Prior History: Appeals from the judgment and order dated the 12th June, 1975 of the Allahabad High Court in Election pitition No. 5 of 1971 Case Note: i) Election – Constitutional validity – Sections 125, 126, 171 of Indian Penal Code, 1860, Section 197 of Criminal Procedure Code, 1973, Section 114 of Indian Evidence Act and Constitution (39th Amendment) Act – appeal against High Court’s decision invalidating appellant’s election on ground of corrupt practices – meanwhile Parliament enacted 39th Amendment Act by withdrawing Court’s jurisdiction over election disputes involving Prime Minister (PM) – amendment affected free and fair elections and judicial review – judicial review, democracy essential features forming part of basic structure of Constitution – exclusion of judicial review outright negation of right to equality – under guise of exercising legislative power Parliament cannot adjudicate on merits of election dispute – held, Article 329-A (4) inserted by 39th Constitutional Amendment Act struck down as it violated basic structure of Constitution.
ii) Corrupt practices – Section 123 (7) of Representation of People Act, 1951 – corrupt practices under Section 123 (7) cannot be committed before there is a candidate – arrangement made by State Government for rostrums and loudspeaker in connection with election tour of PM not corrupt practice – voluntary expenditure by friends and relatives without any request cannot be deemed to be expenditure by candidate himself – allegations of corrupt practices must be judged by same standards as criminal charge – help rendered voluntarily by Government servant without any attempt by candidate does not constitute corrupt practice – held, respondent’s election valid. JUDGMENT A. N. Ray, 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 14 July, 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 12 June, 1975. The High Court held that the appellant held herself out as a candidate from 29 December, 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 the order as provided in Section 8(a) of the 1951 Act. The High Court awarded costs of the election petition to the respondent. 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 329-A in the Constitution. Clause 4 of Article 329-A is challenged in the present appeals. There are six clauses in Article 329-A. 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 appoint ed 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 be fore 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 dispute 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 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 concerns 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 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. 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 11 August, 1975. In view of the Constitution (Thirty-ninth Amendment) Act, 1975 which came into existence on 10 August, 1975 the hearing was adjourned till 25 August, 1975. 15. The Constitutional validity of Clause (4) of Article 329-A falls for consideration. Clause (4) of Article 329-A 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 7 learned Judges in Kesavananda Bharati Sripadanagalavaru v.
State of Kerala MANU/SC/0445/1973 : AIR1973SC1461 . 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 MANU/SC/0445/1973 : AIR1973SC1461 . 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 329-A is said to be in 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. 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 Constitution 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 26 June, 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 participation. Holding of the session and transacting business are unConstitutional. 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 democracy will be destroyed if power is conceded to Parliament to declare the elections void according to law under which it has been held to be valid. This is illustrated by saying that Parliament can by 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 fail elections and by commission of corrupt practices is validated. The basic structure of equality is violated by providing that those who hold office of Prime Minister and Speaker are above law although election laws were there. The persons who will hold the office of Prima Minister and Speaker have been free from those laws and they are not under rule of law and there is no judicial review with regard to their elections. 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 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 the Thirty-ninth Amendment the power of judicial review is taken away it amounts to destruction of basic structure. 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 Federal Constitution Court. 26. The view of Story on the American Constitution is that the power to judge elections, returns and qualifications 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 powers which are generally executive in their nature. All matters relating to or affecting elections are political questions 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 questions (pp. 691, 692, 710). 28. In Corpus Juris Vol. 29 (1965) if : is stated that under Constitutional provision as to conferring on the legislature the power to determine by law, before what authority, and in what manner the trial or contested elections shall be’ conducted, the legislature is given broad power. A Constitutional provision 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. Elections 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 merely a proceeding for the adjudication and settlement of the private rights of rival claimants to an office. It is the public interest, not the parties’ claims, which is the paramount legislative concern (Section 247). 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 justiciable. In Truman H. Newberry v. United States of America (1920) 65 L Ed 913 the American Supreme Court held that the manner of elections can be controlled. In D avid 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 (1962) 7 L Ed 2d 663 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 (1966) 17 L Ed 2d 235 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 regard to his oath of the legislature. In Adam Clayton Powell v. John W. McCormack (1969) 23 L Ed 2d 491 the disqualification by the House of a Congressman on the basis of qualification on the ground which was not in the Constitution was held to be justiciable. The Federal District Court has jurisdiction over the subject-matter of controversies arising under the Constitution. The conferment of power on each House in America to be a judge of elections is an exclusive ground of power and constitutes the House to be the sole and ultimate Tribunal. 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 (1966) 17 L Ed 2d 235 (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 jursdiction 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 certify their determination, in writing, to the Speaker, which is final to all intents and purposes. Trial is not a proceeding of the House.
