 32
Edn.). The point to note is that, even in the embryonic stages of government through legislation
law making a decision of individual cases are found distinctly separate.
530. After the break-up of the Roman empire, there were attempts in medieval Europe, both
by the Church and the Kings, to develop spiritual and temporal means for checking wrong and
oppression. Quests for the superior or a sovereign power and its theoretical justifications by both
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ecclesiastical and lay thinkers were part of an attempt to meet this need. The claims of whose
who, as vicars of God on earth, sought to meddle with mundane and temporal affairs and acquire
even political power and influence were, after a struggle for power, which look different forms in
different countries, finally defeated by European kings with the aid of their subjects. Indeed, these
kings tried to snatch, and not without success, to wear spiritual crowns which the roles of
"defenders of the faith" carried with them so as to surround themselves with auras of divinity.
531. The theory of a legally sovereign unquestionable authority of the King, based on physical
might and victory in battle, appears to have been developed in ancient India as well, by Kautilya,
although the concept of Dharma, based on the authority of the assemblies of those who were
learned in the Dharmashastras, also completed for control over exercise of royal secular power.
High philosophy and religion, however, often seem to have influenced and affected the actual
exercise of sovereign power and such slight law-making as the King may gave attempted. The
ideal King, in ancient India, was conceived of primarily as a Judge deciding cases or giving orders
to meet specific situations in accordance with the Dharmashastras. It also appears that the actual
exercise of the power to administer justice was often delegated by the King to his judges in
ancient India. Indeed, according to some, the theory of separation of powers appears to have been
carried so far (See : K. P. Jayaswal in "Manu and Yajnavalkya"- A b
532. We know that Semetic prophets, as messengers of God, also became rulers wielding both
spiritual and political temporal power and authority although to Jesus Christ, who never sought
temporal power, is ascribed the saying : "Render unto Caesar the things that are Caesar's and to
God things that are God's". According to the theory embodied in this saying, spiritual and
temporal powers and authorities had to operate in different orbits of power altogether. Another
theory, however, was than the messenger of God had given the sovereign will of God Almighty
which governed all matters and this could not be departed from by any human authority or ruler.
In the practical administration of justice, we are informed, Muslim caliphs acknowledge and
upheld the jurisdiction of their Kazis to give judgment against them personally. There is an
account of how the Caliph Omar, being a defendant in a claim brought by a Jew for some money
borrowed by him for purposes of State, appeared in person in the Court of his own Kazi
533. Theory, therefore, that there should be a separation of functions between the making of
laws, the execution of laws, and the application of laws, after ascertaining facts satisfactorily, is
not new. It is embedded in our own best traditions. It is dictated, if by nothing else, by common
sense and the principle of division of labour, without an application of which efficient performance
of any duties cannot be expected.
534. We may now look back at the theory and practice of sovereignty in Europe. There, wise
kings, in the middle ages, sought the support of their subjects in gatherings or "colloquia", which,
in the words of Mr. De Jouvenel (See : "Sovereignty, an Inquiry into the Political Good" p. 177),
"had the triple character of a session of justice, a council of State and the timid beginnings of a
legislative assembly were the means by which the affairs of the realm came more and more into
the hands of the King". He goes on to observe :
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"The council of the King and the courts of justice progressively developed an independent life,
the assembly remaining under the name of parliament in England and State-General in France".
535. Bodin, writing in the reign of Henry III of France (1551 to 1589), viewed sovereignty as
a absolute unlimited power which, though established by law, was not controlled by it. According
to him, under an ideal system sovereignty was vested in the King by driven right. The King's word
was law. But, even according to Bodin, although the sovereign was free from the trammels of
positive law, as he was above it, yet, he was "bound by divine law and the law of nature as well as
by the common law of nations which embodies principles distinct from these" (See : Dunning's
"History of Political Theories Ancient & Medievl" p. 28). Hobbes, a century later continued this
line of thinking on an entirely secular and non-moral plane. He opined : "Unlimited power and
unfettered discretion as to ways and means are possessed by the sovereign for the end with a view
to which civil society is constituted, namely, peace and escape from the evils of the state of
nature", in which the life of individuals was "nasty, brutish, an
536. As we know, in the 17th and 18th centuries, European monarchs came in sharp conflict
with the representatives of their subjects assembled in "Parliament" in England and in the
"State-General" in France. And, theories were put forward setting up, as against the claims of
kings to rule as absolute sovereigns by indefeasible divine right, no lesser claims to inviolability
and even divinity of the rights of the people. But, theories apart, practice of the art of government
proves that the effective power to govern by the very nature of conditions needed for its efficient
exercise, has had to be generally lodged in one or few especially in times of crisis, but not in all
those who represent the people even under democratic forms of Government. Direct democracy,
except in small city States such as those or ancient Greece, is not practically feasible.
537. Theories of popular sovereignty put forward by Locke and Rousseau came to the
forefront in the 17th and 18th centuries- an era of revolutionary changes and upheavals. The
theory of certain immutable individual natural rights, as the basis of a set of positive legal rights,
essential and necessary to the fulfillment of the needs of human beings as individuals, was
advanced by Locke. He visualised a social contract as a means of achieving the welfare of
individuals composing Society. He also advocated separation of powers of government in a
Constitution as a method of securing rights of individual citizens against even their own
governments. Montesquieu elaborated this theory. The ideas of Rousseau were amongst those
which contributed to produce that great conflagration, the French Revolution, which was
described by Carlyle as the "bonfire of feudalism : Government, according to Rousseau, in all its
departments, was the agent of the General Will of the sovereign people whose welfare must
always be its ai
"There's on earth a yet auguster thing, veiled though it be, than Parliament and king."
T. H. Green said :
"It is to this 'auguster thing', not to such supreme power as English lawyers held to be vested
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in 'Parliament and King', that Rousseau's account of the sovereign is really applicable".
538. The ideas of Rousseau were subsequently used by Hegelian and idealist political
philosophers to deify the State as the repository of the "Real Will" of the people and by Marxists
to build their their of a dictatorship of the proletariat. But, the views of Locke and Montesquieu
were sought to be given a practical form by American Constitution-makers, who imbued with
them, devised a machinery for the control of sovereign power of the people placed in the hands of
the three organs of State so that it may not be misused. Suspicion of governmental power and fear
of its misuse, which characterised liberal democratic thinking, underlay the doctrine of separation
of powers embodied in the American Constitution.
539. "The merits of democracy", according to Bertrand Russel (See : "Power : A New Social
Analysis" p. 187) "are negative : It does not insure good government, but it prevents certain
evils". He pointed out (at p. 188) :
"It is possible, in a democracy, for the majority to exercise a brutal and wholly unnecessary
tyranny over a minority....... The safeguarding of minorities, so far as is compatible with orderly
Government, is an essential part of the taming of power."
He also said (at p. 192) :
"Where democracy exists, there is still need to safeguard individuals and minorities against
tyranny, both because tyranny is undesirable in itself, and because it is likely to lead to breaches of
order. Montesquieu's advocacy of the separation of legislative, executive and judiciary, the
traditional English belief in checks and balances, Bentham's political doctrines and the whole of
nineteenth century liberalism, were designed to prevent the arbitrary exercise of power. But such
methods have come to be considered incompatible with efficiency".
540. Some quite honest, upright, and intelligent people think that the inefficiency, the
corruption, the expense, the waste of time and effort, and the delay in accomplishing what they
regard as much too urgently needed socio-economic and cultural transformations of backward
peoples today, involved in treading the democratic path, are so great that they would readily
sacrifice at least some of the democratic processes and such safeguards against their misuse as
separation of powers and judicial review are meant to provide. They would not mind taking the
risk of falling into the fire to escape from what they believe to be a frying pan. Some may even
agree with Bernard Shaw, who liked to look at everything turned upside down in attempts to
understand them, that Democracy, with all its expensive and time-consuming accompaniments, is,
even in the most advanced coteries, only a method of deluding the mass of the people into
believing that they are the rulers whilst the real poser is always enjoyed by the few who
541. Judges must, no doubt, be impartial and independent. They cannot, in a period of
intensified socio-economic conflicts, either become tools of any vested interests, or function, from
the bench, as zealous reformers propagating particular causes. Nevertheless, they cannot be
expected to have not notions whatsoever of their own, or to have completely blank minds on
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important questions indicated above which, though related to law, really fall outside the realm of
law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically
sealed chambers of purely legal logic artificially cut off from the needs of life around to which law
must respond. Their deferring individual philosophies, outlooks, and attitudes of vital questions,
resulting from differences in life, will often determine their honest choices between two or more
reasonably possible interpretations of such words as "amendment" or "constituent power" in the
Constitution. But, on certain clear matters of principle, und
542. A lamentable example of what took place in the course of English constitutional history
when a House of Commons, composed of very intelligent and learned people, one of whom, Holt,
subsequently became a distinguished Chief Justice of England, took upon itself to sit in judgment
on a decision of two Judges of the King's Bench Division one of whom was suspected of being a
partisan of Royal prerogative and power at a time when a struggle for supremacy between the
competing legal claims of the King, as the titular sovereign, and those of the House of Commons,
as representing the people, was still going on. In strict law, which was unwritten, the position on
that problem of power was not suite clear at that time. The episode is thus described by Lord
Denman, C.J. in Stockdale v. Hansard 180 (at p. 1163).
"The next case to which I advert in truth embraced no question of privilege whatever; but, as
one of the highest authorities in the State has thought otherwise, I shall offer some comments
upon it; I mean Fay v. Topham. The House of Commons ordered the defendant, their sergeant
at-arms, to arrest and imprison the plaintiff for having dared to exercise the common right of all
Englishmen, of presenting a petition to the King on the state of public affairs at a time when no
Parliament existed. For this imprisonment an action was brought. The declaration complained, not
only of the personal trespass, but also of extortion of the plaintiff's money practiced by defendant
under colour of the Speaker's warrant. The plea of justification under that warrant, which could
not possibly authorise the exertion, even if it could the arrest, was overruled by this Court, no
doubt with the utmost propriety, for the law was clear; Lord Ellenborough points this out in the
most forcible manner, in 14 East 109. Yet for this righte
543. In Stockdale v. Hansard (supra) the action of the House of commons, on Fay v. Topham
(supra), was practically declared to be illegal or unconstitutional for arbitrariness. The sovereign
British Parliament, however, did not alter but has acquiesced in the law as stated by Lord Denman
who pointed out, by references to a number of precedents, that common law courts had
continuously been determining questions relating to the very existence of an alleged privilege and
defining its orbit on claims based on the ground of a parliamentary privilege. And, English courts
have gone on doing this unhesitatingly after Stockdale v. Hansard (supra), just as they had done
earlier, as a part of their function and duty to interpret and declare the law as it exists.
544. Let me go back a little further to the time when another English Chief Justice, Sir
Edward Coke, who on being summoned, with his brother Judges, by King James I, to answer why
the King could not himself decide cases which had to go before his own courts of justice, asserted
: ".... no king after the conquest assumed to himself to give any judgment in any cause
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whatsoever, which concerned the administration of justice within this realm, but these were solely
determined in the courts of justice". When the King said that "he thought the law was founded on
reason, and that he and others had reason, as well as the Judges", Coke answered :
"True it was, that God had endowed his Majesty with excellent science, and great
endowments of nature; but his Majesty was not learned in the laws of his realm of England, and
causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be
decided by natural reason, but by the artificial reason and judgment of the law, which law is an act
which requires long study and experience, before that a man can attain to the recognizance of it;
and that the law was the golden metwand and measure to try the causes of the subjects; and which
protected his Majesty in safety and peace. ("The Higher Law-Background of American
Constitutional Law" by Edward S. Corwin, pp. 38-39).
545. We know that Coke even advanced the claim, in Bonham's case that courts could
invalidate Acts of Parliament if they contravened rules of natural justice such as that a man shall
not be heard before he is condemned or that he should be a judge in his own cause. As Ivor
Jennings points out, in an appendix to "The law and the Constitution" (5th Edn., 1959, p. 318) the
theory of parliamentary sovereignty or supremacy could, by no means, be said to be firmly
established in England in Coke's time.
546. Blackstone, while enunciating the theory of parliamentary sovereignty in the 19th
century, as it was to be later expounded in the 20th century by Prof. A. V. Dicey, also claimed
superiority for "the law of nature which was common to all mankind". He said about this law :
"It is binding over all the globe, in all countries, and at all times : no human laws are of any
validity if contrary to this; and such of them as are valid derive all their force and all their
authority, mediately or immediately, from this original; " (See : Dicey- Law of the Constitution, P.
62).
547. It is a matter of legal and constitutional history that English judges finally rejected claims
based upon vague philosophical concepts or upon a law of nature or appeals to the "Yet auguster
thing" pitted against statutory law exception so far as certain rules of natural justice and reason
could impliedly be read into Acts of Parliament due to absence of statutory prohibition and the
need to observe them having regard to the character of the function required by a statute to be
performed. Constitutional historians, such as Holdsworth, have pointed out how English common
lawyers, some presiding as Judges over King's courts of justice, others sitting in Parliament as
legislators, joined hands to evolve, sustain, and give life to principles of "Sovereignty of
Parliament" and the "Rule of law" as understood by them. Dicey asserted, in his "Law of the
Constitution", that both these principles so operated as to reinforce each other instead of coming
into conflict with each other. One wonders whether this coul
548. Willis, dealing with the development of American Constitutional Law, wrote about the
claim of Coke, mentioned above, to invalidate Acts of Parliament by reference to certain
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fundamental principles of natural justice and of common law (See : Willis on Constitutional Law,
1936 Edn. p. 76) :
"This dictum of Coke, announced in Dr. Bohman's case was soon repudiated in England, but
the doctrine announced in Coke's dictum found fertile soil in the United States and sprouted into
such a vigorous growth that it was applied by the United States Supreme Court in the decision of
cases coming before it; and it has been said that the doctrine of the supremacy of the Supreme
Court is the logical conclusion of Coke's doctrine of control of the courts over legislation".
549. It seems to me that judicial review of all law-making, whether it appertains to the sphere
of fundamental law or of ordinary law, is traceable to the doctrine of judicial control by reference
to certain basic principles contained in a Constitution and considered too inviolable to be easily
alterable. It may be that this doctrine is unsuitable for our country at a time when it is going
through rapid socio-economic transformation. Nevertheless, so long as the doctrine is found
embodied in our Constitution, we cannot refuse to recognise it.
550. In America, there was some doubt whether the doctrine of judicial review of all
legislation naturally flowed out of the vesting of judicial power by Section 1 of Article 3 of their
Constitution which says :
"The judicial power of the United States shall be vested in one Supreme Court, and in such
inferior Courts as the Congress may, from time to time, ordain and establish". (Willis on
Constitutional Law, p. 1020).
There is no article there, like Article 13 of our Constitution, which declared any kind of
legislation abridging or taking away fundamental rights to be "void". The doubt was not without
substance. It was removed by Chief justice Marshall whose judgment in Marbury v. Madison,
firmly established the doctrine of judicial review and the supremacy of the Supreme Court of
America, in the judicial field of interpretation, as the mouthpiece of the Constitution, and,
therefore, of the "Real Will" of the people themselves. The Constitution, as the basic or
fundamental law of the land, was to operate there as the touchstone of the validity of ordinary
laws just as the validity of laws made by British colonial legislatures was tested by reference to the
parental Act of the British Parliament.
551. Under our Constitution, by Article 141 of the Constitution, power is vested only in the
Supreme Court and in no other organ or authority of the Republic to declare the law "Which shall
be binding on all Courts within the territory of India". Article 143 of the Constitution of India also
shown that whenever questions of facet of law have either arisen or are likely to arise, the
President of India may, in view of their public importance, seek the opinion of the Supreme Court,
by a reference made to the Court. The procedure on such a reference is that of a judicial authority
which hears those interested and then gives its opinion. Article 32 of the Constitution gives a wide
power to the Supreme Court "to issue directions or orders or writs", which is larger than that of
the British courts issuing prerogative writs, although it is confined to the enforcement of the rights
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conferred by Part III dealings with fundamental rights. The power of the High Courts of the
various States under Article 226 of the Cons
552. The claim therefore, that an amalgam or some undifferentiated residue of inherent power,
incapable of precise definition and including judicial power, vests in Parliament in its role as a
constituent authority, cannot be substantiated by a reference to any article of the Constitution
whatsoever, whether substantive or procedural. Attempts are made to infer such a power from
mere theory and speculation as to the nature of the "constituent power" itself. I do not think that,
because the constituent power necessarily carries with it that power to constitute judicial
authorities, it must also, by implication, means that the Parliament, acting in its constituent
capacity, can exercise the judicial power itself directly without vesting it in itself first by an
amendment of the Constitution. The last mentioned objection may appear to be procedural only,
but, as a matter of correct interpretation of the Constitution, and, even more so, from the point of
view of correct theory and principle, from which no practi
553. This impels me to consider such theories of sovereignty as we may find embedded in our
Constitution. It is noteworthy that the phrase "sovereignty and integrity of India" was inserted in
1963 in Article 19(2), (3) and (4), to denote the political independence and wholeness of the
country, vis-a-vis other countries. It was also introduced in the oaths of "allegiance" to the
Constitution prescribed in the Third Schedule indicating that the duty to uphold the "sovereignty
and integrity of India" from a recognition of the supremacy of the Constitution. The term
"sovereign" is only used in the preamble of our Constitution, which says :
"We, the people of India, having solemnly resolved to constitute India into a Sovereign
Democratic Republic and to secure to all its citizens :
#* * * * * *##
In our Constituent Assembly this twenty-sixth day of November, 1949 do hereby adopt, enact
and give to ourselves this Constitution."
554. This Court, exercising the powers vested in it under the Constitution to declare the law
of the land, cannot go behind the clear words of the Constitution on such a matter. We have to
presume that the Constitution was actually made by the people of India by virtue of their political
sovereignty which enabled them to create a legally Sovereign Democratic Republic to which they
consigned or entrusted, through the Constitution, the use of sovereign power to be exercised, in
its different forms, by the three different organs of Government, each acting on behalf of the
whole people, so as to serve the objects stated in the Preamble. This reference to "the people of
India" is much more than a legal fiction. It is an assertion in the basic legal instrument for the
governance of this country of the fact of a new political power. The legal effect of the terms of
the instrument is another matter.
555. It has been pointed out, in the Kesavananda Bharati's case (supra), that the preamble of
our Constitution did not like that of the American Constitution, "walk before the Constitution"
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but was adopted after the rest of the Constitution was passed, so that it is really a part of the
Constitution itself. It means that the Constitution is a document recording an Act of entrustment
and conveyance by the people of India, the political sovereign, of legal authority to act on its
behalf to a "Sovereign Democratic Republic"."This Constitution" has a basic structure comprising
the tree organs of the Republic : the Executive, the Legislature, and the Judiciary. It is through
each of these organs that the Sovereign Will of the People has to operate and manifest itself and
not through only one of them. Neither of these three separate organs of the Republic can take
over the function assigned to the other. This is the basic structure or scheme of the system of
Government of the Republic laid down in this Constitutio
556. In Kesavananda Bharti's case (supra), I had approvingly quoted the view of Prof. Ernest
Barker, who, in his "Principles of Social and Political Theory", claiming to be elaborating the
theory underlying the preamble to our own Constitution, pointed out that, inasmuch as the
Constitution is the instrument which regulates the distribution between and exercise of sovereign
power, by the three organs of the State, and it is there constantly to govern and to be referred to
and to be appealed to in any and every case of doubt and difficulty, it could itself, conceptually, be
regarded as the true or "ultimate" sovereign, that is to say, sovereign as compared with
"immediate" sovereignty of an organ of the Republic acting within its own sphere and at its own
level.
557. Of course, inasmuch as the power of altering every feature of the Constitution remains
elsewhere politically, the Constitution is neither the ultimate "political" sovereign nor a legally
unalterable and absolute sovereign. All constitutional and "legal" sovereigns are necessarily
restrained and limited sovereigns. I thought and still think that such a working theory should be
acceptable to lawyers, particularly as the dignitaries of State, including judges of superior courts,
and all the legislators, who have to take oaths prescribed by the Third Schedule of our
Constitution, swear "allegiance" to the Constitution as though the document itself is a personal
ruler. This accords with our own ancient notions of the law as "The King of Kings" and the
majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means.
558. The theory outlined above would, of course, be unacceptable if sovereignty must
necessarily be indivisible and located in a determinate living person or persons- a really medieval
concept which is not generally employed today even to describe the titular hereditary monarchs as
"sovereign" as the human ruler. Modern theories of even political sovereignty advanced by the
Pluralist School- e.g. Gierke, Duguit, McIver, Laski- look upon it as divisible and not as absolute
and unlimited. Indeed they go to the extent of practically denuding sovereignty of all its
customary connotations. Duguit abandons "sovereignty" as an obsolescent doctrine and displaces
it by the ruling principle of "sovereignty" as an obsolescent doctrine and displaces it by the ruling
principle of "social solidarity". McIver thinks that the traditional concepts of sovereignty,
dominated too long by legalistic Austinian views, needs to be discarded. His conclusion is that the
State, with which doctrine of sovereignty has been bound up,
"At any moment the State is more the official guardian than the maker of the law. Its chief
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task is to uphold the rule of law, and this implies that it is itself also the subject of law, that it is
bound in the system of legal values which it maintains." (See : R. M. McIver : "The Modern
State" p. 478)
Laski, while mainly accepting this rather negative approach, reminiscent of 19th century
liberalism, would accord the State a much more positive role in the interests not only of social
order but also of socio-economic engineering and progress.
559. Marxist, who saw in the State and its laws and all institutions supporting an existing
social order, the means of oppression and exploitation of the mass of the people, dreamt of the
"withering away" of the State with its claims to "sovereignty". But, the Russian Revolution was
followed by the vastly increased powers of the State run for the benefit of the proletariat.
Nevertheless, the Constitution of the U. S. S. R. guarantees to citizens not merely fundamental
rights, including the right to work, but has a special department of the Procurator General to
enforce due observance of legality according to the law of the Constitution, by all the
functionaries of State. Article 104 of their Constitution reads.
"104. The Supreme Court of the U. S. S. R. is the highest judicial organ. The Supreme Court
of the U. S. S. R. is charged with the supervision of the judicial activities of all the judicial organs
of the U. S. S. R. land of the Union Republic within the limits established by law. " (See A
Denisov, M. Kirichenko : Soviet State Law, p. 400)
560. It is true that legality is enforced in the U. S. S. R. not merely through the organs of the
State but the vigilance of the Communist party which consists of selected persons keeping a
watch on the policy of the State. A. Y. Vyshinski, however explained (See : Fundamental Tasks
of Soviet Law 1938) that Soviet "law can no more be reduced simply to policy than cause can be
identified with effect". Strict observance of "Socialist Legality", under the supremacy of the
Constitution, is entrusted to the care of the State, with its three organs, the Communist Party, and
the people of the U. S. S. R. (See : "The Soviet Legal System" by M/s. John N. Hazard and Issac
Shapiro). Although Article 15 of the Constitution of the U. S. S. R. speaks of the "Sovereignty
and Sovereign Rights" of the Union Republic, yet, it is made clear that these republic function
subject to the supremacy of the Constitution. Hence, the supremacy of the Constitution is a
principle recognised by the Constitution of the U. S. S. R. also as
561. Gierke made a wide survey and a penetrating analysis of juristic thinking upto the end of
the 10th century on sovereignty, derived, on the one hand, from theories of the sovereignty of the
ruler, and, on the other from theories of popular sovereignty. He observed (See : "Natural Law
and Theory of Society" by Otto Gierke translated by Ernest Barker, Vol. I, p. 153) about the
approach of Kant :
"Kant sketches, indeed, an ideal constitutional State in which popular sovereignty is nominally
present : but no living 'subject' of supreme authority is anywhere really to be found in this State.
The 'bearers' of the different powers (legislative, executive and judicial) are supposed to govern,
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but each is subject to a strict legal obligation appropriate to its own sphere; and over them all, as
the Sovereign proper, the abstract Law of Reason is finally enthroned."
He concluded (at p. 153) :
"The history of the theory of constitutionalism shows how a doctrine derived from the
principle of popular sovereignty could produce almost the same results as the other (and
apparently opposite) system of thought which started from the principle of the sovereignty of the
ruler. In the one case, just as in the other, the inviolability of sovereignty, and the unity of the
personality of the State, are sacrificed, in order to attain the possibility of a constitutional law
which is binding even on the Sovereign.
562. A theory of a "Legal Sovereignty" must necessarily democrate the sphere of its "legal" or
proper operation as opposed to mere use of power either capriciously or divorced from human
reason and natural justice. Ernest Barker's statement of it, quoted by me in Kesavananda's case
(supra), seemed to me to satisfy this requirement. After pointing out that sovereignty, by which I
understand one recognised by law, is limited both by its own "nature" as well as its "mode of
action", it concludes : (at pp. 867-868) :
"Sovereignty moves within the circle of the legal association, and only within the circle it
decides upon questions of a legal order, and only upon those questions. Moving within that circle,
and decides upon questions of a legal order, and only upon those questions. Moving within that
circle, and deciding upon those questions, sovereignty will only make legal pronouncements, is
not a capricious power of doing anything in any way : it is a legal power of settling finally legal
questions in a legal way."
There should be no difficulty in accepting such a theory if one can conceive of an ordered
system or "government of laws" as opposed to a "government of men" placed beyond limitations
of this kind. At any rate, it is implicity in the very idea of a Constitution. Our Constitution not
only regulates the operations of the organs of State but symbolises the unity of the republic and
contains the inspiring hopes and aspirations and cherished goals of all the efforts of the nation. It
operates not merely through the law but also on the minds and feelings of the people.
563. Prof. Willis, in his "Constitutional Law of the United States" advocates the doctrine of
"sovereignty of the people" for which he finds support in Abraham Lincoln's well-known
description of the American system as "a Government of the people, for the people, for the
people, by the people" as well as in a number of pronouncements of the American Supreme
Court. After considering and rejecting a whole host of theories of political philosophers and
jurists, including those of Bodin, Hegel, Hobbes, Locke, Rousseau, Fichte, Kant, Austin, Brown,
Dicey, Willoughby, Duguit and Laski, he opines (at p. 51) :
"As Dewey says, the forces which determine the government are sovereign. The effective
social forces are not the Union, nor the States, nor the oligarchy of States, nor the organs of
Government, nor the Constitution, nor natural law, but those forces which created these
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organisations and agents and institutions, and to whom they are all ultimately responsible."
According to him, the "Sovereignty of the People" which he advocates does not mean an
anarchic license given to each individual or group to do as he or it pleases, but stands for the
power of the people, "organised in Government to express and adjust their will either directly or
through representatives". He explains, in the rest of his work, how the Government of the U. S.
A., in the broader sense of all that social control which, operating through the three departments
of State, has to take place in accordance with the Constitution. This concept of a nation
"organised in Government" appears to me to clearly introduce the idea of a Constitution which
lays down what the organisation is and how it must operate. Although Prof. Willis rejects the
view that the Constitution is "sovereign", because it can be altered by the people, he is obliged to
accept something resembling it because he sees that the "people", thought of as a mere
aggregation or an amorphous mass, is too nebulous. Any satisfactory theory of sov
564. Another American writer, Willoughby, has put forward the view that sovereignty, as an
attribute of the State, conceived of as a juristic entity apart from its governmental organs, cannot
be legally limited. According to him, to limit it is to destroy it. He says (See : Willoughby on
"Fundamental Concepts of Public Law"- Tagore Law Lectures, 1924, at p. 77) :
"There would seem to be no more value in attaching legal rights and duties to the sovereign
State than there is in predicating the attributes of goodness and justice of a Divine Being who is
regarded as Himself the creator, by His own unrestrained will, of all distinctions between
goodness and badness."
But, this seems a metaphysical than a realistic, more amoral Hobbes Machiavellian than a
Dante-Gandhian stance. If one's concepts of the Divine Being are to be introduced it no law, one
could refer to those also which see Divinity only that order and that Law which seems to pervade
and govern the whole physical world the universe. Indeed, there are judicial dicta to the effect that
God Himself considered Himself bound by those elementary principles of justice whose love was
planted in man by Him. In Cooper v. Wandsworth Board of Works, Byles, J. observed.
"The laws of God and man both give the party an opportunity to make his defence, if he has
any. I remember to have heard it observed by a very learned man, upon such an occasion, that
even God himself did not pass sentence upon Adam before he was called upon to make his
defence.'Adam' (says God), 'where art thou? Has thou not eaten of the tree whereof I commanded
thee that thou shouldst not eat? And the same question was put to Eve also."
565. It is clear that no simple theory of sovereignty fits the complex facts of modern life.
Every theory of today, ultimately, rests on concepts more refined than the physical or spiritual
might of some ruler, in whom executive, legislative, and judicial powers coalesce to take away all
legal distinction between them. Even Willoughby, dealing with constitutionalism (Willoughby on
"Nature of the State" 198, at p. 302) says :
"The value of constitutional government is not that it places sovereignty in the hands of the
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people, but that it prescribed definite ways in which this sovereign power shall be exercised by the
State".
Hence, he too admits that the Constitution does place some limitation on exercise of sovereign
power. That seems to me to be the essence of a Constitution and the rationale of its existence.
566. Still another American writer, Orfield, in the course of his discussion (See : "The
Amending of the Federal Constitution" by Lester B. Orfield 1971), of a number of concepts of
sovereignty, seems sometimes to almost consider Article 5 of the American Constitution,
containing the constituent power and its procedure, to be sovereign. He concludes his discussion
on the subject as follows (at p. 166) :
"Each part of the amending body is subject to law, and may be altered or abolished. The
amending body itself may be altered through the amending process, and limitations on the future
amending capacity may be imposed. The amending body is an artificial sovereign deriving its
being from a law in the form of Article Five. The amending groups hold office for but a short
time, and may be supplanted by others in the elections in which an increasingly larger electorate
participates. The theory of sovereignty, moreover, presupposes the continued orderly existence of
the government. In case of a revolution the commands of the sovereign would be disregarded, and
authority could no longer be ascribed to the amending body either in fact or in law. The moral,
religious, physical, and other factual limitations on the supposed sovereign are so important that it
may perhaps be correct to say that they are also legal limitations, as there comes a time when law
and facts shade into one another. Finally, when it is remembered
He rejects the concept of sovereignty of the people as too vague and meaningless. And, for
the reasons given above, he rejects the theory of a sovereignty of the amending body. His final
conclusion seems to be that it is better to avoid altogether entanglement in the concept of
sovereignty. This view, however, overlooks the fact that lawyers need a working theory of
sovereignty to be able to decide legal questions before them. As between the sovereignty of the
amending article and the sovereignty of the Constitution there should be little, doubt that lawyers
should and would prefer the sovereignty or supremacy of the whole Constitution rather than of
any part of it. On the face of it, it appears more reasonable and respectable to swear allegiance to
the whole Constitution, as we actually do, rather than to Article 368 or to the amending powers
contained in it. If there is a part of our Constitution which deserves greater devotion than any
other part of it, it is certainly the preamble to our Constitution.
567. The American Supreme court, in the context of the especially American conditions and
needs, after leaning sometimes towards a recognition of "State Sovereignty" (See. Ware v.
Hylton; Dred Scott v. Sandford) and at others towards a recognition of the dual system of
Government which has prevailed in America (See : e.g. Gibbus v. Ogden) has, on the whole
opted, of the "Sovereignty of the People" which unifies the nation (See e.g. White v. Heart, Keith
v. Clark; National Prohibition Cases).
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568. I cannot, while I am on the subject of American conditions, resist the temptation to quote
the trenchan comments of Prof. Willis on what he considers to be the dangers of the American
system of government. He wrote (at pp. 68-69) :
"But the greatest danger in popular sovereignty does not lie in the intellectual field, but in the
moral. While our intellectual level is not as high as it ought to be, our moral level is much lower
than it can safely be if our form of government is to endure permanently. Millions of our citizens
are already members of the criminal class. Millions of other citizens who are not yet members of
the criminal class are in he economic world doing things just as bad as the things which members
of the criminal class are doing. Millions of our people are concerned with their own selfish
interests instead of the common good. Millions of our citizens are only too ready to ruin
themselves and the rest of our people physically, intellectually, and morally by drugs and
intoxicating liquors and vices. Our people do not seem to be much concerned with high ideals in
any of the fields of human endeavour. Our people as a whole do not seem to be seriously
concerned with social planning for the purpose of obtaining an ideal soci
The effects of the moral standards of our people are already manifest. As a result of our
political and economic theories, there has developed a concentration of wealth unparalleled in
human history. While on the whole the economic level is comparatively high in the United States,
the difference between the wealth of the many and that of the few is startling. One-fourth of the
families in the United States before the depression had incomes of less than $ 500 and two-thirds
of the families in the United States incomes of less than $ 1,000, while 2 per cent of our
population owned 65 per cent of the wealth. There were four men any one of whom had an
income as large as five million of the poorest people in the United States. This concentration of
wealth was probably one of the primary causes of the depression, and the depression has
threatened our capitalistic system. This only shows the danger inherent in our political
organisation."
569. If the people of an advanced country like the U. S. A., left entirely to the concept of
popular sovereignty, have revealed the need for a more positive guiding or moulding role of their
State so as to overcome the dangers adverted to by Prof. Willis, how much greater are the needs
of a people potentially so great but actually so backward economically and educationally as ours,
taken en masse, still are? Our concepts of sovereignty must accord with the needs of the people of
our country. Our Constitution, which has been described by G. Austin as "the cornerstone of the
Nation", was devised as a means to serve those needs. It has not only the elevating preamble,
deserving the allegiance of every rational human being, but, unlike the American Constitution, the
whole of Part IV of our Constitution which contains "Directive Principles of State Policy" to
guide the future course of State action particularly in the legislative field. It is true that provisions
of Part IV are not enforceable through the courts
570. I find that the doctrine of the supremacy or sovereignty of the Constitution was adopted
by a Bench of seven learned Judges of this Court in Special Reference No. 1 of 1964, where
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Gajendragadkar, C.J., speaking for six learned Judges of this Court said (at p. 446) :
"In a democratic country governed by a written Constitution which is supreme and sovereign.
It is no doubt true that the Constitution itself can be amended by the Parliament, but that is
possible because Article 368 of the Constitution can be validly made only by following the
procedure prescribed by the said article. That shows that even when the Parliament purports to
amend the Constitution, it has to comply with the relevant mandate of the Constitution itself.
Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the
relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to
the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that
the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any
Legislature in India in the literal absolute sense."
571. The principle of the supremacy of the Constitution was then declared by the majority of
the learned Judges of this Court in Kesavananda Bharati's case (supra) to be a part of the basic
structure of the Constitution. The minority opinion, while not specifically dissenting from this
view, was that even what was considered by the majority to be a part of "basic structure" was
alterable under Article 368. But no judge of this Court has so far held that, without attempting to
change what may be the basic structure of Constitution itself, appropriate amendments, judicial
power could be exercised by Parliament under Article 368 on the assumption that it was already
there.
572. M. C. Setalvad, a distinguished jurist of India, said (See : "The Common Law of India"
Hamlyn Lectures, 12th series, 1960) (at pp. 174-175) :
"The Constitution divides the functions of the Union into the three categories of executive,
legislative and judicial functions following the pattern of the British North America Act and the
Commonwealth of Australia Act. Though this division of functions is not based on the doctrine of
separation of powers as in the United States yet there is a broad division of functions between the
appropriate authorities so that, for example, the Legislature will not be entitled to arrogate to
itself the judicial function of adjudication.'The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently differentiated and consequently it can very well
be said that our Constitution does not contemplate assumption, by one organ or part of the State,
of functions that essentially belong to another.' (See : Rai Saheb Ram Jawaya Kapur v. State of
Punjab). This will no doubt strike one acc
573. A. V. Dicey, the celebrated propounder of the doctrine of the sovereignty of Parliament,
had criticized Austin for frequently mixing up "legal sovereignty" and "political sovereignty" (See
: Law of the Constitution by A. V. Dicey, 10th Edn., p. 72). He contrasted the British principle of
"Parliamentary Sovereignty" with what was described by him the "Supremacy of the Constitution"
in America. He observed (at p. 165) :
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"But, if their notions were conceptions derived from English law, the great statesmen of
America gave to old ideas a perfectly new expansion, and for the first time in the history of the
world formed a Constitution which should in strictness be 1 the law of the land', and in so doing
created modern federalism. For the essential characteristics of federalism- the supremacy of the
Constitution the distribution of powers the authority of the Judiciary- reappear, though no doubt
with modifications, in every true federal State."
He said (at p. 144) :
"A federal State derives its existence from the Constitution, just as a corporation derives its
existence from the grant by which it is created. Hence, every power, executive, legislative, or
judicial, whether it belong to the nation or to the individual States, is subordinate to and
controlled by the Constitution."
He wrote about the American Supreme Court (at p. 159) :
"Of the nature and position of the Supreme Court itself this much alone need for our present
purpose be noted. The court derives its existence from the Constitution, and stands therefore on
an equality with the President and with Congress; the members thereof (in common with every
Judge of the Federal Judiciary) hold their places during good behaviour, at salaries which cannot
be diminished during a judge's tenure of office."
574. The theory of the supremacy of the Constitution is thus not a new one at all. It is inherent
in the very concept of "the auguster thing" which lies behind Parliament or King and is sought to
be embodied in the Constitution of a country. The judges, who are vested with the authority and
charged with the duty to uphold the Constitution, do so as the mouth-pieces of what has been
called the "Real Will" of the people themselves by political philosophers such as Bosanquet. That,
as I have indicated earlier, is the theory underlying the system of judicial review. Such a system
may delay changes but should not, I think, speaking entirely for myself, deny or defeat the right of
the people to bring about any change, whether basic or not, in the Constitution. Indeed, in
Kesavananda Bharati's case (supra), I indicated that I thought that the most proper and
appropriate function of the amending power in Constitution, which is also a part of the
Constitution, and, indeed, its most potent part- was that of making ba
575. It has not been argued before us that the introduction by the Twenty-fourth Amendment
of the new clause (1) in Article 368, containing "constituent power", itself amplifies or increases
the contents or changes the character of the power in Article 368 by making it a composite power
so as to include a new type of judicial or quasi-judicial power also within its fold now. It is
evident from the judgments of learned Judges of this Court in Golaknath's case (supra) that
possible distinctions between amending power and "constituent power" and "sovereign power"
figured prominently in arguments in that case. Wanchoo, J., in his minority opinion [See : (1967)
2 SCR at p. 833], said that it was not necessary, for the purposes of that case, whether the
amending power was as wide as the "sovereign power" of the Constituent Assembly which had
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framed our Constitution. After all the discussion that had taken place then, came the
Twenty-fourth Amendment. It does not use the words "constituent power" were advisedly use
576. The "constituent power" is still bound by the exclusively prescribed procedure to "amend
by way of addition, variation, or repeal" any elaborately set out in clause (2). In fact, Article 368
contains so much of the fundamental law-making or legislative procedure that five judges of this
Court, led by Subba Rao, C.J., opined in Golaknath's case (supra), that it was confined to
procedure and did not contain at all the substantive power to amend. Clause (1) of Article 368,
introduced by the Twenty-fourth Amendment, was, apparently, meant to remove this objection
and to do no more. It could be intended to pour some new amalgam of executive and judicial or
quasi-judicial substantive powers into it also by some implication so as to do away with the very
need for such an elaborate and carefully drawn up Constitution such as ours. The absence of any
quasi-judicial procedure, from the comprehensively framed procedural provisions of Article 368,
seems extremely significant. It indicates that it was clear intentio
577. Learned Counsel supporting the Thirty-ninth Amendment tried to find the meaning of
"constituent power" in theoretical speculations about the meaning of "sovereignty of the people",
on the one hand, and the sovereignty of the medieval monarch, on the other, instead of looking to
the legislative history of the "constituent power". I have, therefore, also referred to some of these
theories and practices from ancient times so as to be able to indicate the precise significance or
relevance of various concepts and decisions placed before us. These theories and practices could
have only an indirect bearing on the meaning of the term "constituent power" in Article 368. They
are more germane to a statement of a correct theory of sovereignty which underlies what has been
called the "basic structure" of our Constitution.
578. There are scattered dicta in the judgments of this Court speaking of the "sovereignty of
the people" which, in my opinion, can only be related to the political sovereignty of the people
recognised by the preamble to our Constitution where the people are described as the
Constitution-makers who gave the Constitution unto themselves. This, however, does not, in my
opinion, mean that the people retained unto themselves any residue of legal sovereignty. They did
not prescribe, apart from dividing the exercise of sovereign power roughly between the three
organs of the Republic, each with its own modus operandi, any other or direct method, such as
Initiative or Referendum, for exercising their politically sovereign power. The view I have tried to
put forward in the foregoing pages is that the people entrusted to the three organs of the
Sovereign Democratic Republic they constituted the exercise of three aspects of sovereign power
on behalf of the people. This seems to me to be the only way of reconciling the
579. I have tried to point out that the term sovereignty in its origin is associated with the
actual human ruler or authority wielding theoretically absolute or final powers. Political
philosophers are particularly concerned with the problem of determining the location and manner
of exercise of such powers if any. Jurists, however, have also occupied themselves with these
problems partly because constitutional law, as Dicey once pointed out, has some overlapping
territory with the political theory which underlies it. Some constitutional lawyers, such as Ivor
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Jennings, have said that it is flirtation with political theory which has brought into the juristic fold
a term such as 'Sovereignty'. On the other hand, political theorists, such as McIver, have blamed,
far less justly, jurists like Austin for infecting political theory with legalistic authoritarian notions
of sovereignty. Political theorist, in their attempts to understand and rationalize, and sometimes to
justify or condemn a system are more concerned
580. I do not think that it is at all helpful to refer to certain authorities of this Court which
were, rather surprisingly, relied upon by learned Counsel supporting the Thirty-ninth Amendment
to discover the nature of the "constituent power" contained in Article 368. I will content myself
by citing a passage from the last of these cases relied upon which mentions the earlier cases of this
Court also on the effect of a "firman" in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan.
Gajendragadkar, J. speaking for this Court, said (at p. 591) :
"In appreciating the effect of this firman, it is first necessary to decide whether the firman is a
law or not. It is matter of common knowledge that at the relevant time the Maharana of Udaipur
was an absolute monarch in whom vested all the legislative, judicial and executive powers of the
State. In the case of an absolute ruler like the Maharana of Udaipur, it is difficult to make any
distinction between an executive order issued by his or a legislative command issued by him. Any
order, issued by such a ruler has the force of law and did govern the rights of the parties affected
thereby. This position is covered by decisions of this Court and it has not been disputed before us.
Vide Madhaorao Phalke v. State of Madhya Bharat; Ameer-un-Nisa Begum v. Mahboob Begum
and Director of Endowments, Government of Hyderabad v. Akram Ali."
581. It is evident, from the quotation, relied upon by the Solicitor-General, that this Court was
not deciding whether the firman was even a "law" in the sense of a general norm which had to be
applied to the decision of cases. It was held that whatever be its juristic character, it had the
"force of law" inasmuch as the ruler of Udaipur was an absolute ruler, who combined in his
person the legislative, the judicial and executive authority of the State. That was the Constitution
of Udaipur. The doctrine of separation of powers, in such a context, was really irrelevant. Article
368 of our Constitution, however, is not a power acquired by our Republic by State succession
from he power of Indian ruling princes. The legislative history behind it is entire different.
582. As a matter of legislative history, we will find the source of the "Constituent power" in
Section 6 & 8 of the Indian Independence Act passed by the British Parliament. Section 6 of that
Act constituted a "Legislature" for each of two dominions set up with plenary powers of
legislation. The legislative powers of the Legislature of each dominion were so enlarged by
Section 8 that it could frame the Constitution of the Dominion concerned. This was a transfer of
only a legislative power. Section 8 said :
"For the purpose of making provision as to the Constitution of the dominion, the Legislature
of the dominion was recognised as the constituent assembly of the dominion."
These powers were "plenary" in the sense in which this term is used in Queen v. Burah, but
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they were confined to law-making and did not extend to adjudication or decision of individual
cases which is certainly distinguishable from a law-making power. For purposes other than
framing of the Constitution, provisions of the Government of India Act operated until they were
repealed and replaced by other relevant provisions. Such was the process of a legislative
succession through which institutional transformation or transition to a new but corresponding set
of institutions was brought about. In the eyes of law, this was an evolutionary process through
constitutional channels and not a revolutionary break with the past.
583. I is true that, in the exercise of the law-making constituent power, brought in by Section
8 of the Indian Independence Act, the Legislatures could be armed with judicial powers as well if
appropriate laws were made to that effect. But, as no law, either constitutional or ordinary was
passed, preceding Thirty-ninth Amendment to repeal the Act or 1951 and then to vest a judicial
power in Parliament, so as to enable it to take over and decide election disputes itself directly. I
do not see how clause (4) of Article 329A, if it contained certain provisions on the assumption
that such a judicial power was already there in Parliament, could be valid as a piece of mere
law-making. However, Counsel supporting the Thirty-ninth Amendment had submitted that
Article 329A (4) evidenced the constituted an exercise of some "unbroken" or a combined
legislative and judicial power- a proposition for which no precedent of any such consolidated
action of a constituent body was cited from any part of the world. The firman
584. An attempt was made to convince us that what may not have been otherwise possible for
Parliaments do became possible by invoking the presumed exercise of some judicial power
imported by Article 105(3) of the Constitution which says :
"105. (3).... the powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, shall be those of the House of Commons of the
Parliament of the United Kingdom, and of its members and committees, at the commencement of
this Constitution."
585. I am unable to see how what was not conferred upon Parliament itself, in its constituent
capacity, could be impliedly assumed to be there by virtue of certain "powers, privileges and
immunities" which belong separately to each House of Parliament. Such a claim could not be
based upon what is to be found directly in Article 368. It is sought to be derived from Article 105.
This reasoning would, obviously, conflict with the provisions of Article 329(b) of the Constitution
which indicates that an election dispute can only be resolved by an election petition before a
forum provided by an ordinary enactment. Article 329(b) says :
"329. (b) 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."
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586. In exercise of its powers under Article 329(b) our Parliament had enacted the Act of
1951. The procedure provided by the Act had the binding force of a constitutionality prescribed
procedure. It could not be circumvented unless, with reference to cases covered by Article
329A(4), it had been first repealed. Only after such a repeal could any other forum or procedure
be legally adopted. It could not be assumed, by reason of Article 105(3), that the prescribed
forum had shifted to Parliament itself, and that Parliament, in exercise of its constituent function,
had both legislated and adjudicated. This is what we were asked to accept.
587. The well recognised rule of construction of statutes, which must apply to the
interpretation of the Constitution as well, is : "Expressio unius est exclusio alterius". From this is
derived the subsidiary rule that an expressly laid down mode of doing something necessarily
prohibits the doing of that thing in any other manner. The broad general principle is thus
summarised in Crawford's "Statutory Constructions" (1940) at p. 334 :
"Express Mention and Implied Exclusion (Expressio unius est exclusio alterius.- As a general
rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another
thing. It therefore logically follows that if a statute enumerates the things upon which it is to
operate, everything else must necessarily, and by implication, be excluded from its operation and
effect. For instance, if the statute in question enumerates the matters over which a court has
jurisdiction, no other matters may be included. Similarly, where a statute forbids the performance
of certain things only those things expressly mentioned are forbidden. So also, if the statute
directs that certain acts shall be done in a specified manner, or by certain person, their
performance in any other manner than that specified, or by any other person than one of those
named, is impliedly prohibited."
588. It is interesting to note that in the Australian Constitution, where there is Article 49,
using language very similar to that of Article 105(3) of our Constitution, there is also a separate
but differently cast Article 47 of the Australian Constitution corresponding to Article 329(b) of
our Constitution. This article runs as follows :
"Article 47. Unit the Parliament otherwise provides, any question respecting the qualification
of a senator or of a member of the House of Representatives, or respecting a vacancy in either
House of the Parliament, any question of a disputed election to either House, shall be determined
by the House in which the question arises."
589. What is separately, expressly, and especially provided for by Article 329 (b) must
necessarily fall outside the purview of Article 105(3) on the principle stated above. Moreover,
Article 105(3) contained a temporary provision until other provision was made by Parliament in
that behalf. Appropriate provision were enacted by the Act of 1951 in compliance with Article
329(b) because that was the proper article for it. It would be idle to contend that these provisions
suddenly lapsed or ceased to exist as soon as Parliament took up consideration of the issues and
the grounds of the decision on them by the High Court to which reference is made in Article
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329A(4), could only be a law-making power and not any other power which could conceivably
fall under Article 105, Sub-Article (3). Nevertheless, it was suggested, by copious references to
the origin of the power of the House of Commons to decide disputs relating to elections, that
such a power exits in each House of our parliment as its inherent power. Such
590. The reason why the House of Commons itself saw the need for entrusting to a rota of
High Court judges, the jurisdiction at one time exercised by it directly to determine its election
disputes, is found thus stated by Blackstone, quoting Erskine May's "Parliamentary Practice and
Procedure" (at pp. 153-155) :
"For a considerable time after the House had obtained this jurisdiction, controverted elections
were tried by committees specially nominated, composed of privy councillors and burgesses, well
qualified for the duties entrusted to them. But after 1672, it became an open committee, in which
all who came had voices, and at length a hearing at the bar of the House was considered
preferable to an inquiry by a committee. Here again, to use the words of Sir Erskine May, "the
partiality and injustice of the judges was soon notorious. Parties tried their strength........ the
friends of rival candidates canvassed and maneuvered, and seats corruptly gained, were as
corruptly protected or voted away. Such were the results of the usurpation of judicial functions by
a popular body".
In order to remedy, if possible, these unquestionable evils, the statute 10 Geo. III c. 16, called
from its author the Grenville Act, was passed in 1770, and the trial of election petitions
transferred to a select committee of thirteen members, which it was thought would be 'a court
independent of the House, though composed of its own members'. For a time there was a marked
improvement in the decision of controverted elections.'But too soon it became evident that
corruption and party spirit had not been overcome. Crowds now attended the ballot, as they had
previously come to the vote.......... not to secure justice, but, to aid their own political friends.'
The party, whether of the petitioner or sitting member, which attended in the greatest number
inevitably had the numerical majority of names drawn for the committee, and from this list, the
petitioner and sitting member struck out alternately one name until the committee was reduced to
thirteen : the majority of the house was necessarily a majority of the
By these means the majority of the House continued, with less directness and certainty, and
perhaps with less open scandal, to nominate their own members, as they had done before the
Grenville Act. And for half a century, this system with slight variations of procedure was suffered
to prevail. In 1939, however, the ballot was at length superseded by Sir Robert Pel's Act,
committees were reduced to six members, and nominated by an impartial body..... the General
Committee of Elections. The same principle of selection was adhered to in later Acts, with
additional securities for impartiality, and the committee was finally reduced to five members. The
evil was thus greatly diminished, but still the sinister influence of party was not wholly overcome.
In the nomination of election committees, one party or the other necessarily had a majority of one,
and though these tribunals undoudtedly became far more able and judicial, their constitution and
proceedings often exposed them to imputation of political bias.
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At length by the statute 31 & 32 Vict. c. 125, the trial of election petitions was transferred to
certain of the puisne judges at Westminster, who selected annually to form a rota for this specific
purpose, and who inquire upon the spot in open court into the allegations of a petitioner, either
claiming a seat, or alleging an undue return or election. The decision of the judge, who has power
to reserve his judgment until he has consulted the Common Pleas division of the High Court, in
which these proceedings are instituted, is final to all intents and purposes; the House of Commons
being bound to "give the necessary directions for confirming or altering the returns or for issuing
a writ for a new election, or carrying such determination into execution as circumstances may
require". And this abstract of the proceedings at elections of knights, citizens, and burgesses,
concludes our inquiries into the laws and customs more peculiarly relative to the House of
Commons."
591. I do not think that it is possible to contend, by resorting to some concept of a succession
to the powers of the medieval "High Court of Parliament" in England, that a judicial power also
devolved upon our Parliament through the Constituent Assembly, mentioned in Section 8 of the
Indian Independence Act of 1947. As already indicated by me, the Constituent Assembly was
invested with law-making and not judicial powers. Whatever judicial power may have been
possessed once by English King, sitting in Parliament, constituting the highest Court of the realm
in medieval England, have devolved solely on the House of Lords as the final court of appeal in
England."King in Parliament", had ceased to exercise judicial powers in any other way long before
1950. And, the House of Commons had certainly the "King in Parliment" with the possible
exception of the power to punish for its contempts. I use the qualifying word "possible" because
the more correct view of it today may be that this power is also, as it is consid
592. In Erskine May's Parliamentary Practice (18th Edn.), after citing the opinions of judges,
to whom a reference was made by the House of Lords in Thorpe's case (1451), that "Lex
Parliamenti" seemed something as strange and peculiar as foreign law is for common law courts, it
was explained (at page 187) :
"These views belonged to a time when the distinction between the judicial and legislative
function of Parliament was undrawn or only beginning to be drawn, and when the separation of
the Lords from the Commons was much less complete than it was in the seventeenth century.
Views about the High Court of Parliament and its power which were becoming antiquated in the
time of Coke, continued to be repeated far into the eighteenth century, although after the
Restoration principles began to be laid down which were more in accord with the facts of the
modern Constitution. But much confusion remained which was not diminished by the use of the
phrase 'privilege of Parliament'. This only means a body of rights common to both houses, but it
suggests joint action (or enforcement) by both Houses, as in legislation, whereas from Ferrers
case in Henry VIII's reign, in 1543 each House enforced its own privileges separately.
These notions arise from this confusion of thought.
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1. That the Courts, being inferior to the High Court of Parliament, cannot call in question the
decision of either House on a matter or privilege.
2. That the lex et consuetudo Parliamenti is a separate law, and therefore unknown to the
courts.
3. That a resolution of either House declaratory of privilege is a judicial precedent binding on
the courts."
593. The confusions mentioned above misled some people in this country, due to the
provisions of Article 194(3) of our Constitution, on the question whether a House of a Legislature
had not only the power to punish a citizen for contempt but also to exercise what is really a
judicial power to interpret and to determine the ambit of its own jurisdiction. Gajendragadkar,
C.J., speaking for this Court in Special Reference No. 1 of 1964 (supra), rejected this claim and
explained the English law on the subject. The learned Chief Justice pointed out the incidental
character of any claim to a power, privilege, or immunity which could be covered by Article
194(3), a provision identically similar to Article 105(3). He pointed out that the only exception to
this rule was the power to punish for its own contempt which, since the decision of Privy Council
in Kielley v. Carson, could be thought of as a power of the House of Commons even acquired as a
kind of "inheritance" from the powers once possessed by the High Court
"I do not think that the House of Commons was itself ever a court. The history of that House
does not support such a contention."
The result is similar to that in England where courts do determine the orbit of a claim to a
power as a parliamentary preserve, on the facts of a case, although, once it is established that the
claim is to a power confined to its proper sphere, they will not decide a mere question of its
proper exercise.
594. Whatever view one may take of any other powers of Parliament, by reason of Article
105(3) of the Constitution, I am unable to see how exercise of the jurisdiction to determine an
election dispute, which was, in accordance with Article 329(b), already vested in the High Court
by the Act of 1951 for all elections to the House of the People, could not only be taken away by a
constitutional amendment, purporting to repeal retrospectively the provisions of the Act of 1951,
a piece of ordinary legislation, in their application to a particular class of cases, but at the same
time, making a declaration given of the rights of the parties to a judgment, without first
performing a judicial function also which was not included in the "constituent" or any other
law-making power.
595. The question was not clearly raised before us whether a constitutional amendment could
partially repeal the provisions of an ordinary piece of legislation, that is to say, the Act of 1951, in
so far as its application to a certain class of cases is concerned. One of the submissions of the
learned Counsel for the election-petitioner, however, was that, inasmuch as the Constitution lays
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down the norms to which ordinary legislation must conform, its proper sphere of operation is
different from that ordinary legislation which takes place under the provisions of Articles 245 to
255 of the Constitution. The argument seemed to be, that, if ordinary law-making and
Constitution-making took place in different orbits or on different planes of law-making power
what could be done by one method was necessarily prohibited by the other. Learned Counsel
relied upon a number of passages from the judgment in Kesavananda Bharati's case (supra), and,
in particular, on what Ray, J. (as he then was) said (at p. 386) : (SCC p.
"The constituent power is sui generis. The majority view in Golak Nath Case that Article
13(2) prevails over Article 368 was on the basis that there was no distinction between constituent
and legislative power and an amendment of the Constitution was law and that such law attracted
the opening words of Article 245 which in its turn attracted the provisions of Article 13(2).
Parliament took notice of the two conflicting views which had been taken of the unamended
Article 368, took notice of the fact that the prepondering judicial opinion, namely, the decision in
Shankari Prasad case, Sajjan Singh Case and the minority views of five learned Judges in Golak
Nath case were in favour of the view that Article 368 contained the power of amendment and that
power was the constituent power to change the fundamental law, that is to say, the Constitution
and is distinct from ordinary legislative power. So long as this distinction is kept in mind
Parliament will have the power under Article 368 to amend the Constitution
596. On the other hand, learned Counsel defending the Thirty-ninth Amendment relied on a
number of passages from various judgments, including mine, in Kesvananda Bharati's case
(supra), indicating that at least the minority view there was that the power of amendment
contained in Article 368, was only limited by the procedure laid down in Article 368(2) of the
Constitution and nothing else. It is true that this is what was emphasized by several learned
judges, including myself, in dealing with a case where the real question was whether the
constituent power embraced an amendment of the Constitution in such a way as to take away
fundamental rights. But, neither the question whether "constituent power" itself contained judicial
power within its fold nor the question whether "constituent power" operated on a plane or in a
sphere which excluded altogether what could be done through ordinary legislation were under
consideration in Kesavananda Bharati's case (supra). Some passages were citied from my
judgment in th
597. It could be and has been argued, not without force, that there are no legal limitations
upon the subject-matter which may be considered fit for inclusion or incorporation in a
Constitution. This is left to the good sense of the Constitution-makers. Constitutions differ greatly
in this respect (See : Wheare's "Modern Constitutions" pp. 49 to 51). What may be the ideal, from
this point of view, is not always the actual. Reference was also made in support of this submission
to Rottschaefer on "Constitutional Law" (1939 Edn., p. 10). It is not necessary to pursue this
question any further here.
598. I had said, in Kesavananda Bharati's case (supra) after dealing with amending power in
Article 368, on the assumption that it was an exercise of a "sovereign power" (at p. 870) :
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"No doubt the judicial organ has to decide the question of the limits of a sovereign authority
as well as that of other authorities in cases of dispute. But, when these authorities act within these
limits, it cannot interfere."
In other words, I look upon a "sovereign power" itself, under the Constitution, as limited by
the supremacy of the Constitution.
599. If the constitutional provisions compel us to hold, as think they do, that no form of
judicial or quasi-judicial power is included in the "constituent power" contained in Article 368 of
the Constitution, no further question need really be considered by us if we were to hold that the
insertion of clause (4) in Article 329A necessarily involved, as a condition precedent to the
making of the declaration found at the end of it, the performance of a quasi-judicial or judicial
function. But, I do not think that we could go so far as that. The Act of 1951, enacted under the
provisions of Article 329(b) of the constitution provided a procedure which could not be
circumvented. This procedure was certainly applicable until August 10, 1975 when the
Thirty-ninth Amendment received Presidential assent, rights of appeal under Section 116-A of the
Act having been invoked by the original respondent as well as by the election-petitioner, and the
operation of the High court's order having been suspended, the position was
600. At one stage, Counsel supporting the Thirty-ninth Amendment said that the norms of the
Act of 1951, together with the amendment of the Act in 1974 and the very recent ones of 1975,
must have been present in the minds of members of Parliament and applied to the facts of the
case. Such a contention, apart from overlooking the effect of the bar of Article 329(b), which
operated against the case being taking up in Parliament directly until at lest August 10, 1975, just
as Section 107 of the British Representation of People Act, 1949, operates against the adoption of
such a course in England, overlooked the legal effect of the deeming provision which, if valid,
would repel such a submission of counsel supporting the Thirty-ninth Amendment. The deeming
provision appeared to be quite sweeping. It said : "No law made by Parliament before the
commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to
election petitions and matters connected therewith, shall apply or shall be
601. The effect of such a provision is thus stated, in the oft-quoted passage from East End
Dwellings Co. Ltd v. Finsbury Borough Council :
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequences and incidents which, if the
putative state of affairs had in fact existed must inevitably have flowed from or accompanied
it......... The statute says that you must imagine a certain state of affairs; does not say that having
done so, you must cause or permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs".
602. When the effect of Article 329 (b) and of the deeming provision was pointed out to
learned Counsel supporting the fourth clause of Article 329A, they took up the position that
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Parliament must have applied its won norms. We, however, do not know at all and cannot guess
what matters were considered or the norms applied by Parliament. No speeches made in
Parliament on the proposed Thirty-ninth Amendment were cited before us by either side. We only
know that the Objects and Reasons of the Thirty-ninth Amendment contain the following
statements to show us why Article 329A (4) was believed to be necessary :
"Article 71 of the Constitution provides that disputes arising out of the election of the
President or Vice-President shall be decided by the Supreme Court. The same article provides that
matters relating to their election shall be regulated by a parliamentary law. So far as the Prime
Minister and the Speaker are concerned, matters relating to their election are regulated by the
provisions of the Representation of the People Act, 1951. Under this Act the High Court has
jurisdiction to try an election petition presented against either of them.
2. The President, the Vice-President, the Prime Minister and the Speaker are holders of high
offices. The President is not answerable to a court of law for anything done, while in office, in the
exercise of his powers. A fortiori matters relating to his election should not be brought before a
court of law but should be entrusted to a forum other than a court. The same reasoning applies
equally to the incumbents of the office of Vice-President, Prime Minister and Speaker. It is
accordingly proposed to provide that disputes relating to the election of the President and
Vice-President shall be determined by a forum as may be determined by a parliamentary law.
Similar provision is proposed to be made in the case of the election to either House of Parliament
or, as the case may be, to the House of the people of a person holding the office of Prime Minister
or the Speaker. It is further proposed to render pending proceedings in respect of such election
under the existing law null and void. The bill also provides t
603. I think that this Statement of Objects and Reasons and other reasons mentioned above by
me lend support to the submission, to which Mr. Kaushal confined himself whilst other counsel
supporting the validity of Article 329A (4) offered it only as an alternative submission. This was
that the whole procedure adopted and needed being a law-making procedure and nothing more
there was no need to look for norms or for law applied as no judicial or quasi-judicial proceeding
was involved. This approach certainly avoids the extraordinary anomalies and results involved in
the proposition that "constituent power" embraces some indefinable or "unbroken" power to
override laws and to withdraw and decide all disputes, particularly in election matters, in
Parliament itself. As already indicated, there is no provision anywhere for the exercise of
overriding judicial or quasi-judicial powers by Parliament. It is difficult to conceive a case being
considered by Parliament and the ratifying Legislatures as a case on trial.
604. If Article 329A (4) constituted only a piece of purported law-making, the next question,
which deserves very serious consideration by us, is whether such purported law-making is not
fully covered by the undoubted law-making power of Parliament to make law prospectively as
well as retrospectively, inter alia, to get rid of the legal effect or result of a judgment considered
erroneous by it or to retrospectively validate an election it considers valid whatever may be its
reasons for reaching this conclusion. I will answer this question after considering the relevant case
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law cited on the subject.
605. A number of cases have been cited before us : some on retrospective validation of taxing
provisions, by removing defects, others on removal of the basis of or grounds of decisions given
by courts making their judgments ineffective, others affecting the jurisdiction of courts in case
pending, either in the original courts or in courts of appeal, so as to render proceedings
infructuous, and still others curing legally defective appointments or elections. It is not necessary
to discuss these cases separately and individually as the principles laid down there are well
recognised. I will be content with mentioning the cases cited. They were : M. P. V. Sundararamier
& Co. v. State of A. P. Vinod Kumar v. State of H. P.; Fadab Singh v. H. P. Administration; Udai
Ram Sharma v. Union of India; Rustom Cavasjee Cooper v. Union of India; Fagannath v.
Authorised Officer, Land Reforms; Khyerbari Tea Co. Ltd. v. State of Assam; M/s. Tirath Ram
Rajindra Nath v. State of U. P.; Krishna Chandra Gangopadhya v. Union of In
606. Cases were also cited where rights having been altered during the pendency of
proceedings, courts had to give effect to the rights as altered, and judgments already given on the
strength of the previous law had ceased to have a binding force as res judicata between parties or
had to be set aside where appeals against them were pending. These were : State of U. P. v. Raja
Anand Brahma Shah; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality; Janapada
Sabha, Chhindwara v. The Central Provinces Syndicate Ltd.; Municipal Corporation of the City of
Ahmedabad v. New Shorock Spg. & Wvg. Co. Ltd.; State of Tamil Nadu v. M. R. Gounder;
Amarjit Kaur v. Pritam Singh; Qudrat Ullah v. Municipal Board, Bareilly.
607. Cases were also cited of the exercise of constitutional power of amendment, by placing
Acts in the Ninth Schedule, under the provisions of Article 31B of the Constitution, such as
Jagannath v. Authorised Officer, Land Reforms, (supra) so that Acts so included in the Ninth
Schedule were immune from attack on the ground of alleged violation of any fundamental rights.
It is not necessary to cite them as this is now a well recognised constitutional device whose
validity has been upheld by this Court in Kesavananda Bharati's Case (supra).
608. Our attention was especially invited to passages from Udai Ram Sharma v. Union of
India (supra), where it was said (at page 54) :
"In our opinion no useful purpose will be served by referring to the clear demarcation between
the judicial powers and legislative powers in America and attempt to engraft the said principle in
the working of our Constitution. This development of the law, as pointed our in A. K. Gopalan v.
State was due to historical reasons."
609. After that, the following passage from he judgment of Das, J. in A. K. Gopalan's case
(supra) was quoted (at page 55) :
"The Supreme Court of the United State, under the leadership of Chief Justice Marshall,
assumed the power to declare any law unconstitutional on the ground of its not being in 'due
process of law',..... It is thus that the Supreme Court established its own supremacy over the
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Executive and the Congress. In India the position of the Judiciary is somewhere in between the
Courts in England and the United States. While in the main leaving our Parliament and the State
Legislatures supreme in their respective legislative fields, our Constitution has, by some of the
articles, pur upon the legislature certain specified limitations.... Our Constitution, unlike the
English Constitution, recognises the court's supremacy over the legislative authority, but such
supremacy is a very limited one, for it is confined to the field where the legislative power is
circumscribed by limitations put upon it by the Constitution itself. Within this restricted field the
Court may, on a scrutiny of the law made by the Legislature, decla
610. In Udai Ram Sharma's case (supra), the following passage from Willoughby's
Constitution of the United States, Second Edition, Vol. 3, was also cited :
"If the Legislature would prescribe a different rule for the future from that which the courts
enforce, it must be done by statute, and cannot be done by a mandate to the courts which leaves
the law unchanged, but seeks to compel the courts to construe and apply it not according to the
judicial, but according to the legislative judgment.... If the Legislature cannot thus indirectly
control the action of the courts, by requiring of them a construction of the law according to its
own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling
them to grant new trials, ordering the discharge of offenders, or directing what particular steps
shall be taken in the progress of a judicial inquiry."
611. Willoughby's statement of law in the United States of America showing that retroactive
legislation which does not impair vested or substantial rights or constitutional prohibitions, is
permissible and his conclusion, relying on Cooley's "Constitutional Limitations", was also quoted :
"The Legislature does, or may, prescribe the rules under which the judicial power is exercised
by the courts, and in doing so it may dispense with any of those formalities which are not essential
to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the
proceedings, we believe it may also dispense with by statute after the proceedings have been
taken, if the court has failed to observe any of those formalities. But it would not be competent
for the Legislature to authorize a court to proceed and adjudicate upon the rights of parties,
without giving them an opportunity to be heard before it and, for the same reason it would be
incompetent for it, by retrospective legislation, to make valid any proceedings which had been had
in the courts, but which were void for want of jurisdiction over the parties."
612. In Udai Ram Sharma's case (supra) an argument, based on some observations in B. C.
Ghose v. King Emperor was that the provisions of an amending Act amounted to passing a
decree. But, this Court repelled this argument relying on principles laid down in Queen v. Burah
(supra) :
"If what has been done in 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
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with it), it is not for any court of justice to inquire further, or to enlarge constructively those
conditions and restrictions."
613. A case strongly relied upon by learned Counsel supporting the validity of Article 329(4)
was : Kanta Kathuri v. Manak Chand Surana. In this case, decided by five Judges of this Court,
there was unanimity not he conclusion that the State Legislature had power to retrospectively
remove the disqualification of a candidate. The following quotation from the judgment (at page
851) shows the reasoning adopted (SCC p. 280, paras 37-40) :
"Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthan State
Legislature was not competent 'to declare retrospectively' under Article 191(1) (a) of the
Constitution. It seems to us that there is no force in this contention. 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 were are unable to
imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place
any implied restriction. We notice that the British Parliament in one case validated election :
Erskine May's Treatise on the Law, Privileges, Proceeding & Usage of Parliament- Seventeenth
Edition, (1964).
'After the general election of 1945 it was found that the persons elected for the Coatbridge
Division of Lanark and the Springbourn Division of Glasgow were disqualified at the time of their
election because they were members of tribunals appointed by the Minister under the Rent of
Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of
attendance at a Tribunal. A Select Committee reported that the disqualification was incurred
inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn
Elections (Validation) Bill was introduced to validate the irregular elections [H. C. Deb (1945-46)
414, c. 564-6]. See also H. C. 3 (1945-46), ibid, 71 (1945-46) and ibid. 92 (1945-46).'
We have also noticed two earlier instances of retrospective legislation, e.g. The House of
Commons (Disqualification) Act, 1813 (Halsbury's Statutes of England p. 467) and Section 2 of
the Re-election of Ministers Act, 1919 (ibid. p. 515).
Great stress was laid on the word 'declared' in Article 191 (1) (a), but we are unable to imply
any limitation on the powers of the Legislature from this word. Declaration can be made effective
as from an earlier date.
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."
614. Another case on which a great deal of reliance was placed by Mr. A. K. Sen, was the
case of the validation of the elections of John Clerk George, Esquire, and Sir Roland Jennings,
Knight, by the British Parliament. Here, the two gentlemen named above were "discharged, freed
and indemnified from all penal consequences whatsoever incurred by them respectively by sitting
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or voting as members of the Commons House of Parliament while holding their said offices". It
was also declared that they "shall be deemed not to have been incapable of being elected members
of the Commons House of Parliament, or to have been or to be incapable of sitting or voting as
members thereof, by reason only of having at any time before the passing of this Act held office :
" (a) in the case of the said John George, as Director appointed by the Minister of Works of
Scottish Slate Industries Limited,
(b) in the case of the said Sir Roland Jennings, as Approved Auditor appointed under the
Industrial and Provident Societies Act, 1893, and the Friendly Societies Act, 1896."
615. Learned Counsel for the election-petitioner replied that it is noticeable that no English
case could be cited where any attempt was made by the British Parliament to circumvent Section
107 of the Representation of the People Act, 1949, which lays down :
"Section 107. Method of questioning Parliamentary election.-(1) No Parliamentary election
and no return of Parliament shall be questioned except by a petition complaining of an undue
election or undue return (hereinafter referred to as parliamentary election petition) presented in
accordance with this Part of this Act.
(2) a petition complaining of no return shall be deemed to be a parliamentary election petition
and the High Court may make such order thereon as they think expedient for compelling a return
to be made or may allow the petition to be heard by an election court as provided with respect to
ordinary election petitions."
616. He also submitted that, in none of the cases of validation, was any election dispute shown
to be pending. No judgment was actually set aside in contravention of the binding constitutionally
prescribed procedure to decide such disputes. He submitted that, in the case of an election to a
parliamentary seat in this country this could be done by Parliament itself only after first repealing
the application of the 1951 Act and amending Article 329(b) in such a way as to vest the power in
itself to decide the dispute.
617. Learned Counsel for the election-petitioner relied upon the following statement in the
American Jurisprudence, 2nd Edn. Vol. 46, at page 318 :
"The general rule is that the Legislature may not destroy, annul, set aside, vacate, reserve,
modify, or impair the final judgment of a court of competent jurisdiction, so as to take away
private rights which have become vested by the judgment. A statute attempting to do so has been
held unconstitutional as an attempt on the part of the Legislature is not only prohibited from
reopening cases previously decided by the courts, but is also forbidden to affect the inherent
attributes of a judgment. That the statute is under the guise of an act affecting remedies does not
alter the rule."
618. On the other hand, learned Counsel supporting the validity of Article 329A (4) relied on
the following passage :
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"It is worthy of notice, however, that there are cases in which judgments requiring acts to be
done in the future may validly be affected by subsequent legislation making illegal that which the
judgment found to be legal, or making legal that which the judgment found to be illegal."
They also pointed out :
"With respect to legislative interference with a judgment, a distinction has been made between
public and private rights under which distinction a statute may be valid even though it renders
ineffective a judgment concerning a public right. Even after a public right has been established by
the judgment of the court, it may be annulled by subsequent legislation."
619. It is contended that the election of a candidate is the result of the exercise of their rights
of voting by the electorate. An election results from public action and produces a "public right"
inasmuch as the electorate and the public become interested parties acquiring the right to be
represented by the elected candidate. The right to challenge that election is a statutory right. What
the statute gives can be taken away by statute. The grounds for challenging the election could also
be altered. No one, it was urged, could be herd to say that he had any vested or inherent right to
challenge and election. It was contended that once the applicability of all law previous to the
Thirty-ninth Amendment to the class dealt with by Article 329A (4) was removed retrospectively,
the resulting legislative declaration followed automatically even if it had not been inserted. Its
inclusion was a superfluity. Article 329A (4) was said to be merely incidental and consequential to
what was done by earlier clauses (1) to
620. Learned Counsel for the election-petitioner relied on Don John Francis Douglas liyanage
v. Queen, where the Privy Council considered the validity of the Criminal Law Special
amendment Act of 1962, passed by the Parliament of Ceylon, which had purported to legalise
ex-post facto the detention of persons for having committed offenses against the State, by
widening the class of offenses for which trial, without jury, by nominated judges could be ordered.
The scope of the offence of waging war against the Queen was widened and new powers to deal
with offenders were given and additional penalties were prescribed. It was held that, although, no
fundamental principles of justice could be said to have been violated by the Act, yet, the Act of
1962 and an amending Act of 1965, were invalid on the ground summarized in the headnotes as
follows (at p. 260) :
"That the Acts, directed as they were to the trial of particular prisoners charged with
particular offenses on a particular occasion, involved a usurpation and infringement by the
Legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while
not in terms vesting judicial functions in the Judiciary, manifested an intention to secure in the
Judiciary a freedom from political, legislative and executive control, land, in effect, left untouched
the judicial system established by the Character of Justice, 1833. The silence of the Constitution
as to the vesting of judicial power was consistent with its remaining where it was and inconsistent
with any intention that it should pass to or be shared by the Executive or the Legislature. The
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Acts were accordingly ultra vires and void, and the convictions could not stand."
621. If the constituent bodies, taken separately or together, could be legally sovereign, in the
same way as the British Parliament is, the constitutional validity of no amendment could be called
in question before us. But, as it is well established that it is the Constitution and not the
constituent power which is supreme here in the sense that the constitutionality of the Constitution
cannot be called in question before us, but exercise of the constituent power can be, we have to
judge the validity of exercise of constituent power by testing it on the anvil of constitutional
provision. According to the majority view in Kesavananda Bharati' case (supra), we can find the
test primarily in the preamble to our Constitution.
622. A point emphasized by J. C. Gray (See : "Nature & Sources of Law" p. 96) is that unless
and until courts have declared and recognised a law as enforceable it is not law at all. Kelsen (See
: "General Theory of Law & State", p. 150) finds Gray's views to be extreme. Courts, however,
have to test the legality of laws, whether purporting to be ordinary or constitutional, by the norms
laid down in the Constitution. This follows from the supremacy of the Constitution. I mention this
here in answer to one of the questions set out much earlier : Does the "basic structure" of the
Constitution test only the validity of a constitutional amendment or also ordinary laws? I think it
does both because ordinary law-making itself cannot go beyond the range of constituent power.
At this stage, we are only concerned with a purported constitutional amendment. According to
the majority view in Kesavananda Bharati's case (supra) the preamble furnishes the yardstick to be
applied even to constitutional amendments.
623. Learned Counsel for the election-petitioner has strongly relied upon the very first
purpose of the Constitution stated in the preamble to be Justice (with a capital "J") which includes
"political justice". His contention is that, if a majority party is to virtually act as the judge in an
election dispute between itself and minority parties whose cause, according to the learned
Counsel, the election-petitioner represents, it would be a plain denial of "political justice. " I do
not know why this question should be termed as one of "political justice" and not of plain and
simple elementary justice except that the contending parties represent political causes which are,
for purposes of plain and simple justice with which we are really concerned, irrelevant. We are not
asked to judge a political issue directly as to who should be the Prime Minister of this country.
We are only asked to hold that even a constitutional amendment, when made by members of a
majority party to enforce their own views of what is p
624. What was sought to be done by the constitutional amendment may be politically very
justifiable. The question before us, however, is whether it is also legally justifiable. Here, wears
back again in the realm of basic principles of justice. We are not to decide a political question here
at all. But, we have to decide legal questions even if they have, as many legal issues have, political
consequences and repercussions which we cannot entirely ignore. Perhaps we have to go back to
Marbury v. Madison (supra), were Chief Justice Marshall said (at p. 162) :
"The very essence of civil liberty consists in the right of every individual to claim the
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protection of the laws, whenever he receives an injury. One of the first duties of government is to
afford that protection. In Great Britain the King himself is used in the respectful form of a
petition, and he never fails to comply with the judgment of his court.
In the 3rd volume of his Commentaries, p. 23, Blackstone states two cases in which a remedy
is afforded by mere operation of law.
'In all other cases', he says it is a general and indisputable rule, that where there is a legal right,
there is also a legal remedy by suit, or action at law, whenever that right is invaded'."
625. It is true that the right which the election-petitioner claims is a purely statutory right. The
right to come to this Court under Section 116A of the Act of 1951 is also a creature of statute
and can be taken away retrospectively. But, where this taking away also involves the taking away
of the right to be heard by this Court on a grievance, whether justifiable or not, that a minority
party is being oppressed by the majority, can we deny the spokesman of the minority even a right
to be heard on merits? Such an issue is constitutional. Confession of our inability to resolve it
judicial would be, according to learned Counsel for the election-petitioner, a denial of "political
justice". This issue is extrinsic so far as the Act of 1951 is concerned. The election-petitioner has
complained of the taking away of his right to be heard with a view to depriving him of "political"
justice with an ulterior object and political motivation. I have dealt with the merits of the case to
show that, from the legal aspect ection-petitioner's grievances could have any real legal
foundations. I think that this is a basic consideration which must compel us, in the light of the
principles laid down by us in Kesavananda Bharali's case (supra), to hold that we must look into
his grievances and determine, for ourselves, where his case stood on the law before it was
amended. Our jurisdiction, at any rate, cannot be barred without creating the impression that what
the election-petitioner calls "political justice" is being denied to him.
626. The question which arises now is : Was clause (4) of Article 329A, read with clauses (5)
and (6), really meant to bar our jurisdiction to consider the grievances of the petitioner and to
decide them, or, can they be so interpreted as to preserve this Court's jurisdiction?
627. Broadly speaking, the election-petitioner has two heads of grievance : firstly, that the
election of the original respondent is vitiated by corrupt practices which, as I have indicated, after
considering the case set up by him and the evidence tendered and the law applicable, could not
possibly succeed even under the law as it stood before the amendment; and, secondly, that our
very jurisdiction to go into these grievances is sought to be debarred by clauses (4), (5) and (6) of
Article 329A with the political object of stifling opposition, and, therefore, according to the
election-petitioner, we must declare clause (4) and the connected clauses (5) and (6) of Article
329A to be invalid. Although, the first set of complaints is based upon the provisions of the Act of
1951, the second set arises because of impugned clauses of the Thirty-ninth Amendment. For the
second set of grievances, the action complained of is that of the State itself acting through its
law-making organs. It is because of this interes
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628. Indeed, so far as the original respondent is concerned, the effect of clauses (4), (5) and
(6) of Article 329A would be, if we were to hold that they bar our jurisdiction to go into the
merits of the appeals under Section 116A of the Act, that her grievance against the judgment
under appeal also could not be gone into or dealt with. In other words, the original respondent
would also be denied an opportunity of asserting her rights under the 1951 Act and of vindicating
her stand in the case by showing that there was really no sustainable ground for the findings given
by the learned Judge of the High Court against her. We would, therefore, be prevented from
doing justice to her case as well if we were to accept the contention that the Thirty-ninth
Amendment bars our jurisdiction to hear the appeals under Section 116A of the Act on merits.
The total effect would be that justice would appear to be defeated even if, in fact, it is not so as a
result of the alleged bar to our jurisdiction if it were held to b
629. It was also contended before us that we should not go at all into the merits of the case
before us as it was a political matter. In other words, the "political question" doctrine was invoked
in aid of the submission that we should voluntarily abstain from deciding a question of a "political
nature". It is true that the "political question doctrine" has been sometimes invoked, in the past, by
the American Supreme Court to abstain from taking a decision. In answer to this argument,
learned Counsel for the election-petitioner cited before us from comments on the Constitution of
the United States of America (Analysis and Interpretation by the Congressional Research Service-
1973, Edn., p. 665) that the "political question" doctrine is the result of a "prudential" attitude
courts adopt when they find that their judgments may not be enforced. It was described there as
"a way of avoiding a principled decision damaging to the Court or an expedient decision
damaging to the principle". It was also pointed out th
"Deciding whether a matter has in any measure been committed by the Constitution to another
branch of government, or whether the action of that bench exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this
Court as ultimate interpreter of the Constitution."
630. Learned Counsel for the election-petitioner also relied upon H. H. Maharajadhiraja
Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, where this Court said : (at p. 75) :
(SCC p. 147, para 98).
"The functions of the State are classified as legislative, judicial and executive : the executive
function is the residue which does not fall within the other two functions. Constitutional
mechanism in a democratic policy does not contemplate existence of any function which may qua
the citizens be designated as political and orders made in exercise whereof are not liable to be
tested for their validity before the lawfully constituted courts Rai Sahib Ram Jawaya Kapur v.
State of Punjab, Jayantilal Amritlal Shodhan v. F. N. Rana, and Halsbury's Laws of England, 3rd
Edn., Vol. 7, Article 409, at p. 192."
631. Learned Solicitor General also contended that we were passing through critical times
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when a state of Emergency had been declared. He submitted that the decision of the constituent
authorities, in excluding a particular case from the jurisdiction of this Court, should be treated as
an exercise of a very special power under very unusual conditions in which internal and external
dangers, with which the country was surrounded, required that the position of the Prime Minister
should be declared unequivocably unassailable so that the need for further examination of the
question of her election to Parliament may not be raised anywhere else. This seems to be another
form in which "political question" argument could be and was addressed to us. Undoubtedly,
clause (4) of Article 329A could be said to have a political objective, in the context in which it
was introduced, and we could perhaps take judicial notice of this context. Even if it was possible
to go beyond the statement of objects and reasons and to hold
632. It is a well established canon of interpretation that, out of two possible interpretations of
a provision, one which prevents it from becoming unconstitutional should be preferred if this is
possible- ut res magis valeat quam pereat. It is true that the deeming provision seems to stand in
the way of our examination of the merits of the case even though there is no direct provision
taking away our jurisdiction to consider the merits of the appeals before us. It has, however, been
repeatedly laid down that a deeming provision introducing a legal fiction must be confined to the
context of it and cannot be given a larger effecti (See : Radha Kishan v. Durga Prasad). In Bengal
Immunity Co. Ltd. v. State of Bihar, it was held by this Court that a legal fiction is created for
some definite purposes and should not be extended beyond its legitimate field determined by its
context. The some view has been expressed by this Court in other cases : C. I. T. v. James
Anderson; C. I. T. v. Express Newspapers Ltd., Mad
633. In Ex parte Walton, In Re, Levy, James L. J. Sai :
"When a statute enacts that something shall be deemed to have been done, which in fact and in
truth was not done, then the court is entitled and bound to ascertain for what purposes and
between what persons the statutory fiction is to be resorted to?"
In other words, we have to examine the context and the purpose of the legal fiction and
confine its effects to these.
634. If the purpose of the clause (4) of Article 329A was purely to meet the political needs of
the country and was only partly revealed by the policy underlying the statement of reason and
objects it seems possible to contend that it was not intended at all to out the jurisdiction of the
Court. Hence, Article 329A, clause (5) will not, so understood, bar the jurisdiction of the Court
to hear and decide the appeals when it says that the appeal shall be disposed of in conformity with
the provision of clause (4).
635. In the circumstances of this case, it would seem that conformity with the declaration
embodied in Article 329A, clause (4) is possible, if we confine the meaning and effect of the
deeming provision to what was needed only for the declaration to be given at the end of clause (4)
by the constituent bodies, with a political object, and not for the purposes of affecting our
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jurisdiction which determines legal effects of what is sought to be done. Of course, the more
natural interpretation would appear to be that the deeming provision should apply for "all
purposes" including those for consideration of the appeals before us. But, if it is not possible to
decide those appeals without giving a different meaning to the deeming provision, on which the
final declaration in clause (4) rests, and clause (5) leaves us free to decide how we could conform
with clause (4), need our jurisdiction to decide factual and legal issues judicially be said to be
affected? If the fiction was only a logical step in the process of
636. For the reasons given above, I declare that Article 329A (4) does not stand in the way of
the consideration of the appeals before us on merits under the Act of 1951 or the validity of the
amendments of the Act. On a consideration of the merits of Appeals Nos. 887 and 909 of 1975. I
have come to the conclusion, as indicated above, that Appeal No. 887 must be allowed and the
Cross Appeal No. 909 of 1975 must fail. The result is that the judgment and orders passed by the
learned Judge of the Allahabad high Court on the election case are set aside, and, in such
conformity with Article 329A, clause (4) as is possible for us I also declare the judgment and the
findings contained in it to be void and of no effect whatsoever. It is not necessary for me to add
that the order of the learned Judge, holding the original respondent disqualified from occupying
her office, disappears ipso facto and it neither has nor will be deemed ever to have had any legal
effect whatsoever. In the circumstances of the case, I think
CHANDRACHUD, J.
(concurring). The election petition out of which these appeals arise involved the question of
the validity of the election of Smt. Indira Nehru Gandhi to the Lok Sabha. In the General
Parliamentary Elections of 1971, she was declared as the successful candidate from the Rae Bareli
constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes her nearest
rival, Shri Raj Narain.
638. Shri Raj Narain, who was sponsored the Samyukta Socialist Party, filed an election
petition under Section 80 read with Section 100 of the Representation of the People Act, 1951, to
challenge the election of the successful candidate. Originally, the challenge was founded on
numerous grounds but during the trial of the petition in the High Court of Allahabad, the
challenge was limited to seven grounds.
639. A learned Single Judge of the High Court, J. M. L. Sinha, J., upheld the challenge on two
grounds, rejecting the other grounds of challenge. That explains the cross-appeals.
640. The High Court held that the successful candidate was guilty of having committed two
corrupt practices within the meaning of Section 123 (7) of the Representation of the People Act :
firstly, she obtained the assistance of the gazetted officers of the Government of Uttar Pradesh for
furthering her election prospects; and secondly, she obtained the assistance of Shri Yashpal
Kapoor, a gazetted officer in the Government of India holding the post of Officer on Special Duty
in the Prime Minister's Secretariat, for furthering the same purpose. Acting under Section 8-A of
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the Act the learned Judge declared that the successful candidate would stand disqualified for a
period of six years from June 12, 1975 being the date of the judgment. Aggrieved by this part of
the judgment, Smt. Indira Gandhi has filed Appeal No. 887 of 1975.
641. The other five grounds of challenge were : (1) The successful candidate procured the
assistance of the armed forces for arranging her flights by Air Force aeroplanes and helicopters;
(2) Her74 election agent, Shri Yashpal Kapoor, and others distributed clothes and liquor to
induce the voters to vote for her; (3) She and her election agent made appeals to the religious
symbol of cow and calf; (4) Her election agent and others procured vehicles for the free
conveyance of voters to the polling stations; and (5) She and her election agent incurred or
authorised expenditure in violation of Section 77(3) of the Act read with Rule 90 of the Conduct
of Elections Rules, 1961. These grounds having been rejected by the High Court, the defeated
candidate has filed Appeal No. 909 of 1975. The first two grounds were given up in appeal for the
reason that the evidence on record was not likely to be accepted by this Court in proof thereof.
642. The defeated candidate did not lead evidence in the High Court to show that any part of
the expenditure in excess of the permissible limit of Rs. 35,000 was incurred by the successful
candidate or her election agent. His contention was that the expenditure incurred for her election
by the political party which had sponsored her candidature, the Congress (R), was liable to be
included in the expenses incurred or authorised by her. This contention was founded on a decision
rendered by a Division Bench of this Court on October 3, 1974, in Kanwar Lal Gupta v.
Amarnath Chawla.
643. On October 19, 1974, the President of India promulgated."The Representation of the
People (Amendment) Ordinance, 1974" providing that :
"Notwithstanding any judgment, order or decision of any court to the contrary, any
expenditure incurred or authorized in connection with the election of a candidate by a political
party or by any other association or body of persons or by any individual (other than the candidate
or his election agent) shall not be deemed to be, and shall not ever be deemed to have been,
expenditure in connection with the election incurred or authorized by the candidate or by his
election incurred or authorized by the candidate or by his election agent....."
This provision was added by the ordinance by way of an explanation to Section 77(1) of the
Representation of the People Act, 1951. It expressly excepted from its operation decisions of the
Supreme Court voiding an election before the commencement of the ordinance. Shri Amaranth
Chawla fell outside the ordinance. It also excepted similar decisions of High Courts provided that
they had become final or unappealable. The ordinance was replaced by the Representation of the
People (Amendment) Act, 58 of 1974, which was brought into force retrospectively from October
19, 1974.
644. The defeated candidate filed Writ Petition No. 3761 of 1975 in the High Court to
challenge the constitutional validity of the ordinance and the Act of 1974. In view of his finding
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that the total amount of expenditure incurred or authorized by the successful candidate or her
election agent, together with the amount proved to have been incurred by the political party or the
State Government in concussion with her election did not exceed the prescribed limit, the learned
Judge thought it unnecessary to inquire into the constitutionality of the ordinance and the Act of
1974. He, therefore, dismissed the writ petition. An appeal was filed to a Division Bench of the
High Court from the aforesaid order but, by consent of parties, this Court decided to hear the
points involved in the writ petition and in the appeal therefrom.
645. During the pendency of these cross-appeals, the Parliament passed the Election Laws
(Amendment) Act, 40 of 1975, which came into force on August 6, 1975. This Act, if valid,
virtually seals the controversy into he appeal filed in this Court by the successful candidate from
the decision of the Allahabad High Court. It also takes care of a considerable gamut of the appeal
filed in this Court by the defeated candidate. It substitutes a new Section 8-A in the
Representation of the People Act, 1951 empowering the President to decide whether a person
found guilty of corrupt practice shall be disqualified and if so, for what period. By Section 6, it
amends Section 77 of the Act of 1951 making pre-nomination expenses a matter of irrelevant
consideration. It declares that the expenditure incurred by a government servant in the discharge
of his official duty in connection with any arrangements or facilities and such arrangements or
facilities shall not be deemed to be expenditure or assistance incurred or rendere
646. The amendments brought about by Act 58 of 1974 and Act 40 of 1975 have an incisive
impact on the cross-appeals but their edge was blunted by the Constitution (Thirty-ninth
Amendment) Act which came into force on August 10, 1975. The Thirty-ninth Amendment
introduces two new articles in the Constitution : Article 71 and 329A; and it puts in the Ninth
Schedule three Acts : (i) The Representation of the People Act, 43 of 1951; (ii) The
Representation of the People (Amendment) Act, 58 of 1974; and (iii) The election Laws
(Amendment) Act, 40 of 1975. The new Article 71 which replaces its precursor empowers the
Parliament to pass laws regulating the elections of the President and the Vice-President, including
the making of provision for the decision of disputes relating to their election. Article 329A has six
clauses out of which the first three deal with the future election to the Parliament of persons
holding the office of Prime Minister of Speaker at the time of the election or who are appointed to
these o
647. At first flush, what remains to be decided judicially in face of the Thirty-ninth
Amendment? As an exercise of constituent power, the Thirty-ninth Amendment must reign
supreme. The political sovereign having reposed its trust in the legal sovereign, the doings of the
Constituent Assembly have an aura of sanctity that legal ingenuity may be powerless to penetrate.
But that is an uninformed approach to field strewn with various shades of legal landmarks.
648. While repelling the challenge to the First Constitutional Amendment which was passed in
June 1951, this Court held in Sri. Sankari Prasad Singh Deo v. Union of India and State of Bihar,
that the power of amendment conferred by Article 368 was not subject to any limitations, express
or implied and that fundamental rights were within the sweep of the amending power. The
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Seventeenth Constitutional amendment passed in June 1964 was similarly upheld by a majority
decision of this Court in Sajjan Singh v. State of Rajasthan, which took the view that the
fundamental rights were not intended by the farmers of the Constitution to be finally and
immutably settled when the Constitution was passed. But the Seventeenth Amendment came to be
challenged once again in I. C. Golak Nath v. State of Punjab. By a majority of 6 : 5, this Court
held that the Seventeenth Amendment was ultra vires the Parliament's power to amend the
Constitution. Five out of the six learned Judges held that Article 368 did not confer any power
649. The decision in Golak Nath's case (supra) raised a debate of national dimensions as the
Parliament's power to amend the Constitution so as to abridge or take away the fundamental
rights virtually became a dead letter. Under the majority judgment, the Constituent Assembly
alone, called by virtue of a law to be passed under entry 97 of List I, could abridge or take away
the fundamental rights. The Parliament, in a resolve to re-affirm its powers, passed the
Constitution (Twenty-fourth Amendment) Act on November 5, 1971. By the Twenty-fourth
Amendment, the Parliament amended Articles 13 and 368 of the Constitution so as to provide that
nothing contained in Article 13 shall apply to any amendment of the Constitution made under
Article 368 and that notwithstanding anything in the Constitution, Parliament may, in the exercise
of its constituent power, amend by way of addition, variation or repeal any provision of the
Constitution in accordance with he procedure laid down in Article 368. As an instance of the
650. A Bench of thirteen Judges of this Court sat to consider the constitutionality of the
Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. The eleven judgments delivered in
that case are reported in Kesavananda Bharati v. State of Keral, commonly known as the
Fundamental Rights case. Golak Nath's case (supra) stood overruled as a result of the decision in
this case. But six learned Judges out of the thirteen (Sikri, C.J., and Shelat, Grover, Hegde,
Jaganmohan Reddy and Mukherjea, JJ.) accepted the contention of the petitioners that though
Article 368 conferred the power to amend the Constitution, and therefore, Article 368 did not
confer power to amend the Constitution so as to damage or destroy the essential elements or
basic features of the Constitution, could not therefore be abrogated or emasculated in the exercise
of the power conferred by Article 368, though a reasonable abridgment of those rights could be
effected in the public interest. Brother Khanna, J. found it difficult, in face of the c
651. These appeals have therefore to be decided in the light of the principle emerging from the
majority decision in the Fundamental Rights case that Article 368 does not confer power on the
Parliament to alter the basic sel appearing on both sides have taken many forms and shapes but
they ultimately converge on the central theme of basic structure.
652. I would like first to deal with the constitutional validity of the Thirty-ninth Amendment.
On that question, the arguments of Mr. Shanti Bhushan, who appears for Shri Raj Narain, may be
summed up thus : (i) The Thirty-ninth Amendment affects the basic structure or framework or the
institutional pattern adopted by the Constitution and is therefore beyond the amending power
conferred by Article 368. It destroys the identity of the Constitution. (ii) Separation of powers is a
basic feature of the Constitution and therefore every dispute involving the adjudication of legal
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rights must be left to the decision of the Judiciary. Clause (4) of Article 329A introduced by the
Thirty-ninth Amendment takes away that jurisdiction and is therefore void. (iii) The function of
the legislature is to legislate and not decide private disputes. In the instant case the Constituent
Assembly has transgressed its constituent function by adjudicating upon a private dispute. (iv)
Democracy is an essential feature of the Constitu by revolutionary methods. The question is
whether it is permissible to the Parliament to use the legitimacy of constitutional provisions for
effecting revolutionary changes. (viii) The constituent power partakes of legislative power land
can only be exercised within the highest ambit of the latter power. Therefore, even with a
two-third majority, the constituent body cannot exercise executive or judicial power. For example,
the power to appoint or dismiss a government servant or the power to declare war which are
executive powers cannot be exercised by the Constituent Assembly. Similarly, it cannot, in the
guise of amending the Constitution, provide that an accused arraigned before a criminal court
shall be acquitted and shall be deemed to be innocent. The constituent body can make changes in
the conditions of the exercise of judicial power but it cannot usurp that power; and lastly (ix) The
question in the Fundamental Rights case was whether Parliament can, in the exercise of its power
of amendment abridge
653. Learned Counsel appearing for the Union of India and for Smt. Indira Gandhi did not
dispute the contention that the appeals before us must be disposed of on the basis of the law laid
down by the majority in the Fundamental Rights case.
654. The learned Attorney General contended that : (i) The majority decision in the
Fundamental Rights case is not an authority for the proposition that there could be no free or fair
elections without judicial review. The Constitutions and laws of several countries leave the
decision of election disputes to the judgment of the Legislatures themselves. The history of the
representation of the People Act, 1951 as also various articles in our Constitution show that
judicial review can be excluded in appropriate cases as a matter of policy. (ii) That validation of
elections is a process well-known to democratic forms of Government. (iii) That a law may be
constitutional even if it relates to single individual if on account of special reasons, the single
individual could be treated as a class by himself. (iv) That it is clear from Articles 326 and 327 of
the Constitution that the Constitution-makers thought that as a matter of high policy elections
ought to be dealt with by the Constitution itself and not by ord
655. The learned Solicitor-General who continued the unfinished arguments of the learned
Attorney-General urged that (i) Article 14 is founded on a sound public policy recognised and
followed in all civilised States. The exclusion of judicial review does not by itself mean the
negation of equality. Article 31B which on the face of it denied equality to different sections of
the community attained the ideal of economic justice by bringing about economic equality. Article
33 also shows that the demands of public problems may require the adjustment of fundamental
rights for ensuring greater equality. (ii) What a Constitution should contain depends on what
permanency is intended to be accorded to a particular provision included in the Constitution. (iii)
Exclusion of judicial review is at least permissible in those fields where originally the Constitution
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did not provide for or contemplate judicial review. (iv) If the election law does not apply, as it
ceases to apply by virtue of Article 329A (4), it is the fun
656. Shri A. K. Sen who appears for Smt. Indira Gandhi defended the Thirty-ninth
Amendment by contending that : (i) The amendment follows the well-known pattern of all
validation Acts by which the basis of judgments or orders of competent courts and tribunals is
changed and the judgments and orders are made ineffective. (ii) The effect of validation is to
change the law so as to alter the basis of any judgment, which might have been given on the basis
of old law and thus to make the judgment in-effective. (iii) A formal declaration that the judgment
rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the
appellate Court has to give effect to the altered law and reverse the judgment. If the matter is not
pending in appeal, then the judgment ceases to be operative and binding as res judicata. (iv) The
rendering of a judgment ineffective by changing its basis by legislative enactment is not an
encroachment on judicial power but a legislation within the competence of the Leg
657. Shri Jagannath Kaushal supported the arguments of Shri Sen by citing pragmatic
illustrations. He gave interesting statistics showing that a very small percentage of election
petitions succeed eventually which, according to him, is evidence that such petitions are used by
defeated candidates as an instrument of oppression against successful candidates. Parliament,
therefore, wanted to save high personages from such harassment. A law may benefit a single
individual and may still be valid. According to Shri Kaushal, the judgment of the Allahabad High
Court became a nullity by reason of that Court ceasing retrospectively to have jurisdiction over
the dispute and a judgment which is a nullity need not be set aside. It can (sic cannot) even be
challenged in a collateral proceeding.
658. I thought it only fair to indicate broadly the line of approach adopted by the various
learned Counsels to the question as regards the validity of the Thirty-ninth Amendment. It will
serve no useful purpose to take up each one of the points for separate consideration and indeed
many an argument is interrelated. It would be enough for my purpose to deal with what I consider
to be points of fundamental importance, especially as my learned brethren have dealt with the
other points.
659. This Court has strictly adhered to the view that in constitutional matters one must decide
no more than is strictly necessary for an effective adjudication of the points arising in any case. By
that test, a numerically substantial part of the Thirty-ninth Amendment has to be deferred for
consideration to a future occasion. We are clearly not concerned in these appeals with the new
Article 71 introduced by the Thirty-ninth Amendment, which deal with the election of the
President and the Vice-President. We are concerned with the new Article 329A but with the
whole of it. Clause (1) to (3) of that article deal with future events and the validity of those
clauses may, perhaps, be examined when those events come to happen. Clause (4) to (6) of
Article 329A are the ones that are relevant for our purpose I propose to address myself to the
validity of those provisions.
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660. Clause (4) of Article 329A, which is the real focus of controversy, may conveniently be
split up as follows for understanding its true nature and effect : (i) The laws made by Parliament
prior to August 10, 1975 in so far as they relate to election petitions and matters connected
therewith cease to apply to the parliamentary election of Smt. Indira Gandhi which took place in
1971. (ii) Such laws are repealed retrospectively in so far as they governed the aforesaid election,
with the result that they must never be deemed to have applied to that election. (iii) Such an
election cannot be declared to be void on any of the grounds on which it could have been declared
to be void under the laws which were in force prior to August 10, 1975. (iv) The election shall
not be deemed ever to have become void on any ground on which, prior to August 10, 1975, it
was declared to be void. (v) The election shall continue to be valid in all respects notwithstanding
the judgment of any court, which includes the judgment da
661. Shri Shanti Bhushan has, as it were, a preliminary objection to the Thirty-ninth
Amendment that the election of a private individual and the dispute concerning it cannot ever be a
matter of constitutional amendment. Whether this contention is sound is another matter but I do
not see the force of the argument of the Attorney-General that in view of the decisions in Sankari
Prasad's case (supra), Sajjan Singh's case (supra) and the Fundamental Rights case (supra), the
contention is not open to be taken. The question raised by Shri Shanti Bhutan was not raised or
considered in either of the three aforesaid cases and I do not see how the question can be shelved.
The argument is not new facet of the theory of inherent or implied limitations on the amending
power, in which case it might have been plausible to contend that the last word was said on the
subject by the Full Court in the Fundamental Rights case. The question now raised touches a
totally new dimension of the amending power : Can the Constituent As me Court to frame rules
for regulating its practice and procedure, official language for communication between one State
and another and last but not the least, elections to the Parliament and the State Legislatures.
Those to whose wisdom and judgment the constituent power is confided, will evoke scorn and
derision if that power is used for granting or withdrawing building contracts, passing or failing
students or granting and denying divorces. But the electorate lives in the hope that a sacred power
will not so flagrantly be abused and the moving finger of history warns of the Consequences that
inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of
power.
662. But the comparison is odious between the instances given by Shri Shanti Bhutan and
subject-matter of Article 329A (4) of the Constitution. In the first place, elections to Legislatures
were considered by Constitution-makers to be a matter of constitutional importance. Secondly,
though the powers of the Prime Minister in a cabinet form of democracy are not as unrivaled as
those of the President in the American system, it is undeniable that the Prime Minister occupies a
unique position. The choice of the subject for constitutional amendment cannot, therefore, be
characterized as trifling, frivolous or outside the framework of copious Constitution. In America,
the challenge to the Eighteenth Amendment on the ground that ordinary legislation cannot be
embodied in a constitutional amendment was brushed aside as unworthy of serious attention.
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Rottshaefer endorsed it as consistent with the ultimate political theory on which the American
constitutional system is based."The people, acting through the machinery p
663. There was some discussion at the Bar as to which features of the Constitution form the
basic structure of the Constitution according to the majority decision in the Fundamental Rights
case. That, to me, is an inquiry both fruitless and irrelevant. The ratio of the majority decision is
not that some named features of the Constitution are a part of its basic structure but that the
power of amendment cannot be exercised so as to damage or destroy the essential elements or the
basic structure of the Constitution, whatever these expressions may comprehend. Sikri, C.J.
mentions supremacy of the Constitution, republican and democratic form of the Government,
secular character of the Constitution, separation of powers, federalism and dignity and freedom of
the individual as essential features of the Constitution. Shelat and Grover, JJ. have added to the
list two other features : the mandate to build a welfare State and unity and integrity of the nation.
Hegde and Mukherjea, JJ. added sovereignty of India as a f
664. I consider it beyond the pale of reasonable controversy that if there be any unamendable
features of the Constitution on the score that they form a part of the basic structure of the
Constitution, they are that : (i) India is a sovereign democratic republic; (ii) Equality of status and
opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and
all persons shall be equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion and that (iv) the nation shall be governed by a Government of
laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars,
therefore, of the basic structure of the Constitution.
665. I find it impossible to subscribe to the view that the preamble of the Constitution holds
the key to its basic structure or that the preamble is too holy to suffer a human touch.
Constitutions are written, if they are written, in the rarefied atmosphere of high ideology,
whatever be the ideology. Preambles of written Constitutions are intended primarily to reflect the
hopes and aspirations of people. They resonate the ideal which the nation seeks to achieve, the
target, no the achievement. In parts, therefore, they are metaphysical like slogans. For example,
the concept of fraternity which is referred to in our preamble is not carried into any provision of
the Constitution and the concept is hardly suitable for encasement in a coercive legal formula. The
preamble, generally, uses words of "passion and power" in order to move the hearts of men and to
stir them into action. Its own meaning and implication being in doubt, the preamble cannot affect
or throw light on the meaning of the enacting words of the
666. Judicial review, according to Shri Shanti Bhushan, is a part of the basic structure of the
Constitution and since the Thirty-ninth Amendment by Article 329A (4) and (5) deprives the
courts, including the Supreme Court, of their power to adjudicate upon the disputed election, the
amendment is unconstitutional. The fundamental premise of this argument is too broadly stated
because the Constitution, as originally enacted, expressly excluded judicial review in a large
variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) are some of
the instances in point. True, that each of these provisions has a purpose behind it but these
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provisions show that the Constitution did not regard judicial review as an indispensable measure
of the legality or propriety of every determination. Article 136(2) expressly took away the power
of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal
constituted by a law relating to the armed forces. Article 262(
667. The provision contained in Article 329(b) is decisive on the question under consideration.
That article provides that no election to the Parliament or the State Legislature 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. It was therefore open to
the Legislature to leave the adjudication of election disputes to authorities other than those in the
hierarchy of our judicial system. In fact, until the passing of the Representation of the People
(Amendment) Act, 47 of 1966, by which High Courts were given jurisdiction to try election
petitions, that jurisdiction was vested first in a tribunal consisting of three members and later in a
tribunal consisting of a single member who was to be a sitting District Judge. The decisions of
those tribunals could eventually be brought before the Supreme Court under Article 136(1) of the
Constitution but it is at least plausible that we
668. In England, prior to 1770, controverted elections were tried by the whole House of
Commons as mere party questions but in order "to prevent so notorious a perversion of justice",
the House consented to submit the exercise of its privilege to a tribunal composed of its own
members. In 1868, the jurisdiction of the House to try election petitions was transferred by statute
to the courts of law. A parliamentary election petition is now tried by two judges from out of
there puisne judges of the Queen's Bench Division who are put on the rota for trial of such
petitions by selection every year by a majority of votes of the judges of that division. At the
conclusion of the trial, the Court must forthwith certify the determination to the Speaker. The
determination, upon such certification, is final to all intents and purposes. Thus, in England, the
election Court is constituted by a special method, it exercises a jurisdiction out of the ordinary
jurisdiction which is normally exercised a jurisdiction out of the
669. Under Article 1, Section 5, Clause 1 of the American Constitution, each House is the
judge of the elections, returns and qualifications of its own members. Each House, in judging of
elections under this clause, acts as a judicial tribunal. Any further review of the decisions of the
two Houses seems impermissible.
670. I am therefore unable to accept the contention that Article 329A (4) and (5) are
unconstitutional on the ground that by those provisions, the election of the Prime Minister is
placed beyond the purview of the courts.
671. Equally, there is no substance in the contention that the relevant clauses of the
Thirty-ninth Amendment are in total derogation of "political justice" and are accordingly
unconstitutional. The concept of political justice of which the preamble speaks is too vague and
nebulous to permit by its yardstick the invalidation of a constitutional amendment. The preamble,
as indicated earlier, is neither a source of power nor of limitation.
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672. The contention that 'democracy' is an essential feature of the Constitution is unassailable.
It is therefore necessary to see whether the impugned provisions of the Thirty-ninth Amendment
damage or destroy that feature. The learned Attorney-General saw an insurmountable impediment
in the existence of various forms of democracies all over the world and he asked : What kind and
form of democracy constitutes a part of our basic structure? The cabinet system, the Presidential
system, the French, the Russian or any other? This approach seeks to make the issue
unrealistically complex. If the democratic form of government is the cornerstone of our
Constitution, the basic feature is the broad form of democracy that was known to Our Nation
when the Constitution was enacted, with such adjustments and modifications as exigencies may
demand but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic
doctrine and no one can suggest that a rule is authoritarian because some rights and safeguar
673. The question for consideration is whether the provision contained in Article 329A (4)
and (5) are destructive of the democratic form of government. The answer does not lie in
comparisons with what is happening in other parts of the world, those that stake their claim to
'democracy' because we are not concerned to find whether despite the Thirty-ninth Amendment
we are still not better off, democratically, than many others. The comparison has to be between
the per Thirty-ninth Amendment period and the post-Thirty-ninth Amendment period in the
context of our Constitution.
674. "Those of us who have learned humility have given over the attempts to define law". This
statement of Max Radin may be used to express a similar difficulty in defining 'democracy' but just
as legal scholars, not lacking in humility, have attempted to define 'law', so have political scientists
attempted a satisfactory definition of 'democracy'. The expression is derived from the Greek work
'demos', which was often used by the Greeks to describe the many, as distinct from the few, rather
than the people as a whole. And Aristotle defined democracy as the rule of the poor, simply
because they formed, always and necessarily, the more numerous class. But the word is commonly
used "in the sense of the rule of the majority of the community as a whole, including 'classes' and
'masses'........, since that is the only method yet discovered for determining what is deemed to be
the will of the body politic is not unanimous. This will is expressed through the election of
representatives. C. F. Strong defines democrac
675. Forgetting mere words which Tennyson said : 'Like Nature, half reveal and half conceal
the Soul within', the substance of the matter is the rule of the majority and the manner of
ascertaining the will of the majority is throughout the process of elections. I find myself unable to
accept that the impugned provisions destroy the democratic structure of our government. The rule
is still the rule of the majority despite the Thirty-ninth Amendment and no law or amendment of
the fundamental instrument has provided for the abrogation of the electoral process. In fact it is
through that process that the electorate expressed its preference for Smt. Indira Gandhi over Shri
Raj Narain and others. Article 326 of the Constitution by which the elections to the House of the
People and to the State Legislative Assemblies shall be on the basis of adult suffrage still stands.
Article 79 which provides that "There shall be a Parliament...... which shall consist of........ two
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Houses", Articles 80 and 81 which prescribe th
676. This is not put a seal of approval on the immunity conferred on any election but it is hard
to generalize from a single instance that such an isolated act of immunity has destroyed or
threatens to destroy the democratic framework of our government. One swallow does not make a
summer. The swallow with its pointed wings, forked tail, a curving flight and twittering cry is
undoubtedly a harbinger of summer but to see all these in the Thirty-ninth Amendment and to
argue that the summer of a totalitarian rule is knocking at the threshold is to take an unduly
alarmist view of the political scene as painted by the amendment. Very often, as said by Sir
Frederick Pollock, "If there is any real danger it is of the alarmist's own making".
677. The Thirty-ninth Amendment is, however, open to grave objection on other grounds, in
so far as clauses (4) and (5) of Article 329A are concerned. Generality and equality are two
indelible characteristics of justice administrated according to law. The preamble to our
Constitution by which the people of Indira resolved solemnly to secure to all its citizens equality
of status and opportunity finds its realization in an ampler measure in Article 14 which guarantees
equality before the law and the equal protection of laws to all persons, citizens and non-citizens
alike. Equality is the faith and creed of our democratic republic and without it, neither the
Constitution nor the laws made under it could reflect the common conscience of those who owe
allegiance to them. And if they did not, they would fail to command respect and obedience
without which any Constitution which, without a true nexus, denies equality before the law to its
citizens may in a form thinly disguised, contain reprisals directed against p
678. Article 329A(4) makes the existing election laws retrospectively inapplicable, in a very
substantial measure, to the parliamentary elections of the Prime Minister and the Speaker. The
inapplicability of such laws creates a legal vacuum because the repeal, so to say, of existing laws
is only a step-in-aid to free the election from the restraints and obligations of all election laws,
indeed of all laws. The plain intendment and meaning of clause (4) is that the election of the two
personages will be beyond the reach of any law, past or present. What follows is a neat logical
corollary. The election of the Prime Minister could not be declared void as there was no law to
apply to that election; the judgment of the Allahabad High Court declaring the election void is
itself void; and the election continues to be valid as it was before the High Court pronounced its
judgment.
679. These provisions are an outright negation of the right of equality conferred by Article 14,
a right which more than any other is a basic postulate of our Constitution. It is true that the right,
though expressed in an absolute form, is hedged in by a judge-made restriction so that the same
law will not apply to all persons alike or different laws may govern the rights and obligations of
different persons falling within distinct classes. The boast of law that it is no respector of persons
is the despair of drawers of waters and hewers of wood who claim or for a differential treatment.
The judge takes that boast to mean that in an egalitarian society no person can be above the law
and that justice must be administered with an even hand to those who are situated equally. In
other words, all who are equal are equal in the eye of law and it will not accord a favoured
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treatment to persons within the same class. Laws as Plato said, would operate "like an obstinate
and ignorant tyrant if they imposed inflexible
680. This Court, at least since the days of Anwar Ali Sarkar's case, has consistently taken the
view that the classification must be founded on an intelligible differential which distinguishes those
who are grouped together from those who are left out and that the differential must have a
rational relation to the object sought to be achieved by the particular. The first test may be
assumed to be satisfied since there is no gainsaying that in our system of government, the Prime
Minister occupies a unique position. But what is the nexus of that uniqueness with the law which
provides that the election of the Prime Minister and the Speaker to the Parliament will be above
all laws, that the election will be governed by no norms or standards applicable to all others who
contest that election and that an election declared to be void by a High Court judgment shall be
deemed to be valid, the judgment and its findings being themselves required to be deemed to be
void? Such is not the doctrine of classification and no
681. It follows that clauses (4) and (5) of Article 329A are arbitrary and are calculated to
damage or destroy the rule of law. Imperfection of language hinder a precise definition of the rule
of law as of the definition of 'law' itself. And the Constitutional Law of 1975 has undergone many
changes since A. V. Dicey, the great expounder of the rule of law, delivered his lectures as
Vinerian Professor of English Law at Oxford, which were published in 1885 under the title,
"Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be said
with reasonable certainty that the rule of law means that the exercise of powers of government
shall be conditional by law and that subject to the exceptions to the doctrine of equality, no one
shall be exposed to the arbitrary will of the Government. Dicey gave three meanings to rule of law
: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the
ordinary law of the land the source but the consequence of
682. The argument directed at showing the invalidation of the Thirty-ninth Amendment on the
ground that it abrogates the principle of 'separation of powers' is replete with many possibilities
since it has several sidelights. But I will be brief since I have already held that clauses (4) and (5)
of Article 329A are unconstitutional. I cannot regard the point as unnecessary for my
determination since the point seems to me of great constitutional importance.
683. The Indian Constitution was enacted by the Constituent Assembly in the backdrop of the
national struggle for independence. The Indian people had gone through a travail and on the
attainment of independence, the country had to face unique problems which had not confronted
other federations like America, Australia, Canada or Switzerland. These problems had to be
solved pragmatically and not by confining the country's political structure within the straitjacket of
a known or established formula. The Constituent Assembly, therefore, pursued the policy of pick
and choose to see what suited the genius of the nation best.
"This process produced new modifications of established ideas about the construction of
federal governments and their relations with the governments of their constituent units. The
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assembly, in fact, produced a new kind of federalism to meet India's peculiar needs".
While introducing the Draft Constitution in the Constituent Assembly, Dr. Ambedkar who
was one of the chief architects of the Constitution said that our Constitution avoided the tight
mould of federalism in which American Constitution was caught and could be "both unitary as
well as federal according to the requirements of time and circumstances". We have what may
perhaps be described by the phrase, 'cooperative federalism' a concept different from the one in
vogue when the federations of United States or of Australia were set up.
684. The American Constitution provides for a rigid separation of governmental powers into
three basic divisions, the executive, legislative and judicial. It is an essential principle of that
Constitution that powers entrusted to one department should not be exercised by any other
department. The Australian constitution follows the same pattern of distribution of powers.
Unlike these Constitution, the Indian Constitution does not expressly vest the three kinds of
power in three different organs of the State. But the principle of separation of powers is not a
magic formula for keeping the three organs of the State within the strict confines of their
functions. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v.
Ryan, the principle of separation of powers "is not a doctrinaire concept to be made use of with
pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in
response to the practical necessities of Government which cannot foresee today
685. The truth of the matter is that the existence, and the limitations on the powers of the
three departments of government are due to the normal process of specialisation in governmental
business which becomes more and more complex as civilization advances. The Legislature must
make laws, the Executive enforce them and the Judiciary interpret them because they have in their
respective fields acquired an expertise which makes them competent to discharge their duly
appointed functions. The Moghal Emperor, Jehangir, was applauded as a reformist because soon
after his accession to the throne in 1605, he got a golden chain with sixty bells hung in his palace
so that the common man could pull it and draw the attention of the ruler to his grievances and
sufferings. The most despotic monarch in the modern world prefers to be armed, even if formally,
with the opinion of his judges on the grievances of his subjects.
686. The political usefulness of the doctrine of separation of powers is now widely recognised
though a satisfactory definition of the three functions is difficult to evolve. But the function of the
Parliament is to make laws, not to decide cases. The British Parliament in its unquestioned
supremacy could enact a legislation for the settlement of a dispute or it could, with impunity,
legislate for the boiling of the Bishop of Rochester's cook. The Indian Parliament will not direct
that an accused in a pending case shall stand acquitted or that a suit shall stand decreed. Princely
India, in some parts, often did it.
687. The reason of this restraint is not that the Indian Constitution recognizes any rigid
separation of powers. Plainly, it does not. The reason is that the concentration of powers in any
one organ may, by upsetting that fine balance between the three organs, destroy the fundamental
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premises of a democratic government to which we are pledged. Sir Carleton K. Allen says in his
'Law and Orders' (1965 Ed., p. 8) that neither in Montesquieu's analysis nor in Locke's are the
governmental powers conceived as the familiar trinity of legislative, executive and judicial powers.
Montesquieu's "separation" took the form not of impassable barriers and unalterable frontiers, but
of mutual restraints, or of what afterwards came to be known as "checks and balances" (p. 10).
The three organs must act in concert, not that their respective functions should not ever touch one
another. If this limitation is respected and preserved, "it is impossible for that situation to arise
which Locke and Montesquieu regarded as the eclips
688. I do not suggest that such an encroaching power will be pursued relentlessly or ruthlessly
by our Parliament. But no Constitution can survive without a conscious adherence to its fine
checks and balances. Just as Courts ought not to enter into problems entwined in the "political
thicket", Parliament must also respect the preserve of the courts. The principle of separation of
powers is a principle of restraint which "has in it the precept, inmate in the prudence of
self-preservation (even if history has not repeatedly brought it home), that discretion is the better
part of valour". Courts have, by and large, come to check their valorous propensities. In the name
of the Constitution, the Parliament may not also turn its attention from the important task of
legislation to deciding court cases for which it lacks the expertise and the apparatus. If it gathers
facts, it gathers facts of policy. If it records findings, it does so without a pleading and without
framing any issues. And worst of all, if it decide
689. The Parliament, by clause (4) of Article 329A, has decided a matter of which the
country's courts were lawfully seized. Neither more nor less. It is true, as contended by the
learned Attorney-General and Shri Sen, that retrospective validation is a well-known legislative
process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy
cases and variety of other matters. In fact, such validation was resorted to by the Legislature and
upheld by this Court in at least four election cases, the last of them being Kanta Kathuria v.
Manak Chand Surana. But in all of these cases, what the Legislature did was to change the law
retrospectively so as to remove the reason of disqualification, leaving it to the courts to apply the
amended law to the decision of the particular case. In the instant case the Parliament has
withdrawn the application of all laws whatsoever to the disputed election and has taken upon
itself to decide that the election is valid. Clause (5) commands the Supr
690. I find it contrary to the basic tenets of our Constitution to hold that the amending body is
an amalgam of all powers-legislative, executive and judicial."Whatever pleases the emperor has
the force of law" is not an article of democratic faith. The basis of our Constitution is a
well-planned legal order, the presuppositions of which are accepted by the people as determining
the methods by which the functions of the government will be discharged and the power of the
State shall be used.
691. So much for the Thirty-ninth Amendment. The argument regarding the invalidity of the
Representation of the People (Amendment) Act, 58 of 1974, and of the Election Laws
(Amendment) Act, 1975 has, however, no substance. The constitutional amendments may, on the
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ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the
principle that a case is only an authority for what it decides, it does not logically follow from the
majority judgment in the Fundamental Rights case that ordinary legislation must also answer the
same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity
: (1) The law must be within the legislative competence of the Legislature as defined and specified
in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of
Article 13(1) and (2) of the constitution.'Basic structure', by the majority judgment, is not a part
of the fundamental rights nor indeed a provision of the Constitu
692. Shri Shanti Bhushan thought it paradoxical that the higher power should be subject to a
limitation which will not operate upon a lower power. There is no paradox, because certain
limitations operate upon higher power for the reason that it is higher power. A constitutional
amendment has to be passed by a special majority and certain such amendments have to be ratified
by the Legislatures of not less than one-half of the States as provided by Article 368(2). An
ordinary legislation can be passed by a simple majority. The two powers, though species of the
same genus, operate in different fields and are therefore subject to different limitations.
693. No objection can accordingly be taken to the constitutional validity of the two impugned
Acts on the ground that they damage or destroy the basic structure. The power to pass these Acts
could be exercised retrospectively as much as prospectively.
694. These Acts effectively put an end to the two appeals before us for they answer the
totality of the objections which were raised by Shri Raj Narian against the election of Smt. Indira
Gandhi. The basis of the findings on which the High Court held against the successful candidate is
removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments
introduced by that Act, the High Court could not have held that the election is vitiated by the two
particular corrupt practices. In regard to the cross-appeal filed by Shri Raj Narain, Shri Shanti
Bhushan thought that a part of it escapes through the crevices in the Act but I see no substance in
that contention either. I would like to add that the findings recorded by the High Court in favour
of Smt. Indira Gandhi are amply borne out by the evidence to which our attention was drawn
briefly by the learned Counsel for the parties. The expenses incurred by the political party,
together with the expenses incurred by her are not shown to exceed t
695. Finally, there is no merit in the contention that the constitutional amendment is bad
because it was passed when some members of the Parliament were in detention. The legality of
the detention orders cannot be canvassed in these appeals collaterally. And from a practical point
of view, the presence of 21 members of the Lok Sabha and 10 members of the Rajya Sabha who
were in detention could not have made a difference to the passing of the amendment.
696. In the result, I hold that clauses (4) and (5) of Article 329A are unconstitutional and
therefore void. But for reasons aforesaid I allow Civil Appeal No. 887 of 1975 and dismiss Civil
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Indira Nehru Gandhi
Vs
Shri Raj Narain
Raj Narain and Another
Vs
Smt. Indira Nehru Gandhi Respondents
CASE NUMBER
Civil Appeals Nos. 887 and 909 of 1975
EQUIVALENT CITATION
1975-(002)-SCC-0159-SC
1975-AIR-1590-SC
CORAM
A. N. Ray
H. R. Khanna
K. K. Mathew
M. H. Beg
Y. V. Chandrachud
DATE OF JUDGMENT
07.11.1975
JUDGMENT
RAY, C.J.-
1. In Civil Appeal No. 887 of 1975 the appellant is Indira Nehru Gandhi and the respondent is
Raj Narain. Civil Appeal No. 909 of 1975 is the cross objection of the respondent. On July 14,
1975 it was directed that both the appeals would be heard together. The appeals arise out of the
judgment of the High Court of Allahabad dated June 12, 1975. The High Court held that the
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appellant held that the appellant held herself out as a candidate from December 29, 1970 and was
guilty of having committed corrupt practice by having obtained the assistance of gazetted officers
in furtherance of her election prospects. The High Court further found the appellant guilty of
corrupt practice committed under section 123(7) of the Representation of the People Act, 1951
hereinafter referred to as the 1951 Act by having obtained the assistance of Yashpal Kapur a
gazetted officer for the furtherance of her election prospects. The High Court held the appellant
to be disqualified for a period of six years from the date of
2. It should be stated here that this judgment disposes of both the appeals. Under directions of
this Court the original record of the High Court was called for. The appeal filed by the respondent
with regard to issues Nos. 2, 4, 6, 7 and 9 formed the subject-matter of cross objections in Civil
Appeal No. 909 of 1975. The cross objections are the same which form grounds of appeal filed by
the respondent in the High Court at Allahabad against an order of dismissal of Civil Misc. Writ.
No. 3761 of 1975 filed in the High Court at Allahabad.
3. The Constitution (Thirty-ninth Amendment) Act, 1975 contains three principal features.
First, Article 71 has been substituted by a new Article 71. The new Article 71 states that subject
to the provisions of the Constitution, Parliament may by law regulate any matter relating to or
connected with the election of a President or Vice-President including the grounds on which such
election may be questioned.
4. The second feature is insertion of Article 329A in the Constitution. Clause 4 of Article
329A is challenged in the present appeals. There are six clauses in Article 329A.
5. The first clause states that subject to the provisions of Chapter II of Part V [except
sub-clause (e) of clause (1) of Article 102] no election to either House of Parliament of a person
who holds the office of Prime Minister at the time of such election or is appointed as Prime
Minister after such election; and to the House of the People of a person who holds the office of
Speaker of that House at the time of such election or who is chosen as the Speaker for that House
after such election; shall be called in question, except before such authority [not being any such
authority as is referred to in clause (b) of Article 329] or body and in such manner as may be
provided for by or under any law made by Parliament and any such law may provide for all other
matter relating to doubts and disputes in relation to such election including the grounds on which
such election may be questioned.
6. Under the second clause the validity of any such law as is referred to in clause (1) and the
decision of any authority or body under such law shall not be called in question in any court.
7. The third clause states that where any person is appointed as Prime Minister or, as the case
may be, chosen to the office of the Speaker of the House of the People, while an election petition
referred to in Article 329 (b) in respect of his election to either House of Parliament or, as the
case may be, to the House of the People is pending, such election petition shall abate upon such
person being appointed as Prime Minister or, as the case may be, being chosen to the office of the
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Speaker of the House of the People, but such election may be called in question under any such
law as is referred to in clause (1).
8. The fourth clause which directly concern the present appeals states that no law made by
Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in
so far as it relates to election petitions and matters connected therewith, shall apply or shall be
deemed ever to have applied to or in relation to the election of any such person as is referred to in
clause (1), to either House of Parliament and such election shall not be deemed to be void or ever
to have become void on any ground on which such election could be declared to be void under
any such law and notwithstanding any order made by any court, before such commencement,
declaring such election to be void, such election to be void, such election continue to be valid in
all respect and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of no effect.
9. The fifth clause states that any appeal or cross appeal against any such order of any court as
is referred to in clause (4) pending immediately before the commencement of the Constitution
(Thirty-ninth Amendment) Act, 1975, before the Supreme Court shall be disposed of in
conformity with the provisions of clause (4).
10. The sixth clause states that the provisions of this article shall have effect notwithstanding
anything contained in the Constitution.
11. The third feature in the Constitution (Thirty-ninth Amendment) Act is that in the Ninth
Schedule to the Constitution after Entry 86 and before the explanation several Entries Nos. 87 to
124 inclusive are inserted. The Representation of the People Act, 1951, the Representation of the
People (Amendment) Act, 1974 and the Election Laws (Amendment) Act, 1975 are mentioned in
Entry 87.
12. The respondent contends that the Representation of the People (Amendment) Act, 1974
and the Election Laws (Amendment) Act, 1975 referred to as the Amendment Acts, 1974 and
1975 do not enjoy constitutional immunity because these Acts destroy or damage basic structure
or basic features.
13. In view of the challenge by the respondent to the constitutional validity of the Amendment
Acts, 1974 and 1975, notice was given to the Attorney General.
14. The appeals were to be heard on August 11, 1975. In view of the Constitutional
(Thirty-ninth Amendment) Act, 1975 which came into existence on August 10, 1975 the hearing
was adjourned till August 25, 1975.
15. The constitutional validity of clause (4) of Article 329A falls for consideration. Clause (4)
of Article 329A is challenged on two grounds. First, it destroys or damages the basic features or
basic structure of the Constitution. Reliance is placed in support of the contention on the majority
view of seven learned Judges in His Holiness Kesavananda Bharati Sripadagalavaru v. State of
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Kerala.
16. It should be stated here that the hearing has proceeded on the assumption that it is not
necessary to challenge the majority view in Kesavananda Bharati's case (supra). The contentions
of the respondent are these : First, under Article 368 only general principles governing the organs
of the State and the basic principles can be laid down. An amendment of the Constitution does not
contemplate any decision in respect of individual cases. Clause (4) of Article 329A is said to be
exercise of a purely judicial power which is not included in the constituent power conferred by
Article 368.
17. Second, the control over the result of the elections and on the question whether the
election of any person is valid or invalid is vested in the Judiciary under the provisions of Article
329 and Article 136. The jurisdiction of judicial determination is taken away, and, therefore, the
democratic character of the Constitution is destroyed.
18. Third, the amendment destroys and abrogates the principle of equality. It is said that there
is no rational basis for differentiation between persons holding high offices and other persons
elected to Parliament.
19. Fourth, the rule of law is the basis for democracy and judicial review. The fourth clause
makes the provisions of Part VI of the Representation of the People Act inapplicable to the
election of the Prime Minister and the Speaker.
20. Fifth, clause (4) destroys not only judicial review but also separation of power. The order
of the High Court declaring the election to be void is declared valid (sie void). The cancellation of
the judgment is denial of political justice which is the basic structure of the Constitution.
21. The second ground is that the condition of the House which passed the Constitution
(Thirty-ninth amendment) Act is illegal. It is said that a number of members of Parliament of the
two Houses were detained by executive order after June 26, 1975. These persons were not
supplied any grounds of detention or given any opportunity of making a representation against
their detention. Unless the President convenes a session of the full Parliament by giving to all
members thereof an opportunity to attend the session and exercise their right of speech and vote,
the convening of the session will suffer from illegality and unconstitutionality and cannot be
regarded as a session of the two Houses of Parliament. The mere fact that a person may be
deprived of his right to move any court to secure his release from such illegal detention by means
of a Presidential order under Article 359 does not render the detention itself either legal or
constitutional. The important leaders of the House have been prevented from partic
22. Under the first ground these are the contentions. The Constitution Amendment affects the
basic structure of institutional pattern adopted by the Constitution. The basic feature of separation
of powers with the role of independence of Judiciary is changed by denying jurisdiction of this
Court to test the validity of the election. The essential feature of democreacy will be destroyed if
power is conceded to Parliament to declare the elections void according to law under which it has
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been held to be valid. This is illustrated by saying that Parliament can be law declare the election
of persons against the predominant ruling party to be void. If the majority party controls the
Legislature and the Executive, the Legislature could not have any say as to whether the Executive
was properly elected. Free and fair elections are part of democratic structure and an election
which has been held to be invalid for violation of the principles of free and fair elections and by
commission of corrupt practices is validated
23. The nature of the constituent power is legislative. The constituent power cannot exercise
judicial power. Exercise of judicial power or of a purely executive power is not power of
amendment of the Constitution. The Constitution may be amended to change constitutional
provisions but the constituent power cannot enact that a person is declared to be elected. The
consequence of change of law may be that the decision given by a court under the law as it stood
will not stand.
24. The respondent contends that judicial review is an essential feature of basic structure
because of the doctrine of separation of powers for these reasons : Judicial review is basic
structure in the matter of election to ensure free, fair and pure election. In the American and the
Australian Constitutions the judicial power of the State is located in the Judiciary. There is no
such provision in our Constitution. The Executive, the Legislature and the Judiciary are all treated
under our Constitution with respective spheres. The Judiciary are all treated under our
Constitution with respective spheres. The jurisdiction of this Court and of High Courts under our
Constitution is dealt with by articles under the heads of the Union Judiciary and the State
Judiciary. Under Article 136 any tribunal or court is amenable to the jurisdiction of this Court.
The corollary drawn from this is that if under clause (4) of Article 329A of the Thirty-ninth
Amendment the power of judicial review is taken away it amounts to de
25. In England formerly Parliament used to hear election disputes. In 1870 Parliament found
that because of political factions it would be better to leave the task of deciding controverted
elections to judges. Parliament delegated its power of deciding controverted elections to courts.
Under the English law the courts hear and make a report to Parliament. In America each House
shall be the judge of the elections, returns and qualifications of its own members. That is Article 1,
Section 5 of the American Constitution. In Australia any question of a disputed election to either
House shall be determined by the House in which the question arises. Under the German Federal
Republic Constitution the Legislature decides whether a person has lost his seat. Against the
decision of the Bundestag an appeal shall lie to the Federal Constitutional Court.
26. The view of Story on the American Constitution is that the power to judge elections,
returns and qualification of the members of each House composing the Legislature is to be lodged
in the Legislature. Story says that no other body can be so perpetually watchful to guard its own
rights and privileges from infringement. (See Story, page 585).
27. In Corpus Juris Vol. 16 (1956) it is said that the Judiciary cannot exercise powers which
are to be found in the other two departments of Government which are normally legislative or
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powers which are generally executive in their nature. All matters relating to or affecting elections
are political question and, as such, are not questions for the Judiciary. All matters relating to or
affecting elections are, in the absence of controlling constitutional or statutory provisions to the
contrary, political questions and, as such, are not questions for the Judiciary. So, subject to
express constitutional restrictions, all matters relating to the holding of elections and determining
their results, including contests are political question (pp. 691, 692, 710).
28. In Corpus Juris Vol. 29 (1965) it is stated that under constitutional provision conferring
on the Legislature the power to determine by law, before what authority, and in what manner the
trial of contested elections shall be conducted, the Legislature is given broad power. A
constitutional provisions authorising the Legislature to provide for the mode of contesting
elections in all cases not otherwise specifically provided for in the Constitution itself confers on
the Legislature adequate authority to provide for all election contests and to determine where and
by what means election contests shall be conducted. The right to contest an election is not a
common law right. Election belong to the political branch of the Government, and, in the absence
of the special constitutional or statutory provisions, are beyond the control of the judicial power
(Sections 245, 246). A contested election case is a proceeding in which the public is interested,
since it is for the public good. An election contest is not me
29. In America disputed elections are decided by the Legislature. In Taylor v. Beckham the
American Supreme Court held that a determination of an election contest for the office of the
Governor is a political question and is not justifiable. In Truman H. Newberry v. United States of
America the American Supreme Court held that the manner of elections can be controlled. In
David S. Barry v. United States of America Ex. Rel. Thomas W. Cunninggham the decision of the
American Supreme Court in Charles W. Baker v. Joe C. Carr was referred to in order to find out
as to what aspects of elections would be justiciable and not a political question. In Baker v. Carr
(supra) the delimitation of constituencies was held to be a justiciable issue. In Julian Bond v.
James 'Sloppy' Floyd the exclusion of an elected representative because of his statement attacking
the Vietnam policy was held to be justiciable on the ground that it was not within the jurisdiction
of the Legislature to find out whether a member was sincere in
30. The American decisions show that if the House claims additional power to disqualify a
member on the ground other than those stated in the Constitution judicial review against
disqualification would be available. In Bond's case (supra) disqualification was on an
unconstitutional ground that his statement on Vietnam policy was a matter of free speech and
expression. The court did not decide an election dispute but as a custodian of judicial power
judged whether the House was acting within its power.
31. Parliament itself can also hear election disputes. That was the English practice until the
Grenville Act, 1868 when Parliament conferred power on courts. Before 1770, controverted
elections were tried by the whole House of Commons as party questions. The House found that
the exercise of its privilege could be submitted to a tribunal constituted by law to secure
impartiality in the administration of justice according to the laws of the land. In 1868 the
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jurisdiction of the House in the trial of controverted elections was transferred by statute to the
courts of law. The present procedure is contained in the English Representation of the People
Act, 1949. The trial is confided to judges selected from the Judiciary. Provision is made in each
case for constituting a rota from whom these judges are selected. The House has no cognizance of
these proceedings until their determination when the judges are to make a purpose. Trial is not a
proceeding of the House. The judges certify theor determination, in writing,
32. Judicial review in many matters under statute may be excluded. In many cases special
jurisdiction is created to deal with matters assigned to such authorities. A special forum is even
created to hear election disputes. A right of appeal may be conferred against such decision. If
Parliament acts as the forum for determination of election disputes it may be a question of
parliamentary privilege and the courts may not entertain any review from such decisions. That is
because the exercise of power by the Legislature in determining disputed elections may be called
legislative power. A distinction arises between what can be called legislative power. A distinction
arises between what can be called the traditional judicial determination by courts and tribunals on
the one hand and the peculiar jurisdiction by the Legislature in determining controverted elections
on the other.
33. The legal order is a system of general and individual norms connected with each other
according to the principle that law regulates its own creation. Each norm of this order is created
according to the provisions of another norm and ultimately according to the provisions of the
basic norm constituting the unity of this system, the legal order. A norm belongs to a certain legal
order, because it is created by an organ of the legal community constituted by this order. Creation
of law is application of law. The creation of a legal norm is normally an application of the higher
norm, regulating its creation. The application of higher norm is the creation of lower norm
determined by the higher norm. A judicial decision is an act by which a general norm, a statute, is
applied but at the same time an individual norm is created binding one or both parties to the
conflict. Legislation is creation of law. Taking it into account is applicable of law. The higher
norm may determine the organ and the procedure by which
34. The general norm which attaches abstractly determined consequences, has to be applied to
concrete cases in order that the sanction determined in abstract may be ordered and executed in
concrete. The two essential elements of judicial functions are to apply a pre-existing general norm
in which a certain consequence is attached to certain conditions. The existence of the concrete
conditions in connection with the concrete consequence are what may be called individualization
of the general and abstract norm to the individual norm of the judicial decision.
35. The contention is that constitutent power is an exercise in legislative process. The
constituent power, it is said, can exercise legislative as well as judicial and executive powers. It is
said that if a legislation can validate a matter declared invalid by a judgement the constituent
power may equally do so. Special emphasis is laid on Article 102(1) (e) of the Constitution which
is amended by the Constitution (Thirty-ninth Amendment) Act. Article 102(1) (e) speaks of
disqualification by certain laws. The constitutional amendment seeks to amended Article 102 and
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remove the disqualification in the case of the Prime Minister and the Speaker. Reliance was placed
on the decisions in Abeyesekera v. Jayabilake and Piare Dusadh v. King Emperor, that an
amendment is supportable to invalidate a judgment.
36. Abeyesekera's case (supra) is an authority for the proposition that the legal infirmity can
be removed and active indemnity can be passed to relieve from penalties incurred.
37. In Piare Dusadh's case (supra) the Special Criminal Courts (Repeal) Ordinance, 1943
which conferred validity and full effectiveness on sentences passed by special courts which
functioned under the Special Criminal Courts Ordinance, 1942 was challenged. It was argued in
Piare Dusadh's case that the 1943 Ordinance attempted to exercise judicial power. The Federal
Court did not accept the contention on the ground that in India the Legislature has enacted laws
providing that suits which had been dismissed on a particular view of the law must be restored
and retried. Our Federal Court said that Parliament simply takes up certain determinations which
exist in fact, though made without authority, and prescribes not that they shall be acts done by a
board of review, but that they shall be treated as they would be treated if they were such acts. The
sections do not constitute an exercise of the judicial power. The Legislature had not attempted to
decide the question of the guilt or innocence of any of the accused
38. The power of the Legislature to validate matters which have been found by judgments or
orders of competent courts and tribunals to be invalid or illegal is a well-known pattern. The
Legislature validates acts and things done by which the basis of judgments or orders of competent
courts and tribunals is changed and the judgments and orders are made ineffective. All the sales
tax validation cases, the election validation cases are illustrations of that proposition. The present
appeals are not of the type of providing indemnity against penalties or determining existing facts
to be treated in accordance with change of law.
39. The effect of validation is to change the law so as to alter the basis of any judgment, which
might have been given on the basis of old law and thus make the judgment ineffective. A formal
declaration that the judgment rendered under the old Act is void, is not necessary. If the matter is
pending in appeal, the appellate Court has to give effect to the altered law and reverse the
judgment. The rendering of a judgment ineffective by changing its basis by legislative enactment is
not an encroachment on judicial power but a legislation within the competence of the Legislature
rendering the basis of the judgment non est. If a competent court has found that a particular tax or
levy has been imposed by a law, which is void because the Legislature passing the law was not
competent to pass the law, then the competent Legislature has validated the tax or levy by a
validation Act involving a re-enactment of the invalid law. Where the competent Legislature has
passed a law which is contrary to any of the fundamenta
40. Where invalid elections declared by reason of corrupt practices have been validated by
changing the definition of corrupt practices in the Representation of the People Act, 1951
retrospectively the original judgment is rendered ineffective. (See Kanta Kathuria v. Manak Chand
Surana).
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41. Our Federal Court in Basanta Chandra Ghose v. King Emperor, dealt with the validity and
effect of Ordinance No. 3 of 1944. One of the objects of that ordinance was to enact a
presumption in the ordinance itself in favour of detention orders to preclude their being
questioned in courts of law and to take away or limit the power of the High Court to make orders
under Section 491 of the Criminal Procedure Code. The third object of the ordinance was
challenged on the ground that Section 10(2) of the ordinance which provided that if at the
commencement there is pending in any court any proceeding by which the validity of an order
having effect by virtue of Section 6 as if it had been made under this ordinance is called in
question, that proceeding is hereby discharged. Section 10(2) of the ordinance was challenged on
the ground that this was in abrogation of judicial power by legislative authority. It was said that
the legislative authority only passed the law and the disposal of the particular case could rem
42. Counsel on behalf of the respondent contended that the constituent power could deal with
amendments of the Constitution, but could not exercise constituent power in relation to validating
an election.
43. Judicial review is one of the distinctive features of the American Constitutional Law. In
America equal protection of the laws is based on the concept of due process of law. These
features are not in our Constitution.
44. In Bond's case (supra) the House claimed additional power to disqualify a member on
grounds other than those stated in the Constitution. It was conceded there as it will appear at
page 244 of the report that judicial review against the disqualification decreed by the House
would be available if a member was excluded on racial ground or other unconstitutional grounds.
The House claimed that the ground on which Bond was disqualified was not an unconstitutional
ground. The court held that there was no distinction between a disqualification decreed by the
House on racial grounds and one alleged to violate the right of free speech. The court concluded
that Bond was deprived of his constitutional rights guaranteed by the First Amendment by the
disqualification decreed by the House. This was not a case of deciding an election dispute by the
House and the court sitting on appeal on the decision of the House. This is a case where a
disqualification was imposed on unconstitutional grounds, thereby affecting the fu
45. The case of Powell v. McCormack (supra) is also one of disqualification by the House of a
Congressman on the basis of qualification which the House added to those specified in the
Constitution. In other words, the House purported to unseat a member by disqualifying him on a
ground not given in the Constitution. This was not a case of deciding an election dispute. Under
the statute in question the Federal District Court had jurisdiction over all civil actions where
controversy arises under the Constitution. This was a case entertained on the ground that
exclusion of a member of the House was unconstitutional. This case is an authority for the
proposition that if a power is committed to a particular organ, the court cannot adjudicate upon it.
Where a power is exercised by one organ, which is not committed to that particular organ of the
State and such exercise of power is violative of a constitutional provision the mater becomes
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cognizable by courts. The Court held that a question of unconstitutional exclu
46. Judicial review is not to be founded on any article similar to the American Constitution. In
the Australian Constitution also the judicial power is located in the court. The doctrine of
separation of powers is carried into effect in countries like America, Australia. In our Constitution
there is separation of powers in a broad sense. But the larger question is whether there is any
doctrine of separation of powers when it comes to exercise of constituent power. The doctrine of
separation of powers as recognised in America is not applicable to our country. (See In re Delhi
Laws Act; Jayantilal Shodhan v. F. N. Rana; Chandra Mohan v. State of U. P.; and Udai Ram
Sharma v. Union of India.)
47. The rigid separation of powers as under the American Constitution or under the Australian
Constitution does not apply to our country. Many powers which are strictly judicial have been
excluded from the purview of the courts. The whole subject of election has been left to courts
traditionally under the Common Law and election disputes and matters are governed by the
Legislature. The question of the determination of election disputes has particularly been regarded
as a special privilege of Parliament in England. It is political question in the United States. Under
our Constitution Parliament has inherited all the privileges, powers and immunities of the British
House of Commons. In the case of election disputes Parliament has defined the procedure by law.
It can at any time change that procedure and take over itself the whole question. There is,
therefore, no question of any separation of powers being involved in matters concerning elections
and election petitions.
48. When the constituent power exercises powers the constituent power comprises legislative,
executive and judicial powers. All powers flow from the constituent power through the
Constitution to the various departments or heads. In the hands of the constituent authority there is
no demarcation of powers. It is only when the constituent authority defines the authorities or
demarcates the areas that separation of power is discussed. The constituent power is independent
of the doctrine of separation of powers. The constituent power is sovereign. It is the power which
creates the organs and distributes the powers.
49. The constituent power is sui generis. It is different from legislative power. The position of
unlimited law-making power is the criterion of legal sovereignty. The constituent power is
sovereign because the Constitution flows from the constituent power.
50. In Article 329A an exercise of judicial power is the question for determination. In
legislative processes there may be judicial process. If the Legislature has to fix the amount or lay
down the principle for fixation of amount the question will arise as to whether this is exercise of
judicial power. The determination of the amount will involve judicial procedure. When the
Legislature determines the amount the fixation of amount is purely by legislative process. But in
doing so the Legislature takes into account factors relevant to individual properties.
51. Every organ of the State has to ascertain facts which make the foundation of its own
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decision. The Executive usually collects its materials through its departments. The Judiciary acts
in a field where there are two or more parties before it and upon evidence placed before it
pronounces its verdict according to principles of natural justice. The Legislature is entitled to
obtain information from any source. The Legislature may call witnesses. The rule of audi alteram
partem is not applicable in a legislative process. Legislation is usually general. It may sometimes
be for special reasons an individual case. There is no doubt that the constituent power is not the
same as legislative power. The distinction between constituent power and legislative power is
always to be borne in mind because the constituent power is higher in norm.
52. Judicial review in election disputes is not a compulsion. Judicial review of decisions in
election disputes may be entrusted by law to a judicial tribunal. If it is to a tribunal or to the High
Court the judicial review will be attracted either under the relevant law providing for appeal to
this Court or Article 136 may be attracted. Under Article 329 (b) the contemplated law may vest
the power to entertain election petitions in the House itself which may determine the dispute by a
resolution after receiving a report from a special committee. In such cases judicial review may be
eliminated without involving amendment of the Constitution. The Constitution permits by
amendment exclusion of judicial review of a matter if it is necessary to give effect to the directive
principles of State policy. A similar power may be available when such exclusion is needed in the
larger interest of the security of the State. In either case the exclusion of judicial review does not
mean that principles of equality are viola
53. Equality of status as well as equality of opportunity is a fundamental right in Articles 14
and 16 of the Constitution. It also means equality before law and equal protection of the laws.
Equality is spoken in the Preamble. There is liberty to Legislature to classify to establish equality.
When Articles 31A and 31B eliminated judicial review the meaning was not that the Legislature
would go on discriminating. The task of classification can be left to the Legislature. It is the very
nature of legislation that classification must be in public interest. The amending body has excluded
judicial review in Articles 31A, 31B and 31C.
54. Exclusion of the operation of the equality principle from some fields is constitutionally
possible. Article 33 excludes judicial review in matters relating to the armed forces. Article 262(2)
excludes jurisdiction of courts in water disputes.
55. Decision in election disputes may be made by the Legislature itself or may be made by
courts or tribunals on behalf of the Legislature or may be made by courts and tribunals on their
own exercising judicial functions. The concept of free and fair election is worked out by the
Representation of the People Act. The Act provides a definition of "corrupt practice" for the
guidance of the court. In making the law the Legislature acts on the concept of free and fair
election. In any legislation relating to the validity of elections the concept of free and fair elections
is an important consideration. In the process of election the concept of free and fair election is
worked out by formulating the principles of franchise, and the free exercise of franchise. In cases
of disputes as to election, the concept of free and fair election means that disputes are fairly and
justly decided. Electoral offenses are statutory ones. It is not possible to hold that the concept of
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free and fair election is a basic structure, a
56. Clause (4) in Article 329A has done four things. First, it has wiped out not merely the
judgment but also the election petition and the law relating thereto. Secondly, it has deprived the
right to raise a dispute about the validity of the election by not having provided another forum.
Third, there is no judgment to deal with and no right or dispute to adjudicate upon. Fourth, the
constituent power of its own legislative judgment has validated the election.