The judges are to make a report in any case where charge has been made in the petition of corrupt and illegal practice. Provision is also made for the trial of a special case. All certificates and reports of the election court are entered in the Journals of the House. Under Section 124 (5) of the English Representation of the People Act, 1949, it is the duty of the House to make orders for carrying the determination of the judges into execution. 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 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 a 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 application of law.
The higher norm may determine the organ and the procedure by which a lower norm and the contents of the lower norm are created. For a norm the creation of which is not determined at all by another norm cannot belong to another legal order. The individual creating a norm cannot be considered the organ of the legal community, his norm-creating function cannot be imputed to the community, unless in performing the function he applies a norm of the legal order constituting the community. Every law-creating act must be a law applying act. It must apply a norm preceding the act in order to be an act of the legal order or the community constituted by it.
When settling a dispute between two parties a court applies a general norm or statutory or customary law. Simultaneously, the court creates an individual norm providing that a definite sanction shall be executed against a definite individual. The individual norm is related to the general norm as the statute is related to the Constitution. The judicial function is thus like legislation, both creation and application of law. The judicial function is ordinarily determined by the general norms both as to procedure and as to the contents of the norm to be created, whereas legislation is usually determined by the Constitution only in the former respect. 4. 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 the constituent 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 judgment the constituent power may equally do so. Special emphasis is laid on Article 105 of the Constitution which is amended by the Constitution (Thirty-ninth Amendment) Act. Article 105(e) speaks of disqualification by certain laws. The Constitutional amendment seeks to amend Article 105 and remove the disqualification in the case of the Prime Minister and the Speaker. Reliance was placed on the decisions in Abeyesekara v. Jayatilake 1932 AC 260 and Piare Dusadh v. The King Emperor MANU/FE/0011/1943 that an amendment is supportable to invalidate a judgment. 36.
Abeyesekera’s case 1932 AC 260 (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 MANU/FE/0011/1943 (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 (supra) 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. That question had as a matter of fact been decided by tribunals which were directed to follow a certain judicial procedure. Our Federal Court held that once the decisions of the special courts were held void for want of jurisdiction the legislature created those special courts and authorised them to try cases and pass sentences.
The legislature gave jurisdiction to the courts to pass the sentences. The Ordinance did not exercise any judicial power because the sentences in due course were subject to an appeal and review by the regular courts of the land. 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 Tribunal 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 Fundamental Rights in Part III of the Constitution and the law has been declared void by a competent court, the appropriate legislature has passed a retrospective law validating the actions taken under the old invalid law by curing the defects in the old law so as to make the new law consistent with Part III of the Constitution. 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 MANU/SC/0275/1969 : 2SCR835 . 41. Our Federal Court in Basanta Chandra Ghose v. The King Emperor 1944 FCR 295 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 Cri. P. C.
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 remain the function of the court. Section 10(2) of the Ordinance was said not to leave it to the court to apply the rule of law to the decision of cases but to discharge all pending proceedings. Our Federal Court, noticed the distinction between a legislative act and the judicial act. and said “a direction such), a proceeding is discharged is clearly a indicial act and not an enactment of law”.
In Piare Dusadh’s case MANU/FE/0011/1943 (supra) the latter Ordinance provided that the decisions of the earlier Tribunals which were negatived by a decision of the Federal Court should be treated as decisions of duly constituted Tribunals. That was held not to constitute a judicial power by the Ordinance making authority. In Basanta Chandra Ghose’s case (supra) the Federal Court held Section 10(2) of the Ordinance to be a direct disposal of cases by the legislature itself. Basanta Chandra Ghose’s case (supra) was decided on the ground that the section in the Ordinance discharged the proceedings. There was nothing left to the Court. 42. Counsel on behalf of the respondent contended that the constituent power could deal with amendments of the Consitution, 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 (1966) 17 L Ed 2d 235 (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 fundamental rights of Bond. This is not an authority for the proposition that the decision of the House on an election dispute would be open to judicial review. 45. The ease of Powell v.