57. At the outset it has to be noticed that constituent power is not the same as ordinary
law-making power. On behalf of the appellant it was rightly contended that if any amendment of
Article 102(1) (e) of the Constitution had to be made, it had to be made by amendment of the
Constitution. The matter does not rest there.
58. If no law prior to the Constitution (Thirty-ninth Amendment) Act will apply to election
petitions or matters connected therewith the result is that there is not only no forum for
adjudication of election disputes but that there is also no election petition in the eye of law. The
insurmountable difficulty is in regard to the process and result of validating the election by clause
(4). Two answers were given on behalf of the appellant. One was that the validation of the
election is itself the law. The other was that the constituent power applied its own norms to the
election petition. Both the answers are unacceptable. If the election petition itself did not have any
existence in law there was no petition which could be looked into by the constituent power. If
there was no petition to look into it is difficult to comprehend as to what norms were applied to
the election dispute. The dispute has to be seen. The dispute has to be adjudicated upon.
59. Clause (4) suffers from these infirmities. First, the forum might be changed but another
forum has to be created. If the constituent power became itself the forum to decide the disputes
the constituent power by repealing the law in relation to election petitions and matters connected
therewith did not have any petition to seize upon to deal with the same. Secondly, any decision is
to be made in accordance with law. Parliament has power to create law and apply the same. In the
present case, the constitutent power did not have any law to apply to the case, because the
previous law did not apply and no other law was applied by clause (4). The validation of the
election in the present case is, therefore, not by applying any law and it, therefore, offends rule of
law.
60. It is true that no express mention is made in our Constitution of vesting the Judiciary the
judicial power as is to be found in the American Constitution. But a division of the three main
functions of Government is recognised in our Constitution. Judicial power in the sense of the
judicial power of the State is vested in the Judiciary. Similarly, the Executive and the Legislature
are vested with powers in their spheres. Judicial power has lain in the hands of the Judiciary prior
to the Constitution and also since the Constitution. It is not the intention that the powers of the
Judiciary should be passed to or be shared by the Executive or the Legislature or that the powers
of the Legislature or the Executive should pass to or be shared by the Judiciary.
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61. The constituent power is sovereign. Law-making power is subject to the Constitution.
Parliament may create forum to hear election disputes. Parliament may itself hear election
disputes. Whichever body will hear election disputes will have to apply norms. Norms are legal
standards. There is no discrimination if classification on rational basis is made for determination of
disputes relating to persons holding the office of Prime Minister or the Speaker. The changes
effected by the Amendment Acts, 1974 and 1975 apply to all and there is no discrimination.
Retrospective legislation is not by itself discrimination. The changes introduced to the 1951 Act
apply to all.
62. Clause (4) of Article 329A in the present case in validating the election has passed a
declaratory judgment and not a law. The legislative judgment in Clause (4) is an exercise of
judicial power. The constituent power can exercise judicial power but it has to apply law.
63. The validation of the election is not by applying legal norms. Nor can it be said that the
validation of election in Clause (4) is by norms set up by the constituent power.
64. Clause (5) in Article 329A states that an appeal against any order of any court referred to
in Clause (4) pending, before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court, shall be disposed of in conformity with the provisions of
Clause (4). The appeal cannot be disposed of in conformity with the provisions of Clause 4
inasmuch as the validation of the election cannot rest on Clause (4).
65. In view of the conclusion that the appeal cannot be disposed of in conformity with Clause
(4), it is necessary to hear the appeals on other grounds in accordance with the provisions of the
1951 Act and the Amendment Acts, 1974 and 1975.
66. The second contention of the respondent is that the session of the Lok Sabha and the
Rajya Sabha is invalid for these reasons. If the Executive illegally and unconstitutionally detains
any person the detention affects the validity of the proceedings. A number of members of
Parliament of the two Houses, namely, the Lok Sabha and the Rajya Sabha were detained by
executive orders after June 26, 1975 and before the summoning of a session of the two Houses of
Parliament. Parliament commenced the session on July 21, 1975. None of the members of
Parliament were either supplied any grounds of detention or given any opportunity to make any
representation against their detention. The President who was the authority to summon a session
of Parliament issued the Presidential Order under Article 359 of the Constitution on June 27,
1975. The right of the detained members of Parliament to move any court for the enforcement of
their fundamental right under Article 22 of the Constitution was taken away by the executive or
67. The constitutional position of the two Houses of Parliament is governed by the provisions
of Articles 79 and 81 of the Constitution. The respondent contends that unless the President
convenes a session of the full Parliament by giving to all members thereof an opportunity to attend
the session and exercise their right of speech and vote, the convening of the session will suffer
from illegality and unconstitutionality and cannot be regarded as a session of the two Houses of
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Parliament. Any business transacted in a session of such truncated House cannot, therefore, be
regarded in law as a session of a House.
68. The mere fact that a person who is under unconstitutional and illegal detention may be
deprived of his right to move a court to secure his release from such illegal detention by means of
a Parliament Order under Article 359 is said by the respondent not to render the detention of a
person either legal or constitutional, and, therefore, such a detenu must be provided an
opportunity to participate in the proceedings of the House. It is emphasised by the respondent that
when important leaders of different parties are unconstitutionally prevented from participating in
the session of the House, a session cannot be held for deliberations in which different members
influence the view of others by their own participation. If in the holding of a session and in
transacting business therein, the provisions of the Constitution are not complied with, this is said
to amount to illegality or unconstitutionality and not a mere procedural irregularity within the
meaning of Article 122(1) of the Constitution.
69. The essence of the respondent's contention is that the right of participation of some
members of the House of Parliament in the proceedings of Parliament in the proceedings of
Parliament under Article 105(3) of the Constitution has been interfered with. When a member is
excluded from participating in the proceedings of the House, that is a matter concerning
Parliament and the grievance of exclusion is in regard to proceedings within the walls of
Parliament. In regard to rights to be exercised within the walls of the House the House itself is the
judges. (See : May's Parliamentary Practice, 18th Ed., pp. 82-83, 12 QBD 271, 285-286).
70. In Bradlaugh v. Gossett Bradlaugh claimed to make affirmation instead of taking the oath.
He was permitted to make the affirmation "subject to any liability by statute", and took his seat.
Upon an action for penalties it was decided, finally by the House of Lords, that Bradlaugh had not
qualified himself to sit by making the affirmation. On re-election, he attempted to take the oath,
but was prevented by order of the House which eventually directed the Sergeant to exclude him
from the House until he undertook to create no further disturbance. Bradlaugh then brought an
action against the Sergeant in order to obtain a "declaration that the order of the House was
beyond the power and jurisdiction of the House and void, and an order restraining the Sergeant at
Arms from preventing Bradlaugh by force from entering the House". It was held that the Court
had no power to restrain the executive officer of the House from carrying out the order of the
House. The reason is that the House is not subject to the contro
71. If an outside agency illegally prevents a member's participation the House has the power
to secure his presence. In 1543 Ferrers a member was arrested in London. The House, on hearing
of his arrest, ordered the Sergeant to go to the Computer and demand his delivery. The Sergeant
was resisted by the city officers, who were protected by the sheriffs. The commons laid their case
before the Lords. They ordered the Sergeant to repair to the sheriffs, and to require the delivery
of Ferrers without any writ or warrant. The Lord Chancellor had offered them a writ of privilege
but they refused it. The sheriffs in the meantime had surrendered the prisoner. This practice of
releasing members by a writ of privilege continued but no writ was to be obtained.
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72. The present mode of releasing arrested members goes back to Shirley's case. In 1603
Shirley was imprisoned in the Fleet, in execution, before the meeting of Parliament. The
Commons first tried to bring him into the House by habeas corpus, and then sent the Sergeant to
demand his release. The warden refused to give up his prisoner. At length the warden delivered up
the prisoner.
73. An Act 1 James 1, c. 13 was passed, which while it recognised the privilege of freedom
from arrest, the right of either House of Parliament to set a privileged person at liberty, and the
right to punish those who make or procure arrests, enacted that after such time as the privilege of
that session in which privilege is granted shall cease, parties may sue and execute a new writ. In
1700 an Act was passed which while it maintained the privilege of freedom from arrest with more
distinctness than the Act I James 1 c. 13, made the goods of privileged persons liable to distress
infinite and sequestration, between a dissolution or prorogation and the next meeting of
Parliament, and during adjournments for more than fourteen days.
74. The composition of Parliament is not dependent on inability of a member to attend for
whatsoever reason. The purpose of Article 85 is to give effect to the collective right of the House
which represents the nation to be called as often as the situation demands, and in any case the
interval between two sessions must not exceed six months. Assuming a conflict were to arise
between the privileges of a member under Article 105(3) and the functions of the House to
assemble under Article 85 the privilege of the member will not prevail. The detention of members
of Parliament is by a statutory authority in the exercise of his statutory powers.
75. The suspension under Article 359 of the remedy for the enforcement of fundamental rights
is dependent on a Proclamation of Emergency under Article 352. Parliament has the power not to
approve of the Proclamation, and thereafter the emergency shall cease to operate. The contention
of the respondent means that Parliament cannot meet even so as to withhold approval of the
emergency and thus terminate the suspension of the members' right of moving the court. The
Constitution provides for proclamation of emergency, the suspension of the remedy under Article
359 for enforcement of fundamental rights enabling even detention of members of Parliament
when necessary. Article 85 is not suspended. The six months rule is obligatory. It follows that the
members' right under Article 105 are not available under a detention in these circumstances. For
the purposes of Article 105(3) a conviction under penal laws or detention under emergency laws
must be deemed to be valid till it is set aside.
76. When under Article 359 the President during the operation of a Proclamation of
Emergency by order declares that the right to move any court for the enforcement of rights
conferred by Part III shall remain suspended and persons who are members of House of
Parliament are in detention under orders made under the Maintenance of Internal Security Act,
the detention cannot be challenged by collateral attack on the ground of deprivation of their
participation in the parliamentary proceedings. The challenge will be questioning the detention on
the ground that the detention is in violation of Article 19, 21 and 22.
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77. Article 85 provides that not more than six months shall intervene between the two sessions
of Parliament. Article 85 is not a provision regarding the constitution of Parliament but of holding
of sessions. The powers, privileges and immunities of Parliament and its members as provided in
Article 105 are that they shall be such as may be defined by Parliament by law, and, until so
defined, shall be those of the House of Commons of the Parliament of the United Kingdom.
78. In Special Reference No. 1 of 1964, it was held that the court could entertain a petition
under Article 226 on the ground that the imposition of penalty by the Legislature on a person who
is not a member of the Legislature or issuing process against such person for its contempt
committed outside the four walls of the House.
79. The scope of the Parliamentary privilege of freedom from arrest has been defined
positively and negatively. The positive aspect of the privilege is expressed in the claim of the
Commons to freedom from arrest in all civil actions or suits during the time of Parliament and
during the period when a member was journeying or returning from Parliament. The privilege has
been defined negatively in the claim of the Commons which specifically excepted treason, felony
and breach or surety of the peace.
80. The privilege of freedom from arrest is limited to civil cause, and has not been allowed to
interfere with the administration of criminal justice or emergency legislation. (See May's
Parliamentary Practice, 18th Ed., at p. 100). In early times the distinction between "civil" and
"Criminal" was not clearly expressed. The development of the privilege has shown a tendency to
confine it more narrowly to cases of a civil character and to exclude not only every kind of
criminal case, but also cases which, while not strictly criminal, partake more of a criminal than of
a civil character. This development is in conformity with he principle laid down by the Commons
in a conference with the Lords in 1641 : "Privilege of Parliament is granted in regard of service of
the Commonwealth and is not to be used to the danger of the Commonwealth."
81. In Wilkes' case, it was resolved by both Houses on November 29, 1763 that the privilege
of Parliament does not extend to the case of writing and publishing seditious libels, nor ought to
be allowed to obstruct the ordinary course of the laws in the speedy and effectual prosecution of
so heinous and dangerous an offence."Since that time", the Committee of Privileges said in 1831,
"it has been considered as established generally, that privilege is not claimable for any indictable
offence."
82. These being the general declarations of the law of Parliament, the House will not allow
even the sanctuary of its walls to protect a member from the process of criminal law, although a
service of a criminal process on a member within the precincts of Parliament, whilst the House is
sitting without obtaining the leave of the House, would be a breach of privilege.
83. The committal of a member in England for high treason or any criminal offence is brought
before the House by a letter addressed to the Speaker by the committing judge or magistrate.
Where a member is convicted but released on bail pending an appeal, the duty of the Magistrate to
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communicate with the Speaker does not arise. No duty of informing the Speaker arises in the case
of a person who while in prison under sentence of a court is elected as a member of Parliament. In
the case of detention of members under Regulation 14B of the Defence of Realm Regulations in
England, the communication was made to the Speaker by a letter from the Chief Secretary to the
Lord Lieutenant of Ireland which was read to the House by the Speaker. The detention of a
member under Regulation 18B of the Defence (General) Regulations, 1939, made under the
Emergency Powers (Defence) Acts, 1939 and 1940, led to the Committee of Privileges being
directed to consider whether such detention constituted a breach of the privileges of the
84. In K. Anandan Nambiar v. Chief Secretary, Government of Madras, the petitioner who
were members of Parliament and detained by orders passed by the State Government under Rule
30 (1) (b) of the Defence of India Rules, 1962 challenged the validity of the orders of detention
on the ground that Rule 30(1) (b) was not valid because "a legislator cannot be detained so as to
prevent him from exercising his constitutional rights as such legislator while the legislative
chamber to which he belongs is in session". The State raised a preliminary objection that the
petitions were incompetent in view of the order issued by the President under Article 359(1)
suspending the rights of any person to move any court for the enforcement of rights conferred by
Articles 14, 21 and 22. This Court held that the validity of the Act, rule or order made under the
Presidential Order could not be questioned on the ground that they contravene Articles 14, 21 and
22.
85. The petitioners also contended in Nambiar's case (supra) that Rule 30(1) (b) under which
the orders of detention had been passed was invalid on grounds other than those based on Articles
14, 19, 21 and 22. This Court held that if that plea was well-founded, the last clause of the
Presidential Order was not satisfied, and, therefore, the bar created by it suspending the citizen's
fundamental rights under Articles 14, 21 and 22 could not be pressed into service by the
respondents.
86. Articles 79, 85, 86, 100(1) and 105(3) were considered in Nambiar's case (Supra) in
relation to rights of members of Parliament, and it was held that the totality of rights cannot claim
the status of fundamental rights and freedom of speech on which reliance was placed is a part of
the privileges falling under Article 105. The reason is that freedom from arrest under a detention
order is not recognised as a privilege which can be claimed by members of House of Commons in
England. This Court then posed the question that if a claim for freedom from arrest by a detention
order could not be sustained under the privileges of the members of Parliament whether it could
be sustained on the ground that it is a constitutional right which could not be sustained on the
ground that it is constitutional right which could not be contravened. The statement in May's
Parliamentary Practice 7th Ed. at p. 78 which is to be found in the 18th Edition at p. 100 that the
privilege of freedom from arrest is limited to civil caus
87. The second ground of challenge that there was no valid session of the House cannot be
accepted for the reasons given above. It has also to be stated that it is not open to the respondent
to challenge the orders of detention collaterally. The principle is that what is directly forbidden
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cannot be indirectly achieved.
88. The High Court found first that the appellant has to be regarded as a candidate from
December 29, 1970 as she held herself out on that date as a candidate. The second finding is that
the appellant obtained and procured the assistance of Yashpal Kapur for the furtherance of her
election prospects when Yashpal Kapur was serving as a gazetted officer with the Government of
India. The High Court found that Yashpal Kapur's resignation from his service though submitted
on January 13, 1971 did not become effective until January 25, 1971 when it was notified. The
further finding by the High Court is that Yashpal Kapur under the instructions of the appellant
delivered election speech on January 7, 1971 at Munshi Ganj and another speech at Kalan on
January 19, 1971. The third finding by the High Court is that the appellant and her election agent
Yashpal Kapur procured and obtained the assistance of the officers of the State Government,
particularly, the District Magistrate, the Superintendent of Police, the Execut
89. The definition of "candidate" in Section 79(b) of the 1951 Act until the amendment
thereof by the Election Laws (Amendment) Act, 1975 was as follow :
'Candidate' means 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.
90. This definition has now been substituted by Section 7 of the Amendment Act, 1975, as
follows :
'Candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election.
91. Section 10 of the Amendment Act, 1975 further enacted that the amendments shall have
retrospective operation so as to apply to and in relation to any election held before the
commencement of the Amendment Act, 1975 on August 6, 1975 to either House of Parliament or
to either House or the House of the Legislature of a State, inter alia, (iv) in respect of which
appeal from any order of any High Court made in any election petition under Section 98 or
Section 99 of the 1951 Act is pending before the Supreme Court immediately before such
commencement.
92. Section 9 of the Amendment Act, 1975 has substituted clause (a) in Section 171 A of the
Indian Penal Code and a "candidate" means for the purpose of Section 171A of the Indian Penal
Code a person who has been nominated as a candidate at any election. Previously the definition of
"candidate" in Section 171A of the Indian Penal Code was the same as in Section 79(b) of the
1951 Act prior to the amendment thereof by the Amendment Act, 1975. In Section 171A of the
Indian Penal Code there was a proviso to the effect that candidate would mean a person who
holds himself out as a prospective candidate provided he is subsequently nominated as a
candidate.
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93. Relying on the provisions introduced by the Amendment Act, 1975, it is contended on
behalf of the appellant that she will be regarded as a candidate only from February 1, 1971,
namely, the date when she has been duly nominated as a candidate at her election, and, therefore,
the finding of the High Court cannot be sustained. It is also contended by the appellant that the
finding of the High Court that Yashpal Kapur delivered election speeches on January 7, 1971 and
January 19, 1971 under instructions of the appellant cannot be supported because the appellant
was not a candidate either on January 7, 1971 or on January 19, 1971.
94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not
to be effective until January 25, 1971 is contended to be displaced by legislative change by the
Amendment Act, 1975. Section 8(b) of the Amendment Act, 1975 has introduced Explanation (3)
at the end of Section 123(7) of the 1951 Act. This amendment has retrospective operation.
95. The Explanation is as follows :
" (3) For the purposes of clause (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, resignation, termination of service,
dismissal or removal from service of a person in the service of the Central Government (including
a person serving in connection with the administration of a Union territory) or of a State
Government shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismissal or removal from service, as the case may be, is stated in such publication, also of the fact
that such person was appointed with effect from the said date, or in the case of resignation,
termination of service, dismissal or removal from service, such person ceased to be in such service
with effect from the said date."
96. The effect of Explanation (3) at the end of Section 123(7) of the 1951 Act incorporated
by the notification dated January 25, 1971 in the Gazette dated February 6, 1971 makes the fact
of the resignation of Yashpal Kapur from his service fully effective from January 14, 1971. It is,
therefore, contended that from January 14, 1971 Yashpal Kapur was not a government servant.
97. To constitute a corrupt practice within the meaning of Section 123 (7) of the 1951 Act the
act complained of must be an act of obtaining or procuring os assistance of the categories of
government servants mentioned therein by the candidate or his election agent or by any other
person with the consent of the candidate or his election agent. Section 100(1) (b) of the 1951 Act
enacts that if the High Court is of opinion that any corrupt practice has been committed by a
returned candidate or his election agent or by any other person with the consent of a returned
candidate or his election agent, the High Court shall declare the election of the returned candidate
to be void. A returned candidate is defined in Section 79(f) of the 1951 Act to mean a candidate
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whose name has been published under Section 67 of the 1951 Act as duly elected. A returned
candidate in order to be guilty of a corrupt practice within the meaning of Section 123(7) of the
1951 Act must be guilty of any of the acts mentioned in the differ
98. The third finding by the High Court that the appellant and her election agent Yashpal
Kapur procured and obtained the assistance of the officers of the State Government, particularly,
the District Magistrate, the Superintendent of Police, the Executive Engineer, P. W. D. and the
Engineer to Hydel Department for construction of rostrums and arrangement for supply of power
for construction of rostrums and arrangement for supply of power for loudspeakers and for their
assistance for furtherance of the prospects of the election of the appellant has to be tested in the
light of the provisions contained in Section 123(7) of the 1951 Act. Under the said provision
obtaining or procuring by candidate or his agent any assistance for the furtherance of the prospect
of that candidate from gazetted officers is corrupt practice. The Amendment Act, 1975 by Section
8 thereof has added a proviso to Section 123(7) of the 1951 Act. The proviso is as follows :
"Provided that where any person, in the service of the Government and belonging to any of
the classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
99. The proviso aforesaid shows that where persons in the service of the Government in the
discharge of official duty make any arrangement or provide any facility or do any act or thing in
relation to a candidate, such arrangements and facilities shall not be deemed to be assistance for
furtherance of the prospect of the candidate's election. Therefore, the service rendered by
government servants for construction of rostrums and arrangements for supply of power for
loudspeakers according to the contention of the appellant could not be considered as assistance
for the furtherance of the prospects of the election of the appellant.
100. The contentions of the appellant can succeed if the Amendment Acts of 1974 and 1975
are valid. The respondent has challenged the constitutional validity of these Acts. Therefore, that
question has to be examined before the appellant's contentions can be answered.
101. The respondent in cross-appeal challenged the findings of the High Court on issue No. 9
and contended that the High Court should have held that the election expenses of the appellant
exceeded the limit. The respondent also challenged the finding of the High Court with regard to
issue No. 6 and contended that the high Court should have held that the symbol of cow and calf
was a religious symbol and the appellant committed corrupt practice as defined in Section 123(3)
of the 1951 Act. The respondent did not press issues No. 4 and 5 which related to distribution of
quilts, blankets, dhotis and liquor. The respondent also abandoned issue No. 7 which related to
voters being conveyed to the polling stations free of charge on vehicles hired and procured by
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Yashpal Kapur.
102. The issue pressed by the respondent was that the appellant and her election agent
Yashpal Kapur incurred or authorised expenditure in excess of the amount prescribed by Section
77 of the 1951 Act read with Rule 90. The respondent alleged that the election expenses of the
appellant, inter alia, were Rs. 1,28,700 on account of hiring charges of vehicles, Rs. 43,230 on
account of cost of petrol and diesel; Rs. 9,900 on account payments made to the drivers of the
vehicles. The respondent further alleged that the appellant spent Rs. 1,32,000 on account of
construction of rostrums for public meetings on February 1, 1971 and February 25, 1971. The
respondent contended that the findings of the High Court should be reversed.
103. The High Court found that the election expenses furnished by the appellant were Rs.
12,892.97. The High Court added another sum of Rs. 18,183.50. The three items which were
added by the High Court were cost of erection of rostrums amounting to Rs. 16,000, cost
incurred in installation of loudspeakers amounting to Rs. 1,951 and cost for providing car
transport to respondent No. 1 amounting to Rs. 232.50. The total election expenses found by the
High Court came to Rs. 31,976.47 which was below the prescribed limit of Rs. 35,000.
104. With regard to hiring charges of vehicles the High Court found that the respondent did
not examine any witness to indicate as to whether the vehicles were used only for party
propaganda or they were used in connection with the election of the appellant. The High Court
further found that the documents which were relied on by the respondent did not establish that the
vehicles had been engaged or used in connection with the election work of the appellant.
105. The respondent repeated the following contentions which had been advanced before the
High Court. Dal Bahadur Singh, President, District Congress Committee wrote a letter to the
District Election Officer intimating that 23 vehicles had been engaged by the District Congress
Committee for election work in Rae Bareli, Amethi and Ram Sanehi Ghat constituencies, and,
therefore, the vehicles should be derequisitioned. Dal Bahadur Singh thereafter wrote a note to
Yashpal Kapur and requested that the letter be sent to the District Election Officer to that effect.
Yashpal Kapur wrote a letter to the District Election Officer and repeated the prayer contained in
Dal Bahadur Singh's letter. It was, therefore, contended that because Yashpal Kapur was the
election agent of the appellant and he moved for the derequisition of the vehicles it should be
inferred that the vehicles were engaged for the election of the appellant. Yaspal Kapur said that
the vehicles were used in the three parliamentary constituencies. The Hi
106. With regard to the expenses for the election of rostrums the respondent contended that
the appellant's election expenses should include Rs. 1,32,000 as the costs for erection of rostrums
for the meetings on February 1, 1971 and the meeting on February 25, 1971. The High Court held
that Rs. 16,000 could only be added to the election expenses of the appellant consisting of Rs.
6,400 for four rostrums and Rs. 9,600 for six rostrums.
107. The amount of Rs. 16,000 which was added by the High Court on account of cost of
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erection of rostrums cannot be included in the election expenses of the appellant by reason of
amendment to Section 77 of the 1951 Act by the Amendment Act, 1975. Explanation 3 has been
added as follows :
"For the removal of doubts, it is hereby declared that any expenditure incurred in respect of
any arrangements made, facilities provided or any other act or thing done by any person in the
service of the Government and belonging to any of the classes mentioned in clause (7) of Section
123 in the discharge or purported discharge of his official duty as mentioned in the proviso to that
clause shall not be deemed to be expenditure in connection with the election incurred or
authorised by a candidate or by his election agent for the purposes of this sub-section."
108. By the Amendment Act, 1975 a proviso has been added to Section 123(7) of the 1951
Act to the effect that arrangements made or facilities provided or any act done by a government
servant belonging to the class mentioned there in the discharge of official duty shall not be
deemed to be assistance for furtherance of the prospects of that candidate's election. All these
amendments have retrospective operation. Therefore, the cost of rostrums cannot be added to the
election expenses of the appellant. Services rendered by government servants for the erection of
rostrums and for supply of power for loudspeakers cannot be deemed to be assistance for the
furtherance of the prospects of that candidate's election.
109. The respondent contended that Exhibit 118 which was the bank account of the District
Congress Committee showed on the one hand that there was deposit of Rs. 69,930 on March 4,
1971 and on the other there was a withdrawal of Rs. 40,000 on March 4, 1971 and of Rs. 25,000
on March 6, 1971, and, therefore, the sum of Rs. 65,000 should be added to the election expenses
of the appellant. When it was put to Yashpal Kapur that the sums of Rs. 40,000 and Rs. 25,000
were withdrawn by Dal Bahadur Singh, Yashpal Kapur said that he was not aware of it. There is
no pleading in the election petition that the appellant authorised incurring expenditure by a
political party. There is no pleading that any amount has been paid by the political party. There is
no complaint in the petition about the sum of Rs. 65,000 or the sum of Rs. 69,930. Yashpal
Kapur denied knowledge of Rs. 70,000. The appellant was not asked a single question. There is
no evidence to identify any of these payments with the election of the appellant.
110. It is appropriate at this stage to refer to the amendment which was introduced by the
Amendment Act, 1974. The appellant relies on the provision to show that expenses incurred or
authorised by a political party cannot be included in election expenses. Explanation 1 which was
inserted at the end of Section 77 of the 1951 Act by Amendment Act, 1974 is that any
expenditure incurred or authorised in connection with the election of a candidate by a political
party or by any other association or body of persons or by an individual other than the candidate
or his election agent shall not be deemed to be and shall not ever be deemed to have been
expenditure in connection with the election incurred or authorised by the candidate or by his
election agent.
111. A proviso was also added to the aforesaid Explanation 1 by the Amendment Act, 1974.
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The proviso stated that nothing contained in the Explanation shall effect (a) any Judgment, order
or decision of the Supreme Court whereby the election of a candidate to the House of the People
or to the Legislative Assembly of a State has been declared void or set aside before the
commencement of the Representation of the People (Amendment) Ordinance, 1974; (b) any
Judgment, order or decision of High Court whereby the election of any such candidate has been
declared void or set aside before the commencement of the said Ordinance if no appeal has been
preferred to the Supreme Court against such judgment, order or decision of the High court before
such commencement and the period of limitation for filing such appeal has expired before such
commencement.
112. Explanation 2 which was added to Section 77 of the 1951 act by the Amendment Act,
1974 is as follows :
For the purposes of Explanation 1 "political party" shall have the same meaning as in the
Election Symbols (Reservation and Allotment) order, 1968, as for the time being in force.
113. Counsel for the respondent relied on the recent decision of this Court in Kanwar Lal
Gupta v. Amaranth Chawla in support of the proposition that there has been no change in law and
if expenses incurred by a political party can be identified with the election of a candidate then that
expenditure is to be added to the election expenses of a candidate as being authorised by him.
There are no findings by the High Court in the present appeals that any expenses by a political
party were authorised by the appellant. There is also no finding in the present appeals that any
expenses incurred by a political party can be identified with the election of the appellant. The
changes in law affected by the Amendment Acts, 1974 and 1975 totally repel the submissions on
behalf of the respondent. Expenses incurred or authorised in connection with the election of a
candidate by a political party shall not be deemed to be and shall not ever be deemed to have been
expenditure in connection with the election incurred or autho
114. Counsel for the respondent contended that the judgment of the High court should be
reversed with regard to election expenses of the appellant on three counts. First, Exhibit 118
shows that the sum of Rs. 65,000 which was drawn by Congress Committee should have been
held by the High Court on a reasonable inference to have been spent by the District Congress
Committee as having been authorised by the election agent of the appellant. Second, the High
Court has not taken into account expenses of the election agent at 12 meetings other than the
meetings addressed by the appellant and has also not taken into account the telephone expense of
the election agent. The telephone expenses amounted to Rs. 836.85 between January 11, 1971
and February 10, 1971 and a further sum of Rs. 2,514 for the period February 11, 1971 to March
15, 1971. Third, it is said that there were 5000 polling booths and if 20 workers were required per
booth then 10,000 workers would be required and the only inference is that an amount in e
115. In issue No. 9 there was no amount alleged with regard to telephones bills or election
meetings under the heading of alleged election expenses. There was no allegation to that effect in
the petition. With regard to expenses for the alleged 12 meetings addressed by the election agent
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the evidence of Yashpal Kapur is that he addressed about a dozen meetings and he did not include
in the election return the expenses incurred for installation of loudspeakers because the
expenditure was incurred by him. He also said that he did not include in the election return the
expenses incurred over the construction of platforms because the meetings were arranged by the
District Congress Committee. No allegations were made in the petition with regard to any alleged
sum of money on account of election meetings where the election agent spoke. The High Court
rightly said that the telephone expenses and expenses for meetings could not be taken into
consideration because no suggestion of the case was made until the stage of
116. The respondent's submission is that the appellant was the Prime Minister at the time of
the election, and, therefore, there was a big campaign and the expenses were enormous. That will
mean little. Expenses incurred or authorised by a political party are under the Amendment Act,
1974 not to be deemed to be expenditure in connection with the election incurred or authorised by
the candidate or by his election agent for the purposes of Section 77 of the 1951 Act. The part
played by a political party in connection with candidates of the party at the election particularly in
relation to expenditure incurred by the political party with regard to candidates of the party has
been the subject of some decisions of this Court. This Court has observed that expenditure must
be by the candidate himself and any expenditure in his interest by others (not his agent within the
meaning of the term of the Election Laws) is not be taken note of. Where vehicles were engaged
by the Congress Committee and used by the candidate
117. Expenses incurred by a political party in support of its candidates have been held by this
Court not to fall within the mischief of Section 123 (6) of the 1951 Act (see Shah Jayantilal
Ambalal v. Kasturilal Nagindas Doshi). In Rananjaya Singh v. Baijnath Singh this Court pointed
out that expenses must be incurred or authorised by the candidate or his agent. In that case the
manager, the assistant manager, 20 ziladars and their peons were alleged to have worked for the
election of the appellant. This Court held that the employment of extra persons and the incurring
or authorising of extra expenditure was not by the candidate or his election agent. The extra men
employed and paid were in the employment of the father of the appellant. This Court said that the
position in law could not be at all different if the father had given those employees a holiday on
full pay and they voluntarily worked in connection with the election of the appellant. Persons who
volunteer to work cannot be said to be employed or pa
118. In Ram Dayal v. Brijraj Singh the appellant challenged the election of the respondent on
the ground that the Maharaja and the Rajmata of Gwalior had helped the respondent's election in
a number of ways and acted as his agents and the respondent incurred considerable expenditure
which exceeded the limit. This Court found that assuming the expenditure was incurred by the
Maharaja and the Rajmata of Gwalior for the purpose of canvassing votes, in the absence of any
evidence to show that the Maharaja and the Rajmata acted as election agents or that the
expenditure was authorised by the respondent, it was not liable to be included in the election
expenses.
119. On the behalf of the respondent it was said relying on the decision of this Court in
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Kanwar Lal Gupta's case (supra) that if the candidate takes advantage of expenditure incurred by
the political party in connection with the election of the candidate or participates in the
programme of activity or fails to disavow the expenditure the candidate cannot escape the rigour
of the ceiling by saying that he has not incurred the expenditure but his political party has done so.
Expenditure incurred by a political party in connection with the election of the candidates of the
party is not a part of the election expenses of the candidate. Similarly, participation in the
programme of activity organised by a political party will not fall within the election expenses of
the candidate of the party. A candidate is not required to disavow or denounce the expenditure
incurred or authorised by the political party because the expenditure is neither incurred nor
authorised by the candidate. One can disavow what would be asc
120. The decision in Kanwar Lal Gupta's case (supra) was based on observation extracted
from the decision of this Court in Maghraj Patodia v. R. K. Birla. In Maghraj Patodia's case
(supra) the allegations were that the respondent had been put up by one of the wealthiest business
houses in the country which owned or controlled a large number of companies and during the
election campaign vast material and human resources of these companies were drawn upon by the
respondent. This Court dismissed the appeal on the ground that the appellant had failed to
establish that expenditure in excess of the prescribed limit was incurred by the respondent. In
Maghraj Patodia's case there is an observation that expenses incurred by a political party to
advance to the prospects of the candidates put up by it without more do not fall within Section 77
of the 1951 Act. The words "something more" were constructed by Counsel for the respondent to
mean that if a candidate takes advantage of the expenditure incurred or authorised b
121. Allegations that election expenses are incurred or authorised by a candidate or his agent
will have to be proved. Authorisation means acceptance of the responsibility. Authorisation must
precede the expenditure. Authorisation means reimbursement by the candidate or election agent
of the person who has been authorised by the candidate or by the election agent of the candidate
to spend or incur. In order to constitute authorisation the effect must be that the authority must
carry with it the right of reimbursement.
122. For the foregoing reasons the contentions of the respondent that the the appellant
exceeded the limit of election expenses fail.
123. The respondent contended that the amendments by the Amendment Acts of 1974 and
1975 are constitutionally invalid. It may be stated here that the Constitution (Thirty-ninth
Amendment) Act, 1975 in Section 5 thereof enacts that in the Ninth Schedule to the Constitution
after Entry 86, inter alia, the following entries shall be inserted, namely :
87. The Representation of the People Act, 1951 (Central Act 43 of 1951). The Representation
of the People (Amendment) Act, 1974 (Central Act 58 of 1974); and the Election Laws
(Amendment) Act, 1975 (Central Act 40 of 1975).
124. The contention of the respondent is that when the power of amending the Constitution
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cannot be exercised to damage or destroy the basic features of the Constitution or the essential
elements of the basic structure or framework thereof, the limitation on the exercise of legislative
power will arise not only from the express limitations contained in the Constitution, but also from
necessary implication either under articles or even in the preamble of the Constitution. This
contention on behalf of the respondent is expanded to mean that if the democratic way of life
through parliamentary institutions based on free and fair elections is a basic feature which cannot
be destroyed or damaged by amendment of the Constitution, it cannot similarly be destroyed or
damaged by any legislative measure.
125. These reasons were submitted by the respondent. First, the power to resolve doubts and
disputes about the validity of elections of Parliament and State Legislatures has been vested by the
Constitution in the judicial organ competent to decide election petitions and, therefore, it is not
open to the legislature to take away and interfere with these exclusive functions of the Judiciary
by any legislation amending the law governing the election adjudicated by the Judiciary. Second,
the insertion of these Acts in the Ninth Schedule will not confer any immunity on the legislative
measure if basic features of the Constitution are damaged or destroyed on the ground that the
provisions contravene Part III of the Constitution. Third, any provision in the legislative measures
which has the effect of bringing about unfairness between different rival candidates in the matter
of election is discriminatory and it not only contravene Article 14 but also violates the implied
limitation on legislative power relating to
126. The definition of "candidate" is amended by the Amendment Act, 1975, the contention of
the respondent on the amendment of the definition of "candidate" are these. The expression
"returned candidate" is descriptive of the person and the corrupt practices mentioned in Section
123 of the 1951 Act in relation to a candidate will not be confined to corrupt practices committed
with reference to the definition of "candidate". Corrupt practices alleged in relation to candidates
will be relatable to any period and will not to be confined to corrupt practices alleged between the
date of nomination and the date of election. If corrupt practices are committed by candidates who
eventually become returned candidates such corrupt practices will be offenses within the meaning
of Section 123 of the 1951 Act without any reference to the time of commission.
127. Counsel on behalf of the respondent also contended as follows. The basis of fair and free
elections is that the election of a candidate will be avoided if any corrupt practice has been
committed by the candidate by or with the knowledge and consent of that candidate. The acts of a
candidate may be either anterior to the date of nomination or it may be subsequent to the date of
nomination. Therefore, the Amendment Act, 1975 destroys and damages free and fair election by
allowing candidates to commit corrupt practices prior to the date of nomination.
128. The Amendment Act, 1975 is also challenged as falling within the vice of delegated
legislation by the amendments inserted as Explanation 3 of Section 77 of the 1951 Act and the
insertion of the proviso to Section 123(7) of the 1951 Act. These provisions have already been
noticed. Broadly stated expenditure incurred by persons in government service will not be deemed
to be for furtherance of the candidate's election. The contentions are these. No guidelines have
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been laid down as to what expenditure can be incurred or what facilities can be made, what acts
or things can be done. Delegation cannot include the change of policy. Policy must be clearly laid
down in the Act for carrying into effect the objectives of the legislation. The Legislature must
declare the policy. Any duty can be assigned, any facility in connection with the election can be
asked for by the party in power to be done for the candidate. The official duty opens a wide
power of instructions to government servants who may be asked to assi
129. The device of conclusive proof which is introduced to add Explanation 3 of Section
123(7) of the 1951 Act with regard to the date with effect from which the person ceased to be in
service is said to be an encroachment on judicial power.
130. Section 8(a) of the Amendment Act, 1975 which adds a proviso to Section 123 of the
1951 Act to the effect 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 is attacked as legalising
religious symbols and thus offending secularism.
131. Section 10 of the Amendment Act, 1975 which enacts that the amendments shall have
retrospective effect is challenged as retrospectively legalising a void election. These submissions
are made. If this power is upheld there can be a legislative measure to avoid valid elections. The
distinction between law-abiding persons and lawless persons is eliminated. One person has not
been given the opportunity of spending money at the time of election but the other is
retrospectively given the advantages of spending in excess and thereafter of avoiding the effect of
excess expenses by validation.
132. The contentions on behalf of the respondent that ordinary legislative measures are subject
like Constitution Amendments to the restrictions of not damaging or destroying basic structure, or
basic features are utterly unsound. It has to be appreciated at the threshold that the contention
that legislative measures are subject to restrictions of the theory of basic structures or basic
features is to equate legislative measures with Constitution Amendment. The hierarchical
structure of the legal order of a State is that the Constitution is the highest level within national
law. The Constitution in the formal sense is a solemn document containing a set of legal norms
which may be changed only when special prescriptions are observed. The purpose of special
prescriptions is to render the changes of these norms more difficult by regulating the manner and
form of these amendments. The Constitution consists of those rules which regulate the creation of
the general legal norms, in particular, the creation of statu
133. Articles 245 and 246 give plenary powers to Legislature to legislate. The only question is
whether any provision of the Constitution is violated. The power of plenary body is not to be
construed like the power of a delegate. The largest kind of power will be attributed to Legislature.
The only prohibition is with reference to the provisions of the Constitution. The Constitution is
the conclusive instrument by which powers are affirmatively created or negatively restricted. The
only relevant test for the validity of a statue made under Article 245 is whether the legislation is
within the scope of the affirmative grant of power or is forbidden by some provision of the
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Constitution.
134. To accept the basic features or basic structures theory with regard to ordinary legislation
would mean that there would be two kinds of limitations for legislative measures. One will pertain
to legislative power under Article 245 and 246 and the legislative entries and the provision in
Article 13. The other would be that no legislation can be made as to damage or destroy basic
features or basic structures. This will mean rewriting the Constitution and robbing the Legislature
of acting within the framework of the Constitution. No legislation can be free from challenge on
this ground even though the legislative measure is within the plenary powers of the Legislature.
135. The theory of implied limitations on the power of amendment of the Constitution has
been rejected by seven Judges in Kesavananda Bharati's case (supra). Our Constitution has not
adopted the due process clause of the American Constitution. Reasonableness of legislative
measures is unknown to our Constitution. The crucial point is that unlike the American
Constitution where rights are couched in wide general terms leaving it to the courts to evolve
necessary limitations our Constitution has denied due process as a test of invalidity of law. In A.
K. Gopalan v. State of Madras, due process was rejected by clearly limiting the rights acquired
and by eliminating the indefinite due process. Our Constitution contemplates that considerations
of justice or general welfare might require restriction on enjoyment of fundamental rights.
136. The theory of basic structures or basic features is an exercise in imponderables. Basic
structures or basic features are indefinable. The legislative entries are the fields of legislation. The
pith and substance doctrine has been applied in order to find out legislative competency, and
eliminate encroachment on legislative entries. If the theory of basic structures or basic features
will be applied to legislative measures it will denude Parliament and State Legislature of the
power of legislation and deprive them of laying down legislative policies. This will be
encroachment on the separation of powers.
137. The constitutional validity of a statue depends entirely on the existence of the legislative
power and the express provision in Article 13. Apart from the limitation the Legislature is not
subject to any other prohibition. The amendments made to the 1951 Act by the Amendment Acts,
1974 and 1975 are to give effect to certain views expressed by this Court in preference to certain
views departed from or otherwise to clarify the original intention. It is within the powers of
Parliament to frame laws with regard to elections. Parliament has power to enumerate and define
election expenses. Parliament has power to lay down limits on election expenses. Parliament has
power to state whether certain expenses can be included or may be excluded from election
expenses. Parliament has power to adopt conclusive proof with regard to matters of appointment,
resignation or termination of service. Parliament has power to state what can be considered to be
office of profit. Parliament has power to state as to what will and
138. The conclusive evidence or conclusive proof clause is an accepted legislative measure.
Similarly, giving retrospective effect to legislative amendment is accepted to be valid exercise of
legislative power. The well-known pattern of all validation Acts by which the basis of judgments
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or orders of competent courts and tribunals is changed and the judgments and orders are made
ineffective is to be found in M. P. Sundararamier & Co. v. State of A. P. 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
Kanta Kathuria's case (supra). Kanta Kathuria was disqualified by reason of holding an office of
profit. First, the ordinance and later the Act was passed to nullify the decision of the High Court.
The ordinance as well as the Act stated that notwithstanding any judgment or order of any court
or tribunal, the officer shall not be disqualified or shall
139. 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 recognises 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
the 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 recognised that Parliament and State
Legislature can make their laws operate retrospectively. Any law that can be made prospectively
can be made with retrospective operation. It is said that certain kinds of laws cannot operate
retrospectively. That is ex post facto legislation. The
140. This Court in Jumuna Prasad Mukhariya v. Lachhi Ram rejected the contention advanced
there that Sections 123 (5) and 124 (5) of the 1951 Act interfered with a citizen's fundamental
right to freedom of speech. This Court said that these laws do not stop a man from speaking.
They merely prescribe conditions which must be observed if one wants to enter Parliament. The
right to stand as a candidate and to contest an election is not a common law right. It is a special
right created by a statue which can only be exercised on the conditions laid down by the statue.
The Fundamental Rights chapter has no bearing on a right like this created by a statue relating to
election.
141. The contention on behalf of the respondent that the amendment of the definition of
"candidate" has damaged or destroyed basic structure is untenable. There is no basic structure or
basic feature or basic framework with regard to the time when under the election laws a person is
a candidate at the election. The contention of the respondent that the expression "returned
candidate" is descriptive of the expression "candidate" will rob Section 100 of its content. The
word "candidate" in relation to various electoral offences shows that he must be a candidate at the
time of the offence. Time is necessary for fixing the offences. A significant distinction arises
between the electoral offences under the 1951 Act and the offences under Sections 171-A to
171-I of the Indian Penal Code, namely, that the 1951 Act uses the word "candidate" or his
election agent with reference to various offences whereas the Indian Penal Code does not use the
word "candidate" in relation to commission of any offence. Any person may
142. The English Representation of the People Act, 1949 called the English Act was relied on
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by the respondent to show that the word "candidate" in the 1951 Act should have the same
meaning as in the English Act and there should be no limitation as to time in relation to a
candidate."Candidate" is defined in Section 103 of the English Act in relation to parliamentary
election to mean a person who is elected to serve in Parliament or a person who is nominated as a
candidate at the election or is declared by himself or by others to be a candidate on or after the
day of the issue of the writ for the election, or after the dissolution or vacancy in consequence of
which the writ was issued. The electoral offences under the English Act speak of a person to be
guilty of corrupt practices of bribery as mentioned in Section 99, of treating as mentioned in
Section 100 and of undue influence as mentioned in Section 101 of the English Act. These
sections in the English Act speak of a person and do not use the expression
143. Where a candidate is elected the English definition gives no commencing date as from
which his candidature has commenced; whereas, if he be not elected, he is not a candidate until he
has been nominated, or is declared to be a candidate on or after the dissolution or vacancy. A
candidate who is elected is accordingly a "candidate" as soon as he has entered upon his election
campaign, and has made it known that he intends to present himself as a candidate at the ensuing
election, he may thus become a candidate before the dissolution of Parliament, and may be
unseated for bribery or treating committed months or even years before the vacancy or election,
for such acts are offences at common law. With respect to illegal practices, which are purely
statutory offences, it would seem that a narrower construction will prevail, and that a candidate
will not be held responsible for payments etc., made before he is a candidate in point of fact, and
which payments only become illegal practices by reason of his subs
144. It has been held in England that a candidate may be unseated for bribery of treating
committed months or even years before the vacancy or election (Youghal; Bodwin). The present
position under the English Act is stated in Parker's Conduct of Parliamentary Elections 1970 Ed.
at p. 330 to be that since the corrupt practice under consideration is purely a statutory offence,
which only becomes a corrupt practice by reason of the person in whose support the prohibited
expenses were incurred subsequently becoming a candidate, the candidate may not be held
responsible. In Norwich the question was considered in relation to the responsibility of a
candidate for payments which only became illegal practices by reason of his subsequently
becoming a "candidate" as defined by statute, and it was held that he was not liable. The liability
of a candidate under the English Act, particularly, with regard to election expenses as laid down in
Section 63 of the English Act is regarded as open to doubt until the point is set
145. Sections 171-A to 171-I of the Indian Penal Code and the provisions contained in
Sections 125 to 136 of the 1951 Act follow the pattern of English Acts, namely, Statutes 17 & 18
Victoria, Chapter CII (1853-54); Statutes 21 & 22 Victoria, Chapter LXXXVII (1858) and
Statutes 46 & 47 Victoria, Chapter LI (1882). These English Statutes make certain acts
punishable as corrupt practice when they relate to persons other than candidates or voters.
Section II of 17 & 18 Victoria Chapter CII enacts that the persons mentioned therein shall be
deemed guilty of bribery and punishable in accordance with the provisions of the Act. The words
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used there are "every person" who shall do the acts mentioned therein shall be punishable. In these
sections dealing with the acts of persons other than candidates and voters no time is mentioned.
On the other hand, Section IV of Statutes 17 & 18 Victoria Chapter CII makes certain acts of
voters and candidates corrupt practice. Section IV of the aforesaid English Statute enacts tha
146. The 1951 Act uses the expression "candidate" in relation to several offences for the
purpose of affixing liability with reference to a person being a candidate. If no time be fixed with
regard to a person being a candidate it can be said that from the moment a person is elected he
can be said to hold himself out as a candidate for the next election. The definition in the English
Act cannot be of any aid to the construction of the 1951 Act.
147. The contention of the respondent is that if a candidate is free to spend as much as a
candidate likes before the date of nomination a great premium would be placed on free use of
money before the date of nomination. The 1951 Act specifies what election expenses are of a
candidate. The statute specifies time in regard to a candidate. That time cannot be enlarged or
reduced. The holding out by a person of (sic of) candidature was a flexible and elastic idea. The
date of nomination is definite and doubtless. Different views may be taken as to the time of
holding out. The Legislature has now set the matter at rest.
148. The word "incur" according to the dictionary meaning means to become liable to. The
word "incur" means to undertake the liability even if the actual payments may not be made
immediately. The undertaking of the responsibility for the expenditure concerned may be either by
the candidate or his election agent. Again, a candidate is also to be deemed responsible for the
expenditure if he has authorised a particular expenditure to be made by someone else on his
behalf.
149. The contention on behalf of the respondent is that the Amendment Acts of 1974 and
1975 fall within the vice of delegated legislation because there are no guiding principles with
regard to official duty or nature of expenditure in Explanation 3 to Section 77 of the 1951 Act
and in the proviso to Section 123 (7) of the 1951 Act. Official duty will be a duty in law. Official
duty will be duty under administrative directions of the Executive. Official duty will be for
security, law and order, and matters in aid of public purpose. These duties will be in connection
with election. To illustrate, Section 197 of the Criminal Procedure Code speaks of official duty.
150. This Court in Matajog Dobey v. H. C. Bhari interpreted the words "official duty" to have
reasonable connection between the act and the discharge of duty. The act must bear such relation
to the duty that the person could lay a reasonable claim, but not a pretended fanciful claim, that he
did it in the course of the performance of his duty. Where a power is conferred or a duty imposed
by statute or otherwise, and there is nothing said expressly inhibiting the exercise of the power or
the performance of the duty by any limitations or restrictions, it is reasonable to hold that it carries
with it the power of doing all such acts or employing such means as are reasonably necessary for
such execution, because it is a rule that when the law commands a thing to be done, it authorises
the performance of whatever may be necessary for executing its command.
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151. There is no vice of delegation in the statutes.
"Delegation is not the complete handing over or transference of a power from one person or
body of persons to another. Delegation may be defined as the entrusting, by a person or body of
persons, of the exercise of a power residing in that person or body of persons to another person
or body of persons, with complete power of revocation or amendment remaining in the grantor or
delegator. It is important to grasp the implications of this, for, much confusion of thought has
unfortunately resulted from assuming that delegation involves or may involve, the complete
abdication or abrogation of a power. This is precluded by the definition. Delegation often involves
the granting of discretionary authority to another, but such authority is purely derivative. The
ultimate power always remains in the delegator and is never renounced. " (See Gwalior Rayon
Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner of Sales Tax.)
152. The Constitution Twenty-ninth Amendment Act was considered by this Court in
Kesvananda Bharati's case (supra). The Twenty-ninth Amendment Act inserted in the Ninth
Schedule to the Constitution Entries 65 and 66 being the Kerala Land Reforms Act, 1969 and the
Kerala Land Reforms Act, 1971. This Court unanimously upheld the validity of the Twenty-ninth
Amendment Act. The unanimous view of this Court in Kesvananada Bharati's case is that Article
31-B is not open to challenge. Six Judges held that the Twenty-ninth Amendment Act would be
ineffective to protect the impugned Act if they took away the fundamental rights. Six Judges took
the view that the Twenty-ninth Amendment Act is valid and further that Article 31-B has been
held by this Court to be independent of Article 31-A and that Article 31-B protects scheduled
Acts and Regulations and none of the scheduled Acts and Regulations is deemed to be void or
ever to have become void on the ground of contravention of any fundamental rights. Article 31-B
gives
153. The contentions of the respondent that the Amendment Acts of 1974 and 1975 are
subject to basic features or basic structure or basic framework fails on two grounds. First,
legislative measures are not subject to the theory of basic features or basic structure or basic
framework. Second, the majority view in Kesvananda Bharati's case (supra) is that the
Twenty-ninth Amendment which put the two statutes in the Ninth Schedule and Article 31-B is
not open to challenge on the ground of either damage to or destruction of basic features, basic
structure or basic framework or on the ground of violation of fundamental rights.
154. The symbol allotted to the party of the appellant was characterised by the respondent as
a religious symbol. Under Article 324 the superintendence, direction and control of elections to
Parliament, is vested in the Election Commission. Rule 5 of the Conduct of Elections Rules, 1961
states that the Election Commission shall, by notification in the Gazette of India and in the Official
Gazette of each State, specify the symbols that may be chosen by candidates at elections in
parliamentary or assembly constituencies and the restrictions to which their choice shall be
subject. Rule 10(4) of the 1961 Rules aforesaid states that at an election in a parliamentary or
assembly constituency, where a poll becomes necessary, the returning officer shall consider the
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choice of symbols, expressed by the contesting candidates in their nomination papers and shall,
subject to any general or special direction issued in this behalf by the Election Commission allot a
different symbol to each contesting candidate in conformi
155. Clause 17 of the Election Symbols (Reservation and Allotment) Order, 1968 provides
that the commission shall by notification in the Gazette of India publish lists specifying national
parties and the symbols respectively reserved for them etc. There can, therefore, be no doubt that
the power of evolving permissible symbols is exclusively vested in the Election Commission. It is
under their directions that the Returning Officer has to make allotments and allotments are made
in terms of Clause 5, 6 and 8. Therefore, in the matter of evolving of the permissible symbols, the
jurisdictions is vested in the Election Commission. If a candidate displays in addition to the
allotted symbol which may have a special appeal on grounds of religion to a particular community,
then the Court will be entitled to go into this question.
156. With regard to the symbol of cow and calf being a religious symbol it was said on behalf
of the respondent that the Akhil Bharatiya Ram Rajya Parishad asked for cow, calf and milkmaid
symbol and were refused. They were given the symbol of a "Rising Sun". It is impossible to hold
that because one party has not been given the symbol of cow, calf and milkmaid, therefore, the
symbol of cow and calf becomes a religious symbol. The High Court on the evidence adduced by
the respondent rightly came to the conclusion that there was no evidence to prove that the cow
and calf is a religious symbol. The High Court rightly held that cow and calf is not a religious
symbol.
157. The finding of the High Court that the appellant held herself out to be a candidate from
December 29, 1970 is set aside because the law is that the appellant became a candidate only with
effect from the date of nomination which was February 1, 1971. The finding of the High Court
that the resignation of Yashpal Kapur did not become effective until it was notified in the Gazette
is also set aside because under the law the resignation became effective from January 14, 1971.
The finding of the High Court that the appellant committed corrupt practice in breach of Section
123 (7) of the 1951 Act is also repelled by the legislative changes and is, therefore, set aside. The
order of the disqualification of the appellant is also set aside.
158. For the foregoing reasons the contentions of the appellant succeed and the contentions of
the respondent fail. The appeal is accepted. The judgment of the High Court appealed against is
set aside the cross objections of the respondent is dismissed. There will be no order as to costs.
KHANNA, J.
(concurring)- Civil Appeal No. 887 of 1975 has been filed by Smt. Indira Nehru Gandhi
(hereinafter referred to as the appellant) against the judgment of the Allahabad High Court
whereby election petition filed by Shri Raj Narain respondent No. 1 (hereinafter referred to as the
respondent) to question the election of the appellant to the Lok Sabha from Rae Bareli
parliamentary constituency was allowed and the election of the appellant was declared void. The
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appellant was found guilty of having committed corrupt practices under Section 123 (7) of
Representation of the People Act, 1951 (hereinafter referred to as the R. P. Act) and as such was
stated to be disqualified for a period of six years in accordance with Section 8A of the R. P. Act.
Cross Appeal No. 909 of 1975 has been filed by Shri Raj Narain against the judgment of the High
Court in so far as it decided certain issues against the respondent.
160. The President of India called upon different constituencies in the country to elect
members to the Lok Sabha by notification dated January 27, 1971 under Section 14(2) of the R.
P. Act. Last date for filling nomination papers was fixed as February 3, 1971 for Rae Bareli
constituency by the Election Commission. The appellant filed her nomination paper on February
1, 1971. The appellant was for a number of years before the election Prime Minister of India and
is since then continuing to hold that office. Yaspal Kapur, who was previously a gazetted officer
in the Government of India holding the post of Officer on Special Duty in the Prime Minister
Secretariat and who subsequently submitted his resignation, was appointed the election agent of
the appellant. The signed form about the appointment of Yashpal Kapur an election agent was
submitted to the Returning Officer on February 4, 1971, the date of scrutiny. The date on the
which Yashpal Kapur submitted his resignation and the same became effective is, how
(1) The appellant held herself out as a prospective candidate from the Rae Bareli constituency
immediately after the dissolution of the Lok Sabha on December 27, 1970, and for furtherance of
her election prospects, she obtained and procured the assistance of Yashpal Kapur who was at
that time holding the post of Officer on Special Duty. The appellant thus committed corrupt
practice under Section 123(7) of the R. P. Act.
(2) The appellant and her election agent procured the assistance of members of armed forces
of the Union for furtherance of her election prospects inasmuch as the members of the armed
forces arranged planes and helicopters of the Air Force at her instance for her flights to enable her
to address meetings in her constituency. The appellant thereby committed corrupt practice under
Section 123(7) of the R. P. Act.
(3) The appellant and her election agent obtained the assistance of a number of gazetted
officers and members of the police force for the furtherance of her election prospects inasmuch as
the services of the District Magistrate, Superinterendent of Police, Rae Bareli and the Home
Secretary, Uttar Pradesh Government were utilised for the purposes of the construction of
rostrums and installation of loudspeakers at various places within the constituency where the
appellant addressed her election meetings as also for the purpose of making arrangement of
barricading and posting of police personnel on the routes by which the appellant was to travel in
her constituency and at the places where she was to address meetings, in order to give publicity to
her visits and thus attract large crowds. The appellant was thereby stated to have committed
corrupt practice under Section 123(7) of the R. P. Act.
(4) Yashpal Kapur, election agent of the appellant and her other agents with the consent of
Yashpal Kapur, freely distributed quilts, blankets, dhotis and liquor among the voters to induce
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them to vote for her and thereby the appellant committed corrupt practice of bribery under
Section 123(1) of the R. P. Act.
(5) The appellant and her election agent made extensive appeals to the religious symbol of
cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P. Act.
(6) Yashpal Kapur and some other persons with his consent hired and procured a number of
vehicles for the free conveyance of electors to the polling stations and thereby committed corrupt
practice under Section 123(5) of the R. P. Act.
(7) The appellant and her election agent incurred or authorised expenditure in contravention
of Section 77 of the R. P. Act and thereby committed corrupt practice under Section 123(6) of
the R. P. Act.
161. The appellant in her written statement denied the various allegations levelled against her
and pleaded that Yashpal Kapur resigned from his post on January 13, 1971 and his resignation
was accepted with effect from January 14, 1971. Notification dated January 25, 1971 was issued
by the Prime Minister's Secretariat in that connection. It was added that P. N. Haksar, then
Secretary to the Prime Minister, told Yashpal Kapur on the same day on which the resignation
was tendered that it was accepted and that formal orders would follow. Yashpal Kapur became
the election agent of the appellant on February 4, 1971. During the period he was a gazetted
officer in the Government of India, he did not do any work in furtherance of the appellant's
election prospects. Regarding the use of planes and helicopters of the Air Force, the appellant
admitted that on February 1, 1971 she went by an Indian Air Force plane from Delhi to Lucknow
from where she went by car to Rae Bareli, addressing meetings en route. It was furth
162. Following issues were framed in the case :
" (1) Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
Government of India? If so, from what date?
(2) Whether at the instance of respondent No. 1 members of the armed forces of the Union
arranged Air Force planes and helicopters for her, flown by members of the armed forces, to
enable her to address election meetings on February 1, 1971 and February 25, 1971, and if so,
whether this constituted a corrupt practice under Section 123(7) of the Representation of the
People Act?
(3) Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the
District Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home
Secretary of U. P. Government arranged for rostrums, loudspeakers and barricades to be set up
and for members of the police force to be posted in connection with her election tour on February
1, 1971 and February 25, 1971; and if so, whether this amounts to a corrupt practice under
Section 123(7) of the Representation of the People Act?
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(4) Whether quilts, blankets, dhotis and liquor were distributed by agents and workers of
respondent No. 1, with the consent of her election agent Yaspal Kapur, at the places and on the
dates mentioned in Schedule A the petition in order to induce electors to vote for her?
(5) Whether the particulars given in paragraph 10 and Schedule A of the petition are too
vague and general to afford a basis for allegation for bribery under Section 123(1) of the
Representation of the People Act?
(6) Whether by using the symbol of the cow and calf, which had been allotted to her party by
the Election Commission in her campaign the respondent No. 1 was guilty of making an appeal to
a religious symbol and committed a corrupt practice as defined in Section 123(3) of the
Representation of the People Act?
(7) Whether on the dates fixed for the poll voters were conveyed to the polling stations free of
charge on vehicles hired and procured for the purpose by respondent No. 1's election agent
Yashpal Kapur, or other persons with the consent, as detailed in Schedule B to the petition?
(8) Whether the particulars given in paragraph 12 and Schedule B of the petition are too
vague and general to form a basis for allegations regarding a corrupt practice under Section
123(5) of the Representation of the People Act?
(9) Whether respondent No. 1 and her election agents Yashpal Kapur incurred or authorised
expenditure in excess of the amount prescribed by Section 77 of the Representation of the People
Act, read with Rule 90 as detailed in para 13 of the petition?
(10) Whether the petitioner had made a security deposit in accordance with the rules of the
High Court as required by Section 117 of the Representation of the People Act?
(11) To what relief, if any, is the petitioner entitled?" Subsequent to the framing of the above
issues, the following three additional issues were framed in pursuance of the judgment of this
Court in an appeal against an interlocutory order of the High Court :
" (1) Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
the Government of India? If, so from what date ?
(2) Whether respondent No. 1 held herself out as a candidate from any date prior to February
1, 1971 and, if so, from what date?
(3) Whether Yashpal Kapur continued to be in the service of Government of India from and
after February 14, 1971 or till which date?"
163. During the pendency of the election petition in the High Court, Section 77 of the R. P.
Act was amended by an Ordinance which was subsequently replaced by Act 58 of 1974
(hereinafter referred to as the 1974 amending Act or Act 58 of 1974). The said amending Act
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inserted two explanation at the end of sub-section (1) of Section 77 of the R. P. Act. The material
part of the explanations reads as under :
"Explanation 1.- Notwithstanding any judgment, order or decision of any court to the
contrary, any expenditure incurred or authorised in connection with the election of a candidate by
a political party or by any other association or body of persons or by any individual (other than
the candidate or his election agent) shall not be deemed to be, and shall not ever be deemed to
have been, expenditure in connection with the election incurred or authorised by the candidate or
by his election agent for the purposes of this sub-section :
#Provided * * * *##
Explanation 2.- For the purposes of Explanation 1, "political party" shall have the same
meaning as in the Election Symbols (Reservation and Allotment) Order, 1968, as for the time
being in force."
The above amendment in Section 77 had a bearing on the allegation which was the
subject-matter of issue No. 9. The respondent filed writ petition challenging the validity of the
amending Act.
164. The High Court decided issues Nos. 2, 4, 6 and 7 in favour of the appellant and against
the respondent. Issues Nos. 5, 8 and 10 were found in favour of respondent and against the
appellant. On issue No. 9 the finding of the High Court was that the total amount of expenditure
incurred or authorised by the appellant or her election together with the expenditure proved to
have been incurred by the party or by the State Government in connection with the appellant's
election amounted to Rs. 31,976.47 which was sufficiently below the prescribed limit of Rs.
35,000. The appellant as such was held not guilty of any corrupt practice under Section 123(6) of
the R. P. Act. As the respondent was found to have failed to prove that the expenses of the
appellant or her election agent, together with the expenses found to have been incurred by the
political party and the State Government in connection with the appellant's election exceeded the
prescribed limit, the High Court held that no ground had been made out for in
165. On additional issue No. 2, the finding of the High Court was that the appellant held
herself out as a candidate from the Rae Bareli parliamentary constituency on December 29, 1970.
Issue No. 3 was decided by the High Court against the appellant. It was held that the appellant
obtained the assistance of the officers of the U. P. Government, particularly the District
Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel
Department for construction of rostrums and arrangement of supply of power for loudspeakers in
the meeting addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her
election prospects. The appellant, as such was found guilty of corrupt practice under Section
123(7) of the R. P. Act. On additional issue No. 3, the High Court found that Yashpal Kapur
continued to be in the service of the Government of India till January 25, 1971, which was the
date of the notification regarding the acceptance of Yashpal Kapur's resignation. The
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166. As a result of its findings on issue No. 3, issue No. 1 read with additional issue No. 1,
additional issue No. 2 and additional issue No. 3, the High Court allowed the petition and
declared the election of the appellant to the Lok Sabha to be void. The appellant was found guilty
of having committed corrupt practice under Section 123(7) of the R. P. Act by having obtained
the assistance of gazetted officers of the U. P. Government, viz., the District Magistrate and the
superintendent of Police, Rae Bareli, the Executive Engineer, PWD, Rae Bareli and Engineer,
Hydel Department, Rae Bareli in furtherance of her election prospects. The appellant was further
found guilty of having committed another corrupt practice under Section 123(7) of the R. P. Act
by having obtained the assistance of Yashpal Kapur, a gazetted officer in the Government of India
holding the post of officer on the Special Duty in Prime Minister's Secretariats, for the furtherance
of her election prospects. The appellant, it was accordingly
167. An appeal against the judgment of the learned Single Judge of the High Court dismissing
the writ petition is pending before the High Court.
168. During the pendency of these appeals, Parliament passed the Election Laws
(Amendments) Act, 1975 (Act 40 of 1975) (hereinafter referred to as 1975 amending Act or Act
40 of 1975) and the same was published in the Gazette of India Extraordinary dated August 6,
1975. Section 2 of the 1975 Amending Act substituted a new section for Section 8A in the Act.
According to the new section, the case of every person found guilty of a corrupt practice by an
order under Section 99 shall be submitted as soon as may be, after such order takes effect to the
President for determination of the question as to whether such person shall be disqualified and if
so, for what period, not exceeding six years. It is also provided that the person who stands
disqualified may before the expiry of the period of disqualification submit a petition to the
President for the removal of such disqualification for the unexpired portion of the said period. The
President shall then give his decision on such petition after obtaining the opinion
"6. In Section 77 of the Principal Act, in sub-section (1),-
(a) for the words 'the date of publication of the notification calling the election', the words 'the
date on which he has been nominated' shall be substituted;
(b) after Explanation 2, the following Explanation shall be inserted, namely :
'Explanation 3.- For the removal of doubt, it is hereby declared that any expenditure in respect
of any arrangements made, facilities provided or any other act or thing done by any person in the
service of the Government and belonging to any of the classes mentioned in clause (7) of Section
123 in the discharge or purported discharge of his official duty as mentioned in the provision to
that clause shall not be deemed to be expenditure in connection with the election incurred or
authorized by a candidate or by his election agent for the purposes of this subsection.'
7. In Section 79 of the principal Act, for clause (b), the following clause shall be substituted,
namely :
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' (b) 'candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election.'
8. In Section 123 of the principal Act,-
(a) in clause (3), the following proviso shall be inserted at the end, namely :
'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.';
(b) in clause (7), the following proviso shall be inserted at the end, namely :
'Provided that where any person, in the service of the Government and belonging to any of the
classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election.';
(c) in the Explanation at the end, the following shall be added, namely :
' (3) For the purposes of clauses (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, resignation, termination of service,
dismissal or removal from service of a person in the service of the Central Government (including
a person serving in connection with the administration of a Union territory) or a state Government
shall be conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) whether the date of taking effect of such appointment, resignation, termination of service,
as the case may be, is stated in such publication, also of the case may be, is stated in such
publication, also of the fact that such person was appointed with effect from the said date, or in
the case of resignation, termination of service, dismissal or removal from service, such person
ceased to be in such service with effect from the said date.'
(9). In the Indian Penal Code, in Section 171A, for clause (a), the following clause shall be
substituted, namely :
' (a) 'candidate' means a person who has been nominated as a candidate at any election.'
10. The amendments made by Sections 6, 7 and 8 of this Act in the principal Act shall also
have retrospective operation so as to apply to and in relation to any election held before the
commencement of this Act to either House of parliament or to either House or the House of the
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Legislature of a State-
(i) in respect of which any election petition may be presented after the commencement of this
Act; or
(ii) in respect of which any election petition is pending in any High Court immediately before
such commencement; or
(iii) in respect of which any election petition has been decided by any High Court before such
commencement but no appeal has been preferred to the Supreme Court against the decision of the
High Court before such commencement and the period of limitation for filing such appeal has not
expired before such commencement; or
(iv) in respect of which appeal from any order of any High Court made in any election petition
under Section 98 or section 99 of the principal Act is pending before the Supreme Court
immediately before such commencement."
169. It is submitted by Mr. Shanti Bhushan on behalf of the respondent that the amendments
made in the R. P. Act have an impact upon five out of the seven grounds which were set up by the
respondent to assail the election of the appellant.
170. On August 10, 1975 the Constitution (Thirty-ninth Amendment) Act, 1975 was
published. A number of constitutional changes were made by the Constitution Amendment Act.
We are, however, concerned with Section 4 of the Constitutional Amendment Act which inserted
Article 329A in the Constitution after Article 329. Article 329A reads as under :
"329A. Special provision as to elections to parliament in the case of Prime Minister and
Speaker.- (1) Subject to the provisions of Chapter II of Part V [Except sub-clause (e) of clause
(1) of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of Prime Minister at the
time of such election or is appointed as Prime minister after such election;
(b) to the House of the People of a person who holds the office of speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question, except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provided for by or
under any law made by parliament and any such law may provide for all other matters relating to
doubts and disputes in relation to such election include the grounds on which such election may
be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
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office of the Speaker of the House of People, while an election petition referred to in clause (b) of
Article 329 in respect of his election to either House of Parliament or, as the case may be, to the
House of the People is pending, such election petition shall abate upon such person being
appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of
the House of the People, but such election may be called in question under any such law as is
referred to in clause (1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith, shall apply or shall be deemed ever to applied to or in relation to the election of any
such person as is referred to in clause (1) to either House of Parliament and such election shall not
be deemed to be void or ever to have become void on any ground on which such election could
be declared to be void or has, before such commencement, been declared to be void under any
such commencement, been declared to be void under any such law and notwithstanding any order
made by any court, before such commencement, declaring such election to be void, such election
shall continue to be valid in all respects and any such order and any finding on which such order is
based shall be and shall be deemed always to have been void and of no effect.
(5) Any appeal or cross appeal against any such order of any court as is referred to in clause
(4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
171. Section 5 of the above Constitution Amendment Act inserted in the Ninth Schedule to
the Constitution a number of enactments including the R. P. Act as also Acts 58 of 1974 and 40
of 1975.
172. At the hearing of the appeal Mr. Sen on behalf of the appellant has relied upon clause (4)
of the new Article 329A and has contended that that clause clearly applies to the present case. It
is urged that in view of that clause no law made by Parliament before the coming into force of the
Constitution (Thirty-ninth Amendment) Act, 1975, i.e., before August 10, 1975, in so far as it
relates to the election petitions and matters connected therewith shall apply or shall be deemed
ever to have applied to or in relation to the election to the Lok Sabha of the appellant who being
Prime Minister is one of the persons referred to in clause (1) of that article. It is further submitted
that in view of that clause, the election of the appellant shall not be deemed to be void or ever to
have become void on any ground on which such election could be declared to be void or has
before such commencement been declared to be void under any such law. Mr. Sen also adds that
notwithstanding the order made by the High Court b
173. In reply Mr. Shanti Bhushan on behalf of the respondent has not controverted, and in our
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opinion rightly, the stand taken by Mr. Sen that clause (4) of the article applies to the facts of the
present case. He, however, contends that Section 4 of the Constitution Amendment Act which has
inserted Article 329A in the Constitution is invalid. The validity of the above constitutional
amendment has been challenged by Mr. Shanti Bhushan on the following two grounds :
(1) The above constitutional amendment affects the basic structure or framework of the
Constitution and is, therefore, beyond the amending power under Article 368.
(2) The Constitution Amendment Act was passed in a session of Parliament after some
members of Parliament had been unconstitutionally detained and thus illegally prevented from
influencing the views of other members present at the time the above Act was passed. This
ground, it is urged, also affects the validity of the amending Act 40 of 1975.
174. Article 329A deals with election to either House of Parliament of a person who holds the
office of Prime Minister at the time of such election or is appointed as Prime Minister after such
election and to the House of the People of a person who holds the office of Speaker of that House
at the time of such election or who is chosen as the Speaker for that House after such election.
According to clause (1) of Article 329A, no election of persons mentioned above shall be called in
question, except before such authority or body and in such manner as may be provided for by or
under any law made by Parliament. It is made clear that the authority before which such election
shall be called in question would not be the one as is referred to in clause (b) of Article 329. The
law to be made by Parliament under clause (1) may provide for all other matters relating to doubts
and disputes in relation to such election including the grounds on which such election may be
questioned. The above law shall be subject to the
175. The proposition that the power of amendment under Article 368 does not enable
Parliament to alter the basic structure of framework of the Constitution was laid down by this
Court by a majority of 7 to 6 in the case of His Holiness Kesavananda Bharati v. State of Kerala.
Apart from other reasons which were given in some of the judgments of the learned Judges who
constituted the majority, the majority dealt with the connotation of the word "amendment". It was
held that the words "amendment of the Constitution" in Article 368 could not have the effect of
destroying or abrogating the basic structure of the Constitution. Some of us who were parties to
that case took a different view and came to the conclusion that the words "amendment of the
Constitution" in Article 368 did not admit of any limitation. Those of us who were in the minority
in Kesavananda's case (supra) may still hold the same view as was given expression to in that
case. For the purpose of the present case, we shall have to proceed in accorda
176. Before dealing with the question as to whether the impugned amendment affects in the
basic structure of the Constitution, I may make it clear that this Court is not concerned with the
wisdom behind or the propriety of the impugned constitutional amendment. These are matters
essentially for those who are vested with the authority to make the constitutional amendment. All
that this Court is concerned with is the constitutional validity of the impugned amendment.
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177. I may first deal with the second contention advanced by Mr. Shanti Bhushan. According
to him, the impugned constitutional amendment and the amending Act of 1975 were passed in
session of Parliament wherein some members, including the respondent, could not be present
because they had been illegally detained. The fact that those measures were passed by the
requisite majority has not been questioned by the learned Counsel but he submits that if the above
mentioned members had not been detained and not been prevented from attending the sitting of
Parliament, they could have influenced the other members and as such it is possible that the
impugned Constitution Amendment Act and the 1975 R. P. Amending Act might not have been
passed. Mr. Shanti Bhushan accordingly asserts that the sittings of the Houses of Parliament in
which the above mentioned two measures were passed were not legal sittings. Any measures
passed in such sittings, according to the learned Counsel, cannot be considered to be a valid piece
of
178. There is, in my opinion, no force in the above submission. The proposition that a member
of Parliament cannot claim immunity from being detained under a law relating to preventive
detention does not now admit of much doubt. The privileges, powers and the immunities of the
members of the two Houses of Indian Parliament as well as of the Indian Legislature are the same
as those of the members of the House of Commons as they existed at the time of the
commencement of the Constitution. The position about the privileges of the members of the
House of Commons as it obtained in the United Kingdom at the relevant time has been stated in
Erskine May's Parliamentary Practice. 18th Ed. (p. 100) as under :
"The privilege of freedom from arrest is limited to civil causes, and has not been allowed to
interfere with the administration of criminal justice or emergency legislation."
The above observations were relied upon by this Court in the case of K. Anandan Nambiar v.
Chief Secretary, Government of Madras. The petitioners in that case were members of Parliament.
They were detained by orders passed by the State Government under Rule 30(1) (b) of the
Defence of India Rules, 1962. They challenged the validity of the orders of detention, inter alia,
on the ground that Rule 30(1) (b) was invalid because a legislator cannot be detained so as to
prevent him from exercising his constitutional rights as legislator while the legislative chamber to
which he belongs is in session. This Court rejected that contention and held that the true
constitutional position is that so far as a valid order of detention is concerned, a member of
Parliament can claim no special status higher than that of an ordinary citizen and that he is as
much liable to be arrested as detained under it as any other citizen. It was also held that if an order
of detention validly prevents a member from attending a session of
179. Question as to whether a member of Parliament has been validly detained under a law
relating to preventive detention can, in my opinion, be appropriately gone into in proceedings for
a writ of habeas corpus. Such question cannot be collaterally raised in proceedings like the present
wherein the court in concerned with the validity of a Constitution Amendment Act and an Act to
amend the Representation of the People Act. In deciding a case before it the court should decide
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matters which arise directly in the case. A court should resist the attempt of a party to induce it to
decide a matter which though canvassed during arguments is only incidental and collateral and can
appropriately be dealt with separate proceedings.
180. The contention advanced by Mr. Shanti Bhushan that the sittings of the two Houses of
the Parliament in which the impugned Acts were passed were not valid essentially relates to the
validity of the proceedings of the two Houses of Parliament. These are matters which are not
justiciable and pertain to the internal domain of the two Houses. Of course, the courts can go into
the question as to whether the measures passed by Parliament are constitutionally valid. The court
cannot, however, go into the question as to whether the sittings of the Houses of Parliament were
not constitutionally valid because some of those Houses were prevented from attending and
participating in the discussions in those Houses. It has not been disputed before us, as already
mentioned, that the impugned Constitution Amendment Act and the statutory amendment Act
were passed by the requisite majority. It is not the case of the respondent that the number of the
detained members of Parliament was so large, that if they had voted again
181. According to clause (3) of Article 105 of the Constitution, to which a short reference has
been made earlier, the powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, shall be those of the House of Commons of the
Parliament of the United Kingdom, and of its members and committees, at the commencement of
this Constitution. No law contemplated by clause (3) has been made by the Parliament in India
and as such we have to find out the powers, privileges and immunities of the House of Commons
in United Kingdom at the relevant time. In the case of Bradlaugh v. Gossett the plaintiff, having
been returned as member for the borough of Northampton, required the speaker of the House of
Commons to call him to the table for the purpose of taking oath. In consequence of something
which had transpired on a former occasion the Speaker declined to do so. The House
". . . for the purpose of determining on a right to be exercised within the House itself, and in
particular the right of sitting and voting, the House and the House alone could interpret the
statute but. . . as regard rights to be exercised out of and independently of the House, such as the
right of suing for a penalty for having sat and voted, the statute must be interpreted by this Court
independently of the House."
The above passage has been cited on page 83 in Erskine May's Parliament Practice, 18th Ed.
with a view to show that it is a right of each House of Parliament to be the sole judge of the
lawfulness of its own proceedings. It would follow from the above that the courts cannot go into
the lawfulness of the proceedings of the Houses of Parliament.
182. The act of detaining a person is normally that of an outside agency and not that of the
House of Parliament. It would certainly look anomalous if the act of an outside agency which
might ultimately turn out to be not legal could affect the validity of the proceedings of the House
of Parliament or could prevent that House from assembling and functioning.
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183. The matter can also be looked at from another angle. Gazette copies of the Election
Laws Amendment Act, 1975 (Act 40 of 1975) and the Constitution (Thirty-ninth Amendment)
Act, 1975 have been produced before us. In the face of the publication in the Gazette of the above
mentioned two Acts this Court must assume that those two Acts were duly passed. It may be
pertinent in this context to refer to the position in the United States where it was laid down in the
case of Marshall Field & Co. v. John M. Clark as under :
"The signing by the Speaker of the House of Representatives, and by the President of the
Senate, in open session, of an enrolled bill, is an official attestation by the two houses that such
bill has passed by Congress; and when the bill, thus attested receives the approval of the
President, and is deposited in the public archives, its authentication as a bill that has passed
Congress is complete and unimpeachable. An enrolled Act thus authenticated is sufficient
evidence of itself that it passed Congress."
In the case of a constitutional amendment which requires ratification by the States, the
position was stated by Brandeis, J. in the case of Oscar Leser v. J. Mercer Garnett as follows :
"The proclamation by the Secretary certified that, from official documents on file in the
Department of State, it appeared that the proposed Amendment was ratified by the Legislature of
thirty-six States, and that it "has become valid to all intents and purposes as a part of the
Constitution of the United States". As the Legislatures of Tennessee and West Virginia had power
to adopt the resolutions of ratification, official notice to the Secretary, duly authenticated, that
they had done so, was conclusive upon him, and, being certified to by his proclamation, is
conclusive upon the courts."
184. I am, therefore, of the view that the constitutional validity of the Constitution
Amendment Act and the 1975 Act amendment the Representation of the People Act cannot be
assailed on the ground that some members of Parliament were prevented because of their
detention from attending and participating in the proceedings of the respective Houses of
Parliament.
185. We may now deal with clause (4) of Article 329A which has been added by the
Constitution (Thirty-ninth Amendment) Act, 1975. It is necessary to clarify at the outset that we
are concerned in the present case only with the constitutional validity of clause (4) and not with
that of the other clauses of that article. I, therefore, express no opinion about the validity of the
other clauses of Article 329A. Clause (4) consists of four parts :
(i) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975 in so far as it relates to the election petitions of matters connected
therewith shall apply or shall be deemed ever to have applied to or in relation to the election of
any such person as is referred to in clause (1) to either House of Parliament;
(ii) and such election shall not be deemed to be void or ever to have become void on any
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ground on which such election could be declared to be void or has before such commencement
been declared to be void under any such law;
(iii) and notwithstanding any order made by any court before such commencement declaring
such election to be void, such election shall continue to be valid in all respects;
(iv) and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of no effect.
186. In so far as part (i) is concerned, I find that it relates to a matter which can be the subject
of an ordinary legislation or a constitutional amendment. According to this part, no law made by
Parliament before the commencement of the Constitution (Thirty-ninth Amendment) Act, 1975 in
so far as it relates to the election petitions and matters connected therewith shall apply and shall
be deemed ever to have applied to or in relation to the election of any such person as is referred to
in clause (1) to either House of Parliament. A law in the above terms can validly be made by a
Legislature as well as by a constituent authority. The fact that the above law would have
retrospective effect would not detract from the competence of the Legislature or constituent
authority to make such a law. It is well-settled that it is permissible for a Legislature to make a
law with retrospective effect. The power of a Legislature to make a law with retrospective effect
is not curtailed or circumscribed by the fact that th
187. Part (ii) of clause (4) spells out the consequence which flows from part (i) of the clause.
If the previous law in so far as it relates to the election petitions and matters connected therewith
was not to apply to the election of the Prime Minister and the Speaker, it would necessarily follow
that the election of the appellant who was the Prime Minister would not be deemed to be void or
ever to have become void on the ground on which such election could be declared to be void or
has before such commencement been declared to be void under any such law.
188. The same, to some extent, appears to be true of part (iv) of clause (4). If the previous
law in so far as it relates to the election petitions and matters connected therewith was not to
apply to the election of the appellant, the High Court shall be deemed to have had no jurisdiction
to decide the election petition challenging the election of the appellant. The effect of part (i) of
clause (4) is that the High Court was divested of the jurisdiction to decide the dispute relating to
the election of the appellant with a retrospective effect. The law under which the election of the
appellant was declared to be void as a result of the amendment was also made inapplicable with
retrospective effect to the dispute relating to the election of the appellant. The resultant effect of
the amendment thus was that the order by which the election of the appellant was declared to be
void and the finding on which such order was based were rendered to be void and no effect.
189. Another aspect of part (iv) of clause (4) relates to the question as to whether it is open to
the constituent authority to declare an order and a finding of the High Court to be void and of no
effect or whether such a declaration can be made only either in separate judicial proceedings
before a higher court.
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190. A declaration that an order made by a court of law is void is normally part of the judicial
function and is not a legislative function. Although there is in the Constitution of India no rigid
separation of powers, by and large the spheres of judicial function and legislative function have
been demarcated and it is not permissible for the Legislature to encroach upon the judicial sphere.
It has accordingly been held that a Legislature while it is entitled to change with retrospective
effect the law which formed the basis of the judicial decision, it is not permissible to the
Legislature to declare the judgment of the court to be void or not binding (see Shri Prithvi Cotton
Mills Ltd. v. Broach Borough Municipality, Janapada Sabha, Chhindwara v. The Central
Provinces Syndicate Ltd., Municipal Corporation of the City of Ahmedabad v. New Shorock Spg.
& Wvg. Co. Ltd. and State of Tamil Nadu v. M. Rayappa Gounder).
191. The position as it prevails in the Unites States, where guarantee of due process of law is
in operation, is given on pages 318-19 of Vol. 46 of the American Jurisprudence 2d as under :
"The general rule is that the Legislature may not destroy, annul, set aside, vacate, reverse,
modify, or impair the final judgment of a court of competent jurisdiction, so as to take away
private rights which have become vested by the judgment. A statute attempting to do so has been
held unconstitutional as an attempt on the part of the Legislature to exercise judicial power, and
as a violation of the constitutional guarantee of due process of law. The Legislature is not only
prohibited from reopening cases previously decided by the courts, but is also forbidden to affect
the inherent attributes of a judgment. That the statute is under the guise of an act affecting
remedies does not alter the rule. It is worthy of notice, however, that there are cases in which
judgments requiring acts to be done in the future may validly be affected by subsequent legislation
making illegal that which the judgment found to be legal, or making legal that which the judgment
found to be illegal.
10. Judgment as to public right.
With respect to legislative interference with the judgment, a distinction has been made
between public and private rights under which distinction a statute may be valid even though it
renders ineffective a judgment concerning a public right. Even after a public right has been
established by the judgment of the court, it may be annulled by subsequent legislation."
192. Question arises whether the above limitation imposed upon the Legislature about its
competence to declare a judgment of the court to be void would also operate upon the constituent
authority?
193. View has been canvassed before us that the answer to the above question should be in
the negative. Although normally a declaration that the judgment of a court is void can be made
either in separate proceedings or in proceedings before the higher court, there is, according to this
view, no bar to the constituent authority making a declaration in the constitutional law that such
an order would be void especially when it relates to a matter of public importance like the dispute
relating to the election of a person holding the office of Prime Minister. The declaration of the
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voidness of the High Court judgment is something which can ultimately be traced to part (i).
Whether such a declaration should be made by the court or by the constituent authority is more, it
is urged, a matter of the mechanics of making the declaration and would not ultimately affect the
substance of the matter that the judgment is declared void. According to Article 31B, without
prejudice to the generality of the provisions contained
"There was speculation during the argument as to what the position would be if Parliament
sought to procure such a result by first amending the Constitution by a two-thirds majority. But
such a situation does not arise here. In so far as any Act passed without recourse to Section 29
(4) of the Constitution purports to usurp or infringe the judicial power it is ultra vires."
The above observations, it is urged, show that the restriction upon the Legislature in
encroaching upon judicial sphere may not necessarily hold good in the case of constituent
authority.
194. The above contention has been controverted by Mr. Shanti Bhushan and he submits that
the limitations on the power of the Legislature that it cannot declare void a judgment of the court
equally operates upon the constituent authority. It is urged that the constituent authority can only
enact a law in general terms, even though it be a constitutional law. The constituent authority may
also, if it so deems proper change the law which is the basis of a decision and make such change
with retrospective effect, but it cannot, according to the learned Counsel, declare void the
judgment of the court. Declaration of voidness of a judgment, it is stated, is a judicial act and
cannot be taken over by the constituent authority. Although Legislatures or the constituent
authority can make laws, including for creation of courts, they cannot, according to the
submission, exercise judicial functions by assuming the powers of a super court in the same way
as the courts cannot act as a super Legislature. It is, in my opini
195. We may now come to part (iii) of clause (4). By part (iii) it is declared that the election
of the appellant shall continue to be valid in all respects. Such a declaration would not follow from
part (i) of the clause. It would not also follow from part (ii) and part (iv) of the clause which, as
mentioned earlier, in effect represented the consequences flowing from part (i). The election to
the Lok Sabha of the appellant, who was the Prime Minister, was challenged on the ground that
she or her election agents had been guilty of some malpractices. The declaration that her election
was to be valid in all respects necessarily involved the process of going into the grounds on which
her election had been assailed and holding those grounds to be either factually incorrect or to be
of such a nature as in law did not warrant the declaration of her election to be void. The case of
the appellant is that some of the grounds mentioned against her were factually incorrect and in
respect of those grounds the findings
196. The dispute relating to the election of the appellant is also not to be governed by law is
to be enacted under clause (1) of Article 329A. Such a law would apply only to future elections.
The result is that so far as the dispute relating to the election of the appellant is concerned, a legal
vacuum came into existence. It was open to the constituent authority to fill that vacuum by
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prescribing a law which was to govern the dispute arising out of the petition filed by the
respondent to challenge the election of the appellant. The constituent authority, however, did not
do so and straightaway proceeded to declare the election of the appellant to be valid. There is
nothing in clause (4) to indicate that the constituent authority applied any law in declaring the
election of the appellant to be valid and if so, what was that law.
197. I am unable to accede to the argument that the constituent authority kept in view the
provisions of the R. P. Act as amended by Acts 58 of 1974 and 40 of 1975 and their impact on
the challenge to the election of the appellant in declaring the election of the appellant to be valid.
The difficulty in accepting this argument is that in part (i) of clause (4) the constituent authority
expressly stated that the previous law, namely the R. P. Act as amended in so far as it related to
election petitions and matters connected therewith was not to apply so far as the challenge to the
election of the appellant was concerned. It is also difficult to agree that the constituent authority
took into account some other unspecified law or norm in declaring the election of the appellant to
be valid. As mentioned earlier, there is nothing in clause (4) to indicate that the constituent
authority took into account some other law or norm and if so, what that law or norms was. The
position which thus emerges is that according
198. This Court in the case of Kesavananda Bharati (supra) held by majority that the power of
amendment of the Constitution contained in Article 368 does not permit altering the basic
structure of the Constitution. All the seven Judges who constituted the majority were also agreed
that democratic set-up was part of the basic structure of the Constitution. Democracy postulates
that there should be periodical election, so that people may be in a position either to re-elect the
old representatives or, if they so choose, to change the representatives and elect in their place
other representative. Democracy further contemplates that the elections should be free and fair, so
that the voters may be in a position to vote for candidates of their choice. Democracy can indeed
function only upon the faith that election are free and fair and not rigged and manipulated, that
they are effective instruments of ascertaining popular will both in reality and form and are not
mere rituals calculated to generate illusion of defe ion arises whether a member of a House of
Parliament has become disqualified for membership, the decision of that House shall be taken and
shall be final.
199. Not much argument is needed to show that unless there be a machinery for resolving an
election dispute and for going into the allegations that elections were not free and fair being
vitiated by malpractices, the provision that a candidate should not resort to malpractices would be
in the nature of a mere pious wish without any legal sanction. It is further plain that if the validity
of the election of a candidate is challenged on some grounds, the said election can be declared to
be valid only if we provide a forum for going into those grounds and prescribe a law for
adjudicating upon those grounds. If the said forum finds that the grounds advanced to challenge
the election are not well-founded or are not sufficient to invalidate the election in accordance with
the prescribed law or dismisses the petition to challenge the election on some other ground, in
such an event it can be said that the election of the returned candidate is valid.
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200. Besides other things, election laws lay down a code of conduct in election matters and
prescribe, what may be called, rules of electoral morality. Election laws also contain a provision
for resolving disputes and determination of controversies which must inevitably arise in election
matters as they arise in other spheres of human activity. The object of such a provision is to
enforce rules of electoral morality and to punish deviance from the prescribed code of conduct in
election matters. It is manifest that but for such a provision, there would be no sanction for the
above code of conduct and rules of electoral morality. It is also plain that nothing would bring the
code of conduct into greater contempt and make a greater mockery of it than the absence of a
provision to punish its violation. The position would become all the more glaring that even though
a provision exists on the statute book for punishing violation of the code of conduct in election
matters, a particular election is made immune and g
201. The vice of clause (4) of Article 329A is not merely that it makes the previous law
contained in the R. P. Act as amended by Act 58 of 1974 and 40 of 1975 inapplicable to the
challenge to the election of the appellant, it also makes no other election law applicable for
resolving that dispute. The further vice from which the said clause suffers is that it not merely
divests the previous authority, namely, the High Court of its jurisdiction to decide the dispute
relating to the election of the appellant, it confers no jurisdiction on some other authority to
decide that dispute. Without even prescribing a law and providing a forum for adjudicating upon
the grounds advanced by the respondent to challenge the election of the appellant, the constituent
authority has declared the election of the appellant to be valid.
202. To confer an absolute validity upon the election of one particular candidate and to
prescribe that the validity of that election shall not be questioned before any forum or under any
law would necessarily have the effect of saying that howsoever gross may be the improprieties
which might have vitiated that election, howsoever flagrant may be the malpractices which might
have been committed on behalf of the returned candidate during the course of the election and
howsoever foul and violative of the principles of free and fair elections may be the means which
might have been employed for securing success in that election, the said election would be
nonetheless valid and it would not be permissible to complain of those improprieties, malpractices
and unfair means before any forum or under any law with a view to assail the validity of that
election. Not much argument is needed to show that any provision which brings about that result
is subversive of the principle of free and fair election in a democracy. T
203. The vice of declaration contained in part (iii) of clause (4) regarding the validity of the
election of the appellant is aggravated by the fact that such a declaration is made after the High
Court which was then seized of jurisdiction had found substance in some of the grounds advanced
by the respondent and had consequently declared the election of the appellant to be void. To put a
stamp of validity on the election of candidate by saying that the challenge to such an election
would not be governed by any election law and that the said election in any case would be valid
and immune from any challenge runs counter to accepted norms of free and fair elections in all
democratic countries. In the case of Marbury v. Madison Marshall, C. J. said that "the
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government of the United States has been emphatically termed a government of laws and not of
men". In United States v. Lee Samuel Miller, J. observed that "no man is so high that he is above
the law... All... officers are creatures of the law and are bound t
204. It has been argued on behalf of the appellant that the grounds on account of which the
election of the appellant has been held to be void by the High Court were of a technical nature. I
need not express any opinion about this aspect of the matter at this stage but, assuming it to be so,
I find that clause (4) of Article 329A is so worded that however serious may be the malpractices
vitiating the election of the Speaker or the Prime Minister, the effect of clause (4) is that the said
election would have to be treated as valid. I cannot accede to the submission that in construing
clause (4) we should take into account the facts of the appellant's case. This is contrary to all
accepted norms of construction. If a clause of a Constitution or a statutory provision is widely
worded, the width of its ambit cannot be circumscribed by taking into account the facts of an
individual case to which it applies. As already mentioned, clause (4) deals with the past election
not merely of the Prime Minister but also of
205. Another argument advanced in support of the validity of the amendment is that we
should take it that the constituent authority constituted itself to be the forum for deciding the
dispute relating to the validity of the election of the appellant, and after considering the facts of
the case, declared the election of the appellant to be valid. There is, however, nothing before us as
to indicate that the constituent authority went into the material which had been adduced before
the High Court relating to the validity of the election of the appellant and after considering that
material held the election of the appellant to be valid. Indeed, the statement of objects and reasons
appended to the Constitution (Thirty-ninth Amendment) Bill makes no mention of this thing. In
any case, the vice of clause (4) would still lie in the fact that the election of the appellant was
declared to be valid on the basis that it was not to be governed by any law for settlement of
election disputes. Although the provisions of a c
206. The matter can also be looked at from another angle. The effect of impugned clause (4)
is to take away both the right and the remedy to challenge the election of the appellant. Such
extinguishment of the right and remedy to challenge the validity of the election, in my opinion, is
incompatible with the process of free and fair elections. Free and fair elections necessarily
postulate that if the success of a candidate is secured in elections by means which violate the
principle of free and fair elections, the election should on that account be liable to be set aside and
be declared to be void. To extinguish the right and the remedy to challenge the validity of an
election would necessarily be tantamount to laying down that even if the election of a candidate is
vitiated by the fact that it was secured by flagrant violation of the principles of free and fair
election, the same would still enjoy immunity from challenge and would be nonetheless valid.
Clause (4) of Article 329A can, therefore, be held to st
207. I agree that it is not necessary in a democratic set-up that disputes relating to the validity
of the elections must be settled by courts of law. There are many countries like France, Japan, and
the United States of America where consistently with the democratic set-up the determination of
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such controversies is by Legislature or by authorities other than the courts. The question with
which we are concerned, however, is whether it is permissible in a democratic set-up that a
dispute with regard to the validity of a particular election shall not be raised before any forum and
shall not be governed by law and whether such an election can be declared, despite the existence
of a dispute relating to its validity, to be valid by making the existing law relating to election
disputes not applicable to it and also by not applying any other election law to such a dispute. The
answer to such a question, for the reasons given earlier by me, should be in the negative.
208. Reference to the election of the US President made by Mr. Sen is also not helpful to him.
It is clear from observations on pages 47-50 of the American Commonwealth by Bryce, 1912 Ed.
and Sections 5, 6, and 15 of the United States Code (1970 Ed.) that there is ample provision for
the determination of such disputes after the poll. The fact that such determination of the dispute is
before the declaration of the result would not detract from the proposition that it is essential for
free and fair elections that there should be a forum and law for the settlement of such disputes
relating to the validity of the election.
209. Argument has also been advanced that the offices of the Prime Minister and Speaker are
of great importance and as such they constitute a class by themselves. This argument, in my
opinion, would have relevance if instead of the law governing disputes relating to the election of
other persons, another law had been prescribed to govern the dispute relating to the election of a
person who holds the office of the Prime Minister or Speaker. As it is, what we find is that so far
as the dispute relating to the election of the appellant is concerned, neither the previous law
governing the election of persons holding the office of the Prime Minister is to apply to it nor the
future law to be framed under clause (1) of Article 329A governing the election of persons
holding the office of Prime Minister is to apply to this dispute. Likewise, the previous forum for
adjudicating upon the election dispute which went into the matter, has been divested of its
jurisdiction with retrospective effect and, at the same time,
210. It has been argued in support of the constitutional validity of clause (4) that as a result of
this amendment, the validity of one election has been preserved. Since the basic structure of the
Constitution, according to the submission, continues to be the same, clause (4) cannot be said to
be an impermissible piece of constitutional amendment. The argument has a seeming plausibility
about it, but a deeper reflection would show that it is vitiated by a basic fallacy. Law normally
connotes a rule or norm which is of general application. It may apply to all the persons or class of
persons or even individuals of a particular description. Law prescribes the abstract principles by
the application of which individual cases are decided. Law, however, is not what Blackstone
called "a sentence". According to Roscoe Pound, law, as distinguished from laws, is the system of
authoritative materials for grounding or guiding judicial and administrative action recognized or
established in a politically organized society o be decided is that if the impugned amendment of
the Constitution violates a principle which is part of the basic structure of the Constitution, can it
enjoy immunity from an attack on its validity because of the fact that for the future the basic
structure of the Constitution remains unaffected. The answer to the above question, in my
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opinion, should be in the negative. What has to be seen in such a matter is whether the
amendment contravenes or runs counter to an imperative rule or postulate which is an integral
part of the basic structure of the Constitution. If so, it would be an impermissible amendment and
it would make no difference whether it relates to one case or a large number of cases. If an
amendment striking at the basic structure of the Constitution is not permissible, it would not
acquire validity by being related only to one case. To accede to the amendment advanced in
support of the validity of the amendment would be tantamount to holding that even though it is
permissible to change the bas
211. Lastly, question arises whether we should strike down clause (4) in its entirety or in part.
So far as this aspect is concerned, I am of the view that the different parts of clause (4) are so
integrally connected and linked with each other that it is not possible to sever them and uphold the
validity of part of it after striking down the rest of it. It would indeed be unfair to the appellant if
we were to uphold the first part of clause (4) and strike down other parts or even part (iii). As
would be apparent from what follows hereafter, the election of the appellant is being upheld by
applying the provisions of the R. P. Act as amended by Act 40 of 1975. Such a course would not
be permissible if we were to uphold the validity of the first part of clause (4) and strike down the
other parts. We would also in that event be creating a vacuum which is the very vice for which we
are striking down clause (4). I am, therefore, of the view that clause (4) should be struck down in
its entirety.
212. In view of my finding that clause (4) strikes at the basic structure of the Constitution, it is
not necessary to go into the question as to whether, assuming that the constituent authority took
it upon itself to decide the dispute relating to the validity of the election of the appellant, it was
necessary for the constituent authority to hear the parties concerned before it declared the election
of the appellant to be valid and thus in effect repelled the challenge of the respondent to the
validity of the appellant's election.
213. As a result of the above, I strike down clause (4) of Article 329A on the ground that it
violates the principle of free and fair elections which is an essential postulate of democracy and
which in its turn is a part of the basic structure of the Constitution inasmuch as (1) it abolishes the
forum without providing for another forum for going into the dispute relating to the validity of the
election of the appellant and further prescribes that the said dispute shall not be governed by any
election law and the validity of the said election shall be absolute and not consequently be liable to
be assailed, and (2) it extinguishes both the right and the remedy to challenge the validity of the
aforesaid election.
214. We may now deal with Appeal No. 887 of 1975 filed by the appellant. So far as this
appeal is concerned, it has been argued by Mr. Sen on behalf of the appellant that the grounds on
which the election of the appellant has been declared by the High Court to be void no longer hold
good in view of the amendment in the R. P. Act by Act 40 of 1975. As against that, Mr. Shanti
Bhushan on behalf of the respondent has assailed the validity of Act 40 of 1975. In the alternative,
Mr. Shanti Bhushan contends that even if the validity of Act 40 of 1975 were to be upheld, the
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grounds on which the election of the appellant has been declared to be void would still hold good.
215. The question as to whether Act 40 of 1975 is not vitiated by the constitutional infirmity
would be dealt with by me subsequently. For the time being I would proceed upon the basis that
the statutory amendment in the R. P. Act by Act 40 of 1957 is constitutionally valid.
216. Section 10 of Act 40 of 1975, which has been reproduced earlier makes it clear, inter
alia, that the provisions of Section 6, 7 and 8 of the Act shall have retrospective operation, so as
to apply to or in relation to any election held before the commencement of this Act, to either
House of Parliament in respect of which appeal from any order of any High Court made in any
election petition under the R. P. Act is pending before the Supreme Court immediately before
such commencement. It is, therefore, obvious that the provision of Section 6, 7 and 8 of Act 40 of
1975 would be attracted to this case. One of the question which actually arose for determination
before the High Court was as to what was the date on which the appellant held herself out as a
candidate. According to the written statement filed on behalf of the appellant, she held herself out
as a candidate from the Rae Bareli constituency on February 1, 1971 when she filed her
nomination paper. As against that, the case of the respondent was that t
"unless the context otherwise requires 'candidate' means 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."
The new definition states that "unless the context otherwise requires, 'candidate' means a
person who has been or claims to have been duly nominated as a candidate at any election". The
question as to when a person holds himself out as candidate, therefore, loses its importance in the
context of the new definition.
217. One of the grounds which weighed with the High Court in declaring the election of the
appellant to be void was that the appellant committed corrupt practice under the Section 123 (7)
of the R. P. Act inasmuch as she obtained and procured the assistance, for the furtherance of her
election prospects, of Yaspal Kapur during the period from January 7 to 24, 1971 when Yashpal
Kapur was still a gazetted officer in the service of the Government of India.
218. According to clause (7) of Section 123 of the R. P. Act, the following act shall constitute
corrupt practice under that clause :
"The obtaining or procuring or abetting or attempting to obtain or procure by a candidate or
his agent or, by any other person with the consent of a candidate or his election agent, any
assistance (other than the giving of vote) for the furtherance of the prospects of that candidate's
election, from any person in the service of the Government and belonging to any of the following
classes, namely :-
(a) gazetted officers;
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(b) stipendiary judges and magistrates;
(c) members of the armed forces of the union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officer other than village revenue officers known as Lambardars, Malguzars,
Deshmukhs or by any other name, whose duty is to collect land revenue and who are remunerated
by a share of, or commission on, the amount of land revenue collected by them but who do not
discharge any police function; and
(g) such other class of persons in the service of the Government as may be prescribed.
Explanation.- (1) In this section the expression 'agent' includes an election agent, polling agent
and any person who is held to have acted as an agent in connection with the consent of the
candidate.
(2) For the purposes of clause (7), a person shall be deemed to assist in the furtherance of the
prospects of a candidate's election if he acts as an election agent."
Perusal of the above clause shows that what constitutes corrupt practice under the above
clause is the obtaining or procuring or abetting or attempting to obtain or procure by a candidate
or his agent or by any person with the consent of a candidate or his election agent any assistance
(other than giving of vote) for the furtherance of the prospects of the candidate's election from
any person in the person in the service of the Government and belonging to any of the classes
specified therein. It is, in my opinion, essential that at the time the impugned act, namely, the
obtaining or procuring or abetting or attempting to obtain or procure the assistance of the
government servant is done, the person doing the act must be a candidate or his agent or any
other person with the consent of a candidate or his election agent. Candidate in this clause would
mean a person who has been or who claims to have been duly nominated as a candidate at the
election. I am unable to accede to the submission of Mr. Shanti Bhushan
219. Mr. Shanti Bhushan has invited our attention to clause (b) of Section 100 (1) of the R. P.
Act wherein it is stated that subject to the provisions of sub-section (2) of the section if the High
Court is of the opinion that any corrupt practice has been committed by a returned candidate or
his election agent or by any other person with the consent of a returned candidate or his election
agent, the High Court shall declare the election of the returned candidate to be void."Returned
candidate" has been defined in clause (f) of Section 79 to mean, unless the context otherwise
requires, a candidate whose name has been published under Section 67 as duly elected. It is urged
that as the corrupt practice referred to in clause (b) of Section 100(1) of the R. P. Act would in
the very nature of things have to be committed by the returned candidate before his name was
published under the Section 67 as duly elected, the words "returned candidate" in clause (b) of
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Section 100(1) must be taken to have been used with a
220. Reference has also been made by Mr. Shanti Bhushan to observation on pages 222-3 of
Vol. 14 of Halsbury's Laws of England, Third Edition, according to which a candidate at a general
election may be guilty of treating even though the treating took place before the dissolution of
Parliament and consequently before he came within the statutory definition of a candidate. These
observations have been made in the context of the statutory provisions in the United Kingdom.
Those provisions were couched in the language substantially different from that in which the
provision of the R. P. Act in India are couched and as such, in my opinion, not much assistance
can be derived from those observations.
221. As the appellant filed her nomination paper on February 1, 1971, in view of the amended
definition of the word "candidate", it would have to be taken that the appellant became a
candidate only on February 1, 1971. The result is that even if the finding of the High Court that
the appellant obtained and procured the assistance of Yashpal Kapur during the period from
January 7 to 24, 1971 were assumed to be correct, the appellant shall not be deemed to have
committed corrupt practice under Section 123(7) of the R. P. Act. As regards the assistance of
Yashpal Kapur which the appellant is alleged to have obtained and procured after January 14,
1971, the controversy stands resolved also by another amendment. According to the case of the
appellant, Yashpal Kapur, tendered his resignation by letter, dated January 13, 1971, with effect
from January 14, 1971. The High Court found that Yashpal Kapur continued to be in the service
of the Government of India till January 25, 1971 which was the date of the notificati ette of the
resignation and termination of the service of a person in the service of the Central Government
shall be conclusive proof of his resignation and termination of service and where the date of
taking effect of this resignation or termination of service is stated in such publication, also of the
fact that such person ceased to be in such service with effect from the said date. Yashpal Kapur in
view if the newly added explanation, shall be taken to have ceased to be in government service
with effect from January 14, 1971. Any assistance of Yashpal Kapur which the appellant was
alleged to have obtained or procured on or after January 14, 1971 would not, therefore, make her
guilty of corrupt practice under Section 123(7) of the R. P. Act.
222. Another ground on which the High Court declared the election of the appellant to be
void was that she committed corrupt practice under Section 123(7) of the R. P. Act inasmuch as
she obtained the assistance of the officers of the U. P. Government, particularly the District
Magistrate, Superintendent of Police, the Executive Engineer, P. W. D. and the Engineer, Hydel
Department for construction of rostrums and arrangement of supply of power for loudspeakers in
the meetings addressed by her on February 1, 1971 and February 25, 1971 in furtherance of her
election prospects. It is not disputed that what was done by the above mentioned officers was in
pursuance of official directions and in the discharge or purported discharge of the official duties.
This is indeed clear from letter dated November 19, 1969 from the Government of India, Ministry
of Home Affairs to all State Governments wherein there is reference to rule (6) of the Rules and
Instructions for the Protection of the Prime Minister and it is state
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"As the security of the Prime Minister is the concern of the State all arrangements for putting
up the rostrums, the barricades, etc. at the meeting place, including that of an election meeting
will have to be made by the State Government concerned. . . .
started checking (Mrs.Joshi) In the case of election meetings, all expenditure on police, setting
up of barricades and taking lighting arrangements will be borne by the State Government while
expenditure on the public address system and any decorative arrangements will be the
responsibility of the political party concerned. (The expenditure on all these items, may in the first
instance be borne by the State Government and then recovered from the political parties
concerned.) In regard to the rostrum only 25% of the cost of the rostrum or Rs. 2500.00
whichever is less, shall be contributed by the party as the rostrum has to be of certain
specifications because of security considerations."
Assuming that the finding of fact recorded by the High Court in this respect is correct, the
appellant can still be not guilty of the commission of corrupt practice under Section 123(7) of the
R. P. Act in view of the new proviso which has been inserted at the end of clause (7) of the
Section 123 and which reads as under :
"Provided that where any person, in the service of the Government and belonging to any of
classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to or in relation to any
candidate or his agent or any other person acting with the consent of the candidate or his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
The above proviso has also a direct bearing on the allegation of the respondent that the
appellant committed corrupt practice under Section 123(7) of the R. P. Act inasmuch as she or
her election agent procured the assistance of members of armed forces of the Union for
furtherance of her election prospects because of the fact that the members of the armed forces
arranged planes and helicopters of the Air Force for her flights to enable her to address meetings
in her constituency.
223. It has been argued by Mr. Shanti Bhushan that the words "in the discharge or purported
discharge of his official duty" in the above mentioned proviso have reference only to statutory
duty and not to other duty performance of which takes place in pursuance of administrative
instructions. I find it difficult to accede to the above submission as there is nothing in the above
proviso to confine the words "official duty" to duty imposed by statute. Official duty would
include not merely duties imposed by statutes but also those which have to be carried out in
pursuance of administrative instructions.
224. Mr. Shanti Bhushan during the course of arguments made it plain the apart from his
submission with regard to the validity of Act 40 of 1975, his objection relating to the applicability
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of Act 40 of 1975 was confined to two matters, namely, the connotation of the word "candidate"
and the meaning to be the attached to official duty. Both these objections have been found by me
to be not tenable. I would, therefore, hold that subject to the question as to whether the
provisions of Act 40 of 1975 are valid, the grounds on which the High Court has declared the
election of the appellant to be void no longer hold good for declaring the said election to be void.
225. We may also before dealing with the validity of Act 40 of 1975 refer to one other change
brought about by that Act which has a bearing upon the present case. It was the case of the
respondent that the appellant and her election agent made extensive appeals to the religious
symbol of cow and calf and thereby committed corrupt practice under Section 123(3) of the R. P.
Act. Corrupt practice has been defined in that provision as unde :
" (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 case 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."
It is common case of the parties that the symbol of cow and calf was allotted to the Congress
party by the Election Commission. The learned Counsel for the respondent stated during the
course of arguments in the High Court that he confined his case only to the use of the symbol of
cow and calf. The learned Counsel gave up that part of the case of the respondent wherein it had
been alleged that appeals were made to the religious symbol of cow and calf by the appellant. The
following proviso has now been inserted in clause (3) of Section 123 by Section 8 of Act 40 of
1975 :
"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."
It is, therefore, apparent in view of the above proviso that the symbol of cow and calf which
was allotted to the appellant shall no be deemed to be a religious symbol or a notional symbol for
the purpose of Section 123(3) of the R. P. Act. The appellant as such cannot be deemed to have
committed a corrupt practice under Section 123(3) of the R. P. Act by use of the symbol of cow
and calf.
226. In assailing the validity of Act 40 of 1975 Mr. Shanti Bhushan has referred to Section 10
of that Act, according to which the amendments made by Sections 6, 7 and 8 of the Act in the R.
P. Act shall have retrospective operation, so as to apply to any election held before the
commencement of the Act in respect of which an election petition is pending or in respect of
which appeal from any order of the High Court is pending immediately before the commencement
of Act 40 of 1975. It is urged that a change in the election law with retrospective effect strikes at
the principle of free and fair elections. Retrospective operation of the amending Act, according to
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the learned Counsel, has the effect of condoning what was at the time it was committed a corrupt
practice.
227. I have given the matter my earnest consideration, and am of the opinion that there is no
substance in the above contention. A Legislature has, except in a matter for which there is
prohibition like the one contained in Article 20(1) of the Constitution, the power to make laws
which are prospective in operation as well as laws which have retrospective operation. There is no
limitation on the power of the Legislature in this respect. Essentially it is a matter relating to the
capacity and competence of the Legislature. Although most of the laws made by the Legislature
have prospective operation, occasions arise quite often when necessity is felt of giving
retrospective effect to a law. This holds good both in respect of a principle Act as well as in
respect of an amending Act. If the provisions of an Act passed by the Legislature are not violative
of the provisions of the Act passed by the provisions shall have to be given effect to and the fact
that the operation of the Act is prospective or retrospectiv
228. The first such case was State of Orissa v. Bhupendra Kumar Bose (supra). It arose out of
elections to the Cuttack Municipality held in December, 1957 to March, 1958 as a result of which
27 appellants were declared elected as councillors. The respondent, who was defeated at the
elections, filed a writ petition before the High court challenging the elections. The High Court
held that the electoral rolls had not been prepared in accordance with the provisions of the Orissa
Municipalities Act, 1950, as the age qualification had been published too late thereby curtailing
the period of claims and objections to the preliminary roll to 2 days from 21 days as prescribed.
The High court consequently set aside the elections. The State took the view that the judgment
affected not merely the Cuttack Municipality but other municipalities also. Accordingly, the
Governor promulgated an Ordinance validating the elections to the Cuttack Municipality and
validating the electoral rolls prepared in respect of various munici
"The Cuttack municipal elections had been set aside by the High Court and if the governor
thought that in the public interest, having regard to the factors enumerated in the preamble to the
Ordinance, it was necessarily follow that the Ordinance suffers from the vice of contravening
Article 14."
It was further observed :
"Therefore, if the infirmity in the electoral rolls on which the decision of the High court in the
earlier writ petition was based, had not been applicable to the electoral rolls in regard to other
municipalities in the State of Orissa, then it may have been open to the Governor to issue an
ordinance only in respect of the Cuttack municipal elections, and if, on account of special
circumstances or reasons applicable to the Cuttack municipal elections, a law was passed in
respect of the said elections alone, it could not have been challenged as unconstitutional under
Article 14. Similar, if Mr. Bose was the only litigant affected by the decision and as such formed a
class by himself, it would have been open to the Legislature to make a law only in respect of his
case. But as we have already pointed out, the Ordinance does not purport to limit its operation
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only to the Cuttack Municipality; it purports to validate the Cuttack municipal elections and the
electoral rolls in respect of other municipalities as wel
229. In Knata Kathuria v. Manak Chand Surana (supra) the dispute related tot he election of
the appellant to the Rajasthan Legislative Assembly. The appellant in that case had been appointed
as a Special Government Pleader to represent the State of Rajasthan in an arbitration case. The
appellant then stood for election to the State Legislative Assembly and was declared elected. The
election of the appellant was challenged inter alia on the ground that the appellant held an office
of profit within the meaning of Article 19(1) of the Constitution. The High Court set aside the
election of the appellant. The appellant then came up in appeal to this Court. During the pendency
of the appeal, Rajasthan Act 5 of 1969 was passed declaring among others that the holder of the
office of Special Government Pleader was not disqualified from being chosen or for being a
member of the State Legislative Assembly. The Act was made retrospective and removed the
appellant's disqualification retrospectively. On the question as to g that the appellant held an office
of profit. All the five Judges constituting the Constitution Bench were, however, unanimous on
the point that the Act of 1969 had removed the disqualification of the appellant retrospectively.
Hidayatullah, C.J. speaking for himself and Mitter, J. observed :
"It is also well-recognised that Parliament and 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.
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 of
make the declaration. There is nothing in the words of the article to indicate that this declaration
cannot be made with retrospective effect."
It was further observed :
"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."
SIKRI, J.
(as he then was) speaking for himself, Ray, J. (as he then was) and was Jaganmohan Reddy, J.
dealt with the matter in the following words :
"Mr. Chagla. learned Counsel for the respondent, contends that the Rajasthan State
Legislature was not competent 'to declare retrospectively' under Article 191(1) (a) of the
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Constitution. It seems to us that there is no force in this contention. 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. Practice of the British Parliament does not oblige us to place
any implied restriction. We notice that the British Parliament in one case validate the election :
[Erskine May's Treatise on the Law, Privileges Proceedings & Usage of Parliament- Seventeenth
Edition (1964)]-
'After the general election of 1945 it was found that the persons elected for the Coatbridge
Division of Lanark and the Springbourn Division of Glassgow were disqualified at the time of
their election because they were members of tribunals appointed by the Minister under the Rent of
Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of
attendance at a tribunal. A Select Committee reported that the disqualification was incurred
inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn
Elections (Validation) Bill was introduced to validate the irregular elections (H. C. Deb.
(1945-46) 414, c. 564-6). See also H. C. 3 (1945-46); ibid. 71 (1945-46) and ibid. 92 (1945-46).'
We have also noticed two earlier instances of retrospective legislation, e.g. the House of
Commons (Disqualification) Act, 1813 (Halsburry's Statutes of England p. 467) and Section 2 of
the Re-election of Ministers Act, 1919 (ibid p. 515)
Great stress was laid on the word 'declare' in Article 19(1) (a), but we are unable to imply any
limitation on the powers of the Legislature from this world. Declaration can be made effective as
from an earlier date"
230. The above two authorities of this Court clearly lend support for the view that it is
permissible to amend a lawn relating to elections with retrospective operation. Mr. Shanti
Bhushan has criticised the observations of Sikri, J. reproduced above on the score that in the
United Kingdom amendments in election law have not been made to affect pending proceedings in
courts. This is essentially a matter for the Legislature to decide, this does not affect the
competence of the Legislature to make a change in election law with retrospective effect. In any
case, the proposition of law laid down in the case of Kanta Kathuria (supra) is binding upon us
and I do not find any reason to detract either from the soundness of the view expressed therein or
its binding effect.
231. The Privy Council also upheld in the case of Areyesekera v. Jayalilake an Order in
Council giving retrospective effect to an election law in Ceylon. This question arose in the
following circumstances. An order in Council of 1923 made provision as to the Legislative
Council in Ceylon but reserved to His Majesty power to revoke, alter or amend the Order. The
appellant, as common informer, brought an action to recover penalties under the Order from the
respondent, who he alleged had sat and voted after his seat had become vacant under its
provisions by reason of his having pecuniary interest in a contract with the Government. In 1928,
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after the action had been brought, but before its trial, an amending Order in Council was made
providing that the action should be dismissed; it also amended the Order of 1923 so as to except
the office held by the respondent from its operation. It was held that the Order of 1928 was valid,
having regard to the power reserved by the Order of 1923, and was an effective defense
"It was argued that the Order in Council of November 1, 1928, was ultra vires as affecting to
take away rights already in existence, thus having a retrospective action. The effect, however, of
the Order of 1928, as expressed on the face of it, was no more than an act of indemnity and relief
in respect of penalties incurred. It may be true that not Jove himself upon the past hath power, but
legislators have certain the right to prevent, alter or reverse the consequence of their own decrees.
There is no necessity to give instances to prove that they have frequently done so; even going so
far as to restore the heritable quality to blood which had been deprived of its virtue by acts of
attainder."
232. I am not impressed by the argument that retrospective operation of the relevant
provisions of Act 40 of 1975 affects free and fair elections. The said provisions of Act 40 of 1975
are general in terms and would apply to all election disputes which may be pending either in the
High Court or in appeal before the Supreme Court or which may arise in future. It is no doubt
true that the retrospective operation of an amending Act has the effect of placing one of the
parties to the dispute in a more advantageous position compared to others but that is inevitable in
most of the amendments with retrospective operation. This Court in the case of Harbhajan Singh
v. Mohan Singh dealt with the provisions of Section 3 of the Punjab Pre-emption (Repeal) Act,
1973, according to which on and from the date of commencement of that Act, no court shall pass
a decree in any suit for pre-emption. This Court held that the above provision was also applicable
to appeals which were pending at the commencement of that Act as an ap
"It is true that it gave 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 legislation but not of
the capacity to make such laws."
Likewise, Sikri, J. expressly rejected the contention that retrospective amendment in election
law was bad because it was not a healthy practice and because such a course was liable to be
abused in the following words :
"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."
233. The above observations also provide an answer to the contention of Mr. Shanti Bhushan
that the provisions of the amendment made by Act 40 of 1975 can be abused. I may stated that in
case the provisions of the amended law are abused, and some of the instances of abuse were
visualized by Mr. Shanti Bhushan during the course of arguments, this Court would not be
helpless in the matter. The proper course in such an event would be to strike down the action
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taken under the amended law and not the law itself.
234. Reference was also made by Mr. Shanti Bhushan to the effect of retrospective
amendment in cases which may arise under Section 123(1) of the R. P. Act. We are in the present
case not concerned with Section 123(1) of the R. P. Act and consequently it is not necessary to
express any opinion with regard to the impact of the amendment upon Section 123(1) of the R. P.
Act. Nor is it necessary to express opinion on the point as to whether it is permissible to make a
law which has the effect of creating a corrupt practice or disqualification retrospectively and thus
unseating a returned candidate as such a question does not arise in this case.
235. The change in the definition of the word "candidate" to which our attention has been
invited by Mr. Shanti Bhushan does not impinge upon the process of free and fair elections. The
fact that as a result of the above change, we have to take into account only the prejudicial activity
of the candidate or his election agent from the date of nomination of the candidate and not from
the date he holds himself out as a candidate does not affect the process of free and fair elections.
It is necessary while dealing with corrupt practice relating to elections to specify the period within
which the impugned act, alleged to constitute corrupt practice should have been done. As a result
of the amendment, the Legislature has fixed the said period to be as from the date of nomination
instead of the period as from the date on which the candidate with the election in prospect began
to hold himself out as a prospective candidate. It is common experience that the date from which
a candidate holds himself out as a prospecti
236. One of the objects of the change effected by Act 40 of 1975 is to remove the uncertainty
and set at rest the controversy as to what would be the precise date of a person in the service of
the Central Government ceasing to be in such service in case he tenders his resignation. The
amended law makes it clear that where the date of taking effect of the resignation is stated in the
publication in the Official Gazette, it shall be that date. Similarly, in the case of appointment of a
person, the date of taking effect of such appointment shall be the date mentioned in the
publication in the Official Gazette in case such a date is stated in such publication. The fact that
the new provision creates a conclusive presumption with regards to the date of taking effect of
appointment or resignation does not mean, as is sought to be argued on behalf of the respondent,
that there has been an encroachment by the Legislature upon the Judicial sphere. Laying down a
rule of conclusive presumption in a statute with a view I find it difficult to hold that the impugned
provisions impinge upon the principle of free and fair elections.
237. So far as the newly added proviso to Section 123(7) is concerned, it may be stated that
the act in the discharge or purported discharge of official duty of the government employees
referred to above would in the very nature of things have to be of a kind which is Germans to
their official duties. It may include steps taken by the government employees for maintenance of
law and order or in connection with the security of a candidate or other persons. It would not,
however, include canvassing or doing such acts which may properly be considered to be part of
the election propaganda for furtherance of the prospects of a candidate's election. In taking action
under the above provision, it must be borne in mind as stated on page 152 of Free Elections by W.
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J. M. Mackenzie that in the last resort.
"the system of free elections depends on a certain separation of powers between
administrators (or policemen) and politicians : there must be some public sense that police and
administration serve the public, not the party leaders."
What would be permissible under the above provision would be that which is conceived to be
done in public interest and not something conceived to be done in the personal interest of a
candidate. In spite of some difficulty which may arise in borderline cases, this distinction must be
borne in mind. If, however, because of doing something conceived in public interest e.g., as in the
present case the security arrangement for the person holding the office of the Prime Minister,
some advantage may also possibly accrue to a candidate, it will have to be regarded as incidental
and would not detract from action taken under the above provision being in public interest. As
against that, any action taken with a view to further the personal interest of a candidate should not
be allowed to be camouflaged as an action taken in public interest. Care must be taken to ensure
that public interest is not allowed to degenerate into a cloak for furtherance of the personal
interests of a candidate in an election. The discharge o
238. One other change brought about by Act 40 of 1975 is the addition of an explanation in
Section 77 of the R. P. Act. According to the new explanation, any expenditure incurred in
respect of any arrangements made, facilities provided or any other act or thing done by any person
in the service of the Government and belonging to any of the classes mentioned in clause (7) of
Section 123 in the discharge or purported discharge of his official duty as mentioned in the
proviso to that clause shall not be deemed to be expenditure in connection with the election
incurred or authorised by a candidate or by his election agent for the purposes of Section 77(1).
The validity of the above explanation in a great measure is linked with the validity of the new
proviso to Section 123(7) of the R. P. Act, and for the reasons stated for upholding the proviso to
Section 123(7), the new explanation to Section 77, it seems, may have also to be upheld. It is not
necessary to dilate upon this aspect because even without invoking
239. Argument has also been advanced that validity of Act 40 of 1975 cannot be assailed on
the ground that it strikes at the basis structure of the Constitution. Such a limitation it is
submitted, operates upon an amendment of the Constitution under Article 368 but it does not hold
good when Parliament enacts a statute in exercise of powers under Article 245 of the
Constitution. In view of my finding that the provisions of Act 40 of 1975 with which we are
concerned have not been shown to impinge upon the process of free and fair elections and thereby
to strike at the basic structure of the Constitution, it is not necessary to deal with the above
argument. I would, therefore, hold that the provisions of Act 40 of 1975 with which we are
concerned are valid and do not suffer from any constitutional infirmity.
240. We may now deal with Cross Appeal No. 909 of 1975. Mr. Shanti Bhushan has not
pressed the challenge to the findings of the High Court on issues Nos. 4 and 7. He has, however,
assailed the finding of the High Court on issue No., 9 whereby the High Court held that the
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appellant incurred an expenditure of Rs. 31,976.47 on her election as against the prescribed limit
of Rs. 35,000. In Ex. 5, return of her election expenses, the appellant showed her total election
expenses to be Rs. 12,892.97. The respondent in para 113 of the election petition alleged that the
appellant and her election agent had incurred expenditure much beyond the prescribed limit of Rs.
35,000 and thereby committed corrupt practice under Section 123(6) of the R. P. Act. The
respondent gave some items of the expenditure which were alleged to have been incurred by the
appellant and her election agent but were not shown in the return of the election expenses. The
material items with which we are now concerned were as under :
# (i) The hiring charges of the vehicles specified in para 13(1) .. ... over Rs. 1,28,700 (ii) Cost
of petrol and diesel for the vehicles specified in para 13(1) .. ... over Rs. 43,230(iii) Payments
made to the drivers of vehicles specified in para 13(1) .. ... over Rs. 9,900 (iv) Repairing and
servicing charges of vehicles specified in para 13(1) .. ... over Rs. 5,000 (v) Payments made to the
workers engaged for the purpose of election propaganda .. ... over Rs. 6,600 (vi) Expenses on the
erection of rostrums for the public meetings addressed by the appellant in the constituency on
February 1 and 25, 1971 .. ... over Rs. 1,32,000(vii) Expenses on arrangement of loudspeakers for
the various election meetings of the appellant addressed on February 1 and 25, 1971 .. ... over Rs.
7,000(viii) Expenses on motor transport for the conveyance of the appellant and her party to the
place of her election meetings on February 1 and 25, 1971 .. ... over Rs. 2,000##
The High Court held that the respondent had failed to prove the first five times. As regards
the expenses for the erection of rostrums for the public meetings addressed by the appellant on
February 1 and 25, 1971, the High Court found that four meetings were addressed by the
appellant in the constituency on February 1 and six meetings on February 25, 1971. The cost of a
rostrum in each meeting came to Rs. 1,600. The total expenses of the ten rostrums thus came to
Rs. 16,000 and the same, it was held, was liable to be added to the amount shown in the return of
election expenses of the appellant. The amount of Rs. 16,000 included the money paid by the
District Congress Committee as its share of the cost of rostrums. Regarding the expenses of
loudspeakers, the High Court found that the total expenses of Rs. 800 had been incurred on the
installation of loudspeakers in the meetings addressed by the appellant on February 1 and 25,
1971. In addition to that, the High Court added Rs. 1,151 as cost of energy supplied
241. In appeal before us Mr. Shanti Bhushan has assailed the finding of the High Court in so
far as the High Court has not accepted the case of the respondent that the appellant incurred
expenses on the cost of hiring, petrol, petrol and the salary of the drivers for 23 vehicles. It may
be mentioned that the respondent in para 13 of the election petition referred to 32 vehicles which
were alleged to have been hired by the appellant, but both before the High Court and in appeal
before us, learned Counsel for the respondent had confined his argument to 23 vehicles.
242. To appreciate the point of controversy between the parties, it may be necessary to set out
some material facts. Section 160 of the R. P. Act provides inter alia that if it appears to the State
Government that in connection with an election held within the State, any vehicle is needed or is
likely to be needed for the purpose of transport of ballot boxes to or from any polling station, or
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transport of members of the police force for maintaining order during the conduct of such
election, or transport of any officer or other person for performance of any duties in connection
with such election, the Government may be order in writing requisition such vehicle, provided that
no vehicle which is being lawfully used by a candidate or his agent for any purpose connected
with the election of such candidate shall be requisitioned until the completion of the poll at such
election. It appears that 23 vehicles, described at some places as cars and at other places as jeeps,
were requisitioned by the district authoriti
"You are requested to kindly write a letter with your recommendation to the Election Officer
so that the cars taken by the District Congress Committee may be released. I have tried to find out
Shri Vidyadhar Vajpayee who is contesting the election from Amethi parliamentary constituency
and Shri Baiznath Kureel who is contesting the election from Ram Sanehi parliamentary
constituency, but they are not available. You are, therefore, requested to write the above letter to
the District Election Officer positively so that the election work of all the three parliamentary
constituencies which is going on, on behalf of District Congress Committee, may not suffer."
On February 25, 1971 Yashpal Kapur addressed a letter to the District Officer, Rae Bareli,
stating that the 23 vehicles in question had been taken by the District Congress committee, Rae
Bareli, for the three parliamentary constituencies of Rae Bareli, Amethi and Ram Sanehi Ghat.
The District Officer was requested to release the 23 vehicles without delay. Yashpal Kapur also
enclosed with that letter the note of Dal Bahadur Singh. The 23 vehicles, it would appear, were
thereafter released by the District Election Officer. The appellant, in para 17(b) of her written
statement, admitted that those 23 vehicles were used by the District Congress Committee, Rae
Bareli, for election work in the three parliamentary constituencies of Rae Bareli, Amethi and Ram
Sanehi Ghat. The High Court, in not accepting the case of the respondent in respect of the 23
vehicles, observed that there was nothing to show that the above mentioned vehicles had been
obtained on hire or were obtained gratis. There was also, according to the
243. Mr. Shanti Bhushan, while assailing the finding of the High Court, has submitted that, as
five out of the seven assembly constituencies in Rae Bareli district were in Rae Bareli
parliamentary constituency, five-seventh of the expenses incurred on the said 23 vehicles should
be added to the election expenses of the appellant. I find it difficult to accede to the above
submission because of the paucity of the material on record. There is no cogent evidence to show
that the 23 vehicles in question were used for the election of the appellant. It is no doubt true that
the said 23 vehicles were used by the District Congress Committee, Rea Bareli for election work
in the three parliamentary constituencies, viz., Rae Bareli, Amethi and Ram Sanehi Ghat. The
record is, however silent on the point as to what extent they were used in Rae Bareli
parliamentary constituency. One can in the above context visualise three possibilities :
(i) As the appellant, who was the Prime Minister of the country, was contesting from Rae
Bareli constituency, the District Congress Committe concentrated its attention o that costituency
and used the 23 vehicles mostly for the election work in that constituency.
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(ii) As the appellant had a mass appeal the District Congress Committee office bearers thought
that the Rae Bareli constituency was very safe and used the 23 vehicles mostly for those two
constituencies.
(iii) Equal attention was paid to all the three costituecies and there was proportionate use of
the vehicles for the three constituencies.
Mr. Shanti Bhushan would have us to accept the first or the third possibility and would rule
out the second. If so, it was, in my opinion, essential for the respondent to lead some evidence
regardig the use of the 23 vehicles. He did nothing of the kind. Neither the owners nor the drivers
of those vehicles were examined as witnesses. There was also, as mentioned earlier, no other
cogent evidence to show that those vehicles or any them were used for the appellant's election in
the Rae Bareli constituency, and if so, to what extent. The respondent himself did not come into
the witness box to substantiate the charge against the appellant regarding the use of the 23
vehicles. The fact that Dal Bahadur Singh was not examined as a witness on behalf of the
appellant would not warrant the filling in of the gaps and lacunae in the evidence adduced by the
respondent by a process akin to guess work. It is no doubt true that by using a vehicle for the
furtherance of the prospects of candidates in more than one constitue s was used in more than one
constituency, including that of the returned candidate who was a Congress nominee. Question
arose as to whether the expense incurred in connection with that jeep could be included in the
election expenses of the returned candidate. While answering the question in the negative,
Hidayatullah, C.J. observed :
"The bill stands in the name of the Congress Committee and was presumably paid by the
Congress Committee also. The evidence, however, is that this jeep was used on behalf of the
returned candidate and to that extent we subscribe to the finding given by the learned Judge. Even
if it be held that the candidate was at bottom the hirer of the jeep and the expenditure on it must
be included in his account, the difficulty is that this jeep was used also for the general Congress
propaganda in other constituencies. As we stated, the jeep remained in Chalet and at Mubarakpur.
No doubt Chalet is the home town of the returned candidate and his office was situated at
Mubarakpur but that does not indicate that the jeep was used exclusively on his account. The
petrol chart shows that petrol was bought at several pumps, both inside the constituency and
outside. This shows, as does the evidence, that the jeep was used not only in this constituency but
also in the other constituencies. If this be true, then, it is almost imp
244. Reference has also been made during the course of arguments by Mr. Shanti Bhushan to
some entries in a register of the Congress Committee. The High Court declined to place any
reliance on those entries as those entries had not been proved. I see no cogent ground to take a
different view. Our attention has been invited by Mr. Shanti Bhushan to a report in issue dated
January 22, 1971 of Swatantra Bharat wherein there was a reference to the Personal Secretary of
the Prime Minister having reached Rae Bareli with a caravan of 70 motor vehicles. No reliance
can be placed upon that report as the correspondent who sent that report was not examined as a
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witness.
245. The other difficulty which I find in accepting the submission of Mr. Shanti Bhushan in
respect of 23 vehicles is that there is no evidence to show that any payment was made for the use
of the above mentioned vehicles. There is also nothing to show that those vehicles were engaged
on hire. As mentioned earlier, the owners and drivers of those vehicles were not examined as
witnesses. I, therefore, find no sufficient ground to interfere with the finding of the High Court in
respect of the above mentioned 23 vehicles.
246. Mr. Shanti Bhushan has next assailed the finding of the High Court in so far as it has held
that the respondent has failed to prove that the appellant incurred an expense of Rs. 6,600 on
workers engaged for the purposes of election propaganda. I, however, find no infirmity in the
finding of the High Court in this respect as there is no cogent evidence whatsoever that any
expense was incurred for engaging workers for the election work of the appellant. The case of the
appellant is that her workers did the work voluntarily and without receipt of any remuneration.
247. Apart from challenging the findings of the High Court in respect of 23 vehicles and the
alleged payment to workers, Mr. Shanti Bhushan has also referred to some other circumstances
with a view to show that the election expenses of the appellant exceeded the prescribed amount of
Rs. 35,000. It has been pointed out that a cheque for Rs. 70,000 was sent by the Provincial
Congress Committee to Dal Bahadur Singh, President of the District Congress Committee, Rae
Bareli, and the same was credited in Dal Bahadur Singh's account after deducting of the bank
charges on March 4, 1971. Dal Bahadur Singh withdrew out of that amount Rs. 40,000 and Rs.
25,000 on March 4 and 6, 1971, respectively nearabout the days of polling. It is urged that the
said amount must have been spent for the purpose of the elections. There was no reference to the
said amount of Rs. 70,000 in the petition. There is also no reference to the amount of Rs. 70,000
in the judgment of the High Court or in the grounds of appeal. As such, I am of t
"Learned Counsel for the petitioner urged that from the evidence on record, it transpires that
expenditure was also incurred on the telephone connection and telephone charges; on the
meetings addressed by Sri Yashpal Kapur within the constituency during the period of election; on
the election material viz., pamphlets, posters, etc. and on the lighting arrangements made for some
meetings addressed by the respondent No. 1. None of these expenses were, however, pleaded in
the petition. In fact, till the commencement of the arguments in the case, the respondent No. 1
could not even anticipate that the petitioner shall rely on these expenses for the purpose of his
case. It will, therefore, be prejudicial to the interest of respondent No. 1 if the aforesaid expenses
are taken into consideration. The submission made by learned Counsel for the petitioner is
accordingly negatived".
I am in full agreement with the above observations of the High Court and find no cogent
ground to take a different view.
248. It may be stated that in view of the new explanation added to Section 77 of the R. P. Act
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by Act 40 of 1975, the amount of Rs. 12,000 which represented 75 per cent of the expenditure
incurred on the construction of 10 rostrums borne by the Government cannot be included in the
total election expenses of the appellant. The High Court, however, included the total amount of
Rs. 16,000 in the election expenses of the appellant upon the assumption that the appellant had
not disavowed that expenditure. Be that as it may, the fact remains that the High Court has found
on issue No. 9 that the total expenses incurred by the appellant on here election have not been
shown to exceed the prescribed limit. I find no cogent reason to interfere with that finding.
249. I also agree with the High Court that as the election expenses of the appellant have not
been shown to exceed the prescribed limit of Rs. 35,000, the question of invoking and going into
the validity of Act 58 of 1974 does not arise. Nor is it necessary to express an opinion about the
view taken in Kanwarlal v. Amarnath Chawla in view of the fact that even after applying the rule
laid down in that case, the total election expense of the appellant has not been shown to exceed
the prescribed limit.
250. So far as the finding of the High Court on issue No. 6 regarding the use of the symbol of
cow and calf is concerned, the matter, as already discussed earlier, is now covered by the
amendment made in Section 123(3) of the R. P. Act by Section 8 of Act 40 of 1975.
251. There was a controversy during the course of arguments on the point as to whether I
have laid down in my judgment in Kesavananda Bharati's case (supra) that fundamental rights are
not a part of the basic structure of the Constitution. As this controversy cropped up a number of
times, it seems apposite that before I conclude I should deal with the contention advanced by
learned Solicitor General that according to my judgment in that case no fundamental right is part
of the basic structure of the Constitution. I find it difficult to read anything in that judgment to
justify such a conclusion. What has been laid down in that judgment is that no article of the
Constitution is immune from the amendatory process because of the fact that it relates to a
fundamental right and is contained in Part III of the Constitution. It was also held that a
constitution amendment under Article 368 does not constitute "law" as mentioned in Article 13. I
also did not agree with the view taken in the case of Golaknath that the
"I am further of the opinion that amendment of the Constitution necessarily contemplates that
the Constitution has not to be abrogated but only changes have to be made in it. The word
'amendment' postulates that the old Constitution survives without loss of identity despite the
change and continues even though it has been subjected to alterations. As a result of the
amendment, the old Constitution cannot be destroyed and done away with; it is retained though in
the amended form. What then is meant by the retention of the old Constitution ? It means the
retention of the basic structure or framework of the old Constitution. A mere retention of some
provisions of the old Constitution even though the basic structure or framework of the
Constitution has been destroyed would not amount to the retention of the old Constitution.
Although it is permissible under the power of amendment to effect changes, howsover important,
and to adapt the system to the requirements of changing conditions, it is not permissible to to
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It was further observed by me : (SCC p. 770, para 1435)
"The word 'amendment' in Article 368 must carry the same meaning whether the amendment
relates to taking away or abridging fundamental rights in Part III of the Constitution or whether it
pertains to some other provision outside Part III of the Constitution. No serious objection is taken
to repeal, addition or alteration of provisions of the Constitution other than those in Part III under
the power of amendment conferred by Article 368. The same approach, in my opinion, should
hold good when we deal with amendment relating to fundamental rights contained in Part III of
the Constitution. It would be impermissible to differentiate between scope and width of power of
amendment when it deals with fundamental rights and the scope and width of that power when it
deals with provisions not concerned with fundamental rights.
It would appear from the above that no distinction was made by me so far as the ambit and
scope of the power of amendment is concerned between a provision relating to fundamental rights
and provisions dealing with matters other than fundamental rights. The limitation inherent in the
word "amendment" according to which it is not permissible by amendment of the Constitution to
change the basic structure of the Constitution was to operate equally on articles pertaining to
fundamental rights as on other articles not pertaining to those rights. This was further made clear
by the following observations on page 688 : (SCC p. 769, para 1434)
"Subject to the retention of the basic structure or framework of the Constitution, I have no
doubt that the power of amendment is plenary and would include within itself the power to add,
alter or repeal the various articles including those relating to fundamental rights".
Proposition (vii) of the summary of my conclusions on page 758 of the judgment also bears it
out and the same reads as under : (SCC p. 824, para 1537)
" (vii) The power of amendment under Article 368 does not include power to abrogate the
Constitution nor does it include the power to alter the basic structure or framework of the
Constitution. Subject to the retention of the basic structure or framework of the Constitution, the
power of amendment is plenary and includes within itself the power to amend the various articles
of the Constitution, including those relating to fundamental rights as well as those which may be
said to relate to essential features. No part of a fundamental right can claim immunity from
amendatory process by being described as the essence or core of that right. The power of
amendment would also include within itself the power to add, alter or repeal the various articles".
252. It has been stated by me on page 685 (SCC p. 767) of the judgment (already reproduced
above) that the secular character of the State, according to which the State shall not discriminate
against any citizen on the ground of religion only cannot likewise be done away with. The above
observations show that the secular character of the Constitution and the rights guaranteed by
Article 15 pertain to the basic structure of the Constitution. The above observations clearly
militate against the contention that according to my judgment fundamental rights are not a part of
the basic structure of the Constitution. I also dealt with the matter at length to show that the right
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to property was not a part of the basic structure of the Constitution. This would have been wholly
unnecessary if none of the fundamental rights was a part of the basic structure of the Constitution.
253. Before parting with this case I must acknowledge the assistance we received from the
learned Counsel for the parties as also from learned Attorney General and Solicitor General in
resolving the points of controversy. In spite of the political overtones, the case was argued
forcefully yet without generating any heat and in an atmosphere of befitting calmness. It has been
said by Holmes, J. that great cases like hard cases make bad law. For great cases are called great,
not by reason of their real importance in shaping the law of the future, but because of some
accident of immediate overwhelming interest, which appeals to the feelings and distorts the
judgment. These immediate interests exercise a kind of hydraulic pressure (National Securities Co.
v. U. S.). It, therefore, became essential to rid the case of all the embellishments resulting from the
political overtones and to bring it to a level which is strictly judicial, so that the various
constitutional and legal aspects of the matter may be examined
"That all constitutional interpretations have political consequences should not obliterate the
fact that the decision has to be arrived at in the calm and dispassionate atmosphere of the court
room, that judges in order to give legitimacy to their decision have to keep aloof from the din and
controversy of politics and that the fluctuating fortunes of rival political parties can have for them
only academic interest. Their primary duty is to uphold the Constitution and the laws without fear
or favour and in doing so, they cannot allow any political ideology or economic theory, which
may have caught their fancy, to colour the decision".
254. As a result of the above, I accept Appeal No. 887 of 1975 filed by Shrimati Indira Nehru
Gandhi, set aside the judgment of the High Court in so far as it has found the appellant guilty of
corrupt practice under Section 123(7) of the R. P. Act and has declared her election to the Lok
Sabha to be void. The order that the appellant shall accordingly stand disqualified for a period of
six years as provided in Section 8A would also consequently be set aside. The election petition
filed by the respondent shall stand dismissed. Appeal No. 909 of 1975 filed by Shri Raj Narain is
dismissed. Looking to all the circumstances, more particularly the fact that the election petition
filed by the respondent is being dismissed because of changes made in law during the pendency of
the appeal, the parties are directed to bear their own costs throughout.
MATHEW, J.
(concurring)- In the election petition filed by the respondent in Civil Appeal No. 887 of 1975
(hereinafter referred to as 'respondent'), seven charges of corrupt practice were made against the
appellant therein (hereinafter called the 'appellant') and it was prayed that the election of the
appellant be set aside. The learned Judge who tried the petition found that two of the charges had
been made out but that the rest of the charges were not substantiated. He set aside the election of
the appellant with the result that the appellant incurred the disqualification for a period of six
years as visualized in Section 8A of the Representation of the People Act, 1951. It is against this
judgment that Civil Appeal No. 887 of 1975 has been filed.
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256. The respondent has filed a cross appeal (Civil Appeal No. 909 of 1975) challenging the
findings of the High Court in respect of the other charges of corrupt practice.
257. During the pendency of these appeals, the Parliament passed the Election Laws
(Amendment) Act, 1975 on August 6, 1975 by which certain amendments were made in the
provisions of the Representation of the People Act, 1951, and the Indian Penal Code.
258. On August 10, 1975, the Parliament, in the exercise of its constituent power, passed the
Constitution (Thirty-ninth Amendment) Act, 1975 (hereinafter referred to as the 'Amendment').
By the amendment, Article 71 of the Constitution was substituted by a new article and that article
provided by clause (1) that, subject to the provisions of the Constitution, Parliament may, by law,
regulate any matter relating to or connected with the election of a President or Vice-President,
including the grounds on which such election may be questioned. By clause (2) of the article it
was provided that all doubts or Vice-President shall be inquired into and decided by such
authority or body in such manner as may be provided for by or under any law referred to in clause
(1). Clause (3) stated that the validity of any such law referred to in clause (1) and the decision of
any authority or body under such law shall not be called in question in any court.
259. By clause (4) of the amendment, Article 329-A was inserted reading as follows :
"329-A. Special provision as to elections to Parliament in the case of Prime Minister and
Speaker.- (1) Subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause (1)
of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of the Prime Minister at the
time of such election or is appointed as Prime Minister after such election;
(b) to the House of the People of a person who holds the office of a Speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provide for all
other matters relating to doubts and disputes in relation to such election including the grounds on
which such election may be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
office of the Speaker of the House of the People, while an election petition referred to in clause
(b) of Article 329 in respect of his election petition referred to in clause (b) of Article 329 in
respect of his election to either House of Parliament or, as the case may be, to the House of the
People is pending, such election petition shall abate upon such person being appointed as Prime
Minister or, as the case may be, being chosen to the office of the Speaker of the House of the
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People, but such election may be called in question under any such law as is referred to in clause
(1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith shall apply or shall be deemed ever to have applied to or in relation to the election of
any such person as is referred to in clause (1) to either House of Parliament and such election
shall not be deemed to be void or ever to have become or has, before such commencement, been
declared to be void under any such law and notwithstanding any order made by any court, before
such commencement, declaring such election to be void, such election shall continue to be valid in
all respects and any such order and any finding on which such order is based shall be and shall be
deemed always to have been void and of not effect.
(5) Any appeal or cross appeal against any such order of any court as is referred to in clause
(4) pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975 before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
260. The respondent contended that clause (4) of Article 329A [hereinafter referred to as
'clause (4)'] is invalid for the reason that some of the basic structures of the Constitution have
been damaged by its enactment.
261. The argument was that although the amending body could declare that the election of the
appellant shall not be deemed to be void and the judgment of the High Court to be void on the
basis that no law relating to election petition and matters connected therewith would apply to the
election, yet the amending body could not have held the election to be valid as it did not ascertain
the facts relating to the election and apply the relevant law to them. Counsel submitted that by its
very nature, an election dispute in a democratic system of government raises questions which can
be decided only by the exercise of judicial power; that by retrospectively rendering the forum for
investigation into the complaints regarding the validity of the election of the appellant coram non
judice, and by the amending body judging its validity without ascertaining the facts and applying
the relevant law, the amendment has fundamentally damaged an essential feature of the
democratic structure of the Constitution, namely, free
262. Counsel also submitted that equality and rule of law are essential features of democracy;
that clause (4), by dispensing with the application of the law relating to election petition and
matters connected therewith to the appellant, made an unreasonable classification among persons
similarly situated with reference to the purpose of the law.
263. The further submission was, that separation of powers is a basic structure of the
Constitution and that if it be supposed that the amending body ascertained the facts regarding the
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election of the appellant and applied the relevant law, the exercise of that power by the amending
body would offend the doctrine of separation of powers and that, at any rate, this process would
not result in an amendment of the Constitution by enacting a law, but only in the passing of a
judgment or sentence which can never be characterized as a law, let alone a law relating to the
Constitution of India.
264. In His Holiness Kesawananda Bharati Sripadagalavaru v. State of Kerala (hereinafter
referred to as 'Bharati's case'), a majority of seven judges held that the power conferred under
Article 368 of the Constitution was not absolute. They took the view that, by an amendment, the
basic structure of the Constitution cannot be damaged or destroyed. And, as to what are the basic
structures of the Constitution, illustrations have been given by each of these judges. They include
supremacy of the Constitution, democratic republican form of government, secular character of
the Constitution, separation of powers among the Legislature, Executive and Judiciary, the federal
character of the Constitution, rule of law, equality of status and of opportunity; justice, social,
economic and political; unity and integrity of the nation and the dignity of the individual secured
by the various provisions of the Constitution. There was consensus among these judges that
democracy is a basic structure of the Constitution. I proce
265. Therefore, if by clause (4), any essential feature of the democratic republican structure of
our polity as visualized by the Constitution has been damaged or destroyed, the clause would be
ultra vires the Constitution.