McCormack (1969) 23 L Ed 2d 491 (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 matter becomes cognizable by courts. The Court held that a question of unConstitutional exclusion of a member is not barred from judicial review as a political question. 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 Delhi Laws Act; Jayantilal Sodhan v. F. N. Rana MANU/SC/0046/1963 : 5SCR294 ; Chandra Mohan v. State of Uttar Pradesh MANU/SC/0052/1966 : (1967)ILLJ412SC and Udai Ram Sharma v. Union of India MANU/SC/0154/1968 : 3SCR41 . 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 a 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 de fines 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 suigeneris. 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 329-A 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 decision. The executive usually collects its materials through its departments. The judiciary acts in a field where there are two or more parties be fore 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 Alterm Par tem 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 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 violated. It only means that the appropriate body making the law satisfied itself and determines conclusively that principles of equality have not been violated. That body conclusively makes classification for the purpose of applying the principles of equality.
It is said that in this class of cases the answer to the question of the validity of the classification rests on factors to which the court has no access and the materials may be of highly confidential nature and the decision has to be on a matter of political necessity. If judicial review is excluded the court is not in a position to conclude that principles of equality have been violated 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 31-A and 31-B 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 31-A, 31-B and 31-C. 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. Decisions 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 offences are statutory ones.
It is not possible to hold that the concept of free and fair election is a basic structure, as contended for by the respondent. Some people may advocate universal franchise. Some people may advocate proportional representation. Some people may advocate educational qualifications for voters. Some people may advocate property qualifications for voters. Instances can be multiplied on divergence of views in regard to qualifications for voters, qualifications of members, forms of corrupt practices. That is why there is law relating to and regulating elections. 56. Clause (4) in Article 329-A 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 105 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 s 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 constituent 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 in 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. 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 329-A in the present case invalidating 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 329-A 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 26th June, 1975 and before the summoning of a session of the two Houses of Parliament. Parliament commenced the sessions on 21st July, 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 27th June, 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 order f the President who became a party to the unConstitutional and illegal detention of the members of Parliament by preventing them from securing their release. 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 to 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. 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 Presidential 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 views 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 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 judge, (see May’s Parliamentary Practice 18th Ed. pp. 82-83 (1884) 12 QBD 271. 70. In Bradlaugh v. Gossett, (1884) 12 QBD 271 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 Serjeant to exclude him from the House until he undertook to create no further disturbance. Bradlaugh then brought an action against the Serjeant 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 Serjeant 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 control of the Courts in the administration of the internal proceedings of the House. 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 Serjeant to go to the Computer and demand his delivery. The Serjeant was resisted by the city officers, who were protected by the sheriffs. The Commons laid their case before the Lords. They ordered the Serjeant 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. 72. The present mode of releasing arrested members goes back to Shirley’s case (1 Hatsell, 157). 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 Serjeant to demand his release. The warden refused to give up his prisoner. At length the warden delivered up the prisoner. 73. As Act 1 James 1. c. 3 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 1 James I 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 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’ rights 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 Articles 19,21 and 22. 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. of (sic) 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 of surety of the peace. 80. 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. (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 the 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 19 State Tr. , 981 it was resolved by both Houses on 29th November, 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 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 14-B 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 18-B 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 House; the Committee reported that there was no breach of privilege involved. In the case of a member deported from Northen Rhodesia for non-compliance with an order declaring him to be a prohibited immigrant, the Speaker held there was no prima facie case of breach of privilege. (See May’s Parliamentary Practice 18th Ed. p. 103). 84. In K. Anandan Nambiar v.
Chief Secretary Government of Madras MANU/SC/0060/1965 : 1966CriLJ586 the petitioners 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 MANU/SC/0060/1965 : 1966CriLJ586 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. The Court held that if that plea was well founded, the last clause of the Presidential Order was not satisfied, and, there fore, the bar created by it suspending the citizens’ fundamental rights under Articles 14, 21 and 22 could not be pressed into service by the respondent. 86.
Articles 79, 85, 86, 100(1) and 105(3) were considered in Nambiar’s case MANU/SC/0060/1965 : 1966CriLJ586 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 contravened. The statement in May’s Parliamentary Practice 7th Ed. at p. 78 which is to be found in the 18th Edition at p. 00 that 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 was accepted as the basis of two propositions laid down in Nambiar’s case (supra), First, Articles 79, 85, 86, 100 and 105 cannot be construed to confer any right as such on individual Members or impose any obligation on them. It is not as if a Member of Parliament is bound to attend the session, or is under an obligation to be present in the House when the President addresses it. The context in which these Articles appear shows that the subject-matter of these Articles is not the individual rights of the Members of Parliament, but they refer to the right of the President to issue a summons for the ensuing session of Parliament or to address the House or Houses.