266. One way of looking at the first part of clause (4) is that the amending body has, with
retrospective effect, repealed the law relating to election petition in respect of the persons
specified in clause (1) and hence the judgment rendered on the basis of the previous law relating
to election petition became automatically void, and the amending body was merely stating the
consequence of the retrospective repeal of the law and therefore the declaration that the judgment
was void was not an exercise of judicial function. On the other hand, it might be possible to view
the first part of clause (4) as an exercise of judicial power for the reason that, even assuming that
by virtue of the retrospective repeal of the law relating to election petition, there was no
jurisdiction in the High Court to entertain or try the election petition and pass the judgment, a
repeal simpliciter did not render the judgment ipso facto void and therefore, in making the
declaration that the judgment was void, the amending body was
267. Be that as it may, I feel no doubt that the amending body, when it declared the election
of the appellant to be valid, had to ascertain the adjudicative facts and apply the relevant norm for
adjudging its validity. If, however, the amending body did not ascertain the facts relating to the
election and apply the relevant norm, the declaration of the validity of the election was a fiat of a
sui generis character of the amending body.
268. The concept of democracy as visualized by the Constitution presupposes the
representation of the people in Parliament and State Legislatures by the method of election. And,
before an election machinery can be brought into operation, there are three requisites which
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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 (see
N. P. Ponnuswami v. Returning Officer, Namakkal Constituency).
269. Article 329(b) envisages the challenge to an election by a petition to be presented to such
authority as the Parliament may, by law, prescribe. A law relating to election should contain the
requisite qualifications for candidates, the method of voting, definition of corrupt practices by the
candidates and their election agents, the forum for adjudication of election disputes and other
cognate matters. It is on the basis of this law that the question whether there has been a valid
election has to be determined by the authority to which the petition is presented. And, when a
dispute is raised as regards the validity of the election of a particular candidate, the authority
entrusted with the task of resolving the dispute must necessarily exercise a judicial function, for,
the process consists of ascertaining the facts relating to the election and applying the law to the
facts so ascertained. In other words, it is obvious that a power must be lodged somewhere to
judge the validity of the election, for, othe
270. It was contended for the appellant that, in England, it was the House of Commons which
originally decided election disputes concerning its members, that it was only in 1770 that the
function was delegated to committees and, therefore, Parliament is the proper forum for deciding
election disputes of its was framed, the decision of an election dispute had ceased to be a privilege
of the House of Commons in England and therefore, under Article 105(3), it could not be a
privilege of Parliament in this country.
271. Before the year 1770, controverted elections were tried and determined by the whole
House of Commons as mere party questions upon which the strength of contending factions might
be tested.
"In order to prevent so notorious a perversion of justice, the House consented to submit the
exercise of its privilege to a tribunal constituted by law, which, though composed of its own
members, should be appointed so as to secure impartiality and the administration of justice
according to the laws of the land under the sanction of oaths."
The principle of the Grenville Act, and of others which were passed at different times since
1770, was the selection by lot of committees for the trial of election petitions. And, at present, by
Part III of the Representation of the People Act, 199, the trial of controverted elections is
confided to judges selected from the Judiciary in the appropriate part of the United Kingdom.
Provisions is made in each case for constituting a rota from whom these judges are selected. The
House has not cognizance of these proceedings until their determination, when the judges certify
their determination. The judges are to make a report in any case where a charge has been made in
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the petition of corrupt and illegal practice having been committed at an election; and they may
also make a special report on any matter arising which they think should be submitted to the
House.
272. Article 1, Section 5(1) of the Constitution of the United States of America provides that
each House shall be the judge of the elections, returns and qualifications of its own members.
273. In whichever body or authority the jurisdiction is vested, the exercise of the jurisdiction
must be judicial in character. This Court has held that in adjudicating an election dispute an
authority is performing a judicial function and a petition for leave to appeal under Article 136 of
the Constitution would lie to this Court against the decision notwithstanding the provisions of
Article 329(b) (see Durga Shankar Mehta v. Thakur Raghuraj Singh).
274. In Barry v. United States Ex. Rel. Cunningham, it was held that in exercising the power
to judge of the election returns and qualifications of members, the Senate acts as a judicial
tribunal.
275. It might be that if the adjudication of election disputes in respect of its members had been
vested in each of the Houses of Parliament by the Constitution, the decision of the House would
have been final. That would have been on the basis of the doctrine of the political question,
namely, that the function has been exclusively committed textually to another agency. I am aware
that the doctrine of political question has no hospitable quarter in this Court since the decision in
Madhav Rao Scindia v. Union. But I venture to think that the doctrine alone can explain why the
courts abstain from interfering with a verdict on an impeachment of the President for violation of
the Constitution, a function essentially judicial.
276. An election dispute has a public aspect in that it is concerned more with the right of a
constituency to be represented by a particular candidate. But it does not follow from the public
character of the controversy that there is no lis between the parties to the election contest, and
that the lis can be resolved otherwise than by ascertaining the facts relating to the election, and
applying the relevant law :
"A judicial inquiry investigates, declares and enforces liabilities as they stand on present or
past facts and under laws supposed already to exist. This is its purpose and end. Legislation, on
the other hand, looks to the future and changes existing conditions by making a new rule, to be
applied thereafter to all or some part of those subject to its power."
277. The Privy Council had occasion to consider this question in United Engineering Workers'
Union v. Devanayagam. The judgment of the majority was delivered by Lord Dilhorne. Lord
Guest and Lord Devlin dissented. The question in the case was whether the President of a labour
tribunal in Ceylon was the holder of a judicial office. If so, as the man in question has not been
appointed in the way the Constitution of Ceylon required for appointments of judicial officers,
whether the tribunal was without jurisdiction. It is clear from the judgment of their Lordships of
the minority that judicial power is the exercise of a power on the basis of pre-existing law. At pp.
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384-385, their Lordships said :
"Another characteristic of the judicial power is that it is concerned with existing rights, that is,
those which the parties actually have at the inception of the suit and not those which it may be
thought they ought to have; it is concerned with the past and the present and not with the future."
278. According to the historic analysis, the essence of the distinction between legislative
power and judicial power is that the Legislature makes new law which becomes binding on all
persons over whom the Legislature exercises legislative power : the Judicature applies already
existing law in the resolution of disputes between particular parties; and judges may not deviate
from this duty. This view of the distinction between the obligation to apply and enforce rules and
a discretion to modify rules or make new rules was at one time applied uncompromisingly in
describing functions as legislative or judicial. Thus De Lolme said that courts of equity as then
existing in England had a legislative function. They are, he said, a kind of inferior experimental
Legislature, continually employed in finding out and providing law remedies for those new species
of cases for which neither the courts of common law, nor the Legislature have as yet found it
convenient or establish any. Though this would show that neither fo
279. If, therefore, the decision of the amending body that the election of the appellant was
valid was the result of the exercise of judicial power or of despotic discretion governed solely by
considerations of political expediency, the question is, whether that decision, though couched in
the form of an enactment, can be characterized as an amendment of the Constitution.
280. The constituent power is the power to frame a Constitution. The people of India, in the
exercise of that power, framed the Constitution and it enacts the basic norms. By that instrument,
the people conferred on the amending body the power to amend by way of addition, variation or
repeal any of its provisions (Article 368). It is not necessary to go in detail into the question
whether the power to amend is coextensive with the constituent power of the people to frame a
Constitution. In Bharati's case, I said :
"...... under the Indian Constitution, the original sovereign- the people- created, by the
amending clause of the Constitution, a lesser sovereign, almost coextensive in power with itself.
The sovereign, the one established by the revolutionary act of the full or complete sovereign has
been called by Max Radin, the "pro-sovereign", the holder of the amending power under the
Constitution."
281. I fully appreciate that 'sovereign', if conceived of as an omnipotent being, has no
existence in the real world. Several thoughtful writers have deprecated the use of the expression
in legal discussion as it has theological and religious overtones. Nevertheless, as the practice has
become inveterate, it will only create confusion if any departure is made in this case from the
practice. If it is made clear that sovereign is not a 'mortal God' and can express himself or itself
only in the manner and form prescribed by law and can be sovereign only when in the manner and
form prescribed by law and can be sovereign only when he or it acts in a certain way also
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prescribed by law, then perhaps the use of the expression will have no harmful consequence.
"'Legal sovereignty' is a capacity to determine the actions of persons in certain intended ways
by means of a law... where the actions of those who exercise the authority, in those respects in
which they do exercise it, are not subject to any exercise by other persons of the kind of authority
which they are exercising."
282. The point to be kept in mind is that the amending body which exercises the constituent
power of the legal sovereign, though limited by virtue of the decision in Bharati's case (supra), can
express itself only by making laws.
283. The distinction between constitutional law and ordinary law in a rigid Constitution like
ours is that the validity of the constitutional law cannot be challenged whereas that of ordinary
law can be challenged on the touchstone of Constitution. But constitutional law is as much law as
ordinary law. A Constitution cannot consist of a string of isolated dooms. A judgment or sentence
which is the result of the exercise of judicial power or of despotic discretion is not a law as it has
not got the generality which is an essential characteristic of law. A despotic decision without
ascertaining the facts of a case and applying the law to them, though dressed in the garb of law, is
like a bill of attainder. It is a legislative judgment.
284. According to Blackstone, a law and a particular command are distinguished in the
following manner : a law obliges generally the members of a given community, or a law obliges
generally person of a given class. A particular command obliges a single person or persons, whom
it determines individually. Most of the laws established by political superiors are, therefore,
general in a two-fold manner : as enjoining or forbidding generally acts of kinds or sorts; and as
binding the whole community, or, at least, whole classes of its members. He then said :
"Therefore, a particular act of the Legislature to confiscate the goods of Titus, or to attaint
him of high treason, does not enter into the idea of a municipal law : for the operation of this act
is spent upon Titus only and has no relation to the community in general : it is rather a sentence
than a law."
This passage was cited with approval by the Privy Council in Liyanage v. Queen to show that
the end product of the exercise of judicial power is a judgment or sentence and not a law.
285. St. Thomas Aquinas (after considering the views of Aristotle, St. Augustine and the
opinions of jurists in pandects) has said that since the end of law is common good the law should
be framed not for private benefit but for the common good of all citizens.
286. Rousseau wrote :
"When I say that the object of laws is always general, I mean that the law considers subjects
collectively and actions as abstract; never a man as an individual, nor an action as particular....
neither is what the sovereign himself orders about a particular object a law but a decree; not an
act of sovereignty, but of magistracy."
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287. Austin draws an explicit distinction between 'laws' and 'particular commands.' Where a
command, he says, obliges generally to acts or forbearances of a class, a command is a law or
rule. But where it obliges to a specific act or forbearance, a command is occasional or particular.
288. Kelsen, after noting the distinction made by Austin has observed :
"We can of course recognize as law only general norms. But there is not doubt that law does
not consist of general norms only. Law includes individual norms, i.e., norms which determine the
behaviour of one individual in one non-recurring situation and which therefore are valid only for
one particular case and may be obeyed or applied only once."
According to him, such norms are valid law because they are parts of the legal order as a
whole in exactly the same sense as those general norms on the basis of which they have been
created. He said that particular norms are the decisions of courts as far as their binding force is
limited to the particular case at hand and that a judge who orders a debtor A to return $ 1000 to
his creditor B was passing a law.
289. It may be noted that Kelsen made no distinction between law-creation and
law-application. According to him, every act of applying the law involved the creation of norms.
In his view, there was not distinction between creation and application of law, a view I find
difficult to accept in the light of clear distinction made by the decisions of this Court between
legislative and judicial functions.
290. A statute is a general rule. A resolution by the Legislature that a town shall pay one
hundred dollars to Timothy Coggan is not a statute.
291. The mere fact that an Act to indemnify A or and Act sanctioning a pension to the
Speaker is passed by the House of Commons in England should not lead us to conclude that it is
law.
"The English Legislature was originally constituted, not for legislative, but for financial
purposes. Its primary function was, not to make laws, but to grant supplies."
292. J. C. Carter has said that statute books contains vast masses of matter which though in
the form of laws, are not laws in the proper sense, that these consist in the making of provisions
for the maintenance of public works of the State, for the building of asylums, hospitals, school
buses, and a great variety of similar matters, and that this is but the record of actions of the State
in relation to the business in which it is engaged. According to him, the State is a great public
corporation which conducts a vast mass of business, and the written provisions for this, though in
the form of laws, are not essentially different from the minutes of ordinary corporate bodies
recording their actions.
293. Walter Bagehot has said :
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"An immense mass, indeed of the legislation is not, in the proper language of jurisprudence,
legislation at all. A law is a general command applicable to many cases. The 'special acts' which
crowd the statute book and weary parliamentary committees are applicable to one case only. They
do not lay down rules according to which railways shall be made, but enact that such and such a
railway shall be made from this place to that place, and they have not bearing on any other
transaction."
"When the authors of books on jurisprudence write about law, when professional lawyers talk
about law, the kind of law about which they are mainly thinking is that which is found in
Justinian's Institutes, or in the Napoleonic Codes, or in the New Civil Code of the German
Empire, that is to say, the legal rule which relate to contracts and torts, to property, to family
relations and inheritance, or else to law of crimes as is to be found in a Penal Code."
294. John Locke was of the view that
'legislative authority is to act in a particular way..... (and) those who wield this authority
should make only general rules. They are to govern by promulgated established laws not to be
varied in particular cases'.
295. Perhaps the most exhaustive treatment of the question of the necessity for generality in
law is to be found in "Jurisprudence, Men and Ideas of the Law" by Patterson (see Chapter V).
According to him, the generality of a law depends upon its being applicable to an indefinite
number of human beings and that is the most significant aspect of law. He said that an ordinary
judgment of a court is not law as a judgment applies only to a limited number of individuals, the
parties to the case. He disagreed with Dr. Kelsen's statement that the judicial decision is an
individual legal norm as the expression 'individual legal norm' is a self-contradiction.
296. To Friedmann, the most essential element in the concept of law is a degree of generality :
"The first desideratum of a system for subjecting human conduct to the governance of rules is
an obvious one : there must be rules. This may be stated as a requirement of generality. Here as in
so many other fields, John Austin's distinction was basically right, but too rigidly drawn."
Friedmann was of the view that a community which had no general prescription at all, but only
an infinite multitude of individual commands, would not be regarded as having a legal order. It
would dissolve into millions of individual relationships.
297. For the purpose of this case I accept as correct the statement of Blackstone already
quoted and approved by the Privy Council in Liyanage v. Queen (supra). I cannot regard the
resolution of an election dispute by the amending body as law : It is either a judicial sentence or a
legislative judgment like a Bill of Attainder.
298. It is no doubt true that the House of Commons in England used to pass bills of attainder.
But the practice has fallen into desuetude, since the year 1696. A bill of attainder is a special act
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of the Legislature, as inflict capital punishments upon persons supposed to be guilty of high
offences, such as treason and felony, without any conviction in the ordinary course of judicial
proceedings. The Legislature assumes judicial magistracy, pronouncing upon the guilt of the party
without any of the common forms and guards of trial, and satisfying itself with proofs, when such
proofs are within its reach, whether they are conformable to the rules of evidence or not. In short,
in all such cases, the Legislature exercises the highest power of sovereignty, and what may be
properly deemed an irresponsible despotic discretion, being governed solely by what it deems
political necessity or expediency, and too often under the influence of unreasonable fears, or
unfounded suspicions.
299. In U. S. v. Brown the Supreme Court of United States of America stated that the main
reason why the power to pass bill of attainder was taken away from the Congress was :
"Everyone must concede that a legislative body, from its numbers and organisation, and from
the very intimate dependence of its members upon the people, which renders them liable to be
peculiarly susceptible to popular clamour, is not properly constituted to try with coolness,
caution, and impartiality a criminal charge, especially in those cases in which the popular feeling is
strongly excited- the very class of cases most likely to be prosecuted by this mode."
Much the same reason will apply to the resolution of an election dispute by an amending body
as it consists, in all democratic countries, of an assembly of persons like Parliament.
300. In Liyanage v. Queen (supra) the appellants had been charged with offences arising out
of an abortive coup d'etat on January 27, 1962. The story of the coup d'etat was set out in a
White Paper issued by the Ceylon Government. On March 16, 1962 the Criminal Law (Special
Provisions) Act was passed and it was given retrospective effect from January 1, 1962. The Act
was limited in operation to those who were accused of offences against the State in or about
January 27, 1962. The Act legalised the imprisonment of the appellants while they were awaiting
trial, and modified a section of the Penal Code so as to enact ex post facto a new offence to meet
the circumstances of the abortive coup. The Act empowered the Minister of Justice to nominate
the three judges to try the appellants without a jury. The validity of the Act was challenged as well
as the nomination which had been made by the Minister of Justice of the three judges. The Ceylon
Supreme Court upheld the objection about the vires of some of the provis
301. The Privy Council said in the course of their judgment that the pith and substance of the
law enactments was a legislative plan ex post facto to secure the conviction, that although
legislation ad hominem which is directed to the course of particular proceedings may not always
amount to an interference with the functions of the Judiciary, but in the present case they had no
doubt that there was such interference; that it was not only the likely but the intended effect of the
impugned enactments and that it was fatal to their validity. They further said that the true nature
and purpose of these enactments were revealed by their conjoint impact on the specific
proceedings in respect of which they were designed, and they took their colour, in particular from
the alterations they purported to make as to their ultimate objective- the punishment of those
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convicted- and that these alterations constituted a grave and deliberate incursion into the judicial
sphere and then, they quoted with approval the observa
302. At the time when the amendment was passed, the appeal filed by the appellant and the
cross appeal of the respondent were pending before the Supreme Court. Clause (4) was legislation
ad hominem directed against the course of the hearing of the appeals on merits as the appeal and
the cross appeal were to be disposed of in accordance with that clause and not by applying the
law to the facts as ascertained by the court. This was a direct interference with the decision of
these appeals by the Supreme Court on their merits by a legislative judgment.
303. If the amending body really exercised judicial power, that power was exercised in
violation of the principles of natural justice of audi alteram partem. Even if a power is given to a
body without specifying that the rules of natural justice should be observed in exercising it, the
nature of the power would call for its observance.
304. The Solicitor General contended that the amending body, in declaring that the election
was valid, was exercising its constituent legislative power; that legislative power does not
adjudicate but only creates validity, even retrospectively, by enacting a law with that effect; that
validation is law-making; that it alters the legal position by making new law and that validation
may take place before or after a judgment. He said that by the repeal of the provisions of the
Representation of the People Act, 1951, the amending body had wiped out not only the election
petition but also the judgment of the High Court and had deprived the respondent of the right to
raise any dispute as regards the validity of the election of the appellant and, therefore, there was
no dispute to be adjudicated upon by the amending body. He also said- I think, in the alternativethat
although the law relating to election petitions and other matters connected therewith was
dispensed with in respect of the appellant, the amending
305. It is difficult to understand, when the amending body expressly excluded the operation of
all laws relating to election petition and matters connected therewith by the first part of clause (4),
what ideal norms of free and fair election it had in view in adjudging the validity of the election of
the appellant. I cannot conceive of any pre-existing ideal norms of election apart from the law
enacted by the appropriate Legislatures. If the amending body evolved new norms for adjudging
the validity of the particular election, it was the exercise of a despotic power and that would
damage the democratic structure of the Constitution.
306. Quite apart from it, there is nothing on the face of the amendment to show that the
amending body ascertained the facts of the case or applied any norms for determining the validity
of the election. I do not think that under Article 368 the amending body was competent to pass an
ordinary law with retrospective effect to validate the election. It can only amend the Constitution
by passing a law of the rank of which the Constitution is made of.
307. There is also nothing to show that the amending body validated the election with
reference to any change of the law which formed the foundation of the judgment. The cases cited
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by the Solicitor General to show that a competent Legislature has power to validate an invalid
election do not indicate that there can be a validation without changing the law which invalidated
the election. Nor do I think that a contested election can be validated without an authority
applying the new law to the facts as ascertained by judicial process. If the court which ascertained
the facts and applied the law was rendered coram non judice, the facts ascertained by it have
ceased to be facts. There are no absolute or immediately evident facts. Only by being first
ascertained through legal procedure are facts brought into the sphere of law or, we may say,
though it may sound paradoxical, that the competent organ legally created facts. The courts
perform a constitutive function in ascertaining facts. There is no fact 'in itself
308. If clause (4) was an exercise in legislative validation without changing the law which
made the election invalid, when there ought to have been an exercise of judicial power of
ascertaining the adjudicative facts and applying the law, the clause would damage the democratic
structure of the Constitution, as the Constitution visualizes the resolution of an election dispute by
a petition presented to an authority exercising judicial power. The contention that there was no
election dispute as clause (4) by repealing the law relating to election petition had rendered the
petition filed by the respondent non est, if allowed, will toll the death knell of the democratic
structure of the Constitution. If Article 329(b) envisages the resolution of an election dispute by
judicial process by a petition presented to an authority as the appropriate Legislature may by law
provide, a constitutional amendment cannot dispense with that requirement without damaging an
essential feature of democracy, viz., the mechanism fo
309. All the cases cited by the Solicitor General pertain either to legislative validation of a
void election by applying a new law to undisputed facts or to the removal of an admitted
disqualification by a law with retrospective effect.
310. In Abeyesekera v. Jayatilake, the facts were : An order in council of 1923 made
provision as to the Legislative Council in Ceylon, but reserved to His Majesty power to revoke,
alter or amend the order. The appellant, as common informer, brought an action to recover
penalties under the Order from the respondent, who he alleged had sat and voted after his seat had
become vacant under its provisions by reason of his having a pecuniary interest in a contract with
the Government. In 1928, after the action had been brought but before its trial, an amending
Order in Council was made which provided :
"If any such action or legal proceeding has been or shall be instituted, it shall be dismissed and
made void, subject to such order as to costs as the Court may think fit to make."
It also amended the Order of 1923 so as to except the officer held by the respondent from its
operation. The Privy Council held that the Order of 1928 was valid, having regard to the power
reserved by the Order of 1923, and was an effective defence to the action, although it was
retrospective in its operation and that this was no exercise of judicial power. The direction to
dismiss must be understood in the light of an earlier provision in the same Order in Council which
amended the law on which the proceeding was founded; the dismissal was thus the result of the
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change in the law and all that the later clause showed was that the change was to have
retrospective effect and govern the rights of parties even in pending proceedings. The decision
would be helpful here only if an in so far as the provision in clause (4) had followed from a change
in any rule of law.
311. The decision in Piare Dusadh v. King Emperor concerned the validation of a sentence
imposed by a special criminal court which was held to have no jurisdiction to try the case by an
order of a court. By a validation Act, the jurisdiction was conferred with retrospective effect on
the special criminal court and the sentence imposed by it was made lawful. It was held that there
was no exercise of any judicial power by the legislating authority.
312. In Kanta Kathuria v. Manak Chand Surana, the appellant, a government advocate stood
for election to the State Legislative Assembly of Rajasthan and was declared elected. The election
was challenged and the ground of challenge was that the appellant held an office of profit within
the meaning of Article 191 of the Constitution. The High Court set aside the election for that
reason. While the appeal was pending in this Court, Rajasthan Act 5 of 1969 was passed declaring
among others that the holder of the office being a member of the State Legislative Assembly; and,
by Section 2(2), the Act was made retrospective removing the appellant's disqualification
retrospectively. It was held that Act 5 of 1969 had removed the disqualification retrospectively,
that Parliament and the State Legislatures can legislate retrospectively subject to the provisions of
the Constitution, that no limitation on the powers of the Legislature to make a declaration
validating an election could be put, and that, by enacting the im
313. In State of Orissa v. Bhupendra Kumar Bose, the facts were as follows : Elections were
held for the Cuttack municipality and 27 persons were declared elected as councillors. One B,
who defeated at the elections, filed a writ petition before the High Court challenging the elections.
The High Court held that the electoral rolls had not been prepared in accordance with the
provisions of the Orissa Municipalities Act, 1950, as the age qualification had been published too
late thereby curtailing the period of claims and objections to the preliminary roll to 2 days from 21
days as prescribed; consequently, the High Court set aside the elections. The State took the view
that the judgment affected not merely the Cuttack municipality but other municipalities also.
Accordingly, the Governor promulgated an Ordinance validating the elections to the Cuttack
municipality and validating the electoral rolls prepared in respect of other municipalities.
Thereupon, B filed a writ petition before the High Court contending
314. This Court held that Section 3(1) of the Ordinance effectively removed the defects in the
electoral rolls found by the High Court by its judgment and that it successfully cured the invalidity
of the electoral roll and of the elections to the Cuttack municipality.
315. The Solicitor General also cited other decisions to show that a Legislature can validate
proceedings rendered invalid by judgment of court. As I said, they all involved substitution of new
law with retrospective effect for the old one and the basic facts were all taken to have been
admitted or not controverted. If the facts are not admitted, the Legislature cannot determine them
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except by employing judicial process. Besides, those cases being cases of legislative validation,
need not pass the test of the theory of basic structure which, I think, will apply only to
constitutional amendment.
316. Counsel for the appellant also brought to the notice of the Court certain election
validation Acts passed by the House of Commons in England. These Acts removed with
retrospective effect disqualifications of members of Parliament. In none of these cases was an
election which was being contested validated by Parliament. Nor can these instances of legislative
removal of disqualification furnish any assistance to this Court for the reason that in England there
is no theory of basic structure operating as a fetter on the power of Parliament.
317. It was argued for the respondent that if the amending body exercised judicial power and
held the election of the appellant valid, its act was unconstitutional also on the ground it damaged
another basic structure of the Constitution, namely, the doctrine of separation of powers.
318. The major problem of human society is to combine that degree of liberty without which
law is tyranny with that degree of law without which liberty becomes licence; and, the difficulty
has been to discover the practical means of achieving this grand objective and to find the
opportunity for applying these means in the ever-shifting tangle of human affairs. A large part of
the effort of man over centuries has been expended in seeking a solution of this great problem. A
region of law, in contrast to the tyranny of power, can be achieved only through separating
appropriately the several powers of government. If the law-makers should also be the constant
administrators and dispensers of law and justice, then, the people would be left without a remedy
in case of injustice since no appeal can lie under fiat against such a supremacy. And, in this
age-old search of political philosophers for the secret of sound government, combined with
individual liberty, it was Montesquieu who first saw the light. He was the f
319. There can be no liberty where the legislative and executive powers are united in the same
person or body of magistrates, or, if the power of judging be not separated from the legislative
and executive powers. Jefferson said :
All powers of government- legislative, executive and judicial- result in the legislative body.
The concentration of these powers in the same hands is precisely the definition of despotic
government. It will be no alleviation that these powers will be exercised by a plurality of hands
and not by a single person. One hundred and seventy-three despots would surely be as oppressive
as one.
And, Montesquieu's own words would show that where the whole power of one department is
exercised by the same hands which possess the whole power of another department, the
fundamental principles of a free Constitution are subverted. In Federalist No. 47, James Madison
suggests that Montesquieu's doctrine did not mean that separate departments might have "not
partial agency in or no control over the acts of each other. " His meaning was, according to
Madison, no more than that one department should not possess the whole power of another.
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320. The Judiciary, said the Federalist, is beyond comparison the weakest of the three
departments of power. It has no influence over either the sword or the purse; no direction either
of the strength or of the wealth of the society and can take no active resolution whatever. It may
truly be said to have neither force nor will, but merely judgment. Of the three powers
Montesquieu said, the Judiciary is in some measure next to nothing. If he realised the relative
weakness of the Judiciary at the time he wrote, it is evidence of his vision that he appreciated the
supreme importance of its independence. There is no liberty, he said, if the judicial power to be
separated from the legislative and executive.
321. But this doctrine which is directed against the concentration of these powers in the same
hand has no application as such when the question is whether an amending body can exercise
judicial power. In other words, the doctrine is directed against the concentration of these
sovereign powers in one or other organ of Government. It was not designed to limit the power of
a constituent body.
322. Whereas in the United States of America and in Australia, the judicial power is vested
exclusively in courts, there is no such exclusive resting of judicial power in the Supreme Court of
India and the courts subordinate to it. And if the amending body exercised judicial power in
adjudging the validity of the election, it cannot be said that by that act, it has damaged a basic
structure of the Constitution embodied in the doctrine of separation of powers. Even so, the
question will remain whether it could exercise judicial power without passing a law enabling it to
do so. As I said, the exercise of judicial power can result only in a judgment or sentence. The
constituent power, no doubt, is all-embracing, comprising within its ambit the judicial, executive
and legislative powers. But if the constituent power is a power to frame or amend a Constitution,
it can be exercised only by making laws of a particular kind.
323. The possession of power is distinct from its exercise. The possession of legislative power
by the amending body would not entitle it to pass an ordinary law, unless the Constitution is first
amended by passing a constitutional law authorizing it to do so. In the same way, the possession
of judicial power by the amending body would not warrant the exercise of the it to do so. Until
that is done, its potential judicial power would not become actual. Nobody can deny that by
passing a law within its competence, Parliament can vest judicial power in any authority for
deciding a dispute or vest a part of that power in itself for resolving a controversy, as there is no
exclusive vesting of judicial power in courts by the Constitution. The doctrine of separation of
powers which is directed against the concentration of the whole or substantial part of the judicial
power in the Legislature or the Executive would not be a bar to the vesting of such a power in
itself. But, until a law is passed enabling it to do so
324. Lord Coke objected to the exercise of judicial power by James I for pragmatic reasons.
Much of what Lord Coke said can be applied to Parliament when it seeks to exercise that power
in its constituent capacity.
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325. A sovereign in any system of civilized jurisprudence is not like an oriental despot who
can do anything he likes, in any manner he likes and at any time he likes. That the Nizam of
Hyderabad had legislative, judicial and executive powers and could exercise any one of them by a
firman has no relevance when we are considering how a pro-sovereign- the holder of the
amending power- in a country governed by a Constitution should function. Such a sovereign can
express 'himself' only by passing a particular kind of law; and not through sporadic acts.'He'
cannot pick and choose cases according to his whim and dispose them of by administering
'cadi-justice'; nor can the amending body, as already noticed, pass an ordinary law, as Article 368
speaks of the constituent power of amending by way of addition, variation or repeal, any
provision of the Constitution in accordance with the procedure laid down in that article. An
ordinary law can be passed by it only after amending the provisions of the Constitution auth
326. If the basic postulate that a sovereign can act only by enacting laws is correct, then that is
a limitation upon his power to do anything he likes. If I may rephrase the classical statement of Sir
Owen Dixon : The law that a sovereign can act only by law is supreme but as to what may be
done by a law so made, the sovereign is supreme over that law. Of course, this is subject to the
theory of basic structure. In other words, even though a sovereign can act only by making law,
the law he so makes may vest the authority to exercise judicial power in himself; without such law
he cannot exercise judicial power.
327. The result of the discussion can be summed up as follows : Our constitution, by Article
329(b) visualizes the resolution of an election dispute on the basis of a petition presented to such
authority and in such manner as the appropriate Legislature may, by law, provide. The nature of
the dispute raised in an election petition is such that it cannot be resolved except by judicial
process, namely, by ascertaining the facts relating to the election and applying the pre-existing
law; when the amending body held that the election of the appellant was valid, it could not have
done so except by ascertaining the facts by judicial process and by applying the law. The result of
this process would not be the enactment of constitutional law but the passing of a judgment or
sentence. The amending body, though possessed of judicial power, had not competence to
exercise it, unless it passed a constitutional law enabling it to do so. If, however, the decision of
the amending body to hold the election of the appellant v
328. Then I come to the argument of Counsel that equality is a basic structure of the
Constitution and that that has been damaged or destroyed by clause (4).
329. The Solicitor General submitted that the majority in Bharati's case (supra) did not hold
that Article 14 pertains to the basic structure, that apart from Article 14, there is no principle of
equality which is a basic structure of the Constitution and that it is not a chameleon-like concept
which changes its colour with the nature of the subject-matter to which it is applied.
330. The majority in Bharati's case (supra) did not hold that Article 14 pertains to the basic
structure of the Constitution. The majority upheld the validity of the first part of Article 31-C; this
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would show that a constitutional amendment which takes away or abridges the right to challenge
the validity of an ordinary law for violating the fundamental right under that article would not
destroy or damage the basic structure. The only logical basis for supporting the validity of Articles
31-A, 31-B and the first part of 31-C is that Article 14 is not a basic structure.
331. Counsel for the respondent, however, submitted that even if Article 14 does not pertain
to basic structure, equality is an essential feature of democracy and rule of law and that clause (4),
by dispensing with the application of the law relating to election petition and matters connected
therewith to the appellant and another has made an unreasonable distinction between persons
similarly situated and has thereby damaged or destroyed that essential feature, and therefore, the
clause is bad. He said that in so far as laws are general instructions to act or refrain from acting in
certain ways in specified circumstances enjoined upon persons of a specified kind, they enjoin
uniform behaviour in identical cases; that to fall under a law is pro tanto to be assimilated to a
single pattern; and that a plea for rule of law in this sense is, in essence, a plea for life in
accordance with laws as opposed to other standards, namely, the ad hoc dispensation from its
operation. He argued that if some persons, for no
332. Democracy proceeds on two basic assumptions : (1) popular sovereignty in the sense
that the country should be governed by the representatives of the people; that all power came
from them; at their pleasure and under their watchful supervision it must be held; and (2) that
there should be equality among the citizens in arriving at the decisions affecting them.
333. Today, it is impossible to conceive of a democratic republican form of government
without equality of citizens. It is true that in the republics of Athens and Rome there were slaves
who were regarded as chattels. And, even in the United States of America, there was a republic
even before the Negroes were enfranchised. Our Constitution envisages the establishment of a
democratic republican form of government based on adult suffrage.
334. Equality is a multi-coloured concept incapable of a single definition. It is a notion of
many shades and connotations. The preamble of the Constitution guarantees equality of status and
of opportunity. They are nebulous concepts. And I am not sure whether they can provide a solid
foundation to rear a basic structure. I think the types of equality which our democratic republic
guarantees are all subsumed under specific articles of the Constitution like Articles 14, 15, 16, 17,
25 etc., and there is no other principle of equality which is an essential feature of our democratic
polity.
335. In the opinion of some of the judges constitution the majority in Bharati's case (supra),
rule of law is a basic structure of the Constitution apart from democracy.
336. The rule of law postulates the pervasiveness of the spirit of law throughout the whole
range of government in the sense of excluding arbitrary official action in any sphere.'Rule of law'
is an expression to giver reality to something which is not readily expressible. That is why Sir Ivor
Jennings said that it is an unruly horse. Rule of law is based upon the liberty of the individual and
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has as its object, the harmonizing of the opposing notions of individual liberty and public order.
The notion of justice maintains the balance between the two; and justice has a variable content.
Dicey's formulation of the rule of law, namely,
"the absolute supremacy or predominance of regular law, as opposed to the influence of
arbitrary power, excluding the existence of arbitrariness, of prerogative, even of wide
discretionary authority on the part of the government"
has been discarded in the later editions of his book. That is because it was realized that it is
not necessary that where law ends, tyranny should begin. As Culp Davis said, where the law ends,
discretion begins and the exercise of discretion may mean either beneficence or tyranny, either
justice or injustice, either reasonableness or arbitrariness. There has been no government or legal
system in world history which did not involve both rules and discretion. It is impossible to find a
government of laws alone and not of men in the sense of eliminating all discretionary powers. All
governments are governments of laws and of men. Jerome Frank has said :
"This much we can surely say : For Aristotle, from whom Harrington derived the notion of a
government of laws and not of men, that notion was not expressive of hostility to what today we
call administrative discretion. Nor did it have such a meaning for Harrington".
733. Another definition of rule of law has been given by Friedrich A. Hayek in his books :
"Road of Serfdom" and "Constitution of Liberty". It is much the same as that propounded by the
Franks Committee in England :
"The rule of law stands for the view that decisions should be made by the application of
known principles or laws. In general such decisions will be predictable, and the citizen will know
where he is. On the other hand there is what is arbitrary. A decision may be made without
principle, without any rules. It is therefore unpredictable, the antithesis of a decision taken in
accordance with the rule of law".
338. This Court said in Jaisinghani v. Union of India that the rule of law from one point of
view means that decisions should be made by the application of known principles and rules, and,
in general, such decisions should be predictable and the citizen should know where he is.
339. This exposition of the rule of law is only the aspiration for an ideal and it is not based on
any down-to-earth analysis of practical problems with which a modern Government is confronted.
In the world of action, this ideal cannot be worked out and that is the reason why this exposition
has been rejected by all practical men.
340. If it is contrary to the rule of law that discretionary authority should be given to
government departments or public officers, then there is no rule of law in any modern State. A
judge who passes a sentence has no other guidance except a statute which says that the person
may be sentenced to imprisonment for a term which may extend to, say, a period of ten years. He
must exercise considerable discretion. The High Courts and the Supreme court overrule their
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precedents. What previously announced rules guide them in laying down the new precedents ? A
court of law decides a case of first impression; no statute governs, no precedent is applicable. It is
precisely because a judge cannot find a previously announced rule that he becomes a legislator to
a limited extent. All these would show that it is impossible to enunciate the rule of law which has
as its basis that no decision can be made unless there is a certain rule to govern the decision.
341. Leaving aside these extravagant versions of rule of law, there is a genuine concept of rule
of law and that concept implies equality before the law or equal subjection of all classes to the
ordinary law. But, if rule of law is to be a basic structure of the Constitution, one must find
specific provisions in the Constitution embodying the constituent elements of the concept. I
cannot conceive of rule of law as a twinkling star up above the Constitution. To be a basic
structure, it must be a terrestrial concept having its habitat within the four corners of the
constitution. The provisions of the Constitution were enacted with a view to ensure the rule of
law. Even if I assume that rule of law is a basic structure, it seems to me that the meaning and the
constituent elements of the concept must be gathered from the enacting provisions of the
Constitution. The equality aspect of the rule of law and of democratic republicanism is provided in
Article 14. May be, the other articles referred to do the same duty
342. Das, C.J. said that Article 14 combines the English doctrine of the rule of law and the
equal protection clause of the Fourteenth Amendment to the American Federal Constitution. In
State of Bengal v. Anwar Ali Sarkar, Patanjali Sastri, C.J. observed that the first part of the article
which has been adopted from the Irish Constitution, is a declaration of equality of the civil rights
of all persons within the territories of India and thus enshrines what American judges regard as the
"basic principle of republicanism" and that the second part which is a corollary of the first is based
on the last clause of the first section of the Fourteenth Amendment of the American Constitution.
So, the concept of equality which is basic to rule of law and that which is regarded as the most
fundamental postulate of republicanism are both embodied in Article 14. If, according to the
majority in Bharati's case (supra), Article 14 does not pertain to basic structure of the
Constitution, which is the other principle of equa
343. I think clause (4) is bad for the reasons which I have already summarized. Clause (1) to
(3) of Article 329-A are severable but I express no opinion on their validity as it is not necessary
for deciding this case.
344. Then the question is, whether the Representation of the People (Amendment) Act, 1974,
and the Election Laws (Amendment) Act, 1975, are liable to be challenged for the reason that
they damage or destroy a basic structure of the Constitution. Counsel for the respondent
submitted that, if, by a constitutional amendment, the basic structure of the Constitution cannot be
destroyed or damaged, it would be illogical to assume that an ordinary law passed under a power
conferred by that instrument can do so and since these Acts damage the concept of free and fair
election, the Acts were bad.
345. I think the inhibition to destroy or damage the basic structure by an amendment of the
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Constitution flows from the limitation on the power of amendment under Article 368 read into it
by the majority in Bharati's case (supra) because of their assumption that there are certain
fundamental features in the Constitution which its makers intended to remain there in perpetuity.
But I do not find any such inhibition so far as the power of Parliament or State Legislatures to
pass laws is concerned. Article 245 and 246 give the power and also provide the limitation upon
the power of these organs to pass laws. It is only the specific provisions enacted in the
Constitution which could operate as limitation upon that power. The preamble, though a part of
the Constitution, is neither a source of power nor a limitation upon that power. The preamble sets
out the ideological aspirations of the people. The essential features of the great concepts set out in
the preamble are delineated in the various provisions of the Con
346. I do not think that an ordinary law can be declared invalid for the reason that it goes
against the vague concepts of democracy; justice, political, economic an social; liberty of thought,
belief and expression; or equality of status and opportunity, or some invisible radiation from them.
".... (N) o political terms have been so subjected to contradictory definitions as 'democracy'
and 'democratic' since it has become fashionable and profitable for every and any State to style
itself in this way. The Soviet Union and communist States of Eastern Europe, the Chinese
People's Republic, North Korea and North Vietnam all call themselves democracies. So does
Nasser's Egypt; so does General Stoessner's Paraguay; so did Sukarno's Indonesia. Yet, if
anything is clear, it is that these States do not all meet the same definition of democracy".
Definitions are important, for, they are responsible in the last analysis for our image of
democracy. The question is not only what does the word 'democracy' mean but also what is the
thing. And, when we try to answer this latter query, we discover that the thing does not
correspond to the word. So, although 'democracy' has a precise literal meaning, that does not
really help us to understand what an actual democracy is. In the real world, R. A. Dahl has
pointed out that, democracies are 'polyarchies'. The term democracy has not only a descriptive or
denotative function but also a normative and persuasive function. Therefore, the problem of
defining democracy is twofold, requiring both a descriptive and prescriptive function. To avoid
pitfalls, it is necessary to keep in mind two things- first, that a firm distinction should be made
between the is and the ought of democracy, and, second, that the prescriptive and the descriptive
definitions of democracy must not be confused, because the democratic ideal doe
347. Nor can it be tested on the touchstone of justice. The modern Pilate asks : What is
justice? and stays not for an answer. To Hans Kelsen, justice is an irrational ideal, and regarded
from the point of rational cognition, he thinks there are only interests and hence conflict of
interest. Their solution, according to him, can be brought about by an order that satisfies one
interest at the expense of the other or seeks to achieve a compromise between opposing interests.
Mr. Allen has said that the concept of social justice is vague and indefinite. Liberty of thought,
expression, belief, faith and worship are not absolute concepts. They are emotive words. They
mean different things to different people. Equality of status and of opportunity are concepts laden
with emotional overtones. In their absoluteness they are incapable of actual realisation. The
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enacting provisions in the body of the Constitution alone give concrete shape to these ideas and it
is on the basis of these provisions that the validity of or
348. The democracy which our Constitution-makers established is based on the representation
of the people in the law-making organs. The method by which this representation has to be
effectuated has been provided in the Constitution. Part XV of the Constitution deals with the
topic of elections. Article 326 provides that elections to the House of the People and to the
legislative assemblies of States should be on the basis of adult suffrage. Articles 327 and 328
provide for making of laws with respect to all matters relating to, or in connection with, elections
to either House of Parliament or to the House or either House of the Legislature of a State
including the preparation of electoral rolls, the delimitation of constituencies and all other matters
necessary for securing the due constitution of such House or Houses. The validity of any law
relating to the delimitation of constituencies or the allotment of seats to the constituencies, made
or purporting to be made under Article 327 or Article 328 shall not
349. This would indicate that the constitution has entrusted the task of framing the law
relating to election to Parliament, and, subject to the law made by Parliament, to the State
Legislatures, An important branch of the law which sounds in the area of free and fair election,
namely, delimitation of constituencies and allotment of seats to such constituencies is put beyond
the cognizance of court. When it is found that the task of writing the legislation on the subject has
been committed to Parliament and State Legislatures by the Constitution, is it competent for a
court to test its validity on the basis of some vague norms of free and fair election? I think not. As
I said, like other laws made by Parliament or State Legislatures, the laws made under Articles 327
and 328 are liable to be tested by Part III of the Constitution or any other provision of the
Constitution; but it is difficult to see how these laws could be challenged on the ground that they
do not conform to some ideal notions of free and fai
350. The doctrine of the 'spirit' of the Constitution is a slippery slope. The courts are not at
liberty to declare an Act void, because, in their opinion, it is opposed to the spirit of democracy or
republicanism supposed to pervade the Constitution but not expressed in words. When the
fundamental law has not limited, either in terms or by necessary implication, the general powers
conferred upon the Legislature, we cannot declare a limitation under the notion of having
discovered some ideal norm : of free and fair election.
351. Cooley has observed that courts are not at liberty to declare statutes void because they
appear to the minds of the judges to violate fundamental principles of republican government,
unless it shall be found that those principles are placed beyond legislative encroachment by the
Constitution. The principles of democratic republican government are not a set of inflexible rules;
and unless they are specifically incorporated in the Constitution, no law can be declared bad
merely because the Court thinks that it is opposed to some implication drawn from the concept.
352. Counsel for the respondent relied upon the observations of Sikri, C.J. at p. 216 (SCC p.
405, para 475), Shelat and Grover, JJ. at p. 292 (SCC p. 463, para 608). Hegde and Mukherjea,
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JJ. at p. 335 (SCC p. 511, para 742) and Jaganmohan Reddy, J. at p. 556 (SCC p. 667, para
1212) in their judgments in Bharati's case (supra) in support of his contention that when these
Acts were put in the Ninth Schedule by the constitutional amendment, their provisions became
vulnerable to attack if they or any one of them damaged or destroyed the basic features of
democracy or republicanism.
353. Sikri, C.J. has said that the constitution Twenty-ninth Amendment Act, 1971, is
ineffective to protect the impugned Acts there if they abrogate or take away fundamental rights.
This would not show that the learned Chief Justice countenanced any challenge to an Act on the
ground that the basic structure of the Constitution has been damaged or destroyed by its
provisions not constituted by the fundamental rights abrogated or taken away. In other words, if
by taking away or abridging the fundamental rights, the basic structure of the Constitution is
damaged or destroyed, then, according to the learned Chief Justice, the legislation would be
vulnerable on that score, even though it is put in the Ninth Schedule by a constitutional
amendment. But it would not follow that an Act so put can be challenged for a reason not
resulting from the taking away or abrogation of the fundamental right. To put it differently, even
though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would
354. Shelat and Grover, JJ. have said in their judgment that the Twenty-ninth Amendment is
valid, but the question whether the Acts included in the Ninth Schedule by that amendment or any
provision of those Acts abrogates any of the basic elements of the constitutional structure or
denudes them of their identity will have to be examined when the validity of those Acts comes up
for consideration. Similar observations have been made by Hegde and Mukherjea, JJ. and by
Jaganmohan Reddy, J. Khanna, J. only said that the Twenty-ninth Amendment was valid.
355. It is rather strange that an Act which is put in the Ninth Schedule with a view to obtain
immunity from attack on the ground that the provisions thereof violate the fundamental rights
should suddenly become vulnerable on the score that they damage or destroy a basic structure of
the Constitution resulting not from the taking away or abridgment of the fundamental rights but
for some other reason.
356. There is no support from the majority in Bharati's case (supra) for the proposition
advanced by Counsel that an ordinary law, if it damages or destroys basic structure should be held
bad or for the proposition that a constitutional amendment putting an Act in the Ninth Schedule
would make the provisions of the Act vulnerable for the reason that they damage or destroy a
basic structure constituted not by the fundamental rights taken away or abridged but some other
basic structure. And, in principle, I see no reason for accepting the correctness of the proposition.
357. The Constitution-makers eschewed to incorporate the 'due process' clause in that
instrument apprehending that the vague contours of that concept will make the court a third
chamber. The concept of a basic structure as brooding ominpresence in the sky apart from the
specific provisions of the Constitution constituting it is too vague and indefinite to provide a
yardstick to determine the validity of an ordinary law.
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358. So if it be assumed that these election laws amendment Acts, even after they were put in
the Ninth Schedule by constitutional amendment remained open to attack for contravention, if
any, of the fundamental rights, these Acts would not be open to attack on the ground that their
provisions destroyed or damaged an essential feature of democracy, namely, free and fair election.
The Acts remain part of the ordinary law of the land. They did not attain the status of
constitutional law merely because they were put in the Ninth Schedule. The utmost that can be
said is, as I indicated, that even after putting them in the Ninth Schedule, their provisions would
be open to challenge on the ground that they took away or abrogated all or any of the
fundamental rights and therefore damaged or destroyed a basic structure if the fundamental rights
or right taken away or abrogated constitute or constitutes a basic structure.
359. Counsel for the respondent then contended that retrospective operation has been given to
the provisions of these Acts and that that would destroy or damage an essential feature of
democracy viz, free and fair elections. The argument was that if one set of laws existed when an
election was held and the result announced, you cannot thereafter substitute another set of laws
and say that those laws must be deemed to have been in operation at the time when the election
was held and the result announced, as that would lead to inequality, injustice and unfairness.
360. Retrospective operation of law in the field of election has been upheld by this Court [see
Kanta Kathuria v. Manak Chand (supra)]. Retrospective operation of any law would cause
hardship to some persons or other. This is inevitable; but that is no reason to deny to the
Legislature the power to enact retrospective law. In the case of a law which has retrospective
effect, the theory is that the law was actually in operation in the past and if the provisions of the
Acts are general in their operation, there can be no challenge to them on the ground of
discrimination or unfairness merely because of their retrospective effect. In other words, if an Act
cannot be challenged on the ground that its provisions are discriminatory or unreasonable if it is
prospective in operation, those provisions cannot be attacked on these grounds merely because
the provisions were given retrospective effect, unless there are special circumstances. I see no
such special circumstances here.
361. I therefore hold that these Acts are not liable to be challenged on any of the grounds
argued by Counsel.
362. Counsel for the respondent submitted that the session of Parliament in which the Election
Laws Amendment Act, 1975 and the Thirty-ninth amendment to the Constitution were passed
was not properly convened and therefore the amendments were invalid.
363. The argument was that a number of members of the two Houses of Parliament were
illegally detained by executive orders before the summoning of the two Houses and that was made
possible by the President- the authority to summon the two Houses- making an order under
Article 359 of the Constitution on June 27, 1975, which precluded these members from moving
the court and obtaining release from illegal detention and attending the session. In effect, the
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contention of Counsel was that the authority to summon Parliament effectually prevented by its
order made under Article 359, those members who were illegally detained from attending the
session and, as the composition of the session was unconstitutional, any measure passed in the
session would be bad. Reliance was placed by Counsel upon the decision in A. Nambiar v. Chief
Secretary in support of this proposition.
364. The question which fell for consideration in that case was whether, when a member of
Parliament was convicted for a criminal offence and was undergoing a sentence in pursuance
thereof, he has an unconditional right to attend a Session of Parliament. This Court held that he
had no privilege which obliged the court to release him from custody in order to enable him to
attend the session. This decision has no relevance to the point in controversy here.
365. In England, a member of Parliament who is convicted of a criminal offence and is
undergoing sentence in pursuance to his conviction has no right or privilege to be released from
custody for attending parliament. The very same principle will apply in the case of a detention
under an emergency regulation.
366. In England, it was taken as settled that parliamentary roll is conclusive of the question
that a bill has been passed by both Houses of Parliament and has received royal assent and no
court can look behind the roll as such an inquiry would be an interference with the privilege of
Parliament. Lord Campbell said in Edinburgh & Dalkeith Ry. v. Wauchope :
"I think it right to say a work or two upon the point that has been raised with regard to an Act
of Parliament being held inoperative by a court of justice because the forms prescribed by the two
Houses to be observed in the passing of a Bill have not been exactly followed...... I cannot but
express my surprise that such a notion should have prevailed. There is no foundation for it. All
that a court of justice can do is to look to the Parliamentary Roll. If from that it should appear
that a Bill has passed both Houses and received the Royal Assent, no court of justice can inquire
into the mode in which it was introduced in Parliament, nor into what was done previous to its
introduction, or what passed in Parliament during its progress in its various stages through both
Houses".
367. It has since been said that parliamentary roll is not conclusive, that when the jurisdiction
of a court is invoked, it has power to determine whether everything necessary has been done for
the production of a valid statute, that rule of law requires that the court should determine legal
questions raised before it and if its jurisdiction is properly invoked, it has to answer the question
whether the document is a statute duly enacted by a Parliament. The view as propounded has been
summarized as follows :
" (1) Sovereignty is a legal concept : the rules which identify the sovereign and prescribe its
composition and functions are logically prior to it.
(2) there is a distinction between rules which govern, on the one hand, (a) the composition,
and (b) the procedure, and on the other hand (c) the area of power, of a Sovereign Legislature.
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(3) the courts have jurisdiction to question the validity of an alleged Act of Parliament on
grounds 2(a) and 2(b), but not on ground 2(c) ".
The reasons for the view are these : when the purported sovereign is anyone but a single
actual person, the designation of him must include the statement of rules for the ascertainment of
his will, and these rules, since their observance is a condition of the validity of his legislation, are
rules of law logically prior to him. The extraction of a precise expression of will from a
multiplicity of human beings is, despite all the realists say, an artificial process and one which
cannot be accomplished without arbitrary rules. It is therefore an incomplete statement to say that
in a State such and such an assembly of human beings is sovereign. It can only be sovereign when
acting in a certain way prescribed by law. At least some rudimentary manner and form is
demanded of it : the simultaneous incoherent cry of a rabble, small or large, cannot be law, for it
is unintelligible.
368. Sir Frederick Pollock has said that supreme legal power is in one sense limited by the
rules which prescribe how it shall be exercised. Even if no constitutional rule places a limit or
boundary to what can be done by sovereign legal authority, the organs which are to exercise it
must be delimited and defined by rules.
369. So, the questions to be asked are : how is Parliament composed ? How does Parliament
express its will ?
370. The rules which identify the sovereign are as important as the institution so identified. If
this is so, it is open to the court to see whether a Parliament has been properly summoned in order
to decide the question whether a measure passed by it answers the description of a statute or an
Act and that parliamentary roll, if such a thing exists, is not conclusive.
371. As to parliamentary roll, Heuston has said :
"The 'Parliamentary Roll', whatever exactly it may have been, disappeared in England a
century ago, though even good authors sometimes write as if it still exists. Since 1849 there has
been no 'Roll', simply two prints of the Bill on durable vellum by Her Majesty's Stationery Office,
which are signed by the Clerk of the Parliaments and regarded as the final official copies. One is
preserved in the Public Record Office and one in the library of the House of Lords".
372. Article 122(1) provides that the validity of any proceedings in Parliament shall not be
called in question on the ground of any alleged irregularity of procedure. So, even if there is any
irregularity in the procedure in the passing of the statute, it is not open to a court to question its
validity. But this is distinct from the question whether the two Houses have been properly
summoned and the composition of the Session was proper.
373. The Solicitor General said that if a member is excluded from participating in the
proceedings of a House, that is a matter concerning the privilege of that House as the grievance is
one of exclusion from the proceedings within the walls of the House. And, in regard to the right
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to be exercised within the walls of the House, the House itself is the judge. He referred to May's
Parliamentary Practice (18th Ed., pp. 82-83) and also to Bradlaugh v. Gossett in this connection.
He further said that if an outside agency illegally prevents a member from participating in the
proceedings of the House, the House, the House has power to secure his presence in the House
and cited May's Parliamentary Practice (18th Ed., pp. 92-95) to support the proposition.
374. These passages throw no light on the question in issue here. Ever since the decision of
Holt, C.J. in Ashby v. White it has been settled that privilege is part of the common law and
cannot affect rights to be exercised outside or independently of the House. Regularity of internal
proceedings is one thing; the constitutional rights of the subject are another; and it is the latter
which are in issue in a case where the question is whether the document is a statute.
375. Article 85(1) provides that the President shall from time to time summon each House of
Parliament to meet at such time and place as he thinks fit, but six months shall not intervene
between its last sitting in one session and the date appointed for its first sitting in the next session.
376. The detention of these members of Parliament was by statutory authorities in the
purported exercise of their statutory power. It would be strange if a statutory authority, by an
order which turns out to be illegal, could prevent the Houses of Parliament from meeting as
enjoined by Article 85. If a statutory authority passes an illegal order of detention and thus
prevents a member of Parliament from attending the House, how can the proceedings of
Parliament become illegal for that reason ? It is the privilege of Parliament to secure the
attendance of persons illegally detained. But what would happen if the privilege is not exercised
by Parliament ? I do not think that the proceedings of Parliament would become illegal for that
reason.
377. The suspension of the remedy for the enforcement of fundamental rights by the order of
the President under Article 359 is dependent upon a valid proclamation of emergency under
Article 352. If a situation arose which authorized the President to issue a proclamation under
Article 352, he could also suspend, under Article 359, the remedy to move the court to enforce
the fundamental rights. These are the constitutional functions of the President and unless it is
established that the proclamation made by the President under Article 352 or the suspension under
Article 359 of the remedy for enforcement of fundamental rights is unconstitutional, it is
impossible to hold that the President has, in any way, illegally prevented the release of these
members from the supposed illegal detention so as to make a session of Parliament
unconstitutional in consequence of the inability of those members to attend the session. In other
words, the President, in performing his constitutional function under these articles has
378. Counsel for the respondent submitted that it is immaterial when a candidate committed a
corrupt practice- whether it was before or after he became a candidate- and that an election would
be set aside even if a person committed the corrupt practice before he became a candidate.
Section 79(b) of the Representation of the People Act, 1951, defined the word 'candidate' as
follows :
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"'candidate' means 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".
Clause 7 of the Election Laws (Amendment) Act, 1975, substituted the present definition in
Section 79(b) which reads :
"'candidate' means a person who has been or claims to have been duly nominated as a
candidate at an election".
379. In support of the proposition that an election can be set aside even if a person has
committed corrupt practice of bribery before he became a candidate, Counsel Cited Halsbury's
Laws of England, 3rd Ed., Volume 14, pages 222 (paragraph 386) and 218 (paragraph 380).
380. These paragraphs state that in order to constitute the offence of bribery, it does not
matter how long before an election a bribe is given, provided that the bribe is operative at the time
of the election, and that, time is material only when considering the question of evidence.
381. Counsel further said that under Section 100 of the Representation of the People Act,
1951, an election is liable to be set aside if it is found under clause (b) of sub-section (1) of that
section that a returned candidate has committed corrupt practice; that ex hypothesi, a returned
candidate cannot commit a corrupt practice, and therefore, it is not the description of a person as
a returned candidate that is material. He argued that if in Section 100(1) (b) the word 'returned
candidate' is used not with the idea of indicating that a person should have committed corrupt
practice after he became a returned candidate, there is no reason to think that the word 'candidate'
in Section 123(7) has been used to show that the corrupt practice therein mentioned should have
been committed after a person has become a 'candidate' in order that the election of the candidate
might be set aside.
382. There can be no doubt that Section 100(1) (b), when it speaks of commission of corrupt
practice by a returned candidate, it can only mean commission of corrupt practice by a candidate
before he became a returned candidate. Any other reading of the sub-section would be absurd.
But there is no such compulsion to read the word 'candidate' in Section 123(7) in the same
manner. It is the context that gives colour to a word. A word is not crystal clear. Section 79 of
the Act indicates that the definitions therein have to be read subject to the context.
383. The Legislature must fix some point of time before which a person cannot be a
'candidate' in an election, and, a wide latitude must be given to the Legislature in fixing that point.
In Union of India v. M/s. Parameswaran March Works, this Court observed : (SCC p. 311, para
10)
"The choice of a date as a basis for classification cannot always be dubbed as arbitrary even if
no particular reason is forthcoming for the choice unless it is shown to be capricious or whimsical
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in the circumstances. When it is seen that a line or point there must be, and there is no
mathematical or logical way of fixing it precisely, the decision of the Legislature or its delegate
must be accepted unless we can say that it is very wide of the reasonable mark. See Louisville Gas
Co. v. Alabama Power Co. per Justice Holmes".
384. The learned Chief Justice has, in his judgment, referred to the relevant English statutes
and the decisions of the English courts bearing on this point and has pointed out the difference
between the English law and the Indian law. I do not consider it necessary to cover the same
ground. I agree with his conclusion on the point.
385. I would therefore hold that even if it be assumed that the finding of the High Court that
the appellant obtained or procured the assistance of Shri Yashpal Kapur during the period from
January 7 to 24, 1971, is correct, the appellant shall not be deemed to have committed corrupt
practice under Section 123(7) of the Representation of the People Act, 1951, as she became a
candidate only on February 1, 1971. The learned chief Justice has also dealt with the contention
urged by Counsel for respondent that Section 8(b) of the Election Laws amendment Act, 1975
suffers from the vice of excessive delegation and is arbitrary. I agree with his reasoning for
repelling the same.
386. There can be no dispute that if the Election Laws Amendment Act, 1975, is valid, the
appeal has to be allowed. I would, therefore, set aside the findings of the High Court against the
appellant and allow the appeal without any order as to costs. In the cross appeal, the only
question raised was about the correctness of the finding of the High Court that the appellant has
not exceeded the prescribed limit of election expense. For the reasons given by Khanna, J. in his
judgment, I hold that the finding of the High Court on this issue was correct. In this view, I have
no occasion to reach the other question argued. I would dismiss the cross appeal without any
order as to costs.
387. BEG, J. (concurring).- There are two Election Appeals Nos. 887 and 909 of 1975,
before us under Section 116A of the Representation of the People Act of 1951 (hereinafter
referred to as 'the Act'). They are directed against decisions on different issues contained in the
same judgment of a learned Judge of the Allahabad High Court allowing an election petition filed
by Shri Raj Narain (hereinafter referred to as the 'Election-Petitioner'), a defeated candidate at the
election held in February, 1971, for the membership of the Lok Sabha or the House of the People,
against Shrimati Indira Nehru Gandhi, the Prima Minister of India (hereinafter referred to as 'the
Original Respondent'). The election-petitioner is the respondent in Appeal No. 887 of 1975 filed
by the original respondent. He is the appellant in Appeal No. 909 of 1975 where the original
respondent is the contesting respondent.
388. Before the election case, instituted on April 24, 1971, could be decided by the trial
Court, an explanation was added to Section 77(1) of the Act. It had some bearing on questions
relating to the expenses incurred on the original respondent's election, sought to be raised by the
election-petitioner, but, on findings of fact recorded by the trial Court, it became immaterial for
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the merits of the case and would continue to be that so long as the election-petitioner is unable to
dislodge the trial Court's findings on election expenses. Other amendments were made by the
Election Laws (amendment) Act No. 40 of 1975 (hereinafter referred to as the 'Act of 1975'),
notified on August 6, 1975, after the decision of the case by the learned Judge of the Allahabad
High Court on June 12, 1975 and after the filing of the appeals before us. These amendments deal
directly with several questions decided by the Allahabad High Court which were pending
consideration before this Court. Finally, came the Constitution (Thirty
389. It was submitted by the learned Counsel for the original respondent, in his opening
address, that Section 4 of the Thirty-ninth Amendment, adding clause (4) to Article 329-A of the
Constitution, meant that Parliament itself, acting in its constituent capacity, had taken the case in
hand and had, after applying its own standards, decided it in favour of the original respondent so
that the jurisdiction of this Court to go into the merits of the case was ousted by clause (4), read
with clauses (5) and (6), sought to be added to Article 329-A of the Constitution. It was
submitted by him that each one of the amendments of the Act was aimed at removing genuine
uncertainties or doubts about what the law was so that it may be brought into line with what it
had been previously understood to be as declared by this Court, or, in any case, with what
Parliament, correctly exercising its unquestionable law-making powers, thought that it should be.
390. The constantly recurring and vehemently pressed theme of the arguments of the learned
counsel for the election-petitioner was that the context and the contents of the Acts of 1974 and
1975, and, after that, of Section 4 of the Thirty-ninth Amendment, clearly indicated that the whole
object of the Acts of 1974 and 1975 and of the constitutional amendment was an oblique one : to
deprive the election-petitioner of the remedies he had under the law against an election vitiated by
corrupt practices, and of the benefits of a decision of the High Court in his favour by taking away
its grounds and then the jurisdiction of courts, which existed at the time of the Thirty-ninth
Amendment, to deal with the case so that this case may not, in any event, terminate in favour of
the election-petitioner. It was repeatedly suggested by the learned Counsel for the
election-petitioner, throughout his arguments, that the law-making powers had been really abused
by a majority in Parliament for the purposes of serving majority
391. In the circumstances indicated above, it seemed to me to be absolutely essential for us to
call upon the parties defending or assailing the Thirty-ninth Amendment and the Acts of 1974 and
1975, to take us, inter alia, into the merits of the cases of the two sides and the findings given by
the trying Judge so as to enable us to see how far these findings were justifiable under the law as
it stood even before the amendments by the Acts of 1974 and 1975, how they were affected by
these amendments, and how they were related to the validity of Section 4 of the Thirty-ninth
Amendment. Speaking for myself, I clearly indicated to learned Counsel for the parties that I
regard the nature and merits of the case decided to be of crucial importance not only in
considering the validity of the Thirty-ninth amendment and of the Acts of 1974 and 1975, but also
in the wider interests of justice which are bound to be served by the vindication of the case of the
party which should, on merits, win. Elementary considerations
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392. Citizens of our country take considerable pride in being able to challenge before superior
courts even an exercise of constituent power, resting on the combined strength and authority of
Parliament and the State Legislatures. This Court, when properly called upon by the humblest
citizen in a proceeding before it, to test the constitutional validity of either an ordinary statute or
of a constitutional amendment, has to do so by applying the criteria of basic constitutional
purpose and constitutionally prescribed procedure. The assumption underlying the theory of
judicial review of all law-making, including fundamental law-making is that courts, acting as
interpreters of what has been described by some political philosophers (see : Bosanquet's
"Philosophical Theory of the State" Chap. V, pp. 96, 115) as the "Real Will" of the people,
embodied in their Constitution and assumed to be more lasting and just and rational and less liable
to err than their "General Will", reflected by the opinions of the majorit
393. Issues raised before us relating to the validity of the Thirty-ninth amendment and the
Acts of 1974 and 1975, were : What are the constitutional purposes and ambit of the "constituent
power" found in Article 368 of our Constitution ? Were they, in any way, exceeded by the
constituent authorities in making the Thirty-ninth amendment in an unauthorised manner, or, for
objects which, however laudable, were outside the scope of Article 368 ? Was there any
procedural irregularity in the composition of Parliament which could enable this Court to hold
that there was a basic defect in the enactment of either the 1975 Act or of the Thirty-ninth
amendment ? Whether provisions of the Acts of 1974 and 1975 are immune from attack even on
the ground that they resulted in a departure from the "basic structure" of our Constitution as
explained by this Court in His Holiness Kesavananda Bharati Sripadagalavaru v. State of Kerala,
by having been included in the Ninth Schedule of our Constitution, which does protect them f
394. We do not, when such a case comes up before us, concern ourselves with the validity of
provisions other than those which affect the case before us. Nor do we consider the objects of any
provisions, in vacuo, divorced from the facts of the case to be decided. Therefore, parties had to
and did address us on the broad features of the findings given by the learned trial Judge and the
nature of the evidence given to support them so that we may be able to decide, inter alia, whether
any "validation" of the original respondent's election, which was the evident purpose of clause (4)
of Article 329A, sought to be added by Section 4 of the Thirty-ninth amendment, was at all
necessary. If that election was not really void an had been wrongly held by the trial Court to be
vitiated, it did not need to be validated at all. In that event, a purported validation would be an
exercise in futility before this Court had decided these appeals. Could it not be said that the
intended validation was premature inasmuch as it pr
395. If the existence of the judgment of the Allahabad High Court created the impression that
it must be assumed to be correct even before this Court had pronounced upon the correctness of
the judgment, the stay order given by this Court should have removed it. The legal effect of that
stay order was that the trial Court's order, to sue the language of Section 116A(4) of the Act,
"shall be deemed never to have taken effect". It did not matter if the stay order, out of deference
for existing precedents, had been framed in the form of a "conditioned" stay, that is to say, a stay
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in law and effect with certain conditions annexed. It was not a "conditional" stay. Indeed, having
regard to the nature of the order the operation of which was to be stayed, there could be no
"conditional" stay here. As to the legal effect of such a stay order, there is no doubt in my mind
that, considering the clear words of Section 116A(4) of the Act, it deprived the order of the High
Court of any operative force whatsoever during th
396. In a case where the bona fides of legislation and even of a constitutional amendment, is
questioned on the ground of a suggested frightfulness in the facts of the case which Parliament
and the ratifying State Legislatures are to be supposed, if we are to accept the suggestion, to have
been acting in concert to prevent this Court from examining on merits, it was, I think, the duty of
Counsel making any such suggestion to invite our attention to any fact not fully disclosed or
discussed in the judgment under appeal at least when he was asked, as I repeatedly asked him in
the course of his arguments extending over a period of about fifteen days out of a total period of
hearing of the case for thirty-two days, how the trial Court's conclusions on the two matters,
forming the subject-matter of Appeal No. 887 of 1975 of the original respondent, could possibly
be justified. However, I have also satisfied myself, by going through the whole evidence on record
on these two matters, which I shall presently deal wi
397. Shrimati Indira Nehru Gandhi was elected to the House of the People from the Rae
Bareli constituency in Uttar Pradesh by an overwhelming majority of 1,11,800 votes against Shri
Raj Narain. As is not unusual, the defeated candidate filed an election-petition under the Act
making all kinds of allegations, including some quite extravagant ones, which formed the
subject-matter of the first set of eleven issues framed on August 19, 1971. Thereafter, three
additional issues were framed on April 27, 1973, when the question whether an amendment of the
petition, sought after the period of limitation for filing a petition to challenge the election had
expired, should be permitted, had been finally decided by this Court in favour of Shri Raj Narain.
398. The issues framed give an idea of the cases set up on behalf of the two sides. They were :
#ISSUES##
"1. Whether respondent No. 1 obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
Government of India. If so, from what date ?
2. Whether at the instance of respondent No. 1 members of the armed forces of the Union
arranged Air Force planes and helicopters for her, flown by members of the armed forces, to
enable her to address election meetings on February 1, 1971 and February 25, 1971, and if so,
whether this constituted a corrupt practice under Section 123(7) of the Representation of the
People Act ?
3. Whether at the instance of respondent No. 1 and her election agent Yashpal Kapur, the
district Magistrate of Rae Bareli, the Superintendent of Police of Rae Bareli and the Home
Secretary of U. P. Government arranged for rostrums, loudspeakers and barricades to be set up
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and for members of the police force to be posted in connection with her election tour on February
1, 1971 and February 25, 1971; and, if so, whether this amounts to a corrupt practice under
Section 123(7) of the Representation of the People Act ?
4. Whether quilts, blankets, dhoties and liquor were distributed by agents and workers of
respondent No. 1 with the consent of her election agent Yashpal Kapur, at the places and on the
dates mentioned in Schedule A of the petition in order to induce electors to vote for her ?
5. Whether the particulars given in paragraph 10 and Schedule A of the petition are too vague
and general to afford a basis for allegations of bribery under Section 123(1) of the Representation
of the People Act ?
6. Whether by using the symbol cow and calf, which had been allotted to her party by the
election Commission in her election campaign the respondent No. 1 was guilty of making an
appeal to a religious symbol and committed a corrupt practice as defined in Section 123(3) of the
Representation of the People Act ?
7. Whether on the dates fixed for the poll voters were conveyed to the polling stations free of
charge on vehicles hired and procured for the purpose by respondent No. 1's election agent
Yashpal Kapur, or other persons with his consent, as detailed in Schedule B to the petition ?
8. Whether the particulars given in paragraph 12 and Schedule B of the petition are too vague
and general to form a basis for allegations regarding a corrupt practice under Section 123(5) of
the Representation of the People Act ?
9. Whether respondent No. 1 and her election agent Yashpal Kapur incurred or authorised
expenditure in excess of the amount prescribed by Section 77 of the Representation of the People
Act, read with Rule 90, as detailed in para 13 of the petition ?
10. Whether the petitioner had made a security deposit in accordance with the rules of the
High Court as required by Section 117 of the Representation of the People Act ?
11. To what relief, if any, is the petitioner entitled ?
ADDITIONAL ISSUES
1. Whether respondent No. 1, obtained and procured the assistance of Yashpal Kapur in
furtherance of the prospects of her election while he was still a gazetted officer in the service of
the Government of India. If so, from what date ?
2. Whether respondent No. 1 held herself out as a candidate from any date prior to February
1, 1971 and if so, from what date ?
3. Whether Yashpal Kapur continued to be in the service of Government of India from and
after January 14, 1971 or till which date ?
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399. The High Court trying the case had, in the course of a lengthy judgment, rejected the
election-petitioner's case on issues Nos. 2, 4, 6, 7 and 9 of the first set of issues, after minutely
and meticulously scrutinizing every material allegation of the election-petitioner and the evidence
given in support of it on each of these issues. Out of these, the election-petitioner, in his Cross
Appeal No. 909 of 1975, has questioned the findings of the High Court only on issues Nos. 2, 4,
6, 7 and 9 set out above. Issues Nos. 5, 8 and 10, decided in favour of the election-petitioner,
were technical and are immaterial now. It will be noticed that the additional issue No. 1, due to
some error or oversight, is an exact and unnecessary repetition of the initial issue No. 1.
Additional issues numbered 2 and 3 are connected with and subsidiaries of the initially framed
issues numbered 1 and 3.
400. The learned trial Judge had accepted the election-petitioner's case of the material issues
numbered 1 and 3 of the initially framed issues, and on the overlapping and subsidiary additional
issues 1, 2 and 3. He was of opinion that Shri Yashpal Kapur, a Central Government servant and
a gazetted officer of the rank of an Under Secretary, deputed to serve in the Prime Minister's
Secretariat as an Officer on Special Duty, had held his post until January 25, 1971, when his
resignation, tendered on January 13, 1971, was accepted by the President of India with effect
from January 14, 1971, by means of a notification published on February 6, 1971. Consequently,
the learned Judge set aside the election of the original respondent after holding that she was guilty
of a "corrupt practice", as defined by Section 123(7) of the Act, on each of two grounds : firstly,
that she must be deemed to have obtained the help of Shri Yashpal Kapur, in the furtherance of
her election, before he had ceased to be a gazetted officer
401. The law, as found in the Act of 1951 did not, unlike the English Act of 1949, make a
distinction between corrupt practices and illegal practices. Section 123(7), as it has stood
unamended, enumerates, as the last of the 7 classes of corrupt practice, as follows :
"Section 123 (7) the obtaining or procuring or abetting or attempting to obtain or procure by
a candidate or his agent or, by any other person with the consent of a candidate or his election
agent, any assistance other than the giving of vote for the furtherance of the prospects of that
candidate's election, from any person in the service of the Government and belonging to any of the
following classes, namely :-
#(a) gazetted officers;(b) stipendiary judges and magistrates;(c) members of the armed forces
of the Union;(d) members of the police forces;(e) excise officers;(f)(g) * * *##
Explanation.- (1) In this section the expression 'agent' includes an election agent, a polling
agent and any person who is held to have acted as an agent in connection with the election with
the consent of the candidate.
(2) for the purposes of clause (7), a person shall be deemed to assist in the furtherance of the
prospects of a candidate's election of the acts as an election agent of that candidate".
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402. It is clear that "the obtaining or procuring or abetting or attempting to obtain or procure"
had to take place either by a candidate or by his agent or by somebody "with the consent of the
candidate or his election agent". Until the candidate had appointed an election agent, the action of
any other person could not constitute him automatically an agent so that he may, by doing
something voluntarily, succeed in making the candidate vicariously liable for his own actions
whether he was or was not a gazetted officer at the time when he committed the act complained
of. The question of obtaining assistance through "an agent" or "other person with the consent of a
candidate or his election agent" could only arise where such a case of obtaining assistance
indirectly through others is set up but not otherwise.
403. On issue No. 1, the case set up in paragraph 5 of the petition is :
"Smt. Indira Nehru Gandhi obtained and procured the assistance of the said Shri Yashpal
Kapur for the furtherance of prospects of her election from the constituency aforesaid inasmuch
as the said Shri Yashpal Kapur was a gazetted officer in the service of Government of India when
his assistance was obtained and procured......... The said Shri Yashpal Kapur on the direction of
Smt. Indira Nehru Gandhi organized the electioneering work for her in the constituency during
the period commencing from December 12, 1970.........."
It is a case of liability resulting from an alleged "direction" given by Smt. Indira Nehru Gandhi
herself to Shri Kapur. No case of procurement of assistance of Shri Kapur through a third person
is set up although the word "procured" is mechanically lifted from Section 123(7) and used. On
issue No. 3, the case set up in para 9 of the petition is that both Smt. Indira Gandhi and her
election agent, Shri Kapur, "obtained and procured" the assistance of government officers, but no
directions or orders given by anyone are mentioned there. Issue No. 1 shows that the case which
was put in issue here was whether the government officers mentioned there rendered the
assistance indicated there "at the instance" of the original respondent or her election agent. The
discussion of evidence and findings of the learned Judge, particularly on issue No. 1, show that
the learned Judge had almost made out a new case for the election-petitioner and accepted it. This
was, on issue No. 1, whether Shri Kapur had done some acts in
404. The law must lay down a duty to prevent, by taking some steps which are not taken,
before a person is held liable for an omission. And, there is a difference between omission to
prevent the doing of something and actual consent to the doing of it. I do not find, in the petition,
any case of a liability from omissions to do something set up, obviously because the law does not
impose upon the candidate the duty to prevent the giving of voluntary assistance by others
whether officials or not. Nor is there anywhere in the petition a case of procurement by
consenting to aid obtained through others. It has to be remembered that, on the language of
Section 123(7), a liability is not created by merely not rejecting voluntarily given aid. The
candidate may not often be aware of the voluntarily given assistance so as to be able to reject it. A
case of consent which can be legally set up is only one of consenting to active obtaining or
procurement by an agent or by some other person who becomes, for the purposes o
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405. On the terms of Section 123(7) the following three types of cases of actual obtaining of
assistance, as distinguished from abetment or attempting to obtain it, can be legally set up either
exclusively, or alternatively, against a candidate firstly, a direct obtaining of it by the act of the
candidate himself, secondly, an indirect or vicarious procurement of it by the acts of a duly
constituted agent, and, thirdly, an indirect or vicarious procurement of it by the acts of a person
who, though not a duly constituted agent, becomes constructively an agent, for the purpose of
some particular aid obtained because it was assented to by the candidate at a time which must,
ordinarily, be before the aid is given, so that the person through whom assistance is obtained is a
constructive agent for this particular aid at the time when it is given. The term procurement
should, strictly speaking, apply only in the last two types of cases. A reference to Section 100(1)
(b) further emphasises the position that a corrup
406. As I read the petition, I find only the first of the three types of cases mentioned above set
up exclusively on issue No. 1 because there are no particulars there which could apply to the
other two types of cases. Obviously, the case set up was not of a corrupt practice by some act of
a person to which the candidate became a party by merely giving consent in which case the
circumstances from which the consent was to be inferred had to be indicated. It was a case of a
direction given by the Prime Minister herself to Shri Kapur who, it had to be presumed for the
purposes of such a case, would not have given the aid if the direction or order was not there. This
deliberately given "direction" had to be proved on the case set up. On issue No. 3, the petition
mentions only what was obtained, that is to say, the aid of the particular officers and the form it
took, but, what caused that aid to be given or the means adopted to get it were not set up there. I
think these distinctions should have been borne in min
407. The definition given above in Section 123(7) meant, on an ordinary and natural
interpretation of words used, that the corrupt practice defined there could not be committed by
any person before there was a "candidate" for an election. Hence, it became necessary to examine
the definition of a "candidate" found in Section 79(b) which laid down :
"79. In this part and in Parts VII and VIII, unless the context otherwise requires,
(b) 'candidate' means a person who has been or claims to have been duly nominated 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."
408. Section 123, defining corrupt practices, is found in Part VII of the Act. Therefore, the
definition of candidate in Section 79, as it originally stood, was sought to be applied by the trial
Court to determine whether the original respondent could have committed a corrupt practice at
the time of the alleged commission of it. Before, however, I deal with that question, it is necessary
to examine what "obtaining, or procuring or abetting or attempting" meant in the light of the law
laid down repeatedly by this Court in cases of alleged corrupt practices.
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409. The logical consequence of placing a charge of corrupt practice on the same footing as a
criminal charge is obligation to interpret the words which define it strictly and narrowly. Indeed,
any natural and ordinary interpretation on the words "obtaining or procuring or abetting or
attempting" must carry with it the imperative requirement that the candidate concerned or his
agent must have intentionally done an act which has the effect contemplated by Section 123(7). In
other words, a "mens rea" or a guilty mind as well as an "actus reus" or a wrongful act must
concur to produce the result contemplated by law. So far as election expenses are concerned, it is
possible to conceive that even an unintentional result (i.e. expenses "incurred" exceeding the
prescribed limit may be enough so that a duty to prevent this result may be there in law. But,
Section 123(7) requires actual intended acts of "obtaining" or "procuring" or attempting or
abetting. For Section 123(7) results are immaterial.
410. In the case before us, the petition contains, as I have indicated above, the necessary
averment of a deliberate direction by the original respondent herself, so far as issue No. 1 is
concerned, and of "obtaining" and "procuring" as regards issue No. 3. These are enough to denote
the ingredients of a mens rea. But, one will search the evidence in vain for any indication of a
mens rea or guilty intent on the part of the original respondent or of her election agent when she
had appointed one. As regards both issues Nos. 1 and 3, the learned Judge seemed to think that
Section 123(7) creates what is called an "absolute statutory liability", which does not require a
mens rea although, in dealing with issue No. 2, he had himself, after citing the necessary
authorities, taken the view that a mens rea was also essential. He had himself, in dealing with issue
No. 2, distinguished Dr. Y. S. Parmar v. Hira Singh, a decision with whose ratio decidendi I have
never, with due respect, felt happy in so far as it meant
411. Let me here quote the exact language used by the trial Judge himself in giving his
findings on the first part (relating to December 27, 1970 to January 13, 1971) of issue No. 1 of
the "first set" of issues combined with the issue No. 1 of the additional issues, both issues, for
some inexplicable reason, being identically worded. The learned Judge said :
"Learned Counsel for the respondent then urged that even accepting that Shri Yashpal Kapur
delivered a speech at Munshiganj on January, 7, 1971 and that he canvassed support for the
respondent in that speech, he was not an election agent on that date, and there is no evidence of
the fact that he had been instructed to do so by the respondent No. 1 Learned Counsel stressed
that, consequently, it should not be held on that basis that the respondent No. 1 obtained or
procured the assistance of Shri Yashpal Kapur for the furtherance of her election prospects.
I have given my careful consideration to this argument as well, but I regret my inability to
accept the same. As also stated earlier, Shri Yashpal Kapur was occupying a position of trust and
confidence with the respondent No. 1 since quite a long time. During the period in question he
was Officer on Special Duty in the respondent No. 1's Secretariat. In 1967 he had resigned from
his post for the sake of respondent No. 1 to be able to do her election work in the constituency.
After that was done, he was taken back in the respondent's Secretariat as Officer on Special Duty.
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Respondent No. 1 held herself out as a candidate on December 29, 1971. On January 5, 1971
Raja Dinesh Singh was sent to the constituency. On January 7, 1971 Shri Yashpal Kapur visited
Rae Bareli, and on the own admission of respondent No. 1, he did so with previous notice to the
respondent No. 1. The subsequent events also appear to be material, for, according to Shri
Yashpal Kapur, immediately on return from Rae Bareli he held a talk with
To sum, therefore, it is satisfactorily proved that the respondent No. 1 during the period
ending on January 13, 1971, obtained/procured the assistance of Shri Yashpal Kapur, a gazetted
officer in the Government of India for the furtherance of her election prospects, inasmuch as Shri
Yashpal Kapur was made to go to Rae Bareli on January 7, 1971 and deliver a speech at Shaheed
Mela in Munshiganj canvassing support for her candidature."
412. Now, it is a well settled rule, repeatedly laid down by this Court, that allegations of
corrupt practice in the course of an election must be judged by the same standards as a criminal
charge. And, no rule of evidence, in judging guilt on a criminal charge, is more firmly rooted than
that no charge, resting on circumstantial evidence, could be held to be proved beyond reasonable
doubt unless the chain of circumstances is so complete and so connected with the charge that it
leaves no other reasonable hypothesis open for the Court to adopt except that the offender had
committed the offence alleged (See : e.g. Smt. Om Prabha Jain v. Charan Das).
413. The learned Judge dealt with evidence on issue No. 1 relating to the activities of Shri
Yashpal Kapur by dividing it into three periods : (1) from December 12, 1970 to January 13,
1971, when Shri Kapur had not resigned from government service; (2) from January 14, 1971 to
January 25, 1971, the period after Shri Kapur's resignation upto its acceptance by the President of
India evidenced by a notification dated January 25, 1971; (3) from January 26, 1971 to February
6, 1971, the period after the acceptance of Shri Kapur's resignation and upto the date of the
publication of it in the official gazette. The learned Judge considered only the first two periods
material as he held the activities in the third period to be above board because Shri Kapur was free
to do what he liked in this period. Hence, the fact that the original respondent appointed Shri
Kapur her election agent on February 1, 1971 made no difference to the result in the third period
to be above board because Shri Kapur was free to do what he l
414. Let us take the first period. What was required to be approved, beyond all reasonable
doubt, from the evidence on record on this part of the case, was that Shri Yashpal Kapur had been
instructed or directed by the original respondent to render the help, if any, that he did given by the
speech he was alleged to have made at a fair at Shaheed Mela (martyrs' fair) at Munshiganj in Rae
Bareli on January 7, 1971, canvassing support for the original respondent's election- an allegation
which Shri Yashpal Kapur had denied in so far as any mention of the original respondent's
candidature is concerned. Shri Kapur admitted that he had gone there with Shri Gulzarilal Nanda,
a former Minister of the Central Government, but said that he had only, when called upon to do
so, paid his tribute to the memory of the martyrs.
415. The learned Judge held that the recollection of Shri Yashpal Kapur about what he said at
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the Shaheed Mela on January 7, 1971 was less reliable than the statement of Shri Vidya Shankar
Yadav (PW 43), an Advocate belonging to an opposition party, supported by his political
coworker, Nankau Yadav (PW 28)- a witness who, in his transparent anxiety to appeal truthful,
went so far as to make the absurd assertion that he had not told anyone, before he appeared in the
witness box, that he had attended the Shaheed Mela on January 7, 1971, and who could not
remember either the date of his marriage or the dates of births of his children, but asserted that he
had noted January 7, 1971 without even having ever talked on any previous occasion to anyone
about this date if he is to be believed- and, by Shri R. K. Dixit (PW 31), a joint editor of a
newspaper, who claimed to be present on the occasion and who, while reporting other facts and
reasons in his newspaper for believing that the original respondent will stand
416. The learned Judge disbelieved the evidence of the original respondent's witness Shri
Sarju Prasad (RW 12), the headmaster of a school, who had denied that he ever accompanied Shri
Nankau (PW 28) to the Shaheed Mela as claimed by Nankau. The ground for holding that Shri
Sarju Prasad must be deposing falsely appears to me to be every unfair both to Shri Sarju Prasad
and Shri Gaya Prasad Shukla, a Congressman, who was suspected, without the slightest
foundation in evidence, of having induced Shri Sarju Prasad to give perjured evidence simply
because Shri Gaya Prasad, who did not even appear as a witness, was a member of the Congress
(R) party and was once connected with the school in which Shri Sarju Prasad served. The learned
Judge said :
"It is quite likely that once Nankau had conceded in cross-examination that Sarju Prasad had
accompanied him to the Shaheed Mela, pressure was brought to bear on Sarju Prasad (RW 12) by
Gaya Prasad Shukla in order to make him appear as a witness in the case and give evidence to
contradict the testimony of Nankau. It is true that in his re-examination Sarju Prasad (RW 12)
admitted that on the date on which he was examined as a witness in the case the school was being
run by the Government under the control of the District Basic Education Officer. However, the
association that Gaya Prasad Shukla had with the Pathshala in his capacity as Adhyaksha, and
consequently with Sarju Prasad, who was a teacher in that Pathshala, could not have been wiped
off overnight merely because the school was taken over by the Government to be run under its
own officers.
417. The reasons given by the learned Judge for holding that it was "abundantly clear" that
Shri Ram Pal (RW 13), another witness of Smt. Gandhi, was "also not a truthful witness", were :
"Now, since Ramesh Chand Shukla Advocate is a resident of the same village where Ram Pal
resided, and since he was an important worker for the respondent No. 1 during the election and
was also her Pairokar at some stage, the possibility of Ram Pal having been pressurised by Shri
Ramesh Chand Shukla cannot be excluded. Together with it there is also the fact that Shri Gaya
Prasad Shukla, another important worker of the respondent No. 1, happened to be the Adhyaksha
of the Zila Parishad during the period the witness was examined in the case. It is a matter of
common knowledge that the Adhyaksha of the Zila Parishad during the period the witness was
examined in the case. It is a matter of common knowledge that the Adhyaksha of the Zila Parishad
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always wields influence in the rural areas. It will not be out of place to add that when it was put to
Ram Pal in cross-examination as to which party did Shri Ramesh Chand Shukla belong, he
pleaded ignorance about it. It cannot be accepted for any moment that even though
418. I do not know how, when workers of the Congress party were divided into two camps
and had been changing sides, from time to time, ignorance of a worker's precise party loyalties
meant that Ram Pal was untruthful. If mere possibilities of being "pressurised" or biased were
enough to tar a witness as untruthful, it is difficult to see how or why the witnesses of the
election-petitioner, on whom lay the primary burden of proof, could escape similar treatment. V.
S. Yadav, was, no doubt, an Advocate. But, he was not even paying Income-tax. He felt free, on
a working day in courts, to go to the Mela. He was enthusiastic enough as a member of an
opposition party to object, according to himself, to Shri Yashpal Kapur bringing in the
candidature of the original respondent even at a meeting which, according to him, consisted
mostly of Congress (R) sympathisers. Shri Yashpal Kapur was not so ignorant or inexperienced in
election matters and could not be assumed, without any evidence to support the assumption, to
419. Let us, for the sake of argument, assume that Shri Yashpal Kapur had been overpowered
by such a desire to exhibit an excessive zeal, which got the better of his prudence that he,
believing that a publicly made gesture of his loyalty was needed on this particular occasion, cast
all caution to the winds and, while paying the tribute he was called upon to pay to the memory of
the martyrs, suddenly decided to jump into the electoral fray by making an appeal at the martyrs'
mela to support Smt. Indira Gandhi, as though the speeches of all those local leaders who, in
addition to Shri Gulzarilal Nanda, a former Minister, are said to have spoken there to the same
effect, were not enough. What follows ? It is here that we find the weakest link in the misty and
fanciful chain of the learned Judge's logic. Where was the evidence that, whatever else Shri
Yashpal Kapur may or may not have been supposed to do on his visit to Rae Bareli, this particular
piece of "frolic", a term used by law relating to scope of author
420. The learned Judge, as is evident, from his summary of evidence and conclusions, relied
on circumstantial evidence only. But, in order that the circumstances should have a conclusive
effect, so as to exclude any reasonable hypothesis except that of guilt, they had to point in one
direction only and in no other. What is the position that emerges from a consideration of the
circumstances found and detailed by the learned Judge himself ? It was held that Shri Yashpal
Kapur was occupying a position of trust and confidence with the original respondent for quite a
long time. Indeed, his evidence shows that he was so attached to the family of the original
respondent and the political and national causes its members had represented that he was just the
type of person who could, even without the slightest suggestion on the part of the original
respondent have voluntarily take upon himself the duty to do whatever he could do in his private
capacity to help her return at the election. Indeed, his private capacity,
421. In the passage from the judgment, quoted above, the learned Judge draws an inference of
a previous instruction, from the Prime Minister to Shri Kapur, to say what he is alleged to have
said in a speech, because, inter alia, Shri Kapur met the Prime Minister on his return from Rae
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Bareli ! Again, the necessary inference of a previous intimation by Shri Kapur to the Prime
Minister of his intention to visit Rae Bareli, could not be that there was any authority or direction
given by the Prime Minister to Shri Kapur to do or to say anything on her behalf. All this would
lie in the realm of pure conjecture and suspicion. It left other possible and more reasonable
inferences wide open.
422. The learned Judge had himself held, so far as use of rostrums is concerned, that the
Prime Minister sheds her personality, as the holder of her office, and assumes the role of a mere
candidate as soon as she ascends a platform to make an election speech. But, when the learned
Judge deals with the action of Shri Kapur, in making a speech from a platform at a martyrs' mela,
because Shri Kapur is called upon to pay his tribute to the martyrs, he holds that not only must the
capacity of a government servant unshakably stick to him, but that Shri Kapur must have been
authorised by the Prime Minister herself knowing, as she did, that he was a government servant,
to go and make a public speech at the mela and canvass for votes for her ! I do not think that we
can indulge in a flight of fancy which could be described as "flamboyant".
423. The uncontroverted evidence of Shri Kapur which had been ignored by the trial Judge
was that it was the special business of this witness, as an Officer on Special Duty in the Prime
Minister's Secretariat, in his own words, "to deal with the representations received from public
and other works of semi-political nature". It is difficult to understand how the occupant of such a
difficult and responsible office as that of the Prime Minister of the numerically largest democracy
in the world can possibly discharge his or her duties towards the public satisfactorily without the
aid of such officers. Naturally, as the Prime Minister was contemplating standing for election from
the Rae Bareli constituency, it would not be outside the scope of the duties of such an officer to
attend especially to the complaints and representations from Rae Bareli. He stated that Shri
Gulzarilal Nanda, who was then the Railway Minister, had received some representations from
Rae Bareli. He also said that he had, from time to time,
424. Again, without any contradiction from any evidence whatsoever, his statement,
unquestioned also in cross-examination, was that the Prime Minister did not, at any time, ask him,
in his own words, "either directly or indirectly to do anything pertaining to her election. " The
Prime Minister's replies to interrogatories served upon her show that she had no personal
knowledge of what Shri Kapur did at Rae Bareli before he was appointed her election agent. It is
also apparent from the evidence of this witness and of the Prime Minister herself that, when he
expressed his desire on January 9 or 10, 1971, to the Prime Minister to resign from his post as
Officer on Special Duty, she asked him to think over the matter as this would mean that he could
not return to his post. He had earlier said that this decision was taken with a view to do work for
the public in general and the Congress party in particular as he wanted to enter public life. It is
clear that the Prime Minister had left the decision entirely to the
425. The statement of Shri Kapur, supported by those of the Prime Minister and Shri P. N.
Haksar, had been accepted by the trial Court as correct so far as tender of this resignation and its
acceptance, in all the stages, followed by the notification in the gazette, went. The learned Judge
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held that the President gave his assent on January 25, 1971. Shri Kapur's letter of resignation must
have been duly forwarded and was acted upon. This was the learned Judge's finding. Shri Kapur
did not work in the Prime Minister's Secretariat after January 13, 1971 and he drew no salary as
government servant after that date. The notification in the gazette could not, according to rules,
take place until Shri Kapur had handed over charge. He signed and completed the necessary
papers relating to relinquishment of the charge of his office on January 13, 1971, but he put the
date January 14, 1971 under his signature on the document evidencing a formal handing over of
charge as it was to take effect from that date. The trial C
426. On the facts stated above, there could be no doubt whatsoever that Shri Kapur was not
asked to do anything at all in connection with her election by the Prime Minister herself, but he
had decided to take interest in it voluntarily as he had some political ambitions; and, therefore, he
had asked the Prime Minister to be relieved of his office in her Secretariat with effect from
January 14, 1971. It is unfortunate that the learned Judge thought that there was something
almost siniter in Shri Kapur taking such interest in the election or in hoping to enter political life
through absolutely legitimate means. There is not the slightest reason for anyone who fairly
examines the evidence of Shri Kapur, supported by that of the Prime Minister and Shri P. N.
Haksar, to doubt the motives or the veracity of Shri Kapur on this point. He frankly stated that his
ambition was to enter political life. In any case, the motives of Shri Kapur were not on trial. If
such assistance as he may have rendered was entirely volun
427. Shri P. N. Haksar was aware of and cited the applicable rule for a resignation by a
temporary government servant, as Shri Kapur was, and stated also the practice followed, in his
experience, in such cases. He, presumably thought that the resignation was effective from January
14, 1971. Shri Kapur also acted upon that assumption and in that belief. The Prime Minister, who
could not be expected to examine suo moto the question whether Shri P. N. Haksar and Shri
Kapur were right in their beliefs about the effectiveness of the resignation, assumed that
everything was alright. In any case, there could not possibly, on these facts, be any mens rea on
her part.
428. The learned Judge having accepted, on the unimpeachable evidence of the date of
notification of January 25, 1971, published in the official gazette on February 6, 1971, that Shri
Kapur must have handed in his resignation in a letter of January 13, 1971, it is very difficult to see
how one could possibly doubt the correctness of the statement of Shri P. N. Haksar that, as the
Head of the Prime Minister's Secretariat, he had accepted the resignation orally and forwarded it
on for necessary action. The resignation had taken place with the consent of the Prime Minister. It
is inconceivable, in the circumstances, that Shri P. N. Haksar would not have as the Head of the
Department in which Shri Kapur was working, agreed to relieve him of his duties by telling him
that he was a free man, and, thereby, accepted his resignation. He, very honestly, stated that he
does not remember whether he wrote anything on the margin of that letter. He must have made so
many indorsements on so many letters and documents that i
429. The learned Judge had found Shri P. N. Haksar's Statement, that such an oral
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acceptance, followed by the necessary notification afterwards, was "rather interesting", and, that
the resignation could not be effective until January 25, 1971, the date of drafting the notification.
But, what the learned Judge completely overlooked was that the notification itself made the
resignation effective from January 14, 1971, the date from which Shri Kapur had neither worked
in the Prime Minister's Secretariat nor drawn any salary. There was no plea anywhere, and there is
no express finding on it, that the President's notification itself, which made the resignation
effective from January 14, 1971, was invalid to the extent that in purported to give any
retrospective effect to the resignation, in the sense that it made it effective from a date prior to its
actual acceptance. The fact that it is made effective from January 14, 1971 shows that the letter
must have reached the President's Secretariat with the request that
430. The learned Judge had relied on Rule 5 of the Central Civil Services (Temporary Service)
Rules, 1949, which runs as follows :
"5(a) The service of a temporary Government servant who is not in quasi-permanent service
shall be liable to termination at any time by notice in writing given either by the Government
servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the
Government and by the Government servant :
Provided that the service of any such Government servant may be terminated forthwith by
payment to him of a sum equivalent to the amount of his pay plus allowances for the period of the
notice or as the case may be, for the period by which such notice falls short of one month or any
agreed longer period."
431. The learned Judge had referred to Halsbury's Laws of England, Vol. V (Simonds's Edn.)
p. 61, where it was laid down that in a "corporation created by Statute for the discharge of public
functions a member may not have an absolute right to resign at will, because the law may cast
a duty upon the person elected to a public office to act in that office in public interest". He
also referred to an American case, Edwards M. Edwards v. United States, to the effect that only
the appointing could have accepted the resignation of an occupant of a public office, and that,
under the special provisions of the law, the holder of such an office could be subjected to a
penalty for a wrongful refusal to perform the duties of his office. The desire or wish of the holder
of the office had to give place to public interest in such special cases. It is clear that the cases
cited could have no relevance whatsoever for an interpretation of Rule 5 set out above.
432. The learned Judge had then relied upon Raj Kumar v. Union of India, were this Court
held that "normally, and in the absence of any law or rule governing the conditions of his servuce
to the contrary, it will not be open to the public servant to withdraw his resignation after it is
accepted by the appropriate authority". In that case, there was a dispute between the government
servant and the Union of India on the question whether the government servant concerned could
withdraw his resignation after it was accepted. It was held that he could not. It was not a case of
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an agreement between the parties at all as to the date from which the resignation could effectively
terminate service. It is true that, in Raj Narain v. Smt. Indira Nehru Gandhi, when this very matter
came up to this Court, to decide whether an issue should be struck on it, this Court had sent back
the matter to the High Court after holding that an issue should be framed to decide when Shri
Kapur's resignation became effective and that this
433. Neither the Government nor the government servant is in a worse position than an
ordinary master or servant on a matter governed by contract. In fact, Article 310 makes it clear
that, in such a case, the tenure of office of a Central Government servant is "during the pleasure
of the President". In the instant case, the President's pleasure was contained in the notification
dated January 25, 1971 showing that the President had accepted the resignation of Shri Kapur
with effect from the forenoon of January 14, 1971. And, this is what Shri Kapur himself wanted.
Hence there is no difficulty at all in acceptiung the correctness of a resignation effective from the
date which both parties to the contract, on patent facts, had agreed by such an acceptance of the
resignation from the date immediately after the date on which Shri Kapur had tendered his
resignation. That, as already pointed out, was also the date after which he had ceased to work or
draw his salary. It is inconceivable that the law should thrust t
" (3) For the purposes of clause (7), notwithstanding anything contained in any other law, the
publication in the Official Gazette of the appointment, termination of service, dismissal or removal
from service of a person in the service of the Central Government (including a person serving in
connection with the administration of a Union territory) or of a State Government shall be
conclusive proof-
(i) of such appointment, resignation, termination of service, dismissal or removal from service,
as the case may be, and
(ii) where the date of taking effect of such appointment, resignation, termination of service,
dismissal or removal from service, as the case may be, is stated in such publication, also of the fact
that such person was appointed with effect from the said date, or in the case of resignation,
termination of service, dismissal or removal from service, such person ceased to be in such service
with effect from the said date."
434. I find that this amendment, which was made retrospective, by Section 10 of Act 40 of
1975, makes the legal position still clearer. The learned Counsel for the election-petitioner had
assailed the validity of this amendment on the ground that powers conferred by it upon the
Government are bound to be abused by those who hold the reins of Government. I am afraid I am
unable to see any force in this contention. The presumption is that a bona fide use will be made of
this power lodged in such responsible hands. If such powers are ever exercised in a mala fide
manner, it is the particular exercise of the power that can be questioned and struck down. The
provision does not become invalid merely because it could be abused as practically any provision
of law can be by those who may want to do so.
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435. I will next take up the period from January 14, 1971 upto January 25, 1971, when Shri
Kapur is said to have gone and voluntarily worked at Rae Bareli, and to have done whatever he
could to organise the conduct of the Prime Minister's election after his talks with the Prime
Minister. The position with regard to allegations in this period is summarised as follows :
1. He is said to have either led or to have joined a procession of cars taken out on January 14,
1971 in the town of Rae Bareli as a part of the election campaign for the original respondent
although Shri U. S. Yadav (PW 41), an advocate, who was a staunch S. S. P. worker, produced
on behalf of the election-petitioner, clearly stated that he had not seen Shri Kapur in that
procession which he watched but he had seen him only on February 15, 1971. The learned Judge,
however, not only relied on the evidence of Shri R. K. Singh (PW 42) but also on that of Shri U.
S. Yadav to hold that Shri Kapur must have been "associated with" the procession of people seen
in cars and jeeps taken out on January 14, 1971 shouting Congress (R) party slogans to start off
the election campaign.
2. On January 17, 1971, Shri Kapur is said to have participated in an election meeting held at
the Clock Tower. On this allegation, the learned Judge accepted the evidence of Shri R. K. Dixit
(PW 31), and Shri R. K. Singh, (PW 42), although both these witnesses only stated that some
confusion took place at the meeting and Shri R. K. Dixit did not even remember whether any
speech was made at all by Shri Kapur. Shri R. K. Singh also did not state that Shri Kapur actually
made a speech but had said that "a disturbance took place when Shri Kapur wanted to deliver a
speech....... as a result of which he could not do so". The learned Judge rejected the evidence of
Shri V. C. Dwivedi (RW 18) supported by Shri Kapur (RW 32) himself, that Shri Kapur was not
present at all at this meeting. However, on the evidence of the election petitioner's witness
themselves, Shri Kapur could do nothing whatsoever in furtherance of the election of the original
respondent at this meeting.
3. On January 19, 1971, Shri Kapur is said to have addressed a meeting at village Nihasta
where he is said to have gone in the company of Prof. Sher Singh, a Minister of State in the
Government of India. Although the tour programme of the Minister concerned showed that the
Minister went to that village to inaugurate a telephone exchange on January 18, 1971, supported
by the evidence of Jagannath Prasad (RW 16), a resident of village Nihasta, and K. D. Pandey
(RW 17) Post Master, Sub-Post Office, yet, the learned Judge preferred the evidence of Shri R.
K. Singh (PW 42) for the election-petitioner despite the infirmity in this evidence that it was
neither consistent with the tour programme of the Central Government Minister sent in advance
for this function nor with the unshaken evidence of those who organised the function.
4. It was alleged that Shri Kapur on January 19, 1971, again in the company of Prof. Sher
Singh, the Central Government Minister, mentioned above, attended a meeting held in Lalganj. So
far as this particular allegation is concerned, the learned Judge thought that it could not be
accepted because it was supported only by one highly partisan witness, Shri G. N. Pandey, against
4 faultless witnesses : Abdul Jabbar (RW 25), Fatesh Bahadur Singh (RW 26), Ishwar Chand
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(RW 27) and Ranjit Singh (RW 28).
5. On January, 19, 1971, Shri Kapur was said to be present at the inaugural function of the
telephone exchange at Behta Kalan and is said to have delivered a speech there. The learned trial
Judge accepted the evidence of Pt. Shashank Misra (PW 32), admittedly a highly partisan witness,
who was believed because of a question put to him in cross-examination suggesting that there was
uproar when Shri Kapur started speaking so that nobody could hear what he said. The learned
Judge held that this amounted to an admission of Shri Kapur's presence and participation in this
evening.
6. Shri Kapur was alleged to have delivered a speech on January 18, 1971 at the foundation
laying ceremony of a new post office building at Rae Bareli in the company of Prof. Sher Singh,
the Central Government Minister, mentioned above. This allegation was not accepted on the
ground that it was not supported by any evidence whatsoever.
436. All that the witnesses could remember of Shri Kapur's speech, on each occasion, was that
he supported the original respondent's candidature. Out of allegations of acts said to have been
committed on 6 occasions by Shri Kapur in this period, the learned Judge found only 4 instances
proved. Out of these, it was clear that Shri Kapur could not have done anything in furtherance of
the original respondent's election on January 17, 1971, when, according to the
election-petitioner's witnesses, he was not even allowed to speak. Even if all the
election-petitioner's witnesses accepted by the learned Judge are to be implicitly believed for this
period the position is :
(a) On three occasions in this period, from January 14, 1971 to January 25, 1971, Shri Kapur
is shown to have made a speech supporting the original respondent's candidature.
(b) There is no evidence whatsoever from any source that Shri Kapur did so on any of these
three occasions either after having been requested by the original respondent to do so or with her
knowledge or consent or approval.
(c) The only evidence in the case, on the decisive question, coming from the side of the
original respondent, is that Shri Kapur did, whatever he did, entirely on his own initiative and in
his private and individual capacity, without the slightest solicitation, request, or suggestion from
the original respondent who did not even know what he was doing at Rae Bareli. And, this
evidence, being uncontroverted, could not be rejected. In fact, it was not rejected by the trial
Court. It was ignored by it presumably under erroneous belief that it was not material.
437. There is no evidence whatsoever that Shri Kapur was constructed a sort of general de
facto agent of the Prime Minister even before he became her election agent on January 2, 1971.
Indeed, such a case, that Shri Kapur was constituted a de facto agent of the Prime Minister, and,
if so, what was the scope of his authority, was not set up in the petition and was not put in issue.
Therefore, there is no finding on it by the learned Judge. Could the Court then, without any proof
of any specific request or solicitation or even knowledge of or consent to the doing of any
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particular acts Shri Kapur may have done in this period make the Prime Minister liable for them in
any way? I think not. The election-petitioner had to be confined to the case he had set up. This, as
already pointed out, could only be, on a fair reading of the petition on issue No. 1, one of the
specific authorisation of particular individual acts of Shri Kapur. Of this, there is not only no
evidence whatsoever on record but the evidence is to
438. Issue No. 1, as framed, and the form of findings given on it indicate that the learned
Judge realized that the election-petitioner's case must be confined to proof of specific acts or
statements of the original respondent herself which induced Shri Kapur, as a government servant,
to give some assistance in furtherance of her election, but the discussion of evidence and the
inferences which the learned Judge reached upon the circumstances found, indicated that the
learned Judge thought that Shri Kapur was constituted a sort of de facto agent even before Shri
Kapur was clothed with legal authority on February 1, 1971. This appears to me to be the
underlying current of thought and reasoning of the learned Judge. Thus, the result was that what
was really decided was the case of a de facto agency which was neither set up nor was the
subject-matter of an issue. I, therefore, think that the principle that no amount of evidence could
be looked into on a case not really set up was applicable here. It was quite u
439. In Rustom Satin V. Dr. Sampoornand it had been held by a Division Bench of the
Allahabad High Court (V. Bhargava and J. N. Takru, JJ.), inter alia (at p. 243)
"So far as the election law in this country is concerned it is a creation of statute and as such
has to be interpreted in accordance within the provisions of that statute. Section 100 of the Act
clearly refers to corrupt practices committed by four classes of persons only viz., the candidate,
his election agent, persons acting with the consent of the candidate or his election agent, and
those acting without such consent. The corrupt practices committed by the first three classes of
persons are covered by Section 100(1) (b), while those committed by persons falling in the fourth
class are provided against in Section 100(1) (d) (ii)."
The same Bench of the Allahabad High Court in J. P. Rawat v. K. D. Paliwal 135 had held (at
p. 456) :
"..... even in the case of admitted workers in whose case also general consent to work for the
candidate may be implied, the consent of the returned candidate to corrupt practice or practices
complained against have to be separately proved, and reliance upon general consent, express or
implied, to work legitimately for the candidate is not deemed sufficient."
440. After January 14, 1971, the Prime Minister, like everyone else concerned, obviously
believed that Shri Kapur was no longer a government servant. As I have already pointed out, this
was the legally correct assumption. Even if one were to assume, for the sake of argument, that
this was not so and that the learned Judge had correctly held that Shri Kapur's resignation became
effective from January 25, 1971, there could be no liability for a corrupt practice by merely
permitting Shri Kapur to resign. The uncontroverted evidence is that, after resigning, Shri Kapur
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went to Rae Bareli voluntarily, without any request or suggestion made to him by the original
respondent or by anybody else to go to Rae Bareli and work for her election. Even his
appointment as the original respondent's election agent on February 1, 1971, according to Shri
Kapur's evidence, was the result of suggestion of Shri Dal Bahadur Singh at Rae Bareli,
apparently during the Prime Minister's visit to her constituency.
441. Cases in which help rendered voluntarily by a government servant without any attempt
by the candidate concerned to "obtain" or "procure" it were held not to constitute a "corrupt
practice" of the candidate, whatever be the impropriety of it for the government sevant himself,
were completely overlooked by the learned Judge. In Hafiz Mohd. Ibrahim v. Election Tribunal a
Division Bench of Allahabad (Mootham, C.J. and Mukherji, J.) had pointed out that a government
servant has a "private personality" too. Similar observations of Dua, J. are found in a Division
Bench decision of the Punjab High Court (see : Ram Phal v. Brahm Prakash).
442. On the conclusions reached by the learned Judge himself, the acts of Shri Kapur between
the period January 25, 1971 and February 6, 1971, the date of the publication of the notification,
could not be taken into account as no corrupt practice could possibly exist in that period, due to
the participation of Shri Kapur in any election work. And, with regard to the two earlier periods,
beginning with January 7, 1971, I am unable to see, for the reasons given above, how any corrupt
practice could be committed by the original respondent vicariously due to anything done by Shri
Kapur, even if one were to apply the law as it existed before the amendments of the Act.
443. Another question, which I may now briefly consider, is the date from which the original
respondent could be said to have held herself out as a candidate. If she was not a "candidate" upto
January 25, 1971, as defined by law, that would, in itself, be a sufficient ground for wiping out the
effect of findings of the learned judge on the to periods dealt with above.
444. The learned Judge had inferred that the Prime Minister was a "candidate" from December
29, 1970 as she had held herself out as a candidate when she answered a question put to her on
December 29, 1970 at a press conference at New Delhi. The question and answer were as follows
:
"Q. A short while ago there was a meeting of the opposition leaders and there they said that
the Prime Minister is changing her constituency from Rae Bareli to Gurgaon?
#P.M. No.I am not."##
In the witness box, the Prime Minister disclosed that what she meant by the answer was that
she would not contest from the Gurgaon constitutency. On further cross-examination, she stated :
"It is wrong to assume that while giving the reply marked 'B' in the transcript (Ext. 132) I
conveyed that I was not changing my constituency from Rae Bareli at all and emphatically held
out that I would contest election again from Rae Bareli. In my opinion there is no basis for this
assumption."
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445. The learned Judge had, in preference to the statement of the Prime Minister herself as to
what she meant, together with the evidence given by her Secretariat that there were entreaties or
offers to her from other constitutencies that she should be their representative, relied on press
reports and what members of other parties thought and did as a result of the above-mentioned
statement of the Prime Minister on December 29, 1970. The learned Judge also referred to
paragraph (A) of the additional written statement which runs as follows :
"That in fact, there were offers, from other parliamentary constituencies in India, requesting
this respondent to stand as a candidate for the Lok Sabha from those constituencies and a final
decision in regard to the constituency was announced by the All India Concress Committee only
on January 29, 1971, and she only held herself out as a candidate on filing her nomination at Rae
Barli on 1st of February, 1971. " He had also referred to the visits made by Congress (R) leaders
to Rae Bareli, particularly, Shri Dinesh Singh and Shri Gulzarilal Nanda and by Prof. Sher Singh.
He had not accepted the explanation that they had gone there of their own accord.
446. The learned Judge had also considered several English authorities but had noted that the
law here was not the same as in England. It had been laid in Munuswami Gounder v. Khader
Shariff, where it was said :
"In this respect the law in this country makes a significant departure and that departure, in our
opinion, again emphasises the application of vital democratic principle, in the light of differing
conditions. We may here note, briefly, a feature of the political practice in the United Kingdom,
which repeatedly colours and influences the English cases, viz., the fact that there a person is
often adopted as a candidate by a political association, without any move on behalf, until a
particular stage when the adoption is formalised by his consent".
447. I an unable to see what bearing the activities of opposition leaders and statements issued
by them or press reports, with regards to the candidature of the original respondent. No. 1 from
the Rae Bareli constituency, had upon either and interpretation of her own statement of December
29, 1970, or the date on which she made a final decision to stand as a candidate from the Rae
Bareli constituency or the communication of that decision by her to her constituency. The material
relied upon by the learned Judge consisted of speculation and hearsay coming from persons who
were certainly interested in finding out which constituency the Prime Minister, who had a choice
of Gurgaon, a constituency much nearer to New Delhi, and, possibly of other constituency as well
if she only wanted to change it. Absence of proof of a desire to change the constituency is not
proof of a positive "holding out". It has been repeatedly laid down in decided cases on the point
that what is relevant is not what other people think or sa
448. The learned Judge referred to the contents of a speech made by the Prime Minister at
Coimbatore in South India, in the early part of January, 1971, castigating one of the tactics of the
opposition parties in choosing Shri Raj Narain to oppose her, for purposes of maximum "mud
slinging". The learned Judge pointed out that the Prime Minister admitted, in her evidence, that
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she could have said this in her speech at Coimbatore. She was not asked whether this amounted to
holding herself out as a candidate from Rae Bareli constituency. If such a question had been asked
there is little doubt that she could have explained the statement by the context in which it was
made, just as she had given the precise meaning of her statement of December 29, 1970, in the
context in which it was made. Apparently, the context of the statement made in early January in
Coimbatore was that the opposition parties had chosen a candidate, who, in the opinion of Prime
Minister, possessed certain capacity for "mud slinging" which oth of March, 1971. Similarly the
context of the question of December 29, 1970, put to the Prime Minister at a conference at New
Delhi, was that the members of the opposition parties thought that she may be contesting from
Gurgaon. In the light of the opposition tactics, which the Prime Minister herself had referred to in
her speech at Coimbatore, it was not unlikely that the Prime Minister would have preferred to
keep her own intentions about the constituency, from which she would ultimately stand, either a
closely guarded secret, or, at least, in a fluid state. In any case, it was not likely that she would
announce her own intention very clearly to stand from any particular constituency until it was
considered by her or by her political advisers to be politically expedient to do so. Again, it may be
that the prospect of such a leader standig from a particular constituency was likely to have a
politically exhilarating effect upon the workers or on party activities in that constituency. From
such a point of view
449. It seems to me that the learned Judge had given an exaggerated importance to what were
either not strictly relevant or insignificant matters in preference to what could be and was decisive
and unequivocal. I do not think that the answer of the Prime Minister at the Press Conference on
December 29, 1970 or the contents of her speech in Coimbatore, in early January 1971, or even a
declaration or announcement of the All India Congress Committee on January 29, 1971, assuming
that there was such an announcement, could mean that the Prime Minister had herself finally
decided to contest from the Rae Bareli constituency and had held herself out as a candidate for
this constituency. This holding out had to take place by the Prime Minister herself and not by the
Congress Committee. Even if the fact of a declaration made by the Congress Committee, on
January 29, 1971, which is all that the written statement admits, proves that the Prime Minister
was chosen by her party for this particular constituency on this date
450. The fact that the tour programmes were circulated in advance for the Rae Bareli district,
in which the Prime Minister made electioneering speeches, could also not determine what the final
declaration of intention by the Prime Minister was going to be in regard to the Rae Bareli
constituency. It is not enough that the candidate should have by then formed an intention to stand
from a particular constituency. There is a gap between intent and action which has to be filled by
proof of either statements or of conduct which amount to unequivocal declarations made to
voters in the constituency in order to amount to a "holding out" to them. This seems to me to be
the clear position in the law as laid down by courts in this country on the meaning of Section
79(b) of the Act.
451. It is significant that despite the large number of speeches and statements the Prime
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Minister must have made throughout the country, in this period, not a single statement made by
her could even be cited in which she had said before February 1, 1971, that she was standing as a
candidate from the Rae Bareli constituency. It is possible, as I have indicated above, that this may
be a part of the political game or permissible party tactics so as to keep opposition parties
guessing. It seems to me that the learned Judge was overlooking the context, the probabilities, the
natural course of events in such a case, the legal and logical relevance and effect of what he
thought was decisive, and finally, the importance of the statement of the Prime Minister herself on
this question, supported by complete absence of any evidence to show that she had herself made
any clear and decisive statement in any speech or conversation which could shake her stand, that
her final decision and unequivocal act was the filing of a
452. In S. Khader Sheriff v. Munnuswami Gounder, this Court said (at p. 473) :
"When, therefore a question arises under Section 79(b) whether a person had become a
candidate at a given point of time, what has to be seen is whether at that time he had clearly and
unambiguously declared his intention to stand as a candidate, so that it could be said of him that
he held himself out as a prospective candidate. That he has merely formed an intention to stand
for election is not sufficient to make him a prospective candidate, because it is of the essence of
the matter that he should hold himself out as a prospective candidate".
453. In F. P. Rawat v. Krishna Dutta Paliwal, a Division Bench of the Allahabad High Court
(V. Bhargava and J. N. Takru, JJ.) following the decision of this Court in S. Khader Sheriff's case
(supra) said (at p. 463) :
"The determining factor, therefore, is the decision of the candidate himself, not the act of
other persons or bodies adopting him as their candidate".
454. In Haji Abdul Wahid v. B. V. Keskar, it was held by a Division Bench of the Allahabad
High Court (R. N. Gurtu & S. N. Dwivedi, JJ.)
" (i) that the purchase of the nomination forms and voters lists, could not amount to holding
out as a candidate; (ii) the arranging of public meetings by the officials and the respondents's
moving about in the constituency on the 15th and 16th could not by themselves amount to a
holding out by the respondent as a prospective candidate on those days in the absence of evidence
to show that the respondent had utilised those meetings and tours for the purpose of making
utterances of an electioneering characters".
455. In K. K. Mishra v. Banamali Babu, the Orissa High Court, relying upon the following
observations of this Court in S. Khader Sheriff's case (supra), held that a holding out within the
meaning of section 79(b) must be by declaration of the candidate to an elector or to the electorate
in a particular constituency and not to others :
"It may be that the holding out which is contemplated by that section is to the constituency;
but if it is the Central Committee that has to decide who shall be adopted for election from the
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concerned constituency, any declaration made to the Committee is, in effect addressed to the
constituency through its accredited representative".
456. The view of the learned Judge appears to me to run counter to the weight of authorities
cited above. In any case, if there was any uncertainty at all in the law, it was been removed nu an
amendment by Section 7 of Act No. 40 of 1975 so that Section 79(b) reads as follows :
"'Candidate' means a person who has been or claims to have been duly nominated as a
candidate at any election".
457. Learned Counsel for the election-petitioner contended that this amendment read with
Section 10 of the Act 40 of 1975, would retrospectively alter the "rules of the game" and would
be destructive of the concept of free and fair elections, if it means that a person is only a candidate
after he has been duly nominated and that he can indulge in any amount of corrupt practices until
the day previous to his nomination.
458. Even if the present definition is a new one, it cannot be said to be arbitrary. The concept
contained in it is found in the English definition which lays down (Halsbury's Laws of England-
3rd Edn., Vol. 14, p. 162) :
".... a candidate in relation to a parliamentary election means a person who is elected to serve
in Parliament at the election or a person who is nominated as a candidate at the election, or is
declared by himself or by others to be a candidate on or after the day of the issue of the writ of the
election......"
The English definition is wider but contains, as its first part, the very concept found in our
new definition of a "candidate".
459. Corrupt practices of a candidate cannot go unpunished, whether they are committed
before or after he becomes a candidate, when they amount to acts which come within the purview
of electoral offences dealt with by Chapter 3, Sections 125, 126, 127(A) or Chapter 9A of the
Indian Penal Code. Offences such as bribery, for purposes of either inducing persons to vote or
not to vote or to stand as candidates, undue influence, and personation, are all dealt with here.
These should be sufficient deterrents against preversion of the electoral process by a prospective
candidate who wants to adopt corrupt and objectionable means for gaining success at the polls.
460. The amendment appears to me to be within the unquestionable powers of Parliament to
legislate, either prospectively or retrospectively, with regard to election matters. I am unable to
see how it is capable of being interpreted as an attack on free and fair elections, which according
to the learned Counsel for the election-petitioner, is part of the basic structure of the Constitution.
I think it is important to bear in mind that courts cannot take upon themselves the task of laying
down what electoral laws should be. The law-makers, assembled in Parliament, are presumed to
know and understand their business of making laws for the welfare and well-being of the mass
people of this country, for the protection of democracy and of free and fair elections, in
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accordance with the needs of the democratic process, better than courts know and understand
these. It is only where a piece of legislation clearly infringes a constitutional provision or
indubitably overrides a constitutional purpose or mandate or prohib
461. I will now take up issue No. 3 of the first set of issues which, after rejecting the
contention that the erection of barricades and the provision of the police force for security
purposes by the Government of U. P., during the election tours of the Prime Minister on February
1, 1971 and February 25, 1971 in the Rae Bareli constituency, contravened Section 123(7), the
learned Judge held that, neverthless the arrangements made by the District Magistrate of Rae
Bareli, the Superintendent of Police, Rae Bareli, the Executive Engineer, P. W. D. and Engineer,
Hydel Department, for constructing rostrums and the supply of power for loudspeakers, on the
instructions given by the State Government, was a corrupt practice struck by the provisions of
Section 123(7) of the Act. As I have already indicated, by the only evidence relied upon by the
learned Judge for this extraordinary finding, after having rejected a similar allegation of a corrupt
practice under issue No. 2, on account of provision of the Air Force pla
"It has been noticed that the rostrum arrangements are not always properly made because the
hosts are sometimes unable to bear the cost. As the security of the Prime Minister is the concern
of the State, all arrangements for putting up the rostrum, the barricades etc. at the meeting place,
including that of an election meeting, will have to be made by State Government concerned."
462. The Government of India had also issued a letter (Ex. A. 21) dated November 19, 1969
inviting the attention of the State Governments to Rule 71(6), mentioned above, and directing
them to ensure that, whenever rostrums are constructed on such occasions, they should conform
to certain specifications laid down with due regard to security considerations. The letter also
directed the State Government to bill the political party concerned with expenses upto 25% of the
cost of the rostrums of Rs. 25000, whichever is less. The letter also directed that extravagance in
expenditure should be avoided.
463. It was proved by the evidence of Shri R. K. Kaul (PW 58) the Home Secretary in the
Government of Uttar Pradesh, that rostrums and arrangements for barricading are made by the
local officials employing contractors for the purpose, under instructions issued by the State
Government. The reasoning adopted by the learned Judge, however, was that, as the Prime
Minister's office had issued her tour programmes, with the approval of the Prime Minister, the
result must be, in the language of the learned Judge himself :
"... the tour programmes carried an implied direction that the State Government should also
get constructed rostrums and arrange for public address system for the election meetings to be
addressed by her on February 1, 1971 and February 25, 1971. It should be presumed that the
respondent No. 1, as Prime Minister of this country, and with five years experience of that office
behind her in 1971, also knew that the said work was to be done by the officers of the State
Government."
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464. This meant that the learned Judge was holding the Prime Minister herself responsible for
instructing the State Government knowing that it will make the necessary arrangements through
its servants. The case thus accepted, that the Prime Minister was employing the State Government
as her agency in procuring the aid of the officers concerned, was neither set up nor put in issue.
Apart from this objection, the learned Judge overlooked that the provisions of Section 123(7)
were intended to prevent solicitation for aid and not sending of information to the State
Government in the course of ordinary official business even if the candidate concerned knows that
the State Government is bound, under the rules, to make the necessary arrangements dictated by
the needs of security of the Prime Minister and convenience of the public.
465. The view of the learned Judge involves holding that the "persona" (a term derived from
the concept of the mask worn by Greek actors on the stage in a drama) of a candidate during an
election must not only be different from that of the Prime Minister, but also that, when the two
capacities are held by the same person, what is due to the occupant of the office of the Prime
Minister must be withdrawn when the same person acts as a candidate. On a similar argument,
with regard to use of helicopters and aeroplanes, the learned Judge himself had refused to
acknowledge what amounts to a separable legal personality of a candidate in the eyes of law. The
ground given for this difference between the use of aeroplanes and helicopters by the Prime
Minister and the use of rostrums by her was that the former was more connected with the office
or capacity of the Prime Minister and that the latter was exclusively meant for her use in the
capacity of a candidate. Even if we were to recognize this distinction between the
466. I also think that the learned Judge erred in holding that such a case could be one of
solicitation of official aid and assistance at all. It is a case in which certain precautions are taken
and arrangements made almost "automatically", if one may use this word here, by officers of the
State as a matter of duty towards the office held by a candidate who undoubtedly enjoys certain
advantages which an ordinary candidate cannot have. It is as futile to complain of such a
distinction made as it is to complain that a candidate possesses certain advantages at an election
because of the personal services rendered to the country distinctions achieved by the candidate.
Again, there are advantages which attach themselves to a candidate because of that candidate's
personal qualities qualification capacities or background. The appurtenances of office or
distinctions achieved are, in my opinion, comparable to such personal advantages in so far as they
are not enjoyed because they are "obtained" or "procured". If such
467. The learned Judge had mentioned a Division Bench decision of the Allahabad High Court
in Moti Lal v. Mangala Prasad, where it was laid down :
"We think that the word 'obtain' in Section 123(7) has been used in the essence of the meaning
which connotes purpose behind the action of the candidate. The word has not been used in the
sub-section in the sense of a mere passive receipt of assistance without the candidate even being
conscious of the fact that the assistance has been rendered. In order to bring the case under
sub-section (7), it must be shown that the candidate did make some efforts or perform some
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purposeful act in order to get the assistance."
468. He had also cited another Division Bench decision of the Allahabad High Court in Biresh
Mishra v. Ram Nath Sarma, that :
"The words 'obtain' or 'procure' or 'abetting or attempting to obtain or procure' any assistance
necessary imply some efforts on the part of candidate or his agent. Mere passive receipt of
assistance is not contemplated by the section."
469. I think that the import of such observations was clearly what has been laid down
repeatedly by this Court and emphasized by me already- that a means rea as well as an actus reus
must be shown, on the evidence on record, before a candidate can be held guilty of a corrupt
practice. In Sheopat Singh v. Ram Pratap, this Court held, in dealing with the allegation of
corrupt practice under Section 123(4) of the Act, that mens rea was a necessary ingredient of the
corrupt practice practice and that the doctrine of constructive knowledge was not applicable here.
470. In the case before us, the election-petitioner alleged a wrongfully "obtained and
procured" assistance due to acts of the original respondent as well as her election agent Shri
Yashpal Kapur. Hence, proof of actual mens rea as well as actus reus on the part of either the
candidate herself or her election agent had to be given. This was not done. The election petition
was, therefore, liable to be rejected on this ground alone.
471. If, however, there was any doubt or uncertainty on the matter, the view taken by the
learned Judge had, at any rate, directed the attention of Parliament to the need for a clarification
of the law which became necessary. It is not possible to object to the movies behind the legislation
on this ground. Parliament could certainly set right a defect in law which may have come to its
notice as a result of the learned Judge's interpretation of Section 123(7). The defect may be due to
a possible ambiguity. In order to clarify the law, Section 7 of the Act 40 of 1975 inserted a
proviso at the end of Section 123(7), which runs as follows :
"Provided that where any person, in the service of the Government and belonging to any of
the classes aforesaid, in the discharge or purported discharge of his official duty, makes any
arrangements or provides any facilities or does any other act or thing, for, to, or in relation to, any
candidate or his agent or any other person acting with the consent of the candidate of his election
agent, (whether by reason of the office held by the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be deemed to be assistance for the furtherance of
the prospects of that candidate's election."
472. The learned Counsel for the election-petitioner has, very fairly, conceded that, if this
amendment, which is retrospective by reason of the operation of Section 10 of Act 40 of 1975, is
valid, the decision of the learned Judge on the above mentioned issue No. 3 would not
sustainable. Such a concession, incidentally, means that whatever facilities were given to the
Prime Minister by the construction of rostrums or provision of power for the loudspeakers, for
which the party was also billed, at least to the extent of one-fourth of the expenses of the rostrums
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and wholly as regards the expenses of loudspeakers, were given by the officers concerned in the
performance of their official duties. This is not the same thing as "obtaining" or "procuring" by
solicitation.
473. Learned Counsel for the election-petitioner has, however, put forward the same
objection this retrospective amendment as the one against a change in the definition of
"candidate". It appears to me that this amendment is merely clarificatory of the state of law as it
really was even before the amendment. On the view I take, there is no question here of altering
the "rules of the game" to the disadvantage of the election-petitioner. The disadvantage, if any,
was there already because of the consequences which, I think, legally and naturally flow from the
occupation of the high office of the Prime Minister of this country.
474. There is no attack on the validity of Section 123(7) of the Act as it existed before the
amendment. Hence, there could be no challenge to the validity of the amendment if it does not, as
I think it does not, change the law but merely clarifies it.
475. Learned Counsel for the election-petitioner contended that, as a candidate at an election,
Prime Minister and an ordinary candidate should enjoy equal protection of the laws and should be
afforded equal facilities irrespective of the office occupied by one of two or more candidates.
Such an attack upon the validity of this amendment seems to me to be possible only under the
provisions of Article 14 of the Constitution. But, as Act 40 of 1975 has been placed by Section 5
of the Thirty-ninth Amendment in the protected Ninth Schedule of the Constitution, it becomes
immune from such an attack. After the practically unanimous opinion of this Court in
Kesavananda Bharati's case (supra), that such an immunisation of an enactment from an attack
based upon an alleged violation of the chapter on fundamental rights is constitutionally valid, I do
not think that a similar attack can be brought in through the backdoor of a "basic structure" of the
Constitution. Moreover, I am unable to see how this particular amendm
476. Before I proceed further, I may mention that I have dealt with the findings of the learned
Judge, assailed by the original respondent's Appeal No. 887 of 1975, perhaps in greater length and
depth, after going through the evidence in the case, than I had set out to do. I have done so for
several reasons. Firstly, I think that the nature of the attack upon the bona fides of the
amendments made although ordinarily not even entertainable, having been permitted due to the
constitutional importance and gravity of the allegations made, this question could not, in my
opinion, be satisfactorily dealt with without considering the nature of the findings and the
evidence at some length so as to satisfy myself that no such question could possibly arise here.
Secondly, if the amendments were made necessary for reasons brought out fully only by dealing
with facts and findings in this case, they could not give rise to any grounds to suggest that there
was anything wrong in making amendments to remove such reasons. Ther
477. It appears to me, as already indicated by me, that the learned Judge was perhaps unduly
conscious of the fact that he was dealing with the case of the Prime Minister of this country. He,
therefore, as he indicated in his judgment, seemed anxious not to allow this fact to affect his
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judgment. Nevertheless, when it came to appraising evidence, it seems to me that, as I have
already pointed out, he applied unequal standards in assessing its worth so as to largely relieve the
election-petitioner of the very heavy onus of proof that lies on a party which challenges the
verdict of the electors by allegations of corrupt practices. He also appeared to be attempting to
achieve, by means of judicial interpretation, an equalisation of conditions under which in his
opinion, candidates should contest elections. I think that it is not the function of courts to embark
on attempts to achieve what is only in the power of Parliament to accomplish, that is to say, to
bring about equality of conditions where the law permit
478. As regards appraisal of evidence in such a case, I may point out that, in Rahim Khan v.
Khurshid Ahmed 146, Krishna Iyer, J., speaking for this Court, said : (p. 666)
"An election once held is not be treated in a lighthearted manner and defeated candidates or
disgruntled electors should not get away with it by filing election petitions on unsubstantial
grounds and irresponsible evidence, thereby, introducing a serious element of uncertainty in the
verdict already rendered by the electorate. An election is a politically scared public act, not of one
person or of one official, but of the collective will of the whole constituency. Courts naturally
must respect this public expression secretly written and show extreme reluctance to set aside or
declare void an election which has already been held unless clear and cogent testimony compelling
the Court to uphold the corrupt practice alleged against the returned candidate is adduced.
Indeed, election petitions were corrupt practices are imputed must be regarded as proceedings of
a quasi-criminal nature wherein strict proof is necessary. The burden is therefore heavy on him
who assails an election which are concluded."
This Court also said there (at p. 672) :
"We regard it as extremely unsafe, in the present climate of Kilkennycat election competitions
and partisan witnesses wearing robes of veracity, to upturn a hard won electoral victory merely
because lip service to a corrupt practice has been rendered by some sanctimonious witnesses. This
Court must look for serious assurance, unlying circumstances or unimpeachable documents to
uphold grave charges of corrupt practices which might not merely cancel the election result, but
extinguish many a man's public life".
479. I will now take up the election-petitioner's Cross Appeal No. 909/75. Learned Counsel
for the election-petitioner, very properly and frankly, conceded that he could not successfully
assail the findings of the learned Judge on issues Nos. 4 and 7 relating to alleged distribution of
quilts, blankets, dhotis, and liquor by workers of the original respondent or the alleged provision
of free conveyance by vehicles said to have been hired by Shri Kapur. The evidence on these
questions given the election-petitioner was too flimsy and extravagant and was met by
overwhelming evidence to the contrary given by respectable residents of localities in which the
alleged corrupt practices are said to have taken place. No driver of any conveyance was
produced. Nor was any person produced who had actually received any alleged gift or had
consumed anything provided on behalf of the successful candidate.
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480. As regards issue No. 2, relating to the use of aeroplanes and helicopters by the original
respondent, which was not separately pressed evidently because it was covered by the amendment
which was assailed by the election-petitioner, the reasons I have given on issue No. 3 for
upholding the validity of the amendment relating to the services rendered by government officials
and members of defence forces in due discharge of their duties are enough to cover the points
raised.
481. As regards issue No. 6, relating to the adoption of the drawing of a cow and calf as the
symbol of the Congress (R) party of the original respondent, the finding of the trial court, based
on a large number of authorities, was that this is not a religious symbol. This question was directly
decided in : Bhartendra Singh v. Ramsahai Pandey; Shital Prasad Misra v. Nitiraj Singh
Choudhary decided by M. P. High Court on July 21, 1971 and Sri. Prasanna Das Damodar Das
Palwar v. Indu Lal Kanhaiya Lal Yajnik 149, decided on August 27, 1971, by the High Court of
Gujarat. The learned Judge also cited the following cases where it was decided that a cow is not a
religious symbol : Shah Jayanthilal Ambalal v. Kasturilal Nagindas Doshi, Baijnath Singh Vaidya
v. R. P. Singh, Bishambhar Dayal v. Raj Rajeshwar, Dinesh Dangi v. Daulat Ram, Shyam Lal v.
Mansa Din, B. P. Mauriya v. Prakash Vir Shastri, Sahodra Rai v. Ram Singh Ahawar, Vishwanath
Pd. v. Salmatullah, Lachiram v. J. P. Mukhariya.
482. In addition, Section 8 of the Act 40 of 1975 has made the position on this point also very
clear by providing that, in Section 123 of the Act in clause (3), the following proviso shall be
inserted at the end :
"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."
483. As in the case of other amendments, the amendment was also challenged on behalf of the
election-petitioner on the ground that it could be misused. I am afraid that attacks made on such
sweeping suggestions of likelihood of misuse, in future, cannot possibly succeed. It has been
repeatedly laid down by this Court that the possibility of misuse of a power given by a statue
cannot invalidate the provision conferring the power. (See : Dr. B. N. Khare v. State of Delhi;
State of West Bengal v. Anwar Ali Sarkar; R. K. Dalmia v. Justice Tendolkar; T. K. Musaliar v.
Venkitachalam; Chitralekha v. State of Mysore; M. R. Deka v. N. E. F. Rly). The occasion to
complain can only arise when there is such alleged misuse. Even the possibility of such misuse of
this power by so responsible an official as the Election Commissioner cannot be easily conceived
of.
484. It was submitted that the Election Commissioner's decision on this question was
unreasonable. The best class of evidence as to what is and what is not to be reasonably regarded
as religious symbol, according to the customs, mores, traditions, and outlook of the people of a
country at a certain time consists of contemporaneous decisions of courts. It is useless to quote
passages from ancient text about the sacredness of the cow in support of the use of the cow as a
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religious symbol today. The use of pictures of this excellent and useful animal is so frequently
made today for commercial purposes or purposes other than religious that the representation of a
cow and a calf cannot, except in some special and purely religious contexts, be held to have
religious significance. I, therefore, see no force at all in this submission of the election-petitioner.
485. The only question argued with some seriousness in the election-petitioner's appeal was
that the election expenses, which form the subject-matter of issue No. 9, had exceeded the limit of
authorised expenditure imposed by Section 77 of the Act read with Rule 90. On this issue, the
learned Judge had considered every allegedly omitted item of expense very thoroughly and had
reached the conclusion that the following 3 items, totaling upto Rs. 18,183.50, had to be added to
the return of election expenses of the original respondent which mentioned items totaling upto Rs.
12,892.97. These were : (1) Cost of rostrums Rs. 16,000; (2) Cost of installation of loudspeakers
Rs. 1,951; (3) Cost of providing transport for one journey by car Rs. 232.50.
486. On this issue, the learned Judge's appreciation of evidence was not only very thorough
and correct, but the application of the governing law on the subject also appears to me to be
faultless. Ordinarily, we do not, sitting even in first appeals on question of law as well as of fact in
election cases, go into findings of fact arrived at without misapplication of law or errors of
approach to evidence. In the case before us, two main questions and one subsidiary question, each
of which is a mixed question of fact and law, which deserve consideration by the Court on this
issue, have been raised before us. I will deal with these questions briefly seriatim.
487. The first question is : If the party, which a candidate represents, spends or others also
spend some money on his or her election, is this expenditure one which can be or should be
properly included in the statement of election expenses submitted by the candidate? Arguments
before us have proceeded on the assumption made by both sides that some expenditure was
incurred by Congress (R) party and some expenditure must also have been incurred by those who
either voluntarily helped or even thrust their supposed assistance, whether it was helpful or not,
upon those managing the original respondent's election, which was not shown as part of her
election expenses. Is the successful candidate bound, under the law, to show this also as part of
election expenses?
488. The question assumed special importance after the decision of this Court in Kanwar Lal
Gupta v. Amarnath Chawla, where a Division Bench of this Court observed : (SCC p. 656, para
11)
"Now, if a candidate were to be subject to the limitation of the ceiling, but the political party
sponsoring him or his friends and supporters were to be free to spend as much as they like in
connection with his election, the object of imposing the ceiling would be completely frustrated
and the beneficent provision enacted in the interest of purity and genuineness of the democratic
process would be wholly emasculated. The mischeif sought to be remedied and the evil sought to
be suppressed would enter the political arena with redoubled force and vitiate the political life of
the country. The great democratic ideal of social, economic and political justice and equality of
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status and opportunity enshrined in the Preamble of our Constitution would remain merely a
distant dream eluding our grasp. The legislators could never have intended that what the
individual a candidate cannot do, the political party sponsoring him or his friends and supporters
should be free to do. That is why the legislators wisely interdic
489. After making the above-mentioned observations, the apparently broad sweep of the
observations was limited as follows : (SCC p. 656, para 11).
"It may be contended that this would considerably inhibit the electoral campaign of political
parties but we do not think so. In the first place, a political party is free to incur any expenditure it
likes on its general party propaganda though, of course, in this area also some limitative ceiling is
eminently desirable coupled with filing of return of expenses and an independent machinery to
investigate and take action. It is only where expenditure is incurred which can be identified with
the election of a given candidate that it would be liable to be added to the expenditure of that
candidate as being impliedly authorised by him. Secondly, if there is continuous community
involvement in political administration punctuated by activated phases of well-discussed choice of
candidates by popular participation in the process of nomination, much of unnecessary
expenditure which is incurred today could be avoided."
490. It is not necessary to quote further from the judgment which suggested taking of steps
for reform of electoral machinery so as to ensure "choice of candidates by popular participation in
the process of nomination", because that would take us into a territory beyond mere interpretation
of the law as it exists. It is clear from the passages cited and later parts of the judgment that the
earlier decision of this Court, requiring proof of authorisation by the candidate of the election
expenditure for which he could be held responsible, and, in particular, Rananjaya Singh v.
Baijnath Singh, which I shall refer to again a little later, are considered. It is enough to observe
that the passages quoted above rest on the assumption that, where there are special circumstances
in a case which constitute a political party an implied agent of the candidate himself, the candidate
will be responsible. It was also suggested there that a political party itself must exercise some
control over the expenses of the candidate
491. The difficulty which faces the election-petitioner at the outset in taking up a case of
implied authorisation, on the strength of anything observed or decided by this Court in Kanwarlal
Gupta's case (supra), is that no such case was set up here. The petition does not say that the local
Congress (R) party was really an express or implied agent of the original respondent or that it had
acted in a manner from which it could be inferred that the funds were really being supplied by the
original respondent and were merely being spent by the party or its workers for the election under
consideration. No facts or circumstances were at all indicated either in the petition or in evidence
from which such inference were possible. On the other hand, what is sought to be pointed out
now in the case before us is that a sum of Rs. 70,000 was shown to have been received from some
undisclosed sources by Shri Dal Bahadur Singh, the President of District Congress Committee at
Rae Bareli, and that a large part of it was show
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492. It is true that the case set up is that the prescribed limit of expenditure was exceeded and
the case is so stated that items beyond the list could conceivably be added. Nevertheless, unless
and until there is a plea that something was spent by the Congress (R) party, either as an express
or implied agent of the original respondent, this loophole left in the petition would not suffice.
Section 83(1) (b) of the Act contains the mandatory provisions that the 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 parties alleged to have committed such corrupt
practice and the date and place of the commission of each such practice."
493. The judgment of this Court in Kanwarlal Gupta's case (supra) discusses a number of
cases decided by this Court which show that it is not enough to prove expenditure of money by a
candidate's party or friends or relation. It must be also proved that this was expenditure
authorised by the candidate and incurred as the candidate's express or implied agent. These cases
were : Rananjaya Singh v. Baijnath Singh; Ram Dayal v. Brijraj Singh; Magraj Patodia v. R. K.
Birla and B. Rajagopala Rao v. N. G. Ranga.
494. After examining this catena of cases, I think, with great respect, that the decision of this
Court in Kanwarlal Gupta's case (supra) could be understood to point in a direction contrary to
that in which the previous cases were decided. Hence, it appears to me that the amendment made
by Act 58 of 1974, by adding the explanation (1) to Section 77(1) of the Act, could be justified as
merely an attempt to restore the law as it had been understood to be previous to decision of this
Court in Kanwarlal Gupta's case (supra).
"Explanation 1. Notwithstanding any judgment, order or decision of any court to the contrary,
any expenditure incurred or authorised in connection with the election of a candidate by a political
party or by any other association or body of persons or by any individual (other than the candidate
or his election agent) shall not be deemed to be, and shall not ever be deemed to have been,
expenditure in connection with the election incurred or authorized by the candidate or by his
election agent for the purposes of this sub-section :
Provided that nothing contained in this Explanation shall effect.
(a) any judgment, order or decision of the Supreme Court whereby the election of a candidate
to the House of the People or to the Legislative Assembly of a State has been declared void or set
aside before the commencement of the Representation of the People (Amendment) Ordinance,
1974;
(b) any judgment, order or decision of a High Court whereby the election of any such
candidate has been declared void or set aside before the commencement of the said Ordinance if
no appeal has been preferred to the Supreme Court against such judgment, order or decision of
the High Court before such commencement and the period of limitation for filing such appeal has
expired before such commencement".
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495. It appears to me that both parties to the case now before us were under the impression
that the expenses incurred by a political party over its candidate's election was outside the
prescribed limit which operated only against expenditure by a candidate himself. Hence, the
petitioner had not pleaded expenses incurred by the party of the original respondent as expenses
authorised by the original respondent. The test of authorisation would naturally be the creation of
a liability to reimburse whoever spends the money and not necessarily the provision of money
beforehand by the candidate on whose behalf it is spent. Nevertheless, the authorisation has to be
set up and proved. In the written statement filed on behalf on the original respondent, it was very
frankly admitted that some expenditure, incurred by the local Congress party itself, had not been
shown as election expenses of the candidate herself. This was the position because, on the side of
the original respondent also, the law was understood to be
496. The second question which arises for consideration is : if some expenses are shown or
admitted to have been incurred by the candidate's party or third persons over the election of the
successful candidate, is it possible to separate it from a total expenditure on more than one
constituency by some process of estimation and apportionment? Of course, this question can only
arise if it is first proved that whatever expenditure was incurred by candidate's party or by some
other person, who may be a friend, a relation, or a sympathiser, was incurred in circumstances
from which it can be inferred that the successful candidate would reimburse the party or person
who incurred it. As I have already held, it is only then that expenditure could be held to be
authorised by the candidate. It is not enough that some advantage accrued or expenditure was
incurred within the knowledge of the candidate. This was very clearly brought out in Rananjaya
Singh v. Baijnath Singh (supra). In this case, the Manager, Assistant Ma
497. An attempt was then made to pass the responsibility on to the original respondent for the
expenses of at least 23 vehicles whose numbers are mentioned in a letter dated February 25, 1971,
written by Shri Kapur, who was then the original respondent's election agent, and sent to the
District Officer, Rae Bareli, stating as follows :
"Sir, I beg to say that the District Congress Committee, Rae Bareli has taken the following
cars for election purposes in the three parliamentary constituencies, Rae Bareli, Amethi and Ram
Sanehi Ghat. You may, therefore kindly release them."
After giving numbers of the vehicles the letter proceeds :
"It is therefore requested that the abovesaid cars may kindly be released without delay. The
letter of the President of District Congress Committee about the abovesaid cars is enclosed
herewith".
The letter of the President of the committee, mentioned by Shri Kapur, was a rather urgent
request made to him by Shri Dal Bahadur Singh, on February 24, 1971 (Ex. A-43), after
informing him that he is in difficulties as he had tried to find out unsuccessfully the whereabouts
of Shri V. Vajpayee, who was contesting election from Amethi parliamentary constituency, and of
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Shri Baiznath Kureel, who was contesting the election from Ram Sanehi parliamentary
constituency. He, therefore asked Shri Kapur, the election agent of the original respondent, to
send a letter to the District Officer, who had refused to released the vehicles without the
endorsement of the candidate concerned or his her election agent.
498. It is clear from the above-mentioned correspondence that Shri Kapur was not speaking
on behalf of the other two candidates of adjoining parliamentary constituencies. He was not even
undertaking to pay anything for the use of the vehicles on behalf of the original respondent. Shri
Kapur also did not state that these vehicles were needed for work in the original respondent's
constituency. He merely forwarded the letter with a request for compliance with what Shri D. B.
Singh wanted. Shri Dal Bahadure Singh was concerned and entrusted with conducting
electioneering work in three adjoining parliamentary constituencies successfully. He had, therefore
made a frantic appeal to Shri Kapur to come to his help. Shri Kapur, without concealing any fact,
had sent this very letter with a request for the release of the vehicles to the District Officer
concerned. On this evidence, the learned Judge came to the conclusion that it was not possible to
say which constituency. The learned Judge after considering the evidenc
499. In Hans Raj v. Pt. Hari Ram this Court in a similar situation said :
"Whichever way one looks at the matter it is quite clear in view of the decision of this Court
reported in Rananjaya Singh v. Baijnath Singh (supra) that the expenditure must be by the
candidate himself and any expenditure in his interest by others (not his agents within the meaning
of the a term in the election law) is not to be taken note of. Here the hiring was by the Congress
Committee which was not such an agent and therefore the amount spent by the Congress
Committee cannot be taken as an amount which must compulsorily be included in the expenditure
over the election by a candidate. If this be the position, we have to decide whether this amount
spent on the jeeps must be taken to be an expenditure made by the candidate himself. Of that there
is no evidence. The bill stands in the name of the Congress Committee and was presumably paid
by the Congress Committee also. The evidence, however, is that this jeep was used on behalf of
the returned candidate and to that extent we subscribe to the finding given
500. In Shah Jayantilal Ambalal v. Kastutilal Nagindas Doshi 172, this Court held :
"It is now well settled that expenses incurred by a political party in support of its candidates
do not come within the mischief of Section 123(6) read with Section 77 of the Act".