Second, the freedom of speech to which Article 105 refers would be available to a Member of Parliament when he attends the session of the Parliament. If the order of detention validly prevents him from attending a session of Parliament, no occasion arises for the exercise of the right of freedom of speech and no complaint can be made that the said right has been invalidly invaded. 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 cannot be indirectly achieved. 88.
The High Court found first that the appellant has to be regarded as a candidate from 29th December, 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 within the Government of India. The High Court found that Yashpal Kapur’s resignation from his service though submitted on 13th January, 1971 did not become effective until 25th January, 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 7th January, 1971 at Munshi Gani and another speech at Kalan on 19th January, 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 Executive Engineer. P. W. D. and the Engineer to Hydel Department for the construction of rostrums and arrangement for supply of power for loudspeakers at meetings addressed by the appellant on 1st February, 1971 and 25th February, 1971 and further that the said assistance was for furtherance of the prospects of election of the appellant. The High Court found the appellant guilty of corrupt practice under Section 123(7) of the 1951 Act. The High Court declared the election of the appellant to be void.
The High Court also held the appellant to be disqualified for a period of six years from the date of the order. 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 follows: ‘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 6th August, 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 171-A of the Indian Penal Code a person who has been nominated as a candidate at any election.
Previously the definition of “candidate” in Section 171-A 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 171-A 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. 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 1st February, 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 7th January, 1971 and 19th January, 1971 under instructions of the appellant cannot be supported because the appellant was not a candidate either on 7th January, 1971 or on 19th January, 1971. 94. The second finding by the High Court with regard to the resignation of Yashpal Kapur not to be effective until 25th January, 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 25th January, 1971 in the Gazette dated 6th February, 1971 makes the fact of the resignation of Yashpal Kapur from his service fully effective from 14th January, 1971. It is, therefore, contended that from 14th January, 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 of 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 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 different sub-sections of Section 123 as a candidate. The appellant contends that the appellant was not a candidate on 7th January, 1971 or 19th January, 1971 and there could not be any procuring or obtaining of any assistance by the appellant as a candidate or by anybody else with the consent of the appellant. All the sub-sections of Section 123 of the 1951 Act refer to the acts of a candidate or his election agent or any other person with the consent of the candidate or his election agent. The present definition of “candidate” which has retrospective effect is con tended to exclude completely acts by candidate prior to the date he is nominated as a candidate. 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 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 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. 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 Nos. and 5 which related to distribution of quilts, blankets, dhoties 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 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. ,900/- on account of payment 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 1st February, 1971 and 25th February, 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. ,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. Yashpal Kapur said that the vehicles were used in the three Parliamentary constituencies. The High Court rightly held that the evidence did not establish that the vehicles had been used for the election work of the appellant. The High Court also correctly found that there was no evidence to show that Yashpal Kapur made any propaganda from the vehicles in any manner for the purpose of the election. 106. With regard to the expenses for the erection of rostrums the respondent contended that the appellant’s election expenses should include Rs. ,32,000/- as the costs for erection of rostrums for the meetings on 1st February, 1971 and the meeting on 25th February, 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 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 doubt, it is hereby declared that any expenditure incurred in respect of any arrangements ade, 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 the 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 mention ed 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 reaction 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 4th March, 1971 and on the other there was a withdrawal of Rs. 40,000/- on 4th March, 1971 and of Rs. 25,000/- on 6th March, 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. 5,000/- 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 I 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 I by the Amendment Act, 1974.
The proviso stated that nothing contained in the Explanation shall affect (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. 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 I “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. Amarnath Chawla MANU/SC/0277/1974 : 2SCR259 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 effected 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 authorised by the candidate. Furthermore, the ruling in Kanwar Lal Gupta’s case (supra) is no longer good law because of the legislative changes. 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. 5,000/- which was drawn by the 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 expenses of the election agent. The telephone expenses amounted to Rs. 836. 85 between 11th January, 1971 and 10th February, 1971 and a further sum of Rs. 2,514/- for the period 11th February, 1971 to 15th March, 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 excess was spent for workers with the authority of the election agent. 115. In Issue No. 9 there was no amount alleged with regard to telephone 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 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 not incurred by him.
He also said that he did not include in the election return the expends incurred over the construction of platforms because the meetings were arranged by the District Congress Committe. No allegations were made in the petition with regard to any alleged sum of money on account of election meetings were 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 arguments. 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 to be taken note of.
Where vehicles were engaged by the Congress Committee and used by the candidate, the amount spent by the Congress Committee could not be taken to be included in the expenditure of the candidate’s election expenses (See Hans Raj v. Pt. Hari Ram (1968) 40 Ele LR 125. 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 (1969) 42 Ele LR 307. In Rananjaye Singh v. Baijnath Singh MANU/SC/0091/1954 : 1SCR671 this Court pointed out that expenses must be incurred or authorised by the candidate or his agent.
In that case the Mangaer, 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 paid by the candidate or by his election agent. 118. In Ram Dayal v.
Brijraj Singh MANU/SC/0269/1969 : 1SCR530 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 behalf of the respondent it was said relying on the decision of this Court in Kanwar Lal Gupta’s case MANU/SC/0277/1974 : 2SCR259 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 ascribed to be incurred or authorised by one. In the case of expenses of a political party there is no question of disavowing expenditure incurred or authorised by the political party. 120. The decision in Kanwar Lal Gupta’s case MANU/SC/0277/1974 : 2SCR259 was based on an observation extracted from the decision of this Court in Megh Raj Patodia v. R. K. Birla MANU/SC/0322/1970 : 2SCR118 .
In Megh Raj 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 Megh Raj Patodia’s case (supra) there is an observation that expenses incurred by a political party to advance 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 construed by counsel for the respondent to mean that if a candidate takes advantage of expenditure incurred or authorised by a political party such expenses could be attributed to a candidate.
The Amendment Act, 1974 has added Explanation 1 to Section 77 of the 1951 Act which shows that expenditure incurred or authorised in connection with the election of a candidate by the political party shall not be deemed to be expenditure incurred or authorised by the candidate or his election agent. 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 re-imbursement. 122.
For the foregoing reasons the contentions of the respondent that 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 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 limitations 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 contravenes Article 14 but also violates the implied limitation on legislative power relating to free and fair elections. Fourth, any amendment of the law with retrospective operation governing an election which has already been held necessarily introduces an element of unfairness and brings about a denial of equality among rival candidates. Fifth, the deeming clause introduced in the 1951 Act by Sections 6(b) and 8(a) and (b) of the” Amendment Act, 1975 and the device of conclusive proof adopted by Section 8(c) in the Amendment Act, 1975 are unConstitutional encroachments on judicial power.
Sixth, power conferred by an enactment including a Constitutional enactment has to be so exercised as to give effect to the guiding principles of the basic norms of that legislation and not so as to militate against those guiding principles or basic norms. 126. The definition of “candidate” is amended by the Amendment Act, 1975. The contentions 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 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 offences 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 to 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 contention are these. No guidelines have 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 assist candidates by canvassing, influencing which will damage fair elections. 129. The device of conclusive proof which is introduced to add Explanation 3 to 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 advantage 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 change 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 statutes. It is because of the material Constitution that there is a special form for Constitutional law.
If there is a Constitutional form then Constitution laws must be distinguished from ordinary laws. The material Constitution may determine not only the organs and procedure of legislation, but also, to some degree the contents of future laws. The Constitution can negatively determine that the laws must not have a certain content e. g. that the Parliament may not pass any statute which restricts religious freedom. In this negative way not only contents of statutes but of the other norms of legal order, judicial and administrative decisions likewise, may be determined by the Constitution. The Constitution can also positively prescribe certain contents of future statutes.
This may be illustrated with reference to the provisions in Article 22 that no person who is arrested shall be detained in custody without being informed, as soon as may be of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice. 133. Articles 245 and 246 give plenary powers to legislatures 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 statute 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 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 Articles 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 MANU/SC/0445/1973 : AIR1973SC1461 . 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 MANU/SC/0012/1950 : 1950CriLJ1383 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 legislatures 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 statute 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 what will not constitute corrupt practice. Parliament has power to enact what will be the ground for disqualification.
Parliament has power to define “candidate”. Parliament has power to state what symbols will be allotted to candidates at election. These are all legislative policies. 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 or orders of competent Courts and Tribunals is changed and the judgments and orders are made ineffective is to be found in M. P. V. Sundaramier & Co. v. The State of Andhra Pradesh MANU/SC/0151/1958 : 1SCR1422 .
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 MANU/SC/0275/1969 : 2SCR835 . 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 be deemed never to have disqualified the holders thereof as a member of the Legislative Assembly.