501. In Samant N. Balkrishna v. George Fernandez, this Court pointed out :
"In India all corrupt practices stand on the same footing. The only difference made is that
when consent is proved on the part of the candidate or his election agent to the commission of
corrupt practice, that itself is sufficient. When a corrupt practice is committed by an agent and
there is no such consent then the petitioner must go further and prove that the result of the
election in so far as the returned candidate is concerned was materially affected".
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502. However, as I have already held, there is no case or evidence before us that the Congress
party was the agent, express or implied, of the original respondent or acting as the channel
through which any money whatsoever was spent by the original respondent. The petition could
not possibly succeed on the ground of exceeding election expenses. On the other hand, on the
findings given by me above, the expenses on the construction of rostrums were also erroneously
added by the learned Judge. In fact, it seems that other two items mentioned there were also
wrongly added. Expenses of the installation and use of loudspeakers and the power supplied were
certainly shown to have been borne by the Congress party itself. It is true that when elections of
persons in the position of the Prime Minister or even of ministers, whether in the Central
Government or a State Government, take place, a number of people come forward to either give
or thrust their supposed aid in the election. It may be impossible for the candidat
503. The third and the last and a subsidiary submission on behalf of the election-petitioner, on
election expenses, was that, Shri Dal Bahadur Singh not having been produced by the original
respondent, some sort of presumption arises against the original respondent. I do not think that it
is possible to shift a burden of the petitioner on to the original respondent whose case never was
that Shri Dal Bahadur Singh spent any money on her behalf. The case of M. Chenna Reddy v.
Ramchandra Rao was relied upon to submit that a presumption may arise against a successful
candidate from the non-production of available evidence to support his version. Such a
presumption, under Section 114 Evidence Act, it has to be remembered, is always optional and
one of fact, depending upon the whole set of facts. It is not obligatory.
504. In Chenna reddy's case (supra), the evidence seemed to have resulted in a prima facie
case whose effect the respondent had to get rid of. In the case before us, the election-petitioner
had summoned Shri M. L. Tripathi (PW 59), the Secretary of the District Congress Committee,
who appeared with account books of the party of Rae Bareli. The election-petitioner could get
nothing useful out of his evidence. Even if the election-petitioner did not, for some reason, desire
to summon Shri Dal Bahadur Singh similarly, his Counsel could have requested the court to
exercise its discretionary powers under Order XVI, Rule 14 C. P. C., but this was never done. A
presumption could not arise on the facts and circumstances of a case in which it could not be said
that Shri Dal Bahadur Singh's evidence was necessary to discharge some burden of the original
respondent. The original respondent and discharged whatever onus lay upon her by producing her
own election agent Shri Kapur, who had kept her accounts. And, she had h
505. I may now very shortly deal with the objection that, as a number of members of
Parliament belonging to the opposition parties were in detention, under the preventive detention
laws, which could not be questioned before courts of law, because of the declaration of the
emergency by the President, there was a procedural defect in making the amendments of the Act
of 1951 and the Thirty-ninth Constitutional Amendment.
506. Article 122 of the Constitution prevents this Court from going into any question relating
to irregularity of proceedings "in Parliament". It reads as follows :
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"122. (1) The validity of any proceedings in Parliament shall not be called in question on the
ground of any alleged irregularity of procedure.
(2) No officer or member of Parliament in whom powers are vested by or under this
Constitution for regulating procedure or the conduct of business, or for maintaining order in
Parliament shall be subject to the jurisdiction of any Court in respect of the exercise by him of
those powers".
507. What is alleged by the election-petitioner is that the opposition members of Parliament,
who had been detained under the preventive detention laws, were entitled to get notice of the
proposed enactments and the Thirty-ninth Amendment, so as to be present "in Parliament", to
oppose these changes in the law. I am afraid, such an objection is directly covered by the terms of
Article 122 which bears every court from examining the propriety of proceedings "in parliament".
If any privileges of members of Parliament were involved, it was open to them to have the
question raised "in Parliament". There is no provision of the Constitution which has been pointed
out to us providing for any notice to us providing for any notice to each member of Parliament.
That, I think, is also a matter completely covered by Article 122 of the Constitution. All that this
Court can look into, in appropriate cases, is whether the procedure which amounts to legislation
or, in the case of a constitutional amendment, which is prescrib
508. Again, this Court has held, in Sharma v. Sri. Krishna, that a notice issued by the Speaker
of a Legislature for the breach of its privilege cannot be questioned on the ground that the rules of
procedure relating to proceedings for breach of privilege have not been observed. All these are
internal matters of procedure which the Houses of Parliament themselves regulate.
509. As regards the validity of the detentions of the members of Parliament, that cannot be
questioned automatically or on the bare statement by Counsel that certain members of Parliament
are illegally detained with some ulterior object. The enforcement of fundamental rights in
regulated by Articles 32 and 226 of the Constitution and the suspension of remedies under these
articles is also governed by appropriate constitutional provisions. Their legality and regularity
cannot be collateral assailed by mere assertions made by Counsel before us. I therefore, overrule
these objections to the validity of the amendments and the Thirty-ninth Amendment as we cannot
even entertain them in this manner in these proceedings.
510. I will now turn to the validity of clause (4) of Article 329A sought to be added by
Section 4 of the Thirty-ninth Amendment. I will quote the whole of Section 4 as some argument
was advanced on the context in which clause (4) of Article 329A occurs. Section 4 reads as
follows :
"4. In Part XV of the Constitution, after Article 329, the following article shall be inserted,
namely :-
"329A. (1) Subject to the provisions of Chapter II of Part V [except sub-clause (e) of clause
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(1) of Article 102], no election-
(a) to either House of Parliament of a person who holds the office of Prime Minister at the
time of such election or is appointed as Prime Minister at the time of such election or is appointed
as Prime Minister after such election;
(b) to the House of the people of a person who holds the office of speaker of that House at
the time of such election or who is chosen as the Speaker for that House after such election;
shall be called in question, except before such authority [not being any such authority as is
referred to in clause (b) of Article 329] or body and in such manner as may be provided for by or
under any law made by Parliament and any such law may provide for all other matters relating to
doubts and disputes in relation to such election including the grounds on which such election may
be questioned.
(2) The validity of any such law as is referred to in clause (1) and the decision of any authority
or body under such law shall not be called in question in any court.
(3) Where any person is appointed as Prime Minister or, as the case may be, chosen to the
office of the Speaker of the House of the People, while an election petition referred to in clause
(b) of Article 329 in respect of his election to either House of Parliament or, as the case may be,
to the House of the People is pending, such election petition shall abate upon such person being
appointed as Prime Minister or, as the case may be, being chosen to the office of the Speaker of
the House of the People, but such election may be called in question under any such law as is
referred to in clause (1).
(4) No law made by Parliament before the commencement of the Constitution (Thirty-ninth
Amendment) Act, 1975, in so far as it relates to election petitions and matters connected
therewith, as it relates to election petition and matters connected therewith, shall apply or shall be
deemed ever to have applied to or in relation to the election of any such person as is referred to in
clause (1) to either House of Parliament and such election shall not be deemed to be void or ever
to have become void on any ground on which such election could be declared to be void or has,
before such commencement, been declared to be void under any such law and notwithstanding
any order made by any court, before such commencement, declaring such election to be void,
such order and any finding on which such order is based shall be and shall be deemed always to
have been void and of no effect.
(5) Any appeal or cross appeal against any such order of any court as referred to in clause (4)
pending immediately before the commencement of the Constitution (Thirty-ninth Amendment)
Act, 1975, before the Supreme Court shall be disposed of in conformity with the provisions of
clause (4).
(6) The provisions of this article shall have effect notwithstanding anything contained in this
Constitution."
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511. Counsel for both sides are agreed that, for the purpose of the case before us, we need not
consider the constitutional validity of clauses (1) to (3) of the newly introduced Article 329A of
the Constitution. I will therefore, concern myself only with the constitutional validity of a clause
(4) of Article 329A of the Constitution.
512. Learned Counsel for the election-petitioner contended that the constituent or amending
power contained in Article 368 of our Constitution had been misused to achieve some purpose
which was either outside the article or which struck at the roots of the "basic structure" or "the
essential features" of our Constitution. It was submitted that the amendment is invalid on an
application of tests laid down by a majority of the 13 Judges who indicated certain basic and
inviolable principles of our Constitution in Kesavananda Bharati's case (supra). It was contended
that the newly added Article 329A of the Constitution, far from constituting a constitutional law,
which alone could be made under Article 368, did not even satisfy the tests of a law, inasmuch as
it did not lay down any general rule applicable to all cases of a particular class but was really
designed to decide one particular election case, which is now before us for hearing, in a particular
way. According to learned Counsel, the amending bodies had
513. All the contentions of learned Counsel for the election-petitioners, apart from the alleged
procedural defect in amending the Act of 1951 and the Constitution when a number of opposition
members of Parliament are detained under the preventive detention was, already dealt with by me,
seemed directed towards producing two results either simultaneously or alternatively : firstly, to
persuade us to hold that the constituent power had been exceeded or sought to be utilised for
extraneous purposes falling outside the purview of Article 368 of the Constitution altogether; and,
secondly, to convince us that the effects of the fourth clause of Article 329A must be such that, if
this purported addition to our Constitution was upheld, the "basic structure" or the "basic
features" or "the underlying principles" of our Constitution will be irreparably damaged so that it
could not any longer be looked upon as the same Constitution. It was submitted that the majority
view in Kesavananda Bharati's case (supra), which w
514. We have heard the learned Attorney General and the learned Solicitor General of India,
in defence of the fourth clause of Article 329A sought to be added by the Thirty-ninth
Amendment, as well as Mr. A. K. Sen and Mr. Jagannath Kaushal, learned Counsel for the
original respondent, who also supported the validity of the impugned clause. The first contention
of the learned Counsel seemed directed towards inducing us not to look beyond the language to
discover the purposes or the nature of the function performed in passing clause (4) of Article 329
or its effects. This contention had necessarily to rest upon the assumption that provisions of
clauses (4) and (5) and (6) of Article 329 A, sought to be introduced by the Thirty-ninth
Amendment, were valid and had the effect of depriving this Court of jurisdiction to determine the
validity of clause (4) by exploring the purposes and objects which may lie behind the plain
meaning of clause (4). Our difficulty, however, is that even an attempt to give its natural
515. In the circumstances of this case, set out above, the findings on contested questions of
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fact and law and the order indicated by clause (4) could only be those contained in the he
judgment under appeal by both sides before us. The language of clause (4) was, according to the
submissions of learned Counsel supporting the amendment, itself meant to convey that, after
going into the disputed questions of fact, the constituent bodies had reached the conclusion that
the order and the findings must have no legal effect. Indeed the Solicitor-General went so far as to
submit that Parliament must be deemed to be aware of the contents of the whole record of the
proceedings in the High Court including the pleadings, the evidence, and the findings in the
judgment of the High Court, as these were all available to it. In other words, we must imagine and
suppose that, whatever may be the actual position Parliament had sat in judgment over the whole
case as a court of appeal would have done. But the impugned clause (4)
516. At the same time, it was contended, and this was especially emphasised by Mr. Jagannath
Kaushal, that Parliament and the ratifying Legislatures of the States- participating in the
Constitution-making process- had not applied any pre-existing norms but had merely declared and
registered, almost automatically, without any need to consider anything further or to apply any
law whatsoever to any facts, what followed from the abrogation of all pre-existing law, with its
procedure and norms, so far as the election-petition against the original respondent was
concerned. This meant that the constituent bodies, proceeding on the assumption that the High
Court had rightly held the original respondent's election to be invalid by applying the provisions of
the 1951 Act, had considered it necessary to validate what really was invalid according to the
1951 Act. In view of what I have already held on merits, such an assumption, if it was there at all,
could only be based on a misconception.
517. The conflicting points of view, advanced in support of the amendment, enabled the
election-petitioner's Counsel to find support for his contention that the impugned clause (4)
obviously meant that a considered judgment on, inter alia, disputed question of fact, however
erroneous, had been swept aside, quite unceremoniously mechanically, and, without a semblance
of a quasi-judicial procedure by a purported exercise of constituent power by the constituent
bodies, consisting of the two Houses of Parliament and the ratifying Legislatures of the various
States. He urged that the alternative contentions of Mr. Kaushal constituted an admission that no
procedure whatsoever, which could be considered either reasonable or appropriate for a judicial
or quasi-judicial determination of any question of fact or law was followed. He contended that
whichever of the two alternative contentions of counsel supporting the Thirty-ninth Amendment
was accepted by us, his submission, that the amendment was ultra vires, arbitrar
518. The essence of judicial or quasi-judicial function is the application of a law which is
already given by the law-making authority to the judicial or quasi-judicial authority to apply. This
law has to be applied to certain findings after determining the disputed question of fact in a
manner which must confirm to the canons of natural justice. Learned Counsel for the
election-petitioner contended that it was not necessary to go beyond clause (4) to reach the
conclusion that what was being done was to decide a dispute which could, under the law as it
existed till then, only be judicial determinated in the mode prescribed by Article 329(b) read with
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the Act of 1951 which could not be circumvented even before Article 329A engrafted exceptions
on it and the Act of 1951 had been repealed retrospectively in its application to the Prime
Minister. The result of a sort of consolidated legislative-cum-adjudicator function was sought to
embodied in Article 329A (4) by purported constitutional amendment. He contended
519. Learned Counsel supporting the Thirty-ninth Amendment, had, in defence of the
amendment, advanced arguments which go beyond the position which was adopted to support the
amendments considered by us in Kesavananda Bharati's case (supra). The new argument now
advanced to use the language of the Solicitor General in his last written submissions, is that the
power of amendment under Article 368 is "the very original power of the people which is
unbroken into the legislative and the executive and the judicial". He submitted that the implied
limitations, to which the majority decision in Kesavananda Bharati's case (supra) has committed
this Court for the time being, are no longer available when considering the "unbroken" power. Mr.
A. K. Sen, learned Counsel for the original respondent, puts this very argument in the following
words in his written submissions :
"In the hands of the constituent authority there is no demarcation of powers. But the
demarcation emerges only when it leaves the hands of the constituent authority through well
defined channels into demarcated pools. The constituent power is independent of the fetters or
limitations imposed by separation of powers in the hands of the organs of the Government
amongst whom the supreme authority of the State is allocated.
The constituent power is independent of the doctrine of separation of powers. Separation of
powers is when the Constitution is framed laying down the distribution of the powers in the
different organs such as the legislative, executive and the judicial power. The constituent power
springs as the fountainhead and partakes of sovereignty and is the power which creates the organ
and distributes the powers. Therefore, in a sense the constituent power is all-embracing and is at
once judicial, executive and legislative, or in a sense super power The constituent power can also
change the system of checks and balances upon which the separation of powers is based."
520. The theory advanced before us may have been designed to escape the logical
consequences of the majority view in Kesavananda Bharati's case (supra) which we cannot, sitting
as a bench of five Judges in this Court, overrule. The theory is, however, quite novel and has to
be, I think dealt with by us. It postulates an undifferentiated or amorphous amalgam of bare
power constituting the "constituent power". According to this theory, the power which
constitutes does not need to be either constituted or prevented from exercising a power assigned
by it already to a constituted authority. Hence, it is a power of a kind which is above the
Constitution itself. If I am not mistaken, the learned Solicitor General did say the constituent
power lies "outside" the Constitution. In other words, it is independent and above the
Constitution itself because it pirates on the Constitution and can displace it with, so to say, one
stroke of its exercise. I do not think that such an extreme theory could be supported by the cit
521. If we were to accept the theory indicated above, it would make it unnecessary to have a
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Constitution beyond one consisting of a single sentence laying down that every kind of power is
vested in the constituent bodies which may, by means of a single consolidated order or declaration
of law, exercise any or all of them themselves whenever they please whether such powers be
executive, legislative, or judicial. Could this be the ambit of "constituent power" in our
Constitution? Would such a view not defeat the whole purpose of a Constitution? Does the whole
Constitution so crumble and melt in the crucible of constituent power that its part cannot be made
out? Before we could accept a view which carries such drastic implications with it we will have to
overrule the majority view in Kesavananda Bharati's case (supra). The majority view in that case,
which is binding upon us, seemed to be that both the supremacy of the Constitution and
separation of powers are parts of the basic structure of the Constitution.
522. If "constituent power", by itself, is so transcendental and exceptional as to be above the
provisions of the Constitution itself, it should not, logically speaking, be bound even by the
procedure of amendment prescribed by Article 368(2). I have not found any opinion expressed so
far by any learned Judge of this Court to show that the constituent power is not bound by the
need to follow the procedure laid down in Article 368(2) of the Constitution. Indeed, rather
inconsistently with the theory of an absolute and unquestionable power in some undifferentiated
or raw and unfettered form, operating from above and outside the Constitution, learned Counsel,
supporting the impugned fourth clause in Article 329A, concede that the constituent power is
bound by the appropriate procedure laid down in Article 368 for the amendment of the
Constitution. What they urge is that, subject to this procedure, which has been followed here, the
constituent power cannot be questioned because it is a "sovereign power". The log
523. I think that the possibly theoretical question indicated above, whatever may be the object
of raising it, does deserve to be seriously considered and answered by us because it discloses a
basic misconception. Therefore, I propose to consider it at a length which seems to me to be
justified by our need to clarify our thinking on a basic or "key" concept without a final
commitment to a particular view on it. Clearer thinking, by examining a basic theoretical question
from every conceivable angle, leads, I believe, to that openmindness which is needed by lawyers
no less than by any other class today so that we may, contrary to our reputation, be responsive to
the inevitable challenges of change. Justice Holmes once said :
"Theory is the most important part of the dogma of law, as the architect is the most important
man who takes part in the building of a house. " [Holmes Collected Papers, (1921) p. 200].
524. It seems to me that the words "sovereignty" and "sovereign power", used repeatedly
learned Counsel defending the Thirty-ninth Amendment to describe the constituent power, should,
for several good reasons, be avoided, so far as possible, by lawyers who seek that clarity of
thought for which precision in language is the first requirement. One of these reasons was given
by Lord Bryce [Studies in "History and Jurisprudence" (1901) (pp. 503-504] :
"The frontier districts, if one may call them so, of Ethics, of Law and of political science have
been thus infested by a number of vague or ambiguous terms which have produced many barren
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discussions and caused much needless trouble to students....... No offender of this kind has given
more trouble than the so-called 'Doctrine of Sovereignty'".
Prof. Mellwain, however, opined :
"But this very fact is proof of its vital importance in our modern world, and the wide variety
of the views held concerning its essence, as well as the conflicting conclusions to which these
views still lead, may furnish sufficient excuse for another attempt to clarify some of our ideas
touching this central formula under which we try to rationalize the complicated facts of our
modern political life."
Another reason for eschewing such expressions, so far as possible, is that they are "emotive"
or of a kind about which Mr. Leonard Schapiro, (writing on "Key Concepts in Political Science"
Series, at p. 7) rightly observed.
"Emotive words such as 'equality', 'dictatorship', 'elite' or even 'power' can often, by the very
passions which they raise, obscure a proper understanding of the sense in which they are, or
should be, or should not be, or have been used. Confucius regarded the 'rectification of names' as
the first task of government.'If names are not correct, language will not be in accordance with the
truth of things', and this in time would lead to the end of justice, to anarchy and to war."
At any rate, in America, the concept of State sovereignty, ranged against that of national
sovereignty, did produce a civil was which is said to have been precipitated by the decision of the
American Supreme Court in Dred Scott v. Standford 179.
525. I must preface my observation here about the concept of "sovereignty" and exercise of
"sovereign power", between which I make a distinction, with two kinds of explanation. The first
kind involves an exposition of a functional or sociological point of view. I believe that every
social, political, economic, or legal concept or doctrine must answer the needs of the people of a
country at a particular time. I see the development of concepts, doctrines, and institutions as
responses to the changing needs of society in every country. They have a function to fulfill in
relation to national needs. The second type of explanation may be called historical or meant
merely to indicate and illustrate notions or concepts put forward by thinkers at various times in
various countries so as to appropriately relate them to what we may find today under our
Constitution. We have to appreciate the chronology or stages of their development if we are to
avoid trying to fit into our Constitution something which has no real rele
526. I certainly do not think that Judges of this Court have or should think that they have the
power to consciously alter, under the guise of judicial interpretation, what the Constitution
declares or necessarily implies even though our pronouncements, interpreting the Constitution,
may have the effect of contributing something to the growth or even change of Constitutional
Law by clearing doubts, removing uncertainties, or filling up of gaps to a limited extent. If the law
embodied in our Constitution, as declared by this Court, is not satisfactory, I do not think that we
can or should even attempt to stand in the way of a change of any kind sought through
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appropriate constitutional means by the constitutionally appointed organs and agencies of the
State. If, however, this Court is asked to declare as valid what seems to it to fall clearly outside
the ambit of the Constitution, and, indeed, what is even claimed to be operating from outside the
Constitution and described as a supra-constitutional power, the
527. The term "sovereign" is derived from the Latin word "Superanus" which was akin to
"Suzerian" suggesting a hierarchy of classes which characterised ancient and medieval societies. In
its origin, it is an attribute assigned to the highest living human superiors in the political hierarchy
and not some abstract quality of a principle or of a law contained in a document- a meaning, as
will be shown here, which emerges clearly later. In times of anarchic disorder or oppression, by
local satraps or chieftains or barons or even bullies and criminals, ordinary mortals have sought
the protection of those who could give it because of their superior physical might. No book or
document could provide them with the kind of help they needed. They looked up to their
"Sovereign liege and Lord", as the medieval monarch was addressed by his subjects, for
protection against every kind of tyranny and oppression.
528. The Greeks and Romans were not troubled by theories of "sovereignty" in a State. The
principle that Might was Right was recognised as the unquestioned legally operative principle at
least in the field of their constitutional laws. Greek philosophers had, however, formulated a
theory of a Law of Nature which was, morally, above the laws actually enforced. In later stages of
Roman law, Roman jurists also, saturated with Greek notions of an ethically superior law of
nature, said that the institution of slavery, which gave the owner of a slave theoretically absolute
powers of life and death over the slave, just like the powers of a pater-familia over his children,
was contrary to just natural although it was recognised by jus gentium, the laws of then civilised
world. Aristotle, in his analysis of forms of government, had emphasized the importance of the
Constitution of a State as a test or determinant of sovereign power in the State. And, Roman
jurists had, indirectly, cleared the path for the rise of mode
529. Romans not only clarified basic notions but developed a whole armoury of new forms in
which law could be declared or made : Lex; Plebiscitum; Magistratuum Edicta; Senatusconsulta;
Responsa Prudentium; Principum Placita. The last mentioned consisted of orders of Roman
Emperors which were of various kinds, some of general application to cases of particular kinds
and others for particular individual cases : Edicta, Decreta, Mandata, Rescripta. They had the
"force of law" or "Lex" which could be roughly equated with our statutory law."Decreta" were
issued as decisions on individual disputes, in exercise of the Emperor's power "under" the
authority of "Lex de Imperio", although "in the classical period it was firmly established that what
the Emperor ordained had the force of law" (See : R. W. Leage on Roman Law, 1961, p. 32
Edn.). The point to note is that, even in the embryonic stages of government through legislation
law making a decision of individual cases are found distinctly separate.
530. After the break-up of the Roman empire, there were attempts in medieval Europe, both
by the Church and the Kings, to develop spiritual and temporal means for checking wrong and
oppression. Quests for the superior or a sovereign power and its theoretical justifications by both
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ecclesiastical and lay thinkers were part of an attempt to meet this need. The claims of whose
who, as vicars of God on earth, sought to meddle with mundane and temporal affairs and acquire
even political power and influence were, after a struggle for power, which look different forms in
different countries, finally defeated by European kings with the aid of their subjects. Indeed, these
kings tried to snatch, and not without success, to wear spiritual crowns which the roles of
"defenders of the faith" carried with them so as to surround themselves with auras of divinity.
531. The theory of a legally sovereign unquestionable authority of the King, based on physical
might and victory in battle, appears to have been developed in ancient India as well, by Kautilya,
although the concept of Dharma, based on the authority of the assemblies of those who were
learned in the Dharmashastras, also completed for control over exercise of royal secular power.
High philosophy and religion, however, often seem to have influenced and affected the actual
exercise of sovereign power and such slight law-making as the King may gave attempted. The
ideal King, in ancient India, was conceived of primarily as a Judge deciding cases or giving orders
to meet specific situations in accordance with the Dharmashastras. It also appears that the actual
exercise of the power to administer justice was often delegated by the King to his judges in
ancient India. Indeed, according to some, the theory of separation of powers appears to have been
carried so far (See : K. P. Jayaswal in "Manu and Yajnavalkya"- A b
532. We know that Semetic prophets, as messengers of God, also became rulers wielding both
spiritual and political temporal power and authority although to Jesus Christ, who never sought
temporal power, is ascribed the saying : "Render unto Caesar the things that are Caesar's and to
God things that are God's". According to the theory embodied in this saying, spiritual and
temporal powers and authorities had to operate in different orbits of power altogether. Another
theory, however, was than the messenger of God had given the sovereign will of God Almighty
which governed all matters and this could not be departed from by any human authority or ruler.
In the practical administration of justice, we are informed, Muslim caliphs acknowledge and
upheld the jurisdiction of their Kazis to give judgment against them personally. There is an
account of how the Caliph Omar, being a defendant in a claim brought by a Jew for some money
borrowed by him for purposes of State, appeared in person in the Court of his own Kazi
533. Theory, therefore, that there should be a separation of functions between the making of
laws, the execution of laws, and the application of laws, after ascertaining facts satisfactorily, is
not new. It is embedded in our own best traditions. It is dictated, if by nothing else, by common
sense and the principle of division of labour, without an application of which efficient performance
of any duties cannot be expected.
534. We may now look back at the theory and practice of sovereignty in Europe. There, wise
kings, in the middle ages, sought the support of their subjects in gatherings or "colloquia", which,
in the words of Mr. De Jouvenel (See : "Sovereignty, an Inquiry into the Political Good" p. 177),
"had the triple character of a session of justice, a council of State and the timid beginnings of a
legislative assembly were the means by which the affairs of the realm came more and more into
the hands of the King". He goes on to observe :
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"The council of the King and the courts of justice progressively developed an independent life,
the assembly remaining under the name of parliament in England and State-General in France".
535. Bodin, writing in the reign of Henry III of France (1551 to 1589), viewed sovereignty as
a absolute unlimited power which, though established by law, was not controlled by it. According
to him, under an ideal system sovereignty was vested in the King by driven right. The King's word
was law. But, even according to Bodin, although the sovereign was free from the trammels of
positive law, as he was above it, yet, he was "bound by divine law and the law of nature as well as
by the common law of nations which embodies principles distinct from these" (See : Dunning's
"History of Political Theories Ancient & Medievl" p. 28). Hobbes, a century later continued this
line of thinking on an entirely secular and non-moral plane. He opined : "Unlimited power and
unfettered discretion as to ways and means are possessed by the sovereign for the end with a view
to which civil society is constituted, namely, peace and escape from the evils of the state of
nature", in which the life of individuals was "nasty, brutish, an
536. As we know, in the 17th and 18th centuries, European monarchs came in sharp conflict
with the representatives of their subjects assembled in "Parliament" in England and in the
"State-General" in France. And, theories were put forward setting up, as against the claims of
kings to rule as absolute sovereigns by indefeasible divine right, no lesser claims to inviolability
and even divinity of the rights of the people. But, theories apart, practice of the art of government
proves that the effective power to govern by the very nature of conditions needed for its efficient
exercise, has had to be generally lodged in one or few especially in times of crisis, but not in all
those who represent the people even under democratic forms of Government. Direct democracy,
except in small city States such as those or ancient Greece, is not practically feasible.
537. Theories of popular sovereignty put forward by Locke and Rousseau came to the
forefront in the 17th and 18th centuries- an era of revolutionary changes and upheavals. The
theory of certain immutable individual natural rights, as the basis of a set of positive legal rights,
essential and necessary to the fulfillment of the needs of human beings as individuals, was
advanced by Locke. He visualised a social contract as a means of achieving the welfare of
individuals composing Society. He also advocated separation of powers of government in a
Constitution as a method of securing rights of individual citizens against even their own
governments. Montesquieu elaborated this theory. The ideas of Rousseau were amongst those
which contributed to produce that great conflagration, the French Revolution, which was
described by Carlyle as the "bonfire of feudalism : Government, according to Rousseau, in all its
departments, was the agent of the General Will of the sovereign people whose welfare must
always be its ai
"There's on earth a yet auguster thing, veiled though it be, than Parliament and king."
T. H. Green said :
"It is to this 'auguster thing', not to such supreme power as English lawyers held to be vested
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in 'Parliament and King', that Rousseau's account of the sovereign is really applicable".
538. The ideas of Rousseau were subsequently used by Hegelian and idealist political
philosophers to deify the State as the repository of the "Real Will" of the people and by Marxists
to build their their of a dictatorship of the proletariat. But, the views of Locke and Montesquieu
were sought to be given a practical form by American Constitution-makers, who imbued with
them, devised a machinery for the control of sovereign power of the people placed in the hands of
the three organs of State so that it may not be misused. Suspicion of governmental power and fear
of its misuse, which characterised liberal democratic thinking, underlay the doctrine of separation
of powers embodied in the American Constitution.
539. "The merits of democracy", according to Bertrand Russel (See : "Power : A New Social
Analysis" p. 187) "are negative : It does not insure good government, but it prevents certain
evils". He pointed out (at p. 188) :
"It is possible, in a democracy, for the majority to exercise a brutal and wholly unnecessary
tyranny over a minority....... The safeguarding of minorities, so far as is compatible with orderly
Government, is an essential part of the taming of power."
He also said (at p. 192) :
"Where democracy exists, there is still need to safeguard individuals and minorities against
tyranny, both because tyranny is undesirable in itself, and because it is likely to lead to breaches of
order. Montesquieu's advocacy of the separation of legislative, executive and judiciary, the
traditional English belief in checks and balances, Bentham's political doctrines and the whole of
nineteenth century liberalism, were designed to prevent the arbitrary exercise of power. But such
methods have come to be considered incompatible with efficiency".
540. Some quite honest, upright, and intelligent people think that the inefficiency, the
corruption, the expense, the waste of time and effort, and the delay in accomplishing what they
regard as much too urgently needed socio-economic and cultural transformations of backward
peoples today, involved in treading the democratic path, are so great that they would readily
sacrifice at least some of the democratic processes and such safeguards against their misuse as
separation of powers and judicial review are meant to provide. They would not mind taking the
risk of falling into the fire to escape from what they believe to be a frying pan. Some may even
agree with Bernard Shaw, who liked to look at everything turned upside down in attempts to
understand them, that Democracy, with all its expensive and time-consuming accompaniments, is,
even in the most advanced coteries, only a method of deluding the mass of the people into
believing that they are the rulers whilst the real poser is always enjoyed by the few who
541. Judges must, no doubt, be impartial and independent. They cannot, in a period of
intensified socio-economic conflicts, either become tools of any vested interests, or function, from
the bench, as zealous reformers propagating particular causes. Nevertheless, they cannot be
expected to have not notions whatsoever of their own, or to have completely blank minds on
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important questions indicated above which, though related to law, really fall outside the realm of
law. They cannot dwell in ivory towers or confine their processes of thinking in some hermetically
sealed chambers of purely legal logic artificially cut off from the needs of life around to which law
must respond. Their deferring individual philosophies, outlooks, and attitudes of vital questions,
resulting from differences in life, will often determine their honest choices between two or more
reasonably possible interpretations of such words as "amendment" or "constituent power" in the
Constitution. But, on certain clear matters of principle, und
542. A lamentable example of what took place in the course of English constitutional history
when a House of Commons, composed of very intelligent and learned people, one of whom, Holt,
subsequently became a distinguished Chief Justice of England, took upon itself to sit in judgment
on a decision of two Judges of the King's Bench Division one of whom was suspected of being a
partisan of Royal prerogative and power at a time when a struggle for supremacy between the
competing legal claims of the King, as the titular sovereign, and those of the House of Commons,
as representing the people, was still going on. In strict law, which was unwritten, the position on
that problem of power was not suite clear at that time. The episode is thus described by Lord
Denman, C.J. in Stockdale v. Hansard 180 (at p. 1163).
"The next case to which I advert in truth embraced no question of privilege whatever; but, as
one of the highest authorities in the State has thought otherwise, I shall offer some comments
upon it; I mean Fay v. Topham. The House of Commons ordered the defendant, their sergeant
at-arms, to arrest and imprison the plaintiff for having dared to exercise the common right of all
Englishmen, of presenting a petition to the King on the state of public affairs at a time when no
Parliament existed. For this imprisonment an action was brought. The declaration complained, not
only of the personal trespass, but also of extortion of the plaintiff's money practiced by defendant
under colour of the Speaker's warrant. The plea of justification under that warrant, which could
not possibly authorise the exertion, even if it could the arrest, was overruled by this Court, no
doubt with the utmost propriety, for the law was clear; Lord Ellenborough points this out in the
most forcible manner, in 14 East 109. Yet for this righte
543. In Stockdale v. Hansard (supra) the action of the House of commons, on Fay v. Topham
(supra), was practically declared to be illegal or unconstitutional for arbitrariness. The sovereign
British Parliament, however, did not alter but has acquiesced in the law as stated by Lord Denman
who pointed out, by references to a number of precedents, that common law courts had
continuously been determining questions relating to the very existence of an alleged privilege and
defining its orbit on claims based on the ground of a parliamentary privilege. And, English courts
have gone on doing this unhesitatingly after Stockdale v. Hansard (supra), just as they had done
earlier, as a part of their function and duty to interpret and declare the law as it exists.
544. Let me go back a little further to the time when another English Chief Justice, Sir
Edward Coke, who on being summoned, with his brother Judges, by King James I, to answer why
the King could not himself decide cases which had to go before his own courts of justice, asserted
: ".... no king after the conquest assumed to himself to give any judgment in any cause
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whatsoever, which concerned the administration of justice within this realm, but these were solely
determined in the courts of justice". When the King said that "he thought the law was founded on
reason, and that he and others had reason, as well as the Judges", Coke answered :
"True it was, that God had endowed his Majesty with excellent science, and great
endowments of nature; but his Majesty was not learned in the laws of his realm of England, and
causes which concern the life, or inheritance, or goods, or fortunes of his subjects, are not to be
decided by natural reason, but by the artificial reason and judgment of the law, which law is an act
which requires long study and experience, before that a man can attain to the recognizance of it;
and that the law was the golden metwand and measure to try the causes of the subjects; and which
protected his Majesty in safety and peace. ("The Higher Law-Background of American
Constitutional Law" by Edward S. Corwin, pp. 38-39).
545. We know that Coke even advanced the claim, in Bonham's case that courts could
invalidate Acts of Parliament if they contravened rules of natural justice such as that a man shall
not be heard before he is condemned or that he should be a judge in his own cause. As Ivor
Jennings points out, in an appendix to "The law and the Constitution" (5th Edn., 1959, p. 318) the
theory of parliamentary sovereignty or supremacy could, by no means, be said to be firmly
established in England in Coke's time.
546. Blackstone, while enunciating the theory of parliamentary sovereignty in the 19th
century, as it was to be later expounded in the 20th century by Prof. A. V. Dicey, also claimed
superiority for "the law of nature which was common to all mankind". He said about this law :
"It is binding over all the globe, in all countries, and at all times : no human laws are of any
validity if contrary to this; and such of them as are valid derive all their force and all their
authority, mediately or immediately, from this original; " (See : Dicey- Law of the Constitution, P.
62).
547. It is a matter of legal and constitutional history that English judges finally rejected claims
based upon vague philosophical concepts or upon a law of nature or appeals to the "Yet auguster
thing" pitted against statutory law exception so far as certain rules of natural justice and reason
could impliedly be read into Acts of Parliament due to absence of statutory prohibition and the
need to observe them having regard to the character of the function required by a statute to be
performed. Constitutional historians, such as Holdsworth, have pointed out how English common
lawyers, some presiding as Judges over King's courts of justice, others sitting in Parliament as
legislators, joined hands to evolve, sustain, and give life to principles of "Sovereignty of
Parliament" and the "Rule of law" as understood by them. Dicey asserted, in his "Law of the
Constitution", that both these principles so operated as to reinforce each other instead of coming
into conflict with each other. One wonders whether this coul
548. Willis, dealing with the development of American Constitutional Law, wrote about the
claim of Coke, mentioned above, to invalidate Acts of Parliament by reference to certain
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fundamental principles of natural justice and of common law (See : Willis on Constitutional Law,
1936 Edn. p. 76) :
"This dictum of Coke, announced in Dr. Bohman's case was soon repudiated in England, but
the doctrine announced in Coke's dictum found fertile soil in the United States and sprouted into
such a vigorous growth that it was applied by the United States Supreme Court in the decision of
cases coming before it; and it has been said that the doctrine of the supremacy of the Supreme
Court is the logical conclusion of Coke's doctrine of control of the courts over legislation".
549. It seems to me that judicial review of all law-making, whether it appertains to the sphere
of fundamental law or of ordinary law, is traceable to the doctrine of judicial control by reference
to certain basic principles contained in a Constitution and considered too inviolable to be easily
alterable. It may be that this doctrine is unsuitable for our country at a time when it is going
through rapid socio-economic transformation. Nevertheless, so long as the doctrine is found
embodied in our Constitution, we cannot refuse to recognise it.
550. In America, there was some doubt whether the doctrine of judicial review of all
legislation naturally flowed out of the vesting of judicial power by Section 1 of Article 3 of their
Constitution which says :
"The judicial power of the United States shall be vested in one Supreme Court, and in such
inferior Courts as the Congress may, from time to time, ordain and establish". (Willis on
Constitutional Law, p. 1020).
There is no article there, like Article 13 of our Constitution, which declared any kind of
legislation abridging or taking away fundamental rights to be "void". The doubt was not without
substance. It was removed by Chief justice Marshall whose judgment in Marbury v. Madison,
firmly established the doctrine of judicial review and the supremacy of the Supreme Court of
America, in the judicial field of interpretation, as the mouthpiece of the Constitution, and,
therefore, of the "Real Will" of the people themselves. The Constitution, as the basic or
fundamental law of the land, was to operate there as the touchstone of the validity of ordinary
laws just as the validity of laws made by British colonial legislatures was tested by reference to the
parental Act of the British Parliament.
551. Under our Constitution, by Article 141 of the Constitution, power is vested only in the
Supreme Court and in no other organ or authority of the Republic to declare the law "Which shall
be binding on all Courts within the territory of India". Article 143 of the Constitution of India also
shown that whenever questions of facet of law have either arisen or are likely to arise, the
President of India may, in view of their public importance, seek the opinion of the Supreme Court,
by a reference made to the Court. The procedure on such a reference is that of a judicial authority
which hears those interested and then gives its opinion. Article 32 of the Constitution gives a wide
power to the Supreme Court "to issue directions or orders or writs", which is larger than that of
the British courts issuing prerogative writs, although it is confined to the enforcement of the rights
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conferred by Part III dealings with fundamental rights. The power of the High Courts of the
various States under Article 226 of the Cons
552. The claim therefore, that an amalgam or some undifferentiated residue of inherent power,
incapable of precise definition and including judicial power, vests in Parliament in its role as a
constituent authority, cannot be substantiated by a reference to any article of the Constitution
whatsoever, whether substantive or procedural. Attempts are made to infer such a power from
mere theory and speculation as to the nature of the "constituent power" itself. I do not think that,
because the constituent power necessarily carries with it that power to constitute judicial
authorities, it must also, by implication, means that the Parliament, acting in its constituent
capacity, can exercise the judicial power itself directly without vesting it in itself first by an
amendment of the Constitution. The last mentioned objection may appear to be procedural only,
but, as a matter of correct interpretation of the Constitution, and, even more so, from the point of
view of correct theory and principle, from which no practi
553. This impels me to consider such theories of sovereignty as we may find embedded in our
Constitution. It is noteworthy that the phrase "sovereignty and integrity of India" was inserted in
1963 in Article 19(2), (3) and (4), to denote the political independence and wholeness of the
country, vis-a-vis other countries. It was also introduced in the oaths of "allegiance" to the
Constitution prescribed in the Third Schedule indicating that the duty to uphold the "sovereignty
and integrity of India" from a recognition of the supremacy of the Constitution. The term
"sovereign" is only used in the preamble of our Constitution, which says :
"We, the people of India, having solemnly resolved to constitute India into a Sovereign
Democratic Republic and to secure to all its citizens :
#* * * * * *##
In our Constituent Assembly this twenty-sixth day of November, 1949 do hereby adopt, enact
and give to ourselves this Constitution."
554. This Court, exercising the powers vested in it under the Constitution to declare the law
of the land, cannot go behind the clear words of the Constitution on such a matter. We have to
presume that the Constitution was actually made by the people of India by virtue of their political
sovereignty which enabled them to create a legally Sovereign Democratic Republic to which they
consigned or entrusted, through the Constitution, the use of sovereign power to be exercised, in
its different forms, by the three different organs of Government, each acting on behalf of the
whole people, so as to serve the objects stated in the Preamble. This reference to "the people of
India" is much more than a legal fiction. It is an assertion in the basic legal instrument for the
governance of this country of the fact of a new political power. The legal effect of the terms of
the instrument is another matter.
555. It has been pointed out, in the Kesavananda Bharati's case (supra), that the preamble of
our Constitution did not like that of the American Constitution, "walk before the Constitution"
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but was adopted after the rest of the Constitution was passed, so that it is really a part of the
Constitution itself. It means that the Constitution is a document recording an Act of entrustment
and conveyance by the people of India, the political sovereign, of legal authority to act on its
behalf to a "Sovereign Democratic Republic"."This Constitution" has a basic structure comprising
the tree organs of the Republic : the Executive, the Legislature, and the Judiciary. It is through
each of these organs that the Sovereign Will of the People has to operate and manifest itself and
not through only one of them. Neither of these three separate organs of the Republic can take
over the function assigned to the other. This is the basic structure or scheme of the system of
Government of the Republic laid down in this Constitutio
556. In Kesavananda Bharti's case (supra), I had approvingly quoted the view of Prof. Ernest
Barker, who, in his "Principles of Social and Political Theory", claiming to be elaborating the
theory underlying the preamble to our own Constitution, pointed out that, inasmuch as the
Constitution is the instrument which regulates the distribution between and exercise of sovereign
power, by the three organs of the State, and it is there constantly to govern and to be referred to
and to be appealed to in any and every case of doubt and difficulty, it could itself, conceptually, be
regarded as the true or "ultimate" sovereign, that is to say, sovereign as compared with
"immediate" sovereignty of an organ of the Republic acting within its own sphere and at its own
level.
557. Of course, inasmuch as the power of altering every feature of the Constitution remains
elsewhere politically, the Constitution is neither the ultimate "political" sovereign nor a legally
unalterable and absolute sovereign. All constitutional and "legal" sovereigns are necessarily
restrained and limited sovereigns. I thought and still think that such a working theory should be
acceptable to lawyers, particularly as the dignitaries of State, including judges of superior courts,
and all the legislators, who have to take oaths prescribed by the Third Schedule of our
Constitution, swear "allegiance" to the Constitution as though the document itself is a personal
ruler. This accords with our own ancient notions of the law as "The King of Kings" and the
majesty of all that it stands for : The Rightfulness of the Ends as well as of the Means.
558. The theory outlined above would, of course, be unacceptable if sovereignty must
necessarily be indivisible and located in a determinate living person or persons- a really medieval
concept which is not generally employed today even to describe the titular hereditary monarchs as
"sovereign" as the human ruler. Modern theories of even political sovereignty advanced by the
Pluralist School- e.g. Gierke, Duguit, McIver, Laski- look upon it as divisible and not as absolute
and unlimited. Indeed they go to the extent of practically denuding sovereignty of all its
customary connotations. Duguit abandons "sovereignty" as an obsolescent doctrine and displaces
it by the ruling principle of "sovereignty" as an obsolescent doctrine and displaces it by the ruling
principle of "social solidarity". McIver thinks that the traditional concepts of sovereignty,
dominated too long by legalistic Austinian views, needs to be discarded. His conclusion is that the
State, with which doctrine of sovereignty has been bound up,
"At any moment the State is more the official guardian than the maker of the law. Its chief
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task is to uphold the rule of law, and this implies that it is itself also the subject of law, that it is
bound in the system of legal values which it maintains." (See : R. M. McIver : "The Modern
State" p. 478)
Laski, while mainly accepting this rather negative approach, reminiscent of 19th century
liberalism, would accord the State a much more positive role in the interests not only of social
order but also of socio-economic engineering and progress.
559. Marxist, who saw in the State and its laws and all institutions supporting an existing
social order, the means of oppression and exploitation of the mass of the people, dreamt of the
"withering away" of the State with its claims to "sovereignty". But, the Russian Revolution was
followed by the vastly increased powers of the State run for the benefit of the proletariat.
Nevertheless, the Constitution of the U. S. S. R. guarantees to citizens not merely fundamental
rights, including the right to work, but has a special department of the Procurator General to
enforce due observance of legality according to the law of the Constitution, by all the
functionaries of State. Article 104 of their Constitution reads.
"104. The Supreme Court of the U. S. S. R. is the highest judicial organ. The Supreme Court
of the U. S. S. R. is charged with the supervision of the judicial activities of all the judicial organs
of the U. S. S. R. land of the Union Republic within the limits established by law. " (See A
Denisov, M. Kirichenko : Soviet State Law, p. 400)
560. It is true that legality is enforced in the U. S. S. R. not merely through the organs of the
State but the vigilance of the Communist party which consists of selected persons keeping a
watch on the policy of the State. A. Y. Vyshinski, however explained (See : Fundamental Tasks
of Soviet Law 1938) that Soviet "law can no more be reduced simply to policy than cause can be
identified with effect". Strict observance of "Socialist Legality", under the supremacy of the
Constitution, is entrusted to the care of the State, with its three organs, the Communist Party, and
the people of the U. S. S. R. (See : "The Soviet Legal System" by M/s. John N. Hazard and Issac
Shapiro). Although Article 15 of the Constitution of the U. S. S. R. speaks of the "Sovereignty
and Sovereign Rights" of the Union Republic, yet, it is made clear that these republic function
subject to the supremacy of the Constitution. Hence, the supremacy of the Constitution is a
principle recognised by the Constitution of the U. S. S. R. also as
561. Gierke made a wide survey and a penetrating analysis of juristic thinking upto the end of
the 10th century on sovereignty, derived, on the one hand, from theories of the sovereignty of the
ruler, and, on the other from theories of popular sovereignty. He observed (See : "Natural Law
and Theory of Society" by Otto Gierke translated by Ernest Barker, Vol. I, p. 153) about the
approach of Kant :
"Kant sketches, indeed, an ideal constitutional State in which popular sovereignty is nominally
present : but no living 'subject' of supreme authority is anywhere really to be found in this State.
The 'bearers' of the different powers (legislative, executive and judicial) are supposed to govern,
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but each is subject to a strict legal obligation appropriate to its own sphere; and over them all, as
the Sovereign proper, the abstract Law of Reason is finally enthroned."
He concluded (at p. 153) :
"The history of the theory of constitutionalism shows how a doctrine derived from the
principle of popular sovereignty could produce almost the same results as the other (and
apparently opposite) system of thought which started from the principle of the sovereignty of the
ruler. In the one case, just as in the other, the inviolability of sovereignty, and the unity of the
personality of the State, are sacrificed, in order to attain the possibility of a constitutional law
which is binding even on the Sovereign.
562. A theory of a "Legal Sovereignty" must necessarily democrate the sphere of its "legal" or
proper operation as opposed to mere use of power either capriciously or divorced from human
reason and natural justice. Ernest Barker's statement of it, quoted by me in Kesavananda's case
(supra), seemed to me to satisfy this requirement. After pointing out that sovereignty, by which I
understand one recognised by law, is limited both by its own "nature" as well as its "mode of
action", it concludes : (at pp. 867-868) :
"Sovereignty moves within the circle of the legal association, and only within the circle it
decides upon questions of a legal order, and only upon those questions. Moving within that circle,
and decides upon questions of a legal order, and only upon those questions. Moving within that
circle, and deciding upon those questions, sovereignty will only make legal pronouncements, is
not a capricious power of doing anything in any way : it is a legal power of settling finally legal
questions in a legal way."
There should be no difficulty in accepting such a theory if one can conceive of an ordered
system or "government of laws" as opposed to a "government of men" placed beyond limitations
of this kind. At any rate, it is implicity in the very idea of a Constitution. Our Constitution not
only regulates the operations of the organs of State but symbolises the unity of the republic and
contains the inspiring hopes and aspirations and cherished goals of all the efforts of the nation. It
operates not merely through the law but also on the minds and feelings of the people.
563. Prof. Willis, in his "Constitutional Law of the United States" advocates the doctrine of
"sovereignty of the people" for which he finds support in Abraham Lincoln's well-known
description of the American system as "a Government of the people, for the people, for the
people, by the people" as well as in a number of pronouncements of the American Supreme
Court. After considering and rejecting a whole host of theories of political philosophers and
jurists, including those of Bodin, Hegel, Hobbes, Locke, Rousseau, Fichte, Kant, Austin, Brown,
Dicey, Willoughby, Duguit and Laski, he opines (at p. 51) :
"As Dewey says, the forces which determine the government are sovereign. The effective
social forces are not the Union, nor the States, nor the oligarchy of States, nor the organs of
Government, nor the Constitution, nor natural law, but those forces which created these
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organisations and agents and institutions, and to whom they are all ultimately responsible."
According to him, the "Sovereignty of the People" which he advocates does not mean an
anarchic license given to each individual or group to do as he or it pleases, but stands for the
power of the people, "organised in Government to express and adjust their will either directly or
through representatives". He explains, in the rest of his work, how the Government of the U. S.
A., in the broader sense of all that social control which, operating through the three departments
of State, has to take place in accordance with the Constitution. This concept of a nation
"organised in Government" appears to me to clearly introduce the idea of a Constitution which
lays down what the organisation is and how it must operate. Although Prof. Willis rejects the
view that the Constitution is "sovereign", because it can be altered by the people, he is obliged to
accept something resembling it because he sees that the "people", thought of as a mere
aggregation or an amorphous mass, is too nebulous. Any satisfactory theory of sov
564. Another American writer, Willoughby, has put forward the view that sovereignty, as an
attribute of the State, conceived of as a juristic entity apart from its governmental organs, cannot
be legally limited. According to him, to limit it is to destroy it. He says (See : Willoughby on
"Fundamental Concepts of Public Law"- Tagore Law Lectures, 1924, at p. 77) :
"There would seem to be no more value in attaching legal rights and duties to the sovereign
State than there is in predicating the attributes of goodness and justice of a Divine Being who is
regarded as Himself the creator, by His own unrestrained will, of all distinctions between
goodness and badness."
But, this seems a metaphysical than a realistic, more amoral Hobbes Machiavellian than a
Dante-Gandhian stance. If one's concepts of the Divine Being are to be introduced it no law, one
could refer to those also which see Divinity only that order and that Law which seems to pervade
and govern the whole physical world the universe. Indeed, there are judicial dicta to the effect that
God Himself considered Himself bound by those elementary principles of justice whose love was
planted in man by Him. In Cooper v. Wandsworth Board of Works, Byles, J. observed.
"The laws of God and man both give the party an opportunity to make his defence, if he has
any. I remember to have heard it observed by a very learned man, upon such an occasion, that
even God himself did not pass sentence upon Adam before he was called upon to make his
defence.'Adam' (says God), 'where art thou? Has thou not eaten of the tree whereof I commanded
thee that thou shouldst not eat? And the same question was put to Eve also."
565. It is clear that no simple theory of sovereignty fits the complex facts of modern life.
Every theory of today, ultimately, rests on concepts more refined than the physical or spiritual
might of some ruler, in whom executive, legislative, and judicial powers coalesce to take away all
legal distinction between them. Even Willoughby, dealing with constitutionalism (Willoughby on
"Nature of the State" 198, at p. 302) says :
"The value of constitutional government is not that it places sovereignty in the hands of the
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people, but that it prescribed definite ways in which this sovereign power shall be exercised by the
State".
Hence, he too admits that the Constitution does place some limitation on exercise of sovereign
power. That seems to me to be the essence of a Constitution and the rationale of its existence.
566. Still another American writer, Orfield, in the course of his discussion (See : "The
Amending of the Federal Constitution" by Lester B. Orfield 1971), of a number of concepts of
sovereignty, seems sometimes to almost consider Article 5 of the American Constitution,
containing the constituent power and its procedure, to be sovereign. He concludes his discussion
on the subject as follows (at p. 166) :
"Each part of the amending body is subject to law, and may be altered or abolished. The
amending body itself may be altered through the amending process, and limitations on the future
amending capacity may be imposed. The amending body is an artificial sovereign deriving its
being from a law in the form of Article Five. The amending groups hold office for but a short
time, and may be supplanted by others in the elections in which an increasingly larger electorate
participates. The theory of sovereignty, moreover, presupposes the continued orderly existence of
the government. In case of a revolution the commands of the sovereign would be disregarded, and
authority could no longer be ascribed to the amending body either in fact or in law. The moral,
religious, physical, and other factual limitations on the supposed sovereign are so important that it
may perhaps be correct to say that they are also legal limitations, as there comes a time when law
and facts shade into one another. Finally, when it is remembered
He rejects the concept of sovereignty of the people as too vague and meaningless. And, for
the reasons given above, he rejects the theory of a sovereignty of the amending body. His final
conclusion seems to be that it is better to avoid altogether entanglement in the concept of
sovereignty. This view, however, overlooks the fact that lawyers need a working theory of
sovereignty to be able to decide legal questions before them. As between the sovereignty of the
amending article and the sovereignty of the Constitution there should be little, doubt that lawyers
should and would prefer the sovereignty or supremacy of the whole Constitution rather than of
any part of it. On the face of it, it appears more reasonable and respectable to swear allegiance to
the whole Constitution, as we actually do, rather than to Article 368 or to the amending powers
contained in it. If there is a part of our Constitution which deserves greater devotion than any
other part of it, it is certainly the preamble to our Constitution.
567. The American Supreme court, in the context of the especially American conditions and
needs, after leaning sometimes towards a recognition of "State Sovereignty" (See. Ware v.
Hylton; Dred Scott v. Sandford) and at others towards a recognition of the dual system of
Government which has prevailed in America (See : e.g. Gibbus v. Ogden) has, on the whole
opted, of the "Sovereignty of the People" which unifies the nation (See e.g. White v. Heart, Keith
v. Clark; National Prohibition Cases).
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568. I cannot, while I am on the subject of American conditions, resist the temptation to quote
the trenchan comments of Prof. Willis on what he considers to be the dangers of the American
system of government. He wrote (at pp. 68-69) :
"But the greatest danger in popular sovereignty does not lie in the intellectual field, but in the
moral. While our intellectual level is not as high as it ought to be, our moral level is much lower
than it can safely be if our form of government is to endure permanently. Millions of our citizens
are already members of the criminal class. Millions of other citizens who are not yet members of
the criminal class are in he economic world doing things just as bad as the things which members
of the criminal class are doing. Millions of our people are concerned with their own selfish
interests instead of the common good. Millions of our citizens are only too ready to ruin
themselves and the rest of our people physically, intellectually, and morally by drugs and
intoxicating liquors and vices. Our people do not seem to be much concerned with high ideals in
any of the fields of human endeavour. Our people as a whole do not seem to be seriously
concerned with social planning for the purpose of obtaining an ideal soci
The effects of the moral standards of our people are already manifest. As a result of our
political and economic theories, there has developed a concentration of wealth unparalleled in
human history. While on the whole the economic level is comparatively high in the United States,
the difference between the wealth of the many and that of the few is startling. One-fourth of the
families in the United States before the depression had incomes of less than $ 500 and two-thirds
of the families in the United States incomes of less than $ 1,000, while 2 per cent of our
population owned 65 per cent of the wealth. There were four men any one of whom had an
income as large as five million of the poorest people in the United States. This concentration of
wealth was probably one of the primary causes of the depression, and the depression has
threatened our capitalistic system. This only shows the danger inherent in our political
organisation."
569. If the people of an advanced country like the U. S. A., left entirely to the concept of
popular sovereignty, have revealed the need for a more positive guiding or moulding role of their
State so as to overcome the dangers adverted to by Prof. Willis, how much greater are the needs
of a people potentially so great but actually so backward economically and educationally as ours,
taken en masse, still are? Our concepts of sovereignty must accord with the needs of the people of
our country. Our Constitution, which has been described by G. Austin as "the cornerstone of the
Nation", was devised as a means to serve those needs. It has not only the elevating preamble,
deserving the allegiance of every rational human being, but, unlike the American Constitution, the
whole of Part IV of our Constitution which contains "Directive Principles of State Policy" to
guide the future course of State action particularly in the legislative field. It is true that provisions
of Part IV are not enforceable through the courts
570. I find that the doctrine of the supremacy or sovereignty of the Constitution was adopted
by a Bench of seven learned Judges of this Court in Special Reference No. 1 of 1964, where
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Gajendragadkar, C.J., speaking for six learned Judges of this Court said (at p. 446) :
"In a democratic country governed by a written Constitution which is supreme and sovereign.
It is no doubt true that the Constitution itself can be amended by the Parliament, but that is
possible because Article 368 of the Constitution can be validly made only by following the
procedure prescribed by the said article. That shows that even when the Parliament purports to
amend the Constitution, it has to comply with the relevant mandate of the Constitution itself.
Legislators, Ministers, and Judges all take oath of allegiance to the Constitution, for it is by the
relevant provisions of the Constitution that they derive their authority and jurisdiction and it is to
the provisions of the Constitution that they owe allegiance. Therefore, there can be no doubt that
the sovereignty which can be claimed by the Parliament in England, cannot be claimed by any
Legislature in India in the literal absolute sense."
571. The principle of the supremacy of the Constitution was then declared by the majority of
the learned Judges of this Court in Kesavananda Bharati's case (supra) to be a part of the basic
structure of the Constitution. The minority opinion, while not specifically dissenting from this
view, was that even what was considered by the majority to be a part of "basic structure" was
alterable under Article 368. But no judge of this Court has so far held that, without attempting to
change what may be the basic structure of Constitution itself, appropriate amendments, judicial
power could be exercised by Parliament under Article 368 on the assumption that it was already
there.
572. M. C. Setalvad, a distinguished jurist of India, said (See : "The Common Law of India"
Hamlyn Lectures, 12th series, 1960) (at pp. 174-175) :
"The Constitution divides the functions of the Union into the three categories of executive,
legislative and judicial functions following the pattern of the British North America Act and the
Commonwealth of Australia Act. Though this division of functions is not based on the doctrine of
separation of powers as in the United States yet there is a broad division of functions between the
appropriate authorities so that, for example, the Legislature will not be entitled to arrogate to
itself the judicial function of adjudication.'The Indian Constitution has not indeed recognised the
doctrine of separation of powers in its absolute rigidity but the functions of the different parts or
branches of the Government have been sufficiently differentiated and consequently it can very well
be said that our Constitution does not contemplate assumption, by one organ or part of the State,
of functions that essentially belong to another.' (See : Rai Saheb Ram Jawaya Kapur v. State of
Punjab). This will no doubt strike one acc
573. A. V. Dicey, the celebrated propounder of the doctrine of the sovereignty of Parliament,
had criticized Austin for frequently mixing up "legal sovereignty" and "political sovereignty" (See
: Law of the Constitution by A. V. Dicey, 10th Edn., p. 72). He contrasted the British principle of
"Parliamentary Sovereignty" with what was described by him the "Supremacy of the Constitution"
in America. He observed (at p. 165) :
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"But, if their notions were conceptions derived from English law, the great statesmen of
America gave to old ideas a perfectly new expansion, and for the first time in the history of the
world formed a Constitution which should in strictness be 1 the law of the land', and in so doing
created modern federalism. For the essential characteristics of federalism- the supremacy of the
Constitution the distribution of powers the authority of the Judiciary- reappear, though no doubt
with modifications, in every true federal State."
He said (at p. 144) :
"A federal State derives its existence from the Constitution, just as a corporation derives its
existence from the grant by which it is created. Hence, every power, executive, legislative, or
judicial, whether it belong to the nation or to the individual States, is subordinate to and
controlled by the Constitution."
He wrote about the American Supreme Court (at p. 159) :
"Of the nature and position of the Supreme Court itself this much alone need for our present
purpose be noted. The court derives its existence from the Constitution, and stands therefore on
an equality with the President and with Congress; the members thereof (in common with every
Judge of the Federal Judiciary) hold their places during good behaviour, at salaries which cannot
be diminished during a judge's tenure of office."
574. The theory of the supremacy of the Constitution is thus not a new one at all. It is inherent
in the very concept of "the auguster thing" which lies behind Parliament or King and is sought to
be embodied in the Constitution of a country. The judges, who are vested with the authority and
charged with the duty to uphold the Constitution, do so as the mouth-pieces of what has been
called the "Real Will" of the people themselves by political philosophers such as Bosanquet. That,
as I have indicated earlier, is the theory underlying the system of judicial review. Such a system
may delay changes but should not, I think, speaking entirely for myself, deny or defeat the right of
the people to bring about any change, whether basic or not, in the Constitution. Indeed, in
Kesavananda Bharati's case (supra), I indicated that I thought that the most proper and
appropriate function of the amending power in Constitution, which is also a part of the
Constitution, and, indeed, its most potent part- was that of making ba
575. It has not been argued before us that the introduction by the Twenty-fourth Amendment
of the new clause (1) in Article 368, containing "constituent power", itself amplifies or increases
the contents or changes the character of the power in Article 368 by making it a composite power
so as to include a new type of judicial or quasi-judicial power also within its fold now. It is
evident from the judgments of learned Judges of this Court in Golaknath's case (supra) that
possible distinctions between amending power and "constituent power" and "sovereign power"
figured prominently in arguments in that case. Wanchoo, J., in his minority opinion [See : (1967)
2 SCR at p. 833], said that it was not necessary, for the purposes of that case, whether the
amending power was as wide as the "sovereign power" of the Constituent Assembly which had
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framed our Constitution. After all the discussion that had taken place then, came the
Twenty-fourth Amendment. It does not use the words "constituent power" were advisedly use
576. The "constituent power" is still bound by the exclusively prescribed procedure to "amend
by way of addition, variation, or repeal" any elaborately set out in clause (2). In fact, Article 368
contains so much of the fundamental law-making or legislative procedure that five judges of this
Court, led by Subba Rao, C.J., opined in Golaknath's case (supra), that it was confined to
procedure and did not contain at all the substantive power to amend. Clause (1) of Article 368,
introduced by the Twenty-fourth Amendment, was, apparently, meant to remove this objection
and to do no more. It could be intended to pour some new amalgam of executive and judicial or
quasi-judicial substantive powers into it also by some implication so as to do away with the very
need for such an elaborate and carefully drawn up Constitution such as ours. The absence of any
quasi-judicial procedure, from the comprehensively framed procedural provisions of Article 368,
seems extremely significant. It indicates that it was clear intentio
577. Learned Counsel supporting the Thirty-ninth Amendment tried to find the meaning of
"constituent power" in theoretical speculations about the meaning of "sovereignty of the people",
on the one hand, and the sovereignty of the medieval monarch, on the other, instead of looking to
the legislative history of the "constituent power". I have, therefore, also referred to some of these
theories and practices from ancient times so as to be able to indicate the precise significance or
relevance of various concepts and decisions placed before us. These theories and practices could
have only an indirect bearing on the meaning of the term "constituent power" in Article 368. They
are more germane to a statement of a correct theory of sovereignty which underlies what has been
called the "basic structure" of our Constitution.
578. There are scattered dicta in the judgments of this Court speaking of the "sovereignty of
the people" which, in my opinion, can only be related to the political sovereignty of the people
recognised by the preamble to our Constitution where the people are described as the
Constitution-makers who gave the Constitution unto themselves. This, however, does not, in my
opinion, mean that the people retained unto themselves any residue of legal sovereignty. They did
not prescribe, apart from dividing the exercise of sovereign power roughly between the three
organs of the Republic, each with its own modus operandi, any other or direct method, such as
Initiative or Referendum, for exercising their politically sovereign power. The view I have tried to
put forward in the foregoing pages is that the people entrusted to the three organs of the
Sovereign Democratic Republic they constituted the exercise of three aspects of sovereign power
on behalf of the people. This seems to me to be the only way of reconciling the
579. I have tried to point out that the term sovereignty in its origin is associated with the
actual human ruler or authority wielding theoretically absolute or final powers. Political
philosophers are particularly concerned with the problem of determining the location and manner
of exercise of such powers if any. Jurists, however, have also occupied themselves with these
problems partly because constitutional law, as Dicey once pointed out, has some overlapping
territory with the political theory which underlies it. Some constitutional lawyers, such as Ivor
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Jennings, have said that it is flirtation with political theory which has brought into the juristic fold
a term such as 'Sovereignty'. On the other hand, political theorists, such as McIver, have blamed,
far less justly, jurists like Austin for infecting political theory with legalistic authoritarian notions
of sovereignty. Political theorist, in their attempts to understand and rationalize, and sometimes to
justify or condemn a system are more concerned
580. I do not think that it is at all helpful to refer to certain authorities of this Court which
were, rather surprisingly, relied upon by learned Counsel supporting the Thirty-ninth Amendment
to discover the nature of the "constituent power" contained in Article 368. I will content myself
by citing a passage from the last of these cases relied upon which mentions the earlier cases of this
Court also on the effect of a "firman" in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan.
Gajendragadkar, J. speaking for this Court, said (at p. 591) :
"In appreciating the effect of this firman, it is first necessary to decide whether the firman is a
law or not. It is matter of common knowledge that at the relevant time the Maharana of Udaipur
was an absolute monarch in whom vested all the legislative, judicial and executive powers of the
State. In the case of an absolute ruler like the Maharana of Udaipur, it is difficult to make any
distinction between an executive order issued by his or a legislative command issued by him. Any
order, issued by such a ruler has the force of law and did govern the rights of the parties affected
thereby. This position is covered by decisions of this Court and it has not been disputed before us.
Vide Madhaorao Phalke v. State of Madhya Bharat; Ameer-un-Nisa Begum v. Mahboob Begum
and Director of Endowments, Government of Hyderabad v. Akram Ali."
581. It is evident, from the quotation, relied upon by the Solicitor-General, that this Court was
not deciding whether the firman was even a "law" in the sense of a general norm which had to be
applied to the decision of cases. It was held that whatever be its juristic character, it had the
"force of law" inasmuch as the ruler of Udaipur was an absolute ruler, who combined in his
person the legislative, the judicial and executive authority of the State. That was the Constitution
of Udaipur. The doctrine of separation of powers, in such a context, was really irrelevant. Article
368 of our Constitution, however, is not a power acquired by our Republic by State succession
from he power of Indian ruling princes. The legislative history behind it is entire different.
582. As a matter of legislative history, we will find the source of the "Constituent power" in
Section 6 & 8 of the Indian Independence Act passed by the British Parliament. Section 6 of that
Act constituted a "Legislature" for each of two dominions set up with plenary powers of
legislation. The legislative powers of the Legislature of each dominion were so enlarged by
Section 8 that it could frame the Constitution of the Dominion concerned. This was a transfer of
only a legislative power. Section 8 said :
"For the purpose of making provision as to the Constitution of the dominion, the Legislature
of the dominion was recognised as the constituent assembly of the dominion."
These powers were "plenary" in the sense in which this term is used in Queen v. Burah, but
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they were confined to law-making and did not extend to adjudication or decision of individual
cases which is certainly distinguishable from a law-making power. For purposes other than
framing of the Constitution, provisions of the Government of India Act operated until they were
repealed and replaced by other relevant provisions. Such was the process of a legislative
succession through which institutional transformation or transition to a new but corresponding set
of institutions was brought about. In the eyes of law, this was an evolutionary process through
constitutional channels and not a revolutionary break with the past.
583. I is true that, in the exercise of the law-making constituent power, brought in by Section
8 of the Indian Independence Act, the Legislatures could be armed with judicial powers as well if
appropriate laws were made to that effect. But, as no law, either constitutional or ordinary was
passed, preceding Thirty-ninth Amendment to repeal the Act or 1951 and then to vest a judicial
power in Parliament, so as to enable it to take over and decide election disputes itself directly. I
do not see how clause (4) of Article 329A, if it contained certain provisions on the assumption
that such a judicial power was already there in Parliament, could be valid as a piece of mere
law-making. However, Counsel supporting the Thirty-ninth Amendment had submitted that
Article 329A (4) evidenced the constituted an exercise of some "unbroken" or a combined
legislative and judicial power- a proposition for which no precedent of any such consolidated
action of a constituent body was cited from any part of the world. The firman
584. An attempt was made to convince us that what may not have been otherwise possible for
Parliaments do became possible by invoking the presumed exercise of some judicial power
imported by Article 105(3) of the Constitution which says :
"105. (3).... the powers, privileges and immunities of each House of Parliament, and of the
members and the committees of each House, shall be such as may from time to time be defined by
Parliament by law, and, until so defined, shall be those of the House of Commons of the
Parliament of the United Kingdom, and of its members and committees, at the commencement of
this Constitution."
585. I am unable to see how what was not conferred upon Parliament itself, in its constituent
capacity, could be impliedly assumed to be there by virtue of certain "powers, privileges and
immunities" which belong separately to each House of Parliament. Such a claim could not be
based upon what is to be found directly in Article 368. It is sought to be derived from Article 105.
This reasoning would, obviously, conflict with the provisions of Article 329(b) of the Constitution
which indicates that an election dispute can only be resolved by an election petition before a
forum provided by an ordinary enactment. Article 329(b) says :
"329. (b) 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."
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586. In exercise of its powers under Article 329(b) our Parliament had enacted the Act of
1951. The procedure provided by the Act had the binding force of a constitutionality prescribed
procedure. It could not be circumvented unless, with reference to cases covered by Article
329A(4), it had been first repealed. Only after such a repeal could any other forum or procedure
be legally adopted. It could not be assumed, by reason of Article 105(3), that the prescribed
forum had shifted to Parliament itself, and that Parliament, in exercise of its constituent function,
had both legislated and adjudicated. This is what we were asked to accept.
587. The well recognised rule of construction of statutes, which must apply to the
interpretation of the Constitution as well, is : "Expressio unius est exclusio alterius". From this is
derived the subsidiary rule that an expressly laid down mode of doing something necessarily
prohibits the doing of that thing in any other manner. The broad general principle is thus
summarised in Crawford's "Statutory Constructions" (1940) at p. 334 :
"Express Mention and Implied Exclusion (Expressio unius est exclusio alterius.- As a general
rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another
thing. It therefore logically follows that if a statute enumerates the things upon which it is to
operate, everything else must necessarily, and by implication, be excluded from its operation and
effect. For instance, if the statute in question enumerates the matters over which a court has
jurisdiction, no other matters may be included. Similarly, where a statute forbids the performance
of certain things only those things expressly mentioned are forbidden. So also, if the statute
directs that certain acts shall be done in a specified manner, or by certain person, their
performance in any other manner than that specified, or by any other person than one of those
named, is impliedly prohibited."
588. It is interesting to note that in the Australian Constitution, where there is Article 49,
using language very similar to that of Article 105(3) of our Constitution, there is also a separate
but differently cast Article 47 of the Australian Constitution corresponding to Article 329(b) of
our Constitution. This article runs as follows :
"Article 47. Unit the Parliament otherwise provides, any question respecting the qualification
of a senator or of a member of the House of Representatives, or respecting a vacancy in either
House of the Parliament, any question of a disputed election to either House, shall be determined
by the House in which the question arises."
589. What is separately, expressly, and especially provided for by Article 329 (b) must
necessarily fall outside the purview of Article 105(3) on the principle stated above. Moreover,
Article 105(3) contained a temporary provision until other provision was made by Parliament in
that behalf. Appropriate provision were enacted by the Act of 1951 in compliance with Article
329(b) because that was the proper article for it. It would be idle to contend that these provisions
suddenly lapsed or ceased to exist as soon as Parliament took up consideration of the issues and
the grounds of the decision on them by the High Court to which reference is made in Article
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329A(4), could only be a law-making power and not any other power which could conceivably
fall under Article 105, Sub-Article (3). Nevertheless, it was suggested, by copious references to
the origin of the power of the House of Commons to decide disputs relating to elections, that
such a power exits in each House of our parliment as its inherent power. Such
590. The reason why the House of Commons itself saw the need for entrusting to a rota of
High Court judges, the jurisdiction at one time exercised by it directly to determine its election
disputes, is found thus stated by Blackstone, quoting Erskine May's "Parliamentary Practice and
Procedure" (at pp. 153-155) :
"For a considerable time after the House had obtained this jurisdiction, controverted elections
were tried by committees specially nominated, composed of privy councillors and burgesses, well
qualified for the duties entrusted to them. But after 1672, it became an open committee, in which
all who came had voices, and at length a hearing at the bar of the House was considered
preferable to an inquiry by a committee. Here again, to use the words of Sir Erskine May, "the
partiality and injustice of the judges was soon notorious. Parties tried their strength........ the
friends of rival candidates canvassed and maneuvered, and seats corruptly gained, were as
corruptly protected or voted away. Such were the results of the usurpation of judicial functions by
a popular body".
In order to remedy, if possible, these unquestionable evils, the statute 10 Geo. III c. 16, called
from its author the Grenville Act, was passed in 1770, and the trial of election petitions
transferred to a select committee of thirteen members, which it was thought would be 'a court
independent of the House, though composed of its own members'. For a time there was a marked
improvement in the decision of controverted elections.'But too soon it became evident that
corruption and party spirit had not been overcome. Crowds now attended the ballot, as they had
previously come to the vote.......... not to secure justice, but, to aid their own political friends.'
The party, whether of the petitioner or sitting member, which attended in the greatest number
inevitably had the numerical majority of names drawn for the committee, and from this list, the
petitioner and sitting member struck out alternately one name until the committee was reduced to
thirteen : the majority of the house was necessarily a majority of the
By these means the majority of the House continued, with less directness and certainty, and
perhaps with less open scandal, to nominate their own members, as they had done before the
Grenville Act. And for half a century, this system with slight variations of procedure was suffered
to prevail. In 1939, however, the ballot was at length superseded by Sir Robert Pel's Act,
committees were reduced to six members, and nominated by an impartial body..... the General
Committee of Elections. The same principle of selection was adhered to in later Acts, with
additional securities for impartiality, and the committee was finally reduced to five members. The
evil was thus greatly diminished, but still the sinister influence of party was not wholly overcome.
In the nomination of election committees, one party or the other necessarily had a majority of one,
and though these tribunals undoudtedly became far more able and judicial, their constitution and
proceedings often exposed them to imputation of political bias.