The rendering of a judgment ineffective by changing the basis by legislative enactment is not encroachment on judicial power because the legislation is within the competence of the legislature. 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 Legislatures 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 present case does not fall within that category. Reference may be made to May’s Parliamentary Practice 17th Ed. p. 15 where , instances are given of validation of election by the British Parliament. 140. This Court in Jumuna Prasad Mukhariya v. Lachhi Ram MANU/SC/0104/1954 : 1SCR608 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 statute which can only be exercised on the conditions laid down by the statute.
The Fundamental Rights Chapter has no bearing on a right like this created by a statute 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 171-1 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 fall within the offences of bribery, undue influence, personation at elections within the provisions of the Indian Penal Code or for false statement or illegal payments in connection with any election or failure to keep election accounts. 142. The English Representation of the People Act, 1949 called the English Act was relied on 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 influences 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 “candidate”. 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 subsequently becoming a candidate (see Parker’s Conduct of Parliamentary Elections 1970 Ed. 52. 144. It has been held in England that a candidate may be unseated for bribery or treating committed months or even years before the vacancy or election (Youghal 1 OM. & H. 295; Bodmin 5 OM & H 230. The present position under the English Act is stated in Parker’s Conduct of Parliamentary Elections 1970 Ed. 0 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 (1886) 54 LT 625 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 settled by the decision of an election court. 145.
Sections 171-A to 171-1 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 and 18 Victoria. Chapter CII (1853-54); Statutes 21 and 22 Victoria, Chapter LXXXVII (1858) and Statutes 46 and 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 and 18 Victoria Chapter CI enacts that the persons mentioned therein shall be deemed guilty of bribery and punishable in accordance with the provisions of the Act. The words 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 and 18 Victoria Chapter CII makes certain acts of voters and candidates corrupt practice. Section IV of the aforesaid English Statute enacts that every candidate at an election who shall corruptly by himself, or by or with any person or by any other ways or means on his behalf, at any time, either before, during, or after any election, directly or indirectly give or provide, or cause to be given or provided any expenses incurred for any meat, drink entertainment, etc. shall be deemed guilty of an offence of treating.
In these sections when the acts of voters and candidates are made punishable the words used are “before or during any election directly or indirectly or at any time either before, during or after any election” in Section IV of the Act. These words make acts of voters or candidates committed before or during an election also corrupt practice. Without these words acts of the candidate made punishable under the English Statutes would only be the acts committed by the candidate after he becomes a candidate. 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 not 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 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 undertake the liability even if the actual payment 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 ithin 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 MANU/SC/0071/1955 : 28ITR941(SC) 44 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 limitation s 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. 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. The Asstt. Commr. of Sales Tax MANU/SC/0361/1973 : 94ITR204(SC) . 152. The Constitution 29th Amendment Act was considered by this Court in Kesavananda Bharati’s case MANU/SC/0445/1973 : AIR1973SC1461 . The 29th 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 29th Amendment Act. The unanimous view of this Court in Kesavananda Bharati’s case (supra) is that Article 31-B is not open to challenge. Six Judges held that the 29th Amendment Act would be ineffective to protect the impugned Act is they took away the fundamental rights. Six Judges took the view that the 29th Amendment Act is valid and further that Article 31-B has been held by this Court to be independent of Article 32-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 a mandate and complete protection from the challenge of fundamental rights to the Scheduled Acts and Regulations. The view of seven Judges in Kesavananda Bharati’s case is that Article 31-B is a Constitutional device to place the specified statutes in the Schedule beyond any attack that these infringe Part III of the Constitution. The 29th Amendment is affirmed in Kesavananda Bharati’s case (supra) by majority of seven against six Judges. 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 Kesavananda Bharati’s case MANU/SC/0445/1973 : AIR1973SC1461 is that the 29th 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 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 conformity, as far as practicable with his choice. It is, therefore, apparent that the power to specify permissible symbols is vested by Rule 5 in the Election Commission. The choice of candidates is limited to the symbol specified by the Election Commission. The Election Symbols (Reservation and Allotment) Order, 1968 was made in exercise of the powers conferred by Article 328 of the Constitution read with Rule 5 and Rule 10 of the Conduct of Election Rules and all other powers enabling in this behalf. 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, therfore, be no doubt that the power of evolving permissible symbols is exclusively vested in the Election Commission. It is under their direction that the Returning Officer has to make allotments and allotments are made in terms of Clauses 5, 6 and 8. Therefore, in the matter of evolving of the permissible symbols, the jurisdiction is vested in the Election Commission. If a candidate displays in addition to the allotted symbol an additional 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 Bhartiya 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