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At length by the statute 31 & 32 Vict. c. 125, the trial of election petitions was transferred to
certain of the puisne judges at Westminster, who selected annually to form a rota for this specific
purpose, and who inquire upon the spot in open court into the allegations of a petitioner, either
claiming a seat, or alleging an undue return or election. The decision of the judge, who has power
to reserve his judgment until he has consulted the Common Pleas division of the High Court, in
which these proceedings are instituted, is final to all intents and purposes; the House of Commons
being bound to "give the necessary directions for confirming or altering the returns or for issuing
a writ for a new election, or carrying such determination into execution as circumstances may
require". And this abstract of the proceedings at elections of knights, citizens, and burgesses,
concludes our inquiries into the laws and customs more peculiarly relative to the House of
Commons."
591. I do not think that it is possible to contend, by resorting to some concept of a succession
to the powers of the medieval "High Court of Parliament" in England, that a judicial power also
devolved upon our Parliament through the Constituent Assembly, mentioned in Section 8 of the
Indian Independence Act of 1947. As already indicated by me, the Constituent Assembly was
invested with law-making and not judicial powers. Whatever judicial power may have been
possessed once by English King, sitting in Parliament, constituting the highest Court of the realm
in medieval England, have devolved solely on the House of Lords as the final court of appeal in
England."King in Parliament", had ceased to exercise judicial powers in any other way long before
1950. And, the House of Commons had certainly the "King in Parliment" with the possible
exception of the power to punish for its contempts. I use the qualifying word "possible" because
the more correct view of it today may be that this power is also, as it is consid
592. In Erskine May's Parliamentary Practice (18th Edn.), after citing the opinions of judges,
to whom a reference was made by the House of Lords in Thorpe's case (1451), that "Lex
Parliamenti" seemed something as strange and peculiar as foreign law is for common law courts, it
was explained (at page 187) :
"These views belonged to a time when the distinction between the judicial and legislative
function of Parliament was undrawn or only beginning to be drawn, and when the separation of
the Lords from the Commons was much less complete than it was in the seventeenth century.
Views about the High Court of Parliament and its power which were becoming antiquated in the
time of Coke, continued to be repeated far into the eighteenth century, although after the
Restoration principles began to be laid down which were more in accord with the facts of the
modern Constitution. But much confusion remained which was not diminished by the use of the
phrase 'privilege of Parliament'. This only means a body of rights common to both houses, but it
suggests joint action (or enforcement) by both Houses, as in legislation, whereas from Ferrers
case in Henry VIII's reign, in 1543 each House enforced its own privileges separately.
These notions arise from this confusion of thought.
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1. That the Courts, being inferior to the High Court of Parliament, cannot call in question the
decision of either House on a matter or privilege.
2. That the lex et consuetudo Parliamenti is a separate law, and therefore unknown to the
courts.
3. That a resolution of either House declaratory of privilege is a judicial precedent binding on
the courts."
593. The confusions mentioned above misled some people in this country, due to the
provisions of Article 194(3) of our Constitution, on the question whether a House of a Legislature
had not only the power to punish a citizen for contempt but also to exercise what is really a
judicial power to interpret and to determine the ambit of its own jurisdiction. Gajendragadkar,
C.J., speaking for this Court in Special Reference No. 1 of 1964 (supra), rejected this claim and
explained the English law on the subject. The learned Chief Justice pointed out the incidental
character of any claim to a power, privilege, or immunity which could be covered by Article
194(3), a provision identically similar to Article 105(3). He pointed out that the only exception to
this rule was the power to punish for its own contempt which, since the decision of Privy Council
in Kielley v. Carson, could be thought of as a power of the House of Commons even acquired as a
kind of "inheritance" from the powers once possessed by the High Court
"I do not think that the House of Commons was itself ever a court. The history of that House
does not support such a contention."
The result is similar to that in England where courts do determine the orbit of a claim to a
power as a parliamentary preserve, on the facts of a case, although, once it is established that the
claim is to a power confined to its proper sphere, they will not decide a mere question of its
proper exercise.
594. Whatever view one may take of any other powers of Parliament, by reason of Article
105(3) of the Constitution, I am unable to see how exercise of the jurisdiction to determine an
election dispute, which was, in accordance with Article 329(b), already vested in the High Court
by the Act of 1951 for all elections to the House of the People, could not only be taken away by a
constitutional amendment, purporting to repeal retrospectively the provisions of the Act of 1951,
a piece of ordinary legislation, in their application to a particular class of cases, but at the same
time, making a declaration given of the rights of the parties to a judgment, without first
performing a judicial function also which was not included in the "constituent" or any other
law-making power.
595. The question was not clearly raised before us whether a constitutional amendment could
partially repeal the provisions of an ordinary piece of legislation, that is to say, the Act of 1951, in
so far as its application to a certain class of cases is concerned. One of the submissions of the
learned Counsel for the election-petitioner, however, was that, inasmuch as the Constitution lays
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down the norms to which ordinary legislation must conform, its proper sphere of operation is
different from that ordinary legislation which takes place under the provisions of Articles 245 to
255 of the Constitution. The argument seemed to be, that, if ordinary law-making and
Constitution-making took place in different orbits or on different planes of law-making power
what could be done by one method was necessarily prohibited by the other. Learned Counsel
relied upon a number of passages from the judgment in Kesavananda Bharati's case (supra), and,
in particular, on what Ray, J. (as he then was) said (at p. 386) : (SCC p.
"The constituent power is sui generis. The majority view in Golak Nath Case that Article
13(2) prevails over Article 368 was on the basis that there was no distinction between constituent
and legislative power and an amendment of the Constitution was law and that such law attracted
the opening words of Article 245 which in its turn attracted the provisions of Article 13(2).
Parliament took notice of the two conflicting views which had been taken of the unamended
Article 368, took notice of the fact that the prepondering judicial opinion, namely, the decision in
Shankari Prasad case, Sajjan Singh Case and the minority views of five learned Judges in Golak
Nath case were in favour of the view that Article 368 contained the power of amendment and that
power was the constituent power to change the fundamental law, that is to say, the Constitution
and is distinct from ordinary legislative power. So long as this distinction is kept in mind
Parliament will have the power under Article 368 to amend the Constitution
596. On the other hand, learned Counsel defending the Thirty-ninth Amendment relied on a
number of passages from various judgments, including mine, in Kesvananda Bharati's case
(supra), indicating that at least the minority view there was that the power of amendment
contained in Article 368, was only limited by the procedure laid down in Article 368(2) of the
Constitution and nothing else. It is true that this is what was emphasized by several learned
judges, including myself, in dealing with a case where the real question was whether the
constituent power embraced an amendment of the Constitution in such a way as to take away
fundamental rights. But, neither the question whether "constituent power" itself contained judicial
power within its fold nor the question whether "constituent power" operated on a plane or in a
sphere which excluded altogether what could be done through ordinary legislation were under
consideration in Kesavananda Bharati's case (supra). Some passages were citied from my
judgment in th
597. It could be and has been argued, not without force, that there are no legal limitations
upon the subject-matter which may be considered fit for inclusion or incorporation in a
Constitution. This is left to the good sense of the Constitution-makers. Constitutions differ greatly
in this respect (See : Wheare's "Modern Constitutions" pp. 49 to 51). What may be the ideal, from
this point of view, is not always the actual. Reference was also made in support of this submission
to Rottschaefer on "Constitutional Law" (1939 Edn., p. 10). It is not necessary to pursue this
question any further here.
598. I had said, in Kesavananda Bharati's case (supra) after dealing with amending power in
Article 368, on the assumption that it was an exercise of a "sovereign power" (at p. 870) :
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"No doubt the judicial organ has to decide the question of the limits of a sovereign authority
as well as that of other authorities in cases of dispute. But, when these authorities act within these
limits, it cannot interfere."
In other words, I look upon a "sovereign power" itself, under the Constitution, as limited by
the supremacy of the Constitution.
599. If the constitutional provisions compel us to hold, as think they do, that no form of
judicial or quasi-judicial power is included in the "constituent power" contained in Article 368 of
the Constitution, no further question need really be considered by us if we were to hold that the
insertion of clause (4) in Article 329A necessarily involved, as a condition precedent to the
making of the declaration found at the end of it, the performance of a quasi-judicial or judicial
function. But, I do not think that we could go so far as that. The Act of 1951, enacted under the
provisions of Article 329(b) of the constitution provided a procedure which could not be
circumvented. This procedure was certainly applicable until August 10, 1975 when the
Thirty-ninth Amendment received Presidential assent, rights of appeal under Section 116-A of the
Act having been invoked by the original respondent as well as by the election-petitioner, and the
operation of the High court's order having been suspended, the position was
600. At one stage, Counsel supporting the Thirty-ninth Amendment said that the norms of the
Act of 1951, together with the amendment of the Act in 1974 and the very recent ones of 1975,
must have been present in the minds of members of Parliament and applied to the facts of the
case. Such a contention, apart from overlooking the effect of the bar of Article 329(b), which
operated against the case being taking up in Parliament directly until at lest August 10, 1975, just
as Section 107 of the British Representation of People Act, 1949, operates against the adoption of
such a course in England, overlooked the legal effect of the deeming provision which, if valid,
would repel such a submission of counsel supporting the Thirty-ninth Amendment. The deeming
provision appeared to be quite sweeping. It said : "No law made by Parliament before the
commencement of the Constitution (Thirty-ninth Amendment) Act, 1975, in so far as it relates to
election petitions and matters connected therewith, shall apply or shall be
601. The effect of such a provision is thus stated, in the oft-quoted passage from East End
Dwellings Co. Ltd v. Finsbury Borough Council :
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless
prohibited from doing so, also imagine as real the consequences and incidents which, if the
putative state of affairs had in fact existed must inevitably have flowed from or accompanied
it......... The statute says that you must imagine a certain state of affairs; does not say that having
done so, you must cause or permit your imagination to boggle when it comes to the inevitable
corollaries of that state of affairs".
602. When the effect of Article 329 (b) and of the deeming provision was pointed out to
learned Counsel supporting the fourth clause of Article 329A, they took up the position that
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Parliament must have applied its won norms. We, however, do not know at all and cannot guess
what matters were considered or the norms applied by Parliament. No speeches made in
Parliament on the proposed Thirty-ninth Amendment were cited before us by either side. We only
know that the Objects and Reasons of the Thirty-ninth Amendment contain the following
statements to show us why Article 329A (4) was believed to be necessary :
"Article 71 of the Constitution provides that disputes arising out of the election of the
President or Vice-President shall be decided by the Supreme Court. The same article provides that
matters relating to their election shall be regulated by a parliamentary law. So far as the Prime
Minister and the Speaker are concerned, matters relating to their election are regulated by the
provisions of the Representation of the People Act, 1951. Under this Act the High Court has
jurisdiction to try an election petition presented against either of them.
2. The President, the Vice-President, the Prime Minister and the Speaker are holders of high
offices. The President is not answerable to a court of law for anything done, while in office, in the
exercise of his powers. A fortiori matters relating to his election should not be brought before a
court of law but should be entrusted to a forum other than a court. The same reasoning applies
equally to the incumbents of the office of Vice-President, Prime Minister and Speaker. It is
accordingly proposed to provide that disputes relating to the election of the President and
Vice-President shall be determined by a forum as may be determined by a parliamentary law.
Similar provision is proposed to be made in the case of the election to either House of Parliament
or, as the case may be, to the House of the people of a person holding the office of Prime Minister
or the Speaker. It is further proposed to render pending proceedings in respect of such election
under the existing law null and void. The bill also provides t
603. I think that this Statement of Objects and Reasons and other reasons mentioned above by
me lend support to the submission, to which Mr. Kaushal confined himself whilst other counsel
supporting the validity of Article 329A (4) offered it only as an alternative submission. This was
that the whole procedure adopted and needed being a law-making procedure and nothing more
there was no need to look for norms or for law applied as no judicial or quasi-judicial proceeding
was involved. This approach certainly avoids the extraordinary anomalies and results involved in
the proposition that "constituent power" embraces some indefinable or "unbroken" power to
override laws and to withdraw and decide all disputes, particularly in election matters, in
Parliament itself. As already indicated, there is no provision anywhere for the exercise of
overriding judicial or quasi-judicial powers by Parliament. It is difficult to conceive a case being
considered by Parliament and the ratifying Legislatures as a case on trial.
604. If Article 329A (4) constituted only a piece of purported law-making, the next question,
which deserves very serious consideration by us, is whether such purported law-making is not
fully covered by the undoubted law-making power of Parliament to make law prospectively as
well as retrospectively, inter alia, to get rid of the legal effect or result of a judgment considered
erroneous by it or to retrospectively validate an election it considers valid whatever may be its
reasons for reaching this conclusion. I will answer this question after considering the relevant case
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law cited on the subject.
605. A number of cases have been cited before us : some on retrospective validation of taxing
provisions, by removing defects, others on removal of the basis of or grounds of decisions given
by courts making their judgments ineffective, others affecting the jurisdiction of courts in case
pending, either in the original courts or in courts of appeal, so as to render proceedings
infructuous, and still others curing legally defective appointments or elections. It is not necessary
to discuss these cases separately and individually as the principles laid down there are well
recognised. I will be content with mentioning the cases cited. They were : M. P. V. Sundararamier
& Co. v. State of A. P. Vinod Kumar v. State of H. P.; Fadab Singh v. H. P. Administration; Udai
Ram Sharma v. Union of India; Rustom Cavasjee Cooper v. Union of India; Fagannath v.
Authorised Officer, Land Reforms; Khyerbari Tea Co. Ltd. v. State of Assam; M/s. Tirath Ram
Rajindra Nath v. State of U. P.; Krishna Chandra Gangopadhya v. Union of In
606. Cases were also cited where rights having been altered during the pendency of
proceedings, courts had to give effect to the rights as altered, and judgments already given on the
strength of the previous law had ceased to have a binding force as res judicata between parties or
had to be set aside where appeals against them were pending. These were : State of U. P. v. Raja
Anand Brahma Shah; Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality; Janapada
Sabha, Chhindwara v. The Central Provinces Syndicate Ltd.; Municipal Corporation of the City of
Ahmedabad v. New Shorock Spg. & Wvg. Co. Ltd.; State of Tamil Nadu v. M. R. Gounder;
Amarjit Kaur v. Pritam Singh; Qudrat Ullah v. Municipal Board, Bareilly.
607. Cases were also cited of the exercise of constitutional power of amendment, by placing
Acts in the Ninth Schedule, under the provisions of Article 31B of the Constitution, such as
Jagannath v. Authorised Officer, Land Reforms, (supra) so that Acts so included in the Ninth
Schedule were immune from attack on the ground of alleged violation of any fundamental rights.
It is not necessary to cite them as this is now a well recognised constitutional device whose
validity has been upheld by this Court in Kesavananda Bharati's Case (supra).
608. Our attention was especially invited to passages from Udai Ram Sharma v. Union of
India (supra), where it was said (at page 54) :
"In our opinion no useful purpose will be served by referring to the clear demarcation between
the judicial powers and legislative powers in America and attempt to engraft the said principle in
the working of our Constitution. This development of the law, as pointed our in A. K. Gopalan v.
State was due to historical reasons."
609. After that, the following passage from he judgment of Das, J. in A. K. Gopalan's case
(supra) was quoted (at page 55) :
"The Supreme Court of the United State, under the leadership of Chief Justice Marshall,
assumed the power to declare any law unconstitutional on the ground of its not being in 'due
process of law',..... It is thus that the Supreme Court established its own supremacy over the
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Executive and the Congress. In India the position of the Judiciary is somewhere in between the
Courts in England and the United States. While in the main leaving our Parliament and the State
Legislatures supreme in their respective legislative fields, our Constitution has, by some of the
articles, pur upon the legislature certain specified limitations.... Our Constitution, unlike the
English Constitution, recognises the court's supremacy over the legislative authority, but such
supremacy is a very limited one, for it is confined to the field where the legislative power is
circumscribed by limitations put upon it by the Constitution itself. Within this restricted field the
Court may, on a scrutiny of the law made by the Legislature, decla
610. In Udai Ram Sharma's case (supra), the following passage from Willoughby's
Constitution of the United States, Second Edition, Vol. 3, was also cited :
"If the Legislature would prescribe a different rule for the future from that which the courts
enforce, it must be done by statute, and cannot be done by a mandate to the courts which leaves
the law unchanged, but seeks to compel the courts to construe and apply it not according to the
judicial, but according to the legislative judgment.... If the Legislature cannot thus indirectly
control the action of the courts, by requiring of them a construction of the law according to its
own views, it is very plain it cannot do so directly, by setting aside their judgments, compelling
them to grant new trials, ordering the discharge of offenders, or directing what particular steps
shall be taken in the progress of a judicial inquiry."
611. Willoughby's statement of law in the United States of America showing that retroactive
legislation which does not impair vested or substantial rights or constitutional prohibitions, is
permissible and his conclusion, relying on Cooley's "Constitutional Limitations", was also quoted :
"The Legislature does, or may, prescribe the rules under which the judicial power is exercised
by the courts, and in doing so it may dispense with any of those formalities which are not essential
to the jurisdiction of the court; and whatever it may dispense with by statute anterior to the
proceedings, we believe it may also dispense with by statute after the proceedings have been
taken, if the court has failed to observe any of those formalities. But it would not be competent
for the Legislature to authorize a court to proceed and adjudicate upon the rights of parties,
without giving them an opportunity to be heard before it and, for the same reason it would be
incompetent for it, by retrospective legislation, to make valid any proceedings which had been had
in the courts, but which were void for want of jurisdiction over the parties."
612. In Udai Ram Sharma's case (supra) an argument, based on some observations in B. C.
Ghose v. King Emperor was that the provisions of an amending Act amounted to passing a
decree. But, this Court repelled this argument relying on principles laid down in Queen v. Burah
(supra) :
"If what has been done in 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
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with it), it is not for any court of justice to inquire further, or to enlarge constructively those
conditions and restrictions."
613. A case strongly relied upon by learned Counsel supporting the validity of Article 329(4)
was : Kanta Kathuri v. Manak Chand Surana. In this case, decided by five Judges of this Court,
there was unanimity not he conclusion that the State Legislature had power to retrospectively
remove the disqualification of a candidate. The following quotation from the judgment (at page
851) shows the reasoning adopted (SCC p. 280, paras 37-40) :
"Mr. Chagla, learned Counsel for the respondent, contends that the Rajasthan State
Legislature was not competent 'to declare retrospectively' under Article 191(1) (a) of the
Constitution. It seems to us that there is no force in this contention. 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 were are unable to
imply, in the context, any restriction. Practice of the British Parliament does not oblige us to place
any implied restriction. We notice that the British Parliament in one case validated election :
Erskine May's Treatise on the Law, Privileges, Proceeding & Usage of Parliament- Seventeenth
Edition, (1964).
'After the general election of 1945 it was found that the persons elected for the Coatbridge
Division of Lanark and the Springbourn Division of Glasgow were disqualified at the time of their
election because they were members of tribunals appointed by the Minister under the Rent of
Furnished Houses Control (Scotland) Act, 1943, which entitled them to a small fee in respect of
attendance at a Tribunal. A Select Committee reported that the disqualification was incurred
inadvertently, and in accordance with their recommendation the Coatbridge and Springbourn
Elections (Validation) Bill was introduced to validate the irregular elections [H. C. Deb (1945-46)
414, c. 564-6]. See also H. C. 3 (1945-46), ibid, 71 (1945-46) and ibid. 92 (1945-46).'
We have also noticed two earlier instances of retrospective legislation, e.g. The House of
Commons (Disqualification) Act, 1813 (Halsbury's Statutes of England p. 467) and Section 2 of
the Re-election of Ministers Act, 1919 (ibid. p. 515).
Great stress was laid on the word 'declared' in Article 191 (1) (a), but we are unable to imply
any limitation on the powers of the Legislature from this word. Declaration can be made effective
as from an earlier date.
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."
614. Another case on which a great deal of reliance was placed by Mr. A. K. Sen, was the
case of the validation of the elections of John Clerk George, Esquire, and Sir Roland Jennings,
Knight, by the British Parliament. Here, the two gentlemen named above were "discharged, freed
and indemnified from all penal consequences whatsoever incurred by them respectively by sitting
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or voting as members of the Commons House of Parliament while holding their said offices". It
was also declared that they "shall be deemed not to have been incapable of being elected members
of the Commons House of Parliament, or to have been or to be incapable of sitting or voting as
members thereof, by reason only of having at any time before the passing of this Act held office :
" (a) in the case of the said John George, as Director appointed by the Minister of Works of
Scottish Slate Industries Limited,
(b) in the case of the said Sir Roland Jennings, as Approved Auditor appointed under the
Industrial and Provident Societies Act, 1893, and the Friendly Societies Act, 1896."
615. Learned Counsel for the election-petitioner replied that it is noticeable that no English
case could be cited where any attempt was made by the British Parliament to circumvent Section
107 of the Representation of the People Act, 1949, which lays down :
"Section 107. Method of questioning Parliamentary election.-(1) No Parliamentary election
and no return of Parliament shall be questioned except by a petition complaining of an undue
election or undue return (hereinafter referred to as parliamentary election petition) presented in
accordance with this Part of this Act.
(2) a petition complaining of no return shall be deemed to be a parliamentary election petition
and the High Court may make such order thereon as they think expedient for compelling a return
to be made or may allow the petition to be heard by an election court as provided with respect to
ordinary election petitions."
616. He also submitted that, in none of the cases of validation, was any election dispute shown
to be pending. No judgment was actually set aside in contravention of the binding constitutionally
prescribed procedure to decide such disputes. He submitted that, in the case of an election to a
parliamentary seat in this country this could be done by Parliament itself only after first repealing
the application of the 1951 Act and amending Article 329(b) in such a way as to vest the power in
itself to decide the dispute.
617. Learned Counsel for the election-petitioner relied upon the following statement in the
American Jurisprudence, 2nd Edn. Vol. 46, at page 318 :
"The general rule is that the Legislature may not destroy, annul, set aside, vacate, reserve,
modify, or impair the final judgment of a court of competent jurisdiction, so as to take away
private rights which have become vested by the judgment. A statute attempting to do so has been
held unconstitutional as an attempt on the part of the Legislature is not only prohibited from
reopening cases previously decided by the courts, but is also forbidden to affect the inherent
attributes of a judgment. That the statute is under the guise of an act affecting remedies does not
alter the rule."
618. On the other hand, learned Counsel supporting the validity of Article 329A (4) relied on
the following passage :
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"It is worthy of notice, however, that there are cases in which judgments requiring acts to be
done in the future may validly be affected by subsequent legislation making illegal that which the
judgment found to be legal, or making legal that which the judgment found to be illegal."
They also pointed out :
"With respect to legislative interference with a judgment, a distinction has been made between
public and private rights under which distinction a statute may be valid even though it renders
ineffective a judgment concerning a public right. Even after a public right has been established by
the judgment of the court, it may be annulled by subsequent legislation."
619. It is contended that the election of a candidate is the result of the exercise of their rights
of voting by the electorate. An election results from public action and produces a "public right"
inasmuch as the electorate and the public become interested parties acquiring the right to be
represented by the elected candidate. The right to challenge that election is a statutory right. What
the statute gives can be taken away by statute. The grounds for challenging the election could also
be altered. No one, it was urged, could be herd to say that he had any vested or inherent right to
challenge and election. It was contended that once the applicability of all law previous to the
Thirty-ninth Amendment to the class dealt with by Article 329A (4) was removed retrospectively,
the resulting legislative declaration followed automatically even if it had not been inserted. Its
inclusion was a superfluity. Article 329A (4) was said to be merely incidental and consequential to
what was done by earlier clauses (1) to
620. Learned Counsel for the election-petitioner relied on Don John Francis Douglas liyanage
v. Queen, where the Privy Council considered the validity of the Criminal Law Special
amendment Act of 1962, passed by the Parliament of Ceylon, which had purported to legalise
ex-post facto the detention of persons for having committed offenses against the State, by
widening the class of offenses for which trial, without jury, by nominated judges could be ordered.
The scope of the offence of waging war against the Queen was widened and new powers to deal
with offenders were given and additional penalties were prescribed. It was held that, although, no
fundamental principles of justice could be said to have been violated by the Act, yet, the Act of
1962 and an amending Act of 1965, were invalid on the ground summarized in the headnotes as
follows (at p. 260) :
"That the Acts, directed as they were to the trial of particular prisoners charged with
particular offenses on a particular occasion, involved a usurpation and infringement by the
Legislature of judicial powers inconsistent with the written Constitution of Ceylon, which, while
not in terms vesting judicial functions in the Judiciary, manifested an intention to secure in the
Judiciary a freedom from political, legislative and executive control, land, in effect, left untouched
the judicial system established by the Character of Justice, 1833. The silence of the Constitution
as to the vesting of judicial power was consistent with its remaining where it was and inconsistent
with any intention that it should pass to or be shared by the Executive or the Legislature. The
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Acts were accordingly ultra vires and void, and the convictions could not stand."
621. If the constituent bodies, taken separately or together, could be legally sovereign, in the
same way as the British Parliament is, the constitutional validity of no amendment could be called
in question before us. But, as it is well established that it is the Constitution and not the
constituent power which is supreme here in the sense that the constitutionality of the Constitution
cannot be called in question before us, but exercise of the constituent power can be, we have to
judge the validity of exercise of constituent power by testing it on the anvil of constitutional
provision. According to the majority view in Kesavananda Bharati' case (supra), we can find the
test primarily in the preamble to our Constitution.
622. A point emphasized by J. C. Gray (See : "Nature & Sources of Law" p. 96) is that unless
and until courts have declared and recognised a law as enforceable it is not law at all. Kelsen (See
: "General Theory of Law & State", p. 150) finds Gray's views to be extreme. Courts, however,
have to test the legality of laws, whether purporting to be ordinary or constitutional, by the norms
laid down in the Constitution. This follows from the supremacy of the Constitution. I mention this
here in answer to one of the questions set out much earlier : Does the "basic structure" of the
Constitution test only the validity of a constitutional amendment or also ordinary laws? I think it
does both because ordinary law-making itself cannot go beyond the range of constituent power.
At this stage, we are only concerned with a purported constitutional amendment. According to
the majority view in Kesavananda Bharati's case (supra) the preamble furnishes the yardstick to be
applied even to constitutional amendments.
623. Learned Counsel for the election-petitioner has strongly relied upon the very first
purpose of the Constitution stated in the preamble to be Justice (with a capital "J") which includes
"political justice". His contention is that, if a majority party is to virtually act as the judge in an
election dispute between itself and minority parties whose cause, according to the learned
Counsel, the election-petitioner represents, it would be a plain denial of "political justice. " I do
not know why this question should be termed as one of "political justice" and not of plain and
simple elementary justice except that the contending parties represent political causes which are,
for purposes of plain and simple justice with which we are really concerned, irrelevant. We are not
asked to judge a political issue directly as to who should be the Prime Minister of this country.
We are only asked to hold that even a constitutional amendment, when made by members of a
majority party to enforce their own views of what is p
624. What was sought to be done by the constitutional amendment may be politically very
justifiable. The question before us, however, is whether it is also legally justifiable. Here, wears
back again in the realm of basic principles of justice. We are not to decide a political question here
at all. But, we have to decide legal questions even if they have, as many legal issues have, political
consequences and repercussions which we cannot entirely ignore. Perhaps we have to go back to
Marbury v. Madison (supra), were Chief Justice Marshall said (at p. 162) :
"The very essence of civil liberty consists in the right of every individual to claim the
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protection of the laws, whenever he receives an injury. One of the first duties of government is to
afford that protection. In Great Britain the King himself is used in the respectful form of a
petition, and he never fails to comply with the judgment of his court.
In the 3rd volume of his Commentaries, p. 23, Blackstone states two cases in which a remedy
is afforded by mere operation of law.
'In all other cases', he says it is a general and indisputable rule, that where there is a legal right,
there is also a legal remedy by suit, or action at law, whenever that right is invaded'."
625. It is true that the right which the election-petitioner claims is a purely statutory right. The
right to come to this Court under Section 116A of the Act of 1951 is also a creature of statute
and can be taken away retrospectively. But, where this taking away also involves the taking away
of the right to be heard by this Court on a grievance, whether justifiable or not, that a minority
party is being oppressed by the majority, can we deny the spokesman of the minority even a right
to be heard on merits? Such an issue is constitutional. Confession of our inability to resolve it
judicial would be, according to learned Counsel for the election-petitioner, a denial of "political
justice". This issue is extrinsic so far as the Act of 1951 is concerned. The election-petitioner has
complained of the taking away of his right to be heard with a view to depriving him of "political"
justice with an ulterior object and political motivation. I have dealt with the merits of the case to
show that, from the legal aspect ection-petitioner's grievances could have any real legal
foundations. I think that this is a basic consideration which must compel us, in the light of the
principles laid down by us in Kesavananda Bharali's case (supra), to hold that we must look into
his grievances and determine, for ourselves, where his case stood on the law before it was
amended. Our jurisdiction, at any rate, cannot be barred without creating the impression that what
the election-petitioner calls "political justice" is being denied to him.
626. The question which arises now is : Was clause (4) of Article 329A, read with clauses (5)
and (6), really meant to bar our jurisdiction to consider the grievances of the petitioner and to
decide them, or, can they be so interpreted as to preserve this Court's jurisdiction?
627. Broadly speaking, the election-petitioner has two heads of grievance : firstly, that the
election of the original respondent is vitiated by corrupt practices which, as I have indicated, after
considering the case set up by him and the evidence tendered and the law applicable, could not
possibly succeed even under the law as it stood before the amendment; and, secondly, that our
very jurisdiction to go into these grievances is sought to be debarred by clauses (4), (5) and (6) of
Article 329A with the political object of stifling opposition, and, therefore, according to the
election-petitioner, we must declare clause (4) and the connected clauses (5) and (6) of Article
329A to be invalid. Although, the first set of complaints is based upon the provisions of the Act of
1951, the second set arises because of impugned clauses of the Thirty-ninth Amendment. For the
second set of grievances, the action complained of is that of the State itself acting through its
law-making organs. It is because of this interes
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628. Indeed, so far as the original respondent is concerned, the effect of clauses (4), (5) and
(6) of Article 329A would be, if we were to hold that they bar our jurisdiction to go into the
merits of the appeals under Section 116A of the Act, that her grievance against the judgment
under appeal also could not be gone into or dealt with. In other words, the original respondent
would also be denied an opportunity of asserting her rights under the 1951 Act and of vindicating
her stand in the case by showing that there was really no sustainable ground for the findings given
by the learned Judge of the High Court against her. We would, therefore, be prevented from
doing justice to her case as well if we were to accept the contention that the Thirty-ninth
Amendment bars our jurisdiction to hear the appeals under Section 116A of the Act on merits.
The total effect would be that justice would appear to be defeated even if, in fact, it is not so as a
result of the alleged bar to our jurisdiction if it were held to b
629. It was also contended before us that we should not go at all into the merits of the case
before us as it was a political matter. In other words, the "political question" doctrine was invoked
in aid of the submission that we should voluntarily abstain from deciding a question of a "political
nature". It is true that the "political question doctrine" has been sometimes invoked, in the past, by
the American Supreme Court to abstain from taking a decision. In answer to this argument,
learned Counsel for the election-petitioner cited before us from comments on the Constitution of
the United States of America (Analysis and Interpretation by the Congressional Research Service-
1973, Edn., p. 665) that the "political question" doctrine is the result of a "prudential" attitude
courts adopt when they find that their judgments may not be enforced. It was described there as
"a way of avoiding a principled decision damaging to the Court or an expedient decision
damaging to the principle". It was also pointed out th
"Deciding whether a matter has in any measure been committed by the Constitution to another
branch of government, or whether the action of that bench exceeds whatever authority has been
committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this
Court as ultimate interpreter of the Constitution."
630. Learned Counsel for the election-petitioner also relied upon H. H. Maharajadhiraja
Madhav Rao Jiwaji Rao Scindia Bahadur v. Union of India, where this Court said : (at p. 75) :
(SCC p. 147, para 98).
"The functions of the State are classified as legislative, judicial and executive : the executive
function is the residue which does not fall within the other two functions. Constitutional
mechanism in a democratic policy does not contemplate existence of any function which may qua
the citizens be designated as political and orders made in exercise whereof are not liable to be
tested for their validity before the lawfully constituted courts Rai Sahib Ram Jawaya Kapur v.
State of Punjab, Jayantilal Amritlal Shodhan v. F. N. Rana, and Halsbury's Laws of England, 3rd
Edn., Vol. 7, Article 409, at p. 192."
631. Learned Solicitor General also contended that we were passing through critical times
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when a state of Emergency had been declared. He submitted that the decision of the constituent
authorities, in excluding a particular case from the jurisdiction of this Court, should be treated as
an exercise of a very special power under very unusual conditions in which internal and external
dangers, with which the country was surrounded, required that the position of the Prime Minister
should be declared unequivocably unassailable so that the need for further examination of the
question of her election to Parliament may not be raised anywhere else. This seems to be another
form in which "political question" argument could be and was addressed to us. Undoubtedly,
clause (4) of Article 329A could be said to have a political objective, in the context in which it
was introduced, and we could perhaps take judicial notice of this context. Even if it was possible
to go beyond the statement of objects and reasons and to hold
632. It is a well established canon of interpretation that, out of two possible interpretations of
a provision, one which prevents it from becoming unconstitutional should be preferred if this is
possible- ut res magis valeat quam pereat. It is true that the deeming provision seems to stand in
the way of our examination of the merits of the case even though there is no direct provision
taking away our jurisdiction to consider the merits of the appeals before us. It has, however, been
repeatedly laid down that a deeming provision introducing a legal fiction must be confined to the
context of it and cannot be given a larger effecti (See : Radha Kishan v. Durga Prasad). In Bengal
Immunity Co. Ltd. v. State of Bihar, it was held by this Court that a legal fiction is created for
some definite purposes and should not be extended beyond its legitimate field determined by its
context. The some view has been expressed by this Court in other cases : C. I. T. v. James
Anderson; C. I. T. v. Express Newspapers Ltd., Mad
633. In Ex parte Walton, In Re, Levy, James L. J. Sai :
"When a statute enacts that something shall be deemed to have been done, which in fact and in
truth was not done, then the court is entitled and bound to ascertain for what purposes and
between what persons the statutory fiction is to be resorted to?"
In other words, we have to examine the context and the purpose of the legal fiction and
confine its effects to these.
634. If the purpose of the clause (4) of Article 329A was purely to meet the political needs of
the country and was only partly revealed by the policy underlying the statement of reason and
objects it seems possible to contend that it was not intended at all to out the jurisdiction of the
Court. Hence, Article 329A, clause (5) will not, so understood, bar the jurisdiction of the Court
to hear and decide the appeals when it says that the appeal shall be disposed of in conformity with
the provision of clause (4).
635. In the circumstances of this case, it would seem that conformity with the declaration
embodied in Article 329A, clause (4) is possible, if we confine the meaning and effect of the
deeming provision to what was needed only for the declaration to be given at the end of clause (4)
by the constituent bodies, with a political object, and not for the purposes of affecting our
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jurisdiction which determines legal effects of what is sought to be done. Of course, the more
natural interpretation would appear to be that the deeming provision should apply for "all
purposes" including those for consideration of the appeals before us. But, if it is not possible to
decide those appeals without giving a different meaning to the deeming provision, on which the
final declaration in clause (4) rests, and clause (5) leaves us free to decide how we could conform
with clause (4), need our jurisdiction to decide factual and legal issues judicially be said to be
affected? If the fiction was only a logical step in the process of
636. For the reasons given above, I declare that Article 329A (4) does not stand in the way of
the consideration of the appeals before us on merits under the Act of 1951 or the validity of the
amendments of the Act. On a consideration of the merits of Appeals Nos. 887 and 909 of 1975. I
have come to the conclusion, as indicated above, that Appeal No. 887 must be allowed and the
Cross Appeal No. 909 of 1975 must fail. The result is that the judgment and orders passed by the
learned Judge of the Allahabad high Court on the election case are set aside, and, in such
conformity with Article 329A, clause (4) as is possible for us I also declare the judgment and the
findings contained in it to be void and of no effect whatsoever. It is not necessary for me to add
that the order of the learned Judge, holding the original respondent disqualified from occupying
her office, disappears ipso facto and it neither has nor will be deemed ever to have had any legal
effect whatsoever. In the circumstances of the case, I think
CHANDRACHUD, J.
(concurring). The election petition out of which these appeals arise involved the question of
the validity of the election of Smt. Indira Nehru Gandhi to the Lok Sabha. In the General
Parliamentary Elections of 1971, she was declared as the successful candidate from the Rae Bareli
constituency in Uttar Pradesh. She won the election by a margin of 1,11,810 votes her nearest
rival, Shri Raj Narain.
638. Shri Raj Narain, who was sponsored the Samyukta Socialist Party, filed an election
petition under Section 80 read with Section 100 of the Representation of the People Act, 1951, to
challenge the election of the successful candidate. Originally, the challenge was founded on
numerous grounds but during the trial of the petition in the High Court of Allahabad, the
challenge was limited to seven grounds.
639. A learned Single Judge of the High Court, J. M. L. Sinha, J., upheld the challenge on two
grounds, rejecting the other grounds of challenge. That explains the cross-appeals.
640. The High Court held that the successful candidate was guilty of having committed two
corrupt practices within the meaning of Section 123 (7) of the Representation of the People Act :
firstly, she obtained the assistance of the gazetted officers of the Government of Uttar Pradesh for
furthering her election prospects; and secondly, she obtained the assistance of Shri Yashpal
Kapoor, a gazetted officer in the Government of India holding the post of Officer on Special Duty
in the Prime Minister's Secretariat, for furthering the same purpose. Acting under Section 8-A of
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the Act the learned Judge declared that the successful candidate would stand disqualified for a
period of six years from June 12, 1975 being the date of the judgment. Aggrieved by this part of
the judgment, Smt. Indira Gandhi has filed Appeal No. 887 of 1975.
641. The other five grounds of challenge were : (1) The successful candidate procured the
assistance of the armed forces for arranging her flights by Air Force aeroplanes and helicopters;
(2) Her74 election agent, Shri Yashpal Kapoor, and others distributed clothes and liquor to
induce the voters to vote for her; (3) She and her election agent made appeals to the religious
symbol of cow and calf; (4) Her election agent and others procured vehicles for the free
conveyance of voters to the polling stations; and (5) She and her election agent incurred or
authorised expenditure in violation of Section 77(3) of the Act read with Rule 90 of the Conduct
of Elections Rules, 1961. These grounds having been rejected by the High Court, the defeated
candidate has filed Appeal No. 909 of 1975. The first two grounds were given up in appeal for the
reason that the evidence on record was not likely to be accepted by this Court in proof thereof.
642. The defeated candidate did not lead evidence in the High Court to show that any part of
the expenditure in excess of the permissible limit of Rs. 35,000 was incurred by the successful
candidate or her election agent. His contention was that the expenditure incurred for her election
by the political party which had sponsored her candidature, the Congress (R), was liable to be
included in the expenses incurred or authorised by her. This contention was founded on a decision
rendered by a Division Bench of this Court on October 3, 1974, in Kanwar Lal Gupta v.
Amarnath Chawla.
643. On October 19, 1974, the President of India promulgated."The Representation of the
People (Amendment) Ordinance, 1974" providing that :
"Notwithstanding any judgment, order or decision of any court to the contrary, any
expenditure incurred or authorized in connection with the election of a candidate by a political
party or by any other association or body of persons or by any individual (other than the candidate
or his election agent) shall not be deemed to be, and shall not ever be deemed to have been,
expenditure in connection with the election incurred or authorized by the candidate or by his
election incurred or authorized by the candidate or by his election agent....."
This provision was added by the ordinance by way of an explanation to Section 77(1) of the
Representation of the People Act, 1951. It expressly excepted from its operation decisions of the
Supreme Court voiding an election before the commencement of the ordinance. Shri Amaranth
Chawla fell outside the ordinance. It also excepted similar decisions of High Courts provided that
they had become final or unappealable. The ordinance was replaced by the Representation of the
People (Amendment) Act, 58 of 1974, which was brought into force retrospectively from October
19, 1974.
644. The defeated candidate filed Writ Petition No. 3761 of 1975 in the High Court to
challenge the constitutional validity of the ordinance and the Act of 1974. In view of his finding
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that the total amount of expenditure incurred or authorized by the successful candidate or her
election agent, together with the amount proved to have been incurred by the political party or the
State Government in concussion with her election did not exceed the prescribed limit, the learned
Judge thought it unnecessary to inquire into the constitutionality of the ordinance and the Act of
1974. He, therefore, dismissed the writ petition. An appeal was filed to a Division Bench of the
High Court from the aforesaid order but, by consent of parties, this Court decided to hear the
points involved in the writ petition and in the appeal therefrom.
645. During the pendency of these cross-appeals, the Parliament passed the Election Laws
(Amendment) Act, 40 of 1975, which came into force on August 6, 1975. This Act, if valid,
virtually seals the controversy into he appeal filed in this Court by the successful candidate from
the decision of the Allahabad High Court. It also takes care of a considerable gamut of the appeal
filed in this Court by the defeated candidate. It substitutes a new Section 8-A in the
Representation of the People Act, 1951 empowering the President to decide whether a person
found guilty of corrupt practice shall be disqualified and if so, for what period. By Section 6, it
amends Section 77 of the Act of 1951 making pre-nomination expenses a matter of irrelevant
consideration. It declares that the expenditure incurred by a government servant in the discharge
of his official duty in connection with any arrangements or facilities and such arrangements or
facilities shall not be deemed to be expenditure or assistance incurred or rendere
646. The amendments brought about by Act 58 of 1974 and Act 40 of 1975 have an incisive
impact on the cross-appeals but their edge was blunted by the Constitution (Thirty-ninth
Amendment) Act which came into force on August 10, 1975. The Thirty-ninth Amendment
introduces two new articles in the Constitution : Article 71 and 329A; and it puts in the Ninth
Schedule three Acts : (i) The Representation of the People Act, 43 of 1951; (ii) The
Representation of the People (Amendment) Act, 58 of 1974; and (iii) The election Laws
(Amendment) Act, 40 of 1975. The new Article 71 which replaces its precursor empowers the
Parliament to pass laws regulating the elections of the President and the Vice-President, including
the making of provision for the decision of disputes relating to their election. Article 329A has six
clauses out of which the first three deal with the future election to the Parliament of persons
holding the office of Prime Minister of Speaker at the time of the election or who are appointed to
these o
647. At first flush, what remains to be decided judicially in face of the Thirty-ninth
Amendment? As an exercise of constituent power, the Thirty-ninth Amendment must reign
supreme. The political sovereign having reposed its trust in the legal sovereign, the doings of the
Constituent Assembly have an aura of sanctity that legal ingenuity may be powerless to penetrate.
But that is an uninformed approach to field strewn with various shades of legal landmarks.
648. While repelling the challenge to the First Constitutional Amendment which was passed in
June 1951, this Court held in Sri. Sankari Prasad Singh Deo v. Union of India and State of Bihar,
that the power of amendment conferred by Article 368 was not subject to any limitations, express
or implied and that fundamental rights were within the sweep of the amending power. The
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Seventeenth Constitutional amendment passed in June 1964 was similarly upheld by a majority
decision of this Court in Sajjan Singh v. State of Rajasthan, which took the view that the
fundamental rights were not intended by the farmers of the Constitution to be finally and
immutably settled when the Constitution was passed. But the Seventeenth Amendment came to be
challenged once again in I. C. Golak Nath v. State of Punjab. By a majority of 6 : 5, this Court
held that the Seventeenth Amendment was ultra vires the Parliament's power to amend the
Constitution. Five out of the six learned Judges held that Article 368 did not confer any power
649. The decision in Golak Nath's case (supra) raised a debate of national dimensions as the
Parliament's power to amend the Constitution so as to abridge or take away the fundamental
rights virtually became a dead letter. Under the majority judgment, the Constituent Assembly
alone, called by virtue of a law to be passed under entry 97 of List I, could abridge or take away
the fundamental rights. The Parliament, in a resolve to re-affirm its powers, passed the
Constitution (Twenty-fourth Amendment) Act on November 5, 1971. By the Twenty-fourth
Amendment, the Parliament amended Articles 13 and 368 of the Constitution so as to provide that
nothing contained in Article 13 shall apply to any amendment of the Constitution made under
Article 368 and that notwithstanding anything in the Constitution, Parliament may, in the exercise
of its constituent power, amend by way of addition, variation or repeal any provision of the
Constitution in accordance with he procedure laid down in Article 368. As an instance of the
650. A Bench of thirteen Judges of this Court sat to consider the constitutionality of the
Twenty-fourth, Twenty-fifth and Twenty-ninth Amendments. The eleven judgments delivered in
that case are reported in Kesavananda Bharati v. State of Keral, commonly known as the
Fundamental Rights case. Golak Nath's case (supra) stood overruled as a result of the decision in
this case. But six learned Judges out of the thirteen (Sikri, C.J., and Shelat, Grover, Hegde,
Jaganmohan Reddy and Mukherjea, JJ.) accepted the contention of the petitioners that though
Article 368 conferred the power to amend the Constitution, and therefore, Article 368 did not
confer power to amend the Constitution so as to damage or destroy the essential elements or
basic features of the Constitution, could not therefore be abrogated or emasculated in the exercise
of the power conferred by Article 368, though a reasonable abridgment of those rights could be
effected in the public interest. Brother Khanna, J. found it difficult, in face of the c
651. These appeals have therefore to be decided in the light of the principle emerging from the
majority decision in the Fundamental Rights case that Article 368 does not confer power on the
Parliament to alter the basic sel appearing on both sides have taken many forms and shapes but
they ultimately converge on the central theme of basic structure.
652. I would like first to deal with the constitutional validity of the Thirty-ninth Amendment.
On that question, the arguments of Mr. Shanti Bhushan, who appears for Shri Raj Narain, may be
summed up thus : (i) The Thirty-ninth Amendment affects the basic structure or framework or the
institutional pattern adopted by the Constitution and is therefore beyond the amending power
conferred by Article 368. It destroys the identity of the Constitution. (ii) Separation of powers is a
basic feature of the Constitution and therefore every dispute involving the adjudication of legal
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rights must be left to the decision of the Judiciary. Clause (4) of Article 329A introduced by the
Thirty-ninth Amendment takes away that jurisdiction and is therefore void. (iii) The function of
the legislature is to legislate and not decide private disputes. In the instant case the Constituent
Assembly has transgressed its constituent function by adjudicating upon a private dispute. (iv)
Democracy is an essential feature of the Constitu by revolutionary methods. The question is
whether it is permissible to the Parliament to use the legitimacy of constitutional provisions for
effecting revolutionary changes. (viii) The constituent power partakes of legislative power land
can only be exercised within the highest ambit of the latter power. Therefore, even with a
two-third majority, the constituent body cannot exercise executive or judicial power. For example,
the power to appoint or dismiss a government servant or the power to declare war which are
executive powers cannot be exercised by the Constituent Assembly. Similarly, it cannot, in the
guise of amending the Constitution, provide that an accused arraigned before a criminal court
shall be acquitted and shall be deemed to be innocent. The constituent body can make changes in
the conditions of the exercise of judicial power but it cannot usurp that power; and lastly (ix) The
question in the Fundamental Rights case was whether Parliament can, in the exercise of its power
of amendment abridge
653. Learned Counsel appearing for the Union of India and for Smt. Indira Gandhi did not
dispute the contention that the appeals before us must be disposed of on the basis of the law laid
down by the majority in the Fundamental Rights case.
654. The learned Attorney General contended that : (i) The majority decision in the
Fundamental Rights case is not an authority for the proposition that there could be no free or fair
elections without judicial review. The Constitutions and laws of several countries leave the
decision of election disputes to the judgment of the Legislatures themselves. The history of the
representation of the People Act, 1951 as also various articles in our Constitution show that
judicial review can be excluded in appropriate cases as a matter of policy. (ii) That validation of
elections is a process well-known to democratic forms of Government. (iii) That a law may be
constitutional even if it relates to single individual if on account of special reasons, the single
individual could be treated as a class by himself. (iv) That it is clear from Articles 326 and 327 of
the Constitution that the Constitution-makers thought that as a matter of high policy elections
ought to be dealt with by the Constitution itself and not by ord
655. The learned Solicitor-General who continued the unfinished arguments of the learned
Attorney-General urged that (i) Article 14 is founded on a sound public policy recognised and
followed in all civilised States. The exclusion of judicial review does not by itself mean the
negation of equality. Article 31B which on the face of it denied equality to different sections of
the community attained the ideal of economic justice by bringing about economic equality. Article
33 also shows that the demands of public problems may require the adjustment of fundamental
rights for ensuring greater equality. (ii) What a Constitution should contain depends on what
permanency is intended to be accorded to a particular provision included in the Constitution. (iii)
Exclusion of judicial review is at least permissible in those fields where originally the Constitution
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did not provide for or contemplate judicial review. (iv) If the election law does not apply, as it
ceases to apply by virtue of Article 329A (4), it is the fun
656. Shri A. K. Sen who appears for Smt. Indira Gandhi defended the Thirty-ninth
Amendment by contending that : (i) The amendment follows the well-known pattern of all
validation Acts by which the basis of judgments or orders of competent courts and tribunals is
changed and the judgments and orders are made ineffective. (ii) The effect of validation is to
change the law so as to alter the basis of any judgment, which might have been given on the basis
of old law and thus to make the judgment in-effective. (iii) A formal declaration that the judgment
rendered under the old Act is void, is not necessary. If the matter is pending in appeal, the
appellate Court has to give effect to the altered law and reverse the judgment. If the matter is not
pending in appeal, then the judgment ceases to be operative and binding as res judicata. (iv) The
rendering of a judgment ineffective by changing its basis by legislative enactment is not an
encroachment on judicial power but a legislation within the competence of the Leg
657. Shri Jagannath Kaushal supported the arguments of Shri Sen by citing pragmatic
illustrations. He gave interesting statistics showing that a very small percentage of election
petitions succeed eventually which, according to him, is evidence that such petitions are used by
defeated candidates as an instrument of oppression against successful candidates. Parliament,
therefore, wanted to save high personages from such harassment. A law may benefit a single
individual and may still be valid. According to Shri Kaushal, the judgment of the Allahabad High
Court became a nullity by reason of that Court ceasing retrospectively to have jurisdiction over
the dispute and a judgment which is a nullity need not be set aside. It can (sic cannot) even be
challenged in a collateral proceeding.
658. I thought it only fair to indicate broadly the line of approach adopted by the various
learned Counsels to the question as regards the validity of the Thirty-ninth Amendment. It will
serve no useful purpose to take up each one of the points for separate consideration and indeed
many an argument is interrelated. It would be enough for my purpose to deal with what I consider
to be points of fundamental importance, especially as my learned brethren have dealt with the
other points.
659. This Court has strictly adhered to the view that in constitutional matters one must decide
no more than is strictly necessary for an effective adjudication of the points arising in any case. By
that test, a numerically substantial part of the Thirty-ninth Amendment has to be deferred for
consideration to a future occasion. We are clearly not concerned in these appeals with the new
Article 71 introduced by the Thirty-ninth Amendment, which deal with the election of the
President and the Vice-President. We are concerned with the new Article 329A but with the
whole of it. Clause (1) to (3) of that article deal with future events and the validity of those
clauses may, perhaps, be examined when those events come to happen. Clause (4) to (6) of
Article 329A are the ones that are relevant for our purpose I propose to address myself to the
validity of those provisions.
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660. Clause (4) of Article 329A, which is the real focus of controversy, may conveniently be
split up as follows for understanding its true nature and effect : (i) The laws made by Parliament
prior to August 10, 1975 in so far as they relate to election petitions and matters connected
therewith cease to apply to the parliamentary election of Smt. Indira Gandhi which took place in
1971. (ii) Such laws are repealed retrospectively in so far as they governed the aforesaid election,
with the result that they must never be deemed to have applied to that election. (iii) Such an
election cannot be declared to be void on any of the grounds on which it could have been declared
to be void under the laws which were in force prior to August 10, 1975. (iv) The election shall
not be deemed ever to have become void on any ground on which, prior to August 10, 1975, it
was declared to be void. (v) The election shall continue to be valid in all respects notwithstanding
the judgment of any court, which includes the judgment da
661. Shri Shanti Bhushan has, as it were, a preliminary objection to the Thirty-ninth
Amendment that the election of a private individual and the dispute concerning it cannot ever be a
matter of constitutional amendment. Whether this contention is sound is another matter but I do
not see the force of the argument of the Attorney-General that in view of the decisions in Sankari
Prasad's case (supra), Sajjan Singh's case (supra) and the Fundamental Rights case (supra), the
contention is not open to be taken. The question raised by Shri Shanti Bhutan was not raised or
considered in either of the three aforesaid cases and I do not see how the question can be shelved.
The argument is not new facet of the theory of inherent or implied limitations on the amending
power, in which case it might have been plausible to contend that the last word was said on the
subject by the Full Court in the Fundamental Rights case. The question now raised touches a
totally new dimension of the amending power : Can the Constituent As me Court to frame rules
for regulating its practice and procedure, official language for communication between one State
and another and last but not the least, elections to the Parliament and the State Legislatures.
Those to whose wisdom and judgment the constituent power is confided, will evoke scorn and
derision if that power is used for granting or withdrawing building contracts, passing or failing
students or granting and denying divorces. But the electorate lives in the hope that a sacred power
will not so flagrantly be abused and the moving finger of history warns of the Consequences that
inevitably flow when absolute power has corrupted absolutely. The fear of perversion is no test of
power.
662. But the comparison is odious between the instances given by Shri Shanti Bhutan and
subject-matter of Article 329A (4) of the Constitution. In the first place, elections to Legislatures
were considered by Constitution-makers to be a matter of constitutional importance. Secondly,
though the powers of the Prime Minister in a cabinet form of democracy are not as unrivaled as
those of the President in the American system, it is undeniable that the Prime Minister occupies a
unique position. The choice of the subject for constitutional amendment cannot, therefore, be
characterized as trifling, frivolous or outside the framework of copious Constitution. In America,
the challenge to the Eighteenth Amendment on the ground that ordinary legislation cannot be
embodied in a constitutional amendment was brushed aside as unworthy of serious attention.
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Rottshaefer endorsed it as consistent with the ultimate political theory on which the American
constitutional system is based."The people, acting through the machinery p
663. There was some discussion at the Bar as to which features of the Constitution form the
basic structure of the Constitution according to the majority decision in the Fundamental Rights
case. That, to me, is an inquiry both fruitless and irrelevant. The ratio of the majority decision is
not that some named features of the Constitution are a part of its basic structure but that the
power of amendment cannot be exercised so as to damage or destroy the essential elements or the
basic structure of the Constitution, whatever these expressions may comprehend. Sikri, C.J.
mentions supremacy of the Constitution, republican and democratic form of the Government,
secular character of the Constitution, separation of powers, federalism and dignity and freedom of
the individual as essential features of the Constitution. Shelat and Grover, JJ. have added to the
list two other features : the mandate to build a welfare State and unity and integrity of the nation.
Hegde and Mukherjea, JJ. added sovereignty of India as a f
664. I consider it beyond the pale of reasonable controversy that if there be any unamendable
features of the Constitution on the score that they form a part of the basic structure of the
Constitution, they are that : (i) India is a sovereign democratic republic; (ii) Equality of status and
opportunity shall be secured to all its citizens; (iii) The State shall have no religion of its own and
all persons shall be equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion and that (iv) the nation shall be governed by a Government of
laws, not of men. These, in my opinion, are the pillars of our constitutional philosophy, the pillars,
therefore, of the basic structure of the Constitution.
665. I find it impossible to subscribe to the view that the preamble of the Constitution holds
the key to its basic structure or that the preamble is too holy to suffer a human touch.
Constitutions are written, if they are written, in the rarefied atmosphere of high ideology,
whatever be the ideology. Preambles of written Constitutions are intended primarily to reflect the
hopes and aspirations of people. They resonate the ideal which the nation seeks to achieve, the
target, no the achievement. In parts, therefore, they are metaphysical like slogans. For example,
the concept of fraternity which is referred to in our preamble is not carried into any provision of
the Constitution and the concept is hardly suitable for encasement in a coercive legal formula. The
preamble, generally, uses words of "passion and power" in order to move the hearts of men and to
stir them into action. Its own meaning and implication being in doubt, the preamble cannot affect
or throw light on the meaning of the enacting words of the
666. Judicial review, according to Shri Shanti Bhushan, is a part of the basic structure of the
Constitution and since the Thirty-ninth Amendment by Article 329A (4) and (5) deprives the
courts, including the Supreme Court, of their power to adjudicate upon the disputed election, the
amendment is unconstitutional. The fundamental premise of this argument is too broadly stated
because the Constitution, as originally enacted, expressly excluded judicial review in a large
variety of important matters. Articles 31(4), 31(6), 136(2), 227(4), 262(2) and 329(a) are some of
the instances in point. True, that each of these provisions has a purpose behind it but these
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provisions show that the Constitution did not regard judicial review as an indispensable measure
of the legality or propriety of every determination. Article 136(2) expressly took away the power
of the Supreme Court to grant special leave to appeal from the decisions of any court or tribunal
constituted by a law relating to the armed forces. Article 262(
667. The provision contained in Article 329(b) is decisive on the question under consideration.
That article provides that no election to the Parliament or the State Legislature 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. It was therefore open to
the Legislature to leave the adjudication of election disputes to authorities other than those in the
hierarchy of our judicial system. In fact, until the passing of the Representation of the People
(Amendment) Act, 47 of 1966, by which High Courts were given jurisdiction to try election
petitions, that jurisdiction was vested first in a tribunal consisting of three members and later in a
tribunal consisting of a single member who was to be a sitting District Judge. The decisions of
those tribunals could eventually be brought before the Supreme Court under Article 136(1) of the
Constitution but it is at least plausible that we
668. In England, prior to 1770, controverted elections were tried by the whole House of
Commons as mere party questions but in order "to prevent so notorious a perversion of justice",
the House consented to submit the exercise of its privilege to a tribunal composed of its own
members. In 1868, the jurisdiction of the House to try election petitions was transferred by statute
to the courts of law. A parliamentary election petition is now tried by two judges from out of
there puisne judges of the Queen's Bench Division who are put on the rota for trial of such
petitions by selection every year by a majority of votes of the judges of that division. At the
conclusion of the trial, the Court must forthwith certify the determination to the Speaker. The
determination, upon such certification, is final to all intents and purposes. Thus, in England, the
election Court is constituted by a special method, it exercises a jurisdiction out of the ordinary
jurisdiction which is normally exercised a jurisdiction out of the
669. Under Article 1, Section 5, Clause 1 of the American Constitution, each House is the
judge of the elections, returns and qualifications of its own members. Each House, in judging of
elections under this clause, acts as a judicial tribunal. Any further review of the decisions of the
two Houses seems impermissible.
670. I am therefore unable to accept the contention that Article 329A (4) and (5) are
unconstitutional on the ground that by those provisions, the election of the Prime Minister is
placed beyond the purview of the courts.
671. Equally, there is no substance in the contention that the relevant clauses of the
Thirty-ninth Amendment are in total derogation of "political justice" and are accordingly
unconstitutional. The concept of political justice of which the preamble speaks is too vague and
nebulous to permit by its yardstick the invalidation of a constitutional amendment. The preamble,
as indicated earlier, is neither a source of power nor of limitation.
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672. The contention that 'democracy' is an essential feature of the Constitution is unassailable.
It is therefore necessary to see whether the impugned provisions of the Thirty-ninth Amendment
damage or destroy that feature. The learned Attorney-General saw an insurmountable impediment
in the existence of various forms of democracies all over the world and he asked : What kind and
form of democracy constitutes a part of our basic structure? The cabinet system, the Presidential
system, the French, the Russian or any other? This approach seeks to make the issue
unrealistically complex. If the democratic form of government is the cornerstone of our
Constitution, the basic feature is the broad form of democracy that was known to Our Nation
when the Constitution was enacted, with such adjustments and modifications as exigencies may
demand but not so as to leave the mere husk of a popular rule. Democracy is not a dogmatic
doctrine and no one can suggest that a rule is authoritarian because some rights and safeguar
673. The question for consideration is whether the provision contained in Article 329A (4)
and (5) are destructive of the democratic form of government. The answer does not lie in
comparisons with what is happening in other parts of the world, those that stake their claim to
'democracy' because we are not concerned to find whether despite the Thirty-ninth Amendment
we are still not better off, democratically, than many others. The comparison has to be between
the per Thirty-ninth Amendment period and the post-Thirty-ninth Amendment period in the
context of our Constitution.
674. "Those of us who have learned humility have given over the attempts to define law". This
statement of Max Radin may be used to express a similar difficulty in defining 'democracy' but just
as legal scholars, not lacking in humility, have attempted to define 'law', so have political scientists
attempted a satisfactory definition of 'democracy'. The expression is derived from the Greek work
'demos', which was often used by the Greeks to describe the many, as distinct from the few, rather
than the people as a whole. And Aristotle defined democracy as the rule of the poor, simply
because they formed, always and necessarily, the more numerous class. But the word is commonly
used "in the sense of the rule of the majority of the community as a whole, including 'classes' and
'masses'........, since that is the only method yet discovered for determining what is deemed to be
the will of the body politic is not unanimous. This will is expressed through the election of
representatives. C. F. Strong defines democrac
675. Forgetting mere words which Tennyson said : 'Like Nature, half reveal and half conceal
the Soul within', the substance of the matter is the rule of the majority and the manner of
ascertaining the will of the majority is throughout the process of elections. I find myself unable to
accept that the impugned provisions destroy the democratic structure of our government. The rule
is still the rule of the majority despite the Thirty-ninth Amendment and no law or amendment of
the fundamental instrument has provided for the abrogation of the electoral process. In fact it is
through that process that the electorate expressed its preference for Smt. Indira Gandhi over Shri
Raj Narain and others. Article 326 of the Constitution by which the elections to the House of the
People and to the State Legislative Assemblies shall be on the basis of adult suffrage still stands.
Article 79 which provides that "There shall be a Parliament...... which shall consist of........ two
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Houses", Articles 80 and 81 which prescribe th
676. This is not put a seal of approval on the immunity conferred on any election but it is hard
to generalize from a single instance that such an isolated act of immunity has destroyed or
threatens to destroy the democratic framework of our government. One swallow does not make a
summer. The swallow with its pointed wings, forked tail, a curving flight and twittering cry is
undoubtedly a harbinger of summer but to see all these in the Thirty-ninth Amendment and to
argue that the summer of a totalitarian rule is knocking at the threshold is to take an unduly
alarmist view of the political scene as painted by the amendment. Very often, as said by Sir
Frederick Pollock, "If there is any real danger it is of the alarmist's own making".
677. The Thirty-ninth Amendment is, however, open to grave objection on other grounds, in
so far as clauses (4) and (5) of Article 329A are concerned. Generality and equality are two
indelible characteristics of justice administrated according to law. The preamble to our
Constitution by which the people of Indira resolved solemnly to secure to all its citizens equality
of status and opportunity finds its realization in an ampler measure in Article 14 which guarantees
equality before the law and the equal protection of laws to all persons, citizens and non-citizens
alike. Equality is the faith and creed of our democratic republic and without it, neither the
Constitution nor the laws made under it could reflect the common conscience of those who owe
allegiance to them. And if they did not, they would fail to command respect and obedience
without which any Constitution which, without a true nexus, denies equality before the law to its
citizens may in a form thinly disguised, contain reprisals directed against p
678. Article 329A(4) makes the existing election laws retrospectively inapplicable, in a very
substantial measure, to the parliamentary elections of the Prime Minister and the Speaker. The
inapplicability of such laws creates a legal vacuum because the repeal, so to say, of existing laws
is only a step-in-aid to free the election from the restraints and obligations of all election laws,
indeed of all laws. The plain intendment and meaning of clause (4) is that the election of the two
personages will be beyond the reach of any law, past or present. What follows is a neat logical
corollary. The election of the Prime Minister could not be declared void as there was no law to
apply to that election; the judgment of the Allahabad High Court declaring the election void is
itself void; and the election continues to be valid as it was before the High Court pronounced its
judgment.
679. These provisions are an outright negation of the right of equality conferred by Article 14,
a right which more than any other is a basic postulate of our Constitution. It is true that the right,
though expressed in an absolute form, is hedged in by a judge-made restriction so that the same
law will not apply to all persons alike or different laws may govern the rights and obligations of
different persons falling within distinct classes. The boast of law that it is no respector of persons
is the despair of drawers of waters and hewers of wood who claim or for a differential treatment.
The judge takes that boast to mean that in an egalitarian society no person can be above the law
and that justice must be administered with an even hand to those who are situated equally. In
other words, all who are equal are equal in the eye of law and it will not accord a favoured
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treatment to persons within the same class. Laws as Plato said, would operate "like an obstinate
and ignorant tyrant if they imposed inflexible
680. This Court, at least since the days of Anwar Ali Sarkar's case, has consistently taken the
view that the classification must be founded on an intelligible differential which distinguishes those
who are grouped together from those who are left out and that the differential must have a
rational relation to the object sought to be achieved by the particular. The first test may be
assumed to be satisfied since there is no gainsaying that in our system of government, the Prime
Minister occupies a unique position. But what is the nexus of that uniqueness with the law which
provides that the election of the Prime Minister and the Speaker to the Parliament will be above
all laws, that the election will be governed by no norms or standards applicable to all others who
contest that election and that an election declared to be void by a High Court judgment shall be
deemed to be valid, the judgment and its findings being themselves required to be deemed to be
void? Such is not the doctrine of classification and no
681. It follows that clauses (4) and (5) of Article 329A are arbitrary and are calculated to
damage or destroy the rule of law. Imperfection of language hinder a precise definition of the rule
of law as of the definition of 'law' itself. And the Constitutional Law of 1975 has undergone many
changes since A. V. Dicey, the great expounder of the rule of law, delivered his lectures as
Vinerian Professor of English Law at Oxford, which were published in 1885 under the title,
"Introduction to the Study of the Law of the Constitution". But so much, I suppose, can be said
with reasonable certainty that the rule of law means that the exercise of powers of government
shall be conditional by law and that subject to the exceptions to the doctrine of equality, no one
shall be exposed to the arbitrary will of the Government. Dicey gave three meanings to rule of law
: Absence of arbitrary power, equality before the law or the equal subjection of all classes to the
ordinary law of the land the source but the consequence of
682. The argument directed at showing the invalidation of the Thirty-ninth Amendment on the
ground that it abrogates the principle of 'separation of powers' is replete with many possibilities
since it has several sidelights. But I will be brief since I have already held that clauses (4) and (5)
of Article 329A are unconstitutional. I cannot regard the point as unnecessary for my
determination since the point seems to me of great constitutional importance.
683. The Indian Constitution was enacted by the Constituent Assembly in the backdrop of the
national struggle for independence. The Indian people had gone through a travail and on the
attainment of independence, the country had to face unique problems which had not confronted
other federations like America, Australia, Canada or Switzerland. These problems had to be
solved pragmatically and not by confining the country's political structure within the straitjacket of
a known or established formula. The Constituent Assembly, therefore, pursued the policy of pick
and choose to see what suited the genius of the nation best.
"This process produced new modifications of established ideas about the construction of
federal governments and their relations with the governments of their constituent units. The
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assembly, in fact, produced a new kind of federalism to meet India's peculiar needs".
While introducing the Draft Constitution in the Constituent Assembly, Dr. Ambedkar who
was one of the chief architects of the Constitution said that our Constitution avoided the tight
mould of federalism in which American Constitution was caught and could be "both unitary as
well as federal according to the requirements of time and circumstances". We have what may
perhaps be described by the phrase, 'cooperative federalism' a concept different from the one in
vogue when the federations of United States or of Australia were set up.
684. The American Constitution provides for a rigid separation of governmental powers into
three basic divisions, the executive, legislative and judicial. It is an essential principle of that
Constitution that powers entrusted to one department should not be exercised by any other
department. The Australian constitution follows the same pattern of distribution of powers.
Unlike these Constitution, the Indian Constitution does not expressly vest the three kinds of
power in three different organs of the State. But the principle of separation of powers is not a
magic formula for keeping the three organs of the State within the strict confines of their
functions. As observed by Cardozo, J. in his dissenting opinion in Panama Refining Company v.
Ryan, the principle of separation of powers "is not a doctrinaire concept to be made use of with
pedantic rigour. There must be sensible approximation, there must be elasticity of adjustment in
response to the practical necessities of Government which cannot foresee today
685. The truth of the matter is that the existence, and the limitations on the powers of the
three departments of government are due to the normal process of specialisation in governmental
business which becomes more and more complex as civilization advances. The Legislature must
make laws, the Executive enforce them and the Judiciary interpret them because they have in their
respective fields acquired an expertise which makes them competent to discharge their duly
appointed functions. The Moghal Emperor, Jehangir, was applauded as a reformist because soon
after his accession to the throne in 1605, he got a golden chain with sixty bells hung in his palace
so that the common man could pull it and draw the attention of the ruler to his grievances and
sufferings. The most despotic monarch in the modern world prefers to be armed, even if formally,
with the opinion of his judges on the grievances of his subjects.
686. The political usefulness of the doctrine of separation of powers is now widely recognised
though a satisfactory definition of the three functions is difficult to evolve. But the function of the
Parliament is to make laws, not to decide cases. The British Parliament in its unquestioned
supremacy could enact a legislation for the settlement of a dispute or it could, with impunity,
legislate for the boiling of the Bishop of Rochester's cook. The Indian Parliament will not direct
that an accused in a pending case shall stand acquitted or that a suit shall stand decreed. Princely
India, in some parts, often did it.
687. The reason of this restraint is not that the Indian Constitution recognizes any rigid
separation of powers. Plainly, it does not. The reason is that the concentration of powers in any
one organ may, by upsetting that fine balance between the three organs, destroy the fundamental
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premises of a democratic government to which we are pledged. Sir Carleton K. Allen says in his
'Law and Orders' (1965 Ed., p. 8) that neither in Montesquieu's analysis nor in Locke's are the
governmental powers conceived as the familiar trinity of legislative, executive and judicial powers.
Montesquieu's "separation" took the form not of impassable barriers and unalterable frontiers, but
of mutual restraints, or of what afterwards came to be known as "checks and balances" (p. 10).
The three organs must act in concert, not that their respective functions should not ever touch one
another. If this limitation is respected and preserved, "it is impossible for that situation to arise
which Locke and Montesquieu regarded as the eclips
688. I do not suggest that such an encroaching power will be pursued relentlessly or ruthlessly
by our Parliament. But no Constitution can survive without a conscious adherence to its fine
checks and balances. Just as Courts ought not to enter into problems entwined in the "political
thicket", Parliament must also respect the preserve of the courts. The principle of separation of
powers is a principle of restraint which "has in it the precept, inmate in the prudence of
self-preservation (even if history has not repeatedly brought it home), that discretion is the better
part of valour". Courts have, by and large, come to check their valorous propensities. In the name
of the Constitution, the Parliament may not also turn its attention from the important task of
legislation to deciding court cases for which it lacks the expertise and the apparatus. If it gathers
facts, it gathers facts of policy. If it records findings, it does so without a pleading and without
framing any issues. And worst of all, if it decide
689. The Parliament, by clause (4) of Article 329A, has decided a matter of which the
country's courts were lawfully seized. Neither more nor less. It is true, as contended by the
learned Attorney-General and Shri Sen, that retrospective validation is a well-known legislative
process which has received the recognition of this Court in tax cases, pre-emption cases, tenancy
cases and variety of other matters. In fact, such validation was resorted to by the Legislature and
upheld by this Court in at least four election cases, the last of them being Kanta Kathuria v.
Manak Chand Surana. But in all of these cases, what the Legislature did was to change the law
retrospectively so as to remove the reason of disqualification, leaving it to the courts to apply the
amended law to the decision of the particular case. In the instant case the Parliament has
withdrawn the application of all laws whatsoever to the disputed election and has taken upon
itself to decide that the election is valid. Clause (5) commands the Supr
690. I find it contrary to the basic tenets of our Constitution to hold that the amending body is
an amalgam of all powers-legislative, executive and judicial."Whatever pleases the emperor has
the force of law" is not an article of democratic faith. The basis of our Constitution is a
well-planned legal order, the presuppositions of which are accepted by the people as determining
the methods by which the functions of the government will be discharged and the power of the
State shall be used.
691. So much for the Thirty-ninth Amendment. The argument regarding the invalidity of the
Representation of the People (Amendment) Act, 58 of 1974, and of the Election Laws
(Amendment) Act, 1975 has, however, no substance. The constitutional amendments may, on the
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ratio of the Fundamental Rights case, be tested on the anvil of basic structure. But apart from the
principle that a case is only an authority for what it decides, it does not logically follow from the
majority judgment in the Fundamental Rights case that ordinary legislation must also answer the
same test as a constitutional amendment. Ordinary laws have to answer two tests for their validity
: (1) The law must be within the legislative competence of the Legislature as defined and specified
in Chapter I, Part XI of the Constitution, and (2) it must not offend against the provisions of
Article 13(1) and (2) of the constitution.'Basic structure', by the majority judgment, is not a part
of the fundamental rights nor indeed a provision of the Constitu
692. Shri Shanti Bhushan thought it paradoxical that the higher power should be subject to a
limitation which will not operate upon a lower power. There is no paradox, because certain
limitations operate upon higher power for the reason that it is higher power. A constitutional
amendment has to be passed by a special majority and certain such amendments have to be ratified
by the Legislatures of not less than one-half of the States as provided by Article 368(2). An
ordinary legislation can be passed by a simple majority. The two powers, though species of the
same genus, operate in different fields and are therefore subject to different limitations.
693. No objection can accordingly be taken to the constitutional validity of the two impugned
Acts on the ground that they damage or destroy the basic structure. The power to pass these Acts
could be exercised retrospectively as much as prospectively.
694. These Acts effectively put an end to the two appeals before us for they answer the
totality of the objections which were raised by Shri Raj Narian against the election of Smt. Indira
Gandhi. The basis of the findings on which the High Court held against the successful candidate is
removed by Act 40 of 1975 retrospectively. Were the law as it is under the amendments
introduced by that Act, the High Court could not have held that the election is vitiated by the two
particular corrupt practices. In regard to the cross-appeal filed by Shri Raj Narain, Shri Shanti
Bhushan thought that a part of it escapes through the crevices in the Act but I see no substance in
that contention either. I would like to add that the findings recorded by the High Court in favour
of Smt. Indira Gandhi are amply borne out by the evidence to which our attention was drawn
briefly by the learned Counsel for the parties. The expenses incurred by the political party,
together with the expenses incurred by her are not shown to exceed t
695. Finally, there is no merit in the contention that the constitutional amendment is bad
because it was passed when some members of the Parliament were in detention. The legality of
the detention orders cannot be canvassed in these appeals collaterally. And from a practical point
of view, the presence of 21 members of the Lok Sabha and 10 members of the Rajya Sabha who
were in detention could not have made a difference to the passing of the amendment.
696. In the result, I hold that clauses (4) and (5) of Article 329A are unconstitutional and
therefore void. But for reasons aforesaid I allow Civil Appeal No. 887 of 1975 and dismiss Civil
Appeal No. 909 of 1975. There will be no order as to costs throughout.